the credibility of Mimmick and weaken the testimony given by him favorable to the defendant.

In Foster v. Hall, 12 Pick. 89, Chief Justice Shaw said: "It is well established that the matter thus disclosed in professional confidence cannot be disclosed at any future time, nor can it begiven in evidence in another suit, although the client from whom the communication came is no party and has no interest in it." See Rex v. Withers, 2 Camp. 578. There are numerous cases to the same effect.

The contention that Mimmick was the only one who could take advantage of the confidential protection in a case where he was a party is not sustained by the authorities. If this were so the legal protection which the law gives to confidential communications between lawyer and client would in actual practice be no protection in fact. A strict adherence to this beneficent rule of public policy is absolutely necessary, in order to check an unscrupulous lawyer from availing himself of such an opportunity to divulge a client's most confidential business for ulterior reasons entirely personal to the attorney himself.

For the reasons stated I vote to reverse the judgment.

Mr. Justice Minturn and Judges Taylor, Gardner and Ackerson request me to state that they concur in these views.

WHITE, J. I agree with the views expressed by my brother, Kalisch. I think it a matter of public policy that citizens should know that they may safely consult in confidence officers of the courts duly accredited for that purpose to assist in the administration of justice. If under any circumstances without their consent clients' confidences may be required to be betrayed they cannot possibly have this knowledge. Accordingly, this court held, in State v. Loponio, 85 N. J. L. 357, as I understand it, that confidential communications from a client to his lawyer are at his (the client's) instance permanently protected from disclosure by himself, or, unless he waive the protection, by the lawyer or by the agent of either confidentially used to transmit the communication. If the

client himself is asked to testify he can do so or not as he sees fit. If he declines, the communication is protected "at his instance" from enforced disclosure by himself. But if the lawyer is called upon to so testify, the waiver of the protection by the client, whose protection it is, must be established before public policy will permit the disclosure to be made. If it were otherwise no man could consult his lawyer frankly about his most sacred private affairs without risking their enforced public betrayal in some proceeding in which he had no interest, and of which he never heard, and, consequently, in which he never had opportunity to insist upon his protection. This is contrary to sound public policy, which, finding it necessary to fictitiously presume that every citizen has full and complete knowledge of the law, finds it equally necessary because of that fiction to practically supply citizens as far as possible with opportunity to procure whatever real legal knowledge their affairs may require in order to bring the reality up somewhere near the fiction.

But it is urged that even if the testimony should have been excluded because of a privileged communication, the only party aggrieved is the absent client whose confidential communication was disclosed without his consent, and as he has no interest in the case, there can be no appeal; that the defendant cannot complain because the testimony, as far as he is concerned, was just as relevant and unobjectionable without the client's waiver of his privilege as it would have been with that waiver. Wigmore (section 2196) takes this view, and while admitting that the contrary view prevails in a majority of the courts, he thinks this contrary view can only be upheld by an application of the Anglo-Norman instinct which he says looks upon litigation as a legalized sport wherein the game is to be won or lost accordingly as the arbitrary rules are observed or disregarded. I disagree with this assertion. The rule here involved is not arbitrary, but rests upon sound public policy. If the rule might be disregarded in cases where the client has no interest without defeating the very purpose which gave rise to its existence and upon which it rests, all

that Wigmore says of it would be true, but such is not the case. In order that the privilege may be practically preserved it is necessary that its violation shall be fatal to any cause or to any party in whose favor the violation occurs. The same public policy which necessitates the privilege necessitates its practical preservation. Public policy is not satisfied with theory; its fruits must be practically effective.

For affirmance-THE CHANCELLOR, PARKER, BERGEN, BLACK, HEPPENHEIMER, WILLIAMS, JJ. 6.

For reversal-MINTURN, KALISCH, WHITE, TAYLOR, GARÐNER, ACKERSON, JJ. 6.

THE STATE, DEFENDANT IN ERROR, v. EMORY J. SNYDER, PLAINTIFF IN ERROR.

Submitted December 8, 1919-Decided March 1, 1920.

Whether a married woman becomes qualified as a witness against her husband in a criminal proceeding, simply because she has made a complaint against him without regard to the nature of the complaint, quære.

On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 18.

For the state, Harry J. Able.

For the plaintiff in error, Frederick A. Pope.

PER CURIAM.

The reasons given by the Supreme Court for the affirmance of the judgment of the Hunterdon County Quarter Session

are satisfactory to this court, and the opinion is adopted by this court as its reasons for affirming the judgment of the Supreme Court, with the reservation that we do not wish to be understood as deciding that a married woman becomes a qualified witness against her husband in a criminal proceed-. ing simply because she has made a complaint against him without regard to the nature of the complaint. Whether a wife can qualify herself by instituting a criminal complaint for any crime she may choose to charge her husband with, without regard to the question whether the criminal act was one affecting her personal rights or not, we are not called upon to determine, and that question is expressly reserved until such time as it is squarely raised. Here the wife was directly injured by the perjury of which she complained. With this reservation the judgment will be affirmed, for the reasons given by the Supreme Court.

For affirmance-THE CHANCELLOR, PARKER, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 12.

For reversal-None.

STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM TIETJEN, PLAINTIFF IN ERROR.

Submitted December 8, 1919-Decided March 1, 1920.

On error to the Supreme Court, whose opinion is reported in 93 N. J. L. 22.

For the defendant in error, Pierre P. Garven.

For the plaintiff in error, Alexander Simpson.

The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Chief Justice Gummere in the Supreme Court.

For affirmance-THE CHANCELLOR, PARKER, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 12.

For reversal-None.

MILTON STERN, RESPONDENT, v. FRANKLIN A. WARD ET AL., APPELLANTS.

Submitted December 8, 1919-Decided March 1, 1920.

On appeal from the Supreme Court, in which court the following memorandum was filed by Mr. Justice Trenchard:

"The plaintiff in the District Court below [the prosecutor here] sued out a writ of replevin and took possession of an automobile. The defendants put in a bond, retained possession of the car, and filed a claim of property, and in that way the matter proceeded to trial and judgment for the defendant Abram B. Lane in the District Court.

"At the trial it appeared, as will be hereinafter shown, that the plaintiff leased the automobile to the defendant Franklin A. Ward; that the defendant Lane was a garage keeper and had possession of the car on a claim for repairs and supplies which he had furnished at the request of Ward, the lessee.

"The prosecutor contends that such claim could not be asserted as a lien against the car in the circumstances of this case, and hence that the judgment was wrong.

"I am of the opinion that the prosecutor's contention is sound.