1850. FOLLETT v. JEFFERYES. 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 VOL. I. N. S. 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. 1850. FOLLETT v. JEFFERYES. 1850: 7th Nov. Husband and wife. Privileged communications. Production of documents. A. being desi- ture was se- WARDE v. WARDE. 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 1000l. 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 1000l. a year for her, upon such real other 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 codefendant, 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. estates as he should thereafter acquire: that the War- Mr. Warde, in his answer, denied that he undertook 1850. WARDE v. WARDE. 1850. WARDE V. WARDE. 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 give 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 |