to discharge him from his purchase, was given: that it was not pretended that the possession of any one of the lots, was necessary to the enjoyment of the others; and, therefore, Gosnay was, at all events, bound to complete his purchase as to lots 63 and 64. Mr. Bethell, in reply: It is admitted that the vendors had no title to a part of the property which they contracted to sell. The 12th condition applies only to cases which admit of compensation; but not to cases in which the vendor *has not the power of giving that which was the inducement to the purchase; for that does not admit of compensation. The slip of land was the inducement to the purchase in this case it gave the land its quality, and constituted the whole value of the purchase. THE VICE-CHANCELLOR : It is said that this Court will not sanction a contract made by a person to sell to another that which, at the time, he knows he has not. I admit, if the case is that A., with reference to an estate which he knows to belong to B., contracts to sell it to C.; that it is a very wholesome rule that this Court ought not to aid such a contract. But general rules do certainly admit of variation; and in my opinion, it would be vastly too harsh an interference with the common mode of the management of the business of mankind, if such a rule were taken to be applicable to a case where a party, apparently in the ownership and primâ facie appearing to have a title, sells land; and it afterwards turns out that a very small portion of it is not his, (although he was in possession,) but is the property of another person. It would be a harsh application of the first principles of this Court, were I to say that, in such a case, the contract was so radically bad that, even if the vendor could honestly procure his title to be made good by purchasing the property for himself from the rightful owner, in order that he might hand it over to the purchaser, he should not be at liberty to do so. I cannot but think that it has happened, repeatedly, that contracts have been made for the sales of estates, in which small pieces have not been found to belong to the vendors, and they have leen at liberty to deal with persons, over whom they have no control, for the purpose of making good their title to the purchaser, with whom they have bona fide contracted. I am satisfied that CHAMBER LAIN r. LEE. [ *450 ] [ *451] it has repeatedly happened, although I cannot mention any particular case. And I never heard that it was a received rule with gentlemen practising conveyancing, that, merely because, as to a certain portion of the estate, the vendor had not a title at the time of the sale, he might not be at liberty to make good his title, and hand over the whole of the property contracted to be sold, to the purchaser. With respect to this particular case, it seems to me that it would be too much to say that there has been such a fraudulent dealing, such a jobbing in land, as that this Court is bound to say that the contract ought to be rescinded. I am very willing to admit that, notwithstanding the proceedings which were adopted, by this purchaser, in the year 1838, a case might be stated in which he might fairly make the objection which he now makes: but let us consider how it is on his own showing. I do not understand him to allege that there was actually any fraud: but what he represents, on his own affidavit, is, in substance, that, with respect to this little slip of land, the breadth of which I do not find anywhere stated, (the length is, but the breadth is not,) that, with respect to this little slip of land, it turned out, by admeasurement, that the quantity which the vendors undertook to sell could not be made good except by including this slip of land. And then it is alleged that, with respect to that part which bounds lot 62, it belongs to a gentleman of the name of Smyth; and, as to that part which bounds lots 63 and 64, it belongs to Mr. Hargrave. I will take it to be so. Well then, the vendors having *this objection notified to them, proceeded, immediately, to make a contract with the gentleman of the name of Smyth, for the purpose of acquiring the fee-simple in that part of the slip of land which was Smyth's, and it does not appear that they may not be able to make an effectual contract with Mr. Hargrave with respect to the other portion. Now I must look at the whole together, and I am inclined to think that it will be lawful for the vendors to make good this contract with Messrs. Smyth and Hargrave; and, by means of those contracts with them, enable themselves to complete the contract with Mr. Gosnay. But supposing it should fail, I have not got circumstances enough before me to determine, at once, that these slips of land do not fall within the 12th condition; because, it struck me that a good deal of the objection arising from the materiality of this slip of land, would depend on the very width of the slip; and, if it be of considerable extent, so as to afford a very easy means of annoyance to be practised on Mr. Gosnay by means of building and so on, it might lead to objections; but, before I am told how wide it is, (and I am certain, from the statement that is made, that it must be narrow) I cannot, at once, conclude, without any further statement, that it may not be comprehended within the 12th condition of sale. Then there is also the circumstance which regards the second condition of sale. I am not at liberty, at present, to say how far the vendors may not be at liberty to avail themselves of that condition and then, having nothing presented to me except that general objection which is made with reference to a case which I do not think is similar at all to the present case, I am asked to say, at once, that this is a case in which I ought to make a peremptory order, and discharge the purchaser. It appears to me that that is asking too much and I do not think that this application of the purchaser's ought to be favoured: and, that being so, I shall refuse the application with costs. The order directed a reference to the Master to inquire and state, to the Court, whether a good title could be made to the premises comprised in the three lots, and at what time it was first shown that a good title could be made, with liberty to state special circumstances: and Gosnay's application to be discharged from his purchase, was Refused, with costs. THE MAYOR AND CORPORATION OF DARTMOUTH v. HOLDSWORTH (1). (10 Simons, 476–478.) Production of documents-Confidential communications. The schedule, to a defendant's answer, of the documents in his power, contained as follows: "Letters from Messrs. K. and C., the defendant's solicitors, to Mr. F., one of the witnesses examined for the defendant at the trial of the action, bearing date, &c. :" and the defendant, in the body of his answer, stated that all the documents in the schedule related to and were connected with the matters in question in the suit, and were prepared and written, after the institution of it, for the purpose of the defendant's defence to the suit, and for the purpose of the action between the parties to which the suit related: Held, that the letters were not sufficiently characterised as being of a confidential nature, to protect them from being produced. THE defendant, being required, by the supplemental bill in this suit, to set forth a list of documents in his power relating to the (1) Lyell v. Kennedy (1883) 9 App. Cas. 81. CHAMBER LAIN v. LEE. [ *453] 1840. Jan. 31. SHADWELL, [ 476 ] CORPORA TION OF v. WORTH. MAYOR AND matters in question in the original and supplemental causes, annexed a schedule of such documents to his further answer to DARTMOUTH the supplemental bill: and, in the body of the answer, he said that HOLDS- all the papers enumerated in the schedule related to and were connected with the matters in question in the supplemental suit and in the original suit which was still subsisting between the parties, and were prepared and written, after the institution of the original suit, for the purpose of the defendant's defence in that and the supplemental suit, and for the purpose of an action between the parties to which such suits related, and which was mentioned or referred to in his former answer to the supplemental bill (1). [*477] [ *478 ] Amongst the documents comprised in the schedule were certain letters which the defendant's solicitor had written to a person who was examined as a witness at the trial of the action. On the hearing of a motion, on behalf of the plaintiffs, for the production of the documents mentioned in the schedule, one question was whether the defendant ought to be compelled to produce those letters. Mr. Jacob and Mr. Teed, in support of the motion, cited Storey v. Lord George Lennox (2). Mr. Knight Bruce and Mr. Wigram, for the defendant: The point did not arise in Storey v. Lord George Lennox; and, therefore, the LORD CHANCELLOR said that, *if he were to give any opinion upon it, it would be extra-judicial. It is sworn, in the answer, that all the letters in question were written by the defendant's solicitor, after the institution of the suit, and for the purpose of the defendant's defence to the suit, and for the purpose of the action: we submit, therefore, that the Court cannot order them to be produced. THE VICE-CHANCELLOR : The Court will not order letters written by a client to his solicitor, or by the country solicitor to his town-agent, relating to the subject (1) The supplemental bill prayed that the defendant might make a full disclosure and discovery of all the matters therein mentioned; that that bill might be considered as supplemental to the original bill, and that the plaintiffs might have the benefit thereof accordingly, and that the plaintiffs might have the relief prayed by the original bill; and it prayed also for an injunction to restrain the defendant from entering up judgment on the verdict which he had obtained in the action, and from issuing execution thereon against the plaintiff's estate. (2) 43 R. R. 248 (1 My. & Cr. 323). CORPORA- v. WORTH. of a suit, to be produced. But the letters in this case did not pass MAYOR AND between the client and his solicitor, or between the solicitor and his agent; but were written, by the defendant's solicitor, to a witness DARTMOUTH who was examined for the defendant at the trial of the action. I HOLDScannot infer that they contained confidential communications merely because they were written, by the solicitor, to A. B. The case would have been different, if either the answer or the schedule had stated that the letters contained confidential communications: but I do not think that what is stated respecting them in the body of the answer or in the schedule, sufficiently gives them the character of being of a confidential nature: the plaintiff, therefore, is entitled to have them produced. TWOPENY v. PEYTON (1). (10 Simons, 487-490; S. C. 9 L. J. (N. S.) Ch. 172; 4 Jur. 456.) A testatrix bequeathed a share of her residue in trust for her nephew for CATHERINE PEYTON made her will, dated the 23rd of October, 1822; and, after giving several specific and pecuniary legacies, she disposed of the residue of her personal estate in the following words: "Item, After all my just debts, funeral expenses and legacies are paid, I give, to my brother the Rev. Edward Peyton, for his natural life, the interest of all the property that shall then remain belonging to me in the public funds or Government securities; and, at his death, my will is that all the aforesaid property shall be equally divided between my niece Mrs. Catherine Hicks, daughter of my late brother Rear-Admiral Joseph Peyton, and my nephews William Grenfell Peyton and John Strutt Peyton, as also between my nieces. Catherine Smith Peyton, and Phillis Harriott Peyton: but the share of my property in the public funds that will devolve to my nephew William Grenfell Peyton, on the death of the Rev. Edward Peyton, (1) In re Coleman, Henry v. Strong (1888) 39 Ch. D. 443, 58 L. J. Ch. 226, 60 L. T. 127; In re Johnston, Mills v. Johnston [1894] 3 Ch. 204, 63 1840. Feb. 14. SHADWELL V.-C. [487] |