
    Melvin C. Goddard vs. Robert J. Gardner.
    A communication was made by a client to an attorney, in the office of tbe latter, which was in his dwelling-house, and in the presence of a son of the attorney, who lived in his family, but who had no connection with the professional bnsiness'of his father. Held that the communication was not, in relation to the son, a privileged one, and that it might be disclosed by his testimony.
    Where evidence of such a communication was excluded by tbe court, but the same witness was allowed to testify to the same declarations made in his presence at a different time and place, it was held that this fact was not a sufficient reason why a new trial should not be granted, as the party was entitled to the benefit of the declarations as confirmed by being repeated and by being made under different circumstances.
    Action on the case for selling to the plaintiff unwholesome meat. On the trial to the jury the plaintiff introduced, two witnesses, named Lampson and Griswold, who testified that they had purchased a part of the animal slaughtered by the defendant, and from which the meat sold the plaintiff was taken, and that it was unsound and unwholesome. For the purpose of proving that they had made different statements out of court, and thereby to contradict and discredit them, the defendant, in reply, offered one E. B. Phelps, to testify to a conversation which he heard between the witnesses and his father, who was an attorney. The plaintiff’s counsel, claiming that the conversation, if had, was a privileged one, made *a preliminary inquiry respecting it. The witness, [ *178 J on such inquiry, stated that he resided with his father, and had charge of his farming and other ordinary business during his absence, which was frequent, but that he had no charge of or connection with his professional business; that upon the occasion in question, Lampson and Griswold called upon his father to employ him to bring suits against the defendant for selling the unwholesome meat to them ; that his father’s office was in a room in his dwelling-house, and that he was present in the room when they came, and heard the conversation, and that the declarations were made to his father during that interview and while stating the case to him. The court ruled out the evidence, on the ground that the law intended to protect such communications from all publicity, and that it was neither morally nor legally right that the son of an attorney, thus situated, should be permitted to disclose the particulars of a conversation held professionally with his father. The witness thereupon interposed, and said that the same declarations were repeated to him out of doors, after the interview with his father had terminated; and the court admitted them, and they were testified to and went to the jury. ■
    The plaintiff having obtained a verdict, the defendant moved for a new trial.
    
      L. F. Robinson, in support of the motion.
    The communication was not a privileged one. Communications made by a client to an attorney in the presence of a third person, are regarded as made to such third person, and are not protected. Jackson v. French, 3 Wend., 337. The privilege extends to attorneys’ clerks, because they are necessarily employed in the business of the office ; hut does not extend to students in the office. Andrews v. Solomon, 1 Pet. C. C., 356. Holman v. Kimball, 22 Verm., 555. Much less should it be extended to a son of the attorney, casually present. Even where a client makes a communication to a person whom he finds in the office and whom he supposes to be the attorney or his clerk, it is not protected. Fountain v. Young, 6 Esp., 113. Brayton v. Chase, 3 Wis., 456. Barnes v. Harris, [ *174 ] 7 *Cush., 576. 1 Greenl. Ev., sec 239. Such a privilege, tending to the exclusion of evidence, ought not to he extended. Harrison on Ev., 36.
    The error is not healed by the admission of evidence with regard to the same declarations made afterwards out of the office. These declarations were not made under the same circumstances. Besides, it was an important fact that they had made these declarations twice—thus showing that they were made intentionally and were not misunderstood. They would certainly have far greater effect upon a jury where made twice, at different times and under different circumstances, and the defendant was entitled to the benefit of this fact.
    
      C. Chapman, contra.
    The communication was privileged, and therefore the evidence of it was properly excluded by the court. It is not the privilege of the counsel, but of the client, to have such communications kept private. The privilege attaches to the communication itself. It should therefore make no difference, if the communication is in fact made to the attorney, that some one else in the office accidentally overhears it.
    But if the evidence was improperly, excluded, yet the defendant has had the substantial benefit of it, in the -testimony of the same witness, that he heard the same declarations repeated by Lampson and Griswold after they left the office. Thus the declarations went to the jury, and the defendant has sustained no harm. Especially will the court refuse to grant a new trial, which is a matter resting in the discretion of the court, where it is so evident that no injustice has been done.
   Sanford, J.

Under our judicial system it is supposed that “ the interests of justice can not be upheld, and-the administration of justice can not go on, without the assistance of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subjects of all judicial proceedings.” For this reason *it is that communications made to attorneys, Ac., [ *175 ] are protected from disclosure in court, and not because they are confidential. No such protection is given to communications made to the members of any other profession. Barnes v. Harris, 7 Cush., 577.

It is obvious that professional assistance would be of little or no avail to the client, unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate. And it is equally obvious that there would be an end to all confidence between the client and attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession ; and hence it has become a settled rule of evidence, that the confidential attorney, solicitor or counselor can never be called as a witness to disclose papers committed or communications made to him in that capacity, unless the client himself consents to such disclosure.

The rule also, like the reason of it, extends to interpreters, and to clerks and agents employed by the attorney, Ac. in the business committed to his charge, but extends no further. Its operation is to exclude material evidence from the consideration of the triers, and it ought not to be extended beyond the reason on which it rests.

But, as the protection it affords is the privilege of the client, he may renounce or waive it at his pleasure.

No reason of necessity requires that any witness (save an interpreter,) should ever be present at a consultation between the client and his attorney, and if the client procures or submits to the presence of such a -witness, he voluntarily confides his secrets, not to his attorney only, but also to the witness, in whose custody the law can not protect them when the'interests of justice require that they should be disclosed. 2 Stark. Ev., 230. 1 Greenl. Ev., sec 239. 1 Phil. Ev., 162. Gainsford v. Grammar, 2 Camp., 9. Jackson v. French, 3 Wend., 337. Hatton v. Robinson, 14 Pick., 416.

In the case before the court, the consultation was held in the presence of a witness in no way connected with the [ *176 ] case *or with the parties, whose presence was unnecessary, whose services were in no way appropriated, and who had no interest in, or connection with, the professional business of the attorney. The facts communicated in that consultation were voluntarily communicated to the witness as well as to the attorney. The rule which enjoins the attorney’s silence does not extend to such a witness, and the court below erred in refusing to hear his testimony. It is not our duty to promulgate any opinion of the conduct of the witness. The moral sense of almost every man will indicate truly the line of duty and propriety in such a case as this. To such protection as that moral sense affords, the party must be referred. We can only administer the law as it is.

2. This error was not cured by the reception of the evidence afterwards introduced and submitted to the jury. The declarations or admissions proved, were made at another time and under different circumstances from those which were rejected ; the former, in a mere casual conversation between a relator, who then had no specific object in stating the facts fully and carefully, and a hearer who had no interest in retaining in his memory the facts communicated; thq latter, in a consultation between clients and their attorney, with a view to the institution of legal proceedings to obtain redress for supposed injuries received ; and the objects in contemplation, the interests of the parties, and all the exigencies of the case and of the occasion, required that that statement should be full, deliberate and exact. Hence the declarations and statements made at the consultation would have been entitled to more consideration, and . would probably have had more weight with the jury, than those made in the conversation.

But the defendant would have been entitled to the evidence, even if, in both instances, the declarations or statements had been made under circumstances exactly alike. The parties making these statements had testified for the plaintiff. The defendant sought to impeach their testimony by proof that they had made declarations at variance with it out of court. Now the mere repetition of the same statement affords some [ *177 ] *evidence of the sincerity of the party making it, or of his disregard of the obligations of veracity. The suggestion of the witness, that the same declarations were made to him after, as to the attorney during, the consultation, is unimportant, because all evidence of what was said at the consultation had been explicitly excluded by the court, and it is not to be supposed that the jury could have been in any degree influenced by such an uncalled for, not to say impertinent, interposition of the witness.

For these reasons the defendant is entitled to a new trial.

In this opinion the other judges concurred.

New trial advised.  