opinions material to the plaintiff's case, to the discovery of which he is entitled."

1

In Preston v. Carr, Lord Chief Baron Alexander ordered the production of the case, and Baron Garrow said, "I concur with the Lord Chief Baron, on the authority of the case in the House of Lords, that the plaintiff is entitled to the production of the first case, and to the facts of the second. I say on the authority of that case; for I should certainly feel inclined to go with those who have expressed an opinion, that that case ought not to be carried any further." The view of the subject taken by Sir John Leach has been already mentioned.

In Newton v. Berresford, Lord Lyndhurst, speaking of cases for counsel's opinion says, "With respect to them, the question seems now to be settled, it having been repeatedly decided under similar circumstances, that a defendant is bound to produce such documents."

In Bolton v. the Corporation of Liverpool,3 Sir Lancelot Shadwell does not specifically mention Radcliffe v. Fursman, but we have understood that he treated the question as one so completely decided, as not to leave him the exercise of any discretion. Lord Brougham observed, in giving judgment upon the appeal, "Yet violent as such compulsory disclosure may be deemed, and wholly inconsistent with the possibility of safely transacting judicial affairs, if the authorities are in its favour, we must submit.”

In Knight v. Waterford,5 Lord Abinger said, "I do not think it material whether such communications relate to a cause now in progress, or to matters which took place on former occasions. In Bolton v. Corporation of Liverpool, Lord Brougham was, I believe, of that opinion, but thought himself bound by the authorities to adhere to the distinction." Lord Abinger's own view of the law is taken entirely from the previous decisions. He particularly says that he has consulted them, and adopted the principle which he believes to prevail in them.

11 Y. & J. 179. 1826.

2 1 Younge, 378.

3 3 Sim. 487. 1831.

4 1 M. & K. 95. 1833.
5 2 Younge, 38. 1836.

6 Lord Brougham, speaking of such disclosures, says, “they can only be justified if the authority of decided cases warrants it."

It is impossible to look through this series of authorities without observing that they do not contain any approbation of the rule, even by any one of the judges who enforced it; but, on the contrary, expressions of undisguised disapprobation by Lords Eldon, Brougham, and Abinger. Lord Abinger puts a limit upon it according to the view which he takes of the original case, and appears to doubt the correctness of it even after this reduction of its force. Is it not a fair inference, that if he had taken the same view of that case which we have offered for consideration, he would have limited the rule still further to cases of an exactly similar kind; that is, to cases between trustee and cestui que trust, or between principal and agent, or to any other cases of the same complexion? And are not we justified in presuming, that if the next case which is submitted to a Court of Equity shall be heard by a judge who construes with a like strictness the decision in Radcliffe v. Fursman, he will feel himself at liberty to limit the rule still further, and to enforce the secret confidence between client and counsel as strictly as the general principles of law, and the relation borne by the two parties to one another, may seem to require? It is under the impression that these two questions must be answered in the affirmative that we proceed to investigate our remaining propositions. They will guide us to the conclusion which a judge may be induced to make under the circumstances which we have just supposed.

Third. That the principle is quite inconsistent with certain rules of evidence which are universally acknowledged.

It will, perhaps, be convenient, if we mention the precise point, which we shall endeavour to establish. There is no necessity for contending that cases laid before counsel, with reference to suits in progress, are privileged. Upon that point there is no doubt. Nor that such cases are privileged, if the matter contained in them relates exclusively to the defendant's title. Upon that point the decision in Knight v. Waterford will probably be held conclusive. On the other hand, we claim no privilege for defendants who are not in their character independent of the plaintiff; that is, if they are agents or trustees, if their position is such that in every thing which they say or do they are bound to pursue the benefit of the plaintiff. Again, we do not claim a privilege for any information which is not

communicated in professional confidence; 1 "the moment confidence ceases, privilege ceases." "If any thing come to the defendant's knowledge before he was a counsellor, or upon any other account, he shall not have the privilege of the bar, and is obliged to answer." 3 "The protection does not extend to cases where the counsel, attorney, or solicitor, is employed in matters not professional-as in a treaty for the purchase of an estate." But we contend that if a defendant, who is in respect of the plaintiff sui juris, and not accountable to him with reference to the matter in question, has made a statement to a solicitor or counsel for professional purposes, that statement, although made long ago, and not with any view to a suit now in progress, should be treated as a privileged commu

nication.

It was ruled in Bulstrod v. Letchmere,3 upon a demurrer to a bill exhibited for the discovery of deeds in the defendant's possession, and of the contents of other deeds which he had seen of Mr. Dingley's estate, that the defendant, being a counsellor at law, shall not be bound to answer concerning any writings which he hath seen, nor for any thing which he knoweth in the cause as counsellor. "This doctrine of privilege," says Mr. Justice Buller,5 "was fully discussed in a case before Lord Hardwicke. The privilege is confined to the cases of counsel, solicitor, and attorney." "It is subject of a just indignation, where persons are anxious to reveal what has been communicated to them in a confidential manner; and in the case mentioned, where Reynolds, who had formerly been the attorney of Mr. Petrie, but who was dismissed before the trial of the cause, wished to give evidence of what he knew relative to the subject, while he was concerned as the attorney, I strongly animadverted on his conduct, and would not suffer him to be examined: he had acquired his knowledge during the time that he acted as attorney; and I thought that the privilege of not being examined to such points was the privi

1 See cases upon this subject collected in 2 Star. on Evid. 230.

2 Parkhurst v. Lowten, 2 Swan. 216. 1819.

3 Bulstrod v. Letchmere, 2 Freem. 5. 1676.

* Walker v. Wildman, 6 Mad. 47.

1821. Per Sir J. Leach.

5 Wilson v. Rastall, 4 T. R. 759. 1792.

See Cromack v. Heathcote, 2 Brod. &

B. 5.

1820.

lege of the party, and not of the attorney; and that that privilege never ceased at any period of time. In such a case it is not sufficient to say that the cause is at an end; the mouth of such a person is shut for ever. I take the distinction to be now well settled, that the privilege extends to those three enumerated cases at all times, but that it is confined to these cases only." Sir J. Leach1 held the protection to extend not merely to communications made pending an action or suit, but to every communication made by the client to counsel or attorney, or solicitor, for professional assistance. A motion to compel an attorney to produce papers of his client has been refused with costs. "No counsel, attorney, or solicitor," says Lord Eldon," ought to betray the secrets of his client."3 The depositions of an attorney have been suppressed as to all such matter as came to his knowledge in his character of attorney. Lord Hardwicke thought that the privilege extended to a conveyancer. In Greenough v. Gaskell, a motion was made. that a solicitor, defendant in the suit, should produce certain papers and letters written or received by him in his capacity of confidential solicitor. Lord Brougham reviewed many of the principal decisions upon the subject; those in which the privilege has been allowed, and those in which it has been refused, commented upon several of the cases which have been already mentioned, and decided that a solicitor cannot be compelled to disclose papers delivered, or communications made to him, or letters or entries made by him in that capacity. In considering the effect of these cases, it must be borne in

5

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

2 Wright v. Mayer, 6 Ves. 281. 1801.

3 Winchester v. Fournier, 2 Ves. 447. 1752.

Sandford v. Remington, 2 Ves. 189. 1793.

6

5 South Sea Company v. Dolliffe, quoted in 2 Atk. 525. See Gresley on Evidence, p. 280.

61 M. & K. 100. 1833.

7 Anon. Skinner, 404; Gainsford v. Gramner, 2 Campb. 9; Harvey v. Clayton, 2 Swan. 221, n.; Robson v. Kemp, 5 Esp. 52; Brand v. Ackerman, 5 Esp. 119. Cuts v. Pickering, 1 Ventr. 197; Lord Say's case, 10 Mod. 40; Studdy v. Sanders, 2 Dow.& Ry. 347; Rex v. Watkinson, 2 Strange, 1122; Doe v. Andrews, Cowp. 845; Cobden v. Kendrick, 4 T. R. 431; Duffin v. Smith, Peake, 108; Clark v. Clark, 2 Moo. & M. 3; Williams v. Mundie, Ry. & Moo. 34; Broad v. Pitt, 1 Moo. & M. 234; Bramwell v. Lucas, 2 B. & C. 745.

mind," that the rules1 of evidence are the same on both sides of the Hall," and therefore that weight may be allowed to cases at common law, as well as to cases in equity, for the decision of the rights of parties in respect of discovery. The cases show, that professional men can in no way be examined upon the matter disclosed to them by their clients for professional purposes; and that, whether the matter does or does not relate to a suit still in progress. Moreover, that this secrecy is enforced for the client's benefit. The disclosure must not be made by the counsel, because it would injure him. It follows, by an almost necessary consequence, that it ought not to be required from the client himself. One distinction may possibly be suggested, namely, that the counsel's mouth is shut, in order that he may not have his client at his mercy; while, on the other hand, there is no chance of the client's misrepresenting his own case. We mention the distinction without attributing to it any weight, for if it had been in contemplation, it must have appeared in some of the reported cases, and before this time would probably have caused an attempt to examine the client himself as to the statement made in consultation. The distinction would give rise to this anomaly, which our law always strives to avoid, that of different persons present during a transaction, one may give any false account of it he pleases, and the other must not disclose the truth. The arguments used in the courts have been uniformly of one and the same kind, namely, that the privilege exists for the client's benefit, and applies to the thing communicated, without reference to the particular person, of whom the question is asked. If the client chooses to waive the privilege, the counsel may be subject to examination and cross-examination. It is clear that Lord Abinger regards it as a matter of indifference whether client or counsel is the person examined: "The privileges of the solicitor," he says, 3 "would be worth nothing, if you could file a bill against the client, and make him discover what the solicitor cannot." If, then, that is the

1 Greenough v. Gaskell, ub. sup.

2 2 Stark. on Evid. 231.

3 Knight v. Waterford. 3 Y. & J. 40, 1836.