KINDERSLEY, V.-C., said that it had been decided that a gift to the children of A, simply, would make them joint-tenants, even although after-born children were included. The question was, as to the effect of the words, as they should come of age." In Woodgate v. Unwin (loc. cit.), it was decided, that if the interests did not vest till twenty-one, there was a tenancy in common. In Kenworthy v. Ward (loc. cit.), Vice-Chancellor Wood said, that it was impossible to reconcile Woodgate v. Unwin with the general current of authorities, if the principle laid down in that case was, that where there was a gift to children on attaining twenty-one, the mere circumstance of these children coming into esse at different periods was of itself sufficient to convert the joint-tenancy into a tenancy in common. But in Macgregor v. Macgregor (loc. cit.), Lord-Justice Turner said that Woodgate v. Unwin was not decided on that principle, but on the principle that in order to constitute joint-tenancy the property must vest at once, and not at twenty-one, as otherwise some co-tenants might take vested and other contingent interests. Woodgate v. Unwin was therefore not at variance with the other authorities.

It

was clear that the interests given by the will to

Charles White and Jane White were not vested till twenty-one; so that, in accordance with the cases, his Honour held that the will created a tenancy in common, and that by the death of Charles White under twenty-one, the gift to him had lapsed.

Will-Secret Illegal Trust-Legal Estate. A devise, accompanied by a secret illegal trust, passes the legal estate to the devisee.

9 Geo. 2, c. 36, s. 3.

Robert Hicks devised real estate to Mary Hicks for life, remainder to Henry Sweeting and John Sweeting

in fee.

Robert Hicks died in 1825, leaving John Hicks his heir-at-law; John Hicks died in 1827.

John Sweeting died in 1838; Henry Sweeting, by a will dated 1847, devised his real estate to the plaintiff and the Rev. Henry Sweeting, upon certain trusts therein declared, and died in 1848; and the Rev. Henry Sweeting died in 1856.

Baily, Q.C., and Renshaw, for the plaintiff, contended that he was a trustee, and therefore entitled to the relief asked. The legal estate passed by the will, Lewin on Trusts, 54 (4th ed.).

Osborne Morgan, for the cestuis que trusts under the will of Henry Sweeting, supported the same view, and contended that, as no heir-at-law could be found, they were entitled to the beneficial interest, for there could be no equitable escheat,

Burgess v. Wheate, 1 Ed. 223.

Wickens, for the Crown, did not dispute the autho rity of Burgess v. Wheate, notwithstanding the dicta of the Master of the Rolls in,

Barrow v. Wadkin, 24 Beav. 23; but he contended that the plaintiff had neither legal nor equitable interest, and, therefore, the bill ought to be dismissed. The legal devise was void, 9 Geo. 2, c. 36, s. 3. Baily, Q. C., in reply.

The following cases, in which the Court had dealt with secret illegal trusts, were also cited :Adlington v. Cann, 3 Atk. 141;

Edwards v. Pike, 1 Ed. 267;

KINDERSLEY, V.-C., said that the meaning of the expression "secret trust" was, that there had been a promise, either express or implied, by the devisee to the testator to the effect that the devisee would deal with the property according to the wishes of the testator, although nothing but a simple devise appeared in the will. Suppose a testator devised to A, who agreed that he would convey to B; B could come to this Court and, while admitting the legal devise, could obtain relief on the ground that it would be against conscience and good faith for A to claim to be owner, and to contend that nothing could be imported into the will. But if A had not made any promise to the testator, a mere expression of the intention of the testator could not, unless it appeared in the will, give any right to B. That was the simplest case. But now import into the case the circumstance that the under The plaintiff, being in possession, filed this bill, standing was that the devisee should convey to a charity. admitting that the devise to Henry Sweeting and John Unless the Statute of Mortmain contained anything Sweeting was made under an understanding with altering the state of things, the same principle must them, that they would convey the property to or in be applied. A Court of Law could not declare such favour of the Free Grammar School at Godmanchester, a trust, and could not even look at the circumstances and praying that the rights of persons interested in which would constitute such a trust: such a Court the devised property might be declared. could only look at the will itself. Now the Court The question was, whether the will had passed the of Equity looked upon the legal devise in the same legal estate.

Mary Hicks died in 1862, and no heir of John Hicks

could be discovered.

manner as a Court of Law. The Court held that a

party was entitled to come here on the ground that it would be against conscience that the devisee should hold the property for his own benefit; and, as what was intended could not take effect, the Court would decree a trust for the heir.

A summons had been taken out for the 10th of July last, and the witness attended. The examination was adjourned till the 20th; but the witness, having received notice from the plaintiff that the examination would not then be proceeded with, did not attend. No adjournment of the examination was made.

Faber now moved that the witness might be ordered to attend, and cited,

That was according to the general scope of the cases. There was no instance in which an heir-at-law had An appointment was afterwards made by the plaintiff attempted to go into a Court of Law, but there was for the 25th of November, and on the 21st a notice case after case in which the heir had come here. If thereof was served on the witness, and an insufficient there were a legal remedy, every one of those cases tender of money was left with him, which he refused to would have been wrongly decided; for where the legal accept, and on the 25th he did not attend the examiremedy was adequate the Court would send parties to nation. a Court of Law. It was urged that in Adlington v. Cann (loc. cit.) it appeared that there was an idea in the mind of the Judge of a legal right in the heir; but it was not fair to say that. In Adlington v. Cann there was a bequest of leaseholds, &c., as well as real estate, to one who was executor, and to whom also personal estate was given; and in respect to that alone the Court might entertain his bill. Lord Hardwicke having thought that a secret trust was not made out, gave the heir-at-law an opportunity of going to a Court of Law, of which, however, she did not avail herself.

Payne v. Hall (loc. cit.), before Lord Eldon, had been referred to as showing that the heir had a legal right; but such an idea would be contrary to all the

decisions of Lord Eldon.

His Honour said that, in accordance with recent decisions and the general opinion of the profession, and in the absence of any decision to the contrary, he was of opinion that the devisees took the legal estate, and therefore had a right to come to the Court for relief.

With respect to the doubts that had been thrown upon Burgess v. Wheate, his Honour thought, as it had been an authority for so long, and so many titles must depend upon it, that great evil would arise from overruling it; but he was not expressing any opinion as to whether an alteration of the law by the Legislature would not be desirable.

His Honour dismissed the bill as against the Crown, but said, that inasmuch as the Crown had, in combating the plaintiff's right to come into the Court, been in effect contending that the legal estate was in the heir, and therefore that the property escheated, the dismissal would be without costs.

35 Gen. Ord. r. 14.

Osborne, Q. C., and J. T. Humphrey opposed the motion, on the ground—

1st. That, as the examination had been discontinued without adjournment, the witness was not bound to attend again without a fresh sunimons.

2nd. That the tender was insufficient.
Faber, in reply.

KINDERSLEY, V.-C., said that there was nothing in the rules or orders of the Court directing how an ex

amination should be continued when it had not been

adjourned; and therefore he should follow the practice in Chambers, which, upon inquiry, he found required, under like circumstances, that a fresh summons should

be taken out.

Minute.-Motion refused, with costs.

Wood, V.-C.

10 DEC. 1863.

WALSHAM v. STAINTON (2). Practice-Production of Documents-Privilege -Accountant's Reports.

On summons to produce documents used by defendant in a former litigation in which the same matters were in question:

Held, 1st. That drafts of answers, affidavits, &c., filed were protected.

Held, 2nd. That counsel's briefs, except instructions and observations for counsel, and remarks by counsel, were

| not protected, but would not be ordered to be produced so far as they contained copies of documents otherwise produced.

Held, 3rd. That accountant's reports, and semble, also extracts made by accountants from the accounts, were protected.

An accountant employed by a solicitor in getting up the defence is the solicitor's clerk pro hac vice.

This case came on on summons adjourned from Chambers, for the production of certain documents. The object of the suit (which is reported on demurrer,

2 N. R. 312, and 1 H. & M. 322, and ante, p. 56,) was to set aside the sale of certain shares in the Carron Iron Company, alleged to have been bought by H. Stainton and J. Stainton at an undervalue, in consequence of their frauds upon the company. These frauds by the Staintons had been the subject of previous litigation in this Court, to which the Carron Company had been parties (see Stainton v. The Carron Company, 24 Beav. 346; Maclean v. Dawson, 27 Beav. 21, 25). The company were also defendants in the present suit.

66

The company having been required to make a further affidavit as to documents, filed an affidavit objecting to the production of certain documents specified in the schedule, on the grounds that they consisted of confidential communications, which passed between the agents of the company on the one side and the legal advisers of the company on the other side, or between the several legal advisers of the company, and of documents confidentially prepared on behalf of the company by such legal advisers, or under their direction," as to part for the purpose of the suit of Stainton v. The Carron Company; and as to the remainder for the purpose of the suit of Maclean v. Stainton, and other similar suits.

Rolt, Q.C., and Cotton, for the Carron Company, contended that even extracts and compilations from the accounts would be protected. The very juxta position of the items selected by the accountant might give the plaintiff an insight into their case, Steele v. Stewart, 1 Ph. 471.

WOOD, V.-C., said that the present case came within a principle which was sufficiently established-the principle, namely, that where a solicitor employed in a case of great difficulty, found that a portion of the work was of too intricate a character for him to advise upon it, and called in some person, such as an accountant, to assist him, that person was treated as the solicitor's clerk pro hac vice, as it was put by Lord Lyndhurst in Steele v. Stewart (loc. cit.). The London Gas Light Company v. Chelsea (loc. cit.) had no direct application to the present case; for it did not appear from the report of that case whether the reports there in question were prepared for the purpose of the litigation, or, in fact, for what purpose they were prepared.

With regard to the drafts, they must be protected. When the answer was filed it became publici juris, but the drafts were anterior to publication, and the successive alterations in them might disclose the exact

The documents, the production of which was sought character of the confidential communications between and objected to, were

the client and solicitor, preparatory to framing the

1st. Drafts of answers and affidavits filed in the documents to be put on the file. former suits.

2nd. Briefs of counsel used in those suits.

3rd. Reports of an accountant prepared for the purpose of the defendants' defence in the same suits.

The items under the last head principally referred to were described in the schedule as "a report by Henry Chatteris, accountant, and five accounts referred to in it, and supplemental report by him, and account referred to in it as part instructions for answer,' "copy report prepared by the above-named Henry Chatteris,' and 66 sums improperly withdrawn by Henry Stainton."

[Wood, V.-C., referred to,

Curling v. Perring, 2 My. & K. 380.] That was a case of a witness. There was nothing to show that these documents were prepared by the accountant with a view to his giving evidence as a witness. It must clearly appear from the description of the document in the schedule, that it was privileged. [Wood, V.-C., referred to a similar case which had come before him at Chambers. He had there held that the accountant's reports and observations were privileged, but the accounts themselves and all extracts from them made by the accountant must be produced.]

Then, with regard to the briefs to counsel, if the identical things briefed were documents of which office or other copies were already given, the Court would abstain from ordering production of those briefs, at the mere risk of doing something beyond the privilege of solicitor and client. But so far as the briefs contained copies of things which were publici juris, and not otherwise produced, they were not protected. The instructions, however, and observations for the benefit of counsel, and the remarks of counsel, and even their pen-marks would be protected; for the other side were not entitled to know the advice given in that form, any more than any other kind of advice.

With regard, lastly, to the most important class of documents sought to be protected, those various reports of Henry Chatteris, it was distinctly sworn in the body of the affidavit, that they were documents confidentially prepared in the previous litigation by the legal advisers of the defendants, or under their direction. Now, the Court was entitled to look into the schedule to see if the description of the particular documents corresponded with the general description given in the body of the affidavit; but it was not requisite, as contended by Mr. Giffard, that it should from appear the description in the schedule that they were necessarily of a character to be protected. It was enough if the Court by reasonable intendment could hold that the documents were of the character positively sworn to in the body of the affidavit. There was nothing in the particular description of those documents in the schedule, which in any way contravened the general

Duke of Ancaster v. Mayer, 1 Bro. C. C. 454; but, as the mortgagee required better security, they

other estates being included in the mortgage alter his be paid out of the testator's residuary personal estate