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United States Supreme Court

24 U.S. 280

Chirac  v.  Reinicker

ERROR to the Circuit Court of Maryland.

This was an action of trespass for mesne profits, brought by the plaintiffs in error, Chirac and others, against the defendant in error, Reinicker, in the Court below. The plaintiffs had recovered judgment, and possession of the premises, in an ejectment, in which one C. J. F. Chirac prayed leave of the Court, as landlord of the premises, to be made defendant in the place of the casual ejector, and was admitted accordingly under the common consent rule. At the trial of the present suit, the record of the proceedings in the ejectment were offered by the plaintiffs as evidence to maintain this action; and they then offered to prove, by the testimony of R. G. Harper, and N. Dorsey, esquires, that the defendant had retained, and paid them, to conduct the defence of the ejectment for his benefit, and also propounded to these witnesses the following question: Were you retained, at any time, as attorney or counsel, to conduct the ejectment suit above mentioned, on the part of the defendant, for his benefit, as landlord of those premises? This question was objected to by the defendant's counsel, as seeking an improper disclosure of professional confidence; and was rejected by the Court. Whereupon the plaintiffs excepted.

The plaintiffs then gave in evidence certain deeds and patents, by which, and the admissions of counsel on both sides, the title to the premises in question was vested in John B. Chirac, deceased; and also read in evidence certain depositions to prove who were the heirs of J. B. Chirac; and also offered the record in the ejectment to prove Maria Bonfils to be one of the heirs, and then offered to prove, by parol evidence, that the defendant was, in fact, landlord of the premises at the commencement, and during the progress of the ejectment, and had notice of the same, and retained counsel to defend the same, and received the rents and profits thereof during its progress; which last mentioned evidence the Court refused to admit; and the plaintiffs excepted to the refusal.

The plaintiffs then offered to prove the same facts, (not saying by parol evidence,) with the additional fact that counsel did defend the same action for the benefit of the defendant. This evidence was also rejected by the Court, and constituted the third exception of the plaintiffs.

The fourth exception taken by the plaintiffs, related to the proper parties to the action. The original plaintiffs in the suit were Anthony Taurin Chirac, Mathew Chapus, and Anna Maria his wife, Mathew Thevenon and Maria his wife, and Maria Bonfils, the same persons having been plaintiffs in the ejectment. Pending the suit, the plaintiffs obtained leave to amend their declaration, and amended it, by introducing the name of John B. E. Bitarde Desportes, as husband of the said Maria, called, at the commencement of this suit, Maria Bonfils. No objection was taken to this amendment, and the defendant pleaded the general issue to the declaration so amended. The evidence of title of John B. Chirac, decesed, having been introduced, and, also, evidence to prove that Anthony T. Chirac, and the female plaintiffs, were heirs at law of John B. Chirac, the defendant prayed the Court to instruct the jury, that they ought to find a verdict for the defendant, unless they were satisfied that all the plaintiffs were the proper heirs at law of John B. Chirac; which direction the Court accordingly gave.

The fifth exception related to the supposed variance between the writ and declaration, by the amendment, introducing the husband of Maria Bonfils as a party upon the record. The Court held the variance fatal under the general issue. Feb. 11th.

Mr. D. Hoffman, and Mr. Mayer, for the plaintiffs in error, argued, 1. That the rule as to professional secresy forbids disclosures by the counsel of matters communicated by the client, after the engagement of counsel, and relating to the merits, or grounds of prosecution or defence of the suit. But that the mere fact of the engagement of counsel was out of the rule, because the privilege and duty of being silent, does not arise until that fact be ascertained. The concealment of the real client, who may be the party essentially interested, may be part of the client's policy, and be within the client's instructions to his counsel. But the client's injunction of secresy, per se, would not make secresy lawful in this respect; and it is, therefore, a petitio principii to say, that the counsel shall not tell who really employed him, merely because it happened to be the direction of his client, and his client's view, to conceal the fact. The law would authorize a fraud on its own rules, if it would determine otherwise; and the pretension of the defendant is counter to the whole policy of the rule, as to professional secresy. [a] The very refusal to answer, implies the affirmation of the witnesses being employed by the defendant as counsel. sustain all these positions. [b] Before the statute of 11 Geo. II., regulating the appearance of landlords as defendants in lieu of the casual ejector, a judgment in ejectment was habitually set aside, where, upon the complaint of the landlord, it appeared, that he had had no notice of the suit. Where a party sells a chattel with warranty of title, notice to the vendor, of a suit against the vendee for it, is sufficient to bind the vendor by the verdict or judgment in that suit. One obtaining possession of land, while an action of ejectment is pending, is answerable for the mesne profits during his occupation, whether proved to have had notice of the action or not; constructive notice then sometimes implicates a third party in this suit. [c] All these rules are calculated to prevent an evasion of the statute, allowing landlords, not in actual possession, to be actors in the ejectment suit, and to keep the fictions of law to their original purposes of justice. Our claim is clear of the point of Lifford's case, in 11 Co. 51.; though according to the decisions in Massachusetts, we might rest this suit even upon that point. [d] Before the statute of Marlbridge, 52 Hen. III., damages was not recoverable in any real action, except against the disseisor himself, and then only in the assize of novel disseisin. Hence the practice for the disseisor (similar in principle to the attempt of this defendant) to enfeoff persons to act as defendants, who were not responsible. To prevent this abuse, the statute was passed, making all pernors of the profits responsible in real actions for damages. [e] But the action of ejectment, being a personal action in its origin, there was no need of a statutable provision to authorize an award of damages in it. It has taken the place of the real actions of common law. Reinicker, claimant of the fee, must be regarded as in possession; and his tenant's possession was his. as a circumstance, and as evidence, and not as an estoppel. We admit, that a party, to be liable for mesne profits, must be a trespasser; and we meant to prove Reinicker, by privity, to be a trespasser. The case in 7 Term Rep. 108. shows, that if the husband there had had notice of the ejectment, he would have been answerable for the mesne profits.

3. The action for mesne profits being the mere sequel of the recovery in the ejectment cause, the record of that recovery is the proper evidence to show the lessors of the plaintiff entitled to the mesne profits so as they are claimed, within the terms of the demise in the ejectment. If profits antecedent to the term are asked, then the plaintiffs cannot rely on the ejectment recovery as conclusive evidence, but must prove their title to the land anew, and again open the merits of the ejectment cause. The claim for mesne profits here keeps within the limits of the ejectment demise, and we had no occasion, therefore, to prove our title otherwise than by the record of recovery in the ejectment. [f] Although the husband, who did not appear as a lessor of the plaintiff, is joined in this action with his wife, who was a lessor, still the record of the ejectment is evidence for us, since the husband is no new party in interest. If necessary, this might be enforced by analogy from the writ of re-disseisin in the case of a similar change of parties. The addition of the husband, at the utmost, only imposed on us the duty of proving the marriage. The body of the amended declaration here, speaks of the plaintiffs,' not of the persons mentioned or named in the recital. Besides, even the recital does not say that Maria Desportes was sued by the name of Maria Bonfils, but only mentions the circumstance of her being called' so at the bringing of the suit, as it would insert an alias for her name. the writ is sued out in the single name of the husband. [l] Though a misnomer may be pleaded in abatement, even in England, the narr. and writ may be rectified in that particular upon terms. A party naming himself generally in a writ, may, nevertheless, declare in a special character. [m] The variance between the amended declaration and the first declaration, does not show that the former varies from the writ. The amended declaration is as good evidence of the contents of the writ as the original declaration is. been a trespasser. The ejectment suit complains of a trespass, and the person to be charged for the mesne profits must, therefore, have been actually a party to that suit by having appeared as defendant, or by having been required to appear by service of process in the suit, and then failing to appear. It is only by this judicial notice, and a waiver of the privilege of appearing, testified by the record of the suit in ejectment, that the defendant in the action for mesne profits can be treated as if he had been a defendant in the ejectment, and adjudged a trespasser, to bear the liability for mesne profits. By mere waiver in pais, or notice extraneous to the record, a party cannot be rendered liable for mesne profits, although, in fact, he may have been interested in the result of the ejectment suit. That interest, however, quoad the ejectment, and in reference to the suit for mesne profits, does not prove him to be a trespasser, which he must be before he can be liable to the claim. [n] The Court must look to the record of the ejectment for light as to the responsible parties on the score of mesne profits; they cannot derive it from other quarters, or collateral proof. Hence, too, the record of the ejectment is not evidence of the right of the lessors of the plaintiff to the mesne profits, as against one who was not actually a party in the ejectment suit, nor effectively so by being called on through notice in the process of ejectment to appear as defendant. Here, however, another person than the defendant, Reinicker, was admitted in the ejectment suit to defend as the landlord of the property in question. He declared himself the landlord in claiming to defend as such; and the plaintiffs in ejectment, not denying his pretension in that respect, have acceded to his representation of himself, and must now be bound by it, and are estopped from saying that any other person was landlord. Reinicker, therefore, can in no wise be connected with the ejectment suit; and, at all events, the recovery there is not conclusive against him, that the lessors of the plaintiff are the proper claimants of the mesne profits. They must prove themselves the heirs entitled to the land, and to the mesne profits, as the result of that proof. The case from 3 Campb. Rep. 455. does not establish the plaintiffs' positions on these heads. The decision there was on another point; and the reasoning of it shows, that the party liable for the mesne profits must be a trespasser. The action for mesne profits will lie only where trespass quare clausum fregit would lie. According to that principle, Reinicker could not, by mere force of notice in pais of the suit, be held liable for the mesne profits. that which the writ and first declaration defined. There is no declaration here in the suit which was originally brought; or, at least, that which was a declaration has not been acted on; but the issue is taken, and the jury sworn, between new parties, and out of the suit which the record professes to carry on. The Court may, therefore, take notice of the change of parties, and of claim, and of suit, in this case; since they cannot fail to see between what parties they are adjudicating; and it is not necessary that the inconsistency be brought to their knowledge by a plea in abatement exclusively. It does not appear that Maria Bonfils was unmarried at the time of bringing the suit. Feb. 20th.

Mr. Justice STORY delivered the opinion of the Court.


^a  752. 17 Johns. Rep. 335. 18 Johns. Rep. 330. Norris's Peake, 250, 251, 252. 3 Johns. Cas. 198. 13 Johns. Rep. 492.

2. The defendant was liable, in this action, if he had notice of the ejectment, and was, as landlord, interested in the result of it. He might, even at common law, have been made defendant; but the statute of 11 Geo. II., in force in Maryland, explicitly allows it to him. He shall not screen himself from responsibility, because he had artifice enough to waive appearing, and to let an uninterested person figure as defendant in his stead. The lessor of the plaintiff may sue for mesne profits, and the actual tenant shall be liable, although the judgment in ejectment is obtained against the casual ejector only; and in reference as well to the defendant as to the plaintiff in such a suit, the Court disregards the fiction of the ejectment cause. He is answerable for the mesne profits who has received them, and has had an opportunity of defending his pretensions in the preliminary ejectment. The ejectment suit is founded on a fiction. Fictions are under the control of the Courts who use them. They will be moulded and applied to the views of justice, and according to reason-for they take their rise from the equity of the law: In fictione juris subsistit equitas. The authorities

^b  1 Burr. 667; Runnington Eject. 192-3, 198, 200-1; Adams on Eject. 328, 337, 2 Johns. Cas. 438. 3 Camp. 455, in point, and inaccurately stated in Adams on Eject.; the notice of the suit to the landlord not being required, as Adams states, to be by service of the declaration in ejectment. 2 Burr. 1290. 7 T. R. 108.

^c  13 Johns. Rep. 447. 1 Harris and Johns. Maryland Rep.

^d  Stearnes on Real Actions, 416.

^e  Stearne's Real Act. 390.

It is true, that Chirac appeared as landlord in the ejectment cause. But our purpose is, to show that Reinicker appeared by another; and though that other also assumed his (Reinicker's) title, that circumstance serves only to aggravate the fraud attempted upon the law, and to show the more conclusively, that Reinicker waived his privilege of defending in his own name, and by candidly announcing his interest on the record. We are not estopped, then, by C. J. F. Chirac's usurpation of the title of landlord, as well as the part of a defendant. If this action were even against him, we should be compelled to prove him landlord, notwithstanding his pretension to the character by appearing as landlord. His appearing might be relied on to prove his being landlord, but only

^f  Runningt. Eject. 492 to 497. Skinn. 247. Salk. Rep. 260. Bull. N. P. 87. 1 Burr. Rep. 665. Strange's Rep. 960. Cowp. Rep. 243. Dougl. Rep. 584. Adams' Eject. 329. 333, 334.

4. A variance between the writ and declaration could only have been taken advantage of upon oyer of the writ, and plea in abatement. ^g  Oyer will not now be granted, and such a plea cannot, therefore, obtain. Nor will the proceedings be set aside for irregularity, on account of such a variance. ^h  Even supposing, that for this defect the party might have refused to plead, or otherwise have made the objection available, it is too late now since he has pleaded the general issue. ^i  A variance of this kind could once have been taken advantage of in England upon writ of error; but that cannot now, since the statute of jeofails, be done there; nor in Maryland, since her act of 1809, ch. 153. Where the writ is, according to the ancient practice, fully recited in the declaration, advantage might be had of the variance on demurrer. But that is not the case here. ^j  The recital of the writ in the declaration is unnecessary; and, when made, as in this instance, is to be rejected as surplusage. ^k  ^l  Chitty's Plead. 252.

^m  1 Wils. Rep. 141. 3 Wils. Rep. 61. 2 Bl. Rep. 722.

Mr. D. B. Ogden and Mr. Webster, for the defendant in error, (1.) stated, that it was necessary to advert to the specific question which was put as to the defendant's retaining counsel, and to the circumstances under which it was asked. The question involved the disclosure of the party's views, and of his instructions to his counsel, and of communications which were received by him in his capacity of counsel, and that would not have been made to him if he had not been so. It is not necessary that a suit should be pending to bind the counsel to secrecy for his client; any communication, after retainer of counsel, is within the rule against disclosure, if it relates to the suit, and is within the scope of the confidence given to the counsel.

2. No person can be made liable for the mesne profits after recovery in ejectment, who has not

^n  1 Selwyn's N. P. 121.

3. The case as to the amended declaration is clear of all the learning respecting the mode of taking advantage of a variance between the declaration and the writ. The variance there meant, is not such a departure from the writ as in this case, as it effects an entire change of suit, and substitutes, in reality, a new suit, for

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