he had no notion that the plaintiff had any claim thereon or thereto. He said that Rawlings was still in his debt, and that he claimed and had a lien on the lease for valuable consideration, and that he obtained it without any notice of the plaintiff's claim. He declined answering the principal part of the interrogatories, on the ground (as to some), that he had obtained the information respecting them "whilst acting as the solicitor of the defendant Rawlings," or "whilst acting professionally for" him. He insisted he was not bound to give the discovery required by the interrogatories, on the ground that he had derived all the information which he possessed on the subject either as a creditor of the defendant Rawlings or as his solicitor." * The plaintiff took exceptions which now came on for argument. Mr. R. Palmer and Mr. C. Swanston, junior, for the plaintiff. The MASTER OF THE ROLLS called on the defendants. Mr. Selwyn and Mr. Cottrell, [in support of the answer]. THE MASTER OF THE ROLLS: I will not trouble the plaintiff to reply, because admitting the proposition of the defendant as to professional confidence, still the case does not here arise. The rule undoubtedly is, that communications between solicitor and client are privileged, and that the privilege is that of the client; but it is confined to communications made to the solicitor by the client dealing with him in that character; in Lord Walsingham v. Goodricke (1), Vice-Chancellor WIGRAM very carefully considered the question. But is this the case of communications between the client and his solicitor? There is no such statement or allegation of the defendant in his answer. All he says is, he got the knowledge "whilst acting as the solicitor of Rawlings." If this objection prevailed, a solicitor who had many clients might decline answering anything by saying he obtained the knowledge when acting professionally for his different clients. A defendant is not bound to discover communications relating to the cause which have passed between him and his solicitor for this reason: that if he *were, he would be unable to communicate to his solicitor the facts necessary in order to enable him to conduct the cause. It is not necessary here to go into the question of whether this privilege is confined to communica(1) 64 R. R. 226 (3 Hare, 122). R.R.-VOL. CXXII. 23 THOMAS r. RAWLINGS. [141] [142] [ *143 ] THOMAS ፖ. RAWLINGS. 1859. June 13. Rolls Court. ROMILLY, [ 144 ] tions post litem motam or not. Here the solicitor has obtained a knowledge whilst acting as a solicitor, but he does not allege that it consists of communications. on professional matters between him and his client. It is clear, therefore, that all the exceptions depending on that point must be allowed. With regard to the other discovery, he says, he derived his information" either as a creditor of Rawlings or as his solicitor." This statement, in the alternative, must be taken most strongly against the defendant, and it must be assumed that he obtained the information as creditor; he is, therefore, bound to set it forth. All the exceptions must be allowed. FRY v. FRY. (27 Beav. 144-147; S. C. 28 L. J. Ch. 593; 5 Jur. N. S. 1047.) A testator died in 1834, having directed his executors and trustees, so soon as convenient after his decease, to sell" his freehold inn. They attempted to sell in 1836, and were offered 9007., which they refused. The property became greatly depreciated by a railway opened in 1843, and it still remained unsold in 1859: Held, that the trustees were liable for the difference between 9007. and the produce of a present sale. The testator, as lessee, was bound to insure. The insurance expired on the 25th of March, and the testator died on the 27th, without having paid the premium. The premium was not paid by the executors, and the house was burnt down on the 26th of May: Held, that the executors were not personally liable for not having kept up the insurance (1).. THE testator died on the 27th of March, 1834. By his will, made the day before, he devised and bequeathed unto John Fry and Isaac Cooper, and their heirs, &c., all the residue of his real and personal estate, upon trust to pay to his wife the rents of all his houses (except the "Langford" Inn) during her widowhood, and afterwards on trusts for his children and grandchildren. "And as for and concerning all that messuage or dwellinghouse called 'Langford' Inn, at Langford aforesaid, with the garden," &c., &c., "upon trust, as soon as convenient after his decease, to sell and dispose of the same, either by auction or private sale, and for the most money that could be reasonably obtained for the same." He directed the trustees to convert his personal estate into money, and "to place out on good security at interest" the produce and all other moneys that should come to their hands by the ways and means aforesaid, and pay the interest to his wife 1) The Trustee Act, 1893, empowers trustees to insure insurable property up to three-fourths of the full value, and to pay the premiums out of income, but such insurance is not on the obligatory, nor does the omission to insure impose any liability trustees: In re McEachern [1911] W. N. 23.-O. A. S. during her widowhood, and afterwards to pay the capital to his four children. The testator died in 1834, his widow died in 1842. The trustee Isaac Cooper died in 1842, and John Fry the other trustee in 1856. The "Langford" Inn still remained unsold, and greatly depreciated in value, and it was sought to charge the estates of the two trustees with the loss that had occurred by their neglect to sell it. At the hearing, the COURT directed an inquiry, under what circumstances the testator's freehold messuage, called "Langford" Inn, had remained unsold. The chief clerk, by his certificate, found as follows: "The messuage and hereditaments called Langford' Inn were situate on the high road from Bristol to Exeter, and at the testator's death were subject to a mortgage debt for 1,000l. and interest. They let at a yearly rent of 801. In April, 1836, the executors caused them to be advertized for sale in several of the local papers, and offered to sell for 1,000l. The sum of 900l. was offered by one Bradford for the property in 1837, and was refused by the executors. The Bristol and Exeter Railway was opened in 1843, and caused a great diminution of the traffic on which the said inn principally depended for support, and although it was again advertized for sale in June, 1845, no offer was then made for it, and it has since continued to be unsaleable, except at a low price, the present rent being only 301." The cause now came on for further consideration. Mr. Lloyd and Mr. M. A. Shee, for the representatives of John Fry, and Mr. B. L. Chapman, for the representatives of Isaac Cooper, argued, that the executors were not liable for any diminution in value of the property; that they had acted bona fide and for the best, and had exercised a sound discretion; that the depreciation in the value had been caused by local circumstances over which they had no control, which had rendered the property unsaleable except at so low a *price as to render it more prudent to keep it. They cited Buxton v. Buxton (1), Taylor v. Tabrum (2). Mr. Freeling for the parties beneficially interested, [cited] Devaynes v. Robinson (3). The MASTER OF THE ROLLS held that the executors were liable, in consequence of their negligence for so many years in (1) 43 R. R. 138 (1 My. & Cr. 80). (2) 38 R. R. 115 (6 Sim. 281). (3) 116 R. R. 42 (24 Beav. 86). FRY r. FRY. [145] [*146] FRY V. FRY. [147] not selling the property. He directed the "Langford" Inn to be sold, and he declared that the estates of the two trustees were liable to make good the deficiency between the amount which should be produced by the sale of the inn and the sum of 900l., in case the purchase-money thereof should not amount to that sum (1). Another question occurred under the following circumstances, which were stated in the certificate: "The testator held the house in which he resided at Langford under lease from Abraham Nash. The lease contained a covenant on the testator's part to insure the premises in 300l. The testator had effected and kept up a policy for that amount, in accordance with the covenants; the premium on such policy became due on the 25th day of March, 1834. The testator died on the 27th of the same month of March, without having paid the premium, which was not subsequently paid by any other person on account of his estate, and the policy consesequently lapsed. Susanna Fry, the testator's widow, continued in the occupation of the premises, which were destroyed by fire on the 26th of May, 1834. The sum of 300l. was paid to Abraham Nash in discharge of testator's said covenant; 150l., part thereof, was contributed by the said insurance office, notwithstanding the lapse of the policy; 201., other part thereof, was paid by the said Susanna Fry, and the balance of 130l. was paid by the executors, out of the sum of 500l. raised by them on mortgage of the testator's real estates. The testator's will was not proved by the executors until the 17th of June, 1834." There was evidence that John Fry had acted from the testator's death. It was sought to charge the executors with the consequences of not keeping up the insurance. Mr. Lloyd and Mr. M. A. Shee for the executors. Mr. Freeling, contrà, [cited] Garner v. Moore (2). The MASTER OF THE ROLLS was of opinion that the executors and trustees had incurred no personal liability in respect of the breach of covenant to insure, and that they were entitled to be allowed, in account, the sum of 130l. paid by them in satis faction of the testator's covenant to insure. (1) Reg. Lib. 1858, A., fol. 2560. (1 Y. & C. (Ex. Eq.) 221), not cited in this case.-O. A. S. SWINFEN v. SWINFEN. (27 Beav. 148-167; S. C. 28 L. J. Ch. 849; 5 Jur. N. S. 1276.) Heir-at-law refused a second issue to try the validity of a will by which he was disinherited. The rules respecting new trials were less stringent in equity than at law, and the practice in equity always was not to consider merely whether there was evidence which would support the finding of the jury, and in that case to refuse a new trial, but to consider whether, having regard to the entire subject-matter and to the whole of the evidence given at or before the trial, and what has since become known, the Court was satisfied that full and complete justice had been done between the parties, and that no further investigation was necessary for the purpose of attaining that end, and unless so satisfied, the Court required that the matter should be again tested by an examination before a jury, with such directions and modification as it might consider desirable for the fair, thorough and impartial sifting of the whole matter (1). [Obsolete practice in Chancery as to directing issues to try the validity of a will at the instance of the heir-at-law.] THE ATTORNEY-GENERAL r. PAYNE (2). (27 Beav. 168-174.) An improvident lease was granted by a charitable corporation to a trustee for the master: Held, after twenty years' enjoyment under it, that the rights of the Attorney-General to question its validity was barred by the Statute of Limitations (3 & 4 Will. IV. c. 27). THE object of this information was to obtain a declaration, that two leases, dated the 11th of May, 1816, and the 3rd of April, 1823, of property belonging to a charity called Wyggeston Hospital, and which leases had been granted by the hospital (a corporate body) to a trustee for Dr. Selwyn, the master of the hospital, were improper and fraudulent as against the charity, and to have been set aside, and for consequential relief. The circumstances relating to the foundation, &c. of this charity are stated in the case of The Attorney-General v. Wyggeston Hospital (3), the decision in which case gave rise to the present information. The following were the circumstances of the present case: In 1793, Dr. Selwyn was appointed master of the hospital. By a lease, dated the 11th of May, 1816, and made between the hospital (by its proper corporate name) of the one part, and Thomas Pares of the other part, in consideration of the surrender by Pares of two existing leases dated in 1806 and 1811, and of the rents and covenants thereinafter men Brown (1) This distinction between the practice in equity and at common law is referred to in Dean v. [1909] 2 K. B. 573, 78 L. J. K. B. 840, 101 L. T. 221, C. A.; affirmed [1910] A. C. 373, 79 L. J. K. B. 690, 102 L. T. 661.-O. A. S. (2) Governors of Magdalen Hospital v. Knotts (1878) 8 Ch. D. 709; affirmed (1879) 4 App. Cas. 324, 48 L. J. Ch. (3) 85 R. R. 40 (12 Beav. 113). It 1858. Nor. 20, 23, 25, 26. Dec. 6. 1859. Jan. 12. 1859. June 13. Rolls Court. ROMILLY, M.R. [168] |