delivered the following -concurrent opinion. —The last exception urged by the defendant’s counsel is removed by the record -now produced. It seems that the plaintiff read to the jury the copy of the town clerk’s record of the execution and the officer’s return of the levy, and neglected to show the recording in the county clerk’s office, otherwise than by the assertion of the officer -in the body of his return, which could not then be true, for that return could not be recorded before it was completed ready lor record. It seems that the defendant, at the.close of the argument, requested the court to charge the jury that the plaintiff’s title was defective for want of .showing this last recording. The court refused so to charge, because it-was out of time. Probably the county court were conscious that if the objection had been taken when the evidence was adduced, it might have been removed forthwith by the production of the record. It is not necessary now to decide whether the county court were correct in this or not, for, the county court records being now before the-Court for their inspection, the recording is regular. This being, ia-s -was suggested by Mr. J. Prentiss, during the .argument, not ‘a -matter in pais to be submitted to the jury, but a record that is conclusive of the fact to be proved -by it, .there >can be no use in sending .the cause back for another trial. This point is not new. On the trial of the cause, Eljah Paine vs. S. Hathaway et al.* the-plaintiff produced the county clerk’s copy of the execution .and levy,-with a copy of the town clerk’s certificate that he had-recorded the original execution. This was admitted, and exception taken. On a hearing in the Supreme Court, the first term, I was with the Court in Franklin county ; the original, was produced, and- the objection considered thereby .removed.
*191I fully concur in the opinion now delivered upon the other point. It seems the defendant, on trial, attempted to defend by showing the plaintiff’s attachment, and execution and levy, fraudulent and void. It is not now apparent whether the defendant would have added other testimony had he succeeded in showing the plaintiff’s knowledge of the deed to Hardy from Ferguson or not. That would be proper in showing the whole fraudulent, and any other proof in the power of the defendant might have been deficient without this. If the defendant relied upon this knowledge of the plaintiff before his attachment as sufficient of itself to avoid the levy, the question slightly alluded to by the plaintiff’s counsel then arises, whether this alone would avail; for if it was of no avail, it ought not to be admitted. I would not, for one, decide against its sufficiency on so narrow an investigation as the point has now undergone. We know between creditors striving to secure their honest debts, the first in time is first in right. We also know that a purchaser, otherwise bona fide, cannot hold against an unrecorded deed of which he had knowledge at the time of his purchase. I recollect of hearing more than once of a suggestion of the late Chiej Justice Chipman, that an attaching creditor could hold against an unrecorded deed, of which he had knowledge, as well as against another attachment of which he had knowledge that it was pursuing the same property. But I cannot learn that this subject was ever argued before him, or decided by him, or any other court in this state, nor do I recollect of ever reading any thing that would warrant any such decision. And were I to decide without further authorities, I should say, if the plaintiff had knowledge of the deed from Ferguson to Hardy, before his attachment, his attachment could no more prevail against that deed, than could a deed of a later date from Ferguson to the plaintiff, with the like knowledge.
The defendant was deprived of this testimony by the privilege allowed the witness, Story, not to disclose the secrets of his client. And he claimed to have received his knowledge from Ferguson, and to have done whathedid, which is now attempted to be proved, as attorney to him. The extent of the privilege of an attorney in such a case results from the nature of his prolession and business. Every person in difficulty about his intercourse with society occasionally wants advice. In order to obtain this advice, the secrets of the whole transaction must be divulged to the attorney or counsellor. And many need advice in the beginning : how extensive must be their disclosure, before correct advice can be obtained. In every case the heart must be opened to a free and full development of every thing connected with the *192transaction. This perfect confidence is a necessary step towards obtaining correct advice. This development must not be disclosedt0 the injury of the client. It is not the privilege of the attor-ney> hut °f his client, who might be ruined if his attorney could be compelled to testify what was thus revealed to him by his client in the confidence which their relation afforded. Hence the attorney must not be compelled to testify, to the prejudice of his client, what he thus learnt from his client. In all the cases cited the testimony was sought from the attorney to operate against his client. The case in the 9 th of Common Law Reports was a dispute most directly between the creditors generally of the bankrupt, and the creditors who had attached the property. But it also bore upon the bankrupt himself who was the client. The fact wanted to be proved was an act of bankruptcy, which is considered in some sense a crime there. It also might have an effect upon tho after privileges of the bankrupt, if the question were decided one way or the other. The attorney was there compelled to testify to a question asked by his client, which question, under the circumstances attending it, amounted to a disclosure of the intent with which he tarried two hours in the attorney’s office, to wit, to shut himself from his creditors. In one of the cases cited, Ld. Ellenborough, says, the attorney must not testify to the secrets of his client, though the client be not before the court. The reason is, because his client may be prejudiced in some other way.
But here the case seems turned about. The witness was not attorney to the plaintiff, but to Ferguson, the debtor of the plaintiff, and who had before conveyed the premises to Hardy. The defendant, claiming under Hardy, wants to prove that the plaintiff had knowledge of that deed prior to his attachment. The very circumstance that the exemption of the witness is now claimed, while he was only attorney to Ferguson, and not to plaintiff, almost proves a fraudulent connivance of Ferguson to induce the attachment of the plaintiff, and defeat the deed to Hardy. It shows there was something that must be kept secret. And the witness says he was attorney for Ferguson in that business. What business ? What had Ferguson to do with what was going on ? Nothing, unless to be the passive debtor till some suit should be brought that he wished to defend. But Story, when asked if he carried a letter from Ferguson to the plaintiff informing of the deed to Hardy, apd when asked if he himself informed the plaintiff of that deed, claims that what he did in that business, he did as attorney to Ferguson: When we ask what Ferguson had to do with this business that required the advice and assistance of an attorney, who should claim the privilege of concealing the mat*193ter ? Conjecture finds no stopping place short of a fraudulent at-tachmentby the plaintiff, conceived and put in operation by Ferguson himself.
Shaw and Fletcher, for plaintiff. Bell and Cushman, for defendant.But what did the defendant wish to prove that would come within the exemption in any view whatever ? All he wanted to prove was, that the plaintiff knew of Ferguson’s deed to Hardy, before he made his attachment. If the witness knew that the plaintiff possessed this knowledge, there is but one fact I have been able to call to mind that would excuse him from testifying: that is, his receiving that knowledge from the plaintiff himself while acting as his attorney. If the witness had told the plaintiff of that deed, it is of no consequence how the witness came by his knowledge. If the questions proposed to the witness were so broad as to include matters to which he ought not to testify, yet that would not excuse him from testifying to so much as was not within the exemption. His being attorney to Ferguson could never exempt him from testifying that the plaintiff, before his attachment, knew of the deed from Ferguson to Hardy ; that he had such information about it as now proves correct. I fully concur in reversingthejudgmentof the county court, and granting a newtrial,
See 1 Vermont Reports, 101.