.Mr. Justice Story
delivered the opinion of the Court.
This is an action of trespass for mesne profits, brought by the plaintiffs in error against the defendant in error, in the Circuit Court for the District of Maryland.. The cause comes before this Court upon exceptions taken by the plaintiffs on the trial of the cause in the Court below.
The plaintiffs had recovered judgment, and possession of the premises, in an e? ■'ctment, in which J. C. F. Chirac prayed to be admitted as landlord to defend the premises, and was admitted accordingly under the common consent rule. The record-' of the proceedings in that action were offered by the "plaintiffs as evidence in the present suit; and they then offered to prove, by the testimony of R. G. Harper, and W. Dorsey,
esquires, that the defendant had retained, and paid them, to conduct the defence of the ejectmént for his benefit, and also propounded to ^ ^ these witnesses the following question : Were you retained, at any time, as attorney or counsellor, to conduct the ejectment suit above mentioned, on the part of the defendant, for the benefit of the said George Rcinicker,
as landlord of those premises.
This question was' objected to as seeking an improper disclosure of professional confidence. The Court sustained the objection ; and this constitutes the first ground of exception.
Firs
The general rule is not disputed, that confidential communications between client and attorney, are not to be revealed at any time. The privilege, indeed, is not that, or the attorney, but of the client; and it is indispensable foil the purposes of private justice. Whatever facts, therefore, are communicated by a client to counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose ; and the law holds their testimony incompetent. The real dispute in this case is, whether the question did involve the disclosure of professional confidence. If the question had stopped at the inquiry whether the witnesses were employed by Reinicker, as counsel, to conduct the ejectment suit, it would desérve consideration, whether it could be universally affirmed, that it involved any breach of professional confidence. The fact is preliminary in its own nature, and establishes only the existence of the relation of
client and counsel, and, therefore, might not nesew iiv involve the disclosure of any communictfcion arising from that relation after it was ereateu.. But the question goes farther. It asks, not onjy whether the witnesses were employed, but whether they were employed by Reinicker to conduct the ejectment for him,
as landlord of the premises,.
We are all of opinion, that the^question, in this form, does involve a disclosure of confidential communications. It seeks a “disclosure of the title and claim set up by Reinicker to his counsel, for the purpose of conducting the defence of the suit. It cannot be pretended that counsel could be asked what were the communications made by Reinickéras to the nature, extent, or grounds of his title; and yet, in effect, the question, in the form in which it is put, necessarily involvés such a disclosure. The Circuit Court was, therefore, right in their decisión on this point.
Rule -as to attorneyorcoynsei giving testimony respecting facts communicated to them by appiied toliethis case-
The plaintiffs then gave in evidence certain deeds and patents, by which, and the admissions of counsel on both sides, the title to the premises in question was vested in John B. Chirac, .deceased; and also gave in'evidence, certain depositions to prove who were the heirs of J. B. Chirac, and also offered the record in the ejectment to prove Maria Bonfils to be one of the heirs ; and then offered to prove, by
parol evidence,
that the defendant was, in fact, landlord of the premises at the commencement and during the progress of the ejectment, and had notice of the same, and employed counsel to de
fend the same ; and received the rents and profits thereof, during the progress of the ejectment; which evidence the Court refused to admit: and this constitutes the second exception of the plaintiffs. The plaintiffs then offered to prove the same facts, (not saying by parol evidence,) with the additional fact, that counsel did defend the same action for the benefit of the defendant. This evidence was also rejected by the Court, and constitutes the third exception of the plaintiffs.
Second exeption.
Third exception.
The qúestion of law, involved in each of- these exceptions, is substantially the same. It is, whether a person, who was not a party to the ejectment, and did not take upon himself, upon the record, the defence thereof, but another did. as landlord,, may yet be liable in an aetion for the mesne profits, upon its being proved that he. was, in fact, the landlord, received the rents and profits, and resisted the recovery.
Question involved in the 2d and 3d ex-ceptiont.
It is undoubtedly true, that in general, a recovery in ejectment, like other judgments, binds only parties and privies, it is conclusive evidence in an action for mesne profits against the tenant in possession, when he has been duly served with a notice in ejectment, whether.he appears, and takes upon himself the defence, or suffers judgment to go by default against the casual ejector. The. reason is, that in the first case, lie is the real party on the record'; in the last, he is considered as substantially the defendant^, and tW judgment by default, as a confession of the title set up in the ejectment. Such was the de
cisión of the Court in
Aislin v. Parkin,
in 1
Burr.
667. But in relation to third persons, the judgment in ejectment is not conclusive ; and if they are sued in an action for mesne profits, which is substantially an action against them as trespass-But ers, they may controvert the plaintiff’s title at large. In such a suit, the record of the ejectment is not evidénce to establish the plaintiff’s title; but it seems admissible for another pur- ' pOSe, that IS to say, to show tile possession of the plaintiff. The plaintiff may certainly prove his possession connected with his title, by any sufficient evidence
in
pais; and if his possession has been under a judgment of law, he is entitled to establish it by introducing the record of the recovery, and an executed writ of possession under it.
Recovery in elusive against the tenant in against third parti’s"8 to "ha1 record.
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.Mr. Justice Story
delivered the opinion of the Court.
This is an action of trespass for mesne profits, brought by the plaintiffs in error against the defendant in error, in the Circuit Court for the District of Maryland.. The cause comes before this Court upon exceptions taken by the plaintiffs on the trial of the cause in the Court below.
The plaintiffs had recovered judgment, and possession of the premises, in an e? ■'ctment, in which J. C. F. Chirac prayed to be admitted as landlord to defend the premises, and was admitted accordingly under the common consent rule. The record-' of the proceedings in that action were offered by the "plaintiffs as evidence in the present suit; and they then offered to prove, by the testimony of R. G. Harper, and W. Dorsey,
esquires, that the defendant had retained, and paid them, to conduct the defence of the ejectmént for his benefit, and also propounded to ^ ^ these witnesses the following question : Were you retained, at any time, as attorney or counsellor, to conduct the ejectment suit above mentioned, on the part of the defendant, for the benefit of the said George Rcinicker,
as landlord of those premises.
This question was' objected to as seeking an improper disclosure of professional confidence. The Court sustained the objection ; and this constitutes the first ground of exception.
Firs
The general rule is not disputed, that confidential communications between client and attorney, are not to be revealed at any time. The privilege, indeed, is not that, or the attorney, but of the client; and it is indispensable foil the purposes of private justice. Whatever facts, therefore, are communicated by a client to counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose ; and the law holds their testimony incompetent. The real dispute in this case is, whether the question did involve the disclosure of professional confidence. If the question had stopped at the inquiry whether the witnesses were employed by Reinicker, as counsel, to conduct the ejectment suit, it would desérve consideration, whether it could be universally affirmed, that it involved any breach of professional confidence. The fact is preliminary in its own nature, and establishes only the existence of the relation of
client and counsel, and, therefore, might not nesew iiv involve the disclosure of any communictfcion arising from that relation after it was ereateu.. But the question goes farther. It asks, not onjy whether the witnesses were employed, but whether they were employed by Reinicker to conduct the ejectment for him,
as landlord of the premises,.
We are all of opinion, that the^question, in this form, does involve a disclosure of confidential communications. It seeks a “disclosure of the title and claim set up by Reinicker to his counsel, for the purpose of conducting the defence of the suit. It cannot be pretended that counsel could be asked what were the communications made by Reinickéras to the nature, extent, or grounds of his title; and yet, in effect, the question, in the form in which it is put, necessarily involvés such a disclosure. The Circuit Court was, therefore, right in their decisión on this point.
Rule -as to attorneyorcoynsei giving testimony respecting facts communicated to them by appiied toliethis case-
The plaintiffs then gave in evidence certain deeds and patents, by which, and the admissions of counsel on both sides, the title to the premises in question was vested in John B. Chirac, .deceased; and also gave in'evidence, certain depositions to prove who were the heirs of J. B. Chirac, and also offered the record in the ejectment to prove Maria Bonfils to be one of the heirs ; and then offered to prove, by
parol evidence,
that the defendant was, in fact, landlord of the premises at the commencement and during the progress of the ejectment, and had notice of the same, and employed counsel to de
fend the same ; and received the rents and profits thereof, during the progress of the ejectment; which evidence the Court refused to admit: and this constitutes the second exception of the plaintiffs. The plaintiffs then offered to prove the same facts, (not saying by parol evidence,) with the additional fact, that counsel did defend the same action for the benefit of the defendant. This evidence was also rejected by the Court, and constitutes the third exception of the plaintiffs.
Second exeption.
Third exception.
The qúestion of law, involved in each of- these exceptions, is substantially the same. It is, whether a person, who was not a party to the ejectment, and did not take upon himself, upon the record, the defence thereof, but another did. as landlord,, may yet be liable in an aetion for the mesne profits, upon its being proved that he. was, in fact, the landlord, received the rents and profits, and resisted the recovery.
Question involved in the 2d and 3d ex-ceptiont.
It is undoubtedly true, that in general, a recovery in ejectment, like other judgments, binds only parties and privies, it is conclusive evidence in an action for mesne profits against the tenant in possession, when he has been duly served with a notice in ejectment, whether.he appears, and takes upon himself the defence, or suffers judgment to go by default against the casual ejector. The. reason is, that in the first case, lie is the real party on the record'; in the last, he is considered as substantially the defendant^, and tW judgment by default, as a confession of the title set up in the ejectment. Such was the de
cisión of the Court in
Aislin v. Parkin,
in 1
Burr.
667. But in relation to third persons, the judgment in ejectment is not conclusive ; and if they are sued in an action for mesne profits, which is substantially an action against them as trespass-But ers, they may controvert the plaintiff’s title at large. In such a suit, the record of the ejectment is not evidénce to establish the plaintiff’s title; but it seems admissible for another pur- ' pOSe, that IS to say, to show tile possession of the plaintiff. The plaintiff may certainly prove his possession connected with his title, by any sufficient evidence
in
pais; and if his possession has been under a judgment of law, he is entitled to establish it by introducing the record of the recovery, and an executed writ of possession under it.
Recovery in elusive against the tenant in against third parti’s"8 to "ha1 record.
But in an action for mesue profits against third persons, who are liable to the action thwe record of the recovery in the ejectment, and an executed writ of possesission undr it, are evidence to prove the plaintiff's with his title.
The question then is, generally, whether it is competent for the plaintiff to maintain an action for mesne profits against any person who is in possession of the land by means of his tenants, and who, by his acts, commands, or co-operation, aids in the expulsion of the .plaintiff, and in withholding possession from him. All persons who aid in, of command, or procure a trespass, are themselves deemed in law tb be trespassers, whether they are actually present, or do the act through the instrumentality of their agents ,and servants. A recovery of the possession, in an ejectment against one of such agents, does not constitute a bar to an action for mesne profits against another agent, for the same reason, that
the former suit is no bar to the latter against the defendant in ejectment, viz. that the mesne pro- • fits were not a matter in controversy in the eject - ment> then, it is competent to maintain the. action for mesne profits against any trespasser, although not a defendant in ejectment- it is competent to prove that the defendant is in that predicament. The evidence offered, iri\this case,was strong to prove the fact, that the defendant was ;a party to the trespass, supposing the plaintiffs to have established their title and possession. If he was landlord of the premises, and the other parties were in possession under him ; if he was in the perception of the rents and 'pro’fits, if he resisted the plaintiff’s title and possession, and co-operated in the acts of the tenants for this purpose, the evidence was proper for the jury as proof of his being a cotrespasser.
An action for mesne profits may be maintained against the landlord in fact, who is in possession of the land, by means of his tenants, and by his act, commands, or co-operation, aids in whith holding the possession from the plaintiff.
This doctrine is supported by the case of
Hunter
v.
Britts,
(3
Campb. N. P. Rep.
455.) which was cited at the bar. There, the judgment was against the casual ejector in the ejectment suit, and the action for the mesne profits was brought against Britts as landlord ; and he was proved to be in the receipt of the rents and profits from the time, of the demise till the. writ of possession was executed. The ejectment was served upon the tenants there was no evidence that Britts had any notice of this till after judgment; but, subsequently, he promised to pay the rent, and the costs, to the plaintiff. It was objected, that the judgment in ejectment was not. under these circumstances, evidence of
title against Britts and Lord Ellenborough held, that it was not, without notice of the ejectment. But he thought that his subsequent promise amounted to an admission that the plaintiff was entitled to the possession of the premises, and that he himself was a trespasser. The language of the learned Judge seems, indeed, to import, that if the landlord had had notice of the ejectment, he would have been concluded by the recovery in the ejectment. It might be so, if the common notice had been formally given to him as tenant in possession, and he had neglected to take upon himself the defence of the suit. If, however, the notice was
in pais,
and conduced merely to prove his actual knowledge of the suit, without calling upon him to defend it, we are not prepared to admit, that, on general principles, it ought to have such an effect.
But the point actually decided was, that a party might be charged, in an action for mesne profits, who was not, in any sense, a party to the ejectment, by establishing the title against him, and showing his connexion as landlord with the tenant in possession, and his adoption of the acts of the latter.
But, it is said, that assuming the law to be so in general, yet, in the present case, the plaintiffs are estopped from setting up the fact that the defendant was the real landlord, becausej in the ejectment, one J. C. F. Chirac prayed leave of the Court, “ as landlord of the premises, to be made defendant” in the place of the casual ejector, which was, with .the
consent
of the lessee of
the plaintiffs, allowed by the Court. It does not appear to us, tl at any such estoppel arises from this allegation in the record. The record itself cer{ajnjy j0es not constitute a technical estoppel* for it is
res inter alios acta.
The most that can be said is, that it is proper evidence to prove who the plaintiffs at that time deemed to be landlord, and, therefore, admissi le to rebut the presumption that the present defendant was the landlord. But, certainly, the evidence was not conclusive upon either party. It was open to the plaintiffs to show, that, in point of fact, the present defendant was the real landlord,-that the admission ih the record was founded in mistake of the facts, or that J. C. F. Chirac was a sub-landlord under Reinicker, or his superior landlord. What would have been the effect of such proof is not for this Court to determine. We think, then, that the evidence offered by the plaintiffs was admissible upon general principles ; and we see no estoppel which excludes it in this particular case. The directions of the Circuit. Court were, on this point, erroneous.
Plaintiffs not
estopped
by the record in the rejectment suit form setting up the fact that the defendant was the real landlord.
If it had appeared upon the record, that the evidence offered by the plaintiffs was solely to connect the defendant with the ejectment, so that the recovery would be conclusive upon him in the same manner as if he had been a party on the record, and, as such, admitted to defend, and actually defending the suit, the case might have required a very different consideration.. We have already intimated an opinion, that notice of .an ejectment suit, or defence of the suit, by a
person not tenant in possession, or defendant on record, does not make him a party to the suit in contemplation of law, so as to conclude his rights.
Fourth exception.
In considering the fourth and fifth exceptions, it is necessary to advert to the fact, that the plaintiffs in this action originally were Anthony Taurin Chirac, Mathew Chapus and Anna Maria his wife, Mathew Thevenon and Maria his wife, and Mária Bonfils, the same persons having been plaintiffs in the ejectment. During the pendency of the suit the plaintiffs obtained leave to amend .their declaration, and did amend it, by introducing the name of John B. E. Bitarde Desportds, as husband of the said Maria, called, at the commencement of this suit, Maria Bonfils. To this amendment no objection was taken, and the defendant pleaded to the declaration, so amended, the general issue. The evidence of title of John B. Chirac, deceased, being introduced, and, also, evidence to prove that Anthony T. Chirac'and the female plaintiffs were heits at law of John B. Chirac, the defendant then prayed the Court to direct the jury, “ that they ought to find a verdict for the defendant, unless they are satisfied that
all
the plaintiffs are the
proper, heirs
at law of the aforesaid John B. Chirac,” which direction the Court accordingly gave. The probable intention of the defendant was to pray an instruction to the jury, that unless all those of the plaintiffs who claimed to be heirs of John B. Chirac, should establish their title, the suit could not be maintained. In this view, the opinion of
the Court Would be correct, for it is a general rule that no recovery can be had unless all the P^ni;iffs are competent to maintain the suit. If, therefore, the title fails as to one, it is not maintainable in favour of the others. The proof does not, under such circumstances, meet the case set up in the declaration. But, framed as this exception actually is, the direction given by the Court is, in its terms, erroneous. It was not necessary to prove that
all
the plaintiffs are the
proper
heirs at law of. J. B. Chirac. The action was maintainable if the husbands were not the proper heirs of J. B. Chirac ; for, in right of their wives, they were proper parties to the suit. The fourth exception is, thérefore, well taken.
The fifth exception is founded on the supposed variance between <the writ and declaration, by the amendment, introducing the husband of Maria Bonfils .upon the record. The Court held this variance fatal under the general issue. It is observable, that this amendment was made under. an order of the Court, and was not objected to, on ^he record by the defendant; and th&t the general issue was subsequently pleaded. It has been decided, in this Court, that the allowance or disallowance of amendments is not matter, for which a writ of error lies hei;e. Variances the writ and declaration, are, hi general, matters proper for pleas in abatement; and if, in any case, a variance between the writ and declaration can be taken advantage of by the defendant in the Court below, it seems to be an established rule, that it cannot be done except
upon oyer of the original writ, granted in some proper stage of the cause. The existence of such variance forms no matter of controversy upon the general issue, by which the jury are to be governed in forming their verdict. In the present case, as no objection was taken to the amendment upon the record, it must be deemed, to have beén waived by the defendant, and therefore, not proper to be insisted upon at the trial.
It does not appear, on the record, whether Maria Bonfils was married before or pending the suit; and the fact might have a material bearing upon the propriety of granting the amendments, since, at all events, if pending the suit, it would not of itself abate the suit; and the objection could only be made available by a plea in abatement.
Fifth exception.
The mfms ™dtteíf to this court.
Variance between the writ and declareation, how to be taken advantage of. between
Marriage of one of the plaintifffs pending the suit does not, of it self, abate the suite.
Upon the whole, it is the opinion of the Court, that there is error in the directions of the Circuit Court in the four last exceptions, and contained in the record, and for this cause the judgment must be reversed, and a
venire facias de novo awarded.