Thompson r. Kilborne.

for that year, and it was conceded by the plaintiff that the hops were drawn by the defendant, and payment made for the use of the hop-house, as the defendant claimed.

The plaintiff's counsel claimed, and requested the court to charge the jury, that if they found that such a contract was made between the plaintiff and the defendant in 1846, whereby the plaintiff consented that said hop-house should not be erected that year, still that could not be made available as a defense to the plaintiff's claim, because such defense was not admissible under the defendant's pleas. But the court declined so to charge, but charged that if they found that the plaintiff consented that said hophouse should not be built in 1846, it was an answer to the plaintiff's claim in that respect. To the refusal to charge as requested and to the charge as given the plaintiff excepted.

Cooper & Bartlett for the plaintiff.

The interview between Thompson and Johnson was evidently professional.

That they had an interview Johnson is sure, but what was said he cannot tell, further than he says the result sought was apparent, and he is able to tell what it was, but cannot repeat a word said by Thompson.

This deposition should be excluded, because it was a confidential communication between attorney and client.

The conversation was something besides a casual one, and because Johnson did not charge, it does not make it any the less confidential. That it was an interview between these parties when professional advice was sought, is certain, and it was so understood by both. That should be confidential, and is so. 2 Starkie on

Ev. 375.

The defendant, having plead a performance of his covenant to build a hop-house, was not entitled, under that plea, to show an excuse for non-performance. Such excuse should have been plead.

J. H. Prentiss and Peck & Colby for the defendant.

I. To characterize the communication testified to by Johnson as a privileged one, there must have been, at the time, a retainer, or at least an action threatened, or a preparation for a suit, or some

Thompson . Kilborne.

act or avowal by the party to indicate the relation which he understood to subsist between himself and the attorney; Dixon v. Parmelee, 2 Vt. 188; Wetherbee et al. v. Ezekiel, 25 Vt. 47.

The authorities are that a general retainer is not sufficient to protect communications had on a subject which afterwards gives rise to a suit; 2 Stark. Ev. 230-231. The rule does not extend to communications made to an attorney if he was not employed as such, nor prohibit a disclosure of privileged communications by a third person who accidentally overhears the conversation, for it is owing to the negligence of the client himself; 2 Stark. Ev. 229; 4 T. R. 753.

The same reason should apply to this case. There being no action pending when the conversation was had, none threatened, no retainer, if the plaintiff meant or desired to repress a disclosure it is his negligence and fault that he did not, at the time, guard it by some injunction, or, at least, an intimation of confidence.

2. The second count in the declaration sets forth that the defendant covenanted "to furnish the necessary kiln, dry-house, press and storage for the purpose of preparing said hops for market," and the averment of breach is, that the defendant "did not furnish a suitable and proper dry-house, kiln, &c., in which to secure the hops raised on said hop-yard," &c. The answer of the defendant, in his second plea, is, in the language of the contract, that he "did prepare and have ready for the use of said hop-yard, convenient thereto, a suitable and convenient kiln or dry-house, and press, for the drying and pressing of such hops as might be raised on said hopyard; and the said dry-house and press were, in every particular, prepared ready for use when the same was required for the purposes aforesaid." And the defendant, in his fourth plea, says that he did "furnish a suitable and proper dry-house," &c., "in which to secure the hops raised upon said hop-yard, according to the true intent and meaning of the said writing obligatory, and to the full satisfaction of the said plaintiff." All that can be demanded of the defendant, under the pleadings, is, to show that the house was prepared and ready for use when it was required for the purposes contemplated in the contract. The agreeement and concurrent admission of the parties should be the best and conclusive evidence that it was not required in 1845. These were treated as such evidence

Thompson v. Kilborne.

by the plaintiff, in relation to that year. The jury found that a similar agreement, and a like concurrent admission, was made by the parties in 1846, concerning the house for that year.

The proof is that the defendant did provide a suitable dry-house, &c., in 1846, viz., the one owned by the plaintiff. The contract does not require, nor do the pleadings claim, that he was bound to build a dry-house, at any time, or under any circumstances, or that a dry-house was required to be on the defendant's land, or that the plaintiff's house, which was used in 1846, was not convenient to the defendant's hop-field.

The opinion of the court was delivered by

REDFIELD, CH. J. I. The first question made in the present case is, whether the plaintiff's communication to Johnson was under the confidence of the relation of counsel and client. It seems to us not to be of that character. There was no retainer, and nothing to show that the plaintiff sought the advice with any view to regulate his future conduct, in regard to a pending or expected litigation. And, had any retainer been charged, there is every reason to believe the plaintiff could justly have resisted the claim, upon the facts stated by Johnson. And, had Johnson, the next hour, received an application for counsel, and retainer, upon the other side, no one can question his being at full liberty to engage.

This anomolous relation testified to in the deposition, and which seems so much to puzzle Johnson, and which he so justly deprecates, certainly grows out of a too common facility, upon the part of the profession, in this state, to undervalue their professional and official character, as sworn officers of the highest judicial tribunal in the state. The practice of giving advice, upon legal subjects, without study and examination, and without corresponding pay, and a distinct retainer, is certainly a vicious one. The practice of the profession of giving street advice misleads the general opinion in regard to the value and dependence upon such advice. It would no doubt be better for the profession, and their clients both, if all professional advice, in regard to the prosecution and defense of claims, were given in writing, as it is in many places, and both parties are thereby put under the proper responsibility in regard to it, the one to pay for it, and the other to make it hold good, or to

Thompson v. Kilborne.

show, at least, that it was not notoriously bad. But, at all events, we cannot regard a conversation of this loose and indefinite character as entitled to the protection of professional confidence.

II. In regard to the question, whether the evidence, on the part of the defendant, tended to support the issue, we have had more doubt. But it is obvious the defendant would not only be entitled to give evidence coming fairly within the terms of the issue, as closed upon the record, but also such testimony as came within the construction of the issue which the plaintiff had induced the county court to adopt.

The declaration upon this part of the case is, that the defendant covenanted to "furnish the necessary kiln, dry-house, &c., for the of preparing the hops for the market." And the breach purpose assigned is, that he "did not furnish a proper and suitable dryhouse, kiln, &c., in which to secure the hops."

The plea to this part of the declaration is, that the defendant "did prepare"-"a suitable and convenient kiln and dry-house, and that it was prepared and ready for use," when "required for the purpose" of securing the crop, &c. 2. That he did prepare, &c., "according to the true intent and meaning of the said contract, and to the full satisfaction of the plaintiff."

66

The words of the contract are, to prepare a suitable and convenient kiln or dry-house, to be prepared and ready for use, when the same shall be required."

the

The substance of the evidence offered and received upon trial, and which it is claimed did not come within the issue, was, that the plaintiff, in 1846, directed the defendant not to build the dry-house that season, and consented to have his own dry-house used for that purpose, and that the defendant drew the hops to the plaintiff's dry-house, and paid him for the use of it, and the plaintiff made no objection, but assented fully to this arrangement. It is furThis seems to us to meet the issue upon both pleas. nishing the dry-house as soon as required for the purposes of the contract, and also to the satisfaction of the plaintiff, either of which would be sufficient.

If this were a plea of performance generally, and the proof of a dispensation with performance, it might merit a different consideration. The plea is only of a qualified performance, or perform

Richardson v. Hitchcock.

ance to the plaintiff's acceptance, and the proof is that very thing. If the dry-house had never been built, but the plaintiff had consented to have the kiln drying done at his own kiln, and received pay for the use of his kiln, and made no objection, it would be furnishing a kiln to his satisfaction.

Judgment affirmed.

HENRY RICHARDSON v. MEDAD HITCHCOCK.

Evidence. Intervening damages in an action upon a recognizance for an appeal.

In an action upon the recognizance, entered into by a third person for the appeal of a defendant from the judgment of a justice against him, the fact that such defendant, about the time of his appeal, gave in his list for property to a certain amount, is admissible as tending to show that he then had that amount of property.

The opinion of a witness in reference to the solvency of a person may be given in connection with the facts on which such opinion is grounded.

For the purpose of showing the insolvency of the defendant before the rendition of a final judgment against him, it may be shown that soon thereafter he was admitted to, and took the poor debtor's oath, before the jail commissioners, upon an execution in favor of a third person.

This may be shown by parol, the jail commissioners not being regarded as a court of record; and, for the mere purpose of showing the defendant's insolvency, it is immaterial whether a certificate, properly signed, was left with the jailor or not.

If a defendant, whose body is liable to be taken on execution, has, at the time of the rendition of a justice's judgment against him from which he appeals, property which would prevent him from taking the poor debtor's oath so that the plaintiff might, by an imprisonment of the defendant's body, obtain payment of his debt, and, between that time and the rendition of a final judgment on the appeal, he so disposes of the property that he is then enabled to swear out, the plaintiff would be entitled to recover, in an action on the recognizance for the appeal, the damages thus sustained in being deprived of the opportunity of so collecting the debt, although the property which the defendant owned at the time of the appeal was without, and beyond the reach of the process of this state.

SCIRE FACIAS upon a recognizance for an appeal, by one Jacob Stebbins, from a judgment recovered before a justice in favor of the plaintiff. The defendant pleaded a tender of the additional