Chant v Brown
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 32
HIGH COURT OF CHANCERY
For subsequent proceedings, see 9 Hare, 790.
[79] chant .. brown. Jan. 12, 13, 15, 1849. [For subsequent proceedings, see 9 Hare, 790.] Confidential communications made by a party to his attorney or counsel do not ce'ase to be privileged by the fact that the attorney or counsel afterwards becomes interested as devisee of the property, to the title of which such communications related. Upon exceptions for insufficiency to the answer of a party who had been the attorney in the transactions impeached, and who refused discovery, on the ground of privilege, the Court cannot regard the subsequent consent of the client to the disclosure of the matters inquired after, for the question of sufficiency must be determined as of a time anterior to the exceptions. Exceptions to the sufficiency of the answers of Augustus Pulsford Brown and George Brown had been allowed by the Master, and were now argued upon exceptions to his report. The question was whether the professional relation in which the Defendants had stood, as attorney and counsel to a party in the transaction impeached by the bill, protected from discovery the matters in question, notwithstanding the circumstances that had subsequently taken place, and which had given the Defendants, the Browns, or one of them, a beneficial interest in the property in dispute. By a settlement made in 1805, upon the marriage of Edward Melton and Mary, his wife, the husband was (subject to the life-estates of himself and his wife) donee of a power of appointment of an estate at Westhill in ,the county of Devon, amongst the children, or such one or more of the children of the marriage as he should think fit, with remainder, in default of appointment, amongst the children equally. There were five children of the marriage, Richard, Mary, Jane, Elizabeth and Margaretta. Margaretta married the Plaintiff, Robert Chant. Edward Melton, the husband, died in 1834, and Mary, the wife, in 1847. The bill was filed by Robert Chant and Margaretta, his wife, alleging that Mary, one of the daughters, attained her age of twenty-one on the 21st of May 1828 ; that, shortly afterwards, Edward Melton, by some deed, duly executed and attested in the manner required by the power in the settlement of 1805, appointed the Westhill estate to Mary, the daugh-[80]-ter, absolutely; and that, by indentures of lease and release of the 12th and 13th of September 1828, made between Edward Melton and Mary, his wife, of the first part, Mary, the daughter, of the second part, John Timewell of the third part, and the Defendant, Augustus Pulsford Brown, of the fourth part, and by a fine, the Westhill estate was conveyed to John TimeweH in fee, by way of mortgage, for securing to him 4600. The bill alleged that the deeds and fine were executed in pursuance of a scheme of Edward Melton, the donee of the power, to raise money for his own use; and that Timewell was a party to such scheme, or had notice of the intended application of the 4600; and that the whole of such sum was accordingly paid to Edward Melton, and applied for his own purposes. It appeared by the bill and answers that John Timewell died in March 1836, having by his will devised his real and residuary personal estate to the Defendant, George Brown, and Francis Timewell, upon trust for the separate use of Mary, the wife of the Defendant, Augustus Pulsford Brown, for life, remainder to Augustus Pulsford Brown for life, determinable on his bankruptcy, and otherwise as therein mentioned, remainder to the children of Augustus Pulsford Brown and Mary, his wife | and the testator appointed the said Mary Brown, George Brown and Francis Timewell his executors. There were children of Augustus Pulsford Brown and Mary, his wife, but none of such children were parties to the suit; nor was the personal representative of Edward Melton a party. 7 HAKE, 81. CHANT V. BROWN ' 33 The bill charged that Timewell, the testator and mortgagee, had notice, before the advance of his money, of a fraudulent exercise of the power of appointment, as thereby alleged; and, as evidence of such notice, the [81] bill charged that the Defendant, Augustus Pulsford Brown, acted as the solicitor of Timewell and of Edward Melton, in the treaty for and preparation of the deeds of appointment and mortgage, and in the execution and completion thereof respectively, and thereby acquired a knowledge of the nature of the transaction; and that the same also appeared by an account current between Edward Melton and Augustus Pulsford Brown, in the possession of the latter. The bill sought to set aside the deed of appointment of May 1828, and the mortgage deed of September following, and the effect of the fine in favour of the parties who would, under the settlement of 1805, in default of appointment, be entitled to the Westhill estate. The Defendants, Augustus Pulsford Brown and George Brown, filed separate answers. Augustus Pulsford Brown said that he was, and continued to be, an attorney and solicitor, and that he acted as the solicitor of Edward Melton in the treaty for and preparation of said deed of appointment; and that George Brown, a barrister-at-law, acted as the counsel of Edward Melton in settling the draft of said deed of appointment. The Defendant said that he (Augustus Pulsford Brown) did not act as the solicitor of John Timewell in the treaty for a preparation of said deed of appointment; and that George Brown did not act as the counsel of John Timewell in settling the said draft; and that, to the knowledge or belief of the Defendant, John Timewell was not party or privy to the treaty for, or preparation, or making or executing of, said deed of appointment, and did not know, and was not in any way informed, that the same had been, or was about to be, made or executed, or that there was or had been any treaty for the same. The Defendant, Augustus Pulsford Brown, fur-[82]-ther said that he acted as the solicitor of Edward Melton and John Timewell in the treaty for and preparation of the said indentures of the 12th and 13th of September 1828, and the mortgage thereby made, and that George Brown acted as counsel of Edward Melton and John Timewell in settling the draft of the said indenture of the 13th of September 1828; but the Defendant said that he, the Defendant, was not consulted by, and did not act as the solicitor of, Edward Melton and John Time-well, or either of them, in,or about the treaty for or preparation of said indentures of the 12th and 13th of September 1828, or the mortgage thereby made; nor did George...
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