CONFIDENTIAL COMMUNICA TIONS. Those statements with regard to any legal transaction made by one person to another during the continuance of some rela tion between them which calls for or war rants such communications.
2. At law, certain classes of such com munications are held not to be proper sub jects of inquiry in courts of justice, and the persons receiving them are excluded from disclosing them when called upon as wit nesses, upon grounds of public policy.
Of this character are all communications made between a husband and his lawful wife in all cases in which the interests of the other party are involved. Buller, Nisi P. 218; 13 Pet. 223 ; 10 Pick. Mass. 57 ; 15 Me. 104; 2 Leigh, Va. 142; 6 Binn. Penn. 488 ; 6 Harr. & J. Md. 153 ; 7 Exch. 609 ; 4 Term, 678: 5 Esp. 107 ; 3 Dougl. 422 ; 13 Yes. Ch. 144. See 10 Mete. Mass. 287 ; 3 Day, Conn. 37 ; 4 Vt. 116 ; 1 Dougl. Mich. 48 ; 2 Ashm. Penn. 31 ; 3 Harr. N. J. 88 ; 8 Carr. & P. 284. Nor does it make any difference which party is called upon as a witness, Ry. & M. 352; or when the relation commenced, 3 Carr. & P. 558; or whether it has terminated. 13 Pet. 209 ; 3 Dev. & B. No. C. 110 ; 1 Barb. N. Y. 392 : 6 East, 192 ; 1 Ry. &. M. 198 ; 1 Carr. & P. 364. And see 13 Pick. Mass. 445 ; 7 Vt. 506 ; 4 Penn. St. 364; 5 Ala. N. s. 224; 1 B. Monr. Ky. 224.
3. The confidential counsellor, solicitor, or attorney of any party cannot be compelled to disclose papers delivered or communica tions made to him, or letters or entries made by him, in that capacity, 1 Mylne & K. 101 ; 4 Barnew. & Ad. 876 ; 2 Mees. & W. Exch. 100; 4 Term, 753 ; 6 Carr. & P. 728 ; 2 Cow. N. Y. 195; 7 Johns. Ch. N. Y. 25; 14 Johns. N. Y. 39] ; 8 Mass. 370 ; 12 Pick. Mass. 89 ; 16 Me. 329 ; 23 Mo. 474 ; 11 Wheat. 295 ; nor will he be permitted to make such com munications against the will of his client. 1 Mylne & K. 102; 4 Term, 756, 759; 12 J. B. Moore, 520 ; 2 Atk. Ch. 524 ; 3 Barb. Ch. N.
Y. 528; 8 Mass. 370. The privilege extends to all matters made the subiect of nrofes sional intercourse, without regard to the dency of legal proceedings, 9 Beay. Rolls, 16; 11 id. 59 ; 2 Brod. & B. 4 ; 3 Bingh. N. C. 235; 5 Carr. & P. 592 ; 6 Madd. Ch. 47 ; 1 De.Gex & S. 12; 3 Watts, Penn. 20; 22 Penn. St. 89; 12 Pick. Mass. 89 ; 38 Me. 581; 25 Vt. 47 ; 24 Miss. 134; but see 28 Vt. 701, 750 ; and to matters discovered by the counsellor, etc. in consequence of this relation. 5 Esp. 52. See 1 Mylne & K. 102 ; 3 Mylne & C. 515 ; Story, Eq. Plead. 601; 13 Ga. 260. See 29 Ala. N. s. 254 ; 21 Ga. 30].
Interpreters, 4 Term, 756 ; 3 Wend. N. Y. 337 ; 4 Munf. Va. 273 ; 7 Ind. 202; 1 Pet. C.
C. 356, and agents, 2 Stark. 239 ; 2 Beay. Rolls, 173 ; 1 Phill. Ch. 47], 687, are con sidered as standing in the same relation as the attorney. So also is a barrister's clerk, 2 Carr. & P. 195 • ] id. 545; 5 id. 177 ; 5 Manii. & G. 271 ; 8 Dowl. & R. 726; 12 Pick. Mass. 93 ; 3 Wend. N. Y. 337 ; 16 N. Y. 180; 5 Cal. 450 ; but not a student at law in an attorney's office. 7 Cush. Mass. 576.
4. The cases in which communications to counsel have been holden not to be privileged may be classed under the following heads : When the communication was made before the attorney was employed as such, 1 Ventr. 197 ; 2 Atk. Ch. 524 ; see 38 Me. 581; after the attorney's employment has ceased, 4 Term, 431 ; 12 La. Ann. 91 ; when the at torney was consulted because he was an at torney, yet was not acting as such, 4 Term, 753; 4 Mich. 414; 14 Ill. 89 ; 7 Rich. So. C. 459 ; where his character of attorney was the cause of his being present at the taking place of a fact, but there was nothing in the circumstances to make it amount to a com munication, Cewp. 846 ; 2 Yes. Ch. 189 ; 2 Curt. Eccl. 866 ; 29 N. H. 163 ; when the matter communicated was not in its nature private, and could in no sense be termed the subject of a confidential communication, 7 East, 357 ; 2 Brod. & B. 176; 3 Johns. Cas. N. Y. 198; when the things disclosed had no reference to professional employment, though disclosed while the relation of attorney and client subsisted, Peake, 77 ; when the at torney made himself a subscribing witness, 10 Mod. 40; 2 Curt. Eccl. 866; 3 Burr. 1687; when he is a party. to the transaction, 3 Wise. 274 ; Story, Eq. Plead. 601 ; when he was directed to tzlead the facts to which he is called to testify. 7 Mart. La. N. s. 179.
5. The rule of privilege does not extend to confessions made to clergymen, 4 Term, 753 ; 2 Skinn. 404 ; 15 Mass. 161 ; though the rule is otherwise by statute in some states, Iowa Code, 1851, art. 23, 93 ; Michi gan Rev. Stat. 1846, c. 102, 85 ; Missouri Rev. Stat. 1845, c. 186, 19 ; 2 New York Rev. Stat. 406, 72 ; 13 Wend. N. Y. 311; Wisconsin Rev. Stat. 1849, c. 98, 75 ; nor to physicians, 11 Hargrave, State Tr. 243 ; 20 Howell, State Tr. 643 ; 1 Carr. & P. 97 ; 3 id. 518 ; see 14 Wend. N. Y. 637 ; nor to colOdential friends, 4 Term, 758; 1 Caines, N. Y. 157 ; 3 Wisc. 456 ; 14 Ill. 89 ; clerks, ' 3 Camnb. 337: 1 Carr. & P. 337: bankers, 2 Carr. & P. 325 ; nor stewards. 2 Atk. Ch. 524; 11 Price, Exch. 455. Consult Starkie, Ev. Index ; 1 Greenleaf, Ev. '00 237-250, 337— 342 ; 17 Am. Jur. 304.