480 HODGES v. MULLIKIN.—1 BLAND.

from making * sale, after he has qualified himself to act, he
509 is allowed no more than half commissions. Gibson's Case,
ante, 138. Now, in whatever way this payment, made voluntarily
by Harwood to Brewer, may be contemplated; whether as a solici-
tor's fee; or on an account of forbearing to sell; or for commissions
which the parties themselves, for their own advantage, prevented
him from earning, I do not see how any decision, which I may
now pronounce, can lay a foundation for making Brewer refund
this money; or to give to any one a better ground for demanding
it of him than now exists. I am therefore of opinion, that he is a
competent witness.

The witness John Johnson, it is objected, is not competent; be-
cause he acquired a knowledge of the facts about which he is
called on to speak as an attorney. I take it to be well established,
that an attorney or solicitor is at no time, either before or after
the termination of the suit in which he was retained, authorized,
without the consent of his client, to disclose anything his client
has communicated to him. This, however, is a privilege of the
client, not of the attorney. And if the client be no party to the
matter then in controversy so as to be able to communicate an
express or tacit relinquishment of his privilege, the lips of his
attorney must remain closed; and the Court cannot allow him to
speak of that which the policy of the law has prohibited him from
disclosing. Pow. Mort. 588, note N; Bac. Air. tit. Evidence, A 3;
Clay v. Williams, 2 Mun. 122. This is a controversy, according to
the order of the 27th of August last, between this petitioner and
the plaintiff; therefore, if this witness had obtained his informa-
tion as the attorney of the defendant Harwood, he could not now
be heard; because Harwood is not here, as regards the present
controversy, to waive his privilege, even if he were willing to do
so. But the witness positively avers, that he could not and did
not act as the attorney of Harwood; and that a knowledge of none
of the facts, of which he speaks, was obtained as the attorney of
of him, or of any one else. Consequently he also must be con-
sidered as a competent witness.

Having thus disposed of the several preliminary questions, we
may now sum up the facts and consider this application upon its
merits. There is some contrariety in the particulars as they are
related by the petition, and the depositions of the witnesses; but,
after considering those discordances, and laying aside everything
* not materially bearing upon the question to be decided,
510 the case appears to be this:

The defendant Thomas Harwood had conveyed his property to
secure the payment of his debts to the extent, and in the manner
set forth by his two deeds of the 7th of April and 11th September,
1810. After which the plaintiff Hodges filed his bill as mortgagee
to obtain the benefit of the deed of the 11th of September; setting