1846. PEARSE v. PEARSE. and of the drafts thereof respectively, and of such drafts of the said instruments as aforesaid respectively? If the same is or are in your possession or power, produce the same; if not, declare what has become thereof respectively, and when last you saw or heard of the same, and what was the date or dates, and the purport and effect thereof, according to the best of your remembrance, recollection, and belief." The seventh exception was to an inquiry relative to a statement alleged to have been made by Mr. Westron's counsel before the Master, to the effect that opinions had been taken upon the validity of the appointment; and to a suggestion that such statement had been made in consequence of instructions received from Mr. Westron or his solicitors. The eighth exception related to an inquiry as to communications between the vendor and the solicitors who prepared the appointment, since the execution of the deeds relating thereto, and the opinions taken thereon. The ninth exception was to an inquiry as to the bills of costs of the solicitor who prepared the deeds of appointment, &c. The exceptions coming on for hearing, the second, third, and fourth were disposed of in the first instance. Mr. Russell and Mr. W. Rudall, for the exceptions. Mr. Swanston and Mr. Belt, contrà. The case of Flight v. Robinson (a) was referred to. The Vice-Chancellor, in disposing of the second exception, observed that the question had arisen in settling interrogatories in the Master's office between vendor and purchaser upon a question of title. It was unnecessary (a) 8 Beav. 22. to say how the matter would have stood if the question to which objection had been made had related to a particular agreement, or particular conversation. The question being asked when and where it was, and in the shape in which it was, his Honor was of opinion that the vendor ought not to be required to answer it, in the present stage of the case at least. The third and fourth exceptions were overruled. On a subsequent day the remaining exceptions came on for argument. Mr. Swanston and Mr. Belt, in opposition to the fifth exception.—The case of Flight v. Robinson (a) decides that communications between attorney and client, or counsel and client, anterior to the suit, and without reference to it, are not privileged. [The Vice-Chancellor.-Is that doctrine consistent with Herring v. Clobery (b), and Cromack v. Heathcote (c)?] In those cases it seems to have been considered that all professional communications between attorney and client are privileged. But supposing the attorney can insist on the privilege to that extent for the benefit of his client, does it follow that the client himself has the same right? We submit that the privilege of the two are not co-extensive; and that the client must disclose communications made to his attorney, unless they have been made in contemplation of or pending a suit: Preston v. Carr (d), Lord Walsingham v. Goodricke (e), Greenlaw v. King (ƒ). It is as right that the client should confess what he knows (whether he has communicated it to his solicitor or not), as that he should confess any other part of the case. Besides, there is a great difference between a man's own statement (a) 8 Beav. 22. (b) 1 Phill. 91. (d) 1 You. & J. 175. (e) 3 Hare, 122. 1846. PEARSE v. PEARSE. Dec. 9th. (c) 2 Brod. & Bing. 4. (f) 1 Beav. 137. VOL. I. C D. G. S. 1846. PEARSE v. PEARSE. Dec. 22nd. and that of his solicitor, who may not state the matter with exactness. The Vice-Chancellor, at the close of this argument, expressed his opinion to be then in favour of the exception, but reserved judgment generally. Mr. Swanston and Mr. Belt then argued against the sixth exception, that, as the cases and opinions inquired after had not been laid before counsel in contemplation of or pending the suit, they were not privileged: Hughes v. Biddulph (a), Radcliffe v. Fursman (b), Bolton v. Corporation of Liverpool (c), Nias v. Northern and Eastern Railway Company (d), Knight v. Marquess of Waterford (e), Storey v. Lord George Lennox (f), Richards v. Jacson (g). The VICE-CHANCELLOR.-Since the argument upon the exceptions in this cause, I have considered not merely those on which I did not, but those also on which I did, express an opinion. The argument touched, indeed more than touched, a general question of some importance, the question, namely, of the liability to compulsory disclosure, or exemption from disclosure, of confidential communications made to a solicitor professionally, or to a counsel professionally, where the communications related to rights of property merely,—were made by an individual not under any fiduciary obligation, nor having a community of right or of interest with any other person,―were made merely on the behalf of the consulting person singly, and were not made during a suit, during a dispute, or after the threat of a suit; the disclosure being sought adversely, not from the solicitor or counsel, but ed. (a) 4 Russ. 190. (b) 2 Bro. P. C. 514, Toml. (c) 1 Myl. & K. 88. (d) 3 Myl. & Cr. 355. (f) 1 Myl. & Cr. 525, 685. (g) 18 Ves. 472. from the consulting person himself. Among the authorities mentioned with reference to this question were Radcliffe v. Fursman, in the House of Lords, and Richards v. Jacson, before Lord Eldon. These two authorities were contended to have established or recognised the liability of the consulting party to compulsory disclosure in a state of circumstances such in all respects as that which I have mentioned. If this is so, the liability must of course be taken to exist; but I must say that I am not nor have ever been satisfied that the two decisions were, as to the former by the House of Lords, or as to the latter by Lord Eldon, intended to establish or recognise such a liability in such circumstances. Upon them, considering what the argument has been, it is, though perhaps not necessary, not, I think, quite out of place, that I should on the present occasion make some remarks, not forgetting that one is, for what it intended to decide, conclusive, and the other, for what it intended to decide, all but conclusive. Instances may without much difficulty be suggested of persons consulting solicitors or laying cases before counsel upon particular subjects being so circumstanced, being in such positions with respect to those subjects, as to be disabled (whatever their secret views or private intentions) from saying that they did so on their own behalf solely, or on account of their own interests merely. Is it improbable that the House of Lords, in deciding Radcliffe v. Fursman, considered Mr. Radcliffe as in such a situation with regard to the case of the contents of which he demurred to the discovery? Nothing turns probably, as far as the House of Lords is concerned, on that part of Lord King's decision which was in favour of Mr. Radcliffe, for there was not a cross appeal. He was trustee of the bonds for the respondent, and was, as his mother's executor, the trustee of the term by which the money, if any, due on the bonds, was secured. The point decided having been decided on a demurrer, is it too much to say that the right inference from the statements in the bill 1846. PEARSE v. PEARSE. 1846. PEARSE v. PEARSE. was, that the case stated for the opinion of counsel was one as to which it was not competent to the appellant to contend that it had been stated on his own behalf alone or on account of his own interest alone? The question alleged to have been put to the counsel seems to have been as to the respondent's right,-seems to have been in effect whether the appellant, as her trustee, had for her benefit a valid claim against himself in his private right. Much stress ought, I agree, not to be laid on the reasons to be found in appeal papers,—they may serve to shew, however, what probably were the points argued, and in this instance one of the respondent's reasons was thus: "For that the statement of the said case was in an affair wherein the appellant was not merely concerned in his own right, but was and still is a trustee for the respondent of the said bonds, and a trustee of the estates which are liable to pay the same." The respondent's appeal case, I may observe too in passing, contains this remark: "Note, the bill nowhere requires any discovery of the counsel's opinion." To this appeal, Lord Hardwicke, who had been one of Mr. Radcliffe's counsel, referred, as we know, in Stanhope v. Roberts (a), where, independently of the submission of the defendant, who had a double character, the plaintiff had or may have had a common right and interest in the draft ordered to be produced. The report in Atkyns certainly does not induce me to take a view of Radcliffe v. Fursman different from that which I should otherwise have taken. With regard to Richards v. Jacson (b), Mr. Vesey's report does not notice the argument or mention any one counsel concerned in it, and the judgment ascribed to Lord Eldon is given ex relatione; -it is not said of whom. I am unable, therefore, to read it with that trust in its correctness with which in general this estimable and valuable reporter's accounts of Lord Eldon's judgments are justly read. Nor |