In re Boden's Estate.

directs part of his estate to be employed in carrying on a trade, in which case the creditors of the trade have a right to resort to that part of the estate, because the trustees have a right to be indemnified out of it.

Much was said at the bar on the general question, as to what securities a surety is entitled to the benefit of; but this question may depend so much on the circumstances of each case, and on the nature of the securities, that I think it better to give no opinion upon it beyond this that I think the plaintiff is entitled to the benefit of this mortgage.

Reliance was also placed, on the part of the defendant, upon the allegations in the answer impeaching the conduct of Yonge; but this case of fraud on his part was, or might have been, made in the former suit; and if it could now be made at all, it would, I think, be the proper subject of a bill by Lady Reynell, and not of a defence to a suit by Yonge, founded on a distinct equity. Upon the whole, therefore, I am of opinion the injunction must be continued.

In the Matter of BODEN'S ESTATE, and of the Trustees Act,

1850.1

December 22, 1851.

Mortgagee in Fee-Legal Estate

Vesting Order.

On the petition of the executors of a mortgagee in fee, who had not been in possession or receipt of the rents and profits of the mortgaged premises, who had died intestate as to the legal estate, and whose heir could not be found, the court, under the Trustee Act, 1850the mortgage debt remaining unpaid-made an order vesting the mortgage estate in such executors, subject to the equity of redemption.

THE executors of William Boden, a mortgagee in fee, applied for an order to vest in themselves the legal estate in the mortgaged premises. The heir-at-law could not be found. The Lords Justices directed a reference to the Master, (see 1 De G., Mac., & G., 57, s. c. 9 Eng. Rep. 223,) who found that the mortgage-money remained due to the petitioners, the executors; that the testator was never in possession or receipt of the rents and profits of the premises comprised in the mortgage; that he died intestate as to the legal estate in the same; and that J. B., if living, was his heir-at-law; that J. B. could not be found, and it was uncertain whether he was living or dead; and that J. B.

19 Hare, 820. Before Vice-Chancellor TURNER.

Aaron v. Aaron.

had never entered into possession or receipt of the rents and profits of the mortgaged premises.

Webster, for the petition.

THE VICE-CHANCELLOR made the vesting order.

AARON V. Aaron.1

June 7, 1852.

Annuities-Order for Payment.

A testator having directed an annuity to be paid to the wife of his son for life, and in case of her death, to a second wife, if he should marry again, the court made an order providing for a contingent annuity for the life of a future wife of the son.

J. AARON, by a codicil to his will, dated in 1831, gave to Ann Aaron, the wife of his son, John Aaron, for and during the term of her natural life, one annuity or clear yearly rent-charge or sum of 701, free from all deductions whatsoever, to be paid to her his said daughter-in-law by equal half-yearly payments. And the testator declared, that, in case his said daughter-in-law, Ann Aaron, should die before her husband John Aaron, the annuity of 70l. a year should be continued and paid in like manner to any after-taken wife which his son might marry, provided she resided and lived with his said son up to the time of his death.

At the hearing of the cause for further directions,

THE VICE-CHANCELLOR made an order, providing for the payment of these annuities in the following form:

"And it appearing by the affidavit of P. J. Gordon, that the value of an annuity for 70l., for the life of the defendant, Ann Aaron, taken on the 8th day of October, 1831, the day of the death of John Aaron, the testator in &c., is the sum of 7301. And that the value of an annuity of 70l., to commence on the death of the said defendant, Ann Aaron, in the event of her husband the defendant, John Aaron, surviving her, and to continue during a female life of the age of fifteen years, at the commencement thereof, is the sum of 3947. [Directions that the estate of the testator be apportioned between the annuities and legacies.] And let the aggregate amount thereof be apportioned between the defendant, Ann Aaron, in respect of the said value of her said annuity of 70l., together with such interest as

19 Hare, 821. Before Vice-Chancellor TURNER.

Thompson v. Falk,

aforesaid of the said several legatees in respect of their several legacies, together with such interest on the same respectively as afore said; and the contingent annuity given by the said testator to any after-taken wife of the defendant, John Aaron,' estimated at the aforesaid valuation of 3941. . . . And let the amount coming to the said defendant, Ann Aaron, and in respect of the said contingent annuity to any after-taken wife of the defendant, John Aaron, and to the said legatees respectively upon such apportionment as aforesaid, after such deduction as aforesaid, be certified; and out of the residue of the money to arise from such sale after the payment of such costs as aforesaid, let what shall be certified to be coming to the said defendant, Ann Aaron, the wife, &c., be paid to her for her separate use; and let what shall be certified to be coming to the said legatees respectively, be paid to them respectively; and let what shall be certified to be coming in respect of the contingent annuity to any after-taken wife of the defendant, John Aaron, be carried over, with the privity, &c., to an account to be intituled "The Contingent Annuity Account," and let the same, when so carried over, be laid out, &c.

W. P. Wood, Follett, Bird, Speed, and Robson, for the several parties.

THOMPSON V. FALK.1

February 10, 1852.

Documents - Privileged Communications- Solicitor and Client.

Where it is sworn that documents are confidential communications, relating to the particular suit, or to another suit, which though not actually in the matter of the same litigation, involves or embraces the same issue, they are privileged, although they do not directly relate to the particular suit.

THIS was a motion for the production of documents admitted by the defendants, the Falks, to be in their possession. The plaintiff's were Thompson and others, proprietors of salt mines. The defendants were R. Falk and H. E. Falk, against whom the motion was made on their joint answer.

This bill was a cross bill. The original bill, filed in November, 1850, by the Falks against Thompson & Co., was for the specific performance of a contract dated 16th May, 1850, for the purchase of some salt mines which were in lease to the Falks by Thompson & Co. The consideration of the purchase being, in addition to the reservation of royalties, a contract by Thompson & Co. to deliver to

11 Drewry, 21. Before Vice-Chancellor KINDERSLEY.

son.

Thompson v. Falk.

the Falks rock salt to a certain value, and upon certain terms, the particulars of which it is not material to state at length. The agreement contained a clause for referring any disputed matters to arbitration. The Falks had had dealings with Messrs. Dempsey, Frost & Co., and had made mortgages of the salt mines to Dempsey & Co., with powers of sale. In April, 1849, Thompson & Co., the plaintiffs in the cross suit, contracted to buy up the right of Dempsey & Co. in the mines, for 1,750l.; and by arrangements with Dempsey & Co. they paid the money on the 1st March, 1850. On the 7th March, 1850, the Falks instituted a suit against the firm of Dempsey & Co. (to which Thompson & Co. were not parties,) to redeem the mortgage to Dempsey & Co.; and in that bill the plaintiffs alleged that Dempsey & Co. were in fact indebted to them in at least 10,0007. In the end, Thompson & Co. paid 2,500l. to Dempsey & Co. for possession and for certain other considerations. On the 17th May, 1850, possession was given to Thompson & Co. In the original suit of Falk v. Thompson, the Falks insisted that Thompson & Co. were liable to pay certain incumbrances on the mines to Dempsey & Co., and the present cross bill denied any such liability. By their answer to the cross bill, the Falks admitted that before the original bill, they and Dempsey & Co. had come to an arrangement that in respect to the claim of Dempsey & Co. for about 9,000l. against them, the Falks, they should pay 10d. in the pound, making about 4801., and have a full release; and this fact was not stated in the bill of Falk v. ThompThe answer to the cross bill admitted certain documents referred to in the second part of the schedule, to be in the defendants' possession, as to which privilege was claimed; and the grounds of the privilege were set forth fully in an affidavit filed after the answer, the reception of which, as it did not contradict the answer, but merely supplied deficiencies, was not objected to. This affidavit, made by R. Falk, one of the defendants, was as follows: "The following documents, mentioned in the schedule to the answer of myself and the above-named defendant, H. E. Falk, filed in the cause, that is to say, Rough notes, rough memoranda, and notices and sketches of instructions for solicitor and counsel in the different equity suits; bills, briefs for counsel in the original and supplemental suits in this court, of Falk and others v. Thompson and others, in complainant's bill mentioned, letters written and sent to the said S. Hughes, (who was defendant's solicitor,) relating to the matters in the complainant's bill mentioned, as well as to other matters of business, in which the said S. Hughes has acted as the solicitor of the said defendants; cases, and counsel's opinion thereon; and other papers of a confidential nature contained in the bundle referred to in the said schedule, and therein called a bundle of miscellaneous papers connected with the matters in the said complainant's bill mentioned, and also the fiftyeight letters from the said S. Hughes, particularly mentioned and specified in the part of said schedule, entitled 'second part; confidential communications between defendants and their legal advisers,' are all confidential communications which passed between me, defendant, and said defendant, H. E. Falk, or one of us, and our legal

.

Thompson v. Falk.

adviser acting as such legal adviser, in the course of which communications I, defendant, and said defendant, H. E. Falk, were seeking and obtaining advice from such legal adviser; and they were all written in relation to disputes which, at the time of writing thereof, were pending either between me and the said H. E. Falk of the one part, and said plaintiff of the other part, or between me and said H. E. Falk of the one part, and the defendants, L. Frost and T. Farnworth, of the other part; and some of them relate to litigation then actually pending between me and the said H. E. Falk, of the one part, and said plaintiff of the other part, and others of them to the arbitration in the plaintiff's bill mentioned; and others of them to litigation actually pending at the time between me and the said H. E. Falk of the one part, and said L. Frost and T. Farnworth of the other part." The documents referred to by this affidavit were exclusively letters from the defendant's solicitor to one or other of the defendants, commencing in May, 1850, and ending in October, 1851.

C. Hall, for the plaintiffs, now moved for production of the documents referred to in the second part of the schedule, and in the affidavit above set out.

Kinglake for the defendants. Even before the case of Herring v. Cleobury, 1 Phil. 91, the law was, that when the discovery is sought from the solicitor, his privilege is unlimited; Cromack v. Heathcote, 2 Brod. & Bing. 4; Ratcliffe v. Furseman, 2 Bro. P. C. 514, Tom. edit. If the law were now even as it was in 1843, still these documents would be protected under the principle of Lord Walsingham v. Goodricke, 3 Hare, 122. They would come within the fourth proposition laid down in that case; for the documents relating to the litigation between the Falks and Dempseys, also relate to the litigation between Thompson & Co. and the Falks; Thompson & Co. purchased from Dempsey & Co., who were the defendants in the suit of 1850. But secondly, if that were not so, the law as now settled by Pearse v. Pearse, 1 De G. & S. 12; Follett v. Jefferyes, 13 Jur. 972, 1 Sim. N. S. 3; and Reid v. Langlois, 1 Mac. & G. 627, is, that the privilege is unlimited, wherever the communications pass between solicitor and client, and is not to be confined to the case where the discovery is sought from the solicitor.

C. Hall in reply. In this case the litigation between Dempsey & Co. and the Falks, and the litigation between the Falks and Thompson & Co., were not in reference to the assertion of the same right. The litigation, to permit the rule of privilege to apply, must be with reference to the same dispute. Holmes v. Baddeley, 1 Phil. 476. Here the bill filed by the Falks against Thompson & Co. was for specific performance of the contract of April, 1850. The present cross bill is to set aside an award made under a clause in that agreement, in reference to the payment that ought to be made by Thompson & Co., and there is no necessary connection between the two litigations. In Follett v. Jefferyes, and in Reid v. Langlois, the privi