opinion is certainly, that which was my impression when I first heard this cause, that the general word "elsewhere" is not sufficient to defeat the effect of those words which are contained in the prior devise. I think that the previous devise, as it stands, is sufficient to carry the copyholds which were in Holton-le-Clay, and that this general vague expression, however potent it would be to carry things which were not in the contemplation of the testator, and not the subject of specific contemplation at the time when the will was made, is not, as it appears to me, powerful enough to defeat the effect of that intention which does appear by the words which are used in the former part of the will. And when I look to the other parts of this will, I confess I think there are found in it, expressions which seem to confirm that conclusion: for what occurs in the subsequent part, where provision is made for the maintenance and education of this devisee, by means of those estates of which she was to have the use immediately after the death of the testatrix's death? There I find certainly Holton-le-Clay is not referred to, which, I think, it would have been, if the copyholds in Holton-le-Clay had been intended not to pass by the first devise to the use of John Borrell for life.

My opinion, therefore, is according to the impression I first had; but I cannot say that this matter is so exceedingly clear, as to make it unfit, if the parties desire it, to have a case at law. I understand from counsel, that the parties are desirous to have a case, and if so, it is my duty to allow them to have one; it is easy to modify the words of this will so as to put it in a legal form. I think the question would be, whether Mrs. Haigh took an immediate interest in those copyholds at Holton-le-Clay.

This was a motion for the usual production of the documents admitted by the answer of the defendants to be in their possession. The bill, it appeared, had been filed on the 4th of May 1837, for the specific performance of a contract entered into by the defendants on the 13th of May 1836, for the purchase of certain leasehold property. The plaintiff contended, that he was, under the circumstances, bound to make out his title to a limited extent; and that the defendants had waived any further title than that stated and shewn. Amongst other documents stated by the defendants to be in their possession, they stated, they had "a case with Mr. Humphreys's opinion, dated the 12th of December 1836"; and also two other cases, but the production of the latter was not objected to. With reference to these cases, the defendants said, "that such cases, for the opinion of counsel, and the opinions thereon, set forth in the said schedule, had reference to the matters in question in this cause, and the same were submitted to counsel after the several matters in dispute in this cause had arisen, and bore reference thereto; and therefore the defendants submitted the same ought not to be produced." The only point in dispute was, as to the production of the case and opinion of the 12th of December 1836.

Mr. Pemberton, in support of the motion. -The question being, whether there has been an acceptance of the title, it is all important that the case and opinion should be produced, as part of the res gesta. In cases between vendor and purchaser, the opinions of counsel on the title are always communicated to the vendor, and are not considered as confidential. As far as regards the case itself, independently of the opinion of counsel, Radcliffe v. Fursman (1), which was decided on appeal by the House of Lords, shews that the plaintiff is

(1) 3 Bro. P.C.538.

entitled to a production of it-Preston v. Carr (2), Vent v. Pacey (3).

Mr. Tinney and Mr. James Parker resisted the production of the case and opinion, contending, that the statement of counsel for his opinion, was as much confidential as a statement made to, or a consultation with, a solicitor. In Knight v. the Marquis of Waterford (4), Lord Abinger says, he recommended the appeal in Bolton v. the Corporation of Liverpool (5). After an investigation of the authorities, his Lordship says, "I do not think it material whether such communications relate to a cause now in progress, or to matters which took place on former occasions." And in his judgment, p. 40, he says, "As to the decision of Lord Brougham and of the Vice Chancellor, I should say, that the statement for counsel which they ordered to be produced was as much protected as that which they refused;" and in p. 41, "The cases have been pushed to a length which the circumstances upon which they were decided will not justify." That Radcliffe v. Fursman had been always disapproved of; and the decision depended on the special circumstances of the case, and did not go the length of deciding that a disclosure must be made of cases laid before counsel" after the matters in dispute had arisen." Bolton v. the Corporation of Liverpool was an express authority against the right of the plaintiff. There, Lord Brougham says, "It seems plain that the course of justice must stop, if such a right exists. No man will dare to consult a professional adviser with a view to his defence, or to the enforcement of his rights. The very case which he lays before his counsel to advise upon the evidence, may, and often does, contain the whole of his evidence, and may be, and frequently is, the brief with which that or some other counsel conducts his case." They also cited Hughes v. Biddulph (6), and Wildman v. Logan, decided by Lord Eldon (MS.)

Mr. Pemberton, in reply.-If the case of Bolton v. the Corporation of Liverpool went too far, it was in the restriction of the right of production authorized by the pre(2) 1 You. & Jer. 175.

vious decisions. This case, however, differs from that. The defendants were content with the plaintiff's title, until they changed the line of railroad, and no longer wanted the plaintiff's houses: then it was that they raised difficulties which they had previously waived. The case and opinion are most important, as they form part of the transaction which is in issue in the cause.

The MASTER OF THE ROLLS.-If this case were res integra, and not subject to previous authorities, I should have had no doubt whatever. But the case of Bolton v. the Corporation of Liverpool, having regard to the decision, and having regard to the principle laid down as the foundation of that decision, does not appear to me to be, in a satisfactory way, distinguishable from the present; and therefore, whatever my own opinion may be, I think I am bound to give effect to that decision. I confess, as I have stated before, that I cannot concur altogether with the reasoning on which the decision in that case is founded, or with the reasoning of those learned and eminent Judges who have thought that that case went too far in granting the discovery given by this Court (7). On the contrary, I have had occasion to say, that that case did restrict the discovery in a way scarcely justified by former cases; and as to the reasoning, I am yet to learn, that the complete disclosure of the truth, whether it be the disclosure of the truth through communication between solicitor and client, or, if it were possible to effect it, by opening the heart of the party, could, in any way, be prejudicial to the progress of justice, and to that which the Judge must always have in viewdoing complete justice between the parties, according to the real facts of the case. have yet to learn some satisfactory reason for proving, that justice is or can ever be promoted, by concealing the truth in any way whatever; and, if this were a case now to be decided for the first time, I should think it fit to make an order for the production. But I consider myself bound by authority; and, so considering myself, I abstain from making an order.

I

If the case is carried to the Lord Chaneellor, he will not be bound by the autho(7) See Storey v. Lennox, 6 Law J Rep. (N.s.) Chanc. 104.

Under the will of the testator, his real estate, at the time of the presentation of the petition, stood limited as follows:

"Unto his brother Isaac Wood, and the heirs of his body, lawfully to be begotten," with remainder to his cousin Elizabeth, the wife of John D. Clark, and the heirs of her body, with remainder to right heirs of the testator for ever.

Isaac Wood, the brother and heir-atlaw of the testator, had, in the year 1801, been found a lunatic under a commission, and a committee had been appointed of his person and estate.

John D. Clark and Elizabeth his wife presented this petition to the Lord Chancellor, stating the above circumstances, and the 15th, 33rd, 34th, 35th, 41st, 48th, 49th, 50th, and 79th sections of the above statute; and further stating, that Isaac Wood, the lunatic, was of the age of sixtyfour years and upwards, and had never been married: that the petitioner, E. Clark, was desirous of barring her estate tail, and resettling the estate to herself in fee simple in remainder expectant, at the decease and failure of issue of Isaac Wood; and praying, "that his Lordship, as the protector of the settlement under the provisions of the said act of parliament, would be pleased to consent to the barring of the aforesaid estate tail in remainder of the petitioner Elizabeth Clark, with the concurrence of her husband and the remainder-men, and limiting the estate to the petitioner, Elizabeth Clark, in fee.

Mr. Wigram and Mr. Younge, in support of the petition, stated, that the petitioner was the only relation of the lunatic, who

had been a lunatic thirty-seven years; and they submitted, that the lunatic, having an estate greater than an estate for years determinable on the dropping of a life, was protector of the settlement as regarded the estate tail of the petitioners, and that it would be a proper exercise of the discretion of the Court, under the 33rd and 48th sections, to accede to the prayer of the petition.

The LORD CHANCELLOR observed, that it was difficult to see how it could be for the benefit of the lunatic to bar his remainder. This application was made simply for the purpose of serving another person; that the only case in which an order had been made under the act, was by Lord Brougham, and was for the purpose of providing for the son of the lunatic; that the Court, in all cases, was desirous of not interfering with the rights of succession, but the object of this application was to take away the interest of the person who would be heir. His Lordship said, he would, however, consider the case.

Feb. 27. The LORD CHANCELLOR said, that the lunatic being tenant in tail, the case was not within the act, and that it had been so decided by Lord Brougham and Lord Lyndhurst in Blewett's case; and even if his Lordship had the discretion, he would not be justified in dealing with the property in the manner proposed. The lunatic had the largest estate, in fact the whole interest, except the intermediate estate of the petitioner; and even if his Lordship had the power, he would not exercise it in this case.

On this cause being called on

Mr. Wigram, for the defendant, objected, that some necessary parties were wanting, and that no effectual decree could now be taken. The objection was not taken by the answer; but as it was apparent on the face of the bill, that there was a defect of parties, he asked for the costs of the day.

The LORD CHANCELLOR.-The rule is, that if a defendant takes an objection for want of parties, without having raised it by his answer, he is not entitled to the costs of appearing, although, from what appears on the bill, the Court itself would very probably make the objection.

Mr. Wakefield and Mr. G. Richards were counsel for the plaintiff.

Note.-See Wilson v. Broughton, ante, p. 120.

This cause came on for further directions, and the minutes were agreed upon.

Mr. Tinney, of counsel for some of the parties, said, he believed it was clear that a will, expressed to be "signed, sealed, published, and declared" in the presence, &c., was a good execution of a power to appoint by deed or will, "signed, sealed, and delivered." If this were not so, a party not before the Court would be entitled in default of appointment.

The LORD CHANCELLOR concurred with Mr. Tinney, in thinking that the power was well executed; and a decree was taken upon that assumption (1).

Mr. Wigram, Mr. Whitmarsh, and Mr. Favell, appeared for different parties.

(1) See a similar decision in Curteis v. Kenrick, 7 Law J. Rep. (N.S.) Exch. 169, a case sent by the Vice Chancellor for the opinion of the Court of Exchequer.

*

Practice Injunction Irish Banking Act.

A bill was filed to restrain proceedings in an action at law, brought by the public officer of an Irish bank, established under the act 6 Geo. 4. c. 42, and to which some of the shareholders were made defendants. The common injunction having issued against such shareholders, for want of appearance, the Court refused to extend it to stay trial against the public officer.

In this case, a bill had been filed by Thorpe against Hughes and nine other persons, praying an injunction to restrain proceedings in an action at law which had been brought by Hughes, as one of the public officers of a partnership called "The Agricultural and Commercial Bank of Ireland," established under the act 6 Geo. 4. c. 42. The object of the action was, to recover from Thorpe the amount of some instalments upon certain shares in the said bank, which had been sold to the plaintiff. The plaintiff's bill charged, that he had been induced to purchase the shares by fraudulent misrepresentations of the state

* Ex relatione.

of the affairs of the bank; and that the defendants were shareholders in the said bank, and some of them directors or members of the managing committee of the said bank, and that they were privy to the fraud. All the defendants resided out of the jurisdiction of the Court. The plaintiff obtained an order, that service of subpœnas on the attorney in the action, should be good service on all the defendants to the suit. The defendant Hughes alone appeared to the bill, and referred it for impertinence, which reference was still pending; and the plaintiff obtained the common injunction against the other nine defendants, but not against Hughes, to restrain them from proceeding in the action.

The plaintiff now moved that the injunction issued against the nine defendants might be extended to stay the trial of the action commenced by the said defendants in the name of the said defendant Hughes.

The plaintiff, by his affidavit filed in support of the motion, stated, that the company was projected by James Dwyer, one of the defendants, and others; and that several of the defendants were active in getting up the said bank; and that all of them, with the exception of the defendant Hughes, took upon themselves to act as the directors or managing committee of the said bank; and that defendant Hughes took upon himself to act as the secretary and public officer of the said bank. The affidavit further stated, that several of the defendants were aware of the fraud which had been practised on the plaintiff.

The defendant Hughes, by his affidavit in opposition to the motion, stated circumstances to shew that the bank had been duly and properly constituted and carried on, pursuant to the terms of the act of parliament; and that he and another person were duly appointed public officers of the said co-partnership, under the said act. The affidavit then stated, that he had commenced the action as one of such public officers, and had declared for money had and received to the use of the said co-partnership, and denied that the said action had been commenced by the said nine defendants,' or any of them, in the name of defendant Hughes, or on their behalf. He further stated that there were upwards of 3,000 shareholders or members of the said co-partner

ship; and that several of the said nine defendants were not directors or members of the managing committee of the said partnership; and that some of them were not even shareholders therein; and that many of the directors or members of the managing committee of the said partnership were not made parties to the bill.

Mr. Knight Bruce and Mr. Jacob, in support of the motion, contended, that gross injustice would be done if this motion were refused; that the defendants had put forward a nominal defendant, in order to prevent an injunction; and that the action at law was substantially the action of the other defendants, although Hughes was the nominal plaintiff.

Portarlington v. Graham, 5 Sim. 416;

s. c. 3 Law J. Rep. (N.s.) Chanc. 154. Montague v. Hill, 4 Russ. 128. That Hughes had appeared by the same attorney upon whom service had been directed by the Court to be good service; and by serving him, the plaintiff had substantially informed the other defendants of the proceedings which had been taken.

Mr. Wakefield and Mr. S. Sharpe, contrà. Under this act, the public officer may sue and be sued alone; but if it be wished to sue any other members of the partnership, all must be made parties. The defendants, against whom the common injunction has issued, are mere strangers to this action, which is brought by the bank. Mr. Knight Bruce, in reply.

The VICE CHANCELLOR.-I think Mr. Hughes comes within the terms of the common injunction as "an agent"; and in that view, I see no difficulty in making the order. I think Mr. Hughes need not have appeared-I treat it as an ex parte motion, and grant it; nothing individually is prayed against Mr. Hughes.

Motion granted.

Mr. Wakefield applied for the costs of his client, but they were refused.

..L. C. March 28.-Hughes appealed from the above order, and the Lord Chancellor reversed the decision of his Honour.