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V.

under the will of Samuel Hill : she was therefore entitled 1803. to the possession of all the title deeds. According to the

BOWLES usual practice the(a) title deeds remain with the tenant for

STEWART life, and nothing could be more mischievous than to allow that possession by tenant for life, to be converted into a frau- Tenant for

life entitled to dulent suppression of the real title to the prejudice of those the possession in remainder. Besides she was personal representative of of the title

. the General with her son and on his death became the only representative. She took on herself to act with respect to this property; she renewed the leases, and acted not as if she meant to injure any person entitled after her; it must be presumed that all these instruments were in her custody at the time of her death ; it is clear that one instrument (S. Hill's will) was in the hands of her agents. The agents employed for her became the agents of Richard Bowles, and they considered all these deeds as to be held by them for him: this was a mistake; if Richard Bowles was the personal representative of Mrs. Bowles, it was their duty to give them to him as such, but if not, they had no right to give them to him to the prejudice of the persons who had an interest in them, nor was the circumstance of their being his agents a ground for concealing them.

But besides ; the leases having been obtained by General Bowles, and Mrs. Bowles being entitled as tenant for life under his will, she renewed these leases ; she stood then exactly in the character which Gen. Bowles did : if he was a trustee, she became a trustee also, for whom? not for Richard Bowles, but for Wm. Phineas, under the will of Gen. Bowles or under that of her father, after her own death. Then on her death the legal estate vested in Richard Bowles, and he levied a fine. But he took as her heir, and as claiming the legal interest under her, and therefore he took it as

(a) Vid. 1 Ves. jun. 76 ; 8 Ves. jun. 320.

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she did, only as trustee.

If he had had the trust title in himself, the two titles would have united in his person ; these titles however did not unite ; but Richard Bowles had the legal title as trustee, and had possession of every document that could shew the equitable title to be in another. Then Richard Bowles being in this character, a trustee for the plaintiff, the plaintiff claiming under the will of his father makes an application to him, mistaken, unquestionably with respect to the particular property, for he was then ignorant of his real title, all the instruments which could shew it being out of his possession. I do not impute to Richard Bowles that he actually knew the title was in his nephew; but he acted under the direction and by the advice of others who did: he may have thought that the title was in himself; but that cannot alter the title nor his liability to answer the cestui que trust, when called on. Upon this application, he was referred to the agent of Richard Bowles; and matters stood in this way from the death of Mrs. Bowles, in 1777; and it is very immaterial whether the plaintiff was of age or not. The application made by Mr. Blakely was confined to Stoney-batter, and the answer was, the statement of a case, and an opinion given on it from whence it appeared that he had no title. Thus it remained till 1786, and then further applications being made in consequence of an impression on the minds of the friends of this young man, Mr. Bowles referred to Mr. Carroll, and upon one of these applications, Sharply having observed that the plaintiff was kept out of his property and was in distress, Carroll replied that he did not think it was plaintiff's property ; that Bowles had levied a fine and suffered a recovery, and that a court of equity would not meddle with it; “ you say your client is “poor ; he need not go to law with Mr. Bowles, who is " worth 200,0001. but try your hand, and time will as shew." This is the answer which the agent of the trus

V.

tee gives to the cestui que trust, instead of offering to produce 1803. the instruments from which he might see whether he was

BOWLES his trustee or not: instead of doing so, Carroll relies on

STEWART. the fine, which therefore it is evident had been levied for the special purpose of barring this claim, there being some apprehension of it: is a trustee thus to set his cestui que trust at defiance ? this cannot be considered as language fit to be held by a trustee ; it was hard language to hold to this young man, even supposing there was no trust, but that it had been a legal estate of inheritance, and that he had got into his possession the title deeds which ought in conscience to be produced to all the family. The suppression of the deeds Semble, sup. would in my mind have formed a strong ground for the in- deeds a strong tervention of a court of equity to prevent the fine from ope- ground for the rating, the person entitled having been kept in ignorance of a court of equi. his title by that suppression : but there can be no doubt that ty to prevent

the operation of in the case of a trustee, it affords a ground for relief not. a fine, even in withstanding any length of time. The plaintiff is thus held legal estate. out by retaining the deeds and by opposing the wealth of Clear in the

case of a trust Mr. Bowles to his poverty, and at length, in 1789, a bill estate. is filed, in the grossest ignorance of his case, there having been no disclosure of his title. Now Richard Bowles ought not to have kept the plaintiff in ignorance of the facts of his case; he was bound in conscience to disclose them; however he put in his answer, and he (or rather his agents) must have been aware of the suppression of fact in that answer; he stateś nothing of the settlement of 1724, but relies on the will of S. Hill, as the instrument under which he claims; and he refers to the will as being in the ecclesiastical court, when at that moment it was in his agent's possession. In 1791, the cause is nearly brought to an hear ing; Mr. Bowles's solicitor is called on to prove a letter; he refuses to do so, and a motion is necessary to compel him.

VOL. I.

Gg

1808. It is no breach of confidence in a solicitor to prove his client's BOWLES

hand-writing; he was bound to do so; the court held him

so bound and granted an attachment against him, and he STEWART

knew he was bound, yet made it a matter of conscience to (a) No breach of contidence in put the plaintiff to this difficulty. a solicitor to prove client's hand-writing ; The plaintiff then being in great distress makes a prode so if called posal which leads to a correspondence, and that ends in a reupon.

lease. Now I think that release cannot be insisted on; it is made by the plaintiff in entire ignorance of facts which the defendant had in his power to make known to him; it is there. fore unconscionable to hold him to it: that alone would be a suflicient ground for avoiding it. If a trustee keeps his cestui que trust in ignorance of the facts which make his title, and the cestui que trust files his bill in ignorance, and then from not knowing how to put his questions, he gets no answer as to those facts, and in such a situation releases, I think such a release cannot stand : if the release had been executed after a full and fair disclosure, it might be dif, ferent. Pusey v. De Bouverie(6) is not near so strong a case as this; the only thing the sister was ignorant of there, was the amount of her father's fortune, which the court thought a sufficient ground for setting aside the release. The truth is, when transactions of this kind are between parties standing in such relations to each other, they ought to be con. ducted with all imaginable fairness : that relationship made it a matter of conscience in R. Bowles to disclose to this young man what his title was before he made the release.

There is another ground: It is manifest from the correspondence that this release was wrung from the distress of the plaintiff, and under an idea that the consideration money was the bounty of Mr. Bowles ; it was so represented by Mr. Bowles's solicitor, who was then in possession of the

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settlement of 1724, on which he had taken an opinion, from whence it

appears

that he himself considered it a matter to be discussed to whom the property belonged. Under these circumstances he extends the release not only to the matters in question in this cause, but to all claims and demands whatever ; treating this as nothing, but representing himself as having with difficulty prevailed on Mr. Bowles to give so large a sum as 450l, well knowing at the time from Mr. Smith's opinion, that the plaintiff was entitled to a larger sum, and therefore throwing into the release those general words which in the view and contemplation of the plaintiff were nothing. This would be sufficient to avoid the release, as not being obtained according to good faith ; for the plaintiff entered into it under the idea that the solicitor was his friend, expresses his obligations to him, and conceives it to be a mere bounty as it had been represented to him. I think therefore this release must be set aside as unfairly obtained under a suppression of plaintiff's rights, and also as extending beyond what was in the view of the parties.

As to Mr. Bowles's solicitor, he was acting for his cli- A solicitor as.

sisting his client; but his duty as a solicitor did not bind him to assist ent in obtaining

a fraudulent rehis client in an act of injustice: I am sorry a man who has

lease, properly had so ample a testimonial to his character should have been made a party: led into such a mistake, but his zeal for his client has carried and liable to

costs, him too far; he has properly been made a party. He principal be not

solvent. was an acting party in the transaction and properly brought to a hearing, and ought to be chargeable with the costs so far as they relate to the release, in case they cannot be re. covered from Richard Bowles.

As to the general title of the plaintiff therefore, I think this release cannot operate to affect it, but ought to be set

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