8 D. & Ry. 726. Where a solicitor is employed both by vendor and vendee to draw a conveyance, the draft of which is perused by another solicitor on behalf of the vendee, the former solicitor will not be allowed to produce the draft of the conveyance against the wishes of the party claiming under the vendee. Doe d. Strode v. Seaton, 2 Ad. & E. 171. And generally where two parties employ one and the same solicitor he cannot disclose the title of either. Thus, where a borrower applies for a loan to the solicitor of the lender, and delivers him an abstract of title, the solicitor cannot afterwards be called against the borrower to prove the abstract. Doe d. Peter v. Watkins, 3 N. C. 421. Nor can admissions in conversation between the solicitors of the two parties relating to the cause be disclosed, unless made expressly for dispensing with proof in court of the facts stated. Petch v. Lyon, 9 Q. B. 147. Where a private account book delivered by the defendant to the plaintiff as his solicitor to prepare a case for counsel was tendered to fix the defendant with an admission of liability on a note made by defendant to plaintiff, the court held it inadmissible. Cleave v. Jones, 7 Exch. 421; 20 L. J., Ex. 239; Ex. Ch.

Matters communicated by the client to his counsel, or solicitor, with a view to professional assistance, or in a professional capacity, even though not made with reference to legal proceedings either existing or in contemplation, are privileged from disclosure; Clark v. Clark, 1 M. & Rob. 3; Cromack v. Heathcote, 2 B. & B. 4; Walker v. Wildman, Madd. & Geld, 47; Greenough v. Gaskell, 1 Myl. & K. 98; and see 4 B. & Ad. 876; Carpmael v. Powis, 1 Phill. Ch. 687; Robson v. Kemp, 5 Esp. 52; Turton v. Barber, L. R., 17 Eq. 329, following the principle laid down in Minet v. Morgan, L. R., 8 Ch. 361; see also cases collected ante, p. 146. The privilege or obligation of a legal adviser to withhold the communications between himself and client does not rest simply on the ground of confidence, for such a ground would extend the rule to many other cases where no privilege exists, but on a regard to the interests of justice, which require unreserved information from clients to those who are necessarily employed by them in the conduct of legal business. Greenough v. Gaskell, Minet v. Morgan, supra. On this principle a solicitor cannot be called to prove that a lease shown to him by his client at a professional interview was then unstamped. Wheatley v. Williams, 1 M. & W. 533. And where the assignees of a bankrupt brought trover for a lease, they were not permitted to call the solicitor of the bankrupt to show that it had been deposited with the defendant as a security after the act of bankruptcy. Turquand v. Knight, 2 M. & W. 98. And it seems that where the solicitor is so employed as to give the court a summary jurisdiction over him, his character is confidential within the rule. Per Alderson, B., S. C. Id. It is said, too, that a scrivener is on the same footing; at least where he is a solicitor also. S. C. Id. 100; Anon., Skinner, 404; Lill. Pr. Reg. 556. The same rule applies in an action for divorce, even when the Queen's Proctor has intervened. Branford v. Branford, 4 P. D. 72.

The privilege is that of the client, and not of the solicitor; and formerly the court prevented the solicitor, though he were willing, from making the disclosure; B. N. P. 284; Wilson v. Rastall, 4 T. R. 759; unless the client waived the privilege, which, of course, he might do, at least in cases where the privilege was for his benefit only. Merle v. More, Ry. & M. 390; and see Id. 391, n. It seems that the evidence of the solicitor, in relation to a privileged matter, will be received, if the solicitor be willing to give it. Hibberd v. Knight, 2 Exch. 11. The judge is the proper person to decide whether the communication is privileged, subject to revision by the court. Cleave v. Jones, 7 Exch. 421; 20 L. J., Ex. 238; Ex. Ch. And he may hear witnesses to satisfy himself on this point. Ib.

It seems that no adverse presumption is to be drawn against a person refusing to allow his former solicitor to disclose statements he has made professionally to the solicitor. Wentworth v. Lloyd, 10 H. L. C. 589; 33 L. J., Ch. 688; per Ld. Chelmsford.

If the solicitor of one of the parties is called by his own client, and examined as to a matter which has been the subject of confidential communication, he may be cross-examined as to that matter, though not as to others. Vaillant v. Dodemead, 2 Atk. 524.

A party himself is not bound to disclose matters as to which his information is derived from privileged communications, the matters not being merely statements of fact patent to the senses. Kennedy v. Lyell, 23 Ch. D. 387, C. A.

What matters may be disclosed.] Matters not communicated to a solicitor in his professional capacity, as where he acts as under-sheriff at the time, must be disclosed. Wilson v. Rastall, 4 T. R. 753; Cobden v. Kendrick, Id. 431. So, matters communicated before the retainer. Cuts v. Pickering, 1 Vent. 197. All matters not confidentially communicated must be disclosed, as well as all matters which the solicitor would have known without being intrusted as solicitor in the cause; B. N. P. 284; provided the information was obtained by him independently, and not in the course of his professional employment. See observations in Wheatley v. Williams, 1 M. & W. 540, 541; and in Magrath v. Hardy, 4 N. C. 782, 795. So where counsel has given an opinion otherwise than in a professional capacity it must be disclosed. Smith v. Daniell, L. R., 18 Eq. 649. And a person who is not a solicitor may be compelled to disclose communications which have been made to him under a mistaken idea that he was one. Fountain v. Young, 6 Esp. 113.

Thus a solicitor may be called to prove a deed executed by his client, which he has attested; Doe d. Jupp v. Andrews, Cowp. 846; and when so called, he may be cross-examined as to what passed between him and his client at the time. Cleve v. Powel, 1 M. & Rob. 228. So, to prove the contents of a notice to produce; or an erasure in a deed belonging to his client; B. N. P. 284; or the delivery of a particular paper by his client; Eicke v. Nokes, M. & M. 304; or to prove who employed him to defend the cause; Levy v. Pope, Id. 410; or that he is in possession of a particular document belonging to his client, so as to let in secondary evidence of its contents after proof of notice to produce it; Bevan v. Waters, Id. 235 ; Coates v. Mudge, 1 Dowl. N. S. 540. And the solicitor may be called upon to state whether he has not the document in court. Dwyer v. Collins, 7 Exch. 639. So a communication between a solicitor and his client relative to a matter of fact only, where the character or office of solicitor is not called into action, is not privileged. Bramwell v. Lucas, 2 B. & C. 745. The defendant's solicitor may be called by the plaintiff to prove admissions made by his client, the defendant, in a conversation between plaintiff and defendant in his presence; though he cannot be allowed to prove such admissions in a conversation between himself and his client. Griffith v. Davies, 5 B. & Ad. 502. Accord. Shore v. Bedford, 5 M. & Gr. 271; Weeks v. Argent, 16 M. & W. 817. And where two parties employ the same solicitor, a letter by one of them to the solicitor, containing an offer to be made to the other, may be given in evidence against the writer of it. Baugh v. Cradocke, 1 M. & Rob. 182. So an application by one for time to pay money to the other. Perry v. Smith, 9 M. & W. 681. In an action for work done as solicitor of the defendant, the defendant, in order to show the plaintiff was retained by B. and not by defendant, may prove admissions made by the plaintiff to the professional

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agent employed by him to sue out process in an action by B., which action was the work alleged to be done by the plaintiff for the defendant. Gillard v. Bates, 6 M. & W. 547.

Although a solicitor is not bound to disclose or produce deeds deposited with him as solicitor (vide ante, p. 146), yet if such deeds form no part of his client's title, he is bound to produce them; as where the solicitor for the lessor holds a lease, he may be subpoenaed by the lessee to produce it. Doe d. Courtail v. Thomas, 9 B. & C. 288. An attorney had received from his client, a former rector (who was also patron), a book to collect tithes by and also a map of the glebe, with a view to a sale of the advowson in an action by the succeeding incumbent (who was presentee of the purchaser of the advowson), for land claimed as glebe, it was held that the attorney might be called upon to produce both, as evidence against him. Doe d. Marriott v. Hertford, Ms. of, 19 L. J., Q. B. 526. Where an attorney, employed by a client, B., to negotiate an exchange of land with A., which went off, obtained an abstract of title from A., he might produce it in a suit by A., for recovery of the land from a defendant claiming under A's ancestor, as secondary evidence against the plaintiff of the original deeds, although he had not had B.'s permission. Doe d. Ld. Egremont v. Langdon, 12 Q. B. 711. See further, ante, pp. 146, 147.

In an action by a cestui que trust against her trustee, a communication made by the defendant to an attorney relating to the matter of the trust was, on the ground that the real interest was in the plaintiff, held to be not privileged. Shean v. Philips, 1 F. & F. 449, Erle, Ĵ. See also Mason v. Cattley, 22 Ch. D. 609.

In the case of testamentary instructions to the testator's solicitor for drawing his will, what passed on the subject of that will as to any secret trust will be admissible in a suit between executors and next of kin. In such a case, indeed, both claim under the testator, and it would seem arbitrary to hold that the privilege belongs to one of the claimants more than to the other. Turner, V.-C., Russell v. Jackson, 9 Hare, 387; 21 L. J., Ch. 146. It seems, too, that an illegal purpose, or a fraud contemplated, will not be privileged from disclosure; for it is no part of professional duty to be assisting in such cases. S. C. Thus, where A. applied to an attorney to advance money on a forged will, which the attorney refused to do, and he made no charge to A. for the interview, the communication was held not privileged. R. v. Farley, 1 Den. C. C. 197; R. v. Jones, Ib. 166. A counsel engaged for A. on a former inquiry on a criminal charge, may be called at a subsequent trial of an action wherein A. is a party, to prove as against him the state of a document produced and shown in evidence by A. on the former trial. Brown v. Foster, Î H. & N. 736; 26 L. J., Ex. 249. The inquiry was, whether a certain entry was in a book when produced on the first occasion, which A. was suspected of having fraudulently made afterwards; and the counsel was called to negative the existence of it on the previous hearing.

Where the client is a witness he is liable to be cross-examined as to the instructions he had given his solicitor in another proceeding. Maccann v. Maccann, 3 Sw. & Tr. 142; 32 L. J., P. M. & A. 29.

Communications made to a herald or pursuivant of Heralds' College employed in the conduct and support of a protest against the enrolment of a pedigree therein are not privileged. Slade v. Tucker, 14 Ch. D. 824. So physicians, surgeons, and divines are not privileged from compulsive disclosures of communications, however confidential. R. v. Kingston, Ds. of, 20 How. St. Tr. 573; Gilham's case, 1 Moo. C. C. 186. See also Garnet's case, Jardine's Gunpowder Plot, p. 282, et seq., ed. 1857, as to auricular confession, and Best's Treatise on Evidence, 4th ed. 718, et seq.

Privilege of Witnesses.-Public Policy.

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When a witness is privileged on the ground of public policy-disclosures by informers.] Questions on this branch of privilege arise generally in criminal and revenue cases. Such communications are undoubtedly to some extent privileged. R. v. Hardy, 24 How. St. Tr. 811; R. v. Watson, 2 Stark. 136; Att.-Gen. v. Briant, 15 M. & W. 169; R. v. Richardson, 3 F. & F. 693. Rosc. Cr. Ev., 8th ed. 154, 155.

See

When a witness is privileged on the ground of public policy-official communications.] There are some official communications relating to matters which affect the interests of the community at large, which may be withheld; such as communications between the governor and the law officers of a colony, Wyatt v. Gore, Holt, N. P. 299; between the governor of a colony and a secretary of state, Anderson v. Hamilton, 2 B. & B. 156, n. ; between the governor of a colony and a military officer, Cooke v. Maxwell, 2 Stark. 183; between a military officer and a secretary of war, Beatson v. Skene, 5 H. & N. 838; 29 L. J., Ex. 430; the report of a military court of inquiry on the conduct of an officer, Home v. Bentinck, 2 B. & B. 130, Ex. Ch. ; Dawkins v. Rokeby, Ld., L. R., 8 Q. B. 255, Ex. Ch. And where a minister of state appears and objects to the production of documents on the ground that it would be injurious to the public interests, he will not be compelled to produce them. Beatson v. Skene, supra. So on a trial for high treason, Ld. Grenville was called to produce a letter intercepted on its way through the post-office, but it was held that he was not bound to do so: the name of the case is not mentioned, but the facts were stated by Ld. Ellenborough in Anderson v. Hamilton, supra. Where a clerk from the War-office was sent with a paper with instructions to object to its production, Ld. Campbell, C. J., ordered it to be produced, not thinking the objection of a subordinate officer sufficient. Dickson v. Wilton, Ld., 1 F. & F. 424. This ruling was, however, disapproved in Dawkins v. Rokeby, Ld., supra, as contrary to the decision in Home v.Bentinck, supra. See further H.M.S. Bellerophon, 44 L. J. Ad. 5, and Kain v. Farrer, 37 L. T. 469, M.S. 1877, C. P. D. It seems that the objection to the evidence may be taken by the party interested in excluding it, although not taken by the witness himself. Home v. Bentinck, supra. The rule as to excluding evidence on the above ground is confined to communications made by and between ministers and officers of the government in the discharge of their public duty; and therefore a letter written by a private individual to the secretary of the postmaster-general complaining of the conduct of the guard of the mail is not privileged from disclosure. Blake v. Pilfold, 1 M. & Rob. 198. The speaker of the Irish House of Commons was held not to be bound to disclose what a member had there spoken; though he might be asked whether that member had spoken on a particular occasion. Plunkett v. Cobbett, 5 Esp. 136; 29 How. St. Tr. 71, per Ld. Ellenborough. A member of parliament cannot, without leave of the house, be compelled to answer questions respecting the votes of the members. Chubb v. Salomons, 3 Car. & K. 75; per Pollock, C. B. Confidential proceedings of the privy council cannot be divulged. Layer's case, 16 How. St. Tr. 224. In R. v. Watson, 2 Stark. 148, an officer of the Tower of London was allowed to refuse to say whether a plan of the Tower which was produced was accurate or not.

Where a document is privileged from production on the ground of public policy, secondary evidence of its contents is inadmissible. Home v. Bentinck, Anderson v. Hamilton, and Dawkins v. Rokeby, Ld., supra; Stace v. Griffith, L. R., 2 P. C. 420.

Where for revenue or other similar purposes an oath of office has been taken by a person not to divulge matters which have come to his knowledge in his official capacity, he will not be allowed, if the interests of justice

are concerned, to withhold his testimony. Thus, where the clerk to the commissioners of the property tax, being called to produce the books containing the appointment of a person as collector, objected on account of his oath, Ld. Ellenborough said that it did not protect him from giving evidence in a court of justice upon a writ of subpoena. Lee v. Birrell, 3 Camp. 337.

A grand juror is also compellable in furtherance of justice to prove what passed before him. Anon., 4 Bl. Comm. 126, note by Christian; Sykes v. Dunbar, 2 Selw. N. P., 13th ed., 1015; but this has been questioned. Starkie on Slander, 3rd ed., 475, c.

Privilege-how claimed.] It is for the witness himself to claim or to waive the privilege, as he sees fit; the counsel in the cause cannot argue the question in favour of the witness. Thomas v. Newton, M. & M. 48, n. ; R. v. Adey, 1 M. & Rob. 94. Except, perhaps, in the case of official communications, as to which vide ante, p. 163. See as to a solicitor waiving his privilege, ante, p. 160.

The witness may claim his privilege at any part of the inquiry, and he does not waive it altogether by omitting to claim it as soon as he might have done so. R. v. Garbett, 1 Den. C. C. 258, overruling East v. Chapman, M. & M. 46; S. C., 2 C. & P. 573. The time for the witness to make the objection is after he is sworn. Boyle v. Wiseman, 10 Exch. 647; 24 L. J., Ex. 160.

Contradicting party's own witness.] If a witness gives evidence contrary to that which the party calling him expects, that party cannot give general evidence to show that the witness is not to be believed on his oath. Ewer v. Ambrose, 3 B. & C. 749. And though it was always considered that a party might contradict the evidence of his own witness upon facts material to the issue, yet it was long a question whether it was competent to him to prove that the witness had previously given a different account of the transaction. S. C. Id.; Wright v. Beckett, 1 M. & Rob. 414; R. v. Oldroyd, R. & Ry. 88; Dunn v. Aslett, 2 M. & Rob. 122; Holdsworth v. Dartmouth, Mayor of, Id. 153; Winter v. Butt, Id. 357; Allay v. Hutchings, Id. 358, n.; Melhuish v. Collier, 15 Q. B. 878; 19 L. J., Q. B. 493. In the last case it was held that the witness may, at all events, be examined as to his former statements, and contradicted as to any facts that are relevant, although the direct effect may be to discredit him ; and it has been the constant practice to call evidence to contradict the statements of other witnesses already called by the same party; as where attesting witnesses deny their own signature. See also Friedlander v. London Assur. Co., 4 B. & Ad. 193. And now it is provided by the C. L. P. Act, 1854, s. 22, that "a party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement." It will be seen that leave of the judge is made a condition precedent to the proof of former inconsistent statements, and also premonition and preexamination as to such statements. In one particular the act seems to limit the former admitted liberty of calling witnesses to contradict another witness called by the same party; for in such cases it had been the practice for counsel to consult only their own judgment in calling other witnesses to prove all relevant facts, although their testimony may incidentally contra