HODGES v. MULLIKIN. 509

sale, after he has qualified himself to act, he is allowed no more
than half commissions.(f) Now, in whatever way this payment,
made voluntarily by Harwood to Brewer, may be contemplated;
whether as a solicitor's fee; or on account of forbearing to sell; or
for commissions which the parties themselves, for their own advan-
tage, 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 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;
because 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 any thing 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.(g) 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 information 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 him, or of
any one else. Consequently he also must be considered as a com-
petent 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; bat,
after considering those discordances, and laying aside every thing

(f) Gibson's Case, ante, 138.—(g-) Pow. Mort 588, note N.; Bac. Abr. tit Evi-
dence, A. 3; Clay v. Williams, 2 Mun. 122.