1839. The Attorney General v. The Fishmongers' Company.

former has no title to any increase in the event of an augmentation of the annual revenue; Thetford School case; (a) In re Jordyn's Charity.(b)

The construction which the statute of the 1st Ed. 6, has judicially received completely determines that these gifts are superstitious. First, it has been held that where the superstitious use is of uncertain amount, so that the precise sum cannot be ascertained, the King takes the whole of the land, subject however to such good payments as the land was subject to in the hands of the feofees. The decision was founded on this, that if, in such a case the King did not take the land itself which was given for the maintenance of an obit, he could take nothing. All the authorities establishing this proposition which occurred prior to the case of Adams and Lambert, (c) are set out in that case, as Sir John Tate's case, (d) John Allen's case,(d) Turner's case,(e) the resolution in Adams and Lambert's case.(g) In the present instance the amount of the obit being uncertain, the whole became forfeited to the Crown, neither entry nor office was necessary, the King being deemed by the statute to be in actual possession.

Secondly, it has been determined that where the whole land is given subject to a superstitious use, the King shall have the land, although the

particular sum limited to the superstitious use, does not exhaust the [*167] *whole. Sir Bartholomew Read's case, (h) Walpool's case, (i) Ca

ley's case,(k) Gregory's case,(k) the resolution in Adams and Lambert's case.(g) The only cases which are at all inconsistent with the second proposition are Hewet and Wotton's case,(l) and Chibnal and Whitton's case,(m) which are, however, distinguished by Lord Coke.

Thirdly, where a charitable use is connected with a use superstitious within the statute of 1 Ed. 6, the whole is void, and the King has the land; on this point Sir Bartholomew Read's case, (h) Colborn v. Dale,(n) Adams and Lambert's case, Simon Peter's case,(g) Lady Egerton's case.(o)

Fourthly, it has been decided that all donations to provide prayers for the soul, either public or private, are superstitious uses within the statute. Sir John Tate's case, (d) Caley's case,(k) Gregory's case,(k) Colborn v. Dale,(n) Adams and Lambert's case.(g) Every gift in the will of Sir Thomas Kneseworth, with the exception of that to the prisoners of Ludgate, is directly and in terms connected with a superstitious use.

It is not the paternosters, &c. themselves, but the superstitious application of them that renders the gift superstitious; the testator's intention being by means of mercenary prayers, to benefit the souls of the departed and lessen the period affixed for their duration in purgatory; praying for souls was founded on the notion of purgatory which it was the policy of the [*168] times to "discourage. The preamble of the stat. of the 1st Ed. 1.

1839. The Attorney General v. The Fishmongers' Company.

represents "purgatory and masses satisfactory to be done for them which be departed" to be a vain opinion; and the act invalidates not only obits and anniversaries, but any " other like thing, intent or purpose."

If these uses be held to be superstitious, then there is no authority for executing them cy-pres as good charitable trusts; under the statute they became vested absolutely in the Crown, discharged of the trusts, and the King cannot be deemed a trustee for any purpose.

The Fishmongers' Company have, it is true, voluntarily applied a considerable portion of the income of the property to charitable purposes, but they have always treated the annual undisposed of balance as their own, and have applied it to their general purposes. The mode of dealing with the property by the company would be very important if their title under the different instruments were doubtful, or if the information had alleged that the company had, by usage, created a valid and binding trust; but it is unimportant where the instruments show a good title in the company, and where the information contains no such allegation.

The defendants, therefore, claim the estate beneficially subject to the trusts for the prisoners, first under the will itself, and secondly, by means of the letters patent and the act of James I.

November 9.-THE MASTER OF THE ROLLS-It appears to me that the effect of this statute of James I. was to vest in the Fishmongers' Company, for their own use, such lands or interests in lands mentioned in the letters patent of King Edward VI., as the Crown *was entitled to [*169] under the statute of the first of Edward VI.

Now one of the purposes for which Sir Thomas Kneseworth directed the rents of his estate to be applied was the finding and maintaining an anniversary and obit for ever, and it was necessarily and properly admitted, that this was a superstitious use within the statute; and supposing that any part of the rents was to be applied to purposes not superstitious, the crown, though it might not be entitled to the land, was, under the statute, entitled, in the nature of rent charge, to such sums as in any one year during the preceding five years had been applied to purposes to be deemed superstitious under the

statute.

It is to be observed that the three rents of 10s., 10s. and 10s. mentioned in the letters patent of Edward VI. are particularly mentioned in the will as quit-rents to be paid by the receiver, and that, consequently, the 21. 13s. 4d., described as the sum which the company had been accustomed to pay towards the perpetual support of two anniversaries for the soul of Sir Thomas Kneseworth, is all that in this instrument is described as the King's rent or annuity in respect of such application; and this I apprehend to be one of the points on which the relators principally rely, admitting, as they had properly done at the bar, that the maintenance of anniversaries and obits was a superstitious purpose, and contending that the King never took, and was not entitled to take, more than was granted by these letters patent.

1839.-The Attorney General v. The Fishmongers' Company.

There is nothing to show what was the revenue arising from the estates in question, though, from the dispositions made by the will, it would seem probable that the income greatly exceeded the three quit-rents and [*170] the *21. 13s. 4d.; neither is there any thing to show, whether King Edward VI. or Queen Elizabeth took any other part of the rents as rent charges under the statute of Edward VI., although the act of James I. may afford some reason for thinking that other compositions, besides that which was carried into effect by the letters patent, may have been made; but on the whole it appears to me, that any rent or payment to which the King was entitled as concealed, under the statute of Edward VI., and the land out of which the same was payable, was assured to the company by the statute of James; and taking into consideration the effect of this act, and also having regard to the nature of the present suit, which seeks to establish the trusts of Kneseworth's will and to carry them, and not any other trust created in any other manner, into execution, I think that the question to be determined in the cause is, whether the trusts of Kneseworth's will or any of them are good charitable trusts which have been violated by the defendants, and the exccution of which ought to be and is now required to be enforced by the decree of this court.

Soon after the statute of Edward VI. questions arose, sometimes upon the uses which were to be deemed superstitious within the statute, and more frequently upon the effect of the statute in giving to the Crown either the land the rents of which were to be applied to the uses, or only the sums of money which had been annually applied to the uses, and upon that subject some distinctions which may appear rather nice were made; but it seems to me that the case of Adams v. Lambert, as reported by Coke and by Moore, and several of the authorities there cited, and the case of Pitts v. James, [*171] as reported by Rolle, (a) and other cases stated in Duke *cannot be read without coming to the conclusion, that establishments or foundations for securing prayers for the souls of the dead were deemed to be superstitious and within the statute of Edward VI.; and upon these authorities I am of opinion that the directions of the will to which I have referred are such, that the payments made in respect thereof became the property of the Crown.

In the argument for the relators it was urged that the directions to which I have referred are only directions to pray for the souls of the dead, that such directions are not unlawful, and are not and never have been prohibited by the Church of England, and were not deemed to be superstitious at the time when the statute of 1 Edw. 6, was passed. It does not appear to me to be necessary, for the purpose of deciding this case, to enter into a minute examination of the doctrine of the church of England respecting prayers for the souls of the dead; the question is, whether the uses to which the testator has directed his property to be applied in perpetuity are such as to vest the land,

(a) P. 416.

1839.-Bunbury v. Bunbury.

or the moneys applicable to the uses directed by the will in the Crown, according to the intent and true effect of the statute of Edward VI.; and although prayers for the souls of deceased persons might not according to the doctrines of the Church of England be necessarily connected with the doctrine of purgatory, and although it might not be considered as an ecclesiastical offence to pray for the souls of deceased persons, or request others to do so, (upon which points I do not think it necessary to express any opinion at this time,) yet it might, nevertheless, as I conceive, be properly deemed superstitious to create an establishment or endow a foundation, to be continued in perpetuity and conducted with certain ceremonies supposed to be religious, for the purpose of securing the perpetual *continuance of [*172] prayers for the sonls of the dead, either alone or in connection with other observances within the express terms of the act; and it appears to me that the question has been determined by authority.

There is nothing to show whether the sum of 100 marks was ever paid, but the gift of this sum for the better performance of the trust above mentioned leads to an inference, that at the time, the rents were not more than sufficient to answer the purposes to which the testator directed them to be applied. Even in the directions for making and renewing loans out of the reserved fund the testator has intermixed directions for religious observances to be performed for the benefit of his soul and the souls of others, and the only charitable gift unmixed with superstition which I find in the will is that to the prisoners in Ludgate and Newgate. This might be sufficient to save the land from vesting in the Crown; but all the other applications directed to be made of the rents appear to me to be either gifts for superstitious uses, or to be so connected with superstition, or contrived for securing the continuance and perpetuation of the superstitious uses, that the rents payable and paid in that respect became the property of the Crown under the statute of Edward VI.; and, under all the circumstances of the case, I am of opinion that the estates devised by Kneseworth became the property of the company, subject only to the performance of the trust for the prisoners of Ludgate and Newgate, which has been performed, and, therefore, that this information must be dismissed with costs.[1]

1839; November 8.

*BUNBURY V. BUNBURY.

[*173]

Necessary communications between a solicitor and client, through an unprofessional person, are privileged; but it not appearing in this case that the communications were wholly of a professional or confidential nature, such privilege was disallowed.

A case submitted since the instiution of the suit, for the opinion of Dutch counsel and the opinion thereon, held privileged.

THE facts of this case are stated in 1 Beavan's Reports, 318. The de

VOL. II.

[1] Affirmed by Lord Cottenham, January 13, 1841, 5 Myl. & Cr. 11
14

1839.-Bunbury v. Bunbury.

fendant by his answer admitted that he had in his possession the letters and documents set forth in the schedule, and which related to the matters in the bill mentioned; but as to some of the letters he said they had passed between him and Mr. Innes, his agent, "when the rights and interests of the defendant were in question, with reference to the institution and conduct of the aforesaid proceedings of the defendant in Demerara, and to the defence of the defendant in this suit; and that all such letters passed between the defendant and Mr. Innes, as the channel of communication between defendant and his solicitors and legal advisers in Demerara, and in this country, in the aforesaid proceedings and in this suit."

As to other letters he said, they "had passed between Mr. Innes, Mr. Pierce, Mr. Billinghurst, Mr. Smith, Mr. Laue, and Mr. Ross, after the death of the alleged testator, Hugh Mills Bunbury, when the aforesaid rights and interests of the defendant were in question, with reference to the institution and conduct of the aforesaid proceedings in Demerara ;" and that all such letters passed between the said last mentioned parties respectively, “as the channels of communication between the defendant and the other defendants and their solicitors in this country and their advisers in Demerara, in the aforesaid proceedings."

It was stated that Mr. Innes, Mr. Pierce, Mr. Billinghurst, Mr. [*174] Lane and Mr. Ross were merchants in London, Demerara, and St. Vincent respectively, and that Mr. Smith was the plaintiff's counsel in Demerara.

A motion was now made for the production of the documents admitted to be in the defendant's possession.

Mr. Pemberton, Mr. G. Richards, and Mr. L. Wigram, in support of the motion. The rule is, that where a defendant admits the possession of documents relating to the matters in question prima facie, he is bound to produce them; Tyler v. Drayton. (a) There being such an admission, it is for the defendant to show from his answer a sufficient statement to entitle him to protection against the operation of the ordinary rule; Storey v. Lord John George Lennox.(b)

Here no sufficient statement is made by the answer to relieve the defendant from the necessity of producing the letters, for they are stated to have passed between the defendant and an unprofessional person; the necessity which exists of unreserved communication between a party and his professional adviser for the proper defence of his rights is the sole cause of the privilege which is extended to professional communications pending legal proceedings; Bolton v. The Corporatim of Liverpool.(c) No such necessity exists for communicating between a party and an unprofessional person, and in such case there is no such privilege. Privilege has never been extended beyond communications betwen a party and his professional adviser.

(a) 2 Sim. & S. 309. (b) 1 Myl. & Cr. p. 537; and 1 Keen, 341.

(c) 1 Myl. & K. 88.