and the envelopes were admitted to show that the plaintiff in error knew the residence of the said Emma S. Selden at the time he so swore, and was able to find the whereabouts of the said Emma, and that he was able to make service of the summons in said action upon her, and that he could have ascertained, after due diligence and search, the post-office address of said Emma, and that he was able to find out where she was at that time, and to show, also, his residence for the one year previous to said suit. For that purpose, these letters, to the extent in which they were offered in evidence, were most clearly material, if they were competent, and not privileged.

It is contended by the learned counsel of the plaintiff in error that such evidence was incompetent and inadmissible, for the reasons,-1. That they were disclosures of confidential communications between husband and wife; and 2. That the production of the same by Knowles, the attorney of the defendant in that action, was also unlawful, as betraying the privileged confidences between himself and her, as attorney and client.

We think that both of these positions were well taken, and that the circuit court erred in allowing the said Knowles to produce them, and in allowing the letters, to the extent of fered, to be used as evidence or examined by the jury. So far as Knowles, the attorney of the defendant, Emma, was concerned, the production by him of the letters as genuine was a double violation of this protected confidence: 1. Of that reposed in him by his client, Emma S. Selden; and 2. Of that between herself and her husband, without her consent. If these letters were confidential as between herself and her husband, they were none the less so in the hands of her attorney, Knowles; and if she could not disclose them, of course he could not. But, besides this, he was betraying her confidences also, which was a double violation of the rule. She had demanded a return of these letters before he so disclosed and produced them. It is surprising that when she was unwilling herself to disclose or produce these letters of her husband, and was unwilling that her attorney, Knowles, should do so, Knowles should have been allowed to authenticate and produce them, and that the district attorney should have been allowed to introduce them in evidence, to the extent they were offered, to convict the husband of the crime with which he was charged. In her letter to her counsel, Knowles, dated December 1, 1888, she demanded a return of

the letters, as she says, "in your charge, and left with you while you were acting as my attorney and counsel. I intrusted them with you as such counsel, to be used only in assisting me in litigation, and from which to secure your advice. The letters I consider confidential communications between myself and husband, and in no other way; and while I was your client I intrusted them with you knowing the confidential relations existing between attorney and client." This letter was in evidence.

The authorities cited by the attorney-general are very far from being applicable to a case like this. Knowles was not an "eavesdropper," or a person who merely overheard communications or conversations between husband and wife; and it made no difference in favor of their admissibility that he used the letters as his authority for making the original com. plaint against the plaintiff in error, or in instituting the prosecution against him. It is a case where the husband is on trial for a crime which did not involve any personal violence or injury against herself; and what he had said or communicated to her as his wife is sought to be proved against him, either by his (the attorney's) voluntary disclosure of them as a witness, or by the production of his letters containing such communications; and, more than this, the letters containing such confidential communications are confided to her counsel for no such purpose, and he voluntarily authenticates and produces them, in violation of her confidences with her husband and her confidences with himself as her counsel, and without her consent, and against her directions. There is not an authority by the decision of any respectable court that sanctions the disclosure of such confidences between husband and wife, and attorney and client. It is too plain for argument.

But it is said that the particulars of the letters and envelopes admitted in evidence were not the letters themselves containing such confidental communications. These particulars were material parts of the letters, and pertinent to the issue. Without them, there would be no letters or envelopes, as such. He has told her by these particulars that he knows where she lives, and where she can be found, at the time he swore that he did not so know. These parts of the letters and envelopes contained these material and confidential communications, and are the most objectionable of any.

Both branches of this evidence are made incompetent by

our statute. "A husband or wife shall not be allowed to disclose a confidential communication made by one to the other during their marriage without the consent of the other": R. S., sec. 4072. "An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment": R. S., sec. 4076. These statutes express the most stringent rules ever laid down by the courts for the protection of connubial and professional confidences. They would seem to have been specially made for this case. The facts here meet every letter of these statutes.

Aside from these statutes, this disability of husband and wife and of an attorney has been established by numberless decisions of the courts in this country and in England. The principles upon which it is established have become elementary. Only a few cases need be referred to, and such as are particularly applicable to the facts: Mills v. United States, 1 Pinn. 73; State v. Dudley, 7 Wis. 664; Livesley v. Lasalette, 28 Wis. 38; Yager v. Larsen, 22 Wis. 184; 1 Greenl. Ev., secs. 334-337, 342; 2 Russell on Crimes, 986; 2 Kent's Com. 178; Stein v. Bowman, 13 Pet. 209, 221; Dexter v. Booth, 2 Allen, 559; Bliss v. Franklin, 13 Allen, 244; Fitch v. Hill, 11 Mass. 288; State v. Welch, 26 Me. 30; 45 Am. Dec. 94. As to the relation of attorney and client, we may refer to Getzlaff v. Seliger, 43 Wis. 297; Bacon v. Frisbie, 80 N. Y. 394; 36 Am. Rep. 627; Root v. Wright, 84 N. Y. 72; 38 Am. Rep. 495; Foster v. Hall, 12 Pick. 93; 22 Am. Dec. 400; Bolton v. Liverpool, 1 Mylne & K. 88; Greenough v. Gaskell, 1 Mylne & K. 98; Moore v. Terrell, 4 Barn. & Adol. 870; Brown v. Payson, 6 N. H. 445; 1 Greenl. Ev., secs. 237-240, and note; Hatch v. Fogerty, 40 How. Pr. 498-504. Many other cases are cited in the able brief of the learned counsel of the plaintiff in error, to which reference may be had. This evidence was material to prove the perjury charged, and its admission was clearly erroneous.

The judgment of the circuit court is reversed, and the cause is remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Fond du Lac County, who will hold him in custody until he shall be discharged by due course of law.

ATTORNEY AND CLIENT-PRIVILEGED COMMUNICATIONS. — As to what communications between attorney and client are privileged: Note to Bacon v. Frisbie, 36 Am. Rep. 631-633; note to Coveney v. Tannahill, 37 Am. Dec. 296, 297. A communication from a client to his attorney may be admitted in

evidence, but the attorney cannot, without his client's consent, testify concerning such communication: Tays v. Carr, 37 Kan. 141. Communications, which are privileged between attorney and client, may be detailed in evidence by an officer who heard them: Cotton v. State, 87 Ala. 75. The testimony of a witness as to conversations with a party to an action cannot be excluded merely because the witness was an attorney at law: People v. Lenon, 79 Cal. 626; for communications, to be privileged, must be made to an attorney for the purpose of obtaining counsel or legal advice: Cady v. Walker, 62 Mich. 157; 4 Am. St. Rep. 834; House v. House, 61 Mich. 69; 1 Am. St. Rep. 570.

HUSBAND AND WIFE-PRIVILEGED COMMUNICATIONS. — Neither husband nor wife may disclose any confidential communications made by one to the other during marriage: Pickens v. Knisely, 29 W. Va. 1; 6 Am. St. Rep. 622. A divorced wife cannot testify against her former husband as to conversations occurring between them during the existence of the marriage relation: Brock v. Brock, 116 Pa. St. 109.

PITTSBURG MINING COMPANY v. SPOONER.

[74 WISCONSIN, 307.]

CORPORATIONS. - PROMOTERS OF A CORPORATION WHO ON ITS FORMATION become officers thereof must be treated as its agents and trustees, and held accountable to it for any profits which they realize upon property bought for and sold to the corporation.

CORPORATION. — IF PROMOTERS OF A CORPORATION HAVE OBTAINED AN OP. TION for the purchase of property at a certain price, and have proceeded to form a corporation, representing to persons whom they induced to subscribe for its stock that such option would cost a larger price than they have agreed to pay, and if, after procuring such subscription, they purchase the property at the smaller price and charge the corporation the higher, it may sustain an action against them, and recover the difference between the two prices.

CORPORATION MAY MAINTAIN AN ACTION AGAINST ITS PROMOTERS to recover profits realized by them from the sale of property to the corporation at a sum which they represented to be the cost price, but which was in fact in excess of such price.

AGENTS RECEIVING MONEYS UPON ILLEGAL SALE OF STOCK OF A CORPORA TION CANNOT SET UP THE ILLEGALITY of the transaction as a defense to an action by the corporation to compel them to account therefor. CORPORATION, ESTOPPEL TO CONTEST VALIDITY OF FORMATION OF. - PERSONS WHO HAVE BEEN INSTRUMENTAL in the formation of a corporation and in issuing alleged illegal stock, and who have contracted with the corporation with full knowledge of all its transactions, are not in a posi tion to contest the regularity of its formation.

ACTION by the Pittsburg Mining Company to recover seventy thousand dollars had and received by the defendants for the use of the company. The complaint alleged that the defendants conceived the idea and agreed together to promote the organization of the plaintiff for the ostensible purpose of min

ing iron, but for the real purpose of cheating those who might deal with the corporation, and enriching themselves; that in pursuance of the scheme the defendants obtained an option to purchase certain mining claims for the sum of twenty thousand dollars; that the defendants then proceeded to obtain subscriptions to the capital stock, falsely and fraudulently representing to divers persons, and to all persons who became and are now stockholders, that the price demanded for said. option was ninety thousand dollars, and that it could not be bought for less, and that it would be necessary, for the purpose of operating the business, to raise the sum of one hundred thousand dollars, of which ninety thousand dollars should be used for purchasing such option and the balance to be put in the treasury of the company to develop the mines; and that, in furtherance of their fraudulent scheme, the defendants drew up and procured to be signed a subscription paper, of which the following is a copy: "The undersigned hereby agree with A. H. Main, of the city of Madison, Dane County, Wisconsin, the owner of a mining option upon, in, and to all of the north half of the southwest quarter of section No. 11, town 47, range 45 east, of the Michigan meridian, situate, lying, and being in the county of Ontonagon, state of Michigan, and with each other, that they will take of and from the said A. H. Main the number of shares of non-assessable, paid-up stock in the Pittsburg Mining Company, proposed to be formed, set opposite their respective names, and pay for the same the sum of $2.50 per share, said payment to be made as soon as the company is duly incorporated under and by virtue of either the laws of the state of Michigan or Wisconsin, and the said A. H. Main shall assign and transfer over to said corporation, and give and convey to said corporation, a perfect title to the same said. option. It is understood that the capital stock of said corporation shall be one million dollars, in forty thousand shares of twenty-five dollars each. It is also understood and agreed that a shaft has been sunk, upon the land covered by said option, to a depth of about seventy feet, and that there is in sight, at such depth below the surface of the land so covered by said option, ten thousand tons of iron ore." That the subscription paper was signed by a large number of persons agreeing to take shares in a sufficient amount in the aggregate to cover the entire proposed stock of the projected corporation, to wit, one million dollars; that as soon as the stock was subscribed, to wit, on March 21, 1887, the defendants organized the plain