which exist to the rule under consideration. In the first place, it has been held that it does not extend to documents which form part of the proceedings in the suit, in which the discovery is required; thus where the production of an affidavit made in the suit was resisted, on the ground that an indictment for perjury had been commenced, and that the sole object of its production was to give it in evidence at the trial; it was held, that as the rule as to protection does not extend to any matters done in the course of the suit, the defendant was bound to produce it (d) but there exist two exceptions of a far more general character. These are as follows: First, Where particular statutes have, in furtherance of their object, expressly provided that a defendant shall answer to any bill in equity filed against him, as in the Gaming Act, 9 Anne, c. 14 (e), and the Stock-Jobbing Act, 7 Geo. 2, c. 8 (f); and, Secondly, In the cases of conspiracy or fraud. As the first of these exceptions depends upon the express provisions of the Legislature, it is unnecessary further to notice it (g). The latter, however, is of a more uncertain character. In Dummer v. The Corporation of Chippenham (h), Lord Eldon said, that in cases of conspiracy the Courts constantly compelled discovery; and in the case of Macaulay v. Shackell (i), his Lordship said, "When I attended (d) Rice v. Gordon, 13 Sim. 580; S. C. 7 Jur. 1076; S. C. nom. Price v. Gordon, 13 L. J., N. S., 104. (e) Sect. 3. (f) Sect. 2. (g) See the observations upon these exceptions and cases, cited Hare on Discovery, 135; and Daniell's Chan. Prac. vol. 1, p. 522. (h) 14 Ves. 245, 252. (1) 1 Bligh, N. S. 96, 121. the Court of Exchequer, underwriters frequently however, of Oliver v. Haywood (k), this rule was to withhold In addition to these must be mentioned another Where right class of cases, which form no exception to the rule, is waived. but where, in accordance to the maxim, cessante ratione cessat lex ipsa, its operation is prevented by the party, who is solely entitled to take advantage of a penalty or forfeiture, expressly waiving that right (1). If after his so doing he should proceed at law upon the discovery so obtained, his waiver would be ground for an injunction (m). That maxim is also acted upon in cases where the penalty, to which the defendant by answering would render himself liable, must be sued for within a certain time, and that time has expired (n). (k) 1 Anstr. 82. (7) Hare on Discovery, 137; Redes. Plead. 195. (m) Per Lord Hardwicke in Lord Uxbridge v. Staveland, 1 Ves. sen. 56. (n) Per Lord Eldon in Parkhurst v. Lowten, 1 Mer. 391; The Corporation of the Trinity House v. Burge, 2 Sim. 411. Privileged Communications. 5. DISCOVERY WILL NOT BE GRANTED OF PRIVILEGED COMMUNICATIONS. It remains to notice a further objection which may be successfully made by a defendant when called upon to answer to a bill of discovery. The principle of this objection, namely, that the matter to which the question applies is privileged as being a communication between a client and his professional adviser, whether counsel or attorney, inasmuch as it applies equally to evidence given by witnesses vivâ voce, as to that which may be obtained in answer to a bill of discovery (a), is known to practitioners both at law and in equity. This rule has been adopted not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the (a) See Taylor on Evidence, c. xvi., and the recent case of Petch v. Lyon, 9 Q. B. 147. practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown on his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case (b). The reason of this rule was well illustrated in a recent case. A question having been raised whether certain executors were or were not trustees for the next of kin, the evidence of the solicitor who prepared the will as to what passed between himself and the testator, or his agent, on the subject of the will, was admitted, on behalf of the next of kin, but all communications between the executors and the same solicitor, acting as their solicitor, on the subject of the will of the testator, and after his death, were held to be privileged (c). In considering the decisions upon this rule, it is necessary to keep in view the distinction which exists between the privilege as it relates to the professional advisers, that is, to cases in which discovery is sought from the attorney, and those in which it is sought from the clients themselves. That of the former is the more extensive of the two; for the protection of the attorney is not qualified by any reference to proceedings pending or in contemplation, but as was said by Lord Brougham in a case (b) See the judgment of Lord Brougham, in Greenough v. Gaskell, 1 Myl. & K. 98, 103. See also the judgment of Lord Truro, in Glyn v. Caulfield, 3 Mac. & Gord. 474. (c) Russell v. Jackson, 21 L. J., Chanc., 147. Clerks or already cited (d), "If attorneys touching matters that come within the ordinary scope of professional employment, receive a communication in their professional capacity, either from a client, or on his account, and for his benefit in the transaction of his business, or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any Court of Law or Equity, either as party or as witness." The rule as thus stated has been recognized and followed by numerous cases (e). In cases where an attorney acts also in another capacity, he may lose the privilege; thus where disputes had arisen between two cestuis que trust in respect of the trust matters, and the trustee acted as solicitor for one, it was held that communications between him and one cestui que trust were not privileged as against the other (ƒ). It has been decided at common law, that the rule is not confined to the attorney himself, but applies equally to his clerk (g) or agent (h); and in equity, (d) Greenough v. Gaskell, 1 Myl. & K. 98, 102. (e) Desborough v. Rawlins, 3 Myl. & Cr. 515; Sawyer v. Birchmore, 3 Myl. & K. 572; Hening v. Clobery, 1 Phill. 91; Jones v. Pugh, 1 Phill. 96; Flight v. Robinson, 8 Beav. 22; Carpmael v. Powis, 9 Beav. 16. Per Lord Langdale, in Reynell v. Sprye, 10 Beav. 51, 54. (f) Tugwell v. Hooper, 10 Beav. 348. |