Another reason sometimes given for the ex clusion of counsel as a witness is that, if he afterward argues the case, his statements as a witness and his arguments as counsel might be confused in the minds of the jurors and the latter thus acquire undue weight; this objection was strongly stated in argument in 4 Dowl. & L. 393. But this rule was not fol lowed in England, and those cases were dis credited in 1 E. & B. 11, where the right of a party to testify and to argue his own case was held not inconsistent, though the prac was disapproved as "contrary to good taste and good feeling" and "revolting to the minds of the jury." This rule was not ex pressly but inferentially applied to counsel as witness, but the court said : "If the prac tice does gain ground to a degree seriously injurious, the judges have power to make a rule against it." In Canada, counsel was not allowed as witness in 3 Kerr 398 ; 4 U. C. Q. B. 96 ; but it was permitted in 2 Pugs. 462, with a disapproval of the case in 3 Kerr 398, and also with the expression of an opinion that the proceeding was indecent and should be discouraged, and in 39 U. C. Q. B. 452, the case in 4 U. C. Q. B. 96, and one which followed it (id. 189), were overruled and the testimony of counsel admitted, though the proceeding was characterized as not "desirable." In some American cases the testimony was held to be admissible ; Mad den v. Fanner, 7 La. Ann. 580 (but not as full proof); Potter v. Ware, 1 Cush. (Mass.) 519 (only proper in rare cases). In Folly v. Smith, 12 N. J. L. 139 ; Tullock v. Cunning ham, (N. Y.) 256, and Caniff v. Myers, 15 Johns. (N. Y.) 246, he was held competent to prove his power of attorney. In Mott v. Bernard, 97 Mo. App. 265, 70 S. W. 1093, he was allowed to prove a paper even where there was a contingent fee. So in Abbott v. Striblen, 6 Ia. 191, he was held competent to prove a copy of a paper and the loss of the original, and in Fire Ass'n of Philadel phia v. Fleming, 78 Ga. 733, 3 S. E. 420, he was held competent, but not compellable, un der a statute to that effect. In Central Branch U. P. R. Co. v. Andrews, 41 Kan. 370, 21 Pac. 276, he was held competent, though acting upon a contingent fee, and in Hall v. Renfro, 3 Metc. (Ky.) 51, he was held competent, but the practice was apparently disapproved. In some cases the attorney is held not to be in any case a competent wit ness for his client ; Pritchard v.. Henderson, 3 Pennewill (Del.) 128, 50 AtL 217, where even one who was in his office and helped in the preparation of the case was incompetent; also 72 Me. 566, and 6 N. H. 580, in both of which there was a general rule of court for bidding the practice, and in Voss v Bender, 32 Wash. 566, 73 Pac. 697, such a rule, being
challenged, was held proper. In other cases it has been held that there was no law to prevent such testimony, but the practice was almost in every case disapproved; Thresher v. Bank, 68 Conn. 201; State v. Seymour, 7 Idaho 548, 63 Pac. 1036; Wilkinson v. Peo ple, 226 Ill. 135, 80 N. E. 699 ; Frear v Drink er, 8 Pa. 520 (no law to forbid it, but a "highly indecent practice"); Bell v. Bell, 12 Pa. 235 (competent, though it is "commend able delicacy to withdraw from argument"); but in a later case the exclusion of the at torney as a witness was held reversible er ror, and it was said that "the question may therefore be considered as settled in England and Pennsylvania and also in Massachu setts," citing Potter v. Ware, 1 Cush. (Mass.) 519 ; Follansbee v. Walker, 72 Pa. 228, 13 Am. Rep. 671; and still later, where the witness was admitted, the court said that counsel "who has a just sense of propriety" should decline unless under absolute neces sity, but there is no interest or policy of law to exclude him, and absolute duty may some times be disclosed which he cannot disre gard; Perry v. Dicken, 105 Pa. 83, 51 Am. Rep. 181; Mealer v. State, 32 Tex. Cr. Rep. 102, 22 S. W. 142 (counsel was not disquali fied); but in Spencer v. Kinnard, 12 Tex.
180, such testimony was said to be sometimes necessary, but only to be tolerated by the courts in "cases of pressing necessity." Oth er cases are Reid v. Colcock, 1 Nott & McC. (S. C.) 592, 9 Am. Dec. 729 (not disqualified, but "a matter of much delicacy"); McLaren v. Gillispie, 19 Utah 137, 56 Pac. 680 (compe tent, but he should not be "called unless in dispensable and he should then withdraw from the case if possible with safety to the client's interest"); Moats v. Rymer, 18 W. Va. 642, 41 Am. Rep. 703 (necessary in some extreme cases, but ordinarily muck to be re gretted) ; Hardtke v. State, 67 Wis. 552, 30 N. W. 723 (where counsel for prosecution tes tified to an admission by defendant, "the propriety" of it was "very questionable"). In French v. Hall, 119 U. S. 152, 7 Sup. Ct. 170, 30 L. Ed. 375, it was said that while there is nothing in the policy of the law, as there is no positive enactment, to hinder the attorney from testifying, "in some cases it may be unseemly." Persons vn possession, of secrets of state or matters the disclosure of which would be prejudicial to the public interests, are not al lowed to testify thereto ; 1 Greenl; Ev. § 250. See SECRETS OF STATE. , Grand jurors and persons present before a grand jury; 1 Greenl. Ev. § 252; are not permitted to testify to the proceedings had before that body ; 1 Phill. Ev. 177. See Con FIDEXTIAL COMMUNICATIONS.