Perpetua tion of testimony the application is to be made to the Court of Appeal (ante, p. 797). Another peculiar form of action specially dealt with in the Judicature Rules must also here be noticed. The rules provide that any person who would under the circumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim (1). It is also provided by the Judicature Rules that in all actions to perpetuate testimony touching any honour, title, dignity or office, or any other matter or thing in which the Crown may have any estate or interest, the Attorney-General may be made a defendant, and in all proceedings in which the depositions taken in any such action, in which the Attorney-General was so made a defendant, may be offered in evidence, such depositions shall be admissible, notwithstanding any objection to such depositions upon the ground that the Crown was not a party to the action in which such depositions were taken. A brief allusion must also be made to the mode in which evidence is taken before examiners of the Court (2). Attention has already been directed incidentally to the provision of the Judicature Rules (3), that the Court may provide for the examination of any witness whose attendance in Court ought for some sufficient cause to be dispensed with, by interrogatories or otherwise, before a commissioner or examiner. A further rule (4) provides that the Court or a judge may, in any cause or matter, where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the Court or judge, or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such (1) R. S. C. 1883, Order xxXVII. r. 36. This rule is taken from 5 & 6 Vict. cap. 69, now repealed, as to proceedings under which: see Campbell v. Lord Dalhousie, L. R. 1 Sc. & Div. 462; Daniel's Chancery Practice, 6th ed., 1512-1515; see also Earl Spencer v. Peek, L. R. 3 Eq. 415; Moggridge v. Hall, 13 Ch. D. 380; Re Stoer, 9 P. D. 120; Marquis of Bute v. James, 33 Ch. D. 157. (2) See as to the examiner, R. S. C. 1883, Order XXXVII. and XXXIX., et seq. The examiner must be a barrister of not less than three years' standing. (3) R. S. C. 1883, Order XXXVII. r. 1, ante, p. 868, et seq. (4) R. S. C. 1883, Order XXXVIL r. 5. deposition in evidence therein on such terms, if any, as the Court or a judge may direct. A rule passed in December, 1888, provides that the examination of any witness or person under these rules shall in any cause or matter in any Division of the High Court be taken before one of the examiners of the Court (1). () There is a proviso that nothing in the rule shall interfere with the practice as to examinations in Admiralty actions. SM VOL. II. Principle of the law. Husband and wife. Barristers and solicitors. CHAPTER V. PRIVILEGE. The law excludes or dispenses with some kinds of evidence on grounds of public policy: on the ground that greater mischiefs would probably result from requiring or permitting their admission, than from wholly rejecting them (1). Five different kinds of evidence are protected from disclosure, or, as it is called, privileged on this account: 1st. All communications between husband and wife. No husband is compellable to disclose any communication made to him by his wife during the marriage, and no wife is compellable to disclose any communication made to her by her husband during the marriage. This privilege continues even after the dissolution of the marriage or the death of one of the parties (2). 2nd. When a barrister or solicitor is professionally employed by a client, all communications which pass between them in the course and for the purpose of that employment, are so far privileged, that the legal adviser, when called as a witness, cannot be permitted to disclose them, whether they be in the form of title deeds, wills, documents, or other papers delivered, or statements made to him, or of letters, entries or statements, written or made by him in that capacity. "The foundation of this rule," said Lord Brougham, in an oftquoted passage (3), “is not on account of any particular impor (38 & 39 Vict. c. 86); the Army Act (44 & 45 Vict. c. 58); the Married Women's Property Acts (45 & 46 Vict. c. 75, and 47 & 48 Vict. c. 14, s. 1); the Criminal Law Amendment Act (48 & 49 Vict. c. 69, s. 20); the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52, s. 27); debtors and their wives may be examined on the application of the trustee; and see for other statutory exceptions, Stephen's Digest of the Law of Evidence, 5th ed. p. 123. (3) Bolton v. Corporation of Liverpool, 1 Mylne & K. 94, 95; and Greenhough v. Gaskell, 1 Mylne & K. 103. tors. tance which the law attributes to the business of legal professors, Barristers or any particular disposition to afford them protection. But it and soliciis 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 practice of the Courts and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If such communications were not protected, no man would dare to consult a professional adviser with a view to his defence or to the enforcement of his rights, and no man could safely come into a Court either to obtain redress or to defend himself." "Truth," said a judge, who was alike celebrated for the wisdom and soundness of his judgments and the wit and force of language with which he expressed them (1), "like all other good things, may be loved unwisely-may be pursued too keenlymay cost too much. And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself." The principle, as was pointed out in a leading case on the subject (2), protecting confidential communications, is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice, even when absolutely needed for the protection of his life or of his honour, or of his fortune. There are many communications which, though absolutely necessary, because without them the ordinary business of life cannot be carried on, still are not privileged. Thus, communications made to a medical man, whose advice is sought by a patient with respect to the probable origin of a disease, even though they must necessarily be made in order. to enable the medical man to advise or to prescribe for the patient, are not protected. Communications made to a priest in the confessional, on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected. Communications made to a friend, with respect to matters of the most delicate nature on which advice is sought, with respect to a man's honour or reputation, are not protected. (') Lord Justice Knight-Bruce in Pearse v. Pearse, 1 De G. & Sm. 28, 29. (*) Wheeler v. Le Marchant, 17 Barristers and solicitors. On the contrary, the protection granted by the laws of this country to communications as privileged, is restricted to the obtaining of the assistance of lawyers as regards the conduct of litigation or the rights of property. It has never gone beyond obtaining legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisers, which are protected from production or discovery, in order that that legal advice may be obtained safely and sufficiently. "The actual communication," said Jessel, M.R. (in Wheeler v. Le Marchant), "to the solicitor by the client is protected, and it is equally protected whether it is made by the client in person or is made by an agent on behalf of the client, and whether it is made to the solicitor in person or to a clerk or subordinate of the solicitor who acts in his place and under his direction. Again, the evidence obtained by the solicitor, or by his direction or at his instance, even if obtained by the client, is protected if obtained after litigation has been commenced or threatened, with a view to the defence or prosecution of such litigation. So again, a communication with a solicitor for the purpose of obtaining legal advice is protected, though it relates to a dealing which is not the subject of litigation, provided it be a communication made to the solicitor in that character and for that purpose." It is not now necessary, as it formerly was, for the purpose of obtaining protection, that the communications should be made either during or relating to an actual or even to an expected litigation. It is sufficient if they pass as professional communications in a professional capacity (1). Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure. Indeed, if any such privilege should be contended for, or existed, it would work most grievous hardship on an attorney, who, after he had been consulted upon what subsequently appeared to be a manifest crime and fraud, would have his lips closed, and might place him in a very serious position of being (1) Minet v. Morgan, 8 Ch. 361, Gardner v. Irvin, 4 Ex. D. 49; see also on the subject of privileged communications: Lyell v. Kennedy, 9 App. Cas. 81; Brett's Leading Cases in Equity, 285, et seq., where the authorities are collected. It was decided in Crawcour v. Salter, 18 Ch. D. 30, that a solicitor employed to obtain the execution of a deed, and who is not one of the witnesses, is not privileged from giving evidence as to what passed at the time of the execution. And see Corporation of Salford v. Lever, 24 Q. B. D. 695. |