has been made competent to testify for or against the other is to be tested precisely by the same rules as any other witness.1

6

1 State v. Collins, 20 Iowa, 85; State v. Guyer, 6 id. 263; State v. Bernard, 45 id. 234.

2

2 Southwick V. Southwick, Sweeny, 234; Stickney v. Stickney, 131 U. S. 237.

§ 168. Confidential communication between husband and wife. Where a statute expressly enacts that a husband or wife is not compellable to divulge their communications, either may be permitted with the consent of the other to make a voluntary statement, though the contrary is the rule where they are declared incompetent to testify. Where the communication is not confidential, and this will be presumed where it is made to a third person by the wife or husband in the other's presence, or where a third person is present, it will not be privileged, and the third party may testify to what he has heard, but sometimes it has been held that a communication need not be expressly confidential; as, for example, where confidential communication between 2281; West Virginia Code, ch. 130, them is very thoroughly discussed § 22; Wisconsin Annot., § 7072. by the editors of the fourteenth edition of Greenleaf on Evidence in a note to section 334 in volume 1. The list here appended is condensed from that note. The following statutes may be consulted: Arkansas Code, § 2859, cl. 4; California Code, § 1881; Crim. Code, § 1322; Colorado Gen. Laws, § 3649; Connecticut Statutes, 1097; Florida Laws, ch. 101; 23, Act 1891; § 4029; Georgia Code, § 3854; Illinois R. S., ch. 51, §5; Indiana R. S., § 501; Iowa Code, $ 3641, 3642; Kansas Gen. Stat., § 5280; Maine R. S., ch. 134, § 19, ch. 82, § 93; Maryland Gen. Laws, art. 35, § 1; Massachusetts Pub. Stat., ch. 169. § 18; Minnesota Statutes, § 5094; Mississippi Rev. Code, § 1601; Missouri R. S., § 8922; Montana Code Civ. Pro., § 649; Nebraska Code Civ. Pro. 328; Nevada Gen. Stat., § 3403; New Jersey Rev., vol. 1, p. 378, § 5; New York Code Civ. Pro., § 828; Ohio R. S., § 5241, ch. 3; Pennsylvania Laws 1887, ch. 89, § 2, cl. b; Texas R. S., art. 2247: Vermont R. S., § 1005; Virginia Rev. Civ. Code,

3 Baldwin v. Parker, 99 Mass. 79; Brown v. Wood, 121 id. 137; Jacobs v. Hesler, 113 id. 157; Head v. Thompson, 77 Iowa, 263; Smith v. Turley, 32 W. Va. 14; Com. v. Cleary, 152 Mass. 491.

4 Griffin v. Smith, 45 Ind. 366; Mainard v. Beider, 2 Ind. App. 115; 28 N. E. Rep. 196.

5 Day v. Gidjum, 131 Mass. 31; Com. v. Griffin, 110 Mass. 181; State v. Carter, 35 Vt. 378; Howard v Brewer, 37 Ohio St. 402; People v. Lewis, 62 Hun, 622; Lyon v. Prouty, 154 Mass. 488; Buckman's Will, 64 Vt. 313.

6 Dexter v. Booth, 2 Allen (Mass.), 559; Raynes v. Bennett, 114 Mass. 425; Com. v. Haynes, 145 id. 293; Lepla v. Minn. Tribune Co., 35 Minn. 311; Norris v. Stewart, 105 N. C. 455.

the statute in terms refers to all communications made during marriage.1

A conversation between husband and wife is no less confidential and private because children were present who took no part in it. The fact that husband and wife sue or are sued jointly does not remove the privilege as respects confidential communications,3 nor will the husband or wife be permitted to testify to any communications made while the marriage relation existed after its dissolution, whether by annulment, divorce or death. But either after the death of the other may now testify to any facts which he or she learned from other sources and not by reason of the marital relation, even though relative to a transaction of the decedent.

If, however, the

evidence of the other party to the suit is inadmissible because referring to a transaction with a decedent, the testimony of a wife is also inadmissible."

It is sometimes provided by statute that, in the trial of any allegation founded upon adultery, neither husband nor wife shall be competent to testify against the other except to prove the fact of marriage or to disprove the adultery. So in an action to recover for criminal conversation, neither husband nor wife can testify for the other, though either being

1 Low's Estate, Myrick's Prob. (Cal.) 143; Campbell v. Chase, 12 R. L. 333; Bird v. Hueston, 10 Ohio St. 418; Westerman v. Westerman, 25 id. 500; King v. King, 42 Mo. App. 454.

2 Jacobs v. Hesler, 113 Mass. 157. So business communications are privileged. Com. v. Hayes (Mass., 1887), 14 N. E. Rep. 151; Mitchell v. Mitchell, 15 S. W. Rep. 705.

Crose v. Rutledge, 81 Ill. 266; Barnes v. Camack, 1 Barb. 392; Cook v. Grange, 18 Ohio, 526; Brock v. Brock, 116 Pa. St. 113. When either party is deceased his written communication to the other cannot be used by a third person in a suit against the survivor. Mitchell v. Mitchell, 15 S. W. Rep. 705; 80 Tex. 101.

5 Coffin v. Jones, 13 Pick. 445; Wells

3 Buck v. Ashbrook, 51 Mo. 539; v. Tucker, 3 Binn. 366; Williams v. Tingley v. Conzill, 48 id. 291.

4 Hitchcock v. Moore, 70 Mich. 112; Stanley v. Montgomery, 102 Ind. 102; Stein v. Bowman, 13 Pick. 209, 223; French v. Ware (Vt., 1893), 26 Atl. Rep. 1096; Coffin v. Jones, 13 Pick. 441; Robin v. King, 2 Leigh, 142; Bigelow v. Sickles, 75 Wis. 528; Patten v. Wilson, 2 Lea (Tenn.), 101; Estate of Lord, Myrick's Prob. (Cal.) 143; State v. Jolly, 3 Dev. & Bat. 110;

Baldwin, 7 Vt. 506; Saunders v. Hendrix, 5 Ala. 224; Galbraith v. McLain, 84 Ill. 379; Romans v. Hay, 12 Iowa, 270, cited in 1 Greenl. on Evid., § 337.

6 Harriman v. Sampson, 23 Ill. App. 161; Trileavan v. Dixon, 119 Ill. 551; Barry v. Stevens, 69 Me. 290.

7 Michigan Annot. Stat., § 7543; Code N. C. 588; R. S. Ind. 1881, § 501. 8 Cross v. Cross, 55 Mich. 280; De Meli v. De Meli, 120 N. Y. 492.

a party may testify in his or her own behalf.

So a married

woman has been permitted to testify in her own behalf to the fact of the non-access of her husband, or that her husband had made certain representations to her upon the strength of which she had conveyed property to him, or that her husband had been intoxicated in her presence, or had communicated to her a venereal disease."

4

$169. Communications to attorneys.- At common law an attorney cannot be compelled or allowed to disclose communications made by his client to him or his advice given in return in the course of his employment as an attorney. In nearly all the states this rule has been confirmed by statute, and it is sometimes provided that the privilege may be waived by the client.

A client may waive the privilege by conduct and by impli cation as well as by express declaration. Thus, if he request his attorney to act as a subscribing witness to his will he waives his privilege to that extent, and the attorney is then compellable to testify to the same facts as other subscribing witnesses. Such a request is tantamount to a declaration that he wishes to release the attorney from the professional

1 Smith v. Brien, 6 N. Y. S. 174.

2 State v. McDowell (N. C.), 7 S. E. Rep. 785.

138 U. S. 353. In Pearse v. Pearse, 1 De Gex & Sm. 28, 29, the court says: "Truth, like all other things, may

3 Spitz's Appeal, 56 Conn. 184; 14 have loved unwisely; may be purAtl. Rep. 776.

sued too keenly; may cost too much;

4 Stanley v. Stanley (Ind., 1888), 13 and surely the meanness and the mis

N. E. Rep. 261.

chief of prying into a man's confi

5 Polson v. State (Ind., 1893), 35 N. dential consultation with his legal E. Rep. 907.

6 Carter v. West (Ky., 1892), 19 S. W. Rep. 592; Aultman v. Ritter, 81 Wis. 395; 51 N. W. Rep. 569; Koontz v. Owens, 109 Mo. 1; 18 S. W. Rep. 928; Wadd v. Hazleton, 62 Hun, 602; Swain v. Humphreys, 42 Ill. App. 370; Loder v. Whelpley, 111 N. Y. 220; In re Coleman, 11 N. Y. 220; In re McCarthy, 65 Hun, 624; Chirac v. Reinecker, 11 Wheat. 295; Foster v. Hall, 12 Pick. 89; Mathews v. Hoagland (N. J., 1890), 21 Atl. Rep. 1054; Alexander v. United States,

adviser, the general evil of infusing reserve, dissimulation, meanness, suspicion and fear into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price for truth itself."

7 Willis v. West, 60 Ga. 613.

8 In re Lumb's Will, 21 Civ. Pro. 324; Rousseau v. Blen, 31 N. Y. 177; In re Pitts (Wis., 1893), 55 N. W. Rep. 149; McMaster's Appeal, 55 id. 149; In re Coleman, 111 N. Y. 220.

privilege, and is equivalent to calling upon him to take the witness stand in his behalf.1

The communication, to be privileged, must have been made to one who was actually occupying the position of legal adviser; but where a communication is made to an attorney who has been requested to act, it will be privileged though he subsequently refuses to do so.2 The rule does not require any regular retainer, or any particular form of application or payment of a fee,3 provided the attorney is consulted with the actual intention of obtaining his professional services.*

A communication made to or advice received from the agent of the attorney is no less privileged than where the client communicates with the attorney directly. Thus, a clerk, interpreter, or other agent' of the attorney will not be allowed to testify to communications made to him in a professional capacity by a client of his employer. But a third person present at a consultation between attorney and client, and who is not the medium of communication, may testify to what was said; and so generally any person who has been consulted either in a private or professional capacity in regard to any transaction may be compelled to testify if, at that time and in reference to that particular matter, he did not occupy the position of an attorney at law."

1 McKinney v. Grand St. etc. R. R. Co., 104 N. Y. 352.

2 Peek. v. Boone (Ga., 1893), 17 S. W. Rep. 66; Sargent v. Hampden, 38 Me. 581; McClellan v. Longfellow, 32 id. 594.

31 Greenl. Evid., § 241. Cf. In re Monroe's Will, 20 N. Y. S. 82; 2 Con. Sur. 395.

4 Sargent v. Hampden, supra. Sibley v. Waffle, 16 N. Y. 180; Jackson v. French, 3 Wend. 337; Hawes v. State, 88 Ala. 68; Taylor v. Forster, 2 C. P. 195; Bowman v. Norton, 5 C. & P. 177; Jardine v. Sheridan, 2 C. & K. 24; Landsberger v. Gorham, 5 Cal. 450.

6 Parker v. Carter, 4 Munf. 273; Andrews v. Solomon, 1 Pet. C. C. 356.

7 Parkins v. Hawkshaw, 2 Stark. 1239; Steele v. Stuart, 1 Phil. Ch. 471; Fenner v. London & S. E. Ry. Co., L. R. 7 Q. B. 767.

8 Greer v. Greer, 58 Hun, 251; Tyler v. Hall, 106 Mo. 313; Goddard v. Gardner, 28 Conn. 172; Hoy v. Morris, 13 Gray, 519.

9 In re Monroe's Will, 20 N. Y. S. 182; Matthews' Estate, 4 Am. Law Jour. 356 (conveyancer); Schubkagel v. Dierstein, 131 Pa. St. 53; McLaughlin v. Gilmore, 1 Ill. App. 563; Brunger v. Smith, 49 Fed. Rep. 124; Holman v. Kimball, 22 Vt. 555; De Wolf v. Strader, 26 Ill. 225; Coon v. Swan, 30 Vt. 6; Borum v. Fouts, 15 Ind. 50; Sample v. Frost, 10 Iowa, 266. So communications to one's confidential clerk or banker (Mc

§ 170. Character and time of the communications.- In all classes of privileged communications claimed to be confidential certain elements must be present. It is only necessary to call attention to the fact that, as the communication must have been made during the existence of the confidential relation, anything said before or after is not within the rule. So the communication must have been made to the attorney, doctor or priest, not only during the existence of the connection but while he was acting in a professional capacity, and must have had relation to his professional employment.' So an attorney will be allowed to divulge the name of a person. who retained him2 and the date when he received a certain instrument; that he drew a deed for his client or paid money to his client or to a third person on his client's account.

So it has been held that whenever an attorney, though acting as such, obtains knowledge of any fact, not by reason of his professional character, but by his power of observation as a man or by means which any man in a like situation would employ, the information is not privileged."

Manus v. Freeman, 2 Pa. Dist. R. 144) or steward are never privileged. 1 Greenl. Evid., § 248, citing Hofman v. Smith, 1 Caines, 157; Vallaint v. Dodemead, 2 Atk. 524. Where a person, though not admitted to the bar, has been accustomed for years to practice before justices of the peace, confidential statements made to him by an accused are under the rule. Benedict v. State, 11 N. E. Rep. 125; 44 Ohio, 679. But the mere presence of a third person will not make the attorney a competent witness. Blount v. Kempton, 155 Miss. 378.

Grant v. Hughes, 96 N. C. 177; 2 S. E. Rep. 339; Plano Mfg. Co. v. Frawley, 68 Wis. 577; 32 N. W. Rep. 768; Caldwell v. Davis, 10 Colo. 481; 15 Pac. Rep. 696; Sharon v. Sharon, 79 Cal. 633; Skellie v. James, 81 Ga. 419; Rogers v. Moore, 88 id. 88.

2 Brown v. Payson, 6 N. H. 443;

Gower v. Emery, 6 Shepl. 79; Chirac v. Reinecker, 11 Wheat. 280.

3 Wheatley v. Williams, 1 M. & W. 533. But cf. contra, Ex parte Trustee, 9 Morrell's Bank. Cas. 116.

4 Barry v. Coville, 7 N. Y. S. 36; Rundle v. Foster, 3 Tenn. Ch. 658; Robson v. Kemp, 4 Esp. 235.

5 Chapman v. Peebles, 84 Ala. 283; 4 S. Rep. 273.

6 Wadd v. Hazelton, 62 Hun, 602; Swaine v. Humphreys, 42 Ill. App. 370; Harris v. Dougherty, 74 Tex. 1; 11 S. W. Rep. 921; Brennan v. Hall, 14 N. Y. S. 864; Sheldon v. Sheldon, 58 Hun, 601; In re Smith, 61 Hun, 101; Weaver's Estate, 9 Pa. Co. Ct. R. 516; Theisen v. Dayton, 82 Iowa, 74; 47 N. W. Rep. 891. As a corporation acts only by agent, a confidential communication by the latter to the attorney of the corporation is within the rule (Fire Ass'n v. Fleming (Ga., 1888), 3 S. E. Rep. 420), though per