Taylor's answer: that the privilege insisted on was the privilege of the client and not of the solicitor, and that it was not alleged that Young had acted otherwise than in his professional character: Pearse v. Pearse (1 De Gex & Smale, 12), Reece v. Trye (9 Beav. 316), Greenough v. Gaskell (1 Myl. & Keen, 98), Herring v. Clobery, Jones v. Pugh (1 Phill. 96), Carpmael v. Powis (1 Phill. 687), Dendy v. Cross (11 Beav. 91).

Mr. Bethell, in his reply, referred to Lord Walsingham v. Goodricke (3 Hare, 122). THE VICE-CHANCELLOR [Lord Cranworth]. This was a case of exceptions to the Master's report as to the sufficiency of the answer of the Defendant, Henrietta Savill Taylor, the wife of the Defendant, John Taylor. The Plaintiffs are commissioners of sequestration appointed in a cause of Cowper v. John Taylor and others, in which the Defendant, Taylor, had been ordered to pay a large sum of money into Court. He made default in doing so; and a writ of sequestra-[13]-tion issued against him. The object of the present suit instituted by the sequestrators is to set aside a deed executed by Taylor, purporting to assign away an annuity of £200, to which he was entitled under the will and codicils of Thomas Cape; and, by reason of which assignment, the Plaintiffs allege that they have been improperly prevented from possessing themselves of the annuity.

Taylor's title to the annuity arose under the second codicil to Cape's will; which is as follows:-"I direct," &c.

Cape, the testator, died in January 1848; and his will and codicils were soon afterwards proved by his executor, the Defendant Jefferyes; who possessed assets more than sufficient to pay his debts and legacies. The original bill, after stating these facts, and that the Plaintiffs had made during the spring of the year 1848 many ineffectual attempts to get possession of the annuity, contains the following charges (see ante, pp. 5 and 6); and it prays that the assignment may be declared to be fraudulent, and that the annuity may be secured for the benefit of the Plaintiffs.

Mrs. Taylor, by her answer to the original bill, states as follows (see ante, pp. 6, 7 and 8).

Upon the coming in of this answer a motion was made, before the late ViceChancellor of England, for the production of the documents mentioned in the second part of the schedule. The motion was resisted by the Defendants, Mrs. Taylor and Mr. Young, who [14] contended that the documents came all within the class of privileged communications. His Honour, however, thought differently, and ordered their production, on the ground that they all related to the very deed impeached by the bill.

There was then a motion by way of appeal to Lord Cottenham, who discharged the order of the Vice-Chancellor, being of opinion that none of the authorities warranted the distinction on which the Vice-Chancellor had proceeded. His Lordship, according to the report in the Jurist, vol. xiii. p. 973, added that, no doubt, pleadings might be so framed as to make a special case connecting the discovery sought with the fraudulent act complained of, so as to take the case out of the ordinary rule; but that here no special case was made, and the allegations in the answer brought the case within the ordinary rule.

After this order of Lord Cottenham's, the Plaintiffs amended their bill by introducing the following charges (see ante, pp. 9 and 10).

The Defendant, Mrs. Taylor, having been called upon to answer these amendments, put in an answer by which, in substance, she declined to disclose anything as to the contents of the case or the letters. Her answer was excepted to on that account; but the Master disallowed the exceptions. The Plaintiffs then excepted to the Master's report; and so the matter comes before me.

I have been thus particular in stating the pleadings and referring to what has already been done; because [15] it will, I think, be manifest on considering the proceedings up to the present time, that the question for my decision is brought within very narrow limits. The question before Lord Cottenham did not, it is true, arise on exceptions to the answer; but his Lordship's decision proceeded on principles which would certainly have been applicable to such a case. On the same grounds on which he decided that the Defendant was not bound to produce the case and letters, he would, on the record as it was framed when the matter was before him, have decided that she was not bound to answer interrogatories calling on her to set forth the con

con

tents or the purport and effect of them. The single question, therefore, on which I have to decide is whether the amendments which have been made in the charges of the bill are such as to vary the rights of the Plaintiffs with respect to the discovery to which they are entitled; in other words, whether, adopting the language of Lord Cottenham, the Plaintiffs have now, on the amended bill, made a special case necting the discovery sought with the fraudulent act complained of, so as to take the case out of the ordinary rule. I think they have not. For such a purpose, it is essential that the act complained of should, on the face of the bill, appear to be a fraud. Such was the case of Reynell v. Sprye. There the client penned a letter to be copied and sent to him by the attorney, as if emanating from the attorney himself, with a view to its being shewn to the Plaintiff, so as to lead him to sell his estate at an undervalue. Lord Langdale held that there was no privilege protecting the client or the attorney from producing this letter. So, in the present case, if the annuity had been forfeitable, not on any assignment or attempt to assign, but only on an assignment by way of [16] sale, and the solicitor had been party with Taylor to a scheme for framing a deed which should purport to be but should not, in truth, be a sale; that would be a fraud, and both client and solicitor would be bound to discover all which had passed between them, in reference to the preparation of such a deed. So, again, if the forfeiture had been made to depend on the assignment having been made before a particular date, and the solicitor had been party to a plan for getting the deed ante-dated; and many similar cases may be suggested. But here I can discover no fraud whatever in the transaction, whether as stated by the Plaintiffs or the Defendant. It may not, indeed, be a very moral act in a debtor so to dispose of his property as that his creditors may be effectually prevented from getting execution; but such an act, per se, is no fraud if the disposition is one which the law allows. And the amended charges in this bill amount to no more than this: that the object of Taylor was not really to vest the property in Young for the benefit of his wife; for that, by the express provision of the codicil, he could not do; but to make an assignment which should cause a forfeiture and so give the property to the parties entitled on the happening of the forfeiture. This is the account of the transaction, as stated both in the bill and the answer; and, in my opinion, this was not a fraud according to any definition of fraud which can be recognised in this Court. The transaction, as stated on this bill, is one as to which it was perfectly lawful for the client to ask, and for the solicitor to give professional advice. And this seems to me to be the true test, in a case like the present, as to whether what has passed is or is not privileged. It is distinctly sworn that the documents in question contain or relate to advice so asked for and [17] given with reference to the very question now in dispute; and the case, therefore, is one which I consider as coming within the admitted rule of privilege. I am, therefore, of opinion that the Master is right, and the exceptions to his report must be overruled.

It may not be unfit that I should repeat an observation I made in the course of the argument, namely, that it is not accurate to speak of cases of fraud contrived by the client and solicitor in concert together, as cases of exception to the general rule. They are cases not coming within the rule itself; for the rule does not apply to all which passes between a client and his solicitor, but only to what passes between them in professional confidence; and no Court can permit it to be said that the contriving. of a fraud can form part of the professional occupation of an attorney or solicitor.

[18] WARDE v. WARDE. Nov. 7, 1850.

[Reversed, 3 Mac. & G. 365; 42 E. R. 301. See O'Shea v. Wood [1891], P. 244.] Husband and Wife. Privileged Communications. Production of Documents.

A. being desirous to sell an estate on which his wife's jointure was secured, she and her trustees released the estate from her jointure, and he covenanted to secure it on such estates as he might thereafter acquire. He afterwards purchased another estate, but declined to perform his covenant. Whereupon she filed a bill to compel

him to perform it, charging that she entered into the aforesaid arrangement under the advice of her husband's solicitor and counsel and without having any other legal advice, and charging also that the solicitor, who was made a Co-defendant, had in his possession cases for the opinion of counsel and the opinions thereon and other documents relating to the matters mentioned in the bill. The husband and his solicitor admitted these charges, but added that the cases and opinions came into and were in the solicitor's possession as the husband's solicitor; and the husband said that the cases were laid before counsel on his behalf and by his direction and not on behalf or by the direction of any other person. A motion, on the wife's behalf, for the production of the cases and opinions and of certain letters which had passed between the husband and his solicitor, and which he alleged to be confidential communications, was refused.

The bill was filed in August 1849 by Marianne, the wife of the Defendant, Charles Thomas Warde, who were then living separate from each other. It stated that, by the settlement on their marriage, dated in 1834, Mr. Warde conveyed estates in Warwickshire to trustees, in trust to secure a jointure of £1000 a year to Mrs. Warde; that, in 1844, Mr. Warde agreed to sell those estates; and that Mrs. Warde and her trustees, at his request, consented to release them from the jointure, on his undertaking to secure it on an estate at Luton in Bedfordshire, which he had agreed to purchase; that, in pursuance of that arrangement, Mrs. Warde and her trustees joined in executing a deed, dated the 20th of September 1845, by which the Warwickshire estates were conveyed to Mr. Warde in fee, freed from the jointure, and he covenanted with his wife's trustees to secure a jointure of £1000 a year for her, upon such real [19] estates as he should thereafter acquire; that the Warwickshire estates were afterwards sold, and the proceeds paid to Mr. Warde; and he was thereby enabled to pay for the Luton estate; and that he had paid for it, and thereby entitled himself to have it conveyed to him; but that he had not secured the jointure upon it or upon any other estate. The bill charged that, in 1845, Mr. Warde laid before counsel divers cases for their opinion, and gave to counsel instructions for the preparation of deeds for the purpose of releasing the Warwickshire estates from the jointure, and that a considerable correspondence passed between them or his legal advisers, and the Defendant, J. B. Lawes (one of his wife's trustees), and his legal advisers; and that, by such cases and instructions and correspondence, if produced, the fact that Mr. Warde intended and agreed to charge the Luton estate with the jointure would appear; that Mrs. Warde had no separate solicitor or counsel, and that she entered into the aforesaid arrangement for the release of the Warwickshire estates from her jointure, and executed the indenture of September 1845, under the advice of Mr. Warde's solicitor and counsel, and without having any other legal advice: and that the Defendants, or some one of them, had in their possession or power, or in the possession or power of their solicitors or agents, divers deeds, cases for the opinion of counsel, and instructions to counsel for the preparation and settlement of deeds and other writings relating to the matters aforesaid, or by which the truth thereof would appear, and that they ought to produce the same. The bill prayed that Mr. Warde might be decreed to secure a jointure of £1000 a year to the Plaintiff upon the Luton estate.

Mr. Warde, in his answer, denied that he undertook [20] to secure the jointure on the Luton estate, and said that, in August 1847, finding himself unable to complete the purchase of that estate, he agreed to sell it to Mr. John Shaw Leigh, and that that gentleman had instituted a suit against him to enforce the performance of the agreement; and that he was unable to charge the jointure on that estate, and, therefore, had refused so to do. He admitted that in 1845 he did lay or cause to be laid, before counsel, divers cases for their opinion, and gave or cause to be given, to counsel, some general instructions for the preparation of all necessary deeds for the purpose of releasing the Warwickshire estates from the jointure; and that some considerable correspondence respecting such release did pass between him and his legal advisers, and the Defendant Lawes and his legal advisers; and he submitted that he was not bound to produce or answer as to the purport or nature of the instructions given by him to his solicitors or legal advisers, or of cases laid before counsel or of the correspondence that passed between him and his solicitors, having

reference to the matters at issue in the cause: but he admitted that, by such cases, instructions and correspondence, the fact that he did, at one time, intend to charge the Luton estate with the jointure as soon as the purchase of it was completed, would appear, but he denied that it would appear that he agreed so to charge that estate. He admitted that his wife had no separate solicitor or counsel, and that she entered into the arrangement for the release of the Warwickshire estates from her jointure, and executed the indenture of September 1845 under the advice of his solicitors and counsel, without having any other legal advice. He added that he had, in the first and second schedules to his answer, set forth a list of all the particulars inquired after by the bill, which were then in his possession; but [21] that all the particulars in the second schedule consisted of cases and the opinions of counsel thereon, and letters between him and his solicitors relating to matters at issue in the suit; and that the particulars contained in the second part of the second schedule consisted of cases, opinions and letters stated, given and written after the dispute between him and his wife, as to the matters at issue in the cause, had arisen, and with a view to and in expectation of this suit; and, therefore, he submitted that he ought not to be compelled to produce any of the particulars contained in the second schedule; and, save as aforesaid, he denied that he had in his possession or power, or in the possession or power of his solicitors or agents, any writings relating to the matters mentioned in the bill.(1)

Henry Bury, another Defendant to this suit, said, in his answer, that in 1844 Mr. Warde contracted for the purchase of the Luton estate, and that before, at and subsequently to the date of that contract, he was the solicitor and professional adviser of Mr. Warde, and that he was and acted as such in the purchase of the Luton estate, and also in the sale of the Warwickshire estates, and in all matters relating thereto respectively, except as to the contract for the purchase of the Luton estate, [22] and several contracts for the sale of parts of the Warwickshire estate, which Mr. Warde signed without professional advice: that he had not any knowledge or information concerning the said contract or concerning the sale of the Warwickshire estates or any particulars relating thereto respectively, except what he had acquired in his confidential character as such solicitor; and that his knowledge of and relating to the said contract and the sale of the Warwickshire estates, and all particulars and matters relating thereto respectively was obtained by and confided to him merely in his character of such solicitor; that he had not any authority or permission from Mr. Warde to make any disclosure to Mrs. Warde relating to the said contract, or to the sale of the Warwickshire estates, or the matters consequent thereon; and that he was advised that he could not, without a violation of his professional duty as such solicitor as aforesaid, make any further disclosure in relation to the matters aforesaid or any of them. He admitted that Mrs. Warde had not any separate solicitor or counsel; and that she entered into the arrangement for the release of the Warwickshire estates from her jointure, and executed the indenture of the 20th of September 1845 under the advice of her husband's solicitor and counsel, and without having any other legal advice: that there were in his possession, as such solicitor as aforesaid, divers documents, cases and the opinions of counsel thereon, and other papers and writings relating to the purchase of the Luton estate and the sale of the Warwickshire estates, all of which belonged to and came into his possession as the solicitor of Mr. Warde; and he was advised and submitted that, under the circumstances aforesaid, he could not, without a violation of professional confidence, and, therefore, that he ought not to disclose whether thereby, or by any of them, if pro-[23]-duced, the truth of the matters in the bill mentioned, or any of them, would appear; however, that he had, in the second schedule to his answer, set forth a list of all such

(1) According to the brief with which the reporter was furnished, the second schedule to Mr. Warde's answer consisted of one part only. The following were its contents:-13th Nov. 1847-draft case and copy thereof with the opinion of Mr. Giffard thereon: two bundles of letters addressed by Mr. Bury (who had been Mr. Warde's solicitor) to Mr. Warde, from 1845 to 1847: twenty-three letters from Messrs. Clarke & Co. to Mr. Warde; and one letter from Mr. Lowe to Messrs. Clarke; but who Messrs. Clarke and Mr. Lowe were did not appear.

documents, cases and opinions of counsel, papers and writings as were then in his possession as such solicitor as aforesaid; and he submitted to the judgment of the Court whether, under the circumstances aforesaid, he was or was not bound to produce the same. The last-mentioned schedule contained a list of cases and opinions dated in 1844, 1845 and 1846: of instructions for and drafts of conveyances of the Warwickshire estates: of drafts, letters and papers relating to the sale of parts of those estates and to the purchase of the Luton estate of letters written by Mr. Warde and Mr. Lawes to Mr. Bury in 1844, 1845 and 1846; of copies of letters from Bury to Mr. Warde during the same years; and of bills of costs relating to Mr. Warde's business.

After notice of a motion for the production of the documents admitted by Mr. Warde and Mr. Bury to be in their possession, and particularly of those alleged by Bury to be privileged, had been served, Mr. Warde filed an affidavit stating that Bury was his solicitor in and prior to 1844, 1845 and 1846; that, when he put in his answer, he did not recollect that Bury, who ceased to be his solicitor in June 1847, had any documents belonging to him; and, therefore, the documents mentioned in the second schedule to Bury's answer were omitted in the schedules to his answer; but that he was now informed and believed that Bury had those documents in his possession; and that the same came into and still were in Bury's possession, as his late solicitor and professional adviser: that he believed that the greater part of those documents consisted of instructions to counsel and cases for the opinion of counsel and the opinions [24] thereon and copies thereof, and letters between himself and Bury as his solicitor, relating to the matters at issue in the cause; and, in particular, that certain of those instructions, cases and opinions (which he specified) were given to, laid before and obtained from counsel on his behalf and by his direction, and not on behalf of or by the direction of any other person, after he had agreed to purchase the Luton estate and to sell the estates charged with the jointure, and after some discussion had arisen with reference to the proposed arrangement for releasing those estates from the jointure which was afterwards carried into effect, and which was in question in this suit and that certain of the letters and copies of letters (which also he specified) were confidential letters and copies of confidential letters which passed between him and Bury as his solicitor, and that some of them were written after he had agreed to purchase the Luton estate and to sell the estates charged with the jointure, and after some discussion had arisen with reference to the before-mentioned arrangement: and, therefore, he submitted that none of the particulars therein before mentioned ought to be produced: and, as to all the other items contained in the second schedule to Bury's answer, he said that he was not able, from the description thereof contained therein, to specify whether any of them were or were not of such a nature, or privileged in such a manner, as the particulars therein before mentioned, and which he had thereby submitted ought not to be produced; and that he should not be able to satisfy himself on that point without an opportunity, which he had not yet had, of inspecting the same.

:

Mr. Stuart and Mr. Dickinson, in support of the motion, said that, at the time when the transaction took [25] place to which the documents in question related, no dispute or controversy existed between Mr. and Mrs. Warde, but there was a community of object and an identity of interest between them: that the cases were stated and the opinions taken, not with a view to defeat Mrs. Warde's jointure, but in order to ascertain how it could be effectually secured: and that Mr. Warde, in his answer, admitted, in effect, that his solicitor in the transaction was his wife's solicitor also, for he admitted that she had no separate solicitor or counsel and that she acted under the advice of his legal advisers: that the questions in this suit arose long after the arrangement spoken of in Mr. Warde's affidavit had been carried into effect; and there was nothing in this case to bring any of the documents sought to be produced within the exception made in the order in Hughes v. Biddulph (4 Russ. 190; see 192). Mr. Messiter appeared for the Defendant Bury but did not address the Court, as counsel appeared to oppose the motion on behalf of Mr. Warde.

Mr. Bethell and Mr. Erskine, for Mr. Warde, said that there was not a single passage in either of the answers which shewed that the documents were prepared on behalf of Mrs. Warde as well as her husband; but that it appeared from the answers

V.-C. VI.-1*