to particular items, whether they were to be considered fixtures or not. Upon the finding of the jury as to value, and as to the forcible possession, the question arose whether trover lay against the defendant, entitled as he was to the premises under the mortgage deed. Colegrave v. Dias Santos, 2 B. & C. 76, was cited, and that case appears to me not materially distinguishable. The whole case here is, that the fixtures are attached to a house of which the defendant is at this moment in possession as mortgagee, and he, being so in possession, refuses to deliver the fixtures on demand. That is all the conversion. I am of opinion, that on such a case the plaintiffs are not entitled to recover. The rule must be discharged.

TAUNTON, PATTESON, and WILLIAMS, Js., concurred.

Rule discharged.

*DOE dem. RANDLE CHETHAM STRODE against SEATON [*171

and Others.(a)

Vendor had a draft of conveyance made by his own attorney, from which the deeds were afterwards prepared; the attorney was paid for this business by the vendor and purchaser in moieties by agreement, but the latter employed an attorney on his own part to look over the draft. It remained afterwards with the vendor's attorney: Held, that such draft was confidentially deposited with the latter, by the purchaser as well as the vendor, and could not be produced on a trial against the interest of the purchaser's devisees, though with the consent of the vendor and his attorney.

In ejectment, it appeared that the lessor of the plaintiff, to entitle himself to the property as heir at law, must deduce title through E. The title relied upon by the defendants was that of a party to whom E. had devised his remainder in the property, which remainder had been devised by J. to E. Among other evidence to identify the property in question with that devised by J., a book was offered in evidence, containing entries of receipts of rent of the property in question, by a deceased steward of E.: Held, that the defendants were entitled to produce these entries in evidence against the plaintiffs, each party claiming under or through E.

The defendants claimed by purchase from the heir of a devisee under E.'s will. The estate purchased was only a part of the property devised, and to which the steward's entries related: Held, that the defendants, although not entitled to the possession of the book, might insist upon having it produced in evidence as to that part of the property which had come to their hands.

Assessments of commissioners of the land-tax, by which it appears, that at a certain time property was assessed in the name of S. (the family surname only), are evidence to shew, in connection with other facts, that at such time the property was occupied by a particular individual of the family.

EJECTMENT for messuages, &c. At the trial before Lord Denman, C. J., at the last Bristol assizes, it appeared that the action was brought to recover possession of property in Broadmead, Bristol. The lessor of the plaintif claimed under the will of Colonel John Strode, executed in 1806, whereby the said John Strode (who at that time held the property now in question) devised all his manors and other messuages, lands, &c., whereof he was then seised or in possession for any estate of inheritance or freehold, to the use of his nephew Thomas Chetham, for life, remainders to the first and other sons, and to the daughters of T. C.; remainder to the testator's nephew Richard Chetham for life, with like remainders; remainder to the use of the testator's nephew Rancle Chetham (afterwards Randle Chetham Strode) the lessor of the plain[*172 tiff for life; remainders over. Colonel John Strode died, in possession of the property, and without issue, in December, 1807. Thomas Chetham (then Thomas Chetham Strode) entered into receipt of the rents, and died without issue in September, 1827, and Richard Chetham (then Richard Chetham Strode) died, also without issue, in August, 1828.

The defendants were devisees in trust under the will of John Weeks. As to

(4) This case was argued and determined on Saturday, Nov. 8th.

Weeks's title, it appeared that in 1796 Colonel John Strode granted to Samuel Thomas a lease of the premises in question for twenty-one years at a certain annual rent. Samuel Thomas died in 1800, leaving an only daughter, who took out administration, and sold and conveyed the unexpired term under the lease to John Hall. Hall, in 1802, conveyed his interest to Weeks, who took possession, and regularly paid the rent until, and for some time after, the death of Colonel John Strode. By deeds of bargain and sale and of release bearing date the 28th and 29th of September, 1813, Thomas Chetham Strode conveyed the premises to Weeks in fee. The deed of release gave, by way of recital, a deduction of Thomas Chetham Strode's title, by which it was made to appear that the estate of Colonel John Strode in the premises was only a term of ninety-nine years, if he should so long live; the reversion or remainder expectant on his decease being in Thomas Chetham Strode, and having become vested in possession in him upon the death of Colonel John Strode.

The plaintiff's counsel, in the course of their case, proposed to prove the conveyance from Hall to Weeks (which was by lease and release, passing the residue of Hall's unexpired term, with the fee-simple of other property,) for

*173] the purpose of showing, that in that conveyance *the demise from Colo

nel John Strode to Samuel Thomas was recited, and the reservation of rent therein stated to be "to the said John Strode, his heirs and assigns;" and they intended to rely upon this recital, as estopping those who came in under Samuel Thomas from claiming to retain the premises by a title adverse to that of Colonel John Strode as tenant in fee. Notice having been given to produce the original conveyance (which was not done,) the plaintiff's counsel offered to give in evidence the draft from which it was prepared, and with this view they called Mr. Palmer, a solicitor, who, as well as Hall, had been served with a subpoena to produce the draft. Palmer produced it, and gave the following evidence: "I was attorney for Hall, and prepared a conveyance to Weeks. I was attorney for Hall and Weeks jointly; they paid me in moieties." On reference to a memorandum which was shewn to him, he added, "Mr. Osborne perused this draft for Weeks: I was employed specially by Mr. Hall alone: Mr. Osborne acted for Mr. Weeks: they paid me jointly after it was finished. There was the usual communication by sending a draft, and receiving it back. I do not recollect the deeds being handed over, but have no doubt they were." Palmer and Hall did not object to the draft being read; but it was contended on behalf of the defendants, that, the preparation of this draft being a transaction in which Palmer had been engaged confidentially as the attorney of Hall, he ought not now to be called upon to produce or to give evidence respecting it to the disadvantage of those claiming under Hall: and Fisher v. Heming, 1 Phill. on Ev. 132, 6th ed., was cited. The Lord Chief Justice refused to admit the draft in evidence.

*174] *No evidence was given for the plaintiff, to shew how Colonel John Strode became seised of the property in question. The title of Thomas Chetham Strode was deduced, by the defendants, as follows. The property, as alleged, descended from Carew Strode, who died intestate in 1740, to his eldest son and heir-at-law, James Strode. James devised all his estates, including (as the defendants maintained) that now in question, to his brother, Major Edward Strode, for 99 years, if he should so long live; and after the expiration, or other sooner determination, of that term, to John Strode (the Colonel John Strode before mentioned), second son of the said Edward Strode, for a like term, remainder to the first and other sons of John Strode successively in tail male, remainder over (which never took effect), remainder ultimately to the testator's own right heirs. James died in 1749, leaving the said Edward, his only brother and heir-at-law, surviving him. Major Edward Strode, by his will, made in 1764, devised all his remainder or reversion in fee-simple of his estates devised by James, to his own eldest son Edward, for life; remainders over (which never took effect); remainder, ultimately, to his own daughters, Elizabeth and Ann,

in fee as tenants in common. He died in 1768, leaving his sons, Edward and John, and his daughters, Elizabeth and Ann, surviving him. Elizabeth married Lewis Boisdaune, and Ann married Thomas Chetham. Edward, the eldest son of Major Edward Strode, died without issue. Colonel John Strode, the second son, also died without issue. Elizabeth Boisdaune died intestate, leaving her eldest son and heir-at-law surviving her; and he afterwards, and after the death of Edward Strode, his mother's brother, by lease and release executed in February, 1793, conveyed all his *reversion or remainder in [*175 fee-simple expectant on the death of Colonel John Strode, and failure of issue of his body, to Thomas Chetham in fee. Thomas Chetham died intestate, leaving Ann, his widow, and Thomas Chetham (afterwards Strode), his eldest son and heir-at-law. Ann also died, leaving the said Thomas Chetham her heir-atlaw, who thereby (according to the defendants' case) became entitled to the reversion and remainder in fee expectant on the death of Colonel John Strode. Richard Chetham Strode, and Randle, the lessor of the plaintiff, were the second and third sons of Thomas and Ann Chetham.

Among other evidence to shew that the property now in question was part of the estates to which title was thus made, the defendants' counsel put in a steward's book, containing entries of quit rents, and other rents of the Strode property in general, and, among the rest, of the premises in question in the time of Major Edward Strode, from 1754 to 1767. The entries began, “John Lydford" (the steward) "for Edward Strode, Esq., 8th November, 1754; list of tenants and rents;" and, for this and several years following, the steward charged himself with rent received for the Soap-house (part of the property now claimed) from P. Bowen. Messrs. Hyett and Maskell, attorneys, had been engaged in the management of the property in the lifetime, and after the death of Colonel John Strode. Hyett retired, and Messrs. Maskell and Phipps continued in the same employment till the lessor of the plaintiff succeeded (as he alleged) to the estates, when they, at his desire, delivered up to him the papers in their hands relating to the property. The steward's book, however, was found in Mr. Phipps's possession, among some papers of the Strode family which were considered as rubbish papers, a few days before the trial. It was objected to this evidence, *that the book, to be offered at all, must [*176 be considered as coming from the custody of an attorney for the lessor of the plaintiff; and that such a document could not be produced from the custody of an attorney against his client. The Lord Chief Justice was of opinion, that the book, at the time of the conveyance to Weeks, was in the hands of Hyett and Maskell, as attorneys for Thomas Chetham Strode, and that, as he could not have objected to the production of it in evidence against him if required by Weeks, the present lessor of the plaintiff could not take such objection. He therefore admitted the evidence.

To identify the property in question still further, a clerk to the commissioners of land-tax produced assessments made upon occupiers of property during the lifetimes of James Strode and Major Edward Strode, in which the Soap-house and other premises named as in the steward's book, appeared to be assessed in the name of "Strode," merely, and afterwards in that of Bowen, the tenant; and the defendant's case was, that a part of these entries corresponded with those in the steward's book in point of time and description of occupation, and that some of the entries in the steward's book shewed allowances to have been made to Bowen for the corresponding charges of land-tax. It was contended that the assessments were not evidence; but the Lord Chief Justice received them subject to the objection.

His lordship, in the course of his summing up, stated to the jury that the lessor of the plaintiff had proved a prima facie seisin in fee in John Strode; that the defendants' case rested on the will of James Strode; and that the steward's book was evidence of Major Edward Strode having been possessed

of the property in question; he also referred to the land-tax assessments; *177] *and he left it to the jury to say, upon the whole case, whether Colonel John Strode enjoyed a life estate only, which he took under the will of James, or an estate in fee, which would entitle him to make the devise on which the lessor of the plaintiff rested his case. The jury found a verdict for the defend

ants.

Bompas, Serjt., in this term moved for a rule to shew cause why there should not be a new trial, on the grounds, that evidence had been improperly rejected and admitted in the instances above mentioned, and that there had been no evidence to shew that the property in question, alleged to have passed by the will of James Strode, had ever been in his possession. First, as to the draft of the conveyance to Weeks. It was not a subject of professional confidence. The preparation and approval of it were a transaction between two adverse parties; Palmer making the draft for Hall, and Osborne approving it on behalf of Weeks. What passes between opposing parties cannot be a confidential communication. (See Griffiths v. Davies, 5 B. & Ad. 502). This was in the nature of an agreement. Although it is usual for the purchaser to draw the conveyance, the vendor here caused the deed to be prepared; the draft remained in the hands of his attorney, and was the vendor's property; he, or his attorney, was bound to produce it, since it was no part of his title-deeds, Doe dem. Courtail v. Thomas, 9 B. &. C. 288; and if it had been one of his title-deeds, there was no reason that it should not have been produced, the owner being in court and making no objection. [PATTESON, J. How came the draft to be left in the attorney's

possession?] It is commonly done. [TAUNTON, J. It is so, but it *178] is an act of negligence. The draft is the client's property, (Ex parte Horsfall, 7 B. & C. 528)]. Secondly, as to the steward's book; the attorneys who produced it must be taken to have held it as attorneys for the lessor of the plaintiff, and could not be called upon to give it in evidence against their client. [PATTESON, J. They became possessed of it as attorneys for Colonel John Strode, not as attorneys for the lessor of the plaintiff.] If they continued to hold this book after he became entitled, they held it as his attorneys. Parties claiming under Weeks, who alleged himself to be the purchaser of a small portion of the estates, could not, on that account, demand the production of the book as evidence for them. [Lord DENMAN, C. J. Why not, if it related to that portion as well as to the rest of the property?] The entries of receipts, in this book, are not evidence against the lessor of the plaintiff, because he does not claim under James Strode or Major Edward Strode. Thirdly, the land-tax assessments were not available to shew that the property, supposed to be thereby referred to, was in the ownership of James or Major Edward Strode. Assessments in the name of "Strode" only, are no evidence. Doe dem. Stanbury v. Arkwright, 1 Nev. & Man. 731, (Post p. 182, note (a)). [PATTESON, J. That case does not shew that they are no evidence: it only shews that assessments in the name of "Strode" merely, would not prove any particular person to have been in the occupation. But the entries here are to be coupled with the evidence of the steward's book.] At any rate, they prove nothing as to James. The assessments were upon occupiers; and, therefore, those in the name of "Strode" *would, at most, only prove that, when they were made, per*179] sons of the name of Strode occupied, not that they were owners of the premises. And the tendancy of the evidence is to shew that James Strode was neither owner nor occupier. (He then went into the evidence on this point). TAUNTON, J. With respect to the first point in this case; it has been urged that the draft which remained in the hands of Palmer was not to be considered a privileged deposit. Whether this was so or not it is unnecessary to say, except thus far. I have always understood it to be a clear rule that a party is not bound to produce any deed in which he himself has an interest; though if his interest leads him to produce it, he then only exercises a power which the law of course gives him. In this case, Palmer, who held the draft, was the joint

agent of both vendor and vendee with respect to it. He could not produce it without the consent of both, and was not, therefore, compellable to do so, not having the consent of the parties representing Weeks. I am also of opinion that the steward's book was properly received in evidence, inasmuch as both parties in this cause claim under or through a person to whom this book belonged at the time when the entries were made. And as to the question whether the evidence supports the verdict, I cannot say that I think the lord chief justice did wrong in leaving the case to the jury, or that there is any distinct ground upon which the verdict ought to be disturbed.

PATTESON, J. As to the first point I had some doubt, but, looking at the whole evidence, I think it is clear that the draft could not have been in [*180 the possession of Palmer as attorney for the vendor in the ordinary course of business. It is not usual for the vendor to make the draft of conveyance. It is true that there was an attorney here employed for the vendor, but his employment was only for the purpose of approving the draft. Palmer, then, had an employment on behalf of the vendee, referring to the very particular thing which it was proposed to give in evidence. Now, if an attorney keeps a draft, he must keep it according to the nature of his original employment, and subject to the rights of both the parties (if two) by whom he was employed. One or the other of them has a right to say that he shall not produce it. If Palmer had been an attorney for the vendor, who had not prepared the draft, or if he had not been employed by the purchaser, I do not say that he might not have given evidence as to the contents of the deed; but his employment on behalf of the purchaser precludes him from it. On the second point, I think the steward's book was properly admitted. It is said that Major Edward Strode, in whose time the entries referred to in that book were made, is not a person under whom both the present parties claim; and that is true, strictly speaking. But both claim through him. The lessor of the plaintiff, who claims under Colonel John Strode, must derive the title of the latter through Major Edward Strode; and so also, according to their own case, must the defendants, who entitle themselves by the will of James Strode. The claim of the one party is through Edward; that of the other is under James and through Edward also. The argument on behalf of the plaintiff assumes that the defendants, who require the production of this book, are strangers; but Weeks, whom they represent, is in the situation of one of the family, for he purchased from Thomas Chetham Strode, and therefore had the same rights with res[*181 pect to the book as Thomas himself had. If Thomas could have given it in evidence, Weeks might also. He might not, indeed, be entitled to the possession of it, because it contained entries relative to other property; but he would have had a right to call for the production of it, so far as it concerned the property he had purchased. As to the question upon the general result of the evidence, the facts are numerous and complicated, but I see no reason to dispute the verdict.

WILLIAMS, J. I am of the same opinion. Palmer was employed by the purchaser to a certain extent, as well as by the vendor. His readiness to produce the draft could make no difference, for it has been long settled, that the privilege in respect of confidential communications is the privilege of the client. As to the steward's book, I think the defendants had clearly a sufficient interest in it to entitle them to its production. It would be very daring to pronounce as to the weight of evidence; it is sufficient to say, that the verdict is not shown to have been wrong.

Lord DENMAN, C. J. I will add nothing to what has been said by the rest of the Court upon the first point. As to the steward's book, I think it would have been a fraud in the family of Strode to wish to hold back from a purchaser the evidence which that book supplied. If it related to nothing but the property he had purchased, he clearly was entitled to the production of it: if it referred to other estates also, there is still no *reason that he should [*182