Thompson v. Falk.

lege is claimed in language showing that the documents related to the matters in dispute either after litigation commenced, or in contemplation of litigation. Here that conclusion cannot be drawn from the language used.

The following cases were also cited:- Flight v. Robinson, 8 Beav. 22; Woods v. Woods, 4 Hare, 83; Beadon v. King, 17 Sim. 34; Hawkins v. Gathercole, 1 Sim. N. S. 150; s. c. 2 Eng. Rep. 109.

THE VICE-CHANCELLOR. The question is, whether the litigation which was pending from the 7th March, 1850, between the Falks and Dempsey, Frost & Co., was or was not a litigation between the plaintiff and defendants in this suit. That suit between the Falks and the Dempseys was to redeem the mines mortgaged by the Falks to them, and the decree in that suit would have been to take an account of the mortgage debt; and the question is, how far the matters in the present suit are the same as in the suit of March, 1850. Now if I could, upon authority, determine the abstract point which has been argued, viz. whether the privilege of the client is as extensive as that of the solicitor, I should be glad to remove the anomaly by which it seems that where the solicitor is interrogated, and objects, because it would be calling on him to divulge matters which passed in the relation of solicitor and client, then there is privilege without more, whether such matters relate to an actual or contemplated litigation or not; and yet if the same questions are put to the client, then when his privilege is in question, he is to be told that he has a less privilege than he would have through his solicitor, if the latter were questioned. So great an anomaly, so inconsistent and absurd a rule, I should be glad to take on myself to say is not the rule of this court, and that there is no such distinction. When Reid v. Langlois was cited to me, it did appear at first sight that it established the broad proposition contended for, and I should certainly have followed that case if it did so; but on further examination, though that case does not establish the contrary, yet I think it was not the intention of Lord Cottenham to lay down the general proposition: that point he did not decide; nor do the cases of Pearse v. Pearse, and Follett v. Jefferyes, so lay it down, as to enable me to say I can follow them. that point is to be decided, it must be by a higher authority than mine.

If

But it appears to me that, under all the circumstances of this case, the privilege ought to apply. It is admitted that the documents in question are communications which passed between the 7th March, 1850, and the 30th of October, 1850. The first date is that of the bill filed by the Falks against Dempsey & Co., and the latter is the date of the award made under the arbitration contained in the agree ment of the 16th May, 1850, between Thompson & Co. and the Falks. The affidavit in which the ground of the privilege is stated, after enumerating the documents, (which are only correspondence, that is, the documents contained in the second part of the schedule,) states as follows:-"That they are all confidential communications," &c. (The Vice-Chancellor read the passage in the affidavit set out

Walsh v. Walsh.

in p. 246.) The affidavit does not specify which related to the litigation between the Falks and Dempsey & Co., and which related to the litigation between the Falks and Thompson & Co. But they all relate to one or other of those litigations. Now the material question is, whether the litigation between Dempsey & Co. and the Falks, in the suit commenced on the 7th March, 1850, relates to the same matters and refers to the assertion of the same right, with reference to the position of the parties, as the litigation in the present suit. The present suit is to carry into effect the agreement between Thompson & Co. and the Falks of May, 1850, and to set aside the award made in pursuance of the arbitration, and to seek other relief by Thompson & Co. as against the Falks; and Thompson & Co. would have to establish in this suit what was the position of the Falks in their character of mortgagors. That is also the subject of the litigation in the suit of March, 1850. At that time the present plaintiffs were purchasers of the estate vested in Dempsey & Co. as mortgagees. The litigations are not, it is true, strictly the same; but I think the circumstances of the case come within the principle of those in which the court has held, that, confidential communications made in relation to matters in contemplation of litigation, in which the issue is the same, ought to be protected. The consequence is, that the documents comprised in the second part of the schedule must be protected from production.

An infant's legacy of small amount paid to the father under special circumstances.

THIS was a petition to have a legacy of 100l. and arrears of interest, amounting to 331., belonging to a female infant of the age of ten years, paid to the father.

The petition stated that the father was a small farmer in Ireland, without capital or means of supporting himself and his infant daughter. It stated further, that the petitioner had a relation settled and in good circumstances in Australia, and that the father desired to emigrate to that country with his daughter, and it prayed payment to him of the 1337., to enable him to do so. The affidavit in support of the petition verified these statements, and stated further the expenses

11 Drewry, 64. Before Vice-Chancellor KINDERSLEY.

Beale v. Tennent.

that would be incurred, showing that the 1331. would be scarcely more than sufficient to pay the expenses of outfit and emigration.

Malins in support of the petition.

THE VICE-CHANCELLOR made an order, subject to the solicitors of the petitioner communicating with him personally, for the purpose of undertaking to see that the fund should be duly applied in fitting out and transferring the father and daughter to Australia.

BEALE v. TENNENT; in the Matter of CUMMINS, and of the Trustee Act, 1850.

March 19, 1852.

Statutes, Construction of — Trustee, Appointment of, to convey.

A devise to trustees to the use of A for life, with remainders over. The trustees disclaimed. Under a mistaken idea that the trustees had the legal estate, an order of the court was obtained to appoint new trustees, and the heir conveyed to them. A then conveyed his life estate to a mortgagee; and afterwards took a reconveyance from him :

Held, that A was in by the devise, within the 1 Will. 4, c. 47, and an order was made for him to convey to a purchaser.

THIS was a petition by creditors in a creditor's suit, against the estate of the trustees in the cause, seeking to obtain either a vesting order, or a direction to a tenant for life under the will of the testator, to convey lands to a purchaser under the decree in the suit; the remainders over after the death of the tenant for life being contingent. The question was, whether, under the circumstances which had taken place, and which will be found stated in the judgment, the court had any jurisdiction to make any order under the Trustee Act, 1850, and if not, whether it could make an order under the 1 Will. 4, c. 47. The tenant for life under the will was seised of the legal as well as the beneficial estate; he mortgaged, and then, on paying off the mortgage, took a reconveyance.

Shapter, for the petition.

J. H. Palmer and Roberts for purchasers.

Rasch, for parties claiming under the will of the testator.

The 11th and 12th sections of 1 Will. 4, c. 47, and Henning v. Archer, 7 Beav. 515; 8 Beav. 294, and Cheese v. Cheese, 15 Law J., Rep. (N. s.) 28, were referred to.

11 Drewry, 65. Before Vice-Chancellor KINDERSLEY.

Beale v. Tennent.

THE VICE-CHANCELLOR. The first question to be considered is the effect of the dealings upon which the heir conveyed the estate to trustees. By the will, the devise was to trustees to the use of Thomas Beale for life, which remainders over; the devise did not operate to give a legal estate to the devisees to uses, but vested the legal estate in T. Beale for his life. The devisees to uses disclaimed; but this did not matter. As the devisees had no estate in them, no effect could be produced by their disclaimer, and the legal estate remained in T. Beale for his life; but under some misapprehension, matters seem to have been dealt with as if the legal estate descended to the heir, and as if it was necessary to appoint new trustees, and accordingly, by an order of the court, the heir-at-law conveyed to two new trustees as devisees to uses. That conveyance had no effect; it did neither harm nor good; and if things had remained so, no doubt T. Beale was in, not only under, but also by the devise; and that not mediately, but directly. Beale, however, being the tenant for life, not only legally, but beneficially, conveyed his life estate to a mortgagee, and then the question is, what was the condition of the mortgagee; was he in by the devise? He was not so directly, but it is clear that he was in under the devise, and the question is, whether the language of the 1 Will. 4, c. 47, extends to that. I think that in this case, having regard to the two cases that have been cited, the mortgagee was in by the devise, although other acts beyond the devise had been done to give him his estate. If the mortgagee was in by the devise, then when the mortgagee reconveyed to Beale, Beale was at least, as much as the mortgagee, in by the devise, although a second act was done by which the estate got back. I should have come to this conclusion without the authorities; but the cases cited leave the matter almost beyond doubt; and though the circumstances of those cases are different from those of the present case, I think I am following the principle of the decisions. Under the circumstances of that case, I am of opinion that I may make an order under the 1 Will. 4, c. 47, for T. Beale the tenant for life, to convey.

1 The words of the 12th section of the 1 Will. 4, c. 47, are, " Where any lands, tenements, or hereditaments have been or shall be devised in settlement by any person or persons whose estate, under this act or by law, or by his or their will or wills, shall be liable to the payment of any of his or their debts, and by such devise shall be vested in any person or persons for life or other limited interest," &c.

M'Leod v. Lyttleton.

M'LEOD V. LYTTLETON. 1

March 27, 1852.

Practice Amending Bill- General Orders - Construction of.

The 67th and 68 orders of 1845, apply to an application to the court, as well as to an application to the Master.

A motion for leave to amend, by striking out the name of a plaintiff and making him a defendant, must be supported by the affidavits required by the 67th and 68th orders

of 1845.

THE bill was filed by John M'Leod and Lucy M'Leod, seeking to fix one of the defendants with a breach of trust, and a motion was made by the plaintiffs for leave to amend, by striking out the name of the plaintiff, J. M'Leod as plaintiff, and making him a defendant, and otherwise as the plaintiff's should be advised. The amendment by converting the plaintiff J. M'Leod into a defendant, was rendered necessary by the circumstance, that certain acts had been done by the plaintiff J. M'Leod, which precluded him from suing, so that if the record remained unaltered, there would be misjoinder. The nature and necessity of the general amendments desired by the plaintiffs are not material for the purpose of the decision in this case, which turned upon the construction of the 67th and 68th general orders of 1845, the principal point argued being, whether a special application for leave to amend after the proper time for amending has passed, or when the amendment is one for which it is not within the jurisdiction of the Master to give leave, can be made to the court, without the affidavits required by the orders of 1845, referred to. The 67th order declares that " A special order for leave to amend a bill is not to be granted without affidavits to the effect, first, that the draft of the proposed amendments has been settled, approved, and signed by counsel; and, secondly, that such amendement is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff." The 68th order declares that "after the plaintiff has filed or undertaken to file a replication, or after the expiration of four weeks from the time when the answer or last answer is deemed sufficient, a special order for leave to amend a bill is not to be granted, without further affidavits showing that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into such bill." In this case the answer was put in in the month of August. The plaintiff, J. M'Leod, was resident in Demarara, and pending the proceedings, the plaintiffs' original solicitor retired, and a new solicitor was appointed. The four weeks from the time when the answer

11 Drewry, 36. Before Vice-Chancellor KINDERSLEY.