out of the Statute of Limitations. It was held that the evidence was inadmissible for the plaintiff, Platt, B., observing that it would never have been in the hands of the attorney, except for the purpose of his preparing a case for counsel; and Martin, B., added: "The client might be in error in thinking the communication necessary to be laid before counsel, but if she communicated it bonâ fide, considering it necessary, the communication was privileged and could not be divulged” (u).

A remarkable case, partially restricting this doctrine, was decided some years since. In an action for false imprisonment and malicious prosecution on a charge of felony, it became a material question whether an entry in a book, by which the plaintiff acknowledged the receipt of money which the defendant had charged him with embezzling, existed at the time when the plaintiff was examined before the magistrates, or had been made, as the defendant alleged, by the plaintiff between the examination and before the trial. The counsel who had been concerned for the plaintiff before the magistrates, but who was not concerned for him on the trial, happened to be in court on the latter occasion; and at the suggestion of Jervis, C. J., after consulting Cresswell, J., he was called for the defendant, and asked whether the entry was in the book at the time of the examination before the magistrate. He gave evidence that it was not; and a verdict passed for the defendant. On a rule for a new trial on the

(u) Cleave v. Jones, 6 Ex. 573.

ground that this evidence was improperly admitted, the court held that it was properly admitted, because the witness was required only to disclose something which he had seen, and not what he had been told in his position as counsel. It is perhaps difficult to reconcile this case with principle, as it is not easy to see how the witness possessed his information except by means of documents which came to him only in his character of the plaintiff's counsel (x).

Where a communication between a solicitor and his client appears to be of an irrelevant or unprofessional character, the solicitor will be compelled to disclose it; and therefore a solicitor will be compelled to state what his client has said to him on a matter in which the latter was not asking for legal advice, but only for information as to a matter of fact, even though that fact involved a question of law. Thus, in Bramwell v. Lucas (y), an action by assignees to prove an act of bankruptcy, it was held that the solicitor to the bankrupt is not privileged from saying whether his client had asked his opinion, whether he (the client) could attend a meeting of his creditors without danger of being arrested. The court held that the communication was not privileged, and Lord Tenterden said: "A question for legal advice may come within the description of a confidential communication, because it is part of the attorney's duty, as attorney, to give legal advice; but a question for information as to matter of fact, as

(x) Brown v. Foster, 1 H. & N. 736.

(y) 2 B. & C. 749.

to a communication the attorney has made to others, where the communication might have been made by any other person as well as the attorney, and where the character or office of attorney has not been called into action, has never been held within the protection, and is not within the principle upon which the privilege is founded. Was, then, this a question for legal advice put to Mr. Scott in his character of attorney, or was it not a question for information as to matter of fact, in which the professional character of Mr. Scott as attorney was not considered? It can hardly be supposed that a man could ask, as a matter of law, whether he would be free from arrest while attending a voluntary meeting of creditors, but he might well ask, as a matter of fact, whether any arrangement had been made with the creditors to prevent an arrest." It will be observed that this case shows a tendency to confine the rule of privileged communication within a strict limit; as, with great deference to the learned judge, it may be submitted that the question put by the bankrupt to his attorney seems to be rather one of law than of fact, and is precisely that sort of legal question which ignorant clients put constantly to their solicitors; but as the case was between third parties, perhaps a greater latitude may be presumed to have been allowed on that account (~); but when a statement has been made by either plaintiff or defendant, in the presence of the solicitor of the

(=) Cf. per Lord Cottenham, Desborough v. Rawlins, 3 Myl. & Cr. 515.

opposite party, the solicitor may be called to prove it (a). No communication made to a solicitor by or on behalf of the other side can be confidential (b).

The privilege is the privilege of the client, and may be waived by him, but no presumption adverse to him arises from his not waiving it (c). No waiver arises from the client calling the solicitor as a witness unless he is examined in chief as to the privileged matter. It was held by Malins, V.-C., that where a person had absconded with two wards of court, his solicitor must produce the envelopes of the letters received from him, such envelopes not being privileged communications, and that, even if they were, a solicitor could not aid and abet in concealing from the Court of Chancery the residence of its wards (d). When a solicitor is a party with his client to a fraud, no privilege attaches to the communications with him upon the subject (e); but it is not sufficient that the client committed a fraud if the solicitor was no party to it (ƒ). This is because the rule protecting communications between solicitor and client does not apply to all such communications, but only those which pass in professional confidence, and the contriving of fraud forms no part of the professional occupation of a solicitor (g).

(a) Griffith v. Davies, 5 B. & Ad. 502; Desborough v. Rawlins, 3 M. & C. 515.

(b) Per Cotton, L. J., Lyell v. Kennedy, L. R., 23 Ch. D. 405. (e) Wentworth v. Lloyd, 10 H. L. Cas. 589.

(d) Ramsbotham v. Senior, 17 W. R. 1057.

(e) Russell v. Jackson, 9 Hare, 392.

(f) Charlton v. Coombes, 4 Giff. 372.

(9) Per Lord Cranworth, Follett v. Jefferys, 1 Sim. N. S. 17.

This principle is not apparently restricted to fraud, but extends to any illegal purpose (). A fortiori, a communication made to a solicitor in furtherance of any criminal purpose does not come within the scope of professional employment, and therefore communications made to a solicitor by his client before the commission of a crime, for the purpose of being guided or helped to the commission of it, are not privileged, and this whether the solicitor was or was not aware of his client's intentions; if he was so aware, then the communication would not be in the course of any professional employment; if he was not aware, then there is no professional confidence. This was the ratio decidendi in R. v. Cox (i), which will now be the leading case on the subject. In delivering the judgment of the Court (ten judges) in this case, Stephen, J., said: "We are greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose, would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rules as to the manner in which this consequence should be avoided. The only thing which we feel authorised to say upon this matter is, that in

(h) Russell v. Jackson, ubi supra, per Turner, V.-C.; cited in the judgment in R. v. Cox.

(i) C. C. R., Dec. 20th, 1884.