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![handle is hein.slavery/ssactsengr0795 and id is 1 raw text is: NIAS V. NORTHERN AND EASTERN RAILWAY CO.
husband. If a bill by husband and wife for the wife's separate estate were brought
to a hearing, if the separate estate consisted of a specific sum recovered and payable,
and capable of being secured to the separate use of the wife, I should think that a
decree ought to be made. And in many other cases I apprehend that, with no more
attention than the Court owes to the suitors, effectual means might be employed to
ascertain whether the suit was carried on with the free consent of the wife, and to
secure the Defendants from any further claims on her part. But confining myself to
the present case, in which my attention must be exclusively directed to the state-
ments made in the bill, in which the objection is made by the Defendants at the
earliest period in the cause, and in which the separate estate of the wife partly
consists of a sum to be ascertained by account, I think myself bound to give effect
to the objection. I therefore allow the demurrer; but I think that no costs should
be given, and I give leave to amend by striking out the name of Mr. Wake as
Plaintiff, and as next friend of his infant children, and making him a Defendant, and
by inserting the name of a next friend to the wife and infant children.
[76] NIAS v. THE NORTHERN AND EASTERN RAILWAY COMPANY. Jan. 18, 1838.
[S. C. (affirmed on appeal), 2 Keen, 312 ; 3 My. & Cr. 355 ; 40 E. R. 963. See Pearse
v. Pearse, 1846, 1 De G. & S. 27; Minet v. Morgan, 1873, L. R. 8 Ch. 367.]
A case laid before counsel was excepted in an order for the production of documents,
the Court considering itself bound by the decision upon the authority of which the
case was held to be privileged, but expressing dissent from that decision.
The bill was filed by the Plaintiff on the 4th of May 1837, for the specific per-
formance of a contract, entered into by the Defendants on the 13th of May 1836, to
purchase of the Plaintiff certain leasehold premises situate at Islington. The
Defendants, in answer to that part of the bill which charged the possession, and
required the discovery and production of documents, said they had in the schedule to
their answer set forth a list of the several books, drafts, abstracts, letters, documents,
and papers which related to the matters mentioned in the bill; but they said that
the eases for the opinion of counsel, and the opinions therein set forth in the said
schedule, had reference to the matters in question in this cause, and the same were
submitted to counsel after the several matters in dispute in this cause had arisen and
bore reference thereto, and therefore the Defendants submitted the same ought not
to be produced.
Among the documents enumerated in the schedule, were a case with the opinion
of Mr. Humphrey, dated the 12th of December 1836, Mr. Humphrey's opinion, and
further opinion on the abstract of the Plaintiff's title, dated respectively the 17th of
January 1837, and the 14th of February 1837, and the opinion of Mr. Law on the
same, dated the 10th of February 1837.
Mr. Pemberton moved for the production and deposit with the clerk in Court of
the several documents enumerated in the schedule, including the cases laid before [77]
counsel, but excepting the opinions. To the production of the cases laid before
counsel, as distinguished from the opinions of counsel upon them, the Defendants
were entitled on the authority of the case of Radcliffe v. Farsman (2 Bro. P. C. 514,
Toml. edit.), which was affirmed upon appeal in the House of Lords, and which was
followed in cases of so recent a date as Preston v. Carr (1 Y. & J. 175), and Vent v.
P1acey (4 Russ. 193).
Mr. Tinney and Mr. James Parker, conti-4. All the cases and opinions enumerated
in the schedule are protected, on the principle established in Bolton v. The Corporation
of Liverpool (1 Mylne & Keen, 88) ; for the Defendants by their answer say, that the
eases were submitted to counsel after the matter in dispute had arisen between the
parties, and bore reference thereto. The Defendants do not, however, in fact object
to any of the papers mentioned in the schedule, except the case and opinion dated
the 12th of December 1836. The case of Radcliffe v. Farsman has never been
approved, and it has been repeatedly held that the doctrine in that case ought not to
be carried further. As to Preston v. Carr, the authority of that case has been shaken
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