—The documents, of which a production is sought, were prepared by Mr. Miller, the counsel of Jeremiah Haley, Sr., at his request, and on his employment were executed by Williams, and Jeremiah Haley, Jr., and then delivered to the counsel acting for Jeremiah Haley, Sr. I think this is the case substantially made out by the papers. That Williams, and Haley, Jr., had an interest in these papers which might entitle either of them to. call for a production, may, perhaps, be the case. But the question arises between third persons, creditors *71of Williams, and Haley, Jr. Williams’s consent to the production would not, I think, he sufficient of itself-to authorize third persons to demand it.
The subject of the production of documents, resisted, on the ground of professional confidence, was extensively examined by Vice-chancellor Sandford in March a. Ludlum (3 Sandf. Ch., 35), and all the leading cases were cited; the case of Holmes a. Huddely is since reported in 1 Phillips, 476 ; and in the same volume, page 91, is the case of Henessy a. Cloberry (see the American edition, and the notes to such cases). I have gone - over these authorities, and my conclusion is, that there must be at least a controversy anticipated between parties in relation to the subject of which the communications were made to counsel on the documents intrusted to him. It is not enough that they were made or delivered in the general course of professional business, although Walker a. Wildman (6 Mad., 47) goes that length. In the case referred to by counsel of People a. Benjamin (9 How. Pr., 419), the bill of sale was delivered to the witness as counsel, after he was employed in the action. In the Bank of Utica a. Mersereau (3 Barb. Ch., 528), a controversy must have been anticipated. Part of the communications- made to counsel were, that the Steuben Bank and other creditors were crowding them, the clients.
The counsel of the motion contends, that the rule as to privileged communications does not extend to cases of fraud, and cites Coveney a. Tannahill (1 Hill, 33). But the chancellor, in the Bank of Utica a. Merserau (et supra) has shown that the exception only exists in cases of crimes, strictly so called.
My opinion upon the whole is, that the documents ought to be produced. The old case in the House of Lords (Ratcliff a. Lunnan), so much criticised and disapproved of, is an authority in point.
Order for the production of the documents in the hands of the attorney, Miller. Order to be settled on two days’ notice.