
    Simeon Crisler vs. Burr Garland.
    Communications from clients to attorneys, are privileged on grounds of public policy, with a view to the safe and pure administration of justice. The protection is not qualified by any reference to proceedings, pending or in contemplation, and it extends to a conveyancer, who is consulted to draw deeds, whether he accept the employment or not.
    T. an attorney at law, was consulted as such by C. to draw a conveyance of his property to S. C., and at the same time, C. made communications to T., in regard to the object of the conveyance; T. declined the employment. It was held, that the communications made to T., having been communicated to him in his professional capacity, ought not to have had the seal of secrecy removed.
    In error from the circuit court of Hinds county; the Hon. George Coalter, judge.
    On the 12th of July, 1843, Burr Garland obtained judgment against Blanton Crisler, for the sum of four hundred and eleven dollars and eighty-six cents, an execution upon which was levied on two negroes, as his property. Simeon Crisler claimed them as his in due form, and an issue was made up to try the right; at the trial, the claimant offered in evidence to the jury a mortgage made by Blanton Crisler to him, upon land and negroes, including those in controversy. After the mortgage had been read, the plaintiff in execution introduced James Trim-ble, Esq., a practising attorney of the court, by whom he proved, that a short time prior to the execution of the mortgage, Blanton Crisler called upon the witness as a lawyer, with the request, that he would draw up an instrument of some sort, for the purpose of conveying his property to Simeon Crisler; Blanton Crisler remarked at the same time, that the circuit court was coming on very soon, and unless the property was secured to Simeon, Burr Garland would ruin him, &c. The witness declined the proffered employment as conveyancer, and recommended the applicant to another attorney. The witness had been counsel for the defendant in other causes, including the one in which judgment had been rendered in favor of Garland. Simeon Cris-ler was not present when Blanton called on the witness to draw a conveyance, and the witness had never heard Simeon say any thing prejudicial to the validity of the mortgage.
    The claimant objected to the introduction of this testimony, on the ground, that owing to the witness’s profession, and the nature of his confidential position towards Blanton Crisler, he could not be compelled, and if willing, should not be permitted, to disclose the communications of Blanton under the circumstances narrated. The court, however, overruled the objection.
    It is unnecessary to notice the further proceedings in the case. The jury found in favor of the plaintiff in the execution, and that the claim was interposed for fraudulent purposes.
    The claimant prosecuted this writ of error.
    
      A. R. Johnston, for defendant in error.
    The court erred in receiving the testimony of James Trimble. The evidence discloses this state of facts : That the witness was a practising attorney at law; that Blanton Crisler, the mortgagor, was a client of the witness, and in that capacity made application to witness for a mortgage to be drawn, conveying certain property to Simeon Crisler; that all the communications of Blanton, the mortgagor, made on that occasion, were submitted as a client to his attorney. The principle is, that such communications are protected by law; and that attorneys shall not be compelled to reveal them, nor even permitted so to do, if willing. The following authorities are cited in this connection: 1 Greenl. Ev. 274-281; Greenough v. Gaslcell, 1 My. & K. 98; Wilson v. Rastall, 4 T. R. 753 ; 2 Stark. Ev. 320, 321, and the cases there referred to in the notes; Parker v. Carter et al., 4 Munf. 273; 1 Stark. Ev. 70, 71, and the cases referred to in notes ; Rhoades v. Selin, 4 Wash. C. C. 718 ; Heister v. Davis, 3 Yeates, 4; Jordan v. Hess, 13 Johns. R. 492 ; Chirac v. Reinicker, 11 Wheat. 280; Foster v. Hall, 12 Pick. 89; Beltz-hoover v. Blaclcstoclc, 3 Watts, 20.
    
      John Shelton, for defendant in error,
    In an elaborate argument, reviewed the authorities cited by counsel on the other side, and cited in addition Croft v. Pickering, 1 Viner, 177; Vaillant v. Dodemead, 2 Atk. 524; 12 Vin. Ab. 38 B. a; 1 Gilb. Law of Ev. 277; 1 Phil. Ev. 145; Wilson v. Rastall, 4 Term Rep. 753, 760; Annesley v. Earl of An-glesea, MacNally, Ev. 241; 2 Stark, on Ev. 397; Hoffman v. Smith, 1 Caines, Rep. 157; Calkins v. Lee, 2 Root, Rep. 363; Sherman v. Sherman, 1 lb. 486; Foster v. Hall, 1 Pick. Rep. 89; Brown v. Pay son, 6 N. Hamp. 444; 1 Phil. Ev. 144; 2 Stark. Ev. 396 ; Parker v. Carter, 4 Munf. Rep. 273; Clay v. Williams, 2 Munf. 105 ; 2 Phil. Ev. 277, 278; Dixon v. Parmelee, 2 Yerm. Rep. 185; Wilson v. Troup, 7 John. Ch. Rep. 25; Riggs v. Denniston, 3 Johns. Cas. 198 ; Bramwell v. Lucas, 2 Bam. & Cress. 745; Eicke v. Nokes, 1 Mood. <fc Malk. 303; Baker v. Arnold, 1 Caines, Rep. 258; Forbes v. Perriés adm/r., 1 Har. & John. 109 ; Rhoades v. Selin, 4 Wash. C. C. Rep. 715; Levy v. Pope, 1 Mood. & Malk. Rep. 410; Bevan v. Waters, lb. 235; 5 Esp. Cas. 52; Bicknell v. Keppell, 1 New Hamp. Rep. 21; Brandt v. Klein, 17 Johns. Rep. 335; Jackson on demise of Neilson v. M’ Vey, 18 ; lb. 330.
   Mr. Justice Clayton

delivered the opinion of the court.

This case turns upon the legality of the admission of certain testimony upon the trial. James Trimble, a witness, stated that he had been called on, in his professional character of attorney, by Blanton Crisler to draw a conveyance of his property to Simeon Crisler, who, at the same time, made communications to him, in regard to the object of the conveyance, but that he declined the proffered employment as a conveyancer. . The court permitted the witness to state what these communications were, in order to establish fraud in the transaction.

It is conceded that if Trimble had accepted the retainer, his testimony ought to have been excluded, but as he did not do so> it is insisted it was properly received.

Communications from clients to attorneys are privileged on grounds of public policy, with a view to the safe and pure administration of justice. The protection is not qualified by any reference to proceedings pending or in contemplation; and it extends to a conveyancer, who is consulted to draw deeds. 1 Greenl. Ev. 284; Greenough v. Gaskell, 6 Eng. Ch. Rep. Con. 518.

Difficulties have sometimes arisen in the application of the rale, though the rule itself is very clear. It is not always easy to determine at what time the protection shall be said to have attached. In Cromack v. Heathcote, 2 Brod. & Bing. 4, application was made to an attorney to draw an assignment, which was afterwards impeached for fraud. The attorney refused to draw it. It was afterwards attempted to prove the fact of fraud by him, but the evidence was rejected, on the ground that it was a confidential communication. The court of common pleas held the rejection to be proper. Dallas, Ch. J. says: “ Here is a client who goes to give instructions touching a deed, and the communication must be deemed confidential, as between attorney and client, though the attorney happens to refuse the employment.” 6 Eng. C. Law Rep. 1. Again at Nisi Prius, in the case of Doe dem. Shellard v. Harris, 5 Carr. & Payne, 592; 24 Eng. Com. Law Rep. 468. Parke J. says : “I am of opinion that the privilege applies to all cases, where the client applies to the attorney in a professional capacity: and an application to draw a deed is, I think, of that description.”

These cases state the rule very explicitly, but there are others which hold a different doctrine, and there is great want of harmony both in the English and American decisions. 2 Phil. Ev. 278 notes. In the case of Wilson v. Rastall, 4 T. R. 753, in which an attorney was compelled to testify, Buller, J. said, “ the witness neither was nor could have been attorney; because he was at that time acting as under sheriff. He was consulted as a confidential person, and because he was more conversant with business than persons not attorneys, but he declined to be employed.”

In Cuts v. Pickering, 1 Vent. 197, the testimony was admitted, because the communication was made before the attorney was addressed in his professional character. 1 Phil. Evid. 145, 146.

Greenleaf and Story both say in general terms, following Lord Brougham in Greenough v. Gaskell, 1 My. & K. 104, 6 Eng. Con. Ch. Rep. 518, that the communication is not privileged, where it was made before the attorney was employed as such. 1 Greenl. Ev. 291; Story, Eq. Pl. 578.

But the privilege is founded upon a great public policy. It is adopted out of regard to the interests of justice, and from the necessity of free and unrestrained intercourse between counsel and client. It is better, in our judgment, to adhere to the rule, in a broad and liberal sense, than to weaken its force by exceptions. Matters which come to the knowledge of the attorney, or which are committed to him in his professional capacity alone, ought not to have the seal of secrecy removed, because he may not agree to undertake the cause. It may often happen, that the attorney does not decline the case, until its weakness has been unfolded to him.

We think the testimony was improperly admitted, and therefore reverse the judgment, and award a new trial.

Judgment reversed.  