1844.-Hawkins v. Woodgate.

and advantage of the same policy or policies respectively, unto the plaintiff, his executors, or administrators."

"Provided nevertheless, that it should not be, in any wise, incumbent on Bradford to effect, or renew, or keep on foot any such policy or policies as aforesaid, or (at any time after the completion of such repurchase as aforesaid without such election being made by the plaintiff, as aforesaid) to assign or make over the same unto the plaintiff, his executors, or administrators, as aforesaid."

In April, 1844, the plaintiff gave notice to the defendants, who were the representatives of Bradford, that he intended, at the expiration of a month, to repurchase the annuity of 2157., and that he elected to take the policies and would take the assignment thereof.

The policies being worth 7447., the representatives of Bradford threatened to surrender them in consideration of that sum. The plaintiff, thereupon, filed this bill to compel the defendants, on payment of the redemption money, to assign to him the policies.

The repurchase money, and the value of the policies were [*568] *deposited, and it was arranged that the opinion of the court should be taken, upon bill and answer, as to the rights of the parties in respect of the policies.

Mr. Kindersley, and Mr. Bates, for the plaintiff, contended, that by the terms of the deed of 1839, the defendants were pre cluded from defeating the right of the plaintiff to the policies, by a surrender, after the plaintiff had given notice to repurchase the annuity, and had declared his election to take the policies. That although the defendants might be at liberty to allow the policies to drop, still they could not surrender them for their own profit, and that the words "at the time of making such repurchase" meant the time of giving notice.

Mr. Turner, and Mr. Bacon, for the defendants.-Under the first deed, it was quite at the option of the grantee whether he . would insure or not, but if he did, it would be at his own expense, and the policy would have belonged to him upon the repurchase of the annuity. By the deed of 1839, the plaintiff was relieved from a portion of the annuity, but no further benefit was

1844.-Hawkins v. Woodgate.

intended for him than that which was expressed on the face of the deed; that deed is to be construed favorably to the grantee, who was voluntarily giving up his right to a portion of the annuity.

The intention of the parties was not to give to the plaintiff the benefit of any outlay which the grantee might make for his own security, but to entitle him only to any policy existing at the time of the actual repurchase, and which would thereupon become useless to the grantee; this would be a convenience to the grantor, as, after the lapse of some years it might become difficult to effect a new policy on an old life.

*Upon the construction of the deed, it is to be observed [*569] that the clause of repurchase is dis-severed from, and independent of the clause as to the policies: there is an express. proviso, "that it should not be, in any wise, incumbent on Bradford, to keep on foot any such policy;" he might therefore have desisted from insuring, or might have surrendered the policy, at any time previous to the actual repurchase. The proviso is, that in case the plaintiff should repurchase and should, "at the time of making such repurchase," elect to take the policies, then Bradford would assign any policy which might be then (namely at the time of the repurchase) vested in Bradford. So that those policies only were intended, which might be existing at the time of the actual repurchase, or of paying the repurchase money, and there was nothing to prevent the surrender previous to that time. Mere notice was not a repurchase or payment. It created no obligation upon the plaintiff which could be enforced; it might not have been fulfilled; and by successive notices from time to time, the defendants might be constituted mere trustees of the policy for the plaintiff.

If the notice created a new obligation on the defendant, then, who was to pay the premiums during the month's notice, who was to be entitled to the benefit of the policy if it fell in during that interval, and what security was there to the defendant for the payment of the 25001. repurchase money, if that event had happened?

The policies were voluntarily kept up by the grantee their value had arisen from an excess of annual outlay made by him

1844.-Hawkins v. Woodgate.

out of his own moneys. If the policies had been in the Equitable, they might have exceeded the whole redemption [*570] money; and it never could have *been intended that the benefit of such policies, which the grantee was not bound to keep up, should belong to the grantee of the annuity who contributed nothing towards them.

THE MASTER OF THE ROLLS, (without hearing a reply,) said, I cannot think there is any doubt in this case.

A deed of arrangement seems to have been entered into between the parties, whereby an annuity was to be paid to Bradford. The plaintiff was to afford certain facilities for effecting and continuing the policies then already effected on his life. The premiums under ordinary circuinstances were to be paid by Bradford, but if any extra premiums became payable in consequence of Hawkins going out of the country, they were to be paid by him. There was to be no obligation on Bradford to keep up the policies, and then there was the clause for redemption which has been so frequently adverted to during the argument.

First, it must be admitted, that the defendants, who represent Bradford, were under no obligation whatever to make any payment for keeping up the policies; next, it must be admitted, that Hawkins had a prospective interest in the policies, because if they were in existence at the time of the repurchase, he was entitled to have an assignment of them for his benefit.

The plaintiff, being desirous of repurchasing, gave notice of his intention and of his election to take the policies. That notice did not alter the contract between the parties; it did not impose on the defendants the obligation of making any further payments for keeping up the policies, but it did this: it expressed the plaintiff's election to take the policies of insurance. The de[*571] fendants, *who, it is admitted, were not bound to make

any further payments for keeping up the policies, say, that notwithstanding the prospective interest which the plaintiff had, to have the policies assigned to him, they have a right to defeat that prospective interest, by surrendering the policies, and have also a right to receive a sum of 7447., in addition to the 25007.

1844. Hawkins v. Woodgate.

which Bradford had agreed to accept as the consideration for the repurchase.

I am at a loss to see, upon what reasonable construction of the contract between the parties, this could be done. It does not ap pear to me that the defendants had, at any time, a right to surrender the policies for a profit to themselves. They had a right to decline to keep them up, but that right is a very different thing from a right to defeat, altogether, the prospective right of the plaintiff by an act done for their own profit.

The rights of the parties were not altered by the notice, except that the notice formed part of the transaction of repurchase, for there could not be a repurchase without notice. It was after the transaction of repurchase had commenced, that the defendants claimed the right to surrender the policies, and put the value in their pocket. According to the defendants' construction, the plaintiff might have entered into arrangements for effecting the repurchase of the annuity, the instruments might have been all prepared, and at the very hour the parties had assembled to complete, they might have been told by the defendants, "we have just surrendered the policies for our own benefit."

Admitting the defendants to have been under no obligation to keep up the policies, I think they had not, before the notice, and I am clearly of opinion that they had not after the notice, any right by their own *voluntary act to surrender the [*572] policies for their own profit, and thus to defeat the inte

rest of the plaintiff, and make it impossible to carry the agreement into effect.

Thinking that there can be no reasonable doubt of the plaintiff's right to the policies, there must be a declaration of the plaintiff's right, and the defendants must pay the costs of the suit.

1844-Kerr v. Gillespie.

1844: June 12; August 3.

KERR v. GILLESPIE.

Letters written by a defendant, after the institution of the suit, to an unprofessional agent abroad," confidentially and in reference to the defence of the defendant to this suit." Held, not privileged.

THIS was a motion for the production of documents, admitted by the defendant's answer, to be in his possession. The defendant, by his answer stated, that the letters appearing in the first part of the second schedule to be written by Samuel Street and Thomas C. Street, the agents of the defendant, or either of them, to the defendant, and to be written by the defendant to Samuel Street and Thomas C. Street, or either of them; also the letters appearing to be written by the defendant to his solicitors, and by the solicitors to the defendant, were all of them so written, confidentially and in the way of business, and in reference to the defence of the defendant to this suit. And the defendant submitted that he was not bound to produce the

same.

Messrs. Street were the agents in Canada of the defendant, and were merchants and not professional men. The correspondence was all subsequent to the filing of the bill.

Mr. Turner and Mr. Rogers, in support of the motion, insisted on the plaintiff's right to have a production of [*573] *this correspondence, which, they argued, did not come within the rule of professional privilege, Messrs. Street being neither the professional advisers of the defendant, (a) nor, as in Bunbury v. Bunbury,(b) the medium of communication between the solicitor and his client.

Mr. Kindersley and Mr. Gordon, contra, argued that the defendant was not bound to produce the correspondence, first, because it had taken place subsequent to the filing of the bill; and, secondly, because it had "reference to the defence of this

(a) See Maden v. Veevers, ante, 489.

(b) 2 Beavan, 173.