#### Parker v. Carter and Others.

Argued November 21st, 1814.

i. Attorney and Client — Privileged Communications— Evidence.* — It is a settled rule of law, that counsel and attornies ought not to be permitted to give evidence of facts imparted to them by their clients, when acting in their professional character. And this restriction is not confined to facts disclosed in relation to suits actually pending, but extends to all cases in which the counsel or attorney is applied to in the line of his profession, whether such facts were communicated with an injunction of secrecy, or for the purpose of asking advice, or otherwise; unless, indeed, the client should seem to vaunt his disclosures to th e *121public, and, as it were, challenge the by-standers to bear tbem.

2. Same — Same — What Disclosures Privileged. — A licensed counsel, or attorney, employed as such, to draw a deed, must be considered as acting in the line of his profession, and bound to conceal the facts disclosed tby the person who employs him.

*3.*Same — Same—Interpreters.—The same rule applies to interpreters acting as the organ of communication between the client and his attorney.

4. Chancery Practice — Facts Not Put in Issue. † — A fact not charged in the bill in chancery, nor put in issue by the pleadings, cannot be relied upon by the plaintiff.

5. Same — Defects in Bill. — A defect in the charging part of a bill cannot be supplied by a subsequent interrogatory.

*6.*Contracts — Promise to Pay Debt *of*Another — Consideration. ‡ — A promise in writing, not under seal, by a son to pay a debt for his father, must be considered nudum pactum, unless some consideration moving from the creditor to the son. or some agreement binding the creditor to forbearance, or the like, in the event of the assumption by the son, be proved.

7. Chancery Practice. — A plaintiff comes with a bad grace, into a Court of Equity, to enforce a promise which was induced by unfounded and delusive representations on his own part.

A majority of the Judges of the Court of Appeals being interested in this cause, it was heard and determined by a ^Special Court of Appeals, consisting of judges Roane, White, Taylor, Brockeabrough, Randolph and Nelson.

It was an appeal from a decree of the Superior Court of Chancery for the Staunton District, dismissing with costs a bill exhibited by Thomas Parker against John C. Carter and Apphia his wife, Edward, William, and Henry Carters their sons, and also against the representatives of Edward Carter, who was trustee in a deed executed by William Eauntleroy, father of the said Apphia, on the 5th of April 1784, conveying sundry slaves for the benefit of her and her children. The object of the bill was to render those slaves liable to a debt of John C. Carter, for which the plaintiff had obtained judgment upon a bond,’ dated the 12th of April, 1784, and assigned to him by a certain Hudson Muse : or, if that could not be done, to compel the sons of the said John C. Carter to pay it, by virtue of an agreement alleged to have been made by them to that effect.

The plaintiff contended that the deed of trust was void as to the creditors of John C. Carter, on the grounds that the slaves had been delivered to him the said Carter by William Eauntleroy, at the time of, or shortly after, the marriage, which took place several years before the date of the deed ; and that he held them in possession, as his own, when the deed was executed. The' slaves were described in the deed as being, “in the possession of the said Apphia,” at the date thereof. The bill, in these particulars, was contradicted by the answers of Carter and wife, but supported by the depositions of Richard Parker, who stated, that, “many years ago, he was applied to by Col. William Eauntleroy, while sitting in the bar of Richmond Courthouse, to draw a deed of trust to settle on his daughter, who had married John C. Carter, several slaves which he (the said Eauntleroy) told the witness he had given up to the said Carter, on his marriage with his daughter as her marriage portion, and which the said Carter had then, in his possession ; that he the said Eauntleroy had understood Carter was considerably involved in debt to a large amount, and was a very extravagant young man; and *that he was afraid the slaves he had given him, would be taken to pay his debts : in order, therefore, to secure them for the benefit of his daughter, he requested the deponent to draw the deed before mentioned : on the deponent’s telling him it was probable that a deed made so long after he had possessed the said Carter with the said slaves, and as a marriage portion too, would not cover them from creditors, he replied, that he wished, notwithstanding,. that he would draw it: the deponent did so, whilst he was at the bar, and understood it was afterwards executed and recorded.” In answer to questions put by the defendants, the deponent farther said, that “the information was not imparted to him in confidence, for several were by and might have heard the application : he was not the attorney for Mr. Eauntleroy, for no suit was depending; but the application was simply to draw the deed, without any thing having passed between them previously on the subjectthat he was a practising attorney at that time, and wrote the deed as such, expecting to receive a fee, which, however, was never paid. In answer to a question put by the plaintiff’s attorney, whether the facts he had stated respecting Mr. Carter’s situation, his marriage, and his possession of the negroes, were of such a nature that he, the deponent, might have had knowledge of them without information from Col. Eauntleroy ? the deponent answered, that he “had, previous to Col. Eauntleroy’s said application, knowledge of those facts from information : the circumstances were subjects of frequent conversation in the neighbourhood.” The deposition of the same witness, being taken a second time, was, in substance, the same as before, with the following additions ; “that it was generally believed, and known by many, that John C. Carter was greatly indebted to sundry persons; that he was a very extravagant dissipated young man, as many young men are who have great expectations ; that it was also known, generally, that Col. Eauntleroy had given to his daughter, on her marriage, or soon after her marriage, sundry slaves ; and, the deponent thinks, the deed recites the fact. The deponent does not believe Col. Eauntleroy had the least idea that, in making the settlement, *he was committing a fraud, but that he thought he was acting the part of a provident father, in securing to his daughter the portion he had given her in marriage ; nor could this deponent believe his intention was *122fraudulent; if that had been his opinion, he would never have been aiding in the fraud.”

The defendants, sons of John C. Carter, by their answers, denied that they ever made any such agreement as that set up in the plaintiff’s bill. They alleged that, ‘‘in consequence of some letters which the plaintiff had written to their father, threatening to bring a suit to set aside the deed of trust as fraudulent and void, and saying that he, the plaintiff, was the only person, among the numerous creditors of their father, who knew of the defect in said deed, and that he would not disclose it, if the debt to him were paid, the respondents did come to an agreement among themselves, that they would pay off the debt to the plaintiff in certain instalments. They had come to this resolution, upon the faith of his secrecy, and from the fear of the fate of a law suit, which, if unfavourable, might let in claims, to the entire destruction of that just provision which their grandfather had made for their mother and themselves. In consequence of this agreement, William F. Carter, one of the said brothers, wrote aletter to Major Massie, who was understood to be entrusted with some agency in this business. To the propositions contained in this letter, no answer was ever received. Before any farther communication was had, either with Major Massie or the plaintiff, the deponents, reflecting that the circumstances relative to the deed of trust had been communicated by the plaintiff, as they understood, to a certain Spotswood Garland, as well as Major Massie, and perhaps to others, and the payment of one of those debts might embolden other creditors, to whom the same circumstances would more than probably be known, to bring suits, had determined not to make payment of this debt, but to risk the consequence of a suit. Major Massie was therefore informed that this was their determination, and that they would not undertake to pay the money.

The other circumstances of this case are sufficiently stated *in the opinion of chancellor Brown, pronounced the 26th of March 1810 ; — as follows :

Two principal questions arise in this case : —1st, Whether the slaves in the bill mentioned are really the property of the defendant John C. Carter, and liable to the payment of his debts ? And, if they are not, 2dly, Whether the defendants Edward, William, and Henry Carter, the three sons of John C. Carter, are bound to pay the plaintiff’s debt, under their agreement set up in the bill ? The first question depends on the operation or effect of the deed of trust from William Fauntleroy to Edward Carter, dated the 5th of April 1784, and recorded the 7th day of June following. And on this arises a twofold enquiry : 1st, Whether at the time of the execution of the deed of trust, the right and power of William Fauntleroy, in and over the slaves, had ceased ? and, if not, 2dly, was the deed fraudulent, and void as to creditors ?

In considering these points, I will first suppose that the slaves in question were put into the possession of John C. Carter, the defendant, at the time of, or shortly after, his marriage with the defendant Apphia. If he had thus obtained possession in pursuance of a marriage contract, no doubt would have been entertained by me of his absolute right in them: the case would have been out of the operation of the act of 1758. But, as no such contract is set up or moved, I must consider his possession as evidence only of a parol gift, or (if the plaintiff prefers the expression) grant, in the usual way, to. the son in law, in consideration of his marriage with the donor’s daughter, or to the daughter herself, which, though a good consideration, has not been thought sufficient by the Court of Appeals to take the case out of the act. The reasoning of the Court of Appeals in the case of Turner v. Turner, 1 Wash. 139, and in the case of Jordan v. Murray, 3 Call, 85, will, I think, justify me in the opinion that, where the requisites of the act of 1758 have not been complied with, and where the slaves have not been in possession of the donor five years, the power of the donor (even in the case of a gift or grant to a son, or a son in law,) *over the property, does not cease. His right remains, and, in an action brought by him or those claiming under him, for recovering the possession, no evidence of the parol gift or grant could be received. But the deed of trust by Fauntleroy was executed within the five years after the parol grant, at a time when he was entitled to retake the possession of the slaves : the act was therefore legal and obligatory, unless it was fraudulent, which is next to be considered.

Fraud, in a court of equity, may be presumed. The counsel for the plaintiff contends that this case is properly embraced in the species of fraud «which is to be collected from the nature and circumstances of the transaction, as being an imposition and deceit upon other persons not parties to the agreement. The parties to this agreement were William Fauntleroy and Edward Carter; for .the latter, though not present and consenting at the time of its execution, and though it does not appear that he has ever signed it, has, as appears by the testimony, accepted the trust, and acted under it; and his representatives, now he is dead, would be bound to perform it. The persons said to be imposed upon and deceived are the creditors of the defendant John C. Carter ; and, among others, the plaintiff. If I am correct in supposing that, at the time of the execution of the deed of trust in 1784, Fauntleroy’s right to the slaves remained ; that he could dispose of them in the same manner as if he had still retained possession ; or that the possession of John C. Carter was, in law, to be considered the possession of Col. Fauntleroy ; then he was at liberty to settle them in such a manner, and to such uses, as he thought proper, and the settlement could not be considered, either in him or the trustee, fraudulent, though intended to protect the property against creditors, unless it should appear that the permitting the slaves so long to remain in the possession of the defendant Carter, (who, from his connection with two opulent families, might be reasonably presumed to be the rightful owner,) had given a false credit to him, and enabled him to impose upon and deceive others. To induce a belief, I presume, that this was the case, the plaintiff’s counsel have contended, that the *debt which the plaintiff is now seeking to recover was contracted previous to the existence of the trust. On that point I *123consider the answer of the defendant John C. Carter, conclusive. He is called upon to say when the debt to Muse commenced. He replies, as I understand him, previous to the oth of April, (the date of the trust deed,) he had lost at gaming a sum of money with a lieutenant Crane, who, in order to evade the statute, prevailed on him to execute the bond in the bill mentioned to Hudson Muse ; that, before the execution of the bond, which was on the 12th of April, 1784, he owed Muse nothing. It is certain that circumstance might, after the execution of the bond, have made the debt good to Muse, both in law and equity; but before that time it was not either a legal or equitable debt. But it is said there is no evidence that the deed was executed on the Sth of April, or before the 7th of June, when it was recorded. I understand the law to be, that a deed shall be considered as executed on the day of its date, unless the contrary can be shewn. We hear of no other debt but the plaintiff’s. And there is no evidence before the court to induce a belief that Col. Fauntleroy meditated a fraud upon any one. If he had, his intention would have affected the deed ; and a subsequent creditor or purchaser, as well as a prior one, might have taken advantage of the fraud. The deed’s being voluntary does not make it fraudulent, unless the intention is fraudulent. And Judge Parker, in his deposition, (of which I shall presently say something,) says that he did not consider Fauntleroy’s intention in making the deed fraudulent; had he thought so, he would not have been concerned in it; and every one who knows that gentleman, will believe him when he says so. I therefore think that the deed was effectual to pass the slaves to the trustee, even though the possession had remained with the defendant John C. Carter, from the time of his marriage till the execution of the deed. But surely it was sufficient if the possession of the slaves never was out of Fauntleroy, or in John C. Carter. And this is the next subject of enquiry.

The bill states possession in the defendants John and Apphia ^Carter. Both their answers deny, most positively, the fact. Judge Parker is examined to prove it. His deposition is objected to, but I see nothing solid in the objection. Had he been called upon to divulge a confidential communication of his client, I should have held him not simply privileged from doing so, but utterly incompetent to make the disclosure. The law on this subject was intended, as I take it, for the benefit of clients, not of their counsel, to whom, consequently, no choice is given, to depose or not as they may chuse. But Judge Parker was not here acting as the counsel of Colonel Fauntleroy. His duty was that of a mere conveyancer: no cause was presented for his opinion respecting this property, or Fauntleroy’s right to dispose of it. His testimony must therefore be received, to have such weight as the law and the rules of this court will give it. When a bill is contradicted by an answer, two witnesses, or one whose testimony is corroborated by strong circumstances, are necessary to support it. No man’s testimony is more worthy of credit than Judge Parker’s. But I cannot attach more weight to it than the law attaches. Bet us examine it, and the circumstances relied on to support it. Judge Parker speaks of the possession of Carter, not as a matter within his own knowledge, but as a fact which he believes, as well from the information of Fauntleroy, when he applied to him to draw the deed, as from the general current report of the neighbourhood. As to the last, I doubt very much the propriety of taking general report for evidence in a case of this kind. The more general the report of such a fact in a neighbourhood, the more easily could better testimony be had in the same neighbourhood to prove the fact itself. And courts of equity, as well as of law, require in every case the best testimony of which the case is susceptible. This part of his evidence is, however, only the evidence of a report; — for ought the declarations of Colonel Fauntleroy, made when the defendants were not present, to be received to defeat their rights under the deed ? It is true, Colonel Fauntleroy was, at the time, about to confer a favour on the defendants. But is that a sufficient reason that his statements then made, *in their absence, should be held sufficient to destroy the effects of his bounty ? Suppose Judge Parker had deposed to the facts of the defendant’s possession as a matter known to himself. I confess I should have believed him : but would the law have believed him ? It would then havé been but one witness in opposition to the defendant’s answers. But then, “there are strong circumstances to corroborate his testimony.” Bet us now examine them. One is, that, in the deed itself, the slaves are stated to be in the possession of the defendant Apphia. This is, I confess, a strong circumstance: nor can I account for this insertion in the deed, unless the fact was really so. It was no doubt made on the representation of Fauntleroy to Judge Parker, at the time the deed was drawn, and when the parties were not present, and can have no greater weight than the declarations of Fauntleroy, unless it should be thought that defendants claiming under the deed, are bound to admit the truth of every fact stated in the deed ; which I can scarcely think a correct doctrine. Suppose one of the negroes transferred had been entitled to freedom at the age of thirty-one, and in the deed had been stated to have been twenty-five years old, when only twenty ; or had been said to have been the son of one born free, when he was the son of a slave; would the transferee have been bound by these statements in the deed, not being essential parts of the deed ? The object would be to identify and inform ; and if the statements were incorrect, the error might be corrected.

Another circumstance relied on, is the letter of the plaintiff to the defendant in March 1804. In this letter the plaintiff details the material facts of possession, and the deed, &c. &c. which are not contradicted by the defendant. This is considered as evidence of his assent to the truth of that statement. I confess I do not view it in that light. It must be remembered that the style of the plaintiff’s letter was calculated to awaken every feeling of honour, as well as of hope and fear, which the defendant possessed. He was reminded of the plaintiff’s friendship to him, and of his ingratitude for that *124friendship ; — of the existence of -a debt which *he had long neglected to pay, though bound both in honour and in law, or to assign any reason why he had not paid, it; — was threatened with an execution in case of longer neglect, and offered favourable terms in case of complian ce. Under such circumstances, it could scarcely be presumed that the defendant would enter into a controversy with the plaintiff, with respect to a fact not necessary then to be discussed. He was therefore silent. To the other correspondents the same remarks will apply. This is, however, admitted to be an additional circumstance in support of Judge Parker’s deposition ; and if these circumstances were not rebutted by'other circumstances, which 1 shall hereafter notice, they would be sufficient to induce me to say that his deposition supported the bill and defeated the answers. The following are the circumstances to which I allude. Colonel Fauntleroy’s giving into the possession of his son-in-law, or daughter, on their marriage, ten or twelve negroes, . was a circumstance which could not easily be forgotten by them, or by the families with which they were immediately connected. It must hatre been a matter of some notoriety among their friends and near neighbours. And the re-taking of those slaves by Colonel Fauntleroy, after some years possession by the defendants, is a circumstance which must have occasioned considerable noise, and' could not possibly be forgotten by friends, and every body in the neighbourhood; in the course of twenty odd years especially ; as occurrences must have taken place, in the mean time, to keep up the recollection of it; nor can it be easily presumed that persons of any character, and desirous of supporting it, would not only run the risque of losing it, but also incur the danger of prosecution and infamous punishment, by denying on oath what they knew not only to be true, but what they might reasonably suppose could be easily proved to be so.

Again, the plantiff has taken no depositions, but that of Judge Parker, to support the fact of possession in the defendants charged in the bill. And, as before observed, this deponent swears only as to his belief of that fact, from report. I see a notice by the plaintiff to take the depositions *of two of the Fauntleroys, (probably near relations of the defendant Apphia, and one of them living, as may be collected from the notice, in the neighbourhood of the transaction :) but their depositions have not been taken.

These circumstances, I think, rebut the other circumstances relied on in support of Judge Parker’s deposition, and leave it naked to the operation of the law upon a single deposition in contradiction to an answer.

On the last point, viz. whether the defendants Edward, William and Henry are bound to pay the plaintiff’s debt, by the agreement set up in the bill, I can have but little doubt, if the former part of this opinion is correct. I consider the undertaking of these defendants, if it had been more explicit and obligatory than I think it is, was entered into under circumstances which would induce this court not to enforce it.

I have gone the more fully into the details of this case, because it is one of great importance to one of the parties, at least; and, being by no means confident of my opinion, I wished my reasons to be fully before the counsel for the parties.

The bill was therefore dismissed, with costs; from which decree the plaintiff appealed.

The case was argued by Williams and Wickham for the appellant, and Wirt for the appellee.

On Monday, November 28th,

*

Attorney and Client — Privileged Communications.— It is a, fundamental principle of the law of evidence *VoaX professional communications*made by a client to his counsel are always to be excluded from the jury. State v. Douglass, 20 W. Va. 780, citing principal case. To the same effect the principal case is cited in Lyle v. Higginbotham, 10 Leigh 74. See further, monographic *note*on "Attorney and Client” appended to Johnson v. Gibbons, 27 Graft. 632.

†

Chancery Practice — Bill—Allegations.—It is an elementary principle of equity that every fact essential to the plaintiff’s title to maintain the bill and obtain *the*relief must be stated in the bill. McGugin v. Ohio R. R. Co. 33 *W.*Va. 71, 10 S. E. Rep. 39, citing principal case.

‡

Contracts — Promise to Pay Debt of Another — Declaration — Allegations.—The principal case is cited in Winkler v. C. & O. R. Co., 12 W. Va. 708, to the point that though a special count shows a consideration for the contract of one person to guarantee payment of the debt of another, yet, if it does not allege that the other has not paid the debt, It is fatally defective.

See generally, monographic *note*on “Contracts” appended to Enders v. Board of Public Works, 1 Gratt. 364; monographic *note*on "Consideration” appended to Jones v. Obenchain, 10 Gratt. 259.

Wo man can make himself the creditor of another by any act of his own- — unyoli.cj ted and merely officious. Gurnee v. Bausemer, 80 Va. 872, citing the principal case.

the following opinion of the court was delivered by

JUDGE ROANE.

This is a bill brought by the appellant against the appellees J. C. Carter and Apphia his wife, and their children, as also, among others, against the representatives of Edward Carter, the trustee named in a deed of settlement, of April Sth, 1784, from Wm. Fauntleroy, the father of the said Apphia. That deed conveyed certain negroes to the said trustee, for the use of the said Apphia for life, free from the controul of her husband and his creditors, and, after her death, to the use of all her children who should be then living. The bill was brought, after the appellant had obtained a judgment at law *against the said J. C. Carter, upon a bond, of April 12th 1784, given by him to Hudson Muse, and assigned to the appellant, and after the said Carter had taken the oath of an insolvent debtor, under an execution sued out upon the said judgment. Its object is to set aside the deed aforesaid, in favour of the said appellant, and subject the negroes, thereby conveyed, to-the payment of the debt aforesaid, on the ground that he was a creditor of the said J. C. Carter, and that, on his marriage with the said Apphia, in 1782, the said slaves had been delivered to him, under a parol gift thereof, by the said William Fauntleroy. The bill also prays a decree against three of the sons of the said Carter and wife; on the ground of an alleged agreement on their parts to pay the debt In question.

The decisions of the Court of Appeals, upon the true construction of the act of 17S8, for preventing fraudulent gifts of slaves, having declared void all such gifts, made prior to the act of 1787, as were not evidenced by a deed, although possession of the slaves given may have been delivered to the donee ; the present claim can only be set up, on the ground of the appellant having been a' creditor of the donee J. C. Carter, and that his possession of the slaves aforesaid, under the gift, either singly taken, or in connexion of acts of ownership on his part, and of consent or connivance on the part of the donor, ought, in a controversy between the latter, or volunteers claiming under him, and the creditors of the former, to give them the preference. Where such possession has actually taken place under the parol gift, it is a matter of great importance to decide, of what character that possession must be, in relation to its tendency to deceive the donee’s creditors, and what acts of ownership, or of consent and connivance as aforesaid, (if a possession singly is not sufficient,) and whether all the said circumstances, conjunctly taken, are adequate to produce the effect 'above mentioned. But if no possession is shewn *125to have taken place under such gift, these important enquiries are unnecessary to be gone into. There would then be no foundation on which the claim of the creditor can be erected. In *such case, it is also unimportant, for the same reason, to enquire, whether the party was a creditor of the donee, or not, prior to the delivery of the deed attempted to be impeached, or whether that circumstance be important.

None of these enquiries will now be gone into by this court. It is unnecessary, because there is no adequate proof, in the cause, 'that the appellee, J. C. Carter ever had possession of the negroes in question, under the parol gift before mentioned.

However the case, on this point, might have stood, if the deposition of Richard Parker should be sustained, it is clear that, if that deposition be withdrawn from the cause, the answers of the appellees J. C. Carter and his wife (which on this point of possession are strictly responsive to the bill,) must preponderate. There is, afterwards, nothing hut circumstances to be opposed to those answers.

As for the witness, Mr. Parker, he admits that he was a practising attorney at the time; that it was in that character that he drew the deed in question, and expected to receive a fee for drawing it. This is not ■only admitted by him, but it results from the nature of the application, that it was in this character that he was applied to, and retained. He was applied to by Mr. Rauntleroy, to draw such a deed as would settle the negroes on the appellee Apphia, and exempt them from liability to her husband’s creditors. The preparing such a deed necessarily required some degree of legal knowledge ; and it might not be, that a person wholly unskilled in the law would be competent to ■draw it. While we say this, it is by no means intended to be admitted, that, where an attorney is retained and consulted, his right to disclose his client’s secrets depends, at all, on the difficulty or clearness of the case submitted. A compliance with Mr. Rauntleroy’s request in this instance necessarily required the facts to be by him stated, on which the attorney’s judgment was to turn : and the fact then disclosed, touching the delivery under the parol gift, was all-important, in forming a right conclusion on the subject. Being thus important, it is wholly immaterial whether it was disclosed by way of answer to an , *enquiry of the attorney, or was spontaneously mentioned by his client. But, if the fact were even unimportant, it makes no difference as to the principle now in question. It is enough that it was communicated by the client, in a professional consultation with his counsel. As to the exception set up from the general rule, in this esse, on the ground of the publicity of the conversation in which the disclosure was made ; while it does not follow that, because there might have been many persons in the court-house at the time, they were so unengaged as to have attended to this con-versation, this publicity only shews an indiscretion on the part of Mr. Rauntleroy. We must not, in relation to a fact of a highly confidential nature, and strictly applying to the question submitted, embark in a field of uncertainty and conjecture, and, without any certain scale to go by, undertake to decide, from the place and manner of the conversation, that this fact was not disclosed in confidence. It is safer, and more conducive to that free intercourse which should exist between a client and his attorney, to consider all communications confidential, which fall within the description just mentioned : unless, indeed, the client should seem to vaunt his disclosures to the public, and, as it were, challenge the by-standers to hear them. Whatever opinion the witness, Mr. Parker, may, therefore, have entertained, as to his not being hound to secrecy, either because there was no cause depending in court at the time, and in which he was employed ; because his counsel or advice was not, literally, asked for in the case ; or on account of the place and manner in which the conversation was held; this court differs in opinion from him upon all these points, and, in respect to the disclosed fact now in question, holds him to have been an incompetent witness.

This court understands it to be the settled law, that counsel and attornies ought not to he permitted to give evidence of facts imparted to them, by their clients, when acting in their professional character ; that they arc considered as identified with their clients, and, of necessity, entrusted with their secrets, which, therefore, without a dangerous breach of confidence, cannot be revealed; that this obligation of *secrecy continues always, and is the privilege of the client, and not of the attorney. The court is also of opinion, that this restriction is not confined to facts disclosed, in relation to suits actually depending at the time, but extends to all cases in which a client applies, as aforesaid, to his counsel or attorney, for his aid in the line of his profession. If the principle was confined to causes actually depending at the time, there would be no safety for a person consulting counsel as to the expediency of bringing a suit, or of compromising one which is contemplated to be brought against him. When such suit should be afterwards instituted, all his disclosures, previously made, with a view to obtain counsel and avoid litigation, would be given in evidence against him! The same necessity exists in both cases; and there is in principle, no difference between them. With respect to the persons who are subject to this restraint, the court is of opinion, that it is confined to the two descriptions of persons before mentioned.(1) As to causes pending in court, a client can only have an interest in Iheir services, for they, alone, will be permitted to represent him : and, as to counsel or advice obtained in other cases, these are the only safe depositories of a client’s interests, under the care our law has taken to confide the functions in question only to men of probity and legal knowledge. The policy of the law, in the respect last mentioned, would he violated, were any citizen to be permitted to invest ad libitum, and without necessity, any other *126citizen, however corrupt or unqualified, with the functions aforesaid. That investiture would also carry with it the high privilege now in question, which, too, only arises from, the necessity men are under to act, in their legal concerns, through skilful and qualified agents.

As to the objection of the appellant’s counsel, that the deed of settlement, in question, was not delivered ; — without deciding whether, under the actual circumstances of this *case, that delivery would he presumed to have been made, or not, the court is of opinion that this fact is neither charged in the bill, nor put in issue by the pleadings. It is not even charged under a general allegation that the said deed was void; but the bill, not denying that the deed was .good in itself, takes the ground, that its effect on the property therein embraced was lost, as to the claim of the appellant, by means of the anterior and collateral circumstances which are relied on in his favour. The court also concurs in opinion with the appellee’s counsel, that this defect in the charging part of the bill is not supplied by a subsequent interrogatory, which calls for information on the subject of its delivery.

With respect to the alleged agreement on the part of three of J. C. Carter’s sons, it is probable that their answers, denying the obligation thereof, ought not to be taken as a denial of the agreement itself ; — both because such denial is rather their inference, than a positive negation of a fact, and because, in their answers, they refer to the very letter which is alleged to contain that agreement. The question then recurs, — was the promise therein contained consummated by the agreement of both parties? — and was that promise founded upon an adequate consideration? While the court is at least doubtful whether the former was the fact, in this case, it does not see that there was any agreement or consideration, moving from the appellant to the sons, which would prevent their promise from being considered nude.' However the letters contained in the record may have hound the appellant, in the event of an arrangement by J. C. Carter, and in relation to him, we see nothing binding him to forbearance, or the like, in the event of an assumption by the sons. On this ground the case is also with the appellees : and the court is of opinion, that, independently of the objection arising from'the want of consideration as aforesaid, the appellant comes with a bad grace into a court of equity, asking a decree against third persons, who were induced to make the promise relied on, only by his representations, *which now appear to us to have been unfounded and delusive.

On these grounds the court is of opinion to affirm the decree before us. I am also instructed to say, that the judges are unanimous in the opinion now delivered ; with the exception, that one of them does not, on the testimony, consider the disclosure, made to Mr. Parker, to have been confidential. That judge, however, authorizes me to say, that if Mr. Parker’s deposition had been sustained by the court, he would, nevertheless, have been of opinion to affirm the decree.

(1)

 Note, by Judge Koane. It was admitted by all the judges in conference, that tile privilege equally .applied to interpreters acting- as the organ of communication between the client and his attorney. — Note in Original Edition.