that those documents were prepared on behalf of Mr. Warde alone, at a time when he and his wife were dealing at arm's length with each other, and with reference to a matter in controversy between them: that Bury, in his answer, stated distinctly that he got possession of the documents in the character of Mr. Warde's solicitor; and the Plaintiff [26] must take that statement as she found it: Herring v. Clobery (1 Phil. 91; see judgment), Perry v. Smith (9 Mees. & Wels. 681).

Mr. Stuart, in his reply, relied on the concluding sentence of Mr. Baron Alderson's judgment in Perry v. Smith (Ibid. 683).

THE VICE-CHANCELLOR [Lord Cranworth]. The conclusion at which I have arrived in this case is that I cannot order these documents to be produced. I admit, however, that I have come to that conclusion with some reluctance.

I think that this case must be treated in the same way as it would have been if the Plaintiff, instead of being the wife of Mr. Warde, had been a stranger having a charge on his Warwickshire estates, and Mr. Warde, having entered into a contract for the sale of those estates, and finding himself embarrassed by that charge, had consulted his solicitor and taken the opinions of counsel as to the mode of getting the estate relieved from the charge; and correspondence had taken place between him and his professional advisers on the subject. Then there would be no doubt that, if the party entitled to the benefit of the charge afterwards adversely instituted proceedings, she could not compel him to produce that which had passed between him and his solicitor and counsel; because, whatever might have been the case formerly, it is now clear that anything that passes between a party and his legal adviser, whether in a cause or with a view to a cause, or with reference to a matter that afterwards becomes the subject of litigation, is a privileged matter, and that the client has a right to [27] say that the solicitor shall not disclose what passed. There can be no doubt, in that state of things, that the Plaintiff would not have a right to call for the production of the opinions and cases.

Then does it alter the case that the Plaintiff did not choose to employ a solicitor of her own, but chose to act on the advice of the same party who was giving advice to the person who was selling the estate? I think that makes no difference, unless you can bring it to this point, that the party having the charge and the party selling the estate employed the same solicitor in stating the cases and obtaining the opinions. Then the solicitor would be their joint solicitor, and there can be no doubt that either party might call for the production of those documents, for, in such a case as that, there would be exactly the same professional confidence with the one as with the other. But, unless you can bring it to that, the circumstance that the party having the charge chooses to rely on the advice of the same person as the party selling the estate is consulting does not seem to me to make any difference at all. It may make it rather more probable that he was employed by them jointly; but, unless you can bring it to that, it does not seem to me to vary the case.

Is it then different in the case of a wife? Now I put out of the question the husband and wife being, for many purposes, considered as the same person: a sort of legal fiction meaning that their interests are in a great measure identified. But I consider that that makes no difference at all, except so far as it would be a circumstance rendering it much more probable that the solicitor was employed as the common solicitor of both. But exclude that fact, and once establish that the soli-[28]-citor was acting only for the party selling the estate, then I think that the circumstance of the party having the charge being the wife of the party selling makes no difference. It makes it far more probable that the solicitor was employed for both, but, in any other respect, I think it makes no difference at all. And, that being so, I come to the conclusion that there is nothing here which amounts to an admission that any of these documents are documents which the Plaintiff is entitled to see. They are sworn distinctly by Mr. Warde, in his affidavit, to have been stated and taken on his sole behalf, and not on behalf of himself and any other person, which last words include his wife and the only way in which that is attempted to be met is the admission in the answer of Mr. Warde (and there is an exactly similar admission in the answer of Mr. Bury) that the Plaintiff had no separate solicitor or counsel, and that she entered into the arrangement for the release of the Warwickshire estates and executed the indenture of September 1845 under the advice of Mr. Warde's solicitor and counsel,

:

and without any other legal advice. It does not at all follow that she entered into it in pursuance of certain opinions that her solicitor, or the party acting for her, had taken. It is only the advice of the solicitor who, acting, in taking these opinions, for the husband, thought himself warranted in advising the wife to execute that deed, and she, upon that advice so given, does the act.

Whether, by amending the bill, any charge can be introduced shewing that Mr. Warde either had actually acted as her agent, or led her to consider that he was acting as her agent in taking those opinions, is a matter on which I need not speculate. Such a case might be made, but in the present state of the pleadings I think [29] that if the Plaintiff had been a stranger there is nothing to shew that these cases were stated on her behalf, and that the circumstance of her being the wife of the Defendant makes no difference. Consequently this motion, so far as it relates to the documents alleged to be privileged, must be refused.

[29] BOWKER v. BULL. Nov. 8, Dec. 2, 1850.

[S. C. 20 L. J. Ch. 47; 15 Jur. 4. See Dawson v. Bank of Whitehaven, 1877, 4 Ch. D. 650; 6 Ch. D. 218.]

Mortgagor and Mortgagee. Principal and Surety. Redemption. Tacking.

A. mortgaged his freehold and copyhold estates and some drainage bonds, and by the same deed his daughters mortgaged their freehold and copyhold estates to B. to secure £6000 lent by B. to A., and the deed declared that, without prejudice to any of the rights or remedies of B., his heirs, executors, &c., as between A., his heirs, executors, &c., on the one hand, and the daughters, and their heirs, executors, &c., on the other hand, A., his heirs, executors, &c., should be primarily liable to the payment of the £6000, and that his freehold and copyhold estates therein comprised should be primarily liable to answer and make good the £6000. Six years afterwards A. mortgaged his freehold and copyhold estates comprised in the prior mortgage, and also the drainage bonds, to B., to secure £700 lent to him by B. Held, that B. was not entitled, as against A.'s daughters, to tack his second mortgage to the first, but that the daughters were entitled to redeem the first mortgage on payment of the £6000.

By an indenture, dated the 11th of March 1836, the Defendant Bull mortgaged certain pieces of land situate in March, in the Isle of Ely, to Elizabeth Stevens, since deceased, in fee, for securing £400 and interest. By an indenture, dated the 3d of March 1843, he mortgaged the same pieces of land, subject expressly to Mrs. Stevens's security, together with certain copyhold lands and drainage securities, and his wife and two daughters mortgaged certain freehold and copyhold hereditaments, of which the wife was seised for life, with remainder to her daughters in fee, under the will of Eleanor Ward, to the Plaintiff, for securing £5600 and interest: and that indenture, at the end of it, declared that, without prejudice to any of the rights or remedies of the Plaintiff, his heirs, executors, administrators, or assigns, as be-[30]-tween the Defendant Bull, his heirs, executors and administrators on the one hand, and Bull's wife and daughters and their respective heirs, executors and administrators on the other hand, Bull, his heirs, executors and administrators should be primarily liable to the payment of the principal and interest monies intended to be thereby secured; and that the freehold hereditaments therein before described, but not comprising the hereditaments devised by the will of Eleanor Ward, and the copyhold hereditaments therein before described and covenanted to be surrendered, not comprising any copyhold hereditaments devised by the said will, should be primarily liable to answer and make good the same principal and interest monies. On the 5th of March 1844 the Plaintiff took a transfer of Mrs. Stevens's mortgage. By an indenture, dated the 9th of May 1849, Bull mortgaged to the Plaintiff all the freehold and copyhold hereditaments comprised in the before-mentioned securities of which he was seised, and also the drainage securities, for securing £700 and interest.

Mrs. Bull died in August 1849.

Under the orders of April 1850, the Plaintiff filed a claim against Bull and his two daughters, Eleanor Ann and Sarah Elizabeth, stating that, under an indenture, dated the 3d of March 1843, and made between Joseph Bull and Susannah, his wife, since deceased, of the first part, their two daughters of the second and third parts, and the Plaintiff of the fourth part, and of an indenture, dated the 5th day of March 1844, and made between Richard Baxter, the executor of Mrs. Stevens, of the first part, William Watts, the heir of Mrs. Stevens, of the second part, Bull of the third part, and the Plaintiff of the fourth part, and of an indenture, dated the 9th [31] of May 1849, and made between Bull of the one part, and the Plaintiff of the other part, the Plaintiff was a mortgagee of certain freehold and copyhold or customary property therein comprised, and also assignee of certain indentures therein mentioned (being charges on certain taxes (1)), for securing, altogether, the sum of £6700 and interest; and that the time for payment thereof had elapsed; and that Bull and his daughters were entitled to the equity of redemption of the mortgaged premises: and the Plaintiff therefore claimed to be paid the sum of £6700 and interest and the costs of this suit, and, in default thereof, to foreclose the equity of redemption of the mortgaged premises, and, for that purpose, to have all proper directions given and accounts taken.

Mr. Rolt and Mr. Toller, for the Plaintiff, said that the drainage securities were not mentioned in the declaration at the end of the deed of March 1843; and they contended that Eleanor Ann Bull and Sarah Elizabeth Bull were not entitled to redeem, except on payment of the £700 and interest, as well as the £6000 and interest.

Mr. Bethell and Mr. Osborne, for Eleanor Ann Bull and Sarah Elizabeth Bull, said that their clients were only sureties for their father; and that it was a wellestablished rule of a Court of Equity that, if a surety paid the debt of the principal debtor, he was entitled to the benefit of all the securities which the creditor held for the debt: Copis v. Middleton (Turn. & Russell, 224): and that it would be a violation of that rule to hold that their clients were not entitled to redeem the property comprised in the mortgage of March 1843 on payment [32] only of the principal and interest due on that mortgage. They referred also to Wright v. Morley (11 Ves. 12).

Mr. Cairns appeared for Bull, and

Mr. Shebbeare, for another party.

Dec. 2. THE VICE-CHANCELLOR [Lord Cranworth]. This was a claim of foreclosure by the Plaintiff against Mr. Bull and his two daughters as Defendants. I took time to consider a single point which was raised in the argument under these circumstances. By a deed of the 3d of March 1843, made between Joseph Bull and Susannah, his wife, of the first part, their two daughters and only children, Eleanor Ann Bull and Sarah Elizabeth Bull, of the second part, and William Bowker of the third part, reciting the will of Eleanor Ward, under which Mrs. Bull was tenant for life of a certain messuage called Westry House, situate at March in the Isle of Ely, with divers lands adjoining, with remainder after her death to her two daughters, the said Eleanor Ann Bull and Sarah Elizabeth Bull, as tenants in common in fee; and also reciting that Joseph Bull was seised in fee of two other estates in March or had an absolute power of appointing the same, subject only as to one of such estates, to a mortgage in fee, to Elizabeth Stevens, for securing a sum of £400 and interest; it was witnessed that, in consideration of a sum of £5000 advanced and lent by Bowker to Bull, and for a nominal consideration, Joseph Bull and Susannah, his wife, and their two daughters, conveyed all the above-mentioned hereditaments to Bowker in fee, subject, nevertheless, to a proviso for redemption [33] on payment of £5600 and interest on the 3d of March 1844. There was also a covenant to surrender, by way of further security, some copyholds held partly by Mrs. Bull and her daughters, under the will of Eleanor Ward, and partly by Joseph Ball, in connection with one of the before-mentioned freehold estates of which he was seised in fee. The deed also recites that Joseph Bull, in right of his wife, was entitled to indentures of assignment of taxes arising from fen lands in March; and

(1) The drainage securities.

then he and his wife assign these indentures to Bowker, subject to the same proviso for redemption on payment of the before-mentioned sum of £5000 and interest. The deed contains a power of sale (1) by Bowker, in case of default in payment of the sum secured or the interest; and, finally, there is a proviso that, as between Joseph Bull on the one hand, and his wife and daughters on the other hand, Joseph Bull should be primarily liable for the payment of the £5600 and interest; and the freehold and copyhold hereditaments of which he was seised in fee should be primarily liable to the same. It appears that in March 1844 Bowker obtained a transfer of the mortgage for £400 made originally to Stevens: and he thereby undoubtedly became first mortgagee of all the property, for securing £6000 and. interest. He is therefore clearly entitled to the ordinary decree of foreclosure of all the property comprised in his securities, as mortgagee for £6000.

The question arises whether he is entitled to consider himself as first mortgagee, on all or any part of the property, for a further sum of £700, by reason of a deed of the 9th of May 1849, made between Joseph Bull of the [34] one part, and Bowker of the other part, whereby, in consideration of £700 paid "by Bowker to Bull, he conveyed to him, by way of mortgage, all the property comprised in the prior securities of which he was seised in fee, and also the two assignments of taxes? On the part of the two children it was contended that Bowker must be postponed to them so far as relates to this latter charge: and I think that they are right. The children are, according to what appears on the face of the deed of 1843, mere sureties for their father. Bowker, when he took his further charge in 1849, had full notice of this; and, therefore, he could only take subject to such rights as the daughters had acquired by reason of their having concurred in the former deed. Now it is quite clear that a surety paying off the debt of his principal is entitled to a transfer of all the securities held by the creditor, in order that he may make them available against the debtor, as the original creditor might have done. On these grounds the daughters were certainly entitled, on paying off the £6000 mortgage, to have all the securities comprised in the deed of the 3d of March 1843 made over to them, in order to enable them to reimburse themselves, out of their father's separate property comprised in that deed, whatever portion of the £6000 they might have been obliged to pay and this is a demand certainly prior, in point of date, to the last mortgage. It was urged at the Bar, on behalf of Bowker, that this right of a surety is only a potential equity; which, though it may be asserted by the party himself, yet cannot bind third persons. But I cannot agree to this. The equity gives to the surety a right to call for a transfer of the securities, and so binds those securities into whatever hands they may come with notice of the charge.

:

[35] It was then further contended that, whatever may be the rights of the parties as to the land, yet that the doctrine could not be extended to the indentures of taxes: for that the proviso at the end of the deed, though it stipulated for a priority as to the former, was silent as to the latter. I cannot, however, agree to the proposition that the parties, by expressly mentioning one part of the security, have become bound to forego their rights as to the rest. It will be recollected that the mortgage contains a power of sale; and the proviso might, perhaps, have had reference to that power; that is all. The parties might have meant to stipulate that, as between Mr. Bull and his children, the latter should be bound to resort for their indemnity, in the first instance, to the land, and to the indentures of taxes only in the event of the primary fund, the land, proving deficient. Be this, however, as it may, I do not think that the sureties, by expressly mentioning a part of their rights, can be deemed to have waived or lost the entire right given them by the doctrines of this Court. The result is that there must be the usual decree of foreclosure against all the parties, mortgagors in the deed of 1843, as on a mortgage for £6000, and in case the sum found due is paid, then if all or any part is paid by the daughters or either of them, the securities must all be transferred to them, and Bowker can only make his subsequent security available by redeeming them in the ordinary way.

This is the clear opinion I had formed after the hearing: but my attention

(1) This power was not noticed in the papers with which the reporter was furnished.

was afterwards called by Mr. Lee as amicus curia to the cases of Barnes v. Racster (1 Youn. & Coll. 401), and Bugden v. Bignold (2 Youn. & Coll. 377); and, also, I was anonymously referred to a case of Higgins v. [36] Frankis, in the 10 Jurist, 328, before Sir James Wigram; and I wished to have an opportunity, before I decided this case, of referring to these authorities. I have now done so; but I see no reason to alter the view of the case which I had previouly taken. The two cases referred to in Youn. & Coll. were both cases where the same mortgagor had mortgaged different estates to various parties, some of whom had claims on one estate only, and others on all and the question was as to the rights of the different subsequent mortgagees to throw the prior mortgagees on particular parts of their securities. But the doctrine there acted on by Vice-Chancellor Knight Bruce does not seem to me applicable to a case like the present, of several mortgagors, and where the question is as to the right of the surety mortgagee against his principal. The case in the Jurist, before Sir James Wigram, is in strict conformity, as I understand it, with the principle on which I am now acting, except, indeed, that there Sir James Wigram directed the Master to inquire whether the party was a surety. That would be a perfectly useless inquiry here, and would only occasion unnecessary expense. It is not disputed that Joseph Bull alone is the principal debtor, and that the other parties are sureties. The decree must, therefore, give them a right as mortgagees against all the property of Joseph Bull, for whatever they may pay in redeeming the mortgage for £600; and then Bowker will be foreclosed against them, unless on payment of what is due to them in respect of what they shall so pay in discharge of the £6000 mortgage. If Bowker redeems them, the decree will go on in the usual way to direct an account of the principal and interest due to him on both mortgages, and in default of payment Joseph Bull will be foreclosed.

[37] _In_the_Matter of THE ACT FOR BETTER SECURING TRUST FUNDS AND FOR THE RELIEF of TRUSTEES Ex parte MARY ELEANOR DICKSON. Nor. 4, 20, 1830.

[S. C. 20 L. J. Ch. 33; 13 Jur. 282. See Evanturel v. Eranturel, 1874, L. R. 6 P. C. 30; Powell v. Bays, 1866, 35 L. J. Ch. 474; Hodgson v. Halford, 1879, 11 Ch. D. 966

Condition. Lega

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