If H. was counsel for the plaintiffs at the time of his conversation with M., he would not, without their consent, be allowed to testify to communications made to him during such an interview. The privilege of not being examined to such points as are communicated to him while engaged in his professional capacity, is the privilege of the client and not of the attorney. 1 Phil. Evid. 108; 1 Greenl. Evid., s. 243. It is a rule for the protection of the client, that he may present his case to his counsel in the fullest confidence. If the client waive the privilege, the attorney may testify; otherwise it never ceases. 1 Phil. Evid. 108; 1 Greenl. Evid., s. 243; Bacon v. Frisbie, 80 N.Y. 394; — see, also, notes to same case in 36 Am. Rep. 631-633. As H. testified without objection from the plaintiffs, he might have presumed their consent. Testifying by their consent, he was not open to censure or reproach for so doing, and there was nothing on that account to affect his credibility as a witness. It is claimed that the plaintiffs did not know that H. had been consulted by M., and did not learn the fact until it was drawn out on cross-examination, and therefore that H. had no ground for presuming their consent to his testifying. This would be so if H. knew that the plaintiffs were ignorant of the fact that he had been consulted; but if he did not know it, he might have inferred, from their not objecting, that the plaintiffs were willing he should testify. The instructions on this branch of the case were wrong, and for this reason the verdict must be set aside.
The exceptions to the refusal to instruct, and to the instructions given in regard to the liability of Barron, one of the defendants, are overruled. The case in this respect is similar to Wagner v. Freschl, 56 N.H. 495, and Bank v. Rider, 58 N.H. 512, and is governed by those cases.
New trial granted.
STANLEY, J., did not sit: the others concurred.