shop. Thus, the same expression may vary in meaning according to the circumstances of the testator.

To show how mistaken the idea is, that extrinsic evidence is never to be received in cases of patent ambiguity, we may refer to a case in the House of Lords, *unquestionably of that description, where the evidence was admitted. I mean the case of Doe d. Jersey v. Smith. Mr. Justice BAYLEY thus states the principle on which it was introduced. "The evidence here is not to produce a construction against the direct and natural meaning of the words; not to controul a provision which was distinct and accurately described; but because there is an ambiguity upon the face of the instrument; because an indefinite expression is used capable of being satisfied in more ways than one; and I look to the state of the property at the time, to the estate and interest the settlor had, and the situation in which she stood with regard to the property she was settling, to see whether that estate, or interest, or situation, would assist us in judging what was her meaning by that indefinite expression" (1).

If it were necessary, I could refer to many other instances of resorting to extrinsic matter in cases of patent ambiguity; but this decision I ground upon the case of Fonnereau v. Poyntz.

His Honour doth declare, that the several legacies to which the plaintiffs are entitled under the testator's will, are not to be considered as legacies of Long Annuities, but only pecuniary legacies to the amount of so much gross sums respectively, and his Honour doth also declare, that Patience Baker, Ann Bloomfield, and William Colpoys, are the only legatees entitled to have their legacies considered as legacies of Long Annuity stock.-Reg. Lib. A. 1821, fo. 972.

BRASSINGTON v. BRASSINGTON (2).

(1 Sim. & St. 455—458.)

Solicitor's lien-Witness.

A solicitor, who refused to allow a deed in his possession to be proved on behalf of the plaintiff, because he had a lien on it for costs due from the defendant, was ordered to produce the deed at his own expense, and to pay all the costs consequent on his refusal.

THE bill in this cause was filed by Martha Brassington against her husband, William Brassington, to enforce a settlement made by (1) 2 Brod. & B. 553. 2 Ch. 1, 13, 14, 16, 22, 67 L. J. Ch. 284, C. A.

(2) Cited by RIGBY, L. J., VAUGHAN WILLIAMS, L. J., In re Hawkes [1898]

him in her favour, in contemplation of their marriage. The cause being at issue, a commission had issued for the examination of witnesses.

The deed of settlement was in the possession of one Williams, who was solicitor to the executrix of William Harding, the solicitor who had prepared the settlement. Williams was served with a subpoena duces tecum, to appear as a witness on behalf of the plaintiff, and produce the deed. He appeared before the Commissioners accordingly, and acknowledged that he had the deed in his custody, and exhibited it to the Commissioners, but refused to allow it to be proved and given *in evidence; alleging, as a reason for his refusal, that he held the deed only as the solicitor of Harding's executrix, who claimed a lien in respect of costs due by the defendant Brassington.

The Court was now moved, on behalf of the plaintiff, that Williams might be ordered, at his own expense, to produce the deed at the examiner's office, and to pay all the costs occasioned by his refusal.

The certificate of the Commissioners before whom Williams had appeared, was read in support of the motion. It stated the refusal of Williams, and the reason which he alleged for it; also, that the acting executor of Harding had attended to prove the execution of the deed, but was prevented by the refusal of Williams to allow it to be given in evidence.

Mr. Rose, for the motion, insisted that the subpoena duces tecum was compulsory as to the production of the deed, for the purpose of its being given in evidence. It has been expressly laid down by Lord ELDON, that a solicitor cannot, by virtue of his lien, prevent the King's subject from obtaining justice: Commerell v. Poynton (1), Ross v. Laughton (2).

Mr. Pemberton, on behalf of Williams, opposed the motion: This is the case of the representative of a deceased solicitor, who insists on his right to retain this deed against all the world till his demand in respect of costs is satisfied. The utmost length to which the Court has gone in cases where such a lien has been claimed is, that where deeds have been deposited in the hands of a solicitor in the progress of a suit, the Court, notwithstanding the lien, will compel the solicitor to produce the deeds for the purposes of that (1) 18 R. R. 1 (1 Swanst. 1). (2) 12 R. R. 232 (1 V. & B. 349).

BRASSING

TON

v.

BRASSING-
TON.

[ *456 ]

[ *457 ]

suit. But the present is a different case. The lien of the solicitor is in respect of the costs of preparing the deed under which the plaintiff claims; so that he may be considered as having a claim against both the husband and wife. The purpose for which it is sought to compel the production of this deed would entirely destroy the lien.

THE VICE-CHANCELLOR :

It would be very extraordinary if a deed by which property is conveyed were to be of no effect, because the party who executed the deed did not choose to pay his solicitor's bill. It may be reasonable that the husband, if calling for the deed for his own purposes, should not have access to it until the solicitor's claim was satisfied; but to refuse to produce it as a witness for the other party cannot be justified. I shall order the deed to be produced, and the witness to pay all the costs occasioned by his refusal.

"This Court doth order, that the said John E. Williams do attend and produce, at his own expense, before J. N. Dancer, one of the examiners of this Court, at the examiner's office, when he shall appoint, the marriage settlement of William Brassington and Martha his wife, dated the 7th of December, 1807. And it is *ordered, that the subscribing witness, or one of the subscribing witnesses, to the said deed do attend before the said examiner at the time and place aforesaid, at the expense of the said J. E. Williams; and that the said J. E. Williams do pay the costs of preparing and filing interrogatories consequent on this application, and also the costs of this application, and incident thereto, to be taxed by Mr. Alexander, one of the Masters of this Court."-Reg. Lib. A. 1822, fol. 1331.

THE ATTORNEY-GENERAL v. PEMBROKE HALL.

(2 Sim. & St. 441-448; S. C. 4 L. J. (O. S.) Ch. 58; on appeal, 1 Russ. & My. 751.)

A Corporation, which was bound to pay out of the revenues of charity lands a certain annual sum to a College, in the 4th of James the First conveyed to the College lands then of that annual value, in satisfaction of the annual sum.

The lands so conveyed, by accidental circumstances, became of much

greater value in proportion than the lands which were reserved by the Corporation for the other purposes of the charity; yet the Court will not, at this day, undo an arrangement which was fair at the time, and had the approbation of the executor of the founder.

THIS was an information to set aside a lease, granted in 1607, by the Wardens of St. Bees School to the Master and Fellows of Pembroke Hall, Cambridge.

Edmund Grindall, Archbishop of Canterbury, in the year 1583, under the authority of letters patent from Queen Elizabeth, appointed that lands of the annual value of 50l. should be purchased and given to the Warden and Governor of St. Bees School, and their successors, for ever, for the maintenance of the said school, and for the relief of poor scholars going from thence to the Universities of Oxford and Cambridge: and he directed that 201. should be applied for the finding of one Fellow and two scholars in Pembroke Hall, in Cambridge, and 20l. to the schoolmaster of St. Bees, and 31. 6s. 8d. to the usher, and 20s. to the receiver, and 138. 4d. for a yearly dinner for the Governors; and that the residue, together with penalties, after reparations and other necessary charges, should form a stock; and, when the stock should amount to 801., should be employed in purchasing other lands, of the yearly revenue of five marks, for the relief of another poor scholar in Pembroke Hall; and, when a further like accumulation of stock should be made, that it should be applied in the purchase of other lands for the relief of a poor scholar in Queen's College, Oxford; and so, from time to time, as the stock should increase and other lands should be purchased, the revenues should be applied for the further relief of poor scholars, successively, in Cambridge and Oxford.

On the 16th of June, 1585, certain lands, called Palmer's Fields, which then produced a clear yearly rent of 241., were purchased and conveyed to the Warden and Governors of St. Bees School, to form part of those which were to produce the 50l. a year. On the 31st of May, 1606, in the 4th year of King James the First, these fields were leased, by the Wardens of St. Bees School, to Reynold Gleydell, the elder, and Reynold Gleydell, the younger, for 99 years, at the same rent of 241. a year. Other lands, to the yearly value of 30l., were afterwards purchased and conveyed to the Warden and Governors of the School, so as to make up the yearly sum of 50l. In 1594, *there appeared to be a surplus of the revenues of the charity lands in the hands of the receiver, amounting to 401.; and that sum, together with 261. supplied by the executors of the

A.-G.

v.

PEMBROKE

HALL.

[ *442 ]

[ *443 ]

A.-G.

v.

PEMBROKE

HALL.

[*444]

Archbishop, was laid out in the purchase of other lands, of the yearly value of 4l., for the maintenance of another scholar in Pembroke Hall.

By an indenture, dated the 1st of June, 1607, and made between the Warden and Governors of St. Bees School, of the one part, and the Master and Fellows of Pembroke Hall, Cambridge, of the other part (and to which it appeared, by the recitals, that John Scott, the surviving executor of the Archbishop, was also a party), reciting that the Archbishop, a little before his death, when he made his statutes for the government and sustentation of one Fellow and two scholars of the said College, did think that the Master and Fellows of the said College had not sufficient licence in mortmain to take to them and their successors the 201. a year which he limited to them, and, for that reason, did appoint the Warden and Governors of St. Bees School to pay to them such yearly sum; and that, since the death of the Archbishop, there had been, by consent as well of the said Master and Fellows as of the executors of the Archbishop, a licence in mortmain procured, enabling the said Master and Fellows to purchase and receive, to them and their successors for ever, lands, tenements and hereditaments not exceeding the yearly value of 801.; it was witnessed that, for the better assurance of the 201. a year appointed by the Archbishop, and of the additional 4l. a year produced by the lands since purchased, the Warden and Governors of St. Bees did demise, unto the Master and Fellows of Pembroke Hall, the lands called Palmer's Fields (so held on lease by the Gleydells at 241. a year), for a term of 1,000 years, thence next ensuing, at the yearly rent of a red rose, at the Feast of the Nativity of St. John, if lawfully demanded: and the Warden and Governors. of the School covenanted that the 241. a year, reserved by the said lease to the Gleydells, should, during their term, be paid to the Master and Fellows of Pembroke Hall; and, after the determination. of Gleydell's lease, that they would, during the remainder of the term of 1,000 years, pay yearly the sum of 241. to the Master and Fellows of Pembroke Hall, for the maintenance of the Fellow and three scholars in that College. The indenture also stated that John Scott, the surviving executor of the Archbishop, in order to secure, to the Fellow and three scholars of the Archbishop's foundation, the same benefit, privileges and commodities as any other Fellows and scholars enjoyed in that College, had agreed to pay and bestow, out of the estate of the Archbishop, a sum of 200l. to the Master and Fellows of Pembroke Hall; and the Master and Fellows on their