H. C. OF A 1906. BAYNE 2. BLAKE. come into a matter of this kind the Court is more inclined to deal with it on the ground of public policy : Taylor v. Taylor (1). This particular deed of indemnity is void because of the situation of the parties towards one another. The appellants were under the dominion of their sister Grace Bayne, whose duty it was to see that the appellants had independent advice. Then the respondents, being solicitors for Grace Bayne, were bound to see that she had independent advice. Further, as the respondents are seeking to take advantage of the indemnity procured by Grace Bayne from the appellants, it was the duty of the respondents to see that the appellants had independent advice. Although there is a finding that the respondents were not solicitors for the appellants that is more a question of law than of fact. The requisites to support a contract of this sort between a solicitor and his client are stated in Wright v. Carter (2), viz. :--(1) That the client was fully informed; (2) that he had competent independent advice; and (3) that the price given was a fair one. As to the duty to see that independent advice is had, see Huguenin v. Baseley (3); Alleard v. Skinner (4); Dent v. Bennett (5); Harvey v. Mount (6); Hatch v. Hatch (7); Liles v. Terry (8); Rhodes v. Bate (9); Moron v. Payne (1); Wright v. Carter (2); Willis v. Barron (11). The last case shows that it is not necessary that there should be any special employment of a solicitor in order that the principle should apply; it is sufficient that confidence should be placed in the solicitor. See also For v. Mackreth (12); White and Tudor's Leading Cases, 7th ed., vol. III., pp. 709, 734; Ex parte Lacey (13); Hamilton v. Wright (14); McPherson v. Watt (15); Phosphate Sewage Co. v. Hartmont (16). The consideration was so small as to be practically no consideration. There was no such concurrence in the breaches of trust as relieves the respondents from liability. 1906. [GRIFFITH C.J.-There cannot be concurrence where the person H. C. OF A. said to have concurred had not the means of knowing that the acts concurred in involved breaches of trust: Buckeridge v. Glasse (1); Crichton v. Crichton (2); or where his judgment was misled: Whistler v. Newman (3); Hughes v. Wells (4).] There has not been such a delay as disentitles the appellants to succeed: In re Garnett, Gandy v. Macaulay (5); Sleeman v. Wilson (6). Delay does not matter until there has been independent advice. [Counsel also referred to New Zealand Loan & Mercantile Agency Co. v. Smith (7).] Isaace A.G., Higgins K.C., and Weigall, for the respondents. [The Court intimated that they did not desire to hear argument on the abstract question of the right of a surety to an administration bond to take an indemnity.] Where there is a pre-existing fiduciary relation, transactions between a trustee and a cestui que trust will in some cases not be upheld except under very special circumstances. In this case, however, there was no pre-existing fiduciary relation. The very transaction which is now impeached is part of one transaction, the other part of which the appellants seek to preserve. They cannot do so; they cannot both approbate and reprobate Roe v. Mutual Loan Fund Limited (8); Bankes v. Jarvis (9). The action is not against the respondents as solicitors but is merely a common law action upon a bond, to which there is a common law defence, and thereupon the appellants say that the indemnity set up in that defence is contrary to public policy. There is no case in which it has been held that, there being in a document creating a trust a limitation of the liability of the trustee, the cestui que trust can disregard the limitation and at the same time take the benefits. As to the bond the parties were at arms' length. The mere fact that the respondents had been solicitors to the mother of the appellants does not affect the (1) Cr. & Ph., 135. (2) (1896) 1 Ch., 870. (3) 4 Ves., 129. (4) 9 Hare, 749, at p. 773. (5) 31 Ch. D., 1. (6) L.R. 13 Eq., 36. (9) (1903) 1 K.B., 549. BAYNE v. BLAKE. 1906. BAYNE V. BLAKE. H. C. OF A. matter. Assuming that there was a fiduciary relationship created by the suretyship and that the respondents were solicitors to the family, the only right the appellants would have would be to rescind the transaction into which they had been led by the respondents without the necessary safeguards which the law requires. If a family solicitor were asked to become trustee of a will, and only consented to do so on condition that he should be indemnified against certain things, the beneficiaries could not afterwards repudiate the indemnity. [GRIFFITH C.J.—A more analogous case would be that of an executor refusing to act unless the beneficiaries indemnified him.] In that case the beneficiaries could not repudiate the indemnity. The parties were all sui juris. The suretyship was for the benefit of all the parties interested. [Griffith C.J.—Was there not a representation to the Court that the sureties had entered into a fiduciary position towards all the persons interested in the estate? Are not the trustees estopped from denying that they had entered into that position?] At most they would be estopped as regards the Court. The bond is that the respondents will be sureties for the administratrix, but that does not in any way affect the right of the cestuis que trustent to act in any way they please. The representation to the Court is subject to all the contractual rights that have been created. A distinction exists between an agreement made before, and one made after, the creation of a trust. In this case immediately before the indemnity was given there was no legal or equitable obligation between the appellants and the trustees: Burland v. Earle (1). The parties cannot be put back in their original position and therefore there can be no rescission: Buckley on Companies, 8th ed., p. 662; In re Cape Breton Company (2), affirmed on the facts sub nom. Cavendish Bentinck v. Fenn (3); Seton on Decrees, 6th ed., vol. III., p. 2342; Plowright v. Lambert (4); Clarke v. Dickson (5); Urquhart v. Macpherson (6). There was no fiduciary relationship between the appellants and the respondents. (1) (1902) A.C., 83. (2) 26 Ch. D., 221; 29 Ch. D., 795. (4) 52 L.T.N.S., 646. (5) E. B. & E., 148. (6) 3 App. Cas., 831. 1906. [GRIFFITH C.J.-The respondents employed the administratrix H. C. of A. as their agent to get the indemnity from the appellants who were completely under the influence of the administratrix. That indemnity is the only bargain made with the appellants. Should it not be set aside on that ground?] If the respondents did not know that that influence existed, and there is no evidence that they did, there would be no ground for setting aside the indemnity. The relationship between the administratrix and her two sisters was not such that the Court would say the influence of the administratrix was undue. [GRIFFITH C.J.-My difficulty is to see that there was only one transaction. There was one agreement between the administratrix, the sureties and the Court, and another between the appellants and the sureties.] Both agreements sprang out of the one transaction-the one contract. [GRIFFITH C.J.-Suppose the indemnity could not be supported as between the administratrix and the appellants, could it be supported between the respondents and the appellants?] There is no reason why it should not be supported. Even if it could not, the whole transaction must be set aside. The parties must be remitted to their original position. Cestuis que trustent must get no advantage from their trustee just as the trustee can get no advantage from them. The conduct of the appellants in reference to the breaches of trust amounted to a concurrence and it has been so found. As to the mortgage transaction, the mortgagee refused to advance any money without the consent of the appellants. The money was obtained, and the appellants cannot hold the sureties liable without paying back the money. If the deed of indemnity be void on the ground of illegality, there is no doubt that it is as if it never existed, and the appellants can recover on the bond. But if the deed be voidable, it cannot be treated as if it had never existed having regard to what took place afterwards. To rescind the transaction is one thing, to force upon the respondents a contract which they never made is another: See Burland v. Earle (1). There is no fiduciary relation between the sureties to an administration bond and the (1) 71 L.J. P.C., 1, at p. S. BAYNE v. BLAKE. 1906. BAYNE v. The only H. C. OF A. beneficiaries. The obligation of the sureties is one of contract. If there is any fiduciary relation, it is between the Chief Justice and those on whose behalf he has taken the bond. statutory obligation on the sureties is to give the having given it, the ordinary law comes in and works the consequences of the bond. There is no privity between the sureties and the beneficiaries. BLAKE. bond, and It is not illegal to break a trust, that is to say, a trustee can make a contract by which he undertakes to break a trust provided the beneficiaries indemnify him. An act done with the consent of all the beneficiaries is not a breach of trust, and it is only in respect of breaches of trust that the sureties are liable. A beneficiary who, knowing the facts, concurs in a breach of trust cannot afterwards complain: Fletcher v. Collis (1); In re Somerset Somerset v. Earl Poulett (2); Lewin on Trusts, 11th ed., pp. 1155, 1168. From the time the fifteen months' account was filed there was no relation of solicitor and client except in respect of specific dealings, and Grace Bayne was the only client. As to the mortgages, the respondents obtained the consents of the appellants, not as solicitors for Grace Bayne, but as solicitors for the mortgagees. From some time in 1886 the duties of administratrix were over, and Grace Bayne simply held as trustee for herself and her sisters, and therefore the obligations of the bond were at an end. The administration ended when the beneficiaries were entitled to demand a transfer. If the beneficiaries show actively that they wish the property to be kept, then the administration is at an end. The case of a gift from a client to his solicitor is essentially different from a case where there is value on both sides. The Court has not to deal with the quantum of risk the sureties took. There was responsibility by the sureties to creditors secured and unsecured, so that there was some risk at any rate. [GRIFFITH C.J.-Any contract having a tendency to affect the administration of justice is illegal and void: Lound v. Grimwade (3); Elliott v. Richardson (4). If a contract is made with the intention that it shall be concealed from the Court and the Court (1) (1905) 2 Ch., 24. (2) (1894)1 Ch., 231, at pp. 265, 274. (3) 39 Ch. D., 605. |