Where communication

The above rule applies only to communications not bona fide. which pass between a party to a suit and one who is acting bonâ fide as his professional adviser; therefore, where an attorney acting in concert with A. to commit a fraud upon B., wrote a letter to A., which, in pursuance of their common scheme, was to be shown to B., it was held that it was not privileged (b); for to contrive fraud is no part of a solicitor's duty, and it can as little be said that it is part of a solicitor's duty to advise his client as to the means of evading the law (c).

Where communication

profession

ally.

Nor does the rule apply to communications which not received are not made to an attorney in his professional character, as where "the communication was made before the attorney was employed as such, or after his employment had ceased; or where, though consulted by a friend, because he was an attorney, yet he refused to act as such, and was therefore only applied to as a friend; or where there could not be said, in any correctness of speech, to be a communication at all; as where, for instance, a fact, something that was done, became known to him, from his having been brought to a certain place by the circumstance of his being the attorney, but of which fact any other man, if there, would have been equally conusant (and even this has been held privileged in some of the cases); or where the matter communicated was not in its nature private, and could in no sense be termed the subject of a con

(b) Reynell v. Sprye, 10 Beav. 51.

(c) See the judgment of Vice-Chancellor Turner, in Russell v. Jackson, 21 L. J., Chanc., 149.

fidential disclosure; or where the thing disclosed had no reference to the professional employment, though disclosed while the relation of attorney and client subsisted; or where the attorney made himself a subscribing witness, and thereby assumed another character for the occasion, and, adopting the duties which it imposes, became bound to give evidence of all that a subscribing witness can be required to prove. In all such cases, it is plain that the attorney is not called upon to disclose matters which he can be said to have learned by communication with his client, or on his client's behalf, matters which were so committed to him in his capacity of attorney, and matters which in that capacity alone he had come to know" (d). Communications do not, however, cease to be confidential, so as to be taken out of the operation of the rule, in consequence of the attorney ceasing to act as professional adviser (e), nor because the counsel or attorney afterwards become interested in the property to the title of which the communication related (f).

and others.

An attempt has sometimes been made to extend Clergyman this protection to persons who do not come within

(d) Per Lord Brougham, in Greenough v. Gaskell, 1 Myl, & K. 98, 104. The rule has been held not to apply where the attorney obtained the information before he became attorney, (Cuts v. Pickering, 1 Vent. 197), or after his employment ceased (Wilson v. Rastall, 4 T. R. 753). Where an attorney was consulted only as a friend, ib. Where his evidence was required to identify the person of his client (R. v. Watkinson, 2 Strange, 1122): to prove the execution of a deed (Studdy v. Panders, 2 Dow. & Ry. 347). See also Taylor on Evidence, s. 675; Bunbury v. Bunbury, 2 Beav. 173.

(e) Cromack v. Heathcote, 2 Brod. & Bing, 4. (f) Chant v. Brown, 7 Hare, 79.

Official Correspondence.

the description of either attorney or counsel, but it has always been resisted, the Court holding that clergymen, medical men, clerks, bankers, stewards or confidential friends, are bound to discover all those facts which their principals could be compelled to disclose (g). The rule, however, applies to scriveners (h), and to attorneys when they are employed not strictly as such, but to draw deeds of conveyance (i).

It is necessary, in conclusion, briefly to allude to a class of cases, of not very frequent occurrence, in which, although the relation of the parties is not of such a character as to bring them within the rule as stated above, communications containing secrets of state, or the like, are protected upon the ground of public policy. Where a correspondence had passed between the Court of Directors of the East India Company and the Commissioners for the Affairs of India (in pursuance of the requisitions of the stat. 3 & 4 Will. 4, c. 85), relating to a dispute which had arisen with respect to a commercial

(g) See Taylor on Evidence, sects. 664, 665, where the following cases are cited :-With respect to clergymen-R. v. Gilham, 1 Moo. C. C. 186. Physicians-The Duchess of Kingston's case, 20 How. St. Tr. 572; R. v. Gibbons, 1 C. & P. 97. Clerks-Lee v. Birrell, 3 Camp. 337; Webb v. Smith, 1 C. & P. 337. Bankers-Loyd v. Freshfield, 2 C. & P. 325, per Abbott, C. J. Stewards-Vaillant v. Dodemead, 2 Atk. 524; 4 T. R. 759, per Buller, J.; Earl of Falmouth v. Moss, 11 Price, 455. Confidential friends-4 T. R. 758, per Lord Kenyon; Hoffman v. Smith, Caines, 157, 159. See also as to certificated conveyancers, per Parke, B., in Turquand v.. Knight, 2 M. & W. 100.

(h) Harvey v. Clayton, 2 Swanst. 221, n. Per Lord Abinger in Turquand v. Knight, 2 M. & W. 100.

(i) Turquand v. Knight, 2 M. & W. 100.

transaction in which the company had been engaged, and a bill of discovery was filed by a person not a party to the transaction, it was held, that the letters came within the class of official communications, and were privileged, inasmuch as they could not be disclosed without infringing the policy of an act of parliament, and injuring the public interests (k).

(k) Smith v. The East India Company, 1 Phill. 50. The cases in which this rule has been acted upon in the examination of witnesses in Courts of Law will be found in Taylor on Evidence, ss. 683 to 689.

H.

D

to Affidavits, &c.

VI. PRACTICE WITH RESPECT TO AFFIDAVITS,

&c.

Practice as HAVING mentioned such of the leading rules by which Courts of Equity are governed in granting inspection of documents, as are applicable to the analogous power now given to Courts of Law, we will now shortly consider how that power may be carried into operation. The statute 14 & 15 Vict. c. 99, s. 6, was entirely silent as to how, or in what manner, the inspection was to be applied for or resisted. This deficiency is, however, supplied by The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, which, by sect. 50, provides that the applicant for inspection may make an affidavit of his belief that a particular document, to the production of which he is entitled, is in the possession or power of the opposite party; on which the judge to whom the application is made may order such opposite party to answer on affidavit, stating what documents he has in his possession or power relating to the matters in dispute, or what he knows as to the custody they are in, and whether he objects, and on what ground, to their production.

With respect to the time when a party must apply for an order for inspection, the Courts, in exercising their common law jurisdiction, always re