#### ROGERS *v.*DARE ET AL.

Bill of sale — possession—fraud—attorney at law — secrets of clients — witness.

An attorney at law cannot be compelled, and will not be permitted to give evidence of what his client has confided to him; but as to matters, the knowledge of which he derived from other sourceF, he must testify.

If a bill of sale is made of personal property, and the possession does not follow the sale, that will not make the bill fraudulent *of itself;*it is only a circumstance of fraud, and if the transaction is shown to be honest, it will be good.

Trespass for tearing down a steam engine, &c. Plea not guilty, with notice of property in the engine in the defendant.

The defendant, Dare, was a manufacturer of steam engines in Zanesville. One Harding, of Cambridge, had an engine, in Cambridge, out of repair, and applied to Dare at Zanesville, to put it in repair. • Harding’s credit being bad, Dare refused to do the work, unless he would give him a lien on the engine for the amount of repairs, and also for the balance of a former account, for machinery. It was so agreed, and a contract was entered into in writing for Dare to do the work. Harding executed to Dare a bill of sale for the engine, &c. for the consideration of six hundred dollars, the estimated value of the repair and balance, dated 2d October, 1830. Dare executed a lease of the engine to Harding, on the same day, for four years, at the rent of one hundred and fifty dollars a year, and covenanted that if the rent was paid, the engine should be Harding’s at the end of the term. The engine was repaired on the 7th February, 1831. Plarding being indebted to the plaintiff, gave him a bill of sale of the same engine, (he having knowledge of Dare’s lien) to secure him and certain other creditors, and the plaintiff gave Harding a power of attorney to procure the engine for him, &c. The rent to Dare not being paid, Harding sent to Dare to come and *137take the engine, as he would.be unable to pay. Dare, with his hands, the other defendants, came on to take the engine, and when arrived within Guernsey county, Harding arrested Dare upon a writ, and while he held him in custody, told him again that the engine was his, and to go and take it. The plaintiff had said he had sent for Dare to get him where he could sue him. The defendant’s •' Dare and his hands, went in to take down the engine, and while at work, were, stopped by Harding and some of his securities for other claims, backed by a mob, and driven from the work. For this attempt to take down the engine, the suit was brought.

In the,progress of the trial, Tracy, an attorney at law, was examined as a witness, and was asked what Rogers told him of the sale to Dare.

This was objected to, as disclosing the secrets of the client.

*Tracy*and Hubbard, for the plaintiff.

*Beebe*and Culbertson, contra.

By the Court.

An attorney at law cannot- be compelled, and will not be permitted to disclose what his client, as such, has confidentially confided to him.; but his situation, as attorney at law, does not excuse him from testifying to faGts affecting his client, the knowledge of which he derived from other sources.

The Court to the jury. The claim of the plaintiff rests upon the ■ assumption that the bill of sale to Dare being unaccompanied with the actual possession of the engine, is void. The position is not sound. The court has frequently decided, that the want of actual possession following a bill of sale of personal property, was not *fraud in*itself, but only a circumstance of fraud. There is no pretence here, but that the transaction between Harding and Dare was a bone fide one, and the plaintiff certainly wás not deceived by the possession of Harding, nor thus induced to give credit upon the supposition that possession was evidence of property, bécause he had notice of Dare’s claim.

Verdict and judgment for the defendant.

The engine had been taken possession of by Hutchinson, a security for Harding to Rogers. Dun had brought suit for it. After the decision above, it was agreed, that if Hutchinson took the engine to Dun in Zanesville, aud paid the costs, the suit should be discontinued.