US SUPREME COURT DECISIONS

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 chanrobles.com-red

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 chanrobles.com-red

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 chanrobles.com-red

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. chanrobles.com-red

Page 24 U. S. 293