Hoy v. Morris
79 Mass. 519
Mass.
1859
Check Treatment
Merrick, J.

Some question was made at the argument, whether the conversation, of which evidence was given at the trial in the testimony of Aldrich, was not one of such character, and having reference to such objects or purposes, that Mr. Todd, the attorney, would not, if he had himself been called as a witness, have been compelled to disclose it. In the case of Hatton v. Robinson, 14 Pick. 416, which in some respects much resembles the present, it was held, that communications made to an attorney at law, by a party who applied to him to make a conveyance or mortgage of his personal property for the purpose of preventing it from being attached by a portion of his creditors, were competent and admissible evidence. And in the case of Broad v. Pitt, 3 Car. & P. 519, Best, C. J. said: “ A man is not acting as an attorney, when he is consulted about a deed; and I cannot distinguish his situation from that of any other man ” But without looking at this distinction, and assuming that the interview between Mr. Todd and the defendant was strictly of a privileged character, and that all the communications of the latter during its continuance were made by him as a client to nis counsel and professional adviser, still the testimony of the *521witness Aldrich was admissible, and was properly allowed to be used before the jury.

The privilege of exemption from testifying to facts actually known is extended only to an attorney or legal adviser who derives his knowledge from the communications of a client who applies and makes disclosures to him in his professional character, and to those other persons whose intervention is strictly necessary to enable the parties to communicate with each other. This is the rule which was laid down by the court in the ease of Hatton v. Robinson, before cited; and which seems uniformly to have been recognized as a correct statement of the law upon this subject. Doe v. Jauncey, 8 Car. & P. 99. Bramwell v. Lucas, 2 B. & C. 745. Barnes v. Harris, 7 Cush. 576. Applying this rule to the facts in the present case, the conclusion is inevitable that the statement of Morris to his counsel Mr. Todd was overheard and became known to Aldrich under circumstances which entitled the plaintiff to the benefit of his testimony concerning it. Aldrich was not an attorney, nor in any way connected with Mr. Todd; and certainly in no situation where he was either necessary or useful to the parties to enable them to understand each other. On the contrary, he was a mere bystander, and casually overheard conversation not addressed to him nor intended for his ear, but which the client and attorney meant to have respected as private and confidential. Mr. Todd could not lawfully have revealed it. But, in consequence of a want of proper precaution, the communications between him and bis client were overheard by a mere stranger. As the latter stood in no relation of confidence to either of the parties, he was clearly not within the rule of exemption from giving testimony; and he might therefore, when summoned as a witness, be compelled to testify to what he overheard, so far as it was pertinent to the subject matter of inquiry upon the trial this is all that was allowed by the court.

Exceptions overruled.