1850 and 1851.-Goodall v. Little. Sandford's Ch. R. page 35, the Vice-Chancellor, after considering all the English and American authorities on the subject of privileged communications, concludes that where there is a dispute, and one of the parties consults counsel on the subject, the communications between them are sacred, and the courts will not permit them to be divulged without the client's consent. *GOODALL v. LITTLE. [*155] Privileged Communications.—Production of Documents. 1850: 7th December; and 1851: 11th January. The answer, after denying the title of the plaintiffs, set forth a schedule of documents in the possession of the defendants, which it admitted related to the matters mentioned in the bill; but it denied that, by those documents, the truth of such matters would appear to be otherwise than as stated in the answer; and it submitted that the defendants ought not to be ordered to produce the documents, and, in addition, that certain of the letters mentioned in the schedule, ought not to be produced in this or any other suit, inasmuch as they were written either pending or in contemplation of the litigation in this suit, and with reference to the matters in this suit brought into controversy, and were written to one of the defendants from his solicitor, or from an attorney who had been employed by him in a suit instituted by him in the Lord Mayor's Court, to which the bill related, to the solicitors of that defendant, or from one of the defendants to another of them, for the purpose of being communicated to the solicitor of the latter, with a view to his defence in this litigation. Held, that such of the first class of letters as were written to the defendants by their solicitors, in that character merely were privileged, but that all the other documents and letters ought to be produced. THE bill was filed by two persons residing in the island of Teneriffe, who sued as the syndics or assignees of Pasley, Little and Co., a firm in that island, for an account of consignments and remittances made, by the firm, to William Little, one of the members of it who resided in London. The bill alleged, amongst other things, that, in 1848, the firm was duly declared bankrupt according to the law of Teneriffe, and the plaintiffs were duly appointed syndics or assignees of the estate and effects of the firm; and that, by virtue of such appointment, all the estate and effects of the firm were vested in the plaintiffs, for the benefit of the creditors of the firm: that William Little had received 4,5661. 1850 and 1851.-Goodall v. Little, on account of the firm, by means of the consignments and remittances; and that he pretended that 4,500l., part of that sum, had been attached, in a suit instituted in the Court of the [*156] Lord Mayor of London, by Archibald *Little, the executor of Archibald Little, deceased, for a debt due, from Pasley, Little and Co., to the deceased's estate. The bill charged that the suit in the Lord Mayor's Court, was instituted, not bona fide, but in collusion with William Little, and to enable him to retain, in his hands, the balance due, from him, to the bankrupt firm; and that no debt was due, from that firm, to the estate of Archibald Little, deceased, but, on the contrary, the estate of Archibald Little, deceased, was indebted, to the firm, to a considerable amount in respect of dealings and transactions between him and the firm in his lifetime. The bill further charged that divers letters had been written, by or on the part of Pasley and Co. to William Little, and by him to the firm, and that he and his co-defendant, Archibald Little, had, in their custody or power, divers books of account, letters and other documents and writings, relating to the matters aforesaid or some of them, or by which, if produced, the truth thereof would appear. The answer stated that, according to the law of Teneriffe, no firm of merchants were to be considered as entitled to the privileges of merchants, unless they had registered the partnershipdeed of their firm, showing the names of the partners, the term of the partnership and the capital of the firm; that, according to that law, no person who was not entitled to the privilege and quality of a merchant, could make himself or be declared a bankrupt; that no deed of partnership was ever registered by Pasley and Co.; that that firm was not, at the time mentioned in the bill or at any other time, duly declared bankrupt; that, [*157] by the same law, no person *could be or be appointed a syndic or assignee of the estate of a bankrupt, unless such person was, himself, both a merchant duly registered and also a creditor of the bankrupt; that the plaintiffs were not registered merchants according to the law of Teneriffe, and they had not been nor could they be duly appointed syndics or assignees of the es 1850 and 1851.-Goodall v. Little. tate and effects of Pasley and Co., or of any bankrupt merchant or firm, nor were the estate and effects, rights and credits of Pasley and Co. vested in them, in any manner; nor was the 4,5667. or any other sum, due to them from William Little. The answer then gave a detailed account of the proceedings in the Lord Mayor's Court, and averred that those proceedings were instituted bona fide and not in collusion with William Little, or to enable him to retain, in his hands, the balance due, from him, to Pasley and Co. It admitted that the defendants had, in their possession, the particulars mentioned in the second schedule, and that such particulars related to the matters mentioned in the bill; but it denied that, by those particulars or any of them, the truth of the matters stated and charged in the bill, or any of them, would appear to be otherwise than as the defendants had stated in their answer. It denied, also, the title of the plaintiffs to institute this suit; and submitted that the defendants ought not to be ordered to produce the said particulars or any of them; and, in addition, that the letters mentioned in the second part of the second schedule, ought not to be produced in this or any other suit, inasmuch as they were all letters written either pending or in contemplation of the lit igation in this suit, and with reference to the matters in this suit brought into controversy; and were all letters written either to the defendant, William Little, from his solicitors, or from Mr. Ashley, as the attorney of the defendant, Archibald Little, in the suit in the Lord Mayor's Court, to Messrs. Oliverson and Co., as [*158] the solicitors of Archibald Little, or from the defendant, James Little, (who was another member of the firm of Pasley and Co., and carried on the business of the firm in Teneriffe,) to the defendant, William Little, for the purpose of being communicated to the solicitors of William Little, with a view to William Little's defence in this litigation. A motion was now made, on behalf of the plaintiffs, for the production of all the documents mentioned in the schedule, except the letters dated and written after the filing of the bill. Mr. Bethell and Mr. Dickinson, in support of the motion, said that though the defendants had denied the title of the plaintiffs, 1850 and 1851.-Goodall v. Little. and had denied also that, by the documents mentioned in the schedule to their answer, the truth of the matters stated and charged in the bill, would appear to be otherwise than as they had stated in their answer (which was taking upon themselves to swear as to the judicial construction which would be put on the documents), yet that, as they had admitted that the documents related to the matters mentioned in the bill, they had admitted the relevancy of them; and, therefore, the plaintiffs were entitled to see them; for a plaintiff was entitled to see all the documents in the possession of a defendant, which might tend to make out his title, and the court, and not the defendants, was to determine as to the effect of them. With respect to the letters mentioned in the second part of the schedule, they observed that letters passing between a party and his attorney or solicitor, were not privileged, unless they were written for the purpose of obtain ing professional advice and assistance; but none of the [*159] *letters in question were alleged to have been written for that purpose; and that letters written by one defendant to another, were not privileged, although they might have been written for the purpose of being communicated to the solicitor of the other, and with a view to his defence in the suit. They relied on Edwards v. Jones, (a) and referred to The Marquis of Bute v. The Glamorganshire Canal Company,(b) Herring v. Clobery,(c) and Wigram on Discovery, third edit. p. 233; and submitted that they were entitled to see all the documents mentioned in the second schedule, except the letters dated after the filing of the bill. Mr. Rolt and Mr. Cairns, for the defendants, said that the answer denied the title of the plaintiffs as stated in the bill, and also that the documents mentioned in the schedule would prove it; Adams v. Fisher:(d) and that, with respect to the letters mentioned in the second schedule, the answer stated what alone (a) 1 Phill. 501; and 19 Eng. Ch. R. 500, Am. Ed. (c) Ibid. 91; and 19 Eng. Ch. R. 91, Am. Ed. (d) 3 Myl. & Cr. 526; and 14 Eng. Ch. R. part 2, 527, Am. Ed. 1850 and 1851.-Goodall v. Little. would have been sufficient to protect them; namely, that the first class of them was written either pending or in contemplation of the litigation in this suit, and with reference to the matters in this suit brought into controversy, either to William Little from his solicitor, or from Mr. Ashley, the attorney of Archibald Little in the Lord Mayor's Court, to Archibald's solicitors; and that the second class was written by James Little to William, for the purpose of being communicated to William's solicitors with a view to his defence in this litigation; Lancaster v. Evors.(a) *Mr. Bethell replied. [*160] 1851: 11th January.-THE VICE-CHANCELLOR :-The plaintiffs filed this bill as assignees, in Teneriffe, of James and William Little, who traded there, under the firm of Pasley, Little and Co., and who had, as the plaintiffs allege, become bankrupt according to the laws then in force. The defendants are James and William Little, and also Archibald Little. The bill states that the firm in Teneriffe was managed there by James Little; and that he consigned goods and remitted bills of exchange to William Little in London, to be realized on account of the Teneriffe firm and that William, accordingly, did realize money, from such goods and bills, to the amount of 4,500l. and upwards: but that, in order to prevent the Teneriffe firm, or the plaintiffs as their assignees, from obtaining that money, the defendant, Archibald Little, in collusion with his brother, William Little, instituted a fraudulent suit in the court of the Lord Mayor of London, in which he caused the money in the hands of William, due to the Teneriffe firm, to be attached for a large debt alleged to be due, to the estate of his late father, from that firm: and the object of the present suit is to obtain payment of the money realized by William Little, notwithstanding the proceedings in the Lord Mayor's Court. The defendants, William and Archibald Little, have put in a joint answer, in which they wholly deny the plaintiffs' title as assignees, and insist on the proceedings in the Lord Mayor's Court as good and valid proceedings, instituted (a) 1 Phill. 349 and 19 Eng. Ch. R. 349, Am. Ed. |