mention. He was the active and zealous patron of many young men in the profession, whose studies he promoted, without regarding his own time or trouble, by the kindest attention, and the most willing assistance. By a short note of compliment, or scattering a few words of praise, he has cheered the hearts of many who were drooping under discouragement, and, by inspiring self-confidence, has lifted them to eminence. To Law, when smarting under the wayward displeasure of Lord' Kenyon, he displayed the most marked attention, and, by his frequent commendations, upheld the fame of that able lawyer when it might otherwise have been overborne by prejudice. To Abbott, afterwards Lord Tenterden, he was a still more efficient patron. Abbott (according to Sir E. Brydges) having become a member of his household as tutor to his sons, with the intention of afterwards taking orders, Mr. Justice Buller detected his admirable legal talents, persuaded him to choose the law as his profession, furnished him with the funds for entering an attorney's office, and thus became the fortunate means of giving to the Court which he loved, one of the ablest chiefs that ever presided over it. It is pleasant in reviewing the lives of those great judges who have ennobled Westminster Hall, to notice the alacrity with which, having profited so much themselves from generous patronage, they have sought out and cherished, latent or rising talent at the bar. With an anxious care, similar to that of the priests of old, who watched over the young ministering at the altar, that the sacred fire might never be extinguished, they appear to have been always on the search for lawyers worthy to be their successors, and deserving promotion, under whose administration, those laws which they cherished as their inheritance, might be handed down pure and untarnished. Nor has their solicitude been unrewarded. Mansfield, Buller, Ellenborough, Tenterden,-these form a series of names and titles, which shed a lustre round the law and its professors; and their memories, we may rest assured, in the proud language of Milton, " God and good men will not let die."

T.

[We think it right to add, that Mr. Justice Buller was pretty generally suspected by his cotemporaries of an inordinate love of money and power; and that his passion for high play, and his zeal in the acquisition of borough influence, led him more than once into situations unbecoming his dignity.]

ART. III.—ON THE PRODUCTION OF CASES PREPARED FOR THE OPINION OF COUNSEL.

2

In the case of Bolton v. Corporation of Liverpool,1 Lord Brougham, speaking of the decision in Radcliffe v. Fursman, uses these words: "So far this decision rules that a case laid before counsel is not protected; that it must be disclosed. But the decision does not rule that disclosure must be made of a case laid before counsel, in reference to, or in contemplation of, or pending, the suit or action for the purpose of which the production is sought." The principle contained in this passage is more extensive than at first sight it may appear to be. If the law is that a statement, which a client has written for his counsel, shall be disclosed in answer to a bill of discovery, it must also be law that the statement which he makes by word of mouth at a consultation is not a privileged communication. No distinction in principle can be taken between a statement vivâ voce and a statement in writing. The necessary consequence is, that the client may be interrogated upon matter stated in consultation; and still further, as the privilege of the counsel is but the privilege of the client, that interrogatories may also be put to counsel. A doctrine to our minds more extraordinary, or more destructive of the relation which is generally understood to exist between client and counsel, could scarcely have been suggested; and many of our readers may be startled to find, that the principle on which it rests has received the sanction of several of our ablest judges, Chief Baron Alexander, Lords Brougham, Lyndhurst, and Eldon.

A principle sheltered under such high authority is a formidable object of attack; and, indeed, it could hardly have been approached, if we supposed that these eminent lawyers had decided upon it with their judgments unfettered. But we can satisfy our readers that this is not the case. It is very true that they have enforced the principle; yet we can show from their own expressions that they enforced it only upon the supposition that it was previously decided, and that several of them have recognized it with extreme reluctance. The case, in which the point is supposed to have been decided, is Radcliffe v. Fursman. Sir John Leach,3 in speaking of it says, "The case in the House

13 Sim. 467; 1 M. & K. 88. 2 2 Bro. P. C. 514. 1730.

3 Walker v. Wildman, 6 Mad. 47. 1821.

of Lords, where the client was ordered to produce a case stated for the opinion of counsel, has been followed in specie but not in principle." We have been informed by some gentlemen who constantly practised in his Court, that he always treated it as very objectionable; and frequently said, that, except in circumstances precisely similar, he would not follow it. Bolton v. Corporation of Liverpool1 is one of the most important cases upon the subject. The present Lord Chief Baron, in speaking of that case, says, "I own I think that case went too far. Communications of that nature are strictly privileged." And again; "It is disagreeable to be called upon to review the decisions of eminent persons, but if I am bound to give an opinion, I must say that the order to produce confidential communications in respect to matters of fact, relating to a party's title, have proceeded upon a principle which it is not necessary to extend. Many of the cases which have been cited for the plaintiff do not go the length contended for; certainly not the case in Vesey, because there both parties were interested directly in the motion; and under such circumstances, that case and others have established a precedent which we cannot overcome. As to the decision of Lord Brougham and the Vice-Chancellor, I should say, that the statement for counsel which they ordered to be produced was as much protected as that which they refused." He also says, "I had an opportunity of investigating the authorities on which that decision was made, and I found that they were all cases in which the party seeking the production had a direct interest in the documents sought for." Lord Abinger is an authority of peculiar weight upon this subject, for he was the counsel principally consulted in the common law proceedings between the Corporation of Liverpool and Mr. Bolton. After the Vice-Chancellor had decided that the cases should be produced, "the defendants," says Lord Abinger, "by my advice appealed from that decision to Lord Brougham.'

We shall follow the course adopted by Lord Abinger, and investigate the orginal authority upon the question. By doing so, he came to the conclusion, that the plaintiff has a right to the production of the case, if it supports his title. We hope

13 Sim. 467; 1 M. & K. 88.

2 Knight v. Waterford, 2 Y. & C. 39. 1836.

3 Ibid. 40.

to induce our readers to draw a still stronger inference; namely, that the old authority has no weight at all upon the general question, and can be correctly quoted only in cases in which the defendant occupies the character of trustee for the plaintiff, or perhaps if he is attorney, or in any way fills the capacity of agent.

Our first proposition will be, that Radcliffe v. Fursman is no authority for the application of the principle to cases in general.

Our second, that in subsequent cases the judges have not expressed their own opinion, but have considered themselves bound by Radcliffe v. Fursman.

Our third, that the principle is quite inconsistent with certain rules of evidence which are firmly established.

Our fourth, that upon general reasoning it ought not to be adopted.

We really can offer no apology for inviting our readers to a detailed investigation of this question. It is vitally important not merely to the members of our profession, but also to every person who may, ever be in any way concerned in legal proceedings. The evil has already gone so far, that counsel have sometimes recommended their clients to make no statement upon paper, or to destroy their statement as soon as the opinion upon it has been received. If, then, we are correct in stating that the rule now in operation is vicious in principle, and rests upon a mistaken conception of an old case, the more thoroughly the matter is sifted, and the sooner a resistance is offered to the enforcement of the principle, the profession and the public will gain the greater benefit.

First, then, that Radcliffe v. Fursman is no authority for the application of the principle to cases in general. It appeared in that case that Jasper Radcliffe, father of Walter Radcliffe, the appellant, executed two bonds in which Martha Mannaton took the beneficial interest. Jasper Radcliffe, at his death, devised real estates to two trustees for a term of 500 years, in trust for the payment of his just debts, and made Jasper Radcliffe, his son, executor and residuary legatee. Events happened by which Martha Fursman, the respondent, became entitled to the beneficial interest in the bonds, and Walter Radcliffe, the appellant, to the term of 500 years, as trustee,

and subject to this trust, to the real and personal estate of Jasper Radcliffe, his father. So that the relation which subsisted between him and Martha Fursman was that of trustee and cestui que trust.

"Application being made to the appellant on behalf of the respondent for payment of the said legacy and bonds, and he having refused to pay the same, a bill was in Easter term, 1729, exhibited against him in the Court of Chancery, in the name of the respondent, by her next friend, to compel him to pay the

same.

This bill charged that the appellant well knew or believed that these bonds were never paid; and as a demonstration thereof, that the appellant himself, or some person on his behalf, so declared or stated in some case for the opinion of some counsel; but to conceal the truth of such case, he stated the same by way of A., B., and C., and other letters; and in particular stated, that A. B. (innuendo the said Jasper Radcliffe, the father,) died about four years after giving two bonds, (innuendo the said two bonds,) without payment thereof; and further stated, that the eldest son of the said A. B. died about seven years after his father, without paying any part of the principal or interest due on the said bonds; and then consulted whether length of time would not prejudice the respondent's right to the said bonds. The bill, therefore, required a particular discovery of these facts, and that the said case might be set forth in hæc verba et literas.

To so much of this bill, as required the appellant to set forth in hæc verba et literas the said case stated by him for the opinion of counsel, or to what counsel such case was stated, or what opinion was given thereon, he demurred; alleging for cause, that the plaintiff was not entitled to any such discovery, and that the opinion was taken for the appellant's own private use and satisfaction.

The demurrer being argued before the Lord Chancellor King on the 3d of March, 1729, his lordship was pleased to overrule the same as to setting forth the said case, but to allow it as to all other matters.

The appellant, therefore, appealed from so much of this order as overruled the first part of his demurrer.

Amongst the arguments for the respondent, it was said,