1838.-Desborough v. Rawlins. for himself saith, and this other defendant saith he believes the same to be true, that this defendant, Francis Beetham, was the only person present at the said interview between the said Mr. Downes and the said Henry Porter Smith. And these defendants do so refuse to answer and set forth, because they say that, long before and on the said 22d day of September, 1834, they, these defendants, were the solicitors and attorneys, and the professional and confidential advisers, of the said Eagle Company, and that this defendant, Francis Beetham, was present at the aforesaid interview as the solicitor and attorney and professional adviser of the said Eagle Company, and acquired his information touching all and singular the matters and things which these defendants have as aforesaid refused to answer and discover and set forth, solely and only from the fact of his being present at the time in his capacity of such solicitor and attorney and professional and confidential adviser; and these defendants humbly submit that they are not bound therefore to answer all or any of such matters and things." The plaintiff having excepted to this answer for insufficiency, the master allowed the exceptions, so far as they related to the parts of the answer above referred to; but, upon exceptions to the master's report being taken, and argued before the Master of the Rolls, his Lordship allowed them; and thus, in effect, overruled the plaintiff's exceptions to the answer. The plaintiff now appealed from the order of the Master of the Rolls. Mr. Wigram and Mr. James Russell, in support of the appeal, [*519] cited Parkhurst v. Lowten, (a) Williams v. Mundie,(b) Phillipps on Evidence, (c) Greenough v. Gaskell,(d) Bramwell v. Lucas,(e) Sawyer v. Birchmore.(g) Mr. Wakefield and Mr. W. Hislop Clarke, contra, cited, Greenough v. Gaskell, (h) Purcell v. Macnamara, (i) Robson v. Blakey,(k) Paxton v. Douglas,(1) Thorpe v. Macauley,(m) Glynn v. Houston,(n) Wheatley v. Williams,(0) Turquand v. Knight, (p) Rex v Withers,(q) Doe dem. Shellard v. Harris.(r) Mr. Wigram, in reply. The LORD CHANCELLOR :-Since this case was before me the other day, I have looked not only at all the cases which were then cited in the argument, but also at several which were not cited. I do not think that it is necessary that I should now lay down any rule as to the length to which the privilege should extend. It would not be very easy to do so, consistently with the cases; but I am to consider whether the defendant clearly brings himself within the privilege; for a defendant who relies upon the privilege, is undoubtedly bound to bring himself clearly and distinctly within it. (a) 2 Swanst. 194. (d) 1 Mylne & Keen, 98. (b) 1 Ry. & Mo. 34. (c) Vol. 1. p. 173. et seq. 8th ed. (e) 2 Barn. & Cress. 745; see p. 748. (0) 1 Mees. & W. 533. (r) 5 Car. & Payne, 592. (i) Wigram on Discovery, 209. 1838.-Desborough v. Rawlins. 521 Now, the situation of the parties is very material to be considered with reference to the doctrine on this subject which is laid down in all the cases. *This was a transaction between two companies, in which the two [520] companies were so far in opposition to each other, that the Eagle Company were desirous of insuring a particular life in the Economic, and the Economic Company were desirous to obtain information with respect to that life; and the meeting in question was a meeting of an officer of the Economic with an officer of the Eagle. The communication was the result of that inquiry. Now, it is very difficult to suppose how that could be the subject of professional communication between the officer of the Eagle Company, and the solicitor of the same company. It was a communication from an adverse party. If it had been made directly to the solicitor, for the purpose of being communicated to the company, it would not be very easy to consider it as a privileged communication. That was the exact case in Spenceley v. Schulenburgh, (a) where a communication took place undoubtedly (in the terms of this answer) with a solicitor, in the character of solicitor; but it was a communication which, first, the judge at nisi prius, and, afterwards, the court of king's bench thought that the solicitor was not privileged to withhold. The court there said, in substance, "this is no privileged communication. The object of the rule as to privileged communications is to secure the parties, who have confidential communications with their professional advisers, the benefit of secrecy as to those communications. This case is not within the mischief which that rule is intended to guard against; and, therefore, not within the rule." Whether the case of Bramwell v. Lucas, (b) was rightly decided or not, is not very material for the present purpose; and the observations made upon it by Lord *Brougham, in Greenough v. Gaskell,(c) are not made [*521] with reference to the principle of the case, but with reference to the question, whether the principle was properly applicable to the facts. Undoubt, edly, looking at the facts of that case (I mean of Bramwell v. Lucas,) it is not very easy to come to the conclusion to which the court there came in point of fact. The question was, whether the client had committed an act of bankruptcy on a particular day. On that day, the client inquired of his solicitor, whether he could safely attend a particular meeting of his creditors, without being arrested for debt. The solicitor advised him to stay in his office; and he accordingly did stay there for upwards of two hours, to avoid being arrested. The question was whether what passed between the solicitor and his client was receivable in evidence. That looks undoubtedly very like a professional communication for the purpose of obtaining advice; and the court said, if it was a professional communication, it was privileged. If, therefore, the client asked the solicitor his advice in point of law, whether he could with safety attend the meeting of his creditors, the communication would be privileged, but the court said that, in its nature, it could not be privileged, but that it was (a) 7 East, 357. (b) 2 Barn. & Cress. 745. (c) 1 Mylne & Keen, 98, 1838.-Desborough v. Rawlins. merely an inquiry of fact, whether the client's creditors, because they had clearly all their legal rights, would arrest him; and that the only question was, whether they had agreed not to do so: and the court held that the question was one of fact, and not of law. There was no question, therefore, as to the principle upon which the court intended to act: the only question was whether the facts justified the application of the principle. But both Bramwell v. Lucas and Greenough v. Gaskell show that the privilege only applies to cases [*522] in which the client makes a communication to his solicitor *with a view to obtain his legal advice. That is undoubtedly the same ground upon which I held, in Sawyer v. Birchmore,(a) that a solicitor, when examined as a witness, was bound to produce letters communicated to him from collateral quarters, and to answer questions seeking information as to matters of fact, as distinguished from confidential communications and I so decided, not on the authority of Bramwell v. Lucas only, but I distinctly referred to Spenceley v. Schulenburgh. In Sawyer v. Birchmore the question arose as to a solicitor being bound to disclose the circumstances of certain transactions in which he had been concerned as solicitor. I was of opinion that the facts were not sufficiently brought before me to show that they were privileged; and finding it laid down by the court of king's bench, that communications are not privileged, if coming from any other quarter, but that they would be, if they came from the client, I found that a case might exist in which many papers in a solicitor's hands would not be privileged. It was precisely the same in Spenceley v. Schulenburgh; I thought, therefore, that the facts did not bring the case within the privilege applicable to confidential communications. There is nothing in the doctrine laid down by Lord Brougham in Greenough v. Gaskell inconsistent with this; and the only observation is, not that the doctrine laid down was wrong, but that there might be a question how far the facts were sufficient to entitle the court to apply the doctrine to the facts. There, Gaskell was employed as solicitor by a person named Darwell. He had advanced money for his principal upon the security of a promissory note given on behalf of his principal by the plaintiffs; and the ques[*523] tion was, whether Gaskell *had not induced the makers of the note to give it and whether he had not fraudulently concealed from them the fact that his principal was insolvent. He put in an answer, in which he denied that the note had been given by the plaintiffs at his instance; but he admitted that he had been aware of his client's circumstances at the time in question, and he also admitted the possession of books, papers, and letters relating to the matters mentioned in the bill: and he set forth a list of them in a schedule; stating, however, that the entries in the books were made, and the papers and letters written and received by him in his capacity of confi (a) 3 Mylne & Keen, 512. 1838.-Desborough v. Rawlins. dential solicitor for his client. Lord Broughan refused to order the books, papers, and letters to be produced. As to many of those papers, undoubtedly the privilege would apply. It did not appear to me at the time, (a) nor does it now appear to me, that there might not be papers to which that privilege would not apply. The defendant, the solicitor stating what he did, I should doubt whether the court would not call on him to set out the papers in particular, and to give them in more detail. It is, however, not at all essential to go further into the examination of the particular circumstances of that case, for it is quite clear that Lord Brougham intended to lay down the rule as he found it laid down in all the cases; and his only observations upon Bramwell v. Lucas had reference to the facts of that case. Such being the rule, the only question is, whether the defendant in the present case has used such words in his answer as clearly and distinctly to bring himself within it. *Now the very first question is one which I should think it very [*524] difficult for him to protect himself from answering, for he says Downes came to the office, but he objects to state whether he came with a particular letter in his hand; and then, upon reading the terms in which the defendant has put his refusal to answer, the first observation which suggests itself is, that if the reasons which he gives for that refusal be good, it is quite clear that the decision in Spencely v. Schulenburgh(b) was wrong; for the party for whom the witness in that case was solicitor, and the party with whom he was dealing, were opposed to each other. On one side a person comes on the part of the plaintiff, and brings to the defendant's solicitor a certain paper, the contents of which the defendant's solicitor is called upon to prove; and the court of king's bench said that the privilege was restricted to communications, whether oral or written, from the client to his attorney, and could not extend to adverse proceedings communicated to him, as attorney in the cause, from the opposite party in the disclosure of which there could be no breach of confidence. Suppose that it had been to or from Beetham personally that the letter had been communicated, the case would be exactly within Spenceley v. Schulenburgh; and the question would be, whether the solicitor, to whom, as solicitor, the communication was made, would be entitled to withhold it. The court of king's bench said he would not, because it was not confidential between himself and the party for whom he was solicitor. As to all the rest, I dare say this gentleman intended it to be supposed that the words were used in their *ordinary sense. He has not [525] pledged his oath to the circumstances under which he obtained the information, in such a manner as to show that it is to be considered privileged. (a) The Lord Chancellor was counsel in the case. (b) 7 East, 357. 1838.--Desborough v. Rawlins. It may be that the defendant (Francis Beetham) was present accidently, and so heard what passed; but at all events those who claim the privilege are bound to bring their case within it. I cannot say, till I have learned how the defendant came to be present, who sent for him, and so forth, whether the communication was privileged. I say nothing as to what the result will be when the circumstances shall be more distinctly stated. The question I have to decide is, whether the defendants have on their answer protected themselves from the discovery; and I think that they have not.[1] As to whether they were properly made defendants, I cannot enter into that question, because I find them defendants; and the only question before me is, whether being defendants, they have put in a sufficient answer: but I trust that nothing I say in this or in any other case will tend to promote the practice of making witnesses defendants to a suit.[2] 1 Exceptions to the master's report overruled. [1] In Clagett v. Phillips, 2 Yo. & Co. C. C. 82, Knight Bruce, V. C. said, "That where a dispute had arisen between two parties, which might, unless amicably adjusted, terminate in a suit, there, if confidential communications with professional men passed in the course of the dispute, they would be privileged, if litigation ensued, though litigation might not have been contemplated at the time when the communications took place. So, in Herring v. Clobery, 1 Phillip's Rep. 91, Lord Lyndhurst held, "That where an attorney is employed by a client professionally, to transact professional business, all the communications that pass between the client and the attorney in the course and for the purpose of that business are privileged communications; and that the privilege is the privilege of the client, and not of the attorney:" and he speaks with evident approbation of the opinion of his immediate predecessor, in the above case of Desborough v. Rawlins, "Though he, (Lord Cottenham) was not called upon, from the particular circumstances of the case, to pronounce any decision upon the general question, yet it is quite clear from the scope of his observations and the line of argument that he pursued, that he was inclined to adopt the principle laid down by the court of common pleas," in Cromack v. Heathcote, 2 Brod. & Bing. 4. So, R. a solicitor having taken a mortgage upon the property of P. in his own name, but really on behalf of certain clients, by whom he had been confidentially employed to procure investments for their money, and having also been employed at different times in effecting mortgages upon parts of the same property for other clients who had taken the securities in their own names: it was held on a bill being filed against R. and P. by a judgment creditor of the latter, to redeem the mortgaged premises, that R. was not bound to disclose either the names of the cestuis que trust of the mortgage to himself, or of the parties by whom he had been employed in the other mortgages. Jones v. Pugh, 1 Phillip's Rep. 96. See further Nias v. The Northern and Eastern Railway Company, ante, 355-9 and note ibid. Carter v. Palmer, 1 Dru. & W. 746. [2] In general, a witness, having no interest in the subject of a suit, cannot be made a party. The agents or officers of a corporation form an exception: but relief should not be prayed against them, unless the plaintiff makes out a case showing himself entitled to relief as against such agent or officer; otherwise the defendant may demur to the relief, though still he must answer as to the discovery; or he may raise the objection at the hearing, and claim that the bill may be dismissed, as to him, with costs. Varick v. Smith, 5 Paige, 160. M'Intyre v. The Trustees of Union College, 6 Paige, 239 Many v. The Beekman Iron Company, 9 Paige, 188. Tooth v. The Dean and Chapter of Canterbury, 3 Sim. 63. Seddon v. Connell, 10 Sim. 58, and see next case. |