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 (b), Herring v. Clobery (c), or Combe v. The Corporation of London (d): 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 gestæ 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 (e).

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

(b) 1 Phill. 476.

(c) Ibid. 91.

(d) 1 Youn. & Coll. 631.

(e) 10 Beav. 51, and 11 Beav. 618.

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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. Taylor's answer: that the privilege insisted on, was the privilege of the client and not of the solicitor, and that it was not alleged that Young had acted otherwise than in his professional character: Pearse v. Pearse (f), Reece v. Trye (g), Greenough v. Gaskell (h), Herring v. Clobery, Jones v. Pugh (i), Carpmael v. Powis (j), Dendy v. Cross (k).

Mr. Bethell, in his reply, referred to Lord Walsingham v. Goodricke (1).

The VICE-CHANCELLOR :

This was a case of exceptions to the Master's report as to the sufficiency of the answer of the Defendant, Henrietta Savill Taylor, the wife of the Defendant John Taylor. The Plaintiffs are commissioners of sequestration appointed in a Cause of Cowper v. John Taylor and others, in which the Defendant, Taylor, had been ordered to pay a large sum of money into Court. He made default in doing so; and a writ of sequestra

tion issued against him. The object of the present suit, instituted by the sequestrators, is to set aside a deed executed by Taylor, purporting to assign away an annuity of 2001., to which he was entitled under the will and codicils of Thomas Cape; and, by reason of which assignment, the Plaintiffs allege that they have been improperly prevented from possessing themselves of the annuity.

Taylor's title to the annuity, arose under the second codicil to Cape's will; which is as follows: "I direct," &c.

Cape, the testator, died in January 1848; and his will and codicils were, soon afterwards, proved by his executor, the Defendant Jefferyes; who possessed assets more than sufficient to pay his debts and legacies. The original bill, after stating these facts, and that the Plaintiffs had made, during the spring of the year 1848, many ineffectual attempts to get possession of the annuity, contains the following charges (m); and it prays that the assignment may be declared to be fraudulent, and that the annuity may be secured for the benefit of the Plaintiffs.

Mrs. Taylor, by her answer to the original bill, states as follows (n):

Upon the coming in of this answer, a motion was made, before the late Vice-Chancellor of England, for the production of the documents mentioned in the second part of the schedule. The motion was resisted by the Defendants, Mrs. Taylor and Mr. Young, who

(m) See ante, pages 5 and 6. (n) See ante, pages 6, 7 and 8.

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contended that the documents came all within the class of privileged communications. His Honour, however, thought differently, and ordered their production, on the ground that they all related to the very deed impeached by the bill.

There was then a motion, by way of appeal, to Lord Cottenham, who discharged the order of the Vice-Chancellor, being of opinion that none of the authorities warranted the distinction on which the Vice-Chancellor had proceeded. His Lordship, according to the report in the Jurist, Vol. XIII. p. 973, added 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; but that, here, no special case was made, and the allegations in the answer, brought the case within the ordinary rule.

After this order of Lord Cottenham's, the Plaintiffs amended their bill by introducing the following charges (o):

The Defendant, Mrs. Taylor, having been called upon to answer these amendments, put in an answer by which, in substance, she declined to disclose anything as to the contents of the case or the letters. Her answer was excepted to on that account; but the Master disallowed the exceptions. The Plaintiffs then excepted to the Master's report; and so the matter comes before me.

I have been thus particular in stating the pleadings and referring to what has already been done; because

(0) See ante, pages 9 and 10.

it will, I think, be manifest, on considering the proceedings up to the present time, that the question for my decision is brought within very narrow limits. The question before Lord Cottenham did not, it is true, arise on exceptions to the answer; but his Lordship's decision proceeded on principles which would, certainly, have been applicable to such a case. On the same grounds on which he decided that the Defendant was not bound to produce the case and letters, he would, on the record as it was framed when the matter was before him, have decided that she was not bound to answer interrogatories calling on her to set forth the contents or the purport and effect of them. The single question, therefore, on which I have to decide, is whether the amendments which have been made in the charges of the bill, are such as to vary the rights of the Plaintiffs with respect to the discovery to which they are entitled; in other words, whether, adopting the language of Lord Cottenham, the Plaintiffs have now, on the amended bill, made a special case connecting the discovery sought with the fraudulent act complained of, so as to take the case out of the ordinary rule. I think they have not. For such a purpose, it is essential that the act complained of, should, on the face of the bill, appear to be a fraud. Such was the case of Reynell v. Sprye. There, the client penned a letter to be copied and sent to him by the attorney, as if emanating from the attorney himself, with a view to its being shown to the Plaintiff, so as to lead him to sell his estate at an undervalue. Lord Langdale held that there was no privilege protecting the client or the attorney from producing this letter. So, in the present case, if the annuity had been forfeitable, not on any assignment or attempt to assign, but only on an assignment by way

of

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