LORD WAL- the case of discovery sought from the client in this case. SINGHAM V. GOODRICKE. [ *127 ] (said the LORD CHANCELLOR) the privilege did not exist at all, every This decision has been disapproved by almost every Judge under whose notice it has been brought, and the Courts have almost uniformly declared that it ought not to be extended: but, as Lord BROUGHAM intimated in Bolton v. Corporation of Liverpool (3), that being a decision of the House of Lords, there is no alternative but submission to whatever that case has decided. Now, upon that case I presume to observe, that the discussions which the subject of professional confidence has undergone in modern cases plainly show, that, at the time that case was decided, the subject was not R. R. 256. (1) 36 R. R. at p. 255 (1 My. & K. 94). (3) 36 R. R. at p. 256 (1 My. & K. 95), SINGHAM C. developed to the same extent as it is at the present day; and it LORD WAL*may admit of a question, whether the doctrine of professional confidence, as clearly established by modern cases, can be reconciled GOODRICKE, [ *128 ] in principle with the decision in Radcliffe v. Fursman. I venture also to express a doubt, whether the order in that case (an order overruling a demurrer) necessarily enforces the conclusion that the Courts should, upon motion, except in special circumstances, compel any communication made by a client to his solicitor, for the purpose of obtaining legal advice, to be disclosed. The defendant in that case stood in a fiduciary character towards the plaintiff. The circumstances under which the case was stated did not distinctly appear. It is one thing, in a case so circumstanced, to decide, upon demurrer, that some answer should be given to the charges in the bill; and another, to decide that the defendant is bound in every case to give all the discovery the plaintiff may have asked, as to communications between himself and his solicitor. The demurrer admitted that the appellant, or some person on his behalf, had stated a case for the opinion of counsel, and that the case so stated contained admissions important to the case made by the plaintiff upon the record: this was charged in the bill as evidence that the plaintiff knew or believed that the bond was never paid. The order overruling the demurrer decided, certainly, that, in a case so circumstanced, the Court would require the defendant to give some answer to the bill, at least to the extent of stating, upon oath, what the precise circumstances were under which the case was stated; but that order did not decide that no answer which the defendant could give would entitle the case to the privilege; still less did the order in Radcliffe v. Fursman decide that a defendant who had made no admission, express or implied, that he ever had stated any case containing admissions favourable to the plaintiff, could be required to set forth generally what communications had passed between him and his solicitor, for the purpose of enabling the plaintiff to see what he could extract from those communications. But that is the effect of an order for the production of documents admitted to be in defendant's possession, under the general charges. I may observe that, in principle, there can be no difference between cases stated for opinions, and other communications. With the cases of Walker v. Wildman (1) (which is a direct authority on the point, as appears upon an examination of the record) and Clagett v. Phillips (2), the authorities (1) 22 R. R. 234 (6 Madd. 47), (2) 60 R. R. 47 (2 Y, & C. C, C. 82), [129] SINGHAM LORD WAL- in favour of the defendant appear to end. I lay out of the case Preston v. Carr and Newton v. Berresford, as being overruled by Hughes v. GOODRICKE. Biddulph, Vent v. Pacey, and Bolton v. The Corporation of Liverpool. The cases of Preston v. Carr and Newton v. Berresford are important only as showing, by comparison with later cases, the strong disposition of the Courts to place the doctrine of professional confidence on a broader basis than it stood upon prior to those later cases. [*130] In Hughes v. Biddulph and in Garland v. Scott (1), the orders in terms would not include communications taking place before the dispute arose; but whether the orders were in fact so worded as not to go beyond what the particular case required does not appear. In Vent v. Pacey, many letters were stated to have been written by the client to his solicitor, which were not protected; but it is observable, that one only of those letters was stated to have been written in confidence, after the dispute had arisen; and the argument, as well as the order protecting that document, was confined to that alone; being, in fact, the only document for which protection was claimed. However, in Bolton v. The Corporation of Liverpool (2), two old cases prepared without reference to the existing proceedings, were ordered to be produced; and in Story v. Lord George Lenox (3), Lord LANGDALE's opinion is clearly expressed, that a case not stated with reference to existing disputes is not privileged; and I cannot but think his decision in Greenlaw v. King (4) affirms the same proposition, notwithstanding he apparently relies in his judgment upon the circumstance, that the case in question was not stated by the defendant to his own solicitor. It is unnecessary that I should examine the modern cases any further they are all of familiar reference, and are stated in the text books. Notwithstanding the disapprobation of the doctrine supposed to be established by Radcliffe v. Fursman, expressed in the cases of Walker v. Wildman, Preston v. Carr, and Bolton v. Corporation of Liverpool, as reported before the Lord Chancellor, I cannot feel myself at liberty to do otherwise than hold, that if the professional privilege is to be extended beyond the limits to which the order of the Court has already extended it, the order which does so ought to emanate from higher authority than mine. I have gone at length into the subject, because I believe I am correct in saying, that in no reported case before any Lord Chancellor, does it appear that the Court was called upon by the (1) 3 Sim. 396. (2) 3 Sim. 467; see 36 R. R. at p. 252. (3) 43 R. R. 258 (1 My. & Cr. 525). (4) 49 R. R. 310 (1 Beav. 137). actual circumstances of the case to decide that communications like those before me might not be privileged. The orders for production in Bolton v. Corporation of Liverpool, and in other cases, were made in the Court below, and submitted to upon the authority of Radcliffe v. Fursman. I am of opinion that the privilege, so far as the cases warrant it, ought to be upheld. Any part of the letters which contains legal advice or opinions may be protected, if the fact is brought before the Court by affidavit. THE MAYOR, ALDERMEN, AND BURGESSES OF GLOUCESTER v. WOOD. 3 Hare, 131-157; S. C. 13 L. J. Ch. 54; 7 Jur. 1125, 1151; affirmed on appeal by the House of Lords, sub nom. Mayor, &c. of Gloucester v. Osborn, 1 H. L. C. 272-286.) 1843. July 26, 27, On Appeal. 1846. 17, 23, 24. 1847. March 10. A testator, by his will, gave to his executors beneficially all his property which he might not dispose of, subject to his debts, and any bequests which he might afterwards make; and made a codicil of a later date in these Feb. 9, 10, 16, words: "In a codicil to my will, I gave to the corporation of Gloucester 140,000. In this, I wish my executors would give 60,000l. more to them for the same purpose as I have before named." No other codicil was found containing any bequest to or mention of the corporation. On a bill by the corporation, against the executors, and the Attorney-General, for the payment of the 140,000l. and 60,000l., and to have the interest of the corporation therein declared: Held, that the purpose of both legacies must be deemed to have been the same, and to have been expressed in the codicil referred to, as giving the first legacy. That a bequest of a legacy to an individual for a purpose expressed elsewhere, which purpose, from some unexplained cause, is unknown to the Court, creates such an uncertainty, that a court of construction cannot declare the intention of the testator. That, although it was improbable that the legacies to the corporation were given in trust for a private person, yet there being no legal presumption that such was not the purpose referred to, the Court could not presume that, because the legatee was a corporation, the legacy was therefore upon a charitable trust to which uncertainty of object would be no objection. That it being the duty of the executors to protect the interests of the residuary legatees against the claims of other persons on the estate, the circumstance that the executors were also residuary legatees was immaterial to the case. After dismissal of a bill for a legacy, the plaintiff applied to stay the transfer out of Court, pending an appeal from the decree, of a sum of stock which stood to the credit of the cause; and the Court ordered that, on the plaintiffs undertaking to submit to any order the Court might thereafter make for payment of interest or costs, the transfer of the fund should be stayed, with liberty to the defendants to apply for transfer, upon security to be given by them. June 28. House of Lord Lord BROUGHAM. Lord CAMPBELL. [131] JAMES WOOD, of the city of Gloucester, made two testamentary instruments, dated, respectively, the 2nd and 3rd of December, [132] ALDERMEN THE MAYOR, 1834, which were admitted to probate, as containing his will, and The were then described as paper writings marked A. and B. testator also made a third testamentary paper, dated July, 1835, which was also admitted to probate, as a codicil to the will. AND BURGESSES OF GLOUCESTER v. WOOD. [ *133 ] Paper A. was as follows: "Instructions for the will of me, James Wood, Esq., of Gloucester. I request my friends, Alderman Wood, of London, M.P., John Chadborn, of Gloucester, Jacob Osborne, of Gloucester, and John S. Surman, of Gloucester, to be my executors, and I appoint them executors accordingly; and I desire that they will take possession of, and retain to themselves, all my ready money, securities, and personal estate, subject to the payment of my just debts, and such legacies as I may hereafter direct; and with respect to my real estate, I shall dispose of the same to such persons and in such parts as I shall, by my writing indorsed herein, direct. Witness my hand, this 2nd of December, 1834, JAMES WOOD." Paper B. was as follows: "I, James Wood, Esquire, do declare this to be my will, for disposing my estate as directed by my instructions. I declare my wish that my executors shall have all my property which I may not dispose of, and that all my estates real and personal shall go amongst them and their heirs, in equal proportions, subject to my debts and to any legacies or bequests of any part thereof, if any, which I may hereafter make. In witness whereof I have to this my last will set my hand, this 3rd day of December, 1834. JAMES WOOD." The codicil, bearing the date of July, 1835, was in the following words: "In a codicil to my will, I gave to the corporation of Gloucester 140,000l. In this I *wish that my executors would give 60,000l. more to them for the same purpose as I have before named. I would also give to my friends, Mr. Phillpotts, 50,000l., and Mr. George Council, 10,000l.; and to Mr. Thomas Helps, of Cheapside, London, 30,000l.; and Mrs. Elizabeth Goodlake, mother of Mr. Surman, and to Thomas Wood, Smith Street, Chelsea, each 20,000l.; and Samuel Wood, Cleveland Street, Mile End, 14,000l.; and the latter gentleman's family, 6,000l.; and I confirm all other bequests, and give the rest of my property to the executors for their own interest. JAMES WOOD, Gloucester, City Old Bank, July, 1835." The testator died on the 20th of April, 1836. No testamentary paper, other than the foregoing, was proved or propounded. In November, 1841, the plaintiffs filed their bill against Sir |