Pearse v Pearse
| Jurisdiction | England & Wales |
| Judgment Date | 23 December 1846 |
| Date | 23 December 1846 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 950
HIGH COURT OF CHANCERY
S. C. 16 L. J. Ch. 153; 11 Jur. 52. See Thompson v. Falk, 1852, 1 Drew. 26; Manser v. Dix, 1855, 1 K. & J. 454; Minet v. Morgan, 1893, L. R. 8 Ch. 367; Lyell v. Kennedy, 1883, 9 App. Cas. 228.
[12] pearse v. pearse. Nov. 24, Dec. 9, 22, 1846. [S. C. 16 L. J. Ch. 153; 11 Jur. 52. See Thompson v. Falk, 1852, 1 Drew. 26; Manser v. Dix, 1855, 1 K. & J. 454 ; Minet v. Morgan, 1893, L. E. 8 Ch. 367; Lyell v. Kennedy, 1883, 9 App. Gas. 228.] Upon settling interrogatories for the examination of a vendor in the Master's office, on a question of title between vendor and purchaser : Held, that the vendor was not compellable, at the instance of the purchaser, to state his motive for making a certain appointment, or to disclose confidential communications made by him to his solicitor and counsel respecting the property, although such communications were made merely on behalf of the consulting person singly, and were not made during a suit, during a dispute, or after the threat of a suit. Quaere, whether the client is compellable to disclose any confidential communication between him and his solicitor or counsel, which his solicitor or counsel would be privileged in refusing to disclose 1 òCases laid before counsel, on behalf of a client, stand upon the same footing as other professional communications from the client oil the one hand to the counsel or 1DEG.&SM.13. PEARSE V. PEAKSE 951 solicitor on the other; and, as far as relates to any discovery by the counsel or solicitor, the question of the existence or non-existence of any suit, claim or dispute, is immaterial. Mark Broadfoot Westron being entitled to an estate, called the Barrow estate, for his life, with remainder to the child or children by his late wife, Jenny Westron, as he should appoint, and for default of such issue to himself in fee, and being also entitled in fee-simple to an estate called the Munscombe estate, mortgaged his interest in both estates for £2300. [13] Afterwards, on the 10th of July 1834, there being then seven children of the marriage of Mr. Westron and his late wife, and the eldest of them, Jane Morse Westron, being of the age of twenty years and three months, Mr. Westron executed a certain deed-poll, whereby he appointed the Barrow estate, subject to his life-estate therein, to Jane Morse Westron, in tail, with a proviso making void the appointment in the event of her dying under the age of twenty-one years. Jane Morse Westron attained her age of twenty-one years in April 1835, and on the 5th of May she, by certain articles of agreement under her hand and seal, in consideration of £1900, in the articles stated to have been advanced to her and her father, agreed to charge her interest in the Barrow estate with the repayment thereof. In April 1836 the two sums of £2300 and £1900 were paid off, and a further sum of £300 advanced to her and her father, making, together £4500. To secure the repayment of these sums the daughter barred the entail in the Barrow estate; and a mortgage of that and the Munscombe estate was effected by means of indentures of lease and release dated 12th and 13th of April 1836. In 1838 Mr. Westron and his daughter executed a second mortgage of these estates for securing £1000. Miss Westron, by her will, dated the 23d of May 1839, devised the Barrow estate to her father, in fee, and died on the 4th of July following. The Barrow and Munscombe estates being the subject of sale in the present suit, and the foregoing circumstances connected with the Barrow estate having appeared upon the abstract, the Master expressed an opinion adverse to the title of the vendor, Mr. Westron, to that estate. By an order, dated the 22d of December 1845, made upon the petition of the vendor, it was ordered that it should be referred to the Master to inquire and state to the Court whether a good title could be made to the Barrow estate, and if so, at what time it was first shewn that [14] such good title could be made, &c. And for the better discovery of the matters aforesaid, the Petitioner and all other parties were to produce before the Master, upon oath, all deeds, books, papers and writings in their custody or power relating thereto, and were to be examined upon interrogatories as the Master should direct. In pursuance of this order interrogatories for the examination of the vendor were prepared on behalf of the purchaser; and such interrogatories having been settled and allowed by the Master, the vendor took exceptions to the Master's certificate of allowance. The interrogatories commenced with an inquiry (which was not excepted to) whether, at the time of the vendor, Mr. Westron, executing the deed-poll of the 10th of July 1834, there was not some agreement, expressed or implied, between him and his daughter, Jane Morse Westron, that he should execute such appointment in her favour as therein contained, and that she should, upon her attaining twenty-one, or at some time, concur with him in raising the sum of £1900 (subsequently raised by him and her on the security of the articles of agreement of the 5th of May 1835), by mortgage of their respective estates and interests in the premises comprised in such deed-poll; and whether there was not some agreement that she should subsequently further secure the mortgage debt then secured upon Mr. Westron's life-estate and interest and reversion in fee of the premises, by joining in a mortgage in fee of the said premises in the manner expressed in the indentures of the 12th and 13th days of April 1836; or whether Mr. Westron did not, at the time of his executing the said deed-poll, expect that his said daughter would join in raising the said sum of £1900, or some sum of money, or in securing such mortgage debt. The passage which was the subject of the second exception (the first exception 952 PEARSE V. PEABSE 1DEO. &SM.15. being general) was as follows:-" What was your motive x r object in making the appoint-[15]-ment to your daughter contained in the said deed-poll, and in particular in appointing to her an estate tail in the said premises, and in making such estate defeasible in the event of her dying under twenty-one as therein expressed ?" The third exception was to a passage inquiring as to the number, age and property of the other children of the marriage. The fourth exception related to an inquiry as to conversations with the daughter relative to the appointment, raising the money, &c. The following passages, which were preceded by an inquiry as to who was the solicitor or solicitors employed by the vendor in and about the preparation of the deed-poll, articles of agreement and mortgage, formed the ground of the fifth and sixth exception :-" Did not any, and what letters or correspondence, pass between you and such solicitor and solicitors relative to such, appointment, articles of agreement and indentures of mortgage, respectively 1 If yea, what was the purport and effect of such letters and correspondence as you know or believe, and are or is such letters or correspondence now in your possession or power 1 If yea, produce the same; if not, declare what has become of and when last you saw or heard of the same. What conversation or conversations passed between you and such solicitor or solicitors relative to the said appointment, articles of agreement and indentures of mortgage, respectively 1 Did not you or your said solicitor or solicitors, by your order, lay or cause to be laid before Mr. Jacob Phillips, and whether or not before Mr. Preston, or some other gentleman or gentlemen, as counsel respectively, some, and what case or cases, statement or statements, or instructions relative to the appointment contained in the said deed-poll, or to the security effected by the said articles of agreement and indentures of mortgage respectively, or to any other matter or thing consequential upon or incidental thereto; and whether or not the drafts of the said instruments respectively 1 If yea, what has become of...
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