most mischievous, if it could be doubted, whether or not, an attorney, consulted upon a man's title to an estate, was at liberty to divulge a flaw.!

$ 601. There are exceptions, or rather cases, which are apparently exceptions, but which are in reality excluded from the scope of the rule. Thus, the person, called as a witness, or made a defendant to a Bill, must have learned the matter in question only as counsel, or attorney, or solicitor, and not in any other way. If, therefore, he were a party to the transaction, and especially if he were a party to a fraud (and the case may be put of his becoming an informer, after being engaged in a conspiracy), that is, if he were acting for himself, although he might also be employed for another, he would not be protected from the discovery; for in such a case, his knowledge would not be acquired solely by his being employed professionally.”

$ 602. The apparent exceptions are, where the communication was made before the attorney was employed as such, or after his employment had ceased; or, where, although 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,

1 Greenough v. Gaskell, 1 Mylne & K. 101 - 103; Hare on Discov. 163 – 166, 175; Desborough v. Rawlins, 3 Mylne & Craig, R. 515; Clagett v. Phillips, 2 Younge & Coll. New. R. 82. In this case Mr. Vice-Chancellor Bruce said ; “That where a dispute had arisen between two parties, which might, unless amicably adjusted, terminate in a sait, there, if confidential communications with professional men passed in the course of the dispute, they would be privileged, if litigation ensued, although litigation might not have been contemplated at the time when the communications took place." See also Herring v. Clobery, 1 Phillips, Ch. R. 91, 93; Lord Walsingham v. Goodricke, 3 Hare, R. 122 ; Bolton v. Corporation of Liverpool, 1 Mylne & K. 95.

2 Ibid.

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 confidential disclosure; or, where the thing disclosed had no reference to the professional employment, although 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; or matters, which were so committed to him in his capacity of attorney; or matters, which in that capacity alone he had come to know.'

1 Lord Brougham, in Greenough v. Gaskell, 1 Mylne & K. 104, 105 ; Bolton v. Corporation of Liverpool, 3 Sim. R. 467; S. C. 1 Mylne & K. 96; Hare on Discov. 172-182; Desborough v. Rawlins, 3 Mylne & Craig, 515. The objection equally applies, whether the party is called as a witness, to disclose the secrets of his client, or is made a party defendant to a Bill of Discovery, in aid of a suit at law, or to a Bill for discovery and relief. In the latter cases, the Bill would ordinarily be demurrable on another account, viz., that the party is a mere witness, against whom there can be no decree. See Hare on Discov. 166 - 170 ; Ante, $ 519, 570. The objection also is not confined to the statement of facts, but also to the discovery and production of documents confided professionally to the party, unless indeed they are such as his client might be compelled to produce. Hare on Discov. 171-182; Kington v. Gale, Rep. Temp. Finch, 259, 260 ; Stanhope v. Nott, 2 Swanst. 221, note (a);

$ 603. (9.) Ninthly; Another objection, which may be taken by way of demurrer to a Bill of Discovery, is, that the defendant has an equal Equity with the plaintiff, and is therefore entitled to be protected from a discovery, which will endanger, or disturb, or destroy, his present rights. Therefore, if a defendant has in conscience a right equal to that claimed by the person, filing a Bill against him, although not clothed with a perfect legal title, this circumstance, in the situation of the defendant, renders it improper for a Court of Equity to compel him to make any discovery, which may hazard his title. And, if the matter appears clearly on the face of the Bill, a demurrer will hold. The most obvious case is that of a purchaser for a valuable consideration without notice of the plaintiff's claim. Upon the same principle, a jointress may, in many cases, demur to a Bill, filed against her for a discovery of her jointure deed, if the plaintiff is not capable of confirming, or the Bill does not offer to confirm, the jointure, and the facts appear sufficiently on the face of the Bill ; although, ordinarily, advantage is taken of this defence by way of plea.?

$ 604. It has been remarked, that this singularity in the jurisprudence of England is produced by the establishment of the extraordinary jurisdiction of Courts of Equity, distinct from the ordinary jurisdiction of Courts of Law, which necessarily creates a distinction

Greenough v. Gaskell, 1 Mylne & K. 99, 100; Fenwick v. Reed, 1 Meriv. R. 114, 124 ; Preston v. Carr, 1 Younge & Jerv. 175; Bolton t. Corporation of Liverpool, 3 Sim. R. 467; S. C. 1 Mylne & K. 88; Hughes v. Biddulph, 4 Russ. R. 190; Bellwood v. Wetherell, 1 Younge & Coll. 219.

1 Mitf. Eq. Pl. by Jeremy, 199, 274, 288; Cooper, Eq. Pl. 197, 207, 208, 284 ; Jerrard o. Saunders, 2 Ves. jr. 454; Hare on Discor. 89 - 104.

2 Ibid.