Davis, J.
(after stating the case). The 1st, 2d, 3d and 4th-exceptions may be considered together, as they all rest upon the same general ground.
The endorsements upon the papers, in the handwriting of the plaintiff’s testator, were offered as declarations or admissions in regard to the cotton, for the proceeds of which the defendant insists he was entitled to credit. That the admissions or declarations of a party to a, matter in controvery, in-regard to that matter, whether oral or written, are admissible as against such party, is too plain to be questioned; but it is insisted by counsel for the plaintiff, that there is no evidence that the cotton, or the amount of the proceeds of the-cotton, to which the endorsements related, was to be applied to the notes upon which this action is brought. The endorsements tend very clearly to shew that the cotton and the proceeds of the cotton were received for and on account of the defendant, and that he was to be credited therewith, and
it nowhere appears that the plaintiff’s testator had any other ulaims against the defendant, other than a controverted ■charge for a charge and two other items, aggregating $156.10. In fact, it sufficiently appears from exhibit “ D,” subsequently •offered in evidence by the plaintiff, that the proceeds of the cotton referred to by the endorsements were to be credited by the testator on the notes.
While the exhibit “D” shows that the cotton was to be ■credited on the notes, it in no way tends to relieve the trans.action from the imputation of unfairness, alleged by the defendant, for it then appears that the defendant is wrongfully charged with interest on the two notes ($134+$134= $268) to January 1, 1875; and we find that the endorsements on the notes in January, 1875, instead of showing credit for the full amount of cotton, less the sum of $123.85, applied otherwise in exhibit “D,” it appears that only the sum of $308.69 was applied to each note, making the entire credit ■only $617.38; for the endorsement of the credit for interest ■on the notes is changed by the erasure of 1875 and substituting 1876. It is insisted by the plaintiff that the mistake of 'Writing “ Jan. 3,1875,” instead of “ 1876,” is easily accounted for, by the fact that at the beginning of a year such a mistake as writing the preceding date is not uncommon. But ■this theory is fully met and destroyed by the fact, as appears by the endorsement of the testator, that the cotton was sold in April, November and December, 1874, showing that in this respect exhibit “ D ” was correct. The money received for cotton in April, 1874, should have been credited at that •date. The 1st, 2d, 3d and 4th exceptions of the plaintiff must be overruled.
The 5th, 6th and 7th exceptions relate to the testimony of ■Mr. W. W. Peebles, and may be considered together. It is insisted that Mr. Peebles, having been counsel for the testator in the matters out of which this litigation springs, is not a competent witness to testify in relation thereto.
' Few rules of evidence are better settled, or founded on sounder reason of public policy, than that, whenever the relation of counsel or attorney and client exist, all communications made to the counsel or attorney, on the faith of such relation and in consequence of it, are privileged. And the counsel or attorney, if so disposed, would not be permitted to disclose them. The seal of the law closes his mouth as to them, and can only be removed by the client himself. Without his consent it is perpetual.
This elementary principle is too 'well .established by Greenleaf and other writers upon the law of evidence, and has been sustained by too many adjudications, to need the citation of authorities. In many States of the Union it is regulated by statutory provisions, and in our own State, by statute
(The Code,
§1849), communications to counsel in cases of fraud, where the State is concerned; are not privileged.
To the general rule, as laid down, there are several qualifications : “As where the attorney, having made himself a
subscribing witness,
and thereby assumed another character for the occasion, adopted the duties which it imposes, and became bound to give evidence of all that a subscribing witness can be required to prove.” 1 Greenleaf, § 244. So, what occurred in his presence, though his presence was in consequence of his employment as counsel.
Patton
v.
Moore,
29 N. H., 163. So, where the witness was counsel for both the plaintiff and defendant, as between them the matter was not, in its nature, private and confidential.
Michael
v.
Foil,
100 N. C., 178, and cases cited. So, it has been held by numerous adjudications, the rule does not apply to communications between parties to an agreement made before an attorney, or between such parties and the attorney of one •of them, or, when made by one party to his counsel in the presence of the other party, or when made by one party to the attorney of the other party.
So, while communications made to an attorney employed to prepare a deed would be privileged, yet he may be required to testify as to what transpired at the time of the execution, when all the parties were present, and to prove any fact which then occurred, in relation to the transaction, and still more clearly would he be competent if he were a party to the transaction 1 Greenleaf Ev., § 242. So, the rule does not apply where advice is sought to aid in the violation of the law, but the violation must be an act criminal,
per se,
not simply
malum prohibitum.
But it is insisted that the attorney must determine for himself, as to whether the communication is confidential, and that the Court had no right to inspect the deed (a copy of which is filed as an exhibit, marked “ Y ”). This is a mistake. It is for the Court to determine whether, under the circumstances, the communication is privileged or not, and in order to do so it is competent for the Court to make the preliminary inquiry.
The deed was written by the witness at the same time the notes were written, conveying the property purchased of Copeland to the witness in trust, to secure the payment of the notes, and it refers to a mortgage, executed the same day, and for the same purpose, conveying .the land to Stephenson. The notes and deed were written at the same time. The defendant, Dr. Copeland, from whom the land was purchased by the defendant, and .to pay whom the money was borrowed, the plaintiff’s testator, and others, were present. His Honor “ held that the communications, if any were made .at the time when the notes and deeds were written, were not privileged,'” and in this, we think, there was no error. By the clear and explicit ruling of the Court, the inquiry was limited tó the time when the notes and deed were written, when, as appears from the evidence, the plaintiff’s intestate, the defendant and others were present. But
when the witness said,
“
All I know is what Stephenson said to me before I wrote the deed of trust,” the counsel for the plaintiffs says the Judge “ ought to have' stopped him.”
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Davis, J.
(after stating the case). The 1st, 2d, 3d and 4th-exceptions may be considered together, as they all rest upon the same general ground.
The endorsements upon the papers, in the handwriting of the plaintiff’s testator, were offered as declarations or admissions in regard to the cotton, for the proceeds of which the defendant insists he was entitled to credit. That the admissions or declarations of a party to a, matter in controvery, in-regard to that matter, whether oral or written, are admissible as against such party, is too plain to be questioned; but it is insisted by counsel for the plaintiff, that there is no evidence that the cotton, or the amount of the proceeds of the-cotton, to which the endorsements related, was to be applied to the notes upon which this action is brought. The endorsements tend very clearly to shew that the cotton and the proceeds of the cotton were received for and on account of the defendant, and that he was to be credited therewith, and
it nowhere appears that the plaintiff’s testator had any other ulaims against the defendant, other than a controverted ■charge for a charge and two other items, aggregating $156.10. In fact, it sufficiently appears from exhibit “ D,” subsequently •offered in evidence by the plaintiff, that the proceeds of the cotton referred to by the endorsements were to be credited by the testator on the notes.
While the exhibit “D” shows that the cotton was to be ■credited on the notes, it in no way tends to relieve the trans.action from the imputation of unfairness, alleged by the defendant, for it then appears that the defendant is wrongfully charged with interest on the two notes ($134+$134= $268) to January 1, 1875; and we find that the endorsements on the notes in January, 1875, instead of showing credit for the full amount of cotton, less the sum of $123.85, applied otherwise in exhibit “D,” it appears that only the sum of $308.69 was applied to each note, making the entire credit ■only $617.38; for the endorsement of the credit for interest ■on the notes is changed by the erasure of 1875 and substituting 1876. It is insisted by the plaintiff that the mistake of 'Writing “ Jan. 3,1875,” instead of “ 1876,” is easily accounted for, by the fact that at the beginning of a year such a mistake as writing the preceding date is not uncommon. But ■this theory is fully met and destroyed by the fact, as appears by the endorsement of the testator, that the cotton was sold in April, November and December, 1874, showing that in this respect exhibit “ D ” was correct. The money received for cotton in April, 1874, should have been credited at that •date. The 1st, 2d, 3d and 4th exceptions of the plaintiff must be overruled.
The 5th, 6th and 7th exceptions relate to the testimony of ■Mr. W. W. Peebles, and may be considered together. It is insisted that Mr. Peebles, having been counsel for the testator in the matters out of which this litigation springs, is not a competent witness to testify in relation thereto.
' Few rules of evidence are better settled, or founded on sounder reason of public policy, than that, whenever the relation of counsel or attorney and client exist, all communications made to the counsel or attorney, on the faith of such relation and in consequence of it, are privileged. And the counsel or attorney, if so disposed, would not be permitted to disclose them. The seal of the law closes his mouth as to them, and can only be removed by the client himself. Without his consent it is perpetual.
This elementary principle is too 'well .established by Greenleaf and other writers upon the law of evidence, and has been sustained by too many adjudications, to need the citation of authorities. In many States of the Union it is regulated by statutory provisions, and in our own State, by statute
(The Code,
§1849), communications to counsel in cases of fraud, where the State is concerned; are not privileged.
To the general rule, as laid down, there are several qualifications : “As where the attorney, having made himself a
subscribing witness,
and thereby assumed another character for the occasion, adopted the duties which it imposes, and became bound to give evidence of all that a subscribing witness can be required to prove.” 1 Greenleaf, § 244. So, what occurred in his presence, though his presence was in consequence of his employment as counsel.
Patton
v.
Moore,
29 N. H., 163. So, where the witness was counsel for both the plaintiff and defendant, as between them the matter was not, in its nature, private and confidential.
Michael
v.
Foil,
100 N. C., 178, and cases cited. So, it has been held by numerous adjudications, the rule does not apply to communications between parties to an agreement made before an attorney, or between such parties and the attorney of one •of them, or, when made by one party to his counsel in the presence of the other party, or when made by one party to the attorney of the other party.
So, while communications made to an attorney employed to prepare a deed would be privileged, yet he may be required to testify as to what transpired at the time of the execution, when all the parties were present, and to prove any fact which then occurred, in relation to the transaction, and still more clearly would he be competent if he were a party to the transaction 1 Greenleaf Ev., § 242. So, the rule does not apply where advice is sought to aid in the violation of the law, but the violation must be an act criminal,
per se,
not simply
malum prohibitum.
But it is insisted that the attorney must determine for himself, as to whether the communication is confidential, and that the Court had no right to inspect the deed (a copy of which is filed as an exhibit, marked “ Y ”). This is a mistake. It is for the Court to determine whether, under the circumstances, the communication is privileged or not, and in order to do so it is competent for the Court to make the preliminary inquiry.
The deed was written by the witness at the same time the notes were written, conveying the property purchased of Copeland to the witness in trust, to secure the payment of the notes, and it refers to a mortgage, executed the same day, and for the same purpose, conveying .the land to Stephenson. The notes and deed were written at the same time. The defendant, Dr. Copeland, from whom the land was purchased by the defendant, and .to pay whom the money was borrowed, the plaintiff’s testator, and others, were present. His Honor “ held that the communications, if any were made .at the time when the notes and deeds were written, were not privileged,'” and in this, we think, there was no error. By the clear and explicit ruling of the Court, the inquiry was limited tó the time when the notes and deed were written, when, as appears from the evidence, the plaintiff’s intestate, the defendant and others were present. But
when the witness said,
“
All I know is what Stephenson said to me before I wrote the deed of trust,” the counsel for the plaintiffs says the Judge “ ought to have' stopped him.”
It does not plainly appear, from the record, that what Stephenson said to the witness was “ at the time” when the notes and deed were written, but it must be assumed that it was, and that, in the order of events at that
time,
it preceded the writing of the deed, for otherwise it would not have been within the limit of his Honor's ruling, and it -would .have been the right and the duty of the plaintiff to have objected, and no objection was made.
But we cannot see how the answer of the witness could prejudice the plaintiff, for the facts stated by him are clearly deducible from the face of the notes.
It is said, however, by counsel, “ the evidence of the witness was injurious to the plaintiff, inasmuch as its tendency was to show usury.” If lending money at 12 per cent, interest be usury,'that appeárs upon the face of the note, and certainly the evidence of the witness cannot show it more plainly.
It is further objected that the consideration of the bonds-cannot be inquired into. Under the present system, in which law and equity may be blended in an action, fraud or mistake in the consideration may be shown; and while fraud-in the
factum
might have the effect to avoid the bond altogether, fraud o.r mistake in the consideration, so far as the consideration was legal, would not have that effect.
There was no error in overruling the 5th, 6th and 7th. exceptions.
The 8th exception relates to the exclusion of the evidence in regard to the offer of $370 as a compromise. There was-no error in this. A proposition to compromise, not acceded to, leaves the rights of the parties precisely as they were-
before the proposition was made.
Poteat
v.
Badget,
4 D. & B., 209;
Sutton
v.
Robeson,
9 Ired., 380. But counsel for the plaintiff says this was not an offer of compromise. We think it is manifest, from what occurred, that it could admit of no other construction.
The 9th exception is to the admission of the deposition of the plaintiff. This exception was not pressed before us, and we can see no ground upon which it can be sustained.
The 10th and 11th exceptions relate to the competency of the defendant to testify, under § 590 of
The Code,
in relation to the matters involved in the question.
As to the 10th, the plaintiff himself had testified in relation to the same transaction, and it is quite clear that the 11th related to no transaction or communication between the witness and the deceased. It was a fact in no way involving such a communication or transaction.
Lockhart
v.
Bell,
86 N. C., 443, and cases cited.
The 12th exception is to the refusal of his Honor to refer the action to a referee upon the request of the plaintiff, made after all the evidence was in. Whatever may have been the discretionary power of the Court, to order or refuse a compulsory reference, if the application had been made in proper time, there was no error in refusing it afier the close of the evidence.
The 3d and 4th issues were clearly presented by the answer and reply, and the exception 12J cannot be sustained.
The 13th exception is to the refusal of his Honor to instruct the jury, that there is no statute of usury applicable to the notes declared on.
When the notes were executed, ch. 24/ Acts 1866 (Battle’s Revisal, ch. 114), in regard to usury, was in force. That act fixed the rate of interest at 6 per cent., “ and no more,” unless for money loaned, for which 8 per cent, might be charged, if specified in the contract; “ and if any person shall agree to
take a greater rate of interest, * * * the interest shall not be recoverable at law.” The penalty for usury was a forfeiture of all interest.
Coble
v.
Shoffner,
75 N. C., 42.
It is insisted by the plaintiff that the act of 1866 was repealed by the penal statute of 1874-75, which, in its turn, it is insisted, was repealed by the act of 1876-77 (Code, §§ 3835, 3836), and the argument of the learned counsel is, that “ usury laws are the creatures of statutes, and when there are none the matter is at common law and a question of contract, and the stipulated rate can be recovered. The penal provisions of usury laws are the only prohibition of this, and where they are repealed there is no obstacle. The Judge erred when- he charged the jury that the plaintiff could only recover 6 per cent, interest. The establisment of 6 per cent, as the lawful rate, without a penalty for violation of the law, would mean simply that that should be the rate when no other was expressed. It would not prevent the recovery of any amount or rate stipulated to.be paid. To prescribe a legal rate without a means of compelling men to observe the law, would be of no avail as a preventive of usury.”
, It would, perhaps, be as correct to say that interest is the creature of statute, and usury has been unlawful from the days of Moses.
The act 1875, sec. 4, declares that it shall not apply to existing contracts, and repealed only laws in conflict with it. The act of 1877 is “ substituted ” for the act of 1875, and, so far as the rate of interest allowed, is the same as that of 1866, and there has never been a repeal of the law limiting the rate of interest. Neither by the language of the acts of 1875 and of 1877, nor by implication, can such effect be given to them.
Jones
v.
Ins. Co.,
88 N. C., 499 ;
Brinkley
v.
Swicegood,
65 N. C., 626 ;
State
v.
Woodside,
9 Ired., 496 ;
State
v.
Melton,
Busb., 49. We believe there has never been a day
in North Carolina, since long before it was a State, that it was lawful to take a greater rate of interest than
six per cent.,
or
eight per cent,
when stipulated, and the law would be treacherous to itself if it were to allow the enforcement of forbidden usurious contracts because no penalty was attached.
This case is easily distinguished from
Ewell
v.
Dagg,
108 U. S., 150, and similar cases. Neither of the statutes in this State authorized a greater rate of interest than that of 1866, whether by contract or otherwise. The numerous cases cited by counsel, in regard to the effect of repealing statutes, have no application to the case before us. When the contract was made it was unlawful to charge a greater rate of interest than six per cent., or eight for money loaned, when stipulated in the contract, and the penalty was a forfeiture of all interest. The effect of the act of 1876-7 was to relieve against the penalty. It could not have the retroactive effect to make the contract for usury lawful. The money loaned, with legal interest, can be collected, because the penalty (forfeiture of interest) is repealed; but it does not make that lawful and enforceable which was not lawful at the time. It was lawful to take six per cent, with or without contract. Such an interpretation of the legislative will would do violence to legislative history upon the subject of usury. The language of the statute gives it no such retroactive effect, and we cannot give it by any fair construction. The repeal of a statute which makes an act unlawful, or forbids a contract in relation thereto, cannot make the act lawful or validate the contract.
Pucket
v.
Alexander, ante,
95.
The 14th exception cannot be sustained. There is no evidence tending to show that the defendant paid Dr. Copeland $3,000, and that he borrowed $1,000 from Mr. Coke and balance from plaintiff’s testator. It also appears upon the face of the notes that they were payable January 3, 1875, with interest at twelve per cent, from that date. Exhibit “D” shows
that twelve per cent, was charged on the 1st of January, 1875, on the whole amount. This also disposes of exception to His Honor's charge, numbered 19.
Exceptions 15, 16, 17, 21, 22, 23, 24 and 25 relate to instructions asked and refused, and to instructions given and excepted tó, and may be considered together.
It was in evidence that the defendant is an illiterate man; that he cannot read and write; that he was confiding, relying implicitly on those who gained his confidence; that he delivered a considerable quantity of cotton to, or for, the plaintiff’s testator, “and relied entirely on Stephenson’s statements.” It does not appear that the notes or mortgage and deed of trust were read over' to him ; in fact it pretty clearly appears that they were not, and it does not appear that their contents were explained to him, or that he had any knowledge of their contents. It appears from the testimony of Mr Rogers, which bears upon its face evidence of fairness and candor, that he suggested that, in the event of death of the parties, the defendant would have nothing to show for certain credits; whereupon the testator took out two papers, which he said were the notes, and endorsed something on them. He further said that, if the face of the notes had been shown to him, he would have seen that interest was charged for one year before it was due, as appeared in statement “ D.” This was in January, 1875.
Upon a review of the evidence, we think there was no error in refusing the instructions asked, or in giving those excepted to.
The 18th and 20th exceptions relate to his Honor’s charge in respect to interest. As we have already seen, the defendant was chargeable with interest at 6
per
cent.; and there was no error in his Honor’s instructions upon this question.
The 26th exception relates to the instruction in regard to the valué of the cotton. We can conceive of no possible objec
tion to the rule for ascertaining the value of the cotton as laid down by his Honor.
The 27th exception is to the refusal of the Court to exclude from the verdict the sums named, paid by Boone to plaintiff. The issues were fairly submitted to the jury, and if by mistake the defendant has paid more than the notes and legal interest, we are unable to see why the sums named should not be excluded.
There is no error. • Affirmed.