V. RAWLINS. [ 524 ] Now the very first question is one which I should think it very DESBOROUGH difficult for him to protect himself from answering, for he says Downes came to the office, but he objects to state whether he came with a particular letter in his hand; and then, upon reading the terms in which the defendant has put his refusal to answer, the first observation which suggests itself is, that if the reasons which he gives for that refusal be good, it is quite clear that the decision in Spenceley v. Schulenburgh (1) was wrong; for the party for whom the witness in that case was solicitor, and the party with whom he was dealing, were opposed to each other. On one side a person comes on the part of the plaintiff, and brings to the defendant's solicitor a certain paper, the contents of which the defendant's solicitor is called upon to prove; and the Court of King's Bench said that the privilege was restricted to communications, whether oral or written, from the client to his attorney, and could not extend to adverse proceedings communicated to him, as attorney in the cause, from the opposite party, in the disclosure of which there could be no breach of confidence. Suppose that it had been to or from Beetham personally that the letter had been communicated, the case would be exactly within Spenceley v. Schulenburgh; and the question would be, whether the solicitor, to whom, as solicitor, the communication was made, would be entitled to withhold it. The Court of King's Bench said he would not, because it was not confidential between himself and the party for whom he was solicitor. As to all the rest, I dare say this gentleman intended it to be supposed that the words were used in their ordinary sense. He has not pledged his oath to the circumstances under which he obtained the information, in such a manner as to show that it is to be considered privileged. It may be that the defendant (Francis Beetham) was present accidentally, and so heard what passed; but at all events those who claim the privilege are bound to bring their case within it. I cannot say, till I have learned how the defendant came to be present, who sent for him, and so forth, whether the communication was privileged. (1) 7 East, 357, [ 525 ] I say nothing as to what the result will be when the circumstances shall be more distinctly stated. The question I have to decide is, whether the defendants have on their answer protected themselves from the discovery: and I think that they have not. As to whether they were properly made defendants, I cannot enter into that question, because I find them defendants; and the only question before me is, whether being defendants, they have put in a sufficient answer: but I trust that nothing I say in this or in any other case will tend to promote the practice of making witnesses defendants to a suit. Exceptions to the Master's report over-ruled. 1838. June 15. Lord COTTENHAM, L.C. [ 526 ] [ 546 ] ADAMS v. FISHER (1). (3 My. & Cr. 526–549; S. C. 7 L. J. (N. S.) Ch. 289; 2 Jur. 508.) The production of documents scheduled to the defendant's answer is not enforced where they do not support the equity asserted by the bill. [THE facts of the case are concisely but sufficiently set out in the following judgment : Mr. O. Anderdon, in support of a motion for the production of documents by the defendant, on appeal from a refusal of the motion by the MASTER OF THE ROLLS.] THE LORD CHANCELLOR : As I understand the facts of the case, Fisher the solicitor was employed by Pinckard, he knowing, as he must have known, that in the transaction which was the subject of the suit, Pinckard was acting under a power of attorney from Adams: but still the retainer was entirely between Pinckard and Fisher. Pinckard settles the account with him. Then Adams says, I certainly have a right to an account against my trustee, and if he has improperly paid sums on account of the costs, they must, as a matter of course, be disallowed. The bill is then filed, and a claim made against the trustee, alleging that he has retained, on account of costs, more than he ought. Mr. Fisher, by his answer, denying all connection with the plaintiff, and all privity between them, the (1) Questioned in Swinborne v. Nelson (1853) 16 Beav. 416, 22 L. J. Ch. 331. question is, whether, in such a state of the pleadings, Adams is entitled to enforce the production of the documents mentioned in Fisher's answer. Now I took leave to ask Mr. Anderdon how far he carried the principle; and he very properly limits it within its due bounds; that is, he admits, as to every document not necessary to make out the plaintiff's equity, that the plaintiff is not entitled to see it. Whatever may make out the plaintiff's title he may have a right to see. The documents in question, however, are not to make out Adams's title to have the bills taxed, and the production of them could not possibly aid the assertion of the equity which Adams has asserted by his bill. [His Lordship then referred to and distinguished some cases which had been cited, but which had no real application to the case, and continued as follows:] As to Hardman v. Ellames (1), it is not very pertinent to the present case. It was certainly no new decision, and I was very much surprised to hear any one treat it as such; and when I came to look into the doctrines laid down in the books, I felt no doubt upon the subject. *Where a party has thought proper to put his defence upon a particular document, he himself having introduced it and put it forward, he cannot be permitted to make any representation of it, however unfounded, which he pleases; but the plaintiff is entitled to see whether the defendant has rightly stated it. It is because the defendant chooses to make it part of his answer that the plaintiff is entitled to see it; not because the plaintiff has an interest in it. The principle is, that a defendant shall not avail himself of that mode of concealing his defence. But, whether that decision be right or wrong, it is quite distinct from the present case. I apprehend it is a mistake to say that the documents scheduled are part of the answer: the schedule itself is part of the answer. All that the plaintiff asks is, that the defendant may set forth a schedule of the documents. Can you except, because he has set out the documents in the schedule instead of in the [answer] (2)? You did not ask that they should (1) 39 R. R. 344 (2 My. & K. 732). bill" was ADAMS v. FISHER. [ 548 ] [ *549 ] ADAMS v. FISHER. be set out in the [answer]. If that had been asked, the defendant must have defended himself in the regular way, and shown that he was not obliged to comply with your demand. But if the defendant sets them out in the schedule to his answer, the question is, upon the whole record, whether the plaintiff has such an interest in them as entitles him to call for their production? Here the defendant has denied the plaintiff's interest; he has, on the record, stated that which, as it stands, in my opinion excludes the plaintiff from instituting this suit against him. As long as that stands, I think the plaintiff is not entitled to see. the documents. Sir W. Horne and Mr. Bagshawe appeared for the defendant Fisher, but were not called upon. BERNAL v. BERNAL. (3 My. & Cr. 559–583; S. C. C. P. Coop. 55; 7 L. J. (N. S.) Ch. 115; 2 Jur. 273.) "Male children " in a Dutch will, held to mean "male descendants"; and "male descendants" held to mean, according to English law [and semble according to Dutch law also] descendants claiming through males only. [IN this case a question arose upon a foreign will whether the expression "male descendants," denoting a class taking by inheritance, was to be confined to descendants claiming through males only. The case, so far as it turned upon the special context of the will, is of no practical utility; but the judgment of the LORD CHANCELLOR Contains some general observations upon the meaning of the expression "male descendants," independently of the context, and the following passages from the judgment containing these observations are retained accordingly: THE LORD CHANCELLOR said:] It must be considered, for the purpose of ascertaining who are to take, in the nature of an inheritance; the qualification to take being derived from the parties' descent; and that qualification is being male descendants. The general class is, descendants; the qualification of the class is, being male. To entitle any one to claim, he must show that he is one of the favoured class; that is, one of the class of male descendants. A male, descended from a female of the family, would undoubtedly answer the description, as he would be a descendant and a male; but he would not be one of the class of male descendants. Such would be the ordinary acceptation of the terms. In speaking of a man and his male descendants, as a class, no one would conceive the son of a female descendant as included; and such is the construction which our law has put upon the words; as "issue male," which is, in fact, the same thing as male descendants. The case of Oddie v. Woodford (1) appears to me to be a strong authority for the same purpose; for although the word "lineal" was much relied upon, the force of that word was to mark the class to which the party was to belong, in contradistinction to the particular description of the individual. In no other sense could the term "lineal" be of any importance, as the party must have been lineally descended, whether descended through a male or a female; but, considering the word "lineal" as indicating the class, and therefore as meaning a descendant of the male line rather than a male descendant, the House of Lords held the grandson of the testator's second son (2) not to be entitled. In this case, it is clear that the testator is speaking of and describing a class; which brings it directly within the principle of Oddie v. Woodford. [His Lordship concluded his judgment by saying that he thought there was enough upon the face of the will to lead to the conclusion that the parties for claims were to be descendants in the male line.] ODDIE v. WOODFORD (3). (3 My. & Cr. 584-631; S. C. 7 L. J. (N. S.) Ch. 117.) 66 The designation of eldest male lineal descendant," held to be inapplicable to a male person claiming in part through a female. [IN this case the question was whether the expression "eldest male lineal descendant" was confined to a descendant claiming (1) See next case. (3) Lord Rendlesham v. Roberts (2) Being the son of a daughter of (1856) 23 Beav. 321. the testator's second son. 1821. Feb. 8, et seq April 7. 1822. Nov. 9, 10. 1825. June 23. [584] |