I do not think the matters offered to be shown by the witness, Mastick, are within the rule or the principle of the rule at common law protecting confidential communications, as deduced from the cases; and section three hundred ninety-six of the Practice Act, in my judgment, does not extend the principle.

James Shindler conveyed certain lands to Mastick, and Mas-tick subsequently conveyed the same lands to Simon Shindler, the father of James. These conveyances were claimed by plaintiff, a creditor of James, to have been made without consideration and with intent to defraud him. They were there *70 fore claimed to be void as to him. The whole scope of the proof offered, was, that the conveyance was made by James Shindler to Mastick, and also by Mastick to Simon, without consideration. This is the substance of the testimony. Whatever was sajd beyond this was not called for by plaintiff, and was merely exculpatory ; and, so far as it went, was clearly to the advantage of the objecting party. The fact that Mastick neither gave nor received any consideration for the conveyances made to and by him, was not, in my opinion, a “ communication made by the client to him, or his advice given thereon in the course of his professional employment,” within the meaning of the rule or the statute. It is true that Mastick may have been employed to act as broker, or agent of Shindler, because he was also his professional adviser. But this is no part of his professional duty. Any other party might just as well have perforated this service, and acted as the medium of carrying out Mastick’s professional advice. But by taking on himself .this new office, Mastick became a party acting in the transaction, by which it is claimed that a fraud was perpetrated ; and it matters not that he had no personal interest in the transaction, and reaped no benefit from the fraud, if any there were. "The fact proved had no previous existence. It was brought into being by the witness becoming an actor in a transaction that had no professional character. In this he was acting as a medium for transmitting an estate, without consideration, from James to Simon Shindler, and not in receiving a communication for professional purposes, or, in giving professional advice.

It is admitted that there are exceptions to the rule, or rather cases that do not come within it, and that one of them is, where “an attorney is a party to the transaction, and especially if he is a party to a fraud,” “ if he were acting for himself.” If he is in fact a party to the fraud, or to the fraudulent transaction, whether aware of the fraudulent intention or not, I do not think it makes any difference whether he is acting for himself, or for somebody else.

In Duffin v. Smith, Peake, 108, usury in a mortgage was *71 proved by the plaintiff’s attorney, who prepared the deed, and who was called by the defendant to prove the consideration usurious. Lord Kenyon, in that case, said that “ when the attorney himself is, as it were, a party to the original transaction, that does not come to his knowledge in the character of an attorney, and he is liable to be examined the same as any other person.” Possibly this case, as stated in Peake, went too far, but it is by no means clear that it did.

Lord Chancellor Brougham, in Greenough v. Gaskell, 1 My. and Keen, 109, in which he reviews all the cases, commenting on this case, says: “It may be doubted if the attorney preparing the deed be not confidentially intrusted as an attorney in so doing. But Lord Kenyon proceeds upon the assumption that he is not; that on the contrary he is quasi party, and he seems to liken the case to that of a co-conspirator, where clearly there is no protection.” Greenleaf refers to the case of Duffin v. Smith as one without the rule, and states the principle of the case as follows : “The attorney may be compelled to disclose * * * usury in a loan made by him as a broker as well as attorney to the lender.” (1 Greenl. Ev., Sec. 445.) Thus stated, and on the assumption upon which Lord Kenyon proceeded, I have no doubt the principle is entirely correct. It was so held in Dudley v. Beck et al., 3 Wis. R. 285, a case which appears to me to be directly in point.

In the case now in hand the witness was not merely the attorney to advise and prepare the deed, but he stepped outside the line of his professional character, and became a party to the conveyances—an actor in the transaction. And in the character of grantee and grantor—of party to the conveyances —he acquired his knowledge of the fact that there was no consideration paid. I cannot think a fact thus brought to the knowledge of the witness is within the rule or the principle of the rule. If so, the rule would afford great facilities for perpetrating and concealing frauds. It would only be necessary to find an attorney who is willing to do the double duty of advising as to the mode of proceeding, and then acting as the agent or instrument in the execution of the plans *72 devised, and -all evidence of the transaction, except so far as the party himself could be compelled to disclose it, would be shielded from judicial inspection.

In my judgment it makes no difference, so far as the question under discussion is concerned, that Mastick had no knowledge himself of any fraudulent intent on the part of the Shindlers; his knowledge of the fact sought to be proved was still acquired by him in his capacity of party to the conveyances, and not in his professional character. And, in the language of Judge Story, “ the person called as a witness must have learned the matter in question only as counsel, or attorney, or solicitor, and not in any other way ” (Story’s Eq. Pl. 601); or in that of Lord Brougham, “The privilege shall be excluded when the communication is not made or received professionally, and in the usual course of business.” (1 My. and K. 115 ; see, also, Gore v. Harris, 8 Eng. L. and Eq. R. 149.)

In Brown v. Martin, 26 Cal. 88 , this Court held that a defense founded upon the Statute of Limitations will not be entertained on demurrer unless the statute is specifically stated as a ground of demurrer in the deriiurrer filed. I dissented for reasons stated at the time, but the point was fully discussed in that case, and I shall henceforth regard the question of practice determined as settled in this State. Under the decision in Brown v. Martin , the record in this case does not present the point made on the Statute of Limitations, and for this reason it is unnecessary to express any opinion upon it.

Upon the other points determined in the leading opinion I concur.