in the hands of a witness, whether party to a suit or not. And it CHAP. V. will have been observed also that the 23rd Section quoted above, while it says that a person summoned to produce a document must produce it to the Court, contemplates a valid objection on the part of the person producing it to its being read or put in evidence. The expression 'document' is not very definite; and had titledeeds been intended to have been dealt with under it, it may be presumed these would have been more pointedly described. Of course, we speak of a general principle only. There might be special cases of exception, as, for example, where the deed itself, though one of title, was the subject of impeachment; but there can be little question that the rule would, or at all events ought, to be upheld, wherever there was nothing very special to justify a departure from it. It is clear that it ought to be so where the object of production was the mere establishment of the title of one party, by showing the defect of that of the other; as in the instance of an ejectment, and the attempt on the part of a plaintiff to pick holes, or detect flaws, in the deeds of the defendant. Trying the question even by the test of relevancy or materiality, in such a case (as well suggested by Mr. Norton) (1), the plaintiff having to succeed on the strength of his own title, and not on the weakness of his adversary's, the deeds could be hardly either material or relevant to the case of the plaintiff. In the instance of a witness not being a party, Act XIX of 1853 (Section 19), which still affords the rule for the Courts of Civil Jurisdiction in the Presidency of Bengal, enacts that such a witness shall not be bound to produce his own title-deeds, unless he shall have agreed in writing with the party requiring the production, or with some person through whom he claims to produce such deeds. Act X of 1855, which addresses itself more particularly to the same Courts in the Presidencies of Madras and Bombay, contains a like provision (Section 9) with respect to them. The general repealing Act (X of 1861) exempts these provisions from its operation. A will as well as the title-deeds of an estate in mortgage to What constituting the party whose privilege is invoked, and the mortgage-deed itself, title-deeds. would be within the protection. The object is to protect property by excluding the means of picking holes in the documents under which it is held. (1) Norton on Evidence, p. 317. CHAP. V. Indeed, it is not necessary that the deeds should be even those establishing the title. They would be within the protection of the rule, though called for to show the title's defeasance. Thus, in a case in which the witness, an attorney, was required to produce a deed of assignment, with the view of showing a departure with the interest in the property, but objected on the ground that it was the deed of his client, the objection was upheld by the Court; Cresswell, J., observing:-"The attorney was bound to exercise all the control over it which the law authorized him to do. He was fully justified in refusing to produce it, or to answer any questions respecting it. It was said that this was not a title-deed. It was, however, called for as such; and it was intended to show that the title was no longer in the defendants" (1). It need not be even strictly a deed;-any document or paper having relation to the title would be within the protection. Were the deeds, instead of being required in the shape of collateral testimony on some foreign issue, to be the subject of impeachment themselves, or to be connected with a fraud, the subject of investigation, they would not fall within the protection. The document too must be one by the production of which the title of the party on whose behalf it is held might be capable of being affected. Thus, in an action in the nature of an ejectment, where the title of the plaintiff was disputed, the solicitor of a gentleman, who had been in treaty with him for the purchase of the property, but which treaty had gone off, was allowed to produce, on behalf of the defendant, the abstract of title that had been delivered to his client, as furnishing secondary evidence of the contents of the deeds relating to the property, on the ground that the exchange not having been carried into effect, there was no title of the client capable of being affected by the production (2). The protection against the production of the deeds would exdeeds extends tend to all discovery of their contents. It was observed by Baron Alderson:" It would be perfectly illusory for the law to say that a party is justified in not producing a deed, but that he is compellable to give parol evidence of its contents; that would give him, or rather his client through him, merely an illusory protection, if he happens to know the contents of the deeds, and would be only a roundabout way of getting from every man an oppor Protection of to discovery of contents. (1) Volant v. Soyer, 13 Common Bench, p. 236. tunity of knowing the defects there may be in the deeds and_CHAP. V. titles of his estate. I am clearly of opinion, therefore, that, when a party refuses to produce a deed, and is justified in so doing, he ought not to be compelled to give parol evidence of its contents" (1). There have been cases in England in which the Court has taken on itself the inspection of the document, with a view of determining whether its production would be prejudicial to the client; but this course has been considered as objectionable, and would not, according to English law, it seems, be now upheld; and for the cogent reasoning advanced by Maule, J., in Volant v. Soyer above referred to (2). "Suppose," said His Lordship," the Judge were bound to examine the document, and, upon doing so, were to say that it was not a title-deed,-his decision might be made the subject of an argument in open Court, by bill of exceptions; and thus the contents of the deed might be communicated to all the world." tion discretion The Indian Act (Section 23), in the case of objection to the pro- By Indian duction of a document by a witness summoned to produce it, leaves Law, producthe validity of the objection to the decision of the Judge on an ary with Judge. inspection by him of the document. As pointed out above, it does not appear very clearly whether documents of the nature of titledeeds were intended to be dealt with at all by this provision; and even assuming that they were, did the inspection show the document to be in fact a title-deed, there can be little doubt that, under ordinary circumstances, the objection would be sustained, and the document be protected (3). In the case in which a witness being the holder of the deeds Claim of lien claimed a lien upon them, were the lien created by the party seek- on documents. ing the production, or those through whom he derived title, the witness would be entitled to withhold the production until the lien were satisfied. Were the production, however, sought by a third party, the claim to a lien would be no answer, and the protection would fail. Question has been at times raised on the latter point; but it may be now considered as definitely decided by two cases which occurred in the year 1857,-one of Hope v. Liddell before the (1) 9 Meeson & Welsby, p. 612. (2) p. 148. (3) See Norton on Evidence, p. 317. CHAP. V. Lords Justices (1), and the other of the Cameron Coalbrook Railway Company before the present Master of the Rolls (2). In the latter, the Master of the Rolls observed:-"A person who has created a lien, or those claiming under him, cannot compel production of the document on which the lien is claimed. But that is not the case here, and it is very important to bear in mind the distinction which was pointed out by Lord Justice Turner in Hope v. Liddell,-namely, the cases in which the application to the Court has been, not for the production of documents under a subpœnâ duces tecum, but for the delivery up of the documents; and, secondly, cases in which the person requiring the production has been the person against whom the solicitor has claimed a lien.'" And again :-" So far as relates to the lien, my opinion is that the solicitor has no right to insist on it as regards the company, against whom he has no claim.” Protection The interest involved in the protection, is, of course, that of that of witness. the individual, the disclosure of whose affairs is its subject; but it is obvious that, in order to work this out, the protection must be extended to the witness, as a trustee of the objection. Were the latter compelled to a disclosure, the protection of the former would be a dead letter. Caution by Judge of existence of privilege. Protection may be claimed at any stage of proceeding. So completely indeed, does the witness become the representative of the privilege, and so entirely is that representation limited to him, that it has always been considered not to lie in the mouth of any other individual to take the objection; and the legal formulary announces the privilege as not that of the party but of the witness, meaning of course by the term 'party' the party to the cause. Indeed, according to English law, the objection to examination could not be sustained on behalf of the former, nor could counsel on either side, or indeed on behalf of the witness, be heard to argue it. According to English law, though the Judge is at liberty to warn the witness of his privilege, he is not bound to do so. The witness, though having commenced to answer, may stop short and claim his protection, at any stage of the enquiry. He cannot be carried further than he chooses voluntarily to go himself (3). (1) 7 De Gex Macnaghten & Gordon's Reports, p. 331. (2) 25 Beavan, p. 1. (3) R. v. Garbett, 1 Denison, p. 236; 2 Carrington & Kirwan, p. 474. III. The third head of exception is the protection against the CHAP. V. disclosure of communications under the shelter of a professional Exemption on confidence. ground of Professional confidence. The interests of society require for its members the power Principle of of unrestricted communication with their professional advisers; protection. and this could not be had, unless the communication which passed between them on the occasion were protected from divulgement. 66 "The foundation of this rule," says Lord Brougham in a leading case on the subject, that of Greenough v. Gaskell (1), “ is not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings.' What "the interests of justice "here alluded to were, Lord Brougham points out in another governing case on the same subject, that of Bolton v. The Corporation of Liverpool, where he explains that, if such communications were not protected, no man would dare to consult a professional adviser, with a view to his defence, or to the enforcement of his rights; and no man could safely come into a Court, either to obtain redress, or to defend himself (2). Doubtless, in any case in which the rule screens a portion of evidence, however small, and withdraws it from the trial, there may, in that individual instance, be a sacrifice of truth, or of the means of establishing it. Yet that sacrifice is a demand only of a paramount principle of social policy; and that it is a legitimate one we may cite the cogent reasoning of the (then) ViceChancellor Knight Bruce in a case before him involving the discussion, and conveyed in his usual happy language. "Truth, like all other good things," says he, " may be loved unwisely-may be pursued too keenly-may cost too much. And (1) 1 Mylne & Keen, p. 103. See also the remarks by Turner, V. C., in Russell v. Jackson, 9 Hare, p. 391. (2) 1 Mylne & Keen, pp. 94, 95. |