1844. Kerr v. Gillespie. suit," and that the plaintiff had no right to see the defendant's evidence.(a) THE MASTER OF THE ROLLS said he would reserve the point until he had decided in the case of Flight v. Robinson.(b) August 3.-THE MASTER OF THE ROLLS (c) held that the correspondence was not privileged, as the answer did not state that it had passed between the solicitor and client, or any other grounds which could relieve the defendant from the obligation of producing it. He therefore ordered the production.[1] 1844: June 22. *LAWRENCE V. KEMPSON. [*574] A. B. and the other committee men of a public company mortgaged the company's estate, and covenanted personally to pay the money. They afterwards entered into a personal obligation, by bond, for another debt. A. B. died, having certain shares vested in him as trustee to the company. By the decree, the shares were ordered to be sold, and the produce applied in payment of the debts of the company, for which the estate of A. B. was liable. Held, that the representatives of A. B. had a right to have the fund applied in payment of the bond debt, in priority of the mortgage debt. (a) See Preston v. Carr, 1 Y. & Jer. 175; Curling v. Perring, 2 My. & K. 380. (b) See post. [Vol. 8, p. 22.] [1] Confidential communications which took place after the dispute had arisen, between a defendant and a solicitor, who acted as agent and adviser only, but not as solicitor, were held not privileged. Greenlaw v. King, 1 Beav. 137. Confidential communications between attorney or counsel, and client, anterior to the suit, and without reference thereto, are not privileged. Flight v. Robinson, (decided July 31, 1844,) 8 Beav. 22. Where the circumstances of the case render it necessary for a party or his solicitor to employ an agent to collect evidence in support of legal proceedings, the communications of such agent to his principal, relating to such evidence, are privileged. Steele v. Stewart, (decided November 14, 1844,) 1 Phillips, 471; S. C. 13 Sim. 533. Letters written, or cases stated for the opinion of counsel by a party or his solicitor, with a view to a suit then in contemplation, are privileged from production, not only in that suit but in any subsequent litigation with third parties, respecting the same subject matter, and involving the ques tion to which such letters and cases relate. Holmes v. Baddeley, (decided November 28, 1844,) 1 Phillips, 476; S. C. 6 Beav. 521. See cases cited ante, 491, n. 1. VOL. VII. 62 1844-Lawrence v. Kempson. IN September, 1822, Peter Kempson (since deceased) and eleven other persons, who then constituted the committee of the "Birmingham Coal Company," mortgaged certain property belonging to the company to Mr. Insole for 7000l., which sum they personally covenanted to pay. In October, 1822, Peter Kempson and the other members of the committee became bound, by bond, to Mr. Mather for payment of 40007. By the decree in this cause, it was declared, that certain gas shares, which stood in the name of Peter Kempson, deceased, had been purchased by him as a trustee for the above company, and that such shares ought to be sold, and the proceeds applied towards the payment of the debts and obligations due from the said company, for which the estate of the said Peter Kempson was liable. The master was directed to ascertain, for what debts and obligations, due from the Birmingham Coal Company, and to whom and on what securities, the estate of the said testator Peter Kempson was liable. The master found that the estate of Peter Kempson was liable, in conjunction with other parties, to the above debts. [*575] The shares were sold for 4000l. and upwards. *The mortgaged estate of the company was said to be sufficient to provide for the mortgage on it, and the question was, to which of the incumbrances the produce of the gas shares ought to be applied. Mr. Turner, for the plaintiff.-Mr. Kempson and the other parties interested in the company entered into two joint securities. There is no equity, giving to the representatives of Kempson the right of selecting to which of the particular debts the produce of the gas shares ought to be applied. Mr. Lovat, contra.-The decree declares that Kempson was a trustee of the gas shares, and that they ought to be sold and applied in discharge of the debts of the company for which Kempson was liable. The intention was to indemnify Kempson's estate; but if this fund be applied in payment of the mortgage, the 1844. Lawrence v. Kempson. company's estate will be relieved, and Kempson's estate still remain liable to the bond debt. That was not the intention of the court. The estate will provide for payment of the mortgage, and the fund ought, therefore, to be applied in discharge of the bond debt. Mr. Turner, in reply.-The representatives of Kempson are not the only parties interested in this question, the other eleven, who are represented by the plaintiff, have a right to a voice in the application of the money. The covenant is joint, and the bond is joint and several, so that the executors are only liable on the bond. THE MASTER OF THE ROLLS:-I cannot think that [576] the representatives of Kempson are in the same situation as they might have been in previous to the decree. By the decree he is declared to have been a trustee of the shares, which were directed to be sold, and the produce was to be applied in payment of the debts and obligations of the company for which the estate of Kempson was liable. A benefit was thereby intended for the representatives. The object of the court was to indemnify the estate of Kempson, and that must be done effectually. The plaintiff desires to apply this money in satisfaction of the debt in respect of which his estate is safe, and not in respect of that debt to which it is exposed to a greater hazard. One cannot well see that it is consistent with the decree. It is said that Kempson was an original debtor, and that the decree directing the fund to be applied in satisfaction of these debts does not specify any priority, and that it ought to be applied in payment of that debt which the majority of the obligors select; but it appears that Kempson stood in the situation of a trustee for the company, and a peculiar protection was given to his estate by the decree, which, whether right or wrong, cannot now be varied. I think that the fund ought to be applied, first in payment of the bond debt, and then that the residue should go satisfaction of the mortgage. in 1846.-Wheatley v. Wheatley. [*577] *WHEATLEY v. WHEATLEY. (a) 1846: January 12, 23. The replication mentioned in the 111th of the general orders of May, 1845, means a replication in the form directed in the 93rd of such orders, and therefore, in a transition case, where a subpoena to rejoin has been served prior to these orders coming into operation :-Held that publication could not pass, under the 111th order," without rule or order," and that a special order was necessary. Upon a motion to dismiss, under such circumstances, the court will (unless good cause be shown,) order that publication do then pass. Where, prior to the orders of 1845, a replication only, in the old form, has been filed, a replication in the new form mentioned in order 93, may be regularly filed, for the purpose of putting the cause at issue, but secus, where a subpœna to rejoin has been served prior to these new orders. In this case, replication had been filed on the 1st of November, 1844, and a subpoena to rejoin had been served on the 28th of May, 1845; so that the cause was at issue before the orders of May, 1845, came into operation. (28th October, 1845.) No further step having been taken in the cause, Mr. Kindersley and Mr. Steere, for the defendant, moved to dismiss the bill for want of prosecution. They argued, that under the 111th order of May, 1845,(b) publication "passed without rule or order, at the expiration of two months, after the filing of the replication." (1st of Nov. 1844.) That consequently the defendant was entitled to dismiss, under the 114th order, article 4,(c) whereby such a motion may be made, if the plaintiff" does not set down the cause to be heard, and obtain and serve a subpœna to hear judgment, within four weeks after publication has passed." That as these orders had been promulgated so long back as May, 1845, and did not come into operation until the 28th of October,(d) the plaintiff could not therefore have been taken by surprise. (a) For the convenience of the profession, this and the nine following practice cases are published out of their regular order. (b) Ord. Can. 329. (c) Ord. Can. 330. (d) 3rd Order, Ord. Can. 273. 1846.--Wheatley v. Wheatley. *Mr. James Anderson, contra.-This motion is irregu- [*578] lar on two grounds. First, Time could only run, under these orders of 1845, from the day on which they came into operation, (28th Oct.) consequently, if publication could pass in this case by the operation of the 111th order, it passed on the 23d of December, 1845, and the plaintiff, under the 114th order, article 4, has four weeks to set down his cause. This period, excluding the Christmas vacation, will not expire until February next. The defendant, therefore, is premature in his motion. Secondly. The new rules do not apply to this case. plication referred to in the 111th order means replication in the particular form mentioned in the 93d order,(a) by which a plaintiff "joins issue with the defendant;" and such seems to have been the opinion of the Vice-Chancellor of England in Lovell v. Blew.(b) Mr. Kindersley in reply. THE MASTER OF THE ROLLS reserved his judgment. The re Jan. 23.-THE MASTER OF THE ROLLS-Replication having been filed on the 1st of November, 1844, and a subpoena to rejoin having been served on the 28th of May, 1845, and no further step having been taken in the cause, the defendant now moves to dismiss the bill for want of prosecution. I am of opinion that the motion cannot be now granted. "The replication mentioned in the 111th order is a re- ["579] plication in the form directed in the 53d order, and no such replication having been filed, publication does not pass without rule or order. Consequently, publication has not passed in this cause, and the 4th article of the 114th order does not entitle the defendant to move to dismiss. Moreover, the office and effect of a replication in the new form is, to put the cause completely at issue; it is required and may regularly be filed for the purpose of putting the cause at issue, in cases where replications only have been filed in the old form, (a) Ord. Can. 319. (b) 13 Simons, 492. |