J. H. CARROLL v. F. A. SPRAGUE, 59 Cal. 655

Sharpstein, J.: We do not think that the Court erred in allowing the defendant to amend his answer; or in refusing to allow the plaintiff to file a supplemental complaint; or in admitting evidence to prove that the property replevied had been taken from the defendant and delivered to the plaintiff by virtue of the writ of replevin; or in refusing to admit evidence to prove that after the property was so delivered to the plaintiff, a part of it was seized by the defendant upon an attachment or execution issued in some other action than that in which it was attached before the commencement of this action!

But we think the Court did err in sustaining the objection to the examination of Burt, who was called for the purpose of impeaching Eckert, a witness for the defense. The communication which Eckert made to Burt in regard to the ownership of the property in dispute was privileged, if made for the purpose of obtaining the professional advice or aid of the latter in some matter relating to said property, and that would be so if Eckert supposed at the time that Burt was his attorney, although in fact he was not.

But it was incumbent on the party who objected to the examination of Burt as to what Eckert had told him, to show that the communication was privileged, and unless it was made when Eckert was seeking professional counsel, advice, or aid in relation to this same property, it was not privileged. It was not enough that Burt or Burt & Gale had “ incidentally or otherwise done a great deal of business for Eckert.” The material question was whether any professional counsel, advice, or aid had been solicited or given in relation to this particular property. As to that we are left wholly in the dark.

There being no evidence that the relation of creditors and debtor existed between Baker & Hamilton and Eckert prior to the date of the promissory note which he gave to them, the inference is that it did not exist before; and we think that the Court erred in refusing to instruct the jury, as requested by the plaintiff, that Baker & Hamilton could not be regarded as creditors of Eckert at a period earlier than the date of said note. If they desired to be, and it was in their power to show that they were, they should have proved that they were. Otherwise they could not be so regarded.

We.do not think that the Court erred in refusing to instruct the jury that if Eckert believed, at the time he filed his petition in insolvency, that he owned the property in controversy, it was his duty to include it in his schedule, and his willful and intentional neglect so to do made his oath attached to said

schedule false; and that when a witness has intentionally perjured himself in a judicial proceeding, the jury must regard his whole testimony with suspicion, and discredit it, except in such particulars as it is corroborated by other circumstances. “A witness false in one part of his testimony is to be distrusted in others,” is the language of the Code. But this does not apply to false testimony given in some other action or proceeding. Of course, a witness may be impeached by showing that he has testified differently in regard to the same matter in some other action or proceeding.

But a jury would be justified in believing his second, instead of his first statement, and therefore the' instruction asked could not properly be given in this case. It was inappropriate. The conclusion at which we have arrived as to some of the alleged errors makes it comparatively immaterial whether the Court erred in denying the motion for a new trial on the ground of newly discovered evidence, and we shall simply say that we do not think that the plaintiff made a sufficient showing to entitle him to a new trial on that ground.

Upon the principal issue in the case, we think that there was a substantial conflict in the evidence, and we therefore could not reverse the order denying the motion for a new trial, on the ground of insufficiency of the evidence to justify the verdict. But for errors which we have pointed out, the judgment and order must be reversed. Judgment and order reversed. Morrison, C. J., and Thornton, J., concurred in the judgment.