confidence, no inconvenience, to which the plaintiff' might be put by the want of it, could be a reason for compelling the defendant to give it.

At the conclusion of the argument, his lordship said he was of opinion, upon the authority of Harvey v. Clayton, that the defendant could not be compelled to state the names of his clients. The case in question stood on stronger grounds than those in which the protection was given for the sake of the party himself; here the privilege being that of the client, the defendant had no right to answer the questions.

We hope that our readers will concur with us in thinking that the authorities, to which we have referred, so far assist us in the establishment of our third proposition, as to annihilate the distinction between communications with reference to approaching or pending litigation and communications upon other subjects; and also to establish, in the fullest extent, the protection for all communication between client and solicitor.

There remains this sole inquiry, whether communications with a counsel ought to receive less protection than communications with a solicitor? We are at a loss to devise arguments in favour of this proposition. Both classes of persons are legal advisers; both are in the habit of receiving information for the peculiar purpose of giving legal opinions. It is, however, possible that some persons may think the privilege of communications with solicitors more liable to abuse, and therefore less politic in principle than a similar privilege in respect of counsel. Few persons have recourse to counsel except upon inquiries as to mere questions of law. Solicitors, on the other hand, are less frequently consulted on those questions than employed upon matters of fact. And, for this reason, "the distinction," as Lord Eldon says, "is extremely nice between the questions which the attorney is bound to answer, and those which he is privileged from answering." For instance, it is constantly the duty of a solicitor to receive documents not from his clients, but from persons opposed to his clients as parties in litigation. The document is not delivered to him in confidence, or for any inquiry into law; he receives it merely as agent in the suit. The disclosure of the contents of the document will be attended with no breach

'Parkhurst v. Lowten, 2 Swanst. 202.

t

4

of confidence, and will be enforced by a court of justice.1 In many transactions a solicitor receives letters from different persons concerning various matters of fact, while acting rather as a lay, than as a professional, agent. Upon these matters he is compelled to disclose his knowledge, and produce the correspondence. Conversations, too, often take place, which are upon the verge of the distinguishing line between law and fact, privilege and disclosure. Take, for example, the conversation which gave rise to the case of Bramwell v. Lucas.3 Lord Cottenham, in commenting upon that decision, observed, "Undoubtedly, looking at the facts of that case, it is not very easy to come to the conclusion to which the court there came in point of fact. The question was, whether the client had committed an act of bankruptcy on a particular day? On that day the client inquired of his solicitor, whether he could safely attend a particular meeting of his creditors without being arrested for debt? The solicitor advised him to stay in his office; and he accordingly did stay there for upwards of two hours, to avoid being arrested. The question was, whether what passed between the solicitor and his client was receivable in evidence. That looks, undoubtedly, very like a professional communication for the purpose of obtaining advice; and the Court said, if it was a professional communication it was privileged. If, therefore, the client asked the solicitor his advice in a point of law, whether he could with safety attend the meeting of his creditors, the communication would be privileged, but the Court said that, in its nature, it could not be privileged, but that it was merely an inquiry of fact, whether the client's creditors, because they had clearly all their legal rights, would arrest him; and that the only question was, whether they had agreed not to do so: and the Court held that the question was one of fact and not of law."

The words of the question, as stated in the report, bear either construction, an inquiry as to law, or an inquiry as to fact; that is, whether as a matter of law, the creditor had a legal right to arrest, or whether, as a matter of fact, they in

tended to avail themselves of the legal right by making the arrest. If, however, we are to judge by the answer which the solicitor gave, the inquiry was as to the fact, and the decision is right; the answer was, "the solicitor advised him to remain at the office until it was ascertained whether the creditors would engage to give him a safe conduct.1

We mention this case as one of innumerable instances in which the business of a solicitor intermingles matter of fact with matter of law, and in which it is frequently difficult to distinguish the one class of subjects from the other. But there is hardly ever an intermixture of this kind in the position of a counsel: his duties are confined to questions of law. In his instance the confines of privilege are clear, nor can any abuse of it take place except through direct intention. If, then, the privilege of communication could be accompanied with any distinction between the two branches of the profession, it ought to be stronger in respect of counsel than in respect of solicitors. We have already seen that to solicitors it has been adjudged to the full extent of the principle; à fortiori it should now be extended complete and entire to counsel.

Our fourth proposition had reference to the policy of the question; namely, that upon general reasoning the principle of Ratcliffe v. Fursman ought not to be recognized. However, on this subject we add nothing. We intend this article merely as supplemental to that of 1837; our only object has been to show that the decisions which have been made since that period have strengthened all the positions which we then took; that there has been a renewed disapprobation of the law supposed to be laid down in Ratcliffe v. Fursman, and that successive attempts have been made to escape from its restrictions. May we not go so far as to say that the supposed rule stands single and apart, as one which may upon the common veneration for precedent be followed in specie, but which is distinctly repudiated in principle? Believing this to be the state of the question, we once more venture to suggest that, on the first occasion in which it is worth while to make the struggle, the production of cases ought to be resisted. The real nature of Ratcliffe v. Fursman may be brought before the Court; it may be contended that the rule expressed in that 1 Bramwell v. Lucas, 2 B. & C. 745.

case is applicable only between parties connected with one another by a fiduciary relation; and that subsequent decisions, which have been avowedly made in pursuance of that precedent, ought to be respected and followed only to the extent of the original authority.

It is by no means disadvantageous to make this attempt, while Lord Lyndhurst occupies the woolsack. We have seen that his Lordship, as well as Lord Brougham, has dealt heavy blows upon the obnoxious rule. Indeed to a common lawyer this rule must appear to be a great anomaly. Imagine a solicitor in the witness-box, and the question put by a cross-examining counsel in the following terms :—

"I believe that you formerly had a consultation upon this matter with the Solicitor-General ?"

"I had Sir."

"At that time was any suit upon the subject in prospect? "No."

"Was the present plaintiff, your client, present at the consultation." "He was."

"Tell me, if you please, what statement you then made to the Solicitor-General."

Is there one common law judge who would require an answer to that question? If not, it follows that, if the statement, instead of being verbal, were put into writing, there ought to be the same protection; and furthermore, that, if the opinion was obtained, not in consultation, but simply by a statement laid before the counsel, the document ought upon the same principles to be treated as a privileged communication. Such being the real nature and bearing of the question, we think that the complete establishment of the privilege will be greatly facilitated, if it is submitted to a judge who has been bred up in the practice of courts of common law.

ART. V.-ON SATISFIED TERMS OF YEARS.

A PURCHASER or mortgagee may and ought to require an assignment of all outstanding terms of years which confer the legal estate; for he ought to be prepared to defend his possession either at law or in equity, and to give to any future purchaser a complete title.

A question may frequently arise whether a term is outstanding or not, or, in other words, whether it be in existence.

If a term has been once assigned to attend the inheritance, it should be considered to exist though it may have remained in the same trustees a long series of years, and though in the meantime the inheritance may have been frequently dealt with by way of settlement, mortgage, or sale. A term of years vested in a trustee cannot be affected by the mere conveyance of the owner of the fee, who is in fact, so far as regards the term, only a tenant at will and cestui que trust. But the Courts of Law have in some cases considered a presumption to arise that a term has been surrendered and merged from its not having been assigned or noticed when the inheritance was transferred from one owner to another, but such decisions have not been approved of by the Courts of Equity, and have not been followed in practice.1

But if a term of years were never assigned to attend the inheritance, and a long period has elapsed since the purposes of its creation were satisfied, it may be presumed to have been surrendered.2

If when a term is created it is made to cease on the happening of a certain event, if the event happens before any disposition of the term, it is of course at an end; and Sir Edward Sugden seems to contend that its existence cannot be prolonged though the owner of the inheritance should have it assigned to attend the inheritance before the event happens,3 on the ground probably that the proviso for cesser of the term must be considered as part of the limitation and cannot be annulled, so as to leave the term an absolute one. But this we think is a mistake, for as an absolute term may be made voidable, so we apprehend a voidable term may be made absolute. The fact is that the common law paid little attention to terms of years, and allowed great liberties to be taken with them.

Of course terms of years are subject to the law of merger, and that must be attended to in deducing a title to them. Where a term of years and the immediate reversion, whether

1 See 3 Sugd. V. & P. 24 et seq.

2 Emery v. Grocock, 6 Madd. 54; 3 Sugd. V. & P. 66.

3 3 Sug. V. & P. p. 8.