that he [448] should not be aware of the amount until she should obtain the £1000 from a policy of insurance, which would be payable in three months. She then asked me what would be the amount of principal and interest three months hence. I asked her if she could afford to give me any money on account of the amount due. She replied that she could not then, as her husband's funeral had been attended with so many expenses; but that as I and my said partner had treated her with so much kindness in not having pressed them for payment, she would see us paid every shilling. I then told her that we did not fear that she would not pay us, and that we would give her any reasonable time for payment." Every word of that seems to imply that she considered she was under an obligation upon the note signed by herself and her husband. He continues: "I then told her what was the amount due at that date of principal and interest, and proposed that she should give us a promissory note, payable two months after date, for such amount and interest. At that time it was growing dark, and she suggested that we should have candles, as she was anxious that we should have the business over, as she thought it very probable that the Rev. Mr. Davis, of Court of Gollen, would be calling on her, as he generally did so every evening about that time since her husband's death, at the same time expressing her gratitude for his great kindness shewn her since that time. She then rang for candles, which the servant girl brought in with her, and at the same time the four children accompanied the servant. Directly after the servant girl left the room, she said to the children, in a laughing tone of voice, 'Now, young ladies, you go into the next room and finish playing on the piano, as I have some private business with Mr. Joseph,' meaning myself. As soon as we were left alone I produced a stamp from my pocket and drew the promissory note mentioned in the bill for the amount due and interest, payable at two months' date, which the [449] Plaintiff signed without the slightest hesitation, without having said a word about consulting her father or anyone else; on the contrary, expressing a desire that her father should know nothing of the transaction at the same time being evidently aware of the nature of the transaction and the liability she then incurred. I then gave up the said joint note of herself and her said husband, telling her it was of no use, as she had given the new note in lieu of it." Every word of that bears the impression that she thought that she had been treated with kindness, because her husband and herself had not been pressed for the payment of the old note, which she did not ask to have delivered up to her, but would have let the Defendant go away with both notes in his possession if he had not offered to give up the old note, telling her it was of no use to him. He then says she repeated her gratitude at his having treated her kindly, and repeated that she would see himself and his partner paid every shilling. I take his own story entirely, and ask whether it is possible that a promissory note so obtained can be valid; and whether I ought to send the case to a jury, and so give the Defendants a chance, as it was observed in Newman v. Milner (2 Ves. jun. 483), of obtaining a verdict against the direction of the Judge, after such a statement as this. The Defendant, Joseph, knew that this lady was not under any obligation to him, that she had not any property of her own, and that her husband had only been dead nine days; and she swears she did not know she was not liable upon the note. In a subsequent part of his affidavit he says that he believes she was perfectly aware she was not bound, because a year before, when the Defendants obtained an undertaking from her husband's mother, the Plaintiff said that that undertaking, having been given during the lifetime of her husband's father, would be of no use; but nothing was said at the interview [450] to shew her that she was not liable upon the note. What could induce her, under these circumstances, to sign the new note? There was no possible inducement for her, before she had administered and investigated her husband's affairs, and seen what her position was, to put her name to this note, if she knew at the time that she was not liable upon the note signed by herself and her husband. I quite agree that if she had volunteered by giving a new note or otherwise to bind herself, saying that she considered herself bound in honour to provide for the debt, that might bring the case within the decision in Lee v. Muggeridge (1 V. & B. 118), where the voluntary bond of a married woman was held to be a sufficient consideration for a subsequent promise to pay the debt. But in a transaction like this-the Defendant, Joseph, on the occasion of obtaining this note, having given the Plaintiff no explanation whatever, but merely saying, Can

you pay me? not having intimated to her that she was under no liability, but asking her, Can you pay me anything now? to which she answered, No; my husband's funeral has cost me so much-to suppose that she gave him a new note from an honourable desire of seeing him paid, which must have been at some other person's expense, would raise a question which it would be perfectly preposterous to send to a jury. I have not mentioned the evidence on the Plaintiff's side, except that she swears that she did not know that she was not liable upon the former note. Looking only at the facts of this Defendant going to her house with a stamp in his pocket a day or two after her husband's funeral, and asking her to pay him what was due upon the former promissory note; she saying that she could not, but expressing her thanks for his kindness in not pressing her husband and herself, and then, at the Defendant's request, putting her name to a new note, and making herself liable for a sum of which she owed nothing before; relying on the De-[451]-fendant's own statement without making any comment upon the Plaintiff's evidence, assuming her to have been in a condition perfectly to understand business at the time, I see nothing to shew that she was intending to fulfil an honourable obligation, which is the only thing that could make this note valid. There must be a decree that the promissory note be delivered up to be cancelled, with costs against the Defendants.

[451] MANSER v. DIX. Feb. 19, 20, 1855.

[S. C. 3 Eq. R. 650; 24 L. J. Ch. 497; 1 Jur. (N. S.) 466; 3 W. R. 313. Followed, Macfarlan v. Rolt, 1872, L. R. 14 Eq. 580. See Minet v. Morgan, 1873, L. R. 8 Ch. 368; In re Holloway, 1887, 12 P. D. 171.]

Production of Documents. Professional Communications. Ante litem motam. Title. Instructions by a purchaser to his counsel for the preparation of the draft agreement to purchase, though given long ante litem motam. Held, to be privileged in a subsequent suit, which sought to impeach and set aside the sale, on the ground that the vendor was a trustee who had no power to sell.

So also were the draft agreement itself as approved by counsel, and the opinion of counsel upon alterations in the draft. Lord Walsingham v. Goodricke, 3 Hare, 122, distinguished.

The bill in this suit sought to impeach an agreement for the sale of certain leasehold hereditaments of the Plaintiff, dated the 24th of June 1851, and a conveyance or assignment of such premises to F. Langford, in pursuance of such agreement, by a deed dated the 25th of August 1851, which agreement and conveyance purported to have been made and executed under the trusts or powers of an indenture, dated the 12th of February 1845, whereby the premises were assigned to a trustee, upon trust to sell, and out of the proceeds of such sale to pay to two persons, parties to the deed, certain sums due to them from the Plaintiff, with interest and costs, and to pay the residue to the Plaintiff; but the Plaintiff alleged that the trusts of this indenture never came into operation.

One of the Defendants had purchased the premises from Henry Davis, who purchased them from F. Langford. The other Defendants were the trustees of the deed of August 1851 and the executors of F. Langford.

The executors of F. Langford admitted that they had [452] in their possession the following documents relating to the question in dispute in this cause :—

Instructions to counsel on the part of F. Langford for the preparation of the draft of the said agreement of the 24th of June 1851.

The original draft of the said agreement, approved by such counsel on the 6th of June 1851.

The opinion of counsel, dated the 30th of July 1851, upon certain alterations in the draft of the indenture of the 25th of August 1851; but they claimed protection for them on the ground that they were professional communications.

Mr. Rolt, Q.C., and Mr. Goldsmid, for the Plaintiff. These documents are not privileged, because they passed before the dispute arose.

Letters written by a Defendant and his father to their solicitor previously, without reference to any dispute, and a case and opinion concerning the property in the same position, were ordered to be produced: Beadon v. King (17 Sim. 34). So written communications between a vendor and his solicitor, which passed before any dispute had arisen between him and the purchaser, were ordered to be produced in a suit by the latter for specific performance, except such part of them as contained legal advice or opinions: Lord Walsingham v. Goodricke (3 Hare, 122). And subsequently the present Lord Chancellor, when Vice-Chancellor, ordered the production of letters written under similar circumstances, which were not alleged to contain legal advice or opinions: Hawkins v. Gathercole (1 Sim. (N. S.) 150).

Mr. W. M. James, Q.C., and Mr. E. F. Smith, for the executors of F. Langford. These documents are privi-[453]-leged. An attorney will not be allowed to give evidence of verbal communications which passed between his client and himself in the course of business which he was employed to transact: Herring v. Clobery (1 Ph. 91), Pearse v. Pearse (1 De G. & S. 12). [THE VICE-CHANCELLOR. In Bolton v. The

Corporation of Liverpool (1 My. & K. 88) even opinions of counsel were ordered to be produced, having been given ante litem motam.] Then if a vendor were to lay before counsel instructions to prepare protecting conditions of sale, suggesting possible defects of title which ought to be guarded from objection, these instructions must afterwards be produced if litigation should happen to arise.

Mr. Rolt, Q.C., in reply.

Mr. Daniel, Q.C., and Mr. W. P. Murray appeared for another Defendant, against whom there was a similar motion.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. The main question on this motion arises concerning the documents sought to be protected by the third paragraph of the Defendant's affidavit. These are communications between a man and his legal adviser -drafts prepared by counsel, and opinions of counsel thereon, all of which were long ante litem motam. According to the report of Lord Walsingham v. Goodricke (3 Hare, 122), which is the most favourable case for the Plaintiff, Vice-Chancellor Wigram, having remarked that he would not order the documents in question in that case to be produced if the matter were res integra, closed his judgment by saying, "Any part of the letters which contains legal advice or opinions may be protected, if the fact is brought before the Court by affidavit." Now a draft prepared by counsel comes clearly under the head [454] of legal advice. It would contain marginal observations or alterations made by counsel which fall within the definition of legal advice. There is more difficulty respecting the instructions of F. Langford to his counsel for the preparation of the draft; and upon this point one cannot but regret to see the number of cases that have occurred of late years, and the discrepancy between some of the decisions. In Lord Walsingham v. Goodricke (3 Hare, 122) I cannot help observing the desire of the learned Judge to escape from the decisions in previous cases. If the matter were res integra, he says he should scarcely hesitate to decide in favour of the privilege. His Honour considered himself bound by the decisions in Hughes v. Biddulph (4 Russ. 190), Vent v. Pacey (Id. 193), and Bolton v. The Corporation of Liverpool (3 Sim. 467; S. C. 1 My. & K. 88), to hold that letters which passed between a solicitor and his client, and cases prepared anterior to litigation or dispute, were not privileged. However, I cannot but accede to a great part of the reasoning in Pearse v. Pearse (1 De G. & S. 12). It is difficult to reconcile on principle the protection of the client which privileges him from disclosing anything which passed between himself and his solicitor in consultation, and the decisions as to letters passing between them and documents prepared before any dispute has arisen concerning the subject to which they relate. You can, of course, extract from the client everything that he knows; the circumstance that he has communicated it to his solicitor is not a reason for refusing this kind of discovery. You would be able to discover every fact in the client's knowledge; but you must get them from him upon oath, and as you could not call his solicitor to contradict anything which he may say by disclosing what may have passed between them in consultation, I should have thought, independently of authority, that the true rule would be that [455] as you could not shew that in con

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versation with his solicitor he had made such and such statements, of course everything which he wrote to his solicitor should be equally privileged. On this point the authorities present some difficulty; there are decisions by which cases have been ordered to be produced, but not the opinions on them. Lord Langdale, whose views on this subject were that it would be a beneficial rule that everything should be produced, seems to have gone very far in Flight v. Robinson (8 Beav. 22), where, there being a discussion with reference to a sale by auction, the Defendants sought to protect themselves from the production of certain papers, which Lord Langdale, in page 38, says, may perhaps be assumed to consist of confidential communications between attorney or counsel and client, but they did not take place either in the progress of the suit or with reference to the suit previous to its commencement. They are properly distinguished as having taken place before the 10th day of November 1838, the day on which the relation of vendor and purchaser arose between the Defendants and the Plaintiff. The Defendants, being in circumstances of hazard and responsibility in their management of the estate for their own security and protection, made statements for the opinion of counsel, and allege them to be privileged communications, which in one sense they are, for their attorney would not be permitted to disclose them; but they are not, in my opinion, so privileged as to protect the Defendants themselves from discovering them in answer to the Plaintiff's bill."

The Plaintiff in that suit was a purchaser attempting to escape from the performance of his contract, and it certainly seems alarming to find it laid down positively in a case of that kind that, if a vendor discloses to his solicitor confi-[456]dentially, "being in circumstances of hazard and responsibility," all the facts relating to the estate, there being at the time no dispute, and afterwards litigation arises in which his title is impeached by a person in no fiduciary relation to him, he is obliged to disclose all that formerly passed between himself and his solicitor, possibly suggesting doubts which might be thrown upon his title. That case is in conflict with Pearse v. Pearse (1 De G. & S. 12), where the question was whether the vendor was compellable to disclose his motive for making a certain appointment, or confidential communications made, not during a dispute or after any threat of dispute. Lord Justice Knight Bruce, then Vice-Chancellor, put this case: "If a man is in possession of an estate as owner, he is not under any fiduciary obligation, he finds a flaw or a supposed flaw in his title, which it is not, in point of law or equity, his duty to disclose to any person; he believes that the flaw or supposed defect is not known to the only person, who, if it is a defect, is entitled to take advantage of it, but that this person may probably or possibly soon hear of it, and then institute a suit or make a claim. Under this apprehension, he consults a solicitor, and through the solicitor lays a case before counsel on the subject, and receives his opinion. Some time afterwards, the apprehended adversary becomes an actual adversary; for, coming to the knowledge of the defect or supposed flaw in the title, he makes a claim, and, after a preliminary correspondence, commences a suit in equity to enforce it, but between the commencement of the correspondence and the actual institution of the suit, the man in possession again consults a solicitor, and through him again lays a case before counsel. According to the Respondent's argument before me on this occasion, the Defendant in the instance that I have supposed is as clearly bound to disclose the first consultation and the first case, as [457] he is clearly exempted from discovering the second consultation and the second case. I have, I repeat, yet to learn that such a distinction has any foundation in reason or convenience: and then he observes upon the case of Cholmondeley v. Clinton (19 Ves. 267), where the Lord Chancellor protected from discovery matters of title come to the knowledge of the Defendant's solicitor in consultations concerning the title. He continues, "The contest is in the Master's office between a vendor and purchaser. It must be borne in mind that the discovery sought is of matters anterior to the contract, and concerns the question of title only, and that in order to obtain the production upon oath by the vendor (the exceptant) of such documents as he ought to produce, it may well be that not a single interrogatory may be necessary; and my opinion is that, as to some portions at least of the interrogatories before me, it is only upon a special case, if at all, that as between parties standing in the relative positions, and in the circumstances in which the parties here stand, they ought to be allowed. But, I am not aware of any such special case

having yet been made;" and he ends by allowing the exception. It is clear that, in that case, the party consulted his solicitor with a view to the sale, and previously thereto, without reference to the particular purchaser, but having apprehensions that there might be difficulties as to the title; and the communications made under that species of apprehension the Court thought ought to be protected. That decision and Flight v. Robinson (8 Beav. 22) can hardly stand together.

Lord Walsingham v. Goodricke (3 Hare, 122) was not a case of title, but the question there was whether the contract had been concluded or not. The Defendant said that it had not. There had been no communication upon the title, but the Defendant had written letters to his [458] solicitor, as his solicitor and confidential adviser, and insisted that he was not bound to produce them; and the Vice-Chancellor, after saying that, if the question were res integra, he would not order them to be produced, held that, as there had been no dispute at the time, he could not consider those documents to be privileged, except so far as they contained legal advice or opinions. With respect to the apprehension of intended litigation, he says, "The next contest was upon communications made before litigation, but in contemplation of and with reference to litigation which was expected and afterwards arose, and it was held that the privilege extended to these cases also. A third question then arose with regard to communications after the dispute between the parties, followed by litigation, but not in contemplation of or with reference to that litigation, and these communications were also protected: Bolton v. Corporation of Liverpool (3 Sim. 467; S. C. 1 My. & K. 88), Hughes v. Biddulph (4 Russ. 190), Vent v. Pacey (Id. 193), Clagett v. Phillips (2 Y. & C. C. C. 82). A fourth point which appears to have called for decision was the title of a Defendant to protect from discovery, in the suit of one party, cases or statements of fact made on his behalf by or for his solicitor or legal adviser on the subject-matter in question after litigation commenced, or in contemplation of litigation on the same subject with other persons, with the view of asserting the same right. This was the case of Combe v. The Corporation of London (1 Y. & C. C. C. 631). The question in that suit was the right of the corporation to certain metage dues, and the answer stated that other persons had disputed the right of the corporation to metage, and that they had in their possession cases which had been prepared with a view to the assertion of their rights against such other parties in contemplation of litigation, or after it had actually commenced. Sir J. L. Knight Bruce held [459] that those cases, relating to the same question, but having reference to disputes with other persons, were within the privilege; and I perfectly concur in that decision."

The case here is that the Plaintiff is disputing the title of a Defendant who has purchased this property, as the Plaintiff alleges, with notice of facts which would give the Plaintiff an equity to set aside the purchase. It is not a case of alleged fraud between the Defendant's solicitor and himself, nor indeed of fraud at all, except that the Court would not allow the Defendant to take with notice of a breach of trust; and the contest is whether any trust ever in fact existed. The bill impeaches the agreement of the 24th of June 1851, and the conveyance thereunder of the 25th of August 1851, with relation to which the communications in question took place. The documents of which production is now sought are instructions for the draft of the agreement, which resulted in the draft, and the original draft itself, and also the opinion of counsel upon certain alterations in the draft. Both the latter, as I have already intimated, I consider to be within the privilege. The question is whether the instructions for that draft are protected also. I can scarcely conceive any case more calling for protection at the hands of the Court. A party wishing to make his title secure consults his solicitor, being about to deal with trustees for sale of the property, the original owner of which, who made the conveyance in trust for sale, is not a party to the transaction; the intended purchaser wishing to be made sure, and knowing as everyone does the perils which surround a case of that kind, even where everything seems to have been formally done to authorise the trustees to make a title, sends instructions to his counsel. To say that these instructions are not privileged would be a refinement which I cannot make in a case of this description. If I were to order these instructions to be produced I should go the whole length of deciding that, in every case between [460] vendor and purchaser, if the purchaser raises a difficulty upon the title, he might be entitled to say that eighteen