Sargent v. Inhabitants of Hampden

Howard, J. — Public policy, and the better administration of justice require, that the professional intercourse between clients and their legal advisers should be free and unconstrained. And to this end, it is regarded so far confidential and privileged, that attorneys, counselors and solicitors are not obliged, nor permitted to disclose it, without the consent of their clients. The reasons upon which this time honored rule of law is founded, may apply with equal force, where one makes application to counsel for professional services, although the relation of client and attorney, between them, do not, in fact, subsist. As where the latter may not be able to determine, and may not conclude whether to withhold or render his professional aid, until the applicant has disclosed the merits of his case. Then, if he should decline to act professionally in the matter, on account of previous engagements and prior obligations to others, or from necessity or choice, the disclosures and communications thus made should be privileged. As they were committed to him in his professional character, the spirit of the rule would require, that they should not be divulged, without the assent of the party by whom they were made. The protection justly extends to all communications made to legal advisers with a view to obtain professional aid, and in reference to their employment in legal proceedings pending or contemplated, or in any other legitimate professional services. McLellan v. Longfellow, 32 Maine, 494, and cases there cited and noticed. It appears, that the plaintiff applied to a counselor of this Court to act as his attorney in this case, and that his [585] whole conversation with the counselor was with a view to induce him to render professional services, in the prosecution of this suit. The declarations of the plaintiff in that interview, were, therefore, privileged, and were properly excluded. The reasons given by Briggs, one of the plaintiff’s counsel, why the officer should not take the writ for service, on the last of March, or first of April, 1852, formed no part of the transaction to be investigated, and were irrelevant, and were not admissible. And besides, they were, at most, but the declarations of a third person, who was competent to testify in the cause. The reasons why the officer did not take the writ at that time were inadmissible upon the principles stated. The testimony of Knowles, also of counsel for the plaintiff, was properly admitted. It does not appear that he was interested, or liable, in any event of the suit. There was nothing in the records offered by the defendants, affecting the rights of the parties in this suit. The proceedings under the reference were invalid, and the suit upon the award, consequently, failed. Sargent v. Hampden, 29 Maine, 70; Same v. Same, 32 Maine, 78. The instructions on this point were unobjectionable. The time when a writ is made with an intention of service, is deemed the commencement of a suit, in respect to the limitations prescribed by the Revised Statutes, c. 146, §17. In the absence of all evidence to the contrary, a writ is presumed to have been made, when it purports to be dat-. •ed. The defendants’ request was, therefore, properly refused. , The jury were instructed “ that they might determine what damages the plaintiff had sustained, and allow him interest, by way of remuneration for the detention of the amount thus found, if they should consider it reasonable.” The statute under which the plaintiff proceeds, provides for the recovery for injuries to the person or property, suffered through defects in ways, “ the amount of the damage sus [586] tained therebybut not for probable or speculative los», nor for detention of damages, as we apprehend. Damages may be assessed according to the injury sustained; and may in some cases include a sum equal to the interest, for detention. As in trespass for taking and converting goods, the measure of damages is, in general, the value of the property at the time of- the taking, with interest. And so is the measure of damages in actions of irover. But while it is allowable in those and other cases, to include as damages, a sum equal to interest; yet interest is not recoverable, and cannot be added by the jury to the damage which they have found or assessed-. In this case, the plaintiff's claim is restricted, by statute, to “ the amount of the damage sustained” from the injury received, as found by the jury. The instructions on the subject- of damages, as stated in the bill of exceptions, cannot be sustained, to their full extent, and on that ground, and that only, the exceptions are sustained unless the plaintiff will remit a- sum equivalent to the interest. Shepley, C. J., and Tenney and Hathaway, J. J., concurred.