A counsel or attorney is not a competent witness to testify as
to facts communicated to either by his client in the course of the
relation subsisting between them, but may be examined as to the
mere fact of the existence of that relation.
Confidential communications between client and attorney are not
to be revealed at any time. The privilege is not that of the
attorney, but of the client, and it is indispensable for the
purposes of private justice.
Whatever facts, therefore, are communicated by a client to a
counsel solely on account of that relation, such counsel are not at
liberty, even if they wish, to disclose, and their testimony is
incompetent.
A counsel may, however, be asked, and in answering the question
his testimony is competent whether he had been retained by the
party as counsel or attorney, but he cannot be asked in what
capacity he was so retained or what claim or title he was employed
to maintain.
The action for mesne profits may be maintained against him who
was the landlord in fact who received the rents and profits and
resisted the recovery in the ejectment suit, although he was not a
party to that suit and did not take upon himself the defense
thereof upon the record, but another did as landlord.
A recovery in ejectment is conclusive evidence in an action for
mesne profits against the tenant in possession, but not in relation
to third persons. But where the action is brought against the
landlord in fact, the record in the ejectment suit is admissible to
show the possession of the plaintiff connected with his title,
although it is not conclusive upon the defendant in the same manner
as if he had been a party on the record.
Amendments to the pleadings are matters in the discretion of the
court below. Error will not lie to this Court on the allowance or
refusal of such amendments.
Variances between the writ and declaration cannot be taken
advantage of in the court below after plea pleaded.
Quaere whether by the modern practice such variances
can be taken advantage of at all?
This was an action of trespass for mesne profits brought by the
plaintiffs in error, Chirac and others, against the defendant in
error, Reinicker, in the court below. The plaintiffs had recovered
judgment and possession of the premises in an ejectment in which
one C. J. F. Chirac prayed
Page 24 U. S. 281
leave of the court, as landlord of the premises, to be made
defendant in the place of the casual ejector, and was admitted
accordingly under the common consent rule. At the trial of the
present suit, the record of the proceedings in the ejectment were
offered by the plaintiffs as evidence to maintain this action, and
they then offered to prove, by the testimony of R. G. Harper, and
N. Dorsey, Esqs., that the defendant had retained and paid them to
conduct the defense of the ejectment for his benefit, and also
propounded to these witnesses the following question: "Were you
retained, at any time, as attorney or counsel, to conduct the
ejectment suit above mentioned, on the part of the defendant, for
his benefit, as landlord of those premises?" This question was
objected to by the defendant's counsel, as seeking an improper
disclosure of professional confidence, and was rejected by the
court. Whereupon the plaintiffs excepted.
The plaintiffs then gave in evidence certain deeds and patents
by which and the admissions of counsel on both sides the title to
the premises in question was vested in John B. Chirac, deceased,
and also read in evidence certain depositions to prove who were the
heirs of J. B. Chirac, and also offered the record in the ejectment
to prove Maria Bonfils to be one of the heirs, and then offered to
prove by parol evidence that the defendant was in fact landlord of
the premises at the commencement and during the progress of the
ejectment, and had notice of the
Page 24 U. S. 282
same and retained counsel to defend the same and received the
rents and profits thereof during its progress, which last-mentioned
evidence the court refused to admit, and the plaintiffs excepted to
the refusal.
The plaintiffs then offered to prove the same facts (not saying
by parol evidence), with the additional fact that counsel did
defend the same action for the benefit of the defendant. This
evidence was also rejected by the court, and constituted the third
exception of the plaintiffs.
The fourth exception taken by the plaintiffs related to the
proper parties to the action. The original plaintiffs in the suit
were Anthony Taurin Chirac, Mathew Chapus, and Anna Maria, his
wife, Mathew Thevenon and Maria, his wife, and Maria Bonfils, the
same persons having been plaintiffs in the ejectment. Pending the
suit, the plaintiffs obtained leave to amend their declaration, and
amended it by introducing the name of John B. E. Bitarde Desportes
as husband of the said Maria, called at the commencement of this
suit Maria Bonfils. No objection was taken to this amendment, and
the defendant pleaded the general issue to the declaration so
amended. The evidence of title of John B. Chirac, deceased, having
been introduced, and also evidence to prove that Anthony T. Chirac
and the female plaintiffs were heirs at law of John B. Chirac, the
defendant prayed the court to instruct the jury that it ought to
find a verdict for the defendant unless it was satisfied that all
the plaintiffs were the proper heirs at law
Page 24 U. S. 283
of John B. Chirac, which direction the court accordingly
gave.
The fifth exception related to the supposed variance between the
writ and declaration by the amendment introducing the husband of
Maria Bonfils as a party upon the record. The court held the
variance fatal under the general issue.
Page 24 U. S. 293
MR. JUSTICE STORY delivered the opinion of the Court.
This is an action of trespass for mesne profits brought by the
plaintiffs in error against the defendant in error in the Circuit
Court for the District of Maryland. The cause comes before this
Court upon exceptions taken by the plaintiffs on the trial of the
cause in the court below.
The plaintiffs had recovered judgment and possession of the
premises in an ejectment in which J. C. F. Chirac prayed to be
admitted as landlord to defend the premises, and was admitted
accordingly under the common consent rule. The record of the
proceedings in that action were offered by the plaintiffs as
evidence in the present suit, and they then offered to prove by the
testimony of R. G. Harper and W. Dorsey,
Page 24 U. S. 294
Esqs., that the defendant had retained and paid them to conduct
the defense of the ejectment for his benefit, and also propounded
to these witnesses the following question:
"Were you retained at any time as attorney or counselor to
conduct the ejectment suit above mentioned on the part of the
defendant for the benefit of the said George Reinicker as landlord
of those premises?"
This question was objected to as seeking an improper disclosure
of professional confidence. The court sustained the objection, and
this constitutes the first ground of exception.
The general rule is not disputed that confidential
communications between client and attorney are not to be revealed
at any time. The privilege indeed is not that of the attorney, but
of the client, and it is indispensable for the purposes of private
justice. Whatever facts, therefore, are communicated by a client to
counsel solely on account of that relation such counsel are not at
liberty, even if they wish, to disclose, and the law holds their
testimony incompetent. The real dispute in this case is whether the
question did involve the disclosure of professional confidence. If
the question had stopped at the inquiry whether the witnesses were
employed by Reinicker as counsel to conduct the ejectment suit, it
would deserve consideration whether it could be universally
affirmed that it involved any breach of professional confidence.
The fact is preliminary in its own nature, and establishes only the
existence of the relation of
Page 24 U. S. 295
client and counsel, and therefore might not necessarily involve
the disclosure of any communication arising from that relation
after it was created. But the question goes further. It asks not
only whether the witnesses were employed, but whether they were
employed by Reinicker to conduct the ejectment for him as landlord
of the premises. We are all of opinion that the question in this
form does involve a disclosure of confidential communications. It
seeks a disclosure of the title and claim set up by Reinicker to
his counsel for the purpose of conducting the defense of the suit.
It cannot be pretended that counsel could be asked what were the
communications made by Reinicker as to the nature, extent, or
grounds of his title, and yet in effect the question, in the form
in which it is put, necessarily involves such a disclosure. The
circuit court was therefore right in their decision on this
point.
The plaintiffs then gave in evidence certain deeds and patents
by which, and the admissions of counsel on both sides, the title to
the premises in question was vested in John B. Chirac, deceased,
and also gave in evidence certain depositions to prove who were the
heirs of J. B. Chirac, and also offered the record in the ejectment
to prove Maria Bonfils to be one of the heirs, and then offered to
prove by parol evidence that the defendant was in fact landlord of
the premises at the commencement and during the progress of the
ejectment and had notice of the same and employed counsel to
defend
Page 24 U. S. 296
the same and received the rents and profits thereof during the
progress of the ejectment, which evidence the court refused to
admit, and this constitutes the second exception of the plaintiffs.
The plaintiffs then offered to prove the same facts (not saying by
parol evidence) with the additional fact that counsel did defend
the same action for the benefit of the defendant. This evidence was
also rejected by the court, and constitutes the third exception of
the plaintiffs.
The question of law involved in each of these exceptions is
substantially the same. It is whether a person who was not a party
to the ejectment and did not take upon himself upon the record the
defense thereof, but another did as landlord, may yet be liable in
an action for the mesne profits upon its being proved that he was
in fact the landlord, received the rents and profits, and resisted
the recovery.
It is undoubtedly true that in general, a recovery in ejectment,
like other judgments, binds only parties and privies. It is
conclusive evidence in an action for mesne profits against the
tenant in possession, when he has been duly served with a notice in
ejectment, whether he appears and takes upon himself the defense or
suffers judgment to go by default against the casual ejector. The
reason is that in the first case he is the real party on the
record; in the last, he is considered as substantially the
defendant, and the judgment by default as a confession of the title
set up in the ejectment. Such was the decision
Page 24 U. S. 297
of the court in
Aislin v. Parkin, in 1 Burr. 667. But
in relation to third persons, the judgment in ejectment is not
conclusive, and if they are sued in an action for mesne profits,
which is substantially an action against them as trespassers, they
may controvert the plaintiff's title at large. In such a suit, the
record of the ejectment is not evidence to establish the
plaintiff's title; but it seems admissible for another purpose --
that is to say to show the possession of the plaintiff. The
plaintiff may certainly prove his possession connected with his
title by any sufficient evidence
in pais, and if his
possession has been under a judgment of law, he is entitled to
establish it by introducing the record of the recovery and an
executed writ of possession under it.
The question then is generally whether it is competent for the
plaintiff to maintain an action for mesne profits against any
person who is in possession of the land by means of his tenants and
who by his acts, commands, or cooperation aids in the expulsion of
the plaintiff and in withholding possession from him. All persons
who aid in or command or procure a trespass are themselves deemed
in law to be trespassers, whether they are actually present or do
the act through the instrumentality of their agents and servants. A
recovery of the possession in an ejectment against one of such
agents does not constitute a bar to an action for mesne profits
against another agent, for the same reason that
Page 24 U. S. 298
the former suit is no bar to the latter against the defendant in
ejectment,
viz., that the mesne profits were not a matter
in controversy in the ejectment. If, then, it is competent to
maintain the action for mesne profits against any trespasser,
although not a defendant in ejectment, it is competent to prove
that the defendant is in that predicament. The evidence offered in
this case was strong to prove the fact that the defendant was a
party to the trespass, supposing the plaintiffs to have established
their title and possession. If he was landlord of the premises and
the other parties were in possession under him, if he was in the
perception of the rents and profits, if he resisted the plaintiff's
title and possession and cooperated in the acts of the tenants for
this purpose, the evidence was proper for the jury as proof of his
being a co-trespasser.
This doctrine is supported by the case of
Hunter v.
Britts, 3 Campb.N.P. 455, which was cited at the bar. There,
the judgment was against the casual ejector in the ejectment suit
and the action for the mesne profits was brought against Britts as
landlord, and he was proved to be in the receipt of the rents and
profits from the time of the demise till the writ of possession was
executed. The ejectment was served upon the tenant; there was no
evidence that Britts had any notice of this till after judgment,
but subsequently he promised to pay the rent and the costs to the
plaintiff. It was objected that the judgment in ejectment was not,
under these circumstances, evidence of
Page 24 U. S. 299
title against Britts, and Lord Ellenborough held that it was
not, without notice of the ejectment. But he thought that his
subsequent promise amounted to an admission that the plaintiff was
entitled to the possession of the premises, and that he himself was
a trespasser. The language of the learned judge seems indeed to
import that if the landlord had had notice of the ejectment, he
would have been concluded by the recovery in the ejectment. It
might be so if the common notice had been formally given to him as
tenant in possession and he had neglected to take upon himself the
defense of the suit. If, however, the notice was
in pais
and conduced merely to prove his actual knowledge of the suit
without calling upon him to defend it, we are not prepared to admit
that on general principles it ought to have such an effect.
[
Footnote 1] But the point
actually decided was that a party might be charged in an action for
mesne profits who was not in any sense, a party to the ejectment by
establishing the title against him and showing his connection as
landlord with the tenant in possession and his adoption of the acts
of the latter.
But it is said that assuming the law to be so in general, yet in
the present case the plaintiffs are estopped from setting up the
fact that the defendant was the real landlord because, in the
ejectment, one J. C. F. Chirac prayed leave of the court "as
landlord of the premises to be made defendant" in the place of the
casual ejector, which was, with the consent for the lessee of
Page 24 U. S. 300
the plaintiffs, allowed by the court. It does not appear to us
that any such estoppel arises from this allegation in the record.
The record itself certainly does not constitute a technical
estoppel, for it is
res inter alios acta. The most that
can be said is that it is proper evidence to prove who the
plaintiffs at that time deemed to be landlord, and therefore
admissible to rebut the presumption that the present defendant was
the landlord. But, certainly the evidence was not conclusive upon
either party. It was open to the plaintiffs to show that in point
of fact the present defendant was the real landlord, that the
admission in the record was founded in mistake of the facts, or
that J. C. F. Chirac was a sub-landlord under Reinicker, or his
superior landlord. What would have been the effect of such proof is
not for this Court to determine. We think, then, that the evidence
offered by the plaintiffs was admissible upon general principles,
and we see no estoppel which excludes it in this particular case.
The directions of the circuit court were on this point
erroneous.
If it had appeared upon the record that the evidence offered by
the plaintiffs was solely to connect the defendant with the
ejectment, so that the recovery would be conclusive upon him in the
same manner as if he had been a party on the record, and as such
admitted to defend and actually defending the suit, the case might
have required a very different consideration. We have already
intimated an opinion that notice of an ejectment suit or defense of
the suit by a
Page 24 U. S. 301
person not tenant in possession or defendant on record does not
make him a party to the suit in contemplation of law so as to
conclude his rights.
In considering the fourth and fifth exceptions, it is necessary
to advert to the fact that the plaintiffs in this action originally
were Anthony Taurin Chirac, Mathew Chapus, and Anna Maria, his
wife, Mathew Thevenon and Maria, his wife, and Maria Bonfils, the
same persons having been plaintiffs in the ejectment. During the
pendency of the suit, the plaintiffs obtained leave to amend their
declaration, and did amend it, by introducing the name of John B.
E. Bitarde Desportes as husband of the said Maria, called, at the
commencement of this suit, Maria Bonfils. To this amendment no
objection was taken, and the defendant pleaded to the declaration,
so amended, the general issue. The evidence of title of John B.
Chirac, deceased, being introduced, and also evidence to prove that
Anthony T. Chirac and the female plaintiffs were heirs at law of
John B. Chirac, the defendant then prayed the court to direct the
jury
"that it ought to find a verdict for the defendant unless it is
satisfied that all the plaintiffs are the proper heirs at law of
the aforesaid John B. Chirac,"
which direction the court accordingly gave. The probable
intention of the defendant was to pray an instruction to the jury
that unless all those of the plaintiffs who claimed to be heirs of
John B. Chirac should establish their title, the suit could not be
maintained. In this view the opinion of
Page 24 U. S. 302
the court would be correct, for it is a general rule that no
recovery can be had unless all the plaintiffs are competent to
maintain the suit. If, therefore, the title fails as to one, it is
not maintainable in favor of the others. The proof does not under
such circumstances meet the case set up in the declaration. But
framed as this exception actually is, the direction given by the
court is in its terms erroneous. It was not necessary to prove that
all the plaintiffs are the proper heirs at law of J. B. Chirac. The
action was maintainable if the husbands were not the proper heirs
of J. B. Chirac, for in right of their wives they were proper
parties to the suit. The fourth exception is therefore well
taken.
The fifth exception is founded on the supposed variance between
the writ and declaration, by the amendment, introducing the husband
of Maria Bonfils upon the record. The court held this variance
fatal under the general issue. It is observable that this amendment
was made under an order of the court, and was not objected to on
the record by the defendant, and that the general issue was
subsequently pleaded. It has been decided in this Court that the
allowance or disallowance of amendments is not matter for which a
writ of error lies here. Variances between the writ and declaration
are in general matters proper for pleas in abatement, and if in any
case a variance between the writ and declaration can be taken
advantage of by the defendant in the court below, it seems to be an
established rule that it cannot be done except
Page 24 U. S. 303
upon oyer of the original writ granted in some proper stage of
the cause. The existence of such variance forms no matter of
controversy upon the general issue, by which the jury is to be
governed in forming its verdict. In the present case, as no
objection was taken to the amendment upon the record, it must be
deemed to have been waived by the defendant, and therefore not
proper to be insisted upon at the trial. [
Footnote 2] It does not appear on the record whether
Maria Bonfils was married before or pending the suit, and the fact
might have a material bearing upon the propriety of granting the
amendment, since at all events, if pending the suit, it would not
of itself abate the suit, and the objection could only be made
available by a plea in abatement. [
Footnote 3]
Upon the whole it is the opinion of the Court that there is
error in the directions of the circuit court in the four last
exceptions and contained in the record, and for this cause the
judgment must be
Reversed and a venire facias de novo awarded.
[
Footnote 1]
Adams on Ejectment 336. 2d ed.
[
Footnote 2]
See Com.Dig. Abatement G. 8; Com.Dig. Pleader, C. 13; 2
Wils. 85, 394, 395; 1 Chitt.Pl. 438, 439; Stephens on Plead. 68,
423; 1 Saund. 318; note 2 by Williams.
[
Footnote 3]
Com.Dig. Abatement H. 42.
