Reports of CASES DECIDED in the HIGH COURT OF CHANCERY in 1850 and 1851 by the Right Honorable LORD CRANWORTH, ViceChancellor. By NICHOLAS SIMONS, SIMONS, Esqr., M.A. and Barrister-at-Law. Being Vol. I. of the New Series of his Reports. 1851.

[3] FOLLETT v. JEFFERYES. Nov. 6, Dec. 2, 1850.

[S. C. 20 L. J. Ch.

65; 15 Jur. 118. Approved, Reg v. Cox and Railton, 1884, 14 Q. B. D. 154. See In re Postlethwaite, 1887, 35 Ch. D. 725; Williams v. Quebrada Railway, &c., Company [1895], 2 Ch. 757.]

Answer. Insufficiency. Privileged Communications. Fraud.

A bill impeached a deed on the ground of fraud, and interrogated the Defendant as to the contents of certain letters which had passed between her and her solicitor, and which, it stated, shewed that the deed was prepared and executed for the alleged fraudulent purpose. The Defendant in her answer declined to set forth the contents of the letters, as being privileged communications. The Court held that the transaction, according to the account of it given in the bill and answer was not a fraud; and, therefore, that the Defendant was not bound to set forth the contents of the letters.

Communications between a solicitor and his client relative to a fraud contrived between them, are not exceptions to the general rule; they do not fall within the rule itself; for the rule applies, not to all that passes between a solicitor and his client, but only to what passes between them in professional confidence; and no Court can permit it to be said that the contriving of a fraud forms part of the professional occupation of an attorney or solicitor.

Thomas Cape, by the second codicil to his will, dated the 16th of June 1847, directed his executors and trustees to appropriate and set apart a sufficient fund to pay an annuity of £200 to the Defendant, John Taylor, and, until he should assign, charge or otherwise dispose of the annuity, or any part of it, by way of anticipation, or attempt or agree so to do, or do some act whereby the annuity, if payable to himself, would become vested in some other person or persons to pay it to him for his own proper use and benefit; and, if he should assign, charge or otherwise dispose of it or any part of it, by way of anticipation, or attempt or [4] agree so to do, or should do some act, whereby the annuity, if payable to himself, would become vested in some other person or persons, then the testator directed that his executors and trustees should, thenceforth, during the remainder of John Taylor's life, from time to time, pay, apply and dispose of the annuity in such manner for the maintenance and support or otherwise for the benefit of all, or any one or more, exclusively of the other or others of them, the said J. Taylor and his then or any future wife and his issue, or the person or persons for the time being entitled to the testator's residuary

personal estate under his will and that codicil, as the executors and trustees should, in their absolute discretion, think proper.

The testator died on the 10th of January 1848.

On the 14th of April following a writ of sequestration was issued against Taylor for having disobeyed an order of the Court, made in a cause of Cowper v. Taylor, by which he was directed to pay £18,906 into Court. The Plaintiffs were the commissioners named in that writ.

The bill, after stating as above, alleged that in April 1848 the Plaintiffs duly sequestered all Taylor's personal estate, monies, effects, chattels and credits, and, in particular, the annuity bequeathed to him by the testator; but that they were unable to obtain the actual possession or payment thereof, by reason that all the testator's assets were in the hands of the Defendant Jefferyes, who was the only acting executor, and a residuary legatee, of the will and codicils; that, in April and May 1848, but before the 17th of the last-mentioned month, the Plaintiffs served the Defendants Taylor and Henrietta [5] Savill, his wife, and Messrs. Holme & Co., their solicitors, and also the Defendants, the executors and trustees and residuary legatees of the will and codicils, with notice that the writ had issued, and that they had sequestered Taylor's personal estates, monies, chattels and credits, including the annuity; and on the 6th of June 1848 they made their formal return to the writ; and that, as such sequestrators as aforesaid, they had applied to Jefferyes, as the acting executor of the will and codicils, to pay to them the monies which had become due in respect of the annuity, and to set apart a sufficient portion of the testator's personal estate to answer the future payments of it, but he had refused so to do. The bill charged that, some time after the 17th of May 1848, Taylor and his wife, and Jefferyes, who acted with a view to his own interest under the will and codicils, and also with a view to the interests of the other residuary legatees, took counsel together and with their respective solicitors, in order to devise some means of defeating the title of the Plaintiffs to the annuity; and they at length determined that Taylor should execute a deed for assigning and should affect to assign the annuity to his wife, in order to make it appear that the annuity had been forfeited in pursuance of the proviso in that behalf contained in the codicil, and that the benefit of it belonged to the persons to whom it was bequeathed in the event of its being forfeited; and it was also arranged that the power of appointment given, in the event of such forfeiture as aforesaid, to the trustees and executors, should be executed by Jefferyes in manner understood between him and the other residuary legatees and Taylor and his wife; that, in pursuance of the said determination and arrangement, an instrument purporting to be an indenture was prepared and engrossed by Messrs. Holme & Co., the [6] solicitors of Taylor and his wife, and was signed, sealed and delivered by Taylor, and also by the Defendant, Thomas Bristowe Young (who was a partner in the firm of Holme & Co.); that the pretended indenture being the instrument so signed, sealed and delivered as aforesaid, purported to be an indenture, dated the 24th of May 1848, and made between Taylor of the one part, and Young of the other part; and thereby, after reciting the will and second codicil and death of the testator, and that Taylor, in consideration of the natural love and affection which he had for his wife, and of the benefits he had received from her, and in order to make a better provision for her, had determined and agreed to assign the annuity to Young in trust for the separate use of his wife; Taylor assigned the annuity to Young, in trust for the separate use of his wife, without power of anticipation. The bill further charged that no consideration whatever was given for the said pretended assignment, and that the same was prepared, signed, sealed and delivered for the mere purpose of defrauding the Plaintiffs as such sequestrators as aforesaid, by making it appear that the annuity had become forfeited in pursuance of the proviso contained in the second codicil; that the said instrument was not prepared, signed or sealed with a view of really vesting the annuity in Young; and that Young, at the time of executing the same, had been advised and well knew that the annuity would not actually pass to him as such trustee as aforesaid: that, under the circumstances aforesaid, the preparation, signing, sealing and delivery of the pretended indenture were a mere fraud, and the same was wholly void as against the Plaintiffs. And the bill prayed for a declaration to that effect, and for relief consequential thereon.

Mrs. Taylor, in her answer, said that her husband, [7] upon his becoming aware of the bequest of the annuity to him, was desirous that it should be secured for her benefit; and, accordingly, she and her husband consulted together and with Young as to the mode in which such desire could be carried into effect; that she believed that it was the desire and intention of the testator that no portion of the annuity should become payable to any person other than her husband or the other persons mentioned or referred to in the testator's second codicil, and particularly that the annuity should not be liable to be taken into execution or otherwise appropriated by her husband's creditors; that she and her husband were advised that, under the provisions of the second codicil, no assignment of the annuity in her favour would be effectual against the claims of the parties for whose benefit the same was, in that codicil, directed to be applied in the event of her husband attempting to alienate the same, in case such other parties should insist upon the forfeiture of his interest therein; but, nevertheless, he resolved to execute an assignment of the annuity to a trustee for her, in the hope that, if the forfeiture was insisted upon, the testator's trustees and executors might, in the exercise of the discretion given to them by the second codicil, apply the annuity or some part thereof for her benefit; that, with a view of effecting, if possible, her husband's desire and intention, and also the desire and intention of the testator, her husband, with her privity, determined, upon the suggestion and advice of counsel, to assign the annuity to a trustee for her, so as effectually to divest his interest therein, and either to secure the annuity for her benefit, or to effect a forfeiture of it, and thereby to prevent it from being taken by the Plaintiffs under the sequestration, and to enable the trustees and executors to exercise the discretion given to them by the second codicil, in the event of any attempt by her husband to [8] alienate the annuity; that she and her husband did, at the time in the bill mentioned, and under such circumstances and with such view and intention as before mentioned, but not further or otherwise, consult with Young, as their solicitor, in order to devise some means of defeating the claims of the Plaintiffs to the annuity, and of securing it for her benefit. Mrs. Taylor then admitted the execution of the indenture of the 24th of May 1848, and said that it was executed for the purpose of vesting the annuity in Young, as a trustee for her, if the same could be effectually done under the provisions of the second codicil, and, if it could not be effectually done, then for the purpose of effecting a forfeiture of the annuity, and of enabling the executors and trustees to exercise such discretion as aforesaid. She added that Young, as her trustee and solicitor, had in his possession the indenture of the 24th of May 1848, and also the several other documents relating to the matters in the bill mentioned, which were set forth in the schedule to her answer: but that the documents mentioned in the second part of the schedule consisted of a case for the opinion of counsel, opinions of counsel, and confidential communications between her and her husband and Young as her solicitor, with reference to the matters in question in this suit, and to her defence against the claims made by the Plaintiffs in this suit; and she submitted that she was not bound and ought not to be compelled to produce the

same.

Upon the coming in of that answer the Plaintiffs obtained an order from the late Vice-Chancellor of England, for the production of the documents mentioned in the second part of the schedule; but that order was discharged by Lord Cottenham, C. (13 Jurist, 465 and 972).

[9] The Plaintiffs then amended their bill by introducing the following charges :That, after Mr. and Mrs. Taylor and their solicitors had become acquainted with the contents or purport of Cape's will and codicils, but before the 24th of May 1848, Holme & Co., as their solicitors, stated a case for the opinion of counsel, and in such case the fact of the writ of sequestration having issued was stated, and a copy or statement of the codicil bequeathing the annuity was contained in or accompanied the -case; that, before the signing of the alleged indenture of the 24th of May 1848, Taylor and his wife respectively wrote letters to and received letters from Young, the trustee named in the indenture; that the letters so written and received related to the subject of the annuity and to the preparing of the indenture, and to the real purpose for which it was proposed to execute the same, and to the expediency of Taylor's voluntarily doing some act to forfeit or determine his right to the annuity,

and to the means of defeating the title of the Plaintiffs to it and retaining the benefit of it for Mrs. Taylor and the testator's residuary legatees or some of them; that the case, opinion and letters shewed what was the real intention of Mr. and Mrs. Taylor and Young in becoming parties to the indenture of the 24th of May 1848; and that they shewed, as the fact was, that the plan of preparing and executing such indenture was resorted to for the purpose of effecting a forfeiture of the annuity, or a determination of the title of the Plaintiffs and Taylor thereto, and in order to defeat the title of the Plaintiffs as such sequestrators as aforesaid, and was not resorted to for the purpose of really and effectually vesting the annuity in Young upon the trusts in the same indenture declared; that, by the case, counsel were requested to advise whether a forfeiture or deter-[10]-mination of Taylor's interest in the annuity might not be effected by his executing an assignment thereof, or by some other and what means; and to advise generally as to the best means of withdrawing the annuity from the power of the Plaintiffs as such sequestrators as aforesaid; that counsel wrote an opinion upon the case, and advised that a bona fide assignment of the annuity by Taylor, if such assignment were possible, would determine his right thereto and the right of the Plaintiffs as claiming under him; but he also advised that no estate or interest in the annuity would or could, under any assignment, become vested in the person or persons to whom the same might purport to be assigned; and that a deed purporting to be an assignment of it, but not really passing and not intending to pass or assure it, would be merely colourable, and would not affect the title of the Plaintiffs as such sequestrators.

Mrs. Taylor, by her answer to the amended bill, denied that, before the signing of the indenture of the 24th of May 1848, she and Mr. Taylor, or she alone, wrote any letter to or received any letter from Young as the trustee named in that indenture, or, save as appeared by her former answer and the schedule thereto, in any other character; and she, in substance, submitted and insisted that, under the eircumstances in her present answer and in her former answer appearing, she was not bound and ought not to be compelled to answer any of the interrogatories in the amended bill, relating to the contents, purport or effect of the letters or of the case and opinion; and she claimed the like benefit of objection to such parts of the bill as sought such discovery, as if she had demurred thereto.

[11] The Plaintiffs excepted to her answer for insufficiency on the ground that she ought to have answered those interrogatories. The Master overruled the exceptions: upon which the Plaintiffs excepted to his report.

Mr. Bethell and Mr. Kinglake, in support of the exceptions to the report, said that this case did not come within either Holmes v. Baddeley (1 Phill. 476), Herring v. Clobery (Ibid. 91), or Combe v. The Corporation of London (1 Youn. & Coll. 631): that the Plaintiffs were entitled to a production of the deed of the 24th of May 1848, which their bill impeached for fraud: that all the communications which took place between Mrs. Taylor and her solicitor, with a view to that deed, were part of the res gesta of the fraudulent transaction: that the charges in the amended bill connected the discovery sought with the fraudulent act complained of, and, therefore, according to Lord Cottenham's judgment in 13th Jurist, 973, the case was taken out of the ordinary rule that Young, Mrs. Taylor's solicitor, was made a Co-defendant to the suit, as being a party to the fraud: that there could be no doubt that he was compellable to give the discovery which she had declined to give; and it would be absurd to hold that a client could withhold the discovery which his solicitor was bound to give: Reynell v. Sprye (10 Beav. 51, and 11 Beav. 618).

Mr. James Parker and Mr. Freeling, for Mrs. Taylor, said that there was no fraud whatever in the transaction to which the bill related: that it was not aliud simulatum, aliud actum, but idem simulatum, idem actum: that, notwithstanding the amendments, the case was [12] substantially the same as it was when it came before Lord Cottenham; and therefore his decision was in effect a decision on the question raised by the present exceptions: that Reynell v. Sprye illustrated the kind of case which Lord Cottenham had in view when he said that no doubt pleadings might be so framed as to make a special case connecting the discovery sought with the fraudulent act complained of, so as to take the case out of the ordinary rule: that the circumstance of Young being a party to the suit made no difference as to the sufficiency of Mrs..