provided that notice to produce the original were duly given, and the production were resisted on the ground of privilege.' Indeed,” it has more than once been laid down, that the mere fact that papers and other subjects of evidence have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, constitutes no valid objection to their admissibility, provided they be pertinent to the issue. For the court will not notice whether they were obtained lawfully or unlawfully, nor will it raise an issue to determine that question.3

5

§ 923. In order to protect communications, they must have 844 been made to the legal adviser, while he was acting, or at least while he was considered by the client as acting, in that capacity. The rule, however, does not require any regular retainer, or any particular form of application or engagement, or the payment of any fees; it is enough if the legal adviser be, in any way, consulted in his professional character." It would also seem that if a person be consulted confidentially, under the erroneous supposition that he is a lawyer, he cannot be compelled to disclose the matters communicated.' But where a prisoner in custody on a charge of forgery wrote to a friend, requesting him "to ask Mr. G. or any other attorney " a question respecting the punishment of forgery, the letter was admitted in evidence, on the ground that it

1 Cleave v. Jones, 21 L. J., Ex. 106, per Parke, B.; Lloyd v. Mostyn, 10 M. & W. 481, 482, per id., questioning the contrary decision of Bayley, J., in Fisher v. Heming, cited 1 Ph. Ev. 170. In Lloyd v. Mostyn, Parke, B., likened the case to that of an instrument being stolen, and a correct copy taken, and asked whether it would not be reasonable to admit such copy? If the client sustains any injury from such improper disclosure being made, an action will lie against the solicitor. Taylor v. Blacklow, 3 Bing. N. C. 235.

2 Gr. Ev. 254A, in great part.

3 Legatt v. Tollervey, 14 East, 301; Jordan v. Lewis, id. 305, n.; Doe r. Date, 3 Q. B. 619; Com. v. Dana, 2 Metc. 329, 337.

Smith v. Fell, 2 Curt. 667. There a communication was held to be privileged, which was made by a party to a solicitor, under the impression that the latter acceded to a request to act as his legal adviser.

5 Gr. Ev. 241, in part.

6 Foster v. Hall, 12 Pick. 89. See, also, Bean v. Quimby, 5 New Hamps. 94. 7 Calley v. Richards, 19 Beav. 401, 404, per Romilly, M. R., questioning Fountain v. Young, 6 Esp. 113, per Sir J. Mansfield.

did not appear that the relation of attorney and client ever subsisted between Mr. G. and the prisoner.' So, if a party were to go to a solicitor to discount a forged note, or to raise money on a forged will, what passed at the interview would of course not be privileged, unless, perhaps, in the event of the solicitor being consulted as the party's own lawyer.2

§ 924. The question of privileged communications has hitherto ? 845 been considered with respect to cases in which the legal adviser is called as a witness; but although the privilege is, as before observed, that of the client, and not that of the professional adviser, the rule of protection was for many years laid down in less broad terms, where the client himself was the party interrogated.3 It was indeed long since established, that, in that event, all communications between the solicitor and client, whether pending and with reference to litigation, or made before litigation and with reference thereto, or made after the dispute between the parties followed by litigation, though not in contemplation of, or with reference to, that litigation, were protected; as also were communications made respecting the subject-matter in question, pending, or in contemplation of, litigation on the same subject with other persons, with the view of asserting the same right." If, however, communications passed between a client and solicitor before any dispute had arisen between the client and his opponent, the opponent could compel the client by a bill in equity to disclose these communications, although they related to the matters which

1 R. v. Brewer, 6 C. & P. 363, per Park, J.

2 R. v. Farley, 2 C. & Kir. 313, 317, 318. See ante, ? 912; post, ? 929.

3 See Maccann v. Maccann, 3 Swab. & Trist. 142, per Cresswell, J. O.

♦ Holmes v. Baddeley, 1 Phill. 476; per Wigram, V.-C., in Ld. Walsingham v. Goodricke, 3 Hare, 124, 125, citing Bolton v. Corp. of Liverpool, 3 Sim. 467; 1 Myl. & K. 88, S. C.; Hughes v. Biddulph, 4 Russ. 190; Goodall v. Little, 1 Sim. N. S. 155; Thompson v. Falk, 1 Drew. 21; Vent v. Pacey, 4 Russ. 193; Clagett v. Phillips, 2 Y. & C., Ch. R. 82; Combe v. Corp. of London, 1 id. 631. See, also, Woods v. Woods, 4 Hare, 83; Reece v. Trye, 9 Beav. 316; Adams v. Barry, 2 Y. & C., Ch. R. 167; Knight v. M. of Waterford, 2 Y. & C., Ex. R. 38; Curling v. Perring, 2 Myl. & K. 38; Kennedy v. Lyell, L. R., 23 Ch. D. 387, per Ct. of App.; S. C. nom. Lyell v. Kennedy, L. R., 9 App. Cas. 81, per Dom. Proc.; 53 L. J., Ch. 449, S. C.; and Nias v. North. & East. Ry. Co., 3 Myl. & Cr. 355. These cases overrule Preston v. Carr, 1 Y. & J. 175, and Newton v. Beresford, 1 You. 376. See 3 Hare, 129.

formed the subject of the suit, except so far as they contained mere legal advice or opinions.1

2

3

§ 925. This doctrine was propounded in the case of Radcliffe § 846 v. Fursman by the House of Lords, at a time when the subject of professional confidence was not developed to the same extent as it is at the present day; but although that decision was afterwards disapproved of by almost every judge under whose notice it was brought, and its principle was more than once successfully exposed and refuted, it was still reluctantly followed till the year 1873, when Lord Chancellor Selborne had the hardihood to set it at nought in the important case of Minet v. Morgan.

§ 926. If a solicitor be employed for two parties, as for mortgagor 8 and mortgagee, and peruse on behalf of the former his abstracts of the title, he cannot, as against him, disclose their contents; and where a professional man was engaged by vendor and purchaser to

Ld. Walsingham v. Goodricke, 3 Hare, 122, per Wigram, V.-C., reluctantly submitting to Radcliffe v. Fursman, 2 Br. P. C. 514, Toml. ed. See, also, Penruddock v. Hammond, 11 Beav. 59; Hawkins v. Gathercole, 1 Sim. N. S. 150; Beadon v. King, 17 Sim. 34; and Greenlaw v. King, 1 Beav. 137, in which last case Ld. Langdale compelled a son and heir to discover a case, which had been submitted to counsel by his father, and had come with the estate to his hands. See, contrà, Wilson r. Northampton & Banbury Junct. Ry. Co., 14 Law Rep., Eq. 477, per Malins, V.-C. See, further, Manser v. Dix, 1 Kay & J. 451, per Wood, V.-C.; Macfarlan v. Rolt, 14 Law Rep., Eq. 580, per Wickens, V.-C. and Calley v. Richards, 19 Beav. 401, 405, per Romilly, M. R.

22 Br. P. C. 514, Toml. ed.

3 Per Wigram, V.-C., 3 Hare, 127.

4 See Bolton v. Corp. of Liverpool, 1 Myl. & K. 88, per Ld. Brougham; Pearse v. Pearse, 1 De Gex & Sm. 24, 25, per K. Bruce, V.-C.; Walker v. Wildman, 6 Madd. 47; Preston v. Carr, 1 Y. & J. 175; Ld. Walsingham r. Goodricke, 3 Hare, 127-130; Bp. of Meath v. M. of Winchester, 10 Bli. 375, 455; Pearse v. Pearse, 1 De Gex & Sm. 12. See, also, two articles in Law Mag., vol. xvii., pp. 51-74, and vol. xxx., pp. 107

123.

58 Law Rep., Ch. Ap. 361; 42 L. J., Ch. 627, S. C.; followed by Hall, V.-C., in Turton v. Barber, 17 Law Rep., Eq. 329; 43 L. J., Ch. 468, S. C.; and in Bacon v. Bacon, 34 L. T. 349; and by C. P. D. in Mostyn v. West Mostyn Coal & Iron Co., 34 L. T. 531. See, also, Bullock r. Corry, L. R., 3 Q. B. D. 356; 47 L. J., Q. B. 352, S. C. nom. Bullock v. Corrie.

6 Doe v. Watkins, 3 Bing. N. C. 421; 4 Scott, 155, S. C. But see R. r. Avery, 8 C. & P. 596, cited post, 929.

prepare the deeds, and the draft conveyance was confidentially deposited with him by both parties, it was held that he could not produce it at the trial against the interest of the purchaser's devisees, though with the consent of the vendor.' If, however, a solicitor, acting as such for opposite parties, has an offer made to him by the one for the purpose of being communicated to the other, he may be called upon to disclose the nature and terms of this offer at the instance of either party." And, where two persons, having a dispute about a claim made by one of them upon the other, went together to a solicitor, when one of them made a statement, and instructed the solicitor to write a letter to a third party on the subject of the claim,—it was held that, in a subsequent action between these two persons, both the statement and the letter were admissible in evidence. So, if a wife were induced by her husband to deal with her separate interest under the advice of her husband's solicitor, he would be regarded by the client as acting for both husband and wife; and, consequently, in the event of any dispute arising between the married couple, each party would be entitled to call for the production, and to have full inspection, of all documents that might have come into possession of the solicitor in the course of the transaction. In all these cases the question would seem to be, was the communication made by the party to the witness in the character of his own exclusive solicitor? If it was, the bond of secrecy is imposed upon the witness; if it was not, the communication will not be privileged."

§ 927. The protection does not cease with the termination of the 849. suit, or other litigation or business, in which the communications

Doe v. Seaton, 2 A. & E. 171; 4 N. & M. 81, S. C.

Baugh v. Cradocke, 1 M. & Rob. 182; Cleve v. Powel, id. 228; Perry v. Smith, 9 M. & W. 681; Reynell v. Sprye, 10 Beav. 51.

3 Shore v. Bedford, 5 M. & Gr. 271. See, also, Griffith v. Davies, 5 B. & Ad. 502, and Weeks v. Argent, 16 M. & W. 817.

Warde v. Warde, 3 M. & Gord. 365; overruling a decision by Ld. Cranworth in the same case, reported 1 Sim. N. S. 18.

5 Perry v. Smith, 9 M. & W. 682, 683, per Parke, B.; Reynell v. Sprye, 10, Beav. 51.

6 Gr. Ev. 243, in part.

3

were made; nor is it affected by the party's ceasing to employ the solicitor, and retaining another, nor by any other change of relation between them, nor by the solicitor's being struck off the rolls,' nor by his becoming personally interested in the property, to the title of which the communications related, nor even by the death of the client. The seal of the law, once fixed upon the communications, remains for ever, unless it be removed either by the party himself,* in whose favour it was placed, or perhaps, in the event of his death, by his personal representative; and, therefore, if the client becomes a bankrupt, his trustee cannot waive the privilege without his particular permission." Neither does the client waive his privilege by calling the solicitor as a witness, unless he also examines him in chief to the matter privileged;' and even in that case, it has been held in Ireland, that the cross-examination must be confined to the point upon which the witness has been examined in chief.8

§ 928. In stating that the privilege does not terminate with the 850 death of the client, care must be taken to distinguish between cases where disputes arise between the client's representatives and strangers, and those in which both the litigating parties claim under the client. In the former class of cases no doubt the protection will survive for the benefit of those who represent the client; but in the latter, it would be obviously unjust to determine that the privilege should belong to the one claimant rather than to the other.

1 Ld. Cholmondeley v. Ld. Clinton, 19 Ves. 268.

2 Chant v. Brown, 7 Hare, 79.

3 Wilson v. Rastall, 4 T. R. 759, per Buller, J.; Parker v. Yates, 12 Moore, 520. But see Charlton v. Coombes, 32 L. J., Ch. 284, per Stuart, V.-C.; 4 Giff. 372, S. C.

Merle v. More, Tr. 341, 358, 408.

Ry. & M. 390, per Best, C. J.; Baillie's case, 21 How. St. "If the client be willing, the court will compel the counsel to discover what he knows," per North, C. J., in Lea v. Wheatley, in C. B. Pasch. 30 Car. 2, cited in n. to 20 How. St. Tr. 574. See, also, Blenkinsop v. Blenkinsop, 17 L. J., Ch. 343, and Chant v. Brown, 7 Hare, 79.

5 Doe v. M. of Hertford, 19 L. J., Q. B. 526.

6 Bowman v. Norton, 5 C. & P. 177, per Tindal, C. J.

Vaillant v. Dodemead, 2 Atk. 524; Waldron v. Ward, Sty. 449; Bate v. Kinsey, 1 C. M. & R. 38.

8 M'Donnell v. Conry, Ir. Cir. R. 807, per Richards, B.