TION OF DOCUMENTS IN A SUIT IN The recent litigation on the question, as to the extent of the privilege to refuse production of documents which are relevant to the subject-matter of a suit in equity, and in the possession or power of a defendant or witness, has been so frequent as to excite the surprise of one of the Vice-Chancellors in a case lately before him*. owner may desire to keep the knowledge to himself— ON THE PRIVILEGE TO RESIST PRODUC with reference, for example, to such cases as those put by the Vice-Chancellor, of collections of gems, or the like does not appear from the Lord Chancellor's judgment; but it seems difficult to see how the doctrine should not be applicable to the cases put by the ViceChancellor; and the result will be, that, if one has a collection of valuable or choice things of any kind, and manifests an intention of preventing the public from having any knowledge of them or their existence, it will be unlawful for any person, who, by the neglect of It is true that certain general rules have been for a the owner or otherwise, may have had communicated long time recognised to guide the practice on this subto his senses the knowledge of their existence, to com-ject, although of late their authority has been disputed; municate that knowledge to the world. A material tion to each individual case a matter of some difficulty; but the very nature of the question renders its applicaquestion, in any questions which will have to be consi- and the existence of this difficulty concerning one of dered with reference to this case, will be, what amounts the commonest proceedings in Chancery practice may to a dedication by an author to the public; because the fully account for the number of cases that have lately foundation of the decision is, that the author desires that occurred, without attributing any want of skill or his work shall not be made public, and has done no act knowledge to the counsel engaged. to make it public. In Prince Albert v. Strange, the plaintiffs had undoubtedly suffered their etchings to escape from perfect concealment—that is, they had entrusted them to a servant, (in confidence, it is true), and that servant had, by his neglect, allowed a stranger to obtain a sight of them. This, however, was not, under the circumstances, held to be a dedication to the public; principally, we apprehend, because the plaintiffs having alleged and sworn to circumstances shewing that the etchings could only have been obtained by surreptitious, viz. fraudulent means, the defendant did not specifically deny the allegation, and account for the mode in which the etchings had been obtained, but only averred in general terms his belief that they had been honestly obtained—an averment which obviously gave no information to the Court, and was no more than an expression of opinion, since, in the defendant's notion of honesty, it might be honest to obtain the etchings by surreptitious means. But put the case, that the defendant had sworn distinctly that copies of the etchings had been shewn to him by a person of such station as to make it probable that he had a right to shew them, and with distinct liberty to make a catalogue of them; or put the case, that the plaintiff's servant had left the etchings exposed publicly in the street, so that any stranger passing by might see them and make a catalogue of them; would such a state of things amount to a dedication to the public sufficient to waive the right of concealment of the author, and let in the right of the percipient to use his senses, and acquire knowledge and use it? These and many other questions will arise, no doubt, in the cases that will follow the case of Prince Albert v. Strange; and, in the meantime, all that can be said is, that, where an author has not dedicated his works to the public, any other person will be restrained from communicating to the public, not only the works themselves, but the fact of their existence, and the particular designation of their mode of existence. MEMBER RETURNED ΤΟ SERVE IN PARLIAMENT. Frederick Peel, Esq., for the borough of Leominster, in the room of Henry Barkly, Esq., who has accepted the office of Governor of British Guiana. The limits of the privilege depend upon the line to be drawn between two conflicting principles: one, of equity jurisprudence; the other, a principle of general expediency. Equity, on the one hand, assumes a right to enforce discovery, on oath, from the defendant in a suit, of all matters within his knowledge relevant to the plaintiff's case. On the other hand, it would often be very unjust, that a defendant should be compelled to produce, for the assistance of his opponent, his most confidential communications with his professional adviser, suggesting, and very possibly exaggerating, any defect of title or weak point in his case, for the very purpose of enabling his solicitor or counsel better to prepare a defence. Nor can it be maintained, that any principle of ethics makes such a discovery an obligation, where the opposite litigant, as is frequently the case, has no higher justice on his side than the de fendant. To every case that arises these two principles must be applied; and, unless the several branches of this result will be contrary decisions, as one or the other Court observe some fixed rules for their guidance, the principle weighs most with each individual judget. Until some cases just reported, the decisions on the question of privilege have carefully followed the rules recognised twenty years ago. We propose to state the tion in the latest of them from the established law. general result of these cases, and the threatened devia Supposing, then, that a defendant, in his answer, admits that documents relating to the subject-matter of the suit are in his possession or power, he may yet entitle himself, under certain circumstances, to refuse production of them. But in that case the plaintiff has, duced for his inspection; and it is incumbent on the primâ facie, a right to move that they may be prodefendant to shew some ground of privilege to prevent their production. The motion for production is made upon the statements in the answer; so that, strictly, the admissions of relevancy and possession should be to move; and, on the other hand, the ground for resistdistinct, or necessarily implied to entitle the plaintiff ing production must be accurately stated, either by the answer or by affidavits in support of it§, to enable the defendant successfully to oppose the motion. The subject is most conveniently arranged under the following divisions: *See Pearse v. Pearse, (1 De G. & S. 31). + See, as an illustration, Flight v. Robinson, (8 Beav. 36); Pearse v. Pearse, (1 De G. & S. 12). Per Cottenham, C., in Storey v. Lord G. Lennox, (1 My. & C. 535); Llewellyn v. Badeley, (1 Hare, 527). § Lord Walsingham v. Goodricke, (3 Hare, 122). 1.- Where the documents are cases for the opinion of counsel, or confidential letters between the defendant and his solicitor, not containing legal advice or opinions. 2. Where they are the opinions of counsel, or letters to the defendant from his solicitor containing legal advice. 3. Where they are documents or deeds forming part of the defendant's title exclusively, and not supporting the plaintiff's title or the case made by his bill. And 4. Where the defendant is himself a solicitor, and information of any kind, or documents, have come to his knowledge or into his possession, in that character, from any of his clients. With respect to the first of these divisions, cases for counsel and confidential letters between the defendant and his solicitor are classed together, as documents of similar character, as regards the doctrine of privilege. To entitle them to protection when they are relevant and in his possession, the defendant must aver distinctly that the cases were submitted to counsel, and the letters written, in contemplation of the existing suit, (or of an action which that suit seeks to aid or defend by discovery, and which is, therefore, part of the same litigation), and with reference thereto*. He must also state that the letters were written, in confidencet, to his solicitor in that character. Ór the defendant must affirm that the cases were submitted, and confidential communications with his solicitor passed, after the dispute which occasioned the existing suit had arisen §, or after the actual commencement of the suit ||. Protection was given on one occasion, where the answer stated, that the cases and communications with the defendant's solicitor passed after litigation commenced, or in contemplation of litigation, on the same subject, with other persons, with a view of asserting the same right, and denied expressly that the cases and communications passed before the dispute arose between the parties to the existing suit. This decision was approved by Vice-Chancellor Wigram-a great authority on this subject-without noticing in his statement of it the denial that the cases and communications passed before the dispute which occasioned the existing suit**. According to his view of the case, therefore, it would have carried the doctrine of privilege farther than preceding decisions with respect to documents of the nature now under consideration. A larger protection seems to be granted to the second class of documents we have mentioned, viz. opinions of counsel and letters to the defendant from his solicitor containing legal advice. opinions and letters to protection, independently of the time when, and the circumstances under which, they were obtained, and where mere cases, and letters containing only statements of facts, would not be privileged *. In Radcliffe v. Fursmant, the House of Lords decided, that the opinion of counsel upon a case was privileged when the case itself was not, neither the case nor opinion appearing to have been submitted or obtained in contemplation of any suit then threatened. The authority of this decision, as to the privilege of the opinion, has been recognised by Lord Brougham and Vice-Chancellor Wigram §, though both seemed to wish to extend the privilege, under like circumstances, to the case as well as the opinion. The third ground of privilege is still on account of the nature of the documents required to be produced, viz. where they support exclusively the defendant's title. To protect documents of this nature, the defendant should state positively || in his answer, that the documents or deeds in question form part of his title exclusively¶, and do not form part of the plaintiff”s title**, and that they do not support, by evidence or otherwise, the case made by the bill++. If the defendant is able to make these averments, the documents or deeds will be privileged, for the obvious reason that, under such circumstances, the plaintiff is only seeking to obtain discovery of matters that in no way concern him, and which, if produced, would not assist his case. But if the defendant set out in his answer an abstract of documents or deeds, which would otherwise be entitled to privilege, and then make profert of them in the words, "as by the said deeds, &c., to which, for greater certainty, the defendant craves leave to refer, when produced, will appear," or in words to that effect, he deprives himself of his right to claim the privilege, because, by this manner of pleading, he has made the deeds or documents part of his answer, and the plaintiff has a right to see that they are correctly stated ‡‡. The fourth occasion for the protection of documents and communications is on account of the professional character of the person from whom discovery is sought. The privilege is much more extensive where discovery is sought from a defendant or a witness, being himself a solicitor, of information of any kind, or documents that have come to his knowledge or into his possession, in his professional character, from any of his clients. All such matters are considered to be in his knowledge or possession as though sub sigillo confessionis. It seems, that if the defendant state in his answer, When a solicitor is a defendant in a suit, his clients that the documents are of this description, and that have a right to expect that he shall not, in matters rethey contain advice with reference to the very subject-lating to himself, make a discovery of what has been matter of the suit, their nature alone will entitle the confided to him by them in professional confidence. * Bolton v. The Corporation of Liverpool, (1 My, & K. 88); Hughes v. Biddulph, (4 Russ. 190); Lord Walsingham v. Goodricke, (3 Hare, 125). + Hughes v. Biddulph, (ubi supra); Vent v. Pacey, (4 Russ. 193). Garland v. Scott, (3 Sim. 396). § Storey v. Lord G. Lennox, (1 My. & C. 525); Bolton v. The Corporation of Liverpool, (1 My. & K. 88); Curling v. Perring, (2 My. & K. 380); Vent v. Pacey, (4 Russ. 193); Nias v. The Northern and Eastern Railway Company, (3 My. & C. 355); Clagett v. Phillips, (2 You. & C. C. C. 82); Holmes v. Badeley, (1 Phill. 476); Flight v. Robinson, (8 Beav. 22). *Lord Walsingham v. Goodricke, (3 Hare, 131); Woods v. Woods, (4 Hare, 83). But see Flight v. Robinson, (8 Beav. 22). † 2 Bro. P. C. 514. Bolton v. The Corporation of Liverpool, (1 My. & K. 95). § Lord Walsingham v. Goodricke, (3 Hare, 127). || Banatyne v. Leader, (10 Sim. 230). 91). Bolton v. The Corporation of Liverpool, (1 My. & K. **Bolton v. The Corporation of Liverpool, (ubi sup.); Edwards v. Jones, (1 Phill. 501); Burrell v. Nicholson, My. & K. 680). tt Smith v. The Duke of Beaufort, (1 Hare, 507; S. C., 1 Phill. 209); Llewellyn v. Badeley, (1 Hare, 527); Marquis of Bute v. The Glamorgan Canal Company, (1 Phill. 681); Glover v. Hall, (2 Phill. 484). ‡‡ Hardman v. Ellames, (2 My. & K. 732); Adams v. Fisher, (3 My. & C. 549); Welford v. Stainthorpe, (2 Beav. 587); Phillips v. Evans, (2 You. & C. C. C. 647). Court Papers. When he is examined as a witness, a discovery of all communications (not within the preceding rules as to Hivilege) between himself and any clients, defendants in the suit, may be obtained from him; and profes sional communications with other persons, strangers to EQUITY SITTINGS, AFTER HILARY TERM, the suit, are certainly not proper subjects of discovery in equity. The distinction between the cases in which discovery is sought from a lay defendant, of communications with lis solicitor, and those in which a discovery of profess'onal communications is required from a defendant or witness, himself a solicitor, seems based upon a broad Irinciple of equity; and the observations of some Chancery judges, who would abolish this distinction, by granting the larger privilege in both the supposed cases, lecause they see no difference between these cases in princple, must be read with some surprise. As the law on this subject stands at present, a defondant or witness may entitle his client's communicatons to privilege, by stating that he is a solicitor, and that the matters of which discovery is sought came to his possession, or were received or written by him, professionaly in his character of confidential solicitor, and that the communications were made in confidence. And protection is afforded, although the connexion between the solicitor and his client has come to an end since the communications passed + Such is the result of the recent decisions on the question of privilege. In all of them the general rules have been followed, with but two exceptions. In Reece v. Trye§, before the Master of the Rolls, cases for the opinion of counsel, as well as the opinions, were privileged, though not prepared in contemplation of a suit. And in Pearse v. Pearse ||, Vice-Chancellor Knight Bruce could not help indulging to some extent the strong inclination he expressed to extend protection to matters not within the rules above stated. On some future occasion it may be useful to examine the grounds upon which the different decisions are rested; at present it is enough to state shortly, that the Lord Chancellor and the Vice-Chancellor of England seem disposed to support the old practice; ViceChancellor Wigram and Vice-Chancellor Knight Bruce** are inclined to extend the privilege; while, on tle other hand, the Master of the Rolls++ would enforce d. covery in all cases. E. E. K. MASTERS IN CHANCERY.-The Lord Chancellor has appointed the following gentlemen Masters Extraordinary in the High Court of Chancery:-Christopher Hicks the younger, of Shrewsbury; John Banfield, of Saint Mary's, Scilly, Cornwall; Joseph Wright, of Doncaster; William Roby, of Liverpool. The Right Hon. Sir Thomas Wilde, Knt., Lord Chief Justice of her Majesty's Court of Common Pleas, at Westminster, has appointed Frederick Charsley, Gent., of Amersham, Buckinghamshire, to be one of the Perpetual Commissioners for taking the acknowledgments of deeds to be executed by married women, in and for the county of Buckingham. 12 VICT. 1849. Rolls Court. Before the Right Hon. the Master of the ROLLS. Thursday. .... Feb. 8 Motions. ...... Monday.... Friday 91 Pleas, Demurrers, Causes, Further Di10 rections, and Exceptions. At the Judicial Committee. 12 13 ..... 14 15 Saturday ... Friday Monday.. 19 EQUITY CAUSE LISTS, AFTER HILARY TERM. Court of Chancery. Before Vice-Chancellor KNIGHT Bruce. CAUSES, FURTHER DIRECTIONS, AND EXCEPTIONS. Duncan v. Luntley (D) } SO The following abbreviations have been adopted to abridge the space the Cause Papers would otherwise have occu-Capper v. Same pied:-4. Abated-Adj. Adjourned-A. T. After Term-Ap. Stanley v. Bulkeley Trin. T. Appeal-C. D. Cause Day-C. Costs-D. Demurrer-E. Ex-Wilkinson v. Candlish ceptions-F. D. Further Directions-M. Motion-P. C. Pro Milne v. Baldwin Confesso-Pl. Plea-Ptn. Petition-R. Re-hearing-S. O. Same v. Green Stand Over-Sh. Short. Paterson v. Mills SO Alexander v. Bushby (F D, Ptn, part heard) SO Hughes v. Scarborough SO to fix a day Before the LORD CHANCELLOR. Hodsonson v. Hodg- (Ap) Same v. Jackson } Cochrane o. Cochrane (AP) Lord v. Colvin Penny v. Watts (Ap) Ridgway v. Gray (Ap) Knight v. Majoribanks (Ap) Powell v. Dodson (2 causes) v. Cooper v. Earl of Powis (Ap) Browne v. Milne (F D, C) Rees v. Chilton Penrice v. Penrice (F D, C) Feb. 15 (FD, Lane v. Green Strong v. Strong Myers v. Perigal (F D, C) Jenkins v. Jenkins (2 causes) Onslow v. Attorney-Gen. Cornwall v. Brand Jones v. Francis (F D, C) Follett v. Molyneaux SOG Moorley v. Smith Miller v. Priddon Attorney-Gen. v. Finch (2 Surtees v. Hopkinson (F D, James v. Jones Alt v. Gregory SO G Banner v. Strachan (F D) Baker v. Salmon Shelton v. Watson (F D, C) Same v. Stansfeld Menlove v. Hogg Same v. Trustees of Liver. Same v. Same Bird v. Campbell Sh Low v. Graves (F D, C) French v. Bittleston Lockwood v. Laird Emberton v. Wood (5 causes) Gordon v. Hoffre (F D, C) Mop v. Buckley Causes transferred from the Master of the Rolls' List, by order, dated 24th January, 1849. M'Calmont v. Rankin (2 cau.) Smith v. Downton Price v. Berrington (3 causes, Edgell v. Wickham (F D) Davey v. Birch (6 causes, FD, | Culsha v. Cheese (F D, C) Evans v. Davies (5 causes, F Smith v. Smith (F D, C) Naylor v. Naylor Beckett v. Cawood Sh |