1838.-Greenlaw v. King.

Mr. Richards and Mr. Heberden, contra :-As to the correspondence which passed confidentially between the late bishop and Mr. Leigh, his solicitor it is quite clear that if this motion were directed against Mr Leigh himself, it would be refused; Wright v. Mayer,(a) Greenough v. Gaskell,(b) Cholmondeley v. Clinton.(c) The privilege being that of the client, and not of the solicitor, it must equally exist, where the solicitor has parted with the possession of his client's documents and they have come into the possession of another person. If Leigh happened to be a defendant to the bill, he would not be ordered to produce these documents, and, therefore the present defendant, who represents him, is equally privileged. (d) The effect of their being produced might be to render the estate of the bishop liable; and surely, therefore, the court will not, in a suit to which the [141] *bishop's representatives are not parties, order their production.

It is admitted that the documents are in the defendant's power, that may mean, that Mr. Leigh would deliver them over, if asked; but will the court force the defendant to procure them from the solicitor of another party?

It is said that the communications are not privileged, because they took place some years before the institution of this suit; but the rule is, that when an attack is contemplated, a party is at liberty to have recourse to the advice of skilful persons, without being compelled to make a discovery of such confidental communications. Walker v. Wildman,(e) Hughes v. Biddulph,(g) Vent v. Pacey, (h) Bolton v. The Corporation of Liverpool, (i) Storey v. Lord George Lennox,(k) and Nias v. The Northern and Eastern Railway Company (1) In the last case, a case for the opinion of counsel, submitted to counsel after the dispute in the cause had arisen, and before proceedings had been commenced, was held privileged; and the Lord Chancellor there observed that, "whether a bill was or was not actually filed at the time was, to his mind, a matter of perfect indifference."

With respect to the correspondence betweeen the defendant and Mr. Leigh, they contended, they were privileged as having taken place between the de

fendant and his legal adviser, though not as his solicitor, and that [*142] it might probably be for the purpose of collecting *evidence which ought not to be communicated to the opposite party, lest the witnesses should be tampered with and the evidence known before publication, which was contrary to the rules of the court; Curling v. Perring,(m) Preston v. Carr.(n)

Mr. Pemberton, in reply.

THE MASTER OF THE ROLLS:-This is a bill, filed by the plaintiff against the defendant, to have it declared, that a security is void or satisfied.

(h) 2 Russ. 193.

(a) 6 Ves. 280. (b) 1 Mylne & K. 98. (c) 19 Ves. 268. (d) See Parkhurst v. Lowten, 1 Mer. 391. (e) 6 Mad. 47. (g) 4 Russ. 191. (i) 1 Myl. & K. 89. (k) 1 Keen, 351; S. C. 1 Mylne & Cr 525. (1) 2 Keen, 76. 3 Mylne & Cr. 355. (m) 2 Mylne & K. 380. (n) 1 Younge & J. 175.

1838.-Greenlaw v. King.

The transaction was this:-For the purpose of raising money for improving the rectory house of St. Mary's, Woolwich, an annuity, on the authority of an act of parliament, was to be granted to such person as would advance the money requisite for that purpose; the whole transaction was to be conducted with the consent, and under the control, of the bishop of Rochester. An annuity was granted to a nominee of the bishop, who advanced the money. During the incumbency then existing, the transaction was not questioned; but on a new incumbent being appointed, this bill was filed to impeach the transaction. A motion is now made for the production of certain papers which, by the answer, are admitted to be in the possession of the defendant. As to some of the papers there is no dispute, viz., the documents in the first schedule, which, it is admitted, ought to be produced; and there is no doubt that certain documents in the second schedule, viz., the correspondence of the defendant and his agent with his counsel or solicitor ought to be protected: the dispute arises on other papers. The bishop, having *procured an annuity to be granted to his nominee, in [*143] 1820 had a correspondence with his solicitor, with respect to the validity of this transaction, and a case was submitted for the opinion of counsel; this was a considerable time before the defendant had any legal interest in the subject matter of the suit, and no dispute had then arisen, nor was any action or suit then in contemplation; but it appears that the bishop apprehended that the transaction might be impeached, and was desirous, for his own ease and satisfaction, of knowing how far it was void; he thought fit to communicate with his solicitor, and obtain the opinion of counsel relative thereto. In 1823, the bishop transferred the annuity to the defendant, who, from 1823, was the owner of this annuity; and the bishop died in 1837. By means which are not explained, this correspondence between the bishop and his solicitor, and the case which was laid before counsel have come into the possession of the present defendant; and it is in respect of these documents that one part of the question arises. I have no doubt that I must take the admission in the answer to amount to this, that he has them in his own possession or custody, or in his power in such a way, that he can, by his own will, obtain possession of and produce them. I cannot take it otherwise.

The production is resisted on the ground that the communications were confidential and ought to be protected. I am surprised at the extent of the protection from discovery which is sometimes claimed. The general rule of the court is, no doubt, that what the defendant knows relating to the matters in question, the plaintiff has a right to know also, and for this very purpose, to prevent the defendant from suppressing within his own breast the matters material to the determination of the question between the parties. A defendant may resist "a just demand, knowing, from circumstances [*144] solely within his own knowledge, such resistance on his part to be unjust; this would be a fraud, and could only be prevented by a discovery.

1838.-Greenlaw v. King.

The defendant, on the other hand, by filing a cross bill, has a right to know all that the plaintiff knows, and may be material for his defence; this is one of the great distinctions between courts of equity and the other courts in this country here you can appeal to the conscience of a party, and obtain information; to extend the protection from discovery, further than is absolutely necessary, would be to cripple the jurisdiction of courts of equity in the most important particular. But there are exceptions to the general rule, and one is where knowledge of the fact has been communicated between the party and his solicitor; and it has been argued, that in every case in which a solicitor is bound to conceal his knowledge, the client himself ought to be protected from making such discovery. I do not accede to that proposition. There are many cases in which it would be contrary to the duty of a solicitor to disclose facts, of which, upon a bill being filed in this court, the client would be bound to make a discovery: this shows that the two propositions are not co-extensive; the solicitor may not be bound, or not permitted, to disclose matters which come to his knowledge as a solicitor, and yet the client may be bound to disclose them. It is decided, that if the knowledge of the client be obtained through his solicitor, there may be a protection; but in this case it is apparent that the knowledge of the defendant has not come to him through his solicitor. The argument is singular: it is said the information required to be disclosed was obtained from the late bishop, by Leigh in his character of solicitor; and that it was therefore his duty not to communicate it; that it

must have been from Leigh that the defendant acquired the informa[*145] tion; and that the *defendant was entitled to the same privilege as

Leigh, and was not, therefore, bound to state the information, because Leigh would not have been at liberty to disclose it as against the late bishop. It is very difficult to follow this. The bishop's executors, it is true, are not here; but, for any thing that appears to the contrary, the defendant has ob tained the information from the bishop himself. If Leigh performed his duty, which I must assume he did, he would not have delivered up the papers without the consent of the bishop or his executor; and as these papers do not appear to have passed between the defendant and his solicitor, and are, therefore, not within the exception, they must be produced.

I take it to be clear, that the other documents which are the subject of discussion, consisting of the correspondence which has taken place since the dispute arose, between the defendant and the solicitor to the late bishop, but who is not the solicicitor to the defendant, being merely his agent and confidental friend, are not protected. If these letters had been written to Leigh, for the purpose of being communicated, by that channel, to counsel, another question might have arisen;-I might have thought it subject to a different rule; but it is not so; they are communications which have taken place between the defendant and Leigh, not in his character of solicitor; and it cannot be said, that a mere friend is a person so confidential that a communication with him is privileged: the cases of privilege are confined to solicitors

1839.-Lord Selsey v. Lord Lake.

and their clients; and stewards, parents, medical attendants, clergymen and persons in the most closely confidential relation are bound to disclose communications made to them.[1] How can it be said that a mere friend is not equally bound? There must be a production of the papers and correspondence which passed between the bishop and Leigh *in the life- [146] time of the bishop; and of those papers between the defendant and Leigh, acting as his agent, and not as his solictor.

The production of the opinion of counsel was not required, and all the other papers, except the correspondence between the defendant and his solicitor, were ordered to be produced.[2]

1839

January 29.

LORD SELSEY v. LORD LAKE.

A person having a partial interest in an estate bought up charges thereon, and had them transferred to trustees for him; he afterwards became absolutely entitled to the estate: held, under the circumstances, that the charges had merged in the inheritance.

A testator gave a rent charge to trustees, during the life of A. B. and her five daughters, in trust, to pay it to A. B. for life, and after her death, upon "trust for her said daughters, and the survivors and survivor, and while more than one should be living to be divided between them in equal shares." A. B. had five sons, and one daughter only: Held, that, subject to the life interest of A. B., her only daughter was entitled to the rent charge of 2001. for life.

MRS. SEARE, being seised of certain freehold and copyhold estates, subject to a mortgage for 95001. vested in Sir John Mordaunt and W. Hayton, by her will, dated in 1794, devised them to Henrietta Seare, for life, with remainder to John Peachey, in fee, in trust, as to one moiety, to the use of Anna Maria Barker, for life, with remainder to her first and other sons, in tail, with remainder to her daughters, with remainder to Caroline Lockman, for life, with remainder to her first and other sons, in tail, with remainder to her daughters, with an ultimate limitation to Charles John Gough, in fee. She devised the other moiety in a similar way, the limitations, however, to Caroline Lockman and her children, preceding those to Anna Maria Barker and her children.

The testatrix died in 1798, and, in 1800, under the authorities in [*147] an enclosure act, Henrietta Seare mortgaged several pieces of land, allotted to her in respect of the estate, for the sum of 1500l., which was se

[1] Vide 3 Myl. & Cr. 359, n. 1.

[2] The Editor has nothing to subjoin relative to the quæstio vexata, above discussed, but a simple reference to his previous notes, 2 Sim. & Stu. 311, n. 1. 4 Russ. 191, n. 1. Id. 194, n. 1. 3 Myl. & Cr. 359, n. 1. 1 Keen, 353, n. 1, 2. Id. 355, n. 1. Id. 357, n. 1. The transaction out of which the discussion arose, was (July, 1840) set aside by Lord Langdale, M. R.: whose decree was (January, 1841) affirmed by the Lord Chancellor. See 3 Beav. 19.

1839. Lord Selsey v. Lord Lake.

cured by a demise for a term of 1000 years to Runting, in trust for Edward Barker.

In 1802, Edward Barker, the testator in the cause, purchased the reversion in fee of C. J. Gough, expectant upon the determination of the several previous estates limited by the will of the testatrix, in the freehold and copyhold hereditaments, and which, in May, 1802, was duly conveyed to him.

In June, 1802, the mortgage for 9500l. was transferred by Sir J. Mordaunt and W. Hayton to Maberley and David; as to 5500l., for the benefit of Maberley and David, and as to the remaining 40007., in trust for the testator Edward Barker: and, in the same month, the mortgage for 1500l. was transferred to Maberley and David.

In November, 1807, the estate and interest of Caroline Lockman was purchased by Edward Barker, and by conveyances of that date, the whole estate was conveyed by Caroline Lockman and Edward Barker and Anna Maria his wife, to John Peachey, in fee, in trust to secure an annuity to Caroline Lockman, and subject thereto, as to one moiety, to Anna Maria Barker, for life, with remainder to Edward Barker, in fee, "subject to the said mortgage of 55001. and the interest thereof, and all other incumbrances charged, due or owing thereon ;" and as to the other moiety, to the use of Edward Barker,

in fee, to uses to bar dower, "but subject to the said mortgage of [*148] 5500, and the interest "thereof and all other incumbrances charged, due and owing therecn."

By an indenture, dated the 26th of March, 1813, after reciting that Edward Barker had, previously to the execution thereof, paid to Maberley and David the said sum of 55001., and that the said Edward Barker had required them to assign the aforesaid manor, &c., comprised in the said term of 2000 years, unto Robert Langford, in manner thereinafter mentioned, it was witnessed that, in consideration of 5500l. so paid by the said Edward Barker to Maberley and David, they assigned the property, with the appurtenances, and the term of 2000 years, to Robert Langford, to hold the same for the remainder of the said term of 2000 years, in trust, as Edward Barker, his heirs and assigns should from time to time direct or appoint, and in default thereof, in trust, to attend the inheritance: "and subject and without prejudice to the contingent rights and interests of the issue (if any) of the said Caroline Lockman and Anna Maria Barker respectively, who should or might become entitled, under or by virtue of the said recited will of the said Mary Seare, but so that, as against such issue, the said Edward Barker, his executors, administrators and assigns, should or might, in that case, have and be entitled to a charge or lien in respect of the said sums of 55001. and 40007. respectively, so paid by him as thereinbefore mentioned; and also subject and without prejudice, as to one moiety of the said manor and other herditaments, to the life interest of the said Anna Maria Barker therein; and Maberley and David covenanted to surrender part of the property, (being copyhold,) subject to the contingent rights of the issue (if any) of Caroline Lockman, and Anna Maria