Page:United States Reports, Volume 24.djvu/298

290 the writ is sued out in the single name of the husband. 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. 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.

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