elements that are predicated in every waiver, i. e. not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his immunity shall cease, whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point, his election must remain final. As a fair canon of decision, the following distinctions may be suggested:

(1) The client's offer of his own testimony in the cause at large is not a waiver, for the purpose either of cross-examining him to the communications or of calling the attorney to prove them; otherwise the privilege of consultation would be exercised only at the penalty of closing the client's own mouth on the stand. (2) The client's offer of the attorney's testimony in the cause at large is not a waiver so far as the attorney's knowledge has been acquired casually as an ordinary witness; but otherwise it is a waiver; for, considering that the attorney ought in general not to be used as a witness (ante, § 1911), the client ought to be discouraged from utilizing his attorney in double and inconsistent capacities, and if he has seen fit to furnish him knowledge as a witness, he should deny himself the right to invoke the attorney's function as an adviser. (3) The client's offer of his own testimony as to specific facts about which he has happened to communicate with

to her attorney, held not a waiver for the whole consultation); 1897, Takamori v. Kanai, 11 Haw. 1 (malicious prosecution; advice of counsel as furnishing probable cause; the client's calling the counsel, held a waiver); 1873, Bigler v. Reyher, 43 Ind. 112 (the client's taking the stand, held not to be a waiver, for the purpose either of calling the attorney or of cross-examining the client); 1873, Oliver v. Pate, ib. 132, 142 (similar; but voluntary testimony to the communication is a waiver, permitting the attorney to be called); 1874, Barker v. Kuhn, 38 Ia. 392, 395, semble (like State v. White, Kan., infra); 1877, State v. White, 19 Kan. 445, 447 (the client's taking the stand is not in itself a waiver of the privilege); 1878, Wilkins v. Moore, 20 id. 538, 540 (same); 1869, Woburn v. Henshaw, 101 Mass. 193, 200 ("If the client sees fit to be a witness, he makes himself liable to full cross-examination like any other witness"); 1874, Montgomery v. Pickering, 116 Mass. 227, 231, 237 (calling the attorney is not in itself a waiver of the privilege; nor is the client's own testimony); 1892, Blount v. Kimpton, 155 id. 378, 29 N. E. 590 (same, on the first point); 1857, Alderman v. People, 4 Mich. 414, 423 (accomplice taking the stand for the State under promise of immunity waives his privilege; "he should be allowed no privileged communications; these he has voluntarily surrendered "); 1889, People v. Gallagher, 75 id. 512, 515, 42 N. W. 1063 (an accomplice, testifying for the State, waives

"all privilege as regards the crime in ques-
tion"); 1890, State v. Tall, 43 Minn. 276, 45
N. W. 449 (the client's testimony to a specific
fact is a waiver of the privilege as to the com-
munication of that fact to his attorney); 1888,
Jones v. State, 65 Miss. 179, 3 So. 379 (taking
the stand is not in general a waiver; but here
an accomplice, who had become State's evidence,
was held to have waived and to be subject to
cross-examination to his statements to counsel);
1860, King v. Barrett, 11 Oh. St. 261, 263
(Code applied; in a civil case the client's vol-
untary testimony is a waiver of the privilege
on the same subject); 1877, Duttenhofer v.
State, 34 id. 91 (in a criminal case the accused's ·
voluntary testimony is not a waiver; the Code
provision not being applicable to criminal cases);
1888, Hunt v. Blackburn, 128 U. S. 464, 470,
9 Sup. 125 (privilege held waived by "entering
upon a line of defence which involved what
transpired between herself and Mr. W. [the at-
torney]"); 1871, Chahoon v. Com., 21 Gratt.
822, 835 (one of three joint defendants, by tak-
ing the stand at the instance of the State and
testifying to a communication between counsel
and another defendant, held not to waive the
privilege by implication); 1881, Tate v. Tate,
75 Va. 522, 533 (the client's testimony, not re-
lating to the "privileged matter," held not a
waiver, even where on cross-examination the
communications were testified to).

the attorney is not a waiver, for the same reason as in (1), supra; but his offer of the attorney's testimony as to such specific facts is a waiver, for the same reason as in (2), supra. (4) The client's offer of his own or the attorney's testimony as to a specific communication to the attorney is a waiver as to all other communications to the attorney; for the privilege of secret consultation is intended only as an incidental means of defence, and not as an independent means of attack, and to use it in the latter character is to abandon it in the former. (5) The client's offer of his own or the attorney's testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication, on the analogy of the principle of Completeness (ante, § 2113).

§ 2328. Waiver by Joint Clients, Agents, Assignees. A waiver at one stage of a trial should be final for all further stages;1 and a waiver at a first trial should suffice as a waiver for a later trial, since there is no longer any reason for preserving secrecy. Where the consultation was had by several clients jointly, the waiver should be joint for joint statements, and neither could waive for the disclosure of the other's statements; yet neither should be able to obstruct the other in the disclosure of the latter's own statements.2 Where the consultation was had by an agent of the client, it is ordinarily the client alone who may waive; 3 but it has been already noticed that for certain extrajudicial purposes the attorney himself must be regarded as authorized to waive secrecy on behalf of his client (ante, § 2325). Where the client's interest has been assigned, it seems proper to say that the privilege is transferred to the assignee, for the purpose of waiver, so far as the communications affect merely the realization of the transferred interest; but it remains with the client so far as they affect any liability or right remaining in him.4

That an execu

§ 2329. Waiver by a Deceased Client's Representative. tor or administrator may exercise authority over all the interests of the estate left by the client, and yet may not incidentally have the right, in the interest of that estate, to waive the privilege of concealing confidential communications affecting it, would seem too inconsistent to be maintained. under any system of law. It has, indeed, seldom been maintained for the present privilege; but the denial of this waiver in another field, by some

11902, Green v. Crapo, 181 Mass. 55, 62 N. E. 956 (waiver for a hearing before the Probate Court prevents claim of privilege on a hearing before a Supreme Court justice).

2 There are few rulings: 1848, Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 596 ("Where the privilege belongs to several clients, I do not think any one of them, or even a majority, contrary to the expressed will of the others, can waive the privilege"); 1871, Chahoon v. Com., 21 Gratt. 822, 835 (C. J. S., and R. S., being jointly indicted for conspiracy, met for consultation with counsel; each had a counsel, but C.'s was absent; L. was counsel for R. S.; at the trial, R. S. having testified to a statement of C. at the meeting, C. called L. to testify to C.'s statement;

but L. claimed the privilege; held, that L. could not testify without a waiver by all three, J. S. having in fact made no waiver; this seems unsound).

3 1891, Bingham v. Walk, 128 Ind. 164, 27 N. E. 483 (here the agent was deceased).

The few rulings on this point do not take this distinction: 1831, Bowman v. Norton, 5 C. & P. 177 (similar facts to Merle v. Moore, § 2321, supra; Tindal, C. J., would not allow the assignees, as such, to waive the privilege on the bankrupt's behalf); 1838, Benjamin v. Coventry, 19 Wend. 353 (waiver may be by the client A, even though by assignment A's interest in the cause has passed to B; Bronson, J., diss.).

Courts (post, § 2391), demands here the more emphatic repudiation of such a fallacy :

1851, Turner, V. C., in Russell v. Jackson, 9 Hare 387, 393: "In the cases of testamentary dispositions, the very foundation on which the rule proceeds seems to be wanting; and in the absence, therefore, of any illegal purpose entertained by the testator, there does not appear to be any ground for applying it. . . . That the privilege does not in all cases terminate with the death of the party, I entertain no doubt. That it belongs equally to parties claiming under the client as against parties claiming adversely to him, I entertain as little doubt; but it does not, I think, therefore follow that it belongs to the executor as against the next of kin, and in such a case as the present. In the one case the question is whether the property belongs to the client or his estate, and the rule may well apply for the protection of the client's interests. In the other case the question is to which of two parties claiming under the client the property in equity belongs, and it would seem to be a mere arbitrary rule to hold that it belongs to one of them, rather than to the other."

1889, Collins, J., in Layman's Will, 40 Minn. 372, 42 N. W. 286: "There is an abundance of authority for saying that, upon the decease of the only person who could, in his life-time, exercise the privilege of waiver, the rule should not be so perverted by a strict adherence to it as to render it inconsistent with its objects, and thus bring it into direct conflict with the reason upon which it is founded. The object of the rule, so far as it relates to this class of communications, being the protection of the estate, there remains no reason for continuing it when the very foundation upon which it proceeds is wanting. The testimony called for was quite necessary in order to determine the weight which ought to be given the witness' opinion as to the mental condition of the testator, and his disclosures in no way reflected upon the character or reputation of the deceased. The testimony when given served to protect the estate, and tended to aid in a proper disposition of it. The issue in the case was as to the mental soundness of a person under whom each litigant claimed, and, whatever the result, the interest and the estate of the deceased were not prejudicially affected. It is not an action in which the success of an adverse third party must prove detrimental to the property. Neither of these litigants can be permitted to invoke the rule respecting privileged communications for the purpose of excluding material and important evidence of the character above described upon the only question involved in the dispute, namely, the sanity of the deceased."

1900, Barker, J., in Brooks v. Holden, 175 Mass. 137, 55 N. E. 802: "To allow the executor or administrator of the deceased client to waive the privilege, and to call the attorney to testify as to a privileged communication, in a suit involving the client's estate, no more militates against the principle of public policy involved, than to allow the client himself to waive the privilege. Nor does it tend to weaken the protection which the rule gives for the benefit of the client as an individual. The executor or administrator acts with reference to the question of waiver as the personal representative of the deceased client, and solely in the interest of his estate."

This view is accepted with practical unanimity. It is further generally agreed that in testamentary contests the privilege is divisible, and may be waived by the executor, the administrator, the heir, the next of kin, or the legatee.1

1 Eng. 1849, Doe v. Hertford, 13 Jur. 632 (waiver by heir and executors, against third persons, held proper, per Erie, J.); 1851, Russell v. Jackson, 9 Hare 387, 392 (in a contest between the next of kin and devisees, the privilege was held to belong to neither as against the other; quoted supra); 1838, Greenlaw v. King, 1 Beav. 137, 145, semble, per Lord Langdale, M. R. (waiver by the executor, allowable);

Can. 1893, Magee v. R., 3 Exch. Can. 304, 327 (he must disclose "all that passed at the time relating to such execution"); U. S.: 1865, Fossler v. Schriber, 38 Ill. 173 (the "only heir" of the client, held competent to waive the privilege; and even if there were other heirs not parties, "the Court would presume their concur. rence"); 1885, Scott v. Harris, 113 id. 447, 454, semble (in a controversy between legatees and

TOPIC B (continued): PRIVILEGED COMMUNICATIONS.
SUB-TOPIC III: COMMUNICATIONS BETWEEN HUSBAND AND WIFE.
CHAPTER LXXXI.

1. In general.

§ 2332. Policy of the Privilege.

2333. History of the Privilege.

§ 2334. Marital Disqualification and AntiMarital Privilege, distinguished; Statutory Enactments.

2. Scope of the Testimony Privileged. § 2336. Knowledge obtained in Confidence, Express or Implied.

2337. Communications, not Acts.
§ 2338. Exceptions and Distinctions.

3. Persons Prohibited and Entitled.
§ 2339. Third Persons Overhearing; Docu-
ments obtained by Third Persons.

§ 2340. Who may Claim the Privilege; Waiver.

4. Cessation of the Privilege.

§ 2341. Death; Divorce; Separation; Invalid Marriage.

1. In general.

§ 2332. Policy of the Privilege. The policy which should lie at the foundation of every rule of privileged communications (ante, § 2285) is amply satisfied in the present privilege. The communications originate in confidence; the confidence is essential to the relation; the relation is a proper object of encouragement by the law; and the injury that would inure to it by disclosure is probably greater than the benefit that would result in the judicial investigation of truth. There seems therefore to be no reason for objecting to the recognition of the present privilege:

1853, Commissioners on Common Law Procedure, Second Report, 13: "The question how far communications of married persons inter se should be matter of testimony in courts of justice stands on a very different ground [from that of compelling one to testify to facts against the other]. So much of the happiness of human life may fairly be said to depend on the inviolability of domestic confidence that the alarm and unhappiness occasioned to society by invading its sanctity and compelling the public disclosure of confidential communications between husband and wife would be a far greater evil than the disadvantage which may occasionally arise from the loss of light which such revelations might throw on questions in dispute. [Hence,] all communications between them should be held to be privileged."

1871, Freeman, J., in State v. McAuley, 4 Heisk. 424, 432: “If this could be permitted, it would tend to destroy that bond of mutual confidence and unquestioning trust that is essential to the peace and happiness of the most sacred of all domestic relations. No man would be willing to have his wife called on in a court of justice to detail the facts of which she gains a knowledge by reason of the fact that she is the companion of his privacy and has unlimited freedom of access to all the occurrences that transpire in his home and around the fireside."

1898, Taylor, C. J., in Mercer v. State, 40 Fla. 216, 24 So. 154: "Society has a deeplyrooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore the law places the ban of its prohibition upon any breach of the confidence between husband and wife, by declaring all confidential communications between