Russell v Jackson
| Jurisdiction | England & Wales |
| Judgment Date | 09 March 1852 |
| Date | 09 March 1852 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 558
HIGH COURT OF CHANCERY
S. C. 21 L. J. Ch. 146; 15 Jur. 1117. See R. v. Cox, 1884, 14 Q. B. D. 153; In re Postlethwaite, 1887, 35 Ch. D. 726; Williams v. Quebrada Railway, &c., Company [1895], 2 Ch. 757; Bullivant v. Attorney-General for Victoria [1901], A. C. 206.
[387] eussell v. jackson. July 26, 28, 29, Dec. 2, 1851. [S. C. 21 L. J. Ch. 146; 15 Jur. 1117. See E. v. Cox, 1884, 14 Q. B. D. 153; In re Postlethwaite, 1887, 35 Ch. D. 726 ; Williams v. Quebrada Railway, &e., Company [18951, 2 Ch. 757 ; Sullwant v. Attorney-General for Victoria, [1901], A. C. 206.] The reasons of the rule which protects from disclosure communications made in professional confidence apply in cases of conflict between the client or those claiming under him and third persons, but do not apply in cases of testamentary disposition by the client as between different parties, all of whom claim under him. The privilege does not belong to the executors as against the next of kin, but, following the legal interest, is subject to the trusts and incidents to which the legal interest is subject. On a bill by the next of kin of a deceased party against his executors, who were his residuary devisees and legatees, alleging that the gift of the property was made to them upon a secret trust for the foundation of a school, the solicitor of the testator, who was also, after the death of the testator, the solicitor of the Defendants, the executors, was examined as a witness for the Plaintiff. On a motion by the Defendants to suppress the depositions of the solicitor on the ground of professional confidence : Held, that the communications between the testator and the solicitor might be read; and that the communications between the Defendants, the executors, and the solicitor, after the death of the testator, were privileged. A privilege given for the protection of the client cannot have the effect of excluding evidence of a trust which he had intended to create, and thus defeat a claim by the parties who accepted the trust, to hold the trust property beneficially. Communications between solicitor and client, through the medium of an agent, are protested equally with communications had directly with the principal. The existence of an illegal purpose would prevent any privilege from attaching to the communications between solicitor and client-semble. This was a motion on the part of the Defendants, William Jackson and Thomas Aston Jackson, to suppress the depositions of Solomon Bray in answer to the 13th interrogatory under the first commission, and to the 6th, 7th, 8th, 9th, llth, 12th and 13th interrogatories under the second commission for the examination of witnesses in the cause. The motion had been ordered to stand over until the hearing, and was now made, the case having been opened and the evidence in question tendered for the Plaintiff. Joseph Eussell, the testator in the cause, 'by his will, dated the 8th of July 1840,, f ave the residue of his estate, to the Defendants, William Jackson and Thomas Aston ackson, as a testimony of his esteem for them, and as a compensation to them for their trouble as his executors; and appointed them to be the executors of his will. The bill was filed by one of the testator's next of kin, alleging that the gift of the residue to the Defendants, the Jacksons, was upon a secret trust for founding a Socialist-school at Birmingham; and that the gift was made upon the undertaking by the Defendants to carry that purpose into effect, and praying relief accordingly. [388] Solomon Bray, the witness whose depositions the motion was made to suppress, was the solicitor by whom the will was prepared; and after the death of the testator he acted as the solicitor of the Defendants, the Jacksons. Upon his examination under the first commission he stated in his answer to the 13th interrogatory that the testator gave the residue to the Defendants, intending them to hold it upon a secret trust; but he demurred to the question what was the nature of the trust ^ and he also demurred to various other questions which were put to him, as to the instructions for the will and the mode in which it was prepared, and the communications which he had with the testator and with the Defendants, the Jaeksons, 9 HARE,389, BUSSELfc V. JAC&SQN 559 respecting it, assigning, as grounds :of demurrer, that lie had acted in the matters in question as the solicitor,of the testator and of the Defendants, the Jacksons, respectively. This demurrer, having been set down for argument, was overruled by the Court, no one appearing to support it; and upon his examination under the second commission the witness stated that the general purport and effect of the instructions which he received for preparing the testator's will were declaratory of his intention to leave his property for the purpose of establishing a school for the education of children in the doctrines of Socialism, and, so far as the witness recollected, according to the principles of Robert Owen; and that the instructions contained the scheme on which the testator intended that the proposed school should be conducted. That, upon receiving the instructions, which it appeared by the first examination had been brought to him by the Defendant, William Jackson, he intimated to that Defendant doubts whether the law would permit such a disposition of the testator's property as was contemplated by the instructions in respect of the school. That, upon his subsequently seeing the testator in the presence, as he best recollected, of both the Jacksons, he referred to the instructions and repeated his doubts as to the legality of the [389] intended disposition; and that the testator then said that, having confidence in the two Defendants, he would leave his property to them, being satisfied that they would carry out his intentions, which they well knew; and that the Defendant, William Jackson, assented to this; and that the Defendant, Thomas Aston Jackson, if he was present, did not dissent from it. That he inserted a power of sale in the will, which would not have been necessary but for the purposes agreed upon between the Jacksons and the testator; and that, at the time of his delivering over to the Defendant, William Jackson, the instructions for the will, which by the former examination appeared to have been upon an occasion of his seeing that Defendant on matters of business after the death of the* testator, he told that Defendant he would require the instructions to enable him to carry out the testator's intention. Mr. Maiins and Mr. Speed, for the Plaintiff. Mr. Walker and Mr. Kirkman, for the Defendant heir at law, who was also one of the next of kin of the testator. the solicitor-general and Mr. W. M. James, for the Attorney-General. Mr. Rolt and Mr. E. F. White, for the Defendants, the Jacksons, in support of the motion to suppress the depositions. The authorities cited against the admission of the depositions were: Wilson v. Rastall (4 T. R. 753), Qromack v. Heathcote (2 Bro. & Bing. 4), Chant v. Browne (7 Harer 79), Jones-f.Pugh(l Ph. 96), Beer v. Ward (Jac. 77, 82), Cholmondeley v. Clinton (19 Ves. 261), Flight v. Bobin-\3Q$\-son (8 Beav.,22), Herring v. Globery (1 Ph. 91), Wheatky v. Williams (1 M. & W. 533), Doe v. Harris (5 Car.. & Pay. 592), Bex v. Withers (2 Camp. 578), Turquand.v. Knight (2 M. & W, 98); Taylor on Evidence, vol. 1, p. 627 ; Phillipps on Evidence, vol. 1, p. 171, 9th edik Against the motion to suppress the depositions : Bramwell v. Lucas (2 B. & C. 745),, Follett v. Jefferyes (1 Sim. (N. S.) 1), Desbormigh v. Bawlins (3 My. & Cr. 515), and Walker v. Wildman (6 Madd. 47), were cited. the vice-chancellor. [Sir G. J. Turner] (after stating the nature of the suit and the depositions of Solomon Bray, which have been mentioned). The question is whether the statements- thus made by this witness, or any of them, ought to be received in evidence against these Defendants. This question must be separately considered with reference to the communications which were had in the lifetime of the testator, and those which were had after his decease; but I do not think that, with reference to the communications which were had in the testator's lifetime, any distinction can properly be made between the communications which were had with the testator and those which were had with the Defendant, William Jackson; for I think that the Defendant, William Jackson, in the communications then had with him, must be considered to have acted as the agent of the testator, and as the channel of communication between him and the witness; and I think that the protection which the law throws round communications of this nature extends to them when had through the medium of an agent, as [391] far as it...
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