by any of the learned Judges in equity, to whose decisions reference has been made; and I will not be a party to establishing such a precedent." Vide remarks of Cockburn C. J., in Chartered Bank of India v. Rich, 32 L. J. (Q. B.) 300.

(c). The privilege which exempts a communication from production is the privilege of the client, and not of the solicitor, and communications relating to the subject-matter of the suit, and furnished with a view to litigation, are as much protected upon principle when made by a lay agent as they are when made by a solicitor-Ross v. Gibbs, L. R. 8 Eq. 522.

(d). The case of Bustros v. White, L. R. 1 Q. B. 423, decided by eight eminent Judges, terminated the conflict of decisions between the Divisions of the Supreme Court of Judicature in England. In that case it was held that correspondence between the plaintiff and his agent and another firm, which the defendant claimed to see as ' material to his defence' was not privileged, inasmuch as it did not come within the rule of privilege applying to professional confidence, which only applied to inquiries instituted by or under the direction of professional advisers. Jessel M. R. remarked: "There is nothing that brings the matter of opinion within the rule as to professional or quasi-professional privilege; and by quasi-professional privilege I understand this to be meant that the advice or communication may be protected when it does not proceed from the solicitor directly, but is information sent at his instance by an agent employed by him, or even by the client on his recommendation."

(e). The case of Bustros v. White has been followed in this country in the case of Wallace v. Jefferson, I. L. R. 2 Bom 453. In this case the defendant prayed for the production of two or three telegrams and letters, all of which had passed between the plaintiffs in London and Mr. Richardson, who managed their business in Bombay. It was said that they were protected, as they were confidential communications between principals and their agents. The Bombay High Court ordered their production, observing: "The mere circumstance that communications are confidential does not render them privileged as pointed out by the Master of the Rolls in Anderson v. Bank of British Columbia (L. R. 1 Q. B. D. 139). They must be, to use his words, confidential communications with a professional adviser, and this view of the law was confirmed by the Court of Appeal consisting of Lords Justices James and Mellish. Nor would it be possible, having regard to the position in which Mr. Richardson stood to the plaintiffs, to treat him as a deputy of the solicitors in Bombay, even if the plaintiffs, had at that time, been in communication with professional advisers, which does not appear on the affidavit to have been the

case. Lord Justice Mellish, in the case of Anderson v. Bank of British Columbia, suggests that the privilege may perhaps extend to cases in which an agent, as distinguished from a solicitor, is employed in communicating evidence to be used at the trial. But it is not suggested that the letters from Mr. Richardson were of that nature. The documents, as shown by Mr. Richardson's affidavit, are of the same nature as those of which production was ordered in Anderson v. Bank of British Columbia."

(f). In the case of Bippro Das De v. Secretary of State for India, I. L. R. 11 Cal. 655, it was said: "The letters of which production is sought were a letter by Major Thomas to Major Hallett, and Major Hallett's reply to it; the first being a letter written for the purpose of giving Major Hallett information with a view to possible future litigation. It does not appear that it, or the reply to it, was written for the purpose of being communicated to any solicitor. It is consistent with the terms of the affidavit that both letters were written without any such purpose; but that they were of such a nature, that they might, in the event of litigation, be communicated to the solicitor. This does not show enough to entitle the documents to protection. It is for the party claiming the privilege to show that the documents were prepared for the use of his solicitor; that they came into existence for the purpose of being communicated to the solicitor with the object of obtaining his advice or of enabling him to prosecute or defend an action, as Cotton J., at p. 322, or as Brett L. J., at p. 320, in the case of the Southwork and Vauxhal Water Co. v. Quick, L. R. 3 Q. B. D. 315, says, modifying the words of Mellish L. J., in Anderson v. Bank of British Columbia 'merely for the purpose of being laid before the solicitor for his advice or consideration'... Nor, would it, I think, be enough to protect these letters, if they were written with a view to possible future litigation and with the intention that in that case they should be laid before a solicitor."

title-deeds witness not party.

a

130. No witness who is not a party to a suit shall Production of be compelled to produce his titleof deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the

production of such deeds or some person through whom he claims.

Purport of the Section.-This section relates to the case in which the document is the witness's own title-deed. Its provisions correspond with the English law, which is more extensive than our law, inasmuch as it exempts a witness from producing a document which might subject him to penalty or forfeiture, which this section does not.

Evidence of the contents of a Document which the Witness cannot be compelled to produce.-The English law is that when a witness is not compellable to produce his title-deeds, he cannot be compelled to answer questions as to their contents. In Davies v. Waters, 9 M. and W. 606, Alderson B. observed: "It would be perfectly illusory for the law to say that a party is justified in not producing a deed, but that he is compellable to give parol evidence of its contents; that would give him, or rather to his client through him, merely an illusory protection if he happens to know the contents of the deed, and would be only a round-about way of getting from every man an opportunity of knowing the defects there may be in the deeds and titles of his estate." The same rule applies to our country.

Extent of the Rule.-(a). There is nothing to prevent a person being subpoenaed to produce title-deeds or other documents which he would be entitled to refuse to produce. It is for him to claim his privilege when asked in court to produce them. (Vide sec. 162 post).

(b). Upon principles of reason and equity, Judges will refuse to compel either a witness or a party to a cause to produce either his title-deeds, or any document which he holds as a mortgagee or pledgee. But a witness will not be allowed to resist a subpœna duces tectum on the ground of any lien he may have on the document called for as evidence, unless the party requiring the production be himself the person against whom the claim of lien is made.-Taylor, sec. 458.

(c). The document must be one, by the production of which the title of the party on whose behalf it is held might be capable of being affected.-Goodeve, 148.

(d). Where the deeds, instead of being required in the shape of collateral testimony on some foreign issue, are to be the subject of impeachment themselves, or to be connected with a fraud, the subject

* Vide Whitaker v. Izod, 2 Tau. 115.

of investigation, they would not fall within the protection.-Goodeve, 148.

(e). The fact that the production of a document will expose the person producing it to a civil action affords no ground for protection under this section.

131. No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession, unless such last-men

Production of documents which another person, having possession, could refuse to produce.

tioned person consents to their production.

Vide notes to sec. 130 ante.

This section extends not only to professional men, but to trustees, mortgagees, and agents. The principle is in accordance with the English law.

Witness not excused from answering on ground that

minate.

132. A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal answer will cri- proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of kind :

any

Provided that no such answer, which a witness shall be compelled to give, shall

Proviso.

subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

Scope of the Section.-(a). This section does not in terms deal with all criminating questions which may be addressed to a witness, but only

Irrele.

with questions as to matters relevant to the matter in issue. vant questions should not be allowed, and it may be implied from the limitation in this section that a witness should be excused from answering questions tending to criminate as to matters which are irrelevant. To understand this section, it is desirable to consider it in connection with the subsequent secs. 146, 147 and 148, inasmuch as they together embrace the whole range of questions which can properly be addressed to a witness. By sec. 138, it is enacted that a witness must be examined and cross-examined as to relevant facts, and by sec. 146, it is enacted that, in cross-examination, he may also be asked any question which may tend to test his veracity, or to discover who he is and what is his position in life, or to shake his credit by injuring his character, though the answer may tend directly or indirectly to criminate him. If any such question relates to a matter relevant to the suit or proceeding, by which is meant no more than is meant by relevant to a matter in issue, the provisions of sec. 132 are by sec. 147 declared applicable to it. If the question is as to a matter relevant only in so far as affects the credit of the witness by injuring his character, the Court is, by sec. 148, directed to decide whether or not the witness is to be compelled to answer, and may warn the witness that he is not obliged to answer it. When there is a question asked to which the answer may tend to criminate a witness, he may object that it is not as to a matter relevant to a matter in issue, or that, if relevant, it is relevant only as affecting his credit by injuring his character. In the former case, if the question is insisted on, the Court will compel the witness to answer it; in the latter, it will determine whether or not, in reference to the rules which are to guide its decision, it should or should not compel the witness to answer. The Act gives the Judge no option to disallow a question as to matter relevant to the matter in issue. It gives him an option to compel or excuse an answer to a question as to matter which is material to the suit only, so far as it affects the credit of the witness. But inasmuch as no alteration of the law was necessary to secure the production of all evidence that was attainable where a witness voluntarily gave it, the law relating to answers so given was left unaltered. The end desired, the production of evidence from unwilling witnesses, was sought by depriving them of the privilege they had theretofore enjoyed of claiming excuse; but while subjecting them to compulsion, the Legislature, in order to remove any inducement to falsehood, declared that evidence so obtained should not be used against them except for the purpose in the Act declared. The object of the law was to secure evidence which theretofore could not have been obtained, and it was not its object to afford any additional protection to persons who, by an