William Freeman Phelps and Another against Benjamin Prew
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1854 |
| Date | 08 February 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1203
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 2 C. L. R. 1422; 23 L. J. Q. B. 140; 18 Jur. 245; 2 W. R. 258.
william freeman phelps and another against benjamin prew. Wednesday, February 8th, 1854. Defendant at the trial, called on a person, served with a subpceni, duces tecum, to produce a deed ; he declined, on the ground that he held the deed as attorney for a mortgagee, and that his client had directed him not to produce the deed, which was one of his title deeds ; and the Judge allowed the privilege. Defendant did not call the client as a witness, but proceeded to offer secondary evidence of the contents of the deed. The Judge received the evidence. In the course of the evidence it became necessary to shew the identity of the instrument, which the attorney refused to produce, with one which the witnesses, called to prove its contents, had seen. For this purpose the Judge compelled the attorney to shew the indorsement on the back of the deed ; the attorney and also the plaintiff objecting. Defendant had a verdict. On a motion for a new trial, - Held, that a sufficient foundation had been laid for the reception of secondary evidence without calling the client himself on the speculation that (a) The Court sat in bane on February 3d, 6th, 7th, 8th and 18th, 1204 PHELPS V. PRRW SEL.&BL. 431. he might waive his privilege.-Held, also, that the Judge did right in compelling the production of the deed for identification in the manner mentioned, as that did not involve any disclosure of its contents.-Semble, that, if he had violated the privilege of the mortgagee, it would have been no ground for a new trial at the instance of the party to the cause. [S. C. 2 C. L. R 1422 ; 23 L. J. Q. B. 140; 18 Jur. 245 ; 2 W. E. 258.] The declaration averred that Thomas Poole had an estate for life in certain premises in right of his wife, and demised them by deed to defendant for a [431] term of years, by which deed defendant became bound to keep the premises in repair during that term. That, during the term and during the life of Poole and his wife, Poole and his wife assigned to plaintiffs all their interest &c. in the reversion in the premises. Averments of the continuance of the lives of Poole and his wife, and of performance of all things necessary to entitle the plaintiff to have the covenant to repair performed by defendant. Breach that defendant, during the term, did not keep the premises in repair. Pleas. 1. That Thomas Poole had not an estate for life in the premises in right of his wife. 2. That plaintiffs were not during the said term grantees or assignees of the said tenements or of the reversion therein within the true meaning of stat. 32 H. 8, c. 34. Issues thereon. There were other pleas not material to the questions discussed in bane. On the trial, before Martin B., at the last Assizes for Somerset, it appeared that, in 1845, Poole and his wife, being in actual possession of the premises, demised them to defendant by deed for seven years from 25th March 1846, with a covenant in the lease by defendant to keep the premises in repair; and that, on 1st October 1851, Poole and his wife by deed conveyed all their estate in the premises to the plaintiffs. It was proved that defendant entered and enjoyed the premises for the whole term, and that the premises after 1851 were out of repair. The deed of conveyance to plaintiffs recited that the premises were subject to and charged with certain mortgage debts: and the habendum was, To hold to plaintiffs "subject and charged as hereinbefore mentioned." There was nothing in the conveyance shewing whether these mortgages were or were not prior in date [432] to the lease to the defendant, nor anything expressly shewing that the mortgages were legal mortgages. An objection was made on the part of the defendant that this deed did not prove the assignment of a legal reversion to plaintiffs. The learned Judge refused to stop the cause on this ground: and the defendants proceeded to prove, as their case, that, between the execution of the lease and assignment, Poole and his wife had, in December 1846, conveyed their interest in the premises by way of mortgage to a third person, and consequently that the immediate reversion did not pass to the plaintiffs. For this purpose a gentleman of the name of Dent was called on, under a subpcenti duces tecum, to produce a deed of December 1846. He stated that he had in court a deed of that date, but that it was in his custody as an attorney, and that his clients had instructed him not to produce the deed, which was one of their title deeds. He therefore refused to produce it. The learned Judge...
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