Her Majesty's subjects navigating the same, inasmuch as it would not only narrow the waterway, and incommode the navigation of the river, but would also produce an eddy at each end of the embankment, and an increased deposit of mud in those parts of the river below the locality of the embankment, by excluding a quantity of tidal water essential to the scouring or preservation of the depth of the river.

The information then stated that by an indenture, dated the 16th of May 1843, made between the corporation of the one part and John Cornelius Park of the other part, the corporation, for the consideration therein mentioned, granted to John Cornelius Park licence to embank so much of the strand or soil of the river as lay between high and low water mark thereof, situate on the south side of the river, in front of a piece of arable land belonging to John Cornelius Park in the parish of Battersea, and that the said John Cornelius Park was proceeding to execute such embankment, and that the same would be very detrimental to the river Thames, and a nuisance and injury to Her Majesty's subjects navigating the same, inasmuch as it would create eddies, and cause a deposit of mud at each end of it, and would also be injurious to the river below its locality by excluding a portion of the tidal water requisite for the scour of the river, and would also, by projecting into the river, and thereby diminishing the waterway, prevent a line of embankment on the Middlesex side, which might be made for the public benefit.

The information then alleged that other licences had been granted for other considerations; that the defendants had been requested, but had refused to desist from their proceedings; and it charged that no charter or letters patent given or granted by any of Her Majesty's predecessors, contained any grant of the soil or bed of the river, or of the shores thereof between high and low water mark to the corporation of London, and that in no charter granted to the city of London had any immemorial right of the corporation to the ownership of the soil, bed, or shores, as arising from any previous grant, been recognized and confirmed. That a charter, dated in the 23rd year of King Henry VI. was of no force and effect to pass to the corporation the soil, bed, and

shores of the river; and that if the language of the charter were sufficient for that purpose, the same charter had been subsequently revoked or annulled. That no sufficient acts of ownership could be shewn as evidence that the pretended right of the corporation to the soil and bed of the river was founded on immemorial usage; and further that it appeared by divers acts of parliament and other matters of record, and otherwise, that the ground and soil of the river Thames had always remained vested in the Crown. It was then charged that the mayor, commonalty and citizens of London had no power or authority, either themselves to build upon or embank, or to enable or permit others to build upon or embank the soil, bed, or shores of the river, even for the purpose of improvement, without the permission or consent of Her Majesty; and that if the projected embankments would obstruct the navigation of the river, it was the duty of the mayor to prevent their being made, but that if the embankments would not in any way obstruct the navigation of the river, and the mayor should therefore grant permission, as bailiff or conservator, for the same to be erected, he was not entitled to accept any pecuniary consideration in the nature of a fine or rent for granting such permission. And that even if the soil and bed of the river Thames and the shores thereof, between high and low water marks had been granted to the corporation, yet that (inasmuch as the embankments at Rotherhithe and Battersea were a common nuisance, and tended to the injury of the navigable river, and to the hurt and damage of Her Majesty's subjects, navigating the same) such ownership of the soil and bed and shores of the said river as was claimed by the corporation under such grants or charters as were pretended would not extend to authorize the making, or granting licences to make, such embankments, or to protect the same from being abated or removed.

The information then charged that the said defendants, or some or one of them had then, or had lately in their, or one of their custody, possession, or power some books of account, deeds, instruments, charters, letters patent, copies of charters, copies of letters patent, leases, counterparts, entries, memorandums, agreements, maps, plans,

elevations, drawings, papers, and writings relating to the matters aforesaid, or some of them, and whereby the truth of the several matters therein before stated would appear, and it asked that they might be produced. The information also charged that the defendant Henry Alworth Merewether was the town clerk, and that he had by means of his office, become, and was cognizant of the several matters and things therein before stated and charged; and that Her Majesty's Attorney General could not have full discovery upon oath of such several matters and things, without making him a party to the said information.

The information prayed that the rights of Her Majesty and the corporation respectively might be ascertained and declared by the decree of this Court, and, if necessary, that issues at law might be tried for the purpose of ascertaining and determining such rights under the direction of this Court; and that, until such rights should be ascertained, the defendant W. Cubitt might be restrained from making the embankment in the information mentioned; and if it should appear that the corporation had no good title to the soil of the bed of the river, and of the shores between high and low water mark, then that the grants in the information mentioned might be declared null and void, and the defendant W. Cubitt perpetually restrained from making his embankment; and that the other defendants might be also restrained from making the several embankments; and that so much of such embankments as might already have been executed might be abated and removed; and that an account might be taken of the fines, rents, issues, and profits arising from granting the licences in the information mentioned; and that the corporation might be decreed to pay the amount thereof to Her Majesty, after all just allowances; and that the right to the freehold, and inheritance of and in the ground and Isoil of the river Thames and of the shores thereof, between high and low water mark, might be decreed in and to Her Majesty, to the end that multiplicity of suits might be avoided, and the claims of the several defendants, and the numerous parties claiming under such and the like grants from the corporation might be examined and determined, and for general relief.

To this information the defendants, the corporation of London, and H. A. Merewether, the town clerk, put in a demurrer and answer, and by the answer they denied that any of the embankments were a common nuisance, or that they would in any way be injurious to the river, or hurt or damage Her Majesty's subjects navigating the same; and as to all other parts of the information, not included in the allegations of nuisance, injury, hurt, or damage, they demurred on the ground that no case was stated which shewed any right or title to the relief or the discovery sought for; but this demurrer was considered insufficient, and was overruled-The Attorney General v. the Corporation of London (1), and this was affirmed on appeal to the House of Lords (2).

On the 4th of July 1848 the corporation of London filed their further answer, which stated that they were a corporation by prescription, and that their existence as a corporation was of very great antiquity, and that they had from time immemorial been seised and possessed of divers large and valuable estates, and possessions, powers, privileges and rights, many of which had been from time to time recognized and confirmed by divers acts of parliament and royal charters granted by Her Majesty's royal predecessors, kings of England, and amongst other possessions that they had from time immemorial been seised and possessed of, and been in the actual uninterrupted possession, by the exercise of acts of ownership over the bed and soil of the river Thames, and also the banks and shores thereof between high and low water mark, on both sides of the said river, from a place called Yenland, otherwise Yenleet, in the county of Kent, to Staines Bridge, in the county of Middlesex, up to which the flow of the tide in the bed of the said river anciently extended, and that they had, for all the time aforesaid, been in the actual exclusive exercise and enjoyment of all such rights and powers as belonged to, and were capable of being exercised and enjoyed by the owner of the legal estate and interest in the bed and soil of the river within the limits aforesaid. And they claimed the benefit of the statute made and passed in

(1) 8 Beav. 270; s. c. 14 Law J. Rep. (N.s.) Chanc. 305.

(2) 1 H. L. Cas. 440.

the 9 Geo. 3. c. 16, intituled "An Act to amend, and render more effectual, an act made in the 21st year of the reign of King James 1. intituled An Act for the general quiet of the subjects against all pretences of concealment whatsoever,' as if they had pleaded the same in bar to the said information. And they denied that Her Majesty, and her progenitors, time out of mind, was or had been seised, in right of the Crown of England, of and in the port and haven of London, or of the river Thames. But they admitted that the river Thames was an arm of the sea, into which the sea had always flowed and reflowed, and that it was and had been, from time immemorial, an ancient and navigable river and king's highway for all persons with their ships, vessels, boats and craft to pass and repass and navigate at their free will and pleasure, and to moor their vessels in convenient parts of the said river, not impeding the navigation thereof, subject to such regulations as the corporation within the limits of their rights of ownership had from time to time prescribed; and they admitted that from all time, whereof the memory of man is not to the contrary, the corporation had and held the office of bailiff, and the conservancy of the river Thames to be exercised and occupied by the mayor of the said city for the time being during the time of his mayoralty, or by his sufficient deputies, upon and about the water of the Thames from the bridge of the town of Staines, in the county of Middlesex, westwards, to London Bridge, and from thence to a certain place called Yendall, otherwise Yenland, otherwise Yenleet towards the sea, and eastward, and in the Medway, and in the port of the city of London, and upon every bank and shore, and upon every wharf upon the water of the Thames within the limits and bounds aforesaid. And also that the corporation had for all the time aforesaid had and taken to their own use by the said mayor of the city, or by his sufficient deputies, all wages, rewards, fees and profits pertaining and belonging to the office of bailiff; but the mayor in his separate capacity, as exercising the office of conservator, did not by virtue of such office take or acquire any estate or interest in the ground or soil of the bed or shores between high and low water mark of the said river,

the corporation being seised of the whole estate therein, within the limits aforesaid, and being thereby enabled to secure the due exercise of the said office of bailiff or conservator.

The corporation also said that they had constantly, from time immemorial, claimed to be entitled, not only to exercise, and had, in fact, exercised and enjoyed by the said mayor, the office of bailiff or conservator of the said river Thames, but that they had as aforesaid claimed, and been seised, or otherwise well entitled to the freehold, and been and then were in the actual possession of (as consisting in the constant and uninterrupted exercise of acts of ownership over) the ground, bed and soil of the said river, and of the shores thereof between high and low water mark within the limits thereinbefore particularly mentioned, being the same limits in which the said mayor exercised the said office of bailiff or conservator. And they submitted that their rights, powers, and authority over the said river Thames as bailiff or conservator, were wholly distinct from and independent of, but nevertheless exercisable and entirely consistent and compatible with their rights, powers, and authority over the same river, as owners of the freehold of the bed, soil, and shores thereof. And they admitted that they had assumed to exercise, and had from time immemorial lawfully and rightfully exercised such acts of ownership over the said soil, bed, and shores of the said river as were beyond the power and authority, and were not incident and did not belong to the office of bailiff or conservator, and that such acts had been notorious, and were evidence that the corporation were and claimed to be lawfully and rightfully seised of the freehold of the bed of the said river and the shores thereof, between high and low water mark within the limits aforesaid. The defendants then stated that they had, not as conservators, but as the owners in fee of the bed and soil of the river, granted the several licences set forth in the information; and that from time immemorial the corporation had made many similar grants or licences, some of which had been made with the knowledge and privity of the officers of the Crown, and that the corporation, as a consideration for such grants, had received for their own use considerable sums

of money as fines or rents, without accounting or being required to account for the same, and they claimed the benefit of the 2 & 3 Will. 4. c. 71, intituled "An Act for shortening the time of prescription in certain cases. And as evidence that the right and title of the corporation to the fee simple in the bed and soil of the river had been acknowledged by the Crown, they stated that in the reign of Queen Elizabeth the Lord Treasurer Burleigh expressly stated, "that the Thames, and the conservation thereof, were not only given to the city of London, but by their special suit the king gave therewith all the ground and soil under the same, whereupon if any that hath a house or land adjoining do make a strand, stairs, or such like, they pay forthwith a rent to the city of London, how high soever they be above the low water mark." And as further evidence of such acknowledgment the defendants stated that in 1788, the Commissioners of the Navy, proposing to advance the front wharf of the naval yard at Woolwich into the Thames, near to low water mark, sent a plan of such proposal to the lord mayor, who referred the subject to a committee of the corporation, which resolved that permission should be granted to the said Commissioners to make the proposed embankment, and to hold the same for the use of Her Majesty for ninety-nine years, paying the collector of the corporation for the use and improvement of the navigation the yearly rent of 1s. as an acknowledgment of the city's rights, and such resolution was accepted on behalf of the Crown and acted upon accordingly. That in 1793 the corporation of Trinity House applied to the committee appointed by the corporation, called "The Thames Navigation Committee," for leave to drive certain piles into the bed of the river near Ratcliff Cross, and upon the report of the committee permission was granted, the corporation of Trinity House consenting to pay as an acknowledgment 1s. a year to the use of the navigation of the

river. That in December 1793 the Commissioners of the Victualling Board having complained to the Thames Navigation Committee of an interruption to the free access from the river to the King's Wharf at St. Katherine, and having applied for leave to drive a few piles into the bed of the river, the corporation, after the subject

had been considered by the committee and afterwards by the Court of Common Council, gave permission to put down five piles in a line with the west end of His Majesty's brewhouse at St. Katherine's, the same to be done under the direction of the water bailiff, on paying a fine of 1s. and the sum of 1s. per annum, to be appropriated to the use of the navigation of the river Thames. The answer then stated that the grants and licences made by the corporation from time to time as aforesaid, and which had been very numerous, were a material part of the evidence which the defendants meant to adduce of the existence of such their right and title to the bed and soil of the said river within the limits aforesaid; and they insisted that they were not bound to discover, and that the information had no right to require them to discover, the several parties to whom such grants and licences had been made and given. But the answer also stated that many of the books, records and documents of the corporation were destroyed in the fire of London in the year 1666, which had rendered it difficult for them to ascertain the particular instances of the exercise and enjoyment of their said right and title, and the inquiries they had directed had not yet been answered, and therefore they were unable to set forth as to their belief or otherwise how many of such grants and licences had been made and given. The answer further said that not only had their said enjoyment of their right of ownership over the bed and soil of the said river been repeatedly recognized and admitted by and on behalf of the Crown, but it had not been in any way brought into question or dispute by or on behalf of the Crown for at least the last two centuries; and in cases where the Crown had been unable to make terms with the corporation, it had been driven to seek and had sought the aid and powers of parliament for vesting in it such parts of the bed and soil of the said river as it required for effecting improvements to the property of the Crown adjacent to the said river. The defendants then insisted that the right and title set up and claimed on behalf of Her Majesty was a pure legal right and title, and that no impediment was made to the trial of such title at law. That this Court had no jurisdiction to determine or hold cognizance of any suit or informa

tion whatsoever for the purpose of determining the legal title to the lands, and if the Attorney General apprehended that Her Majesty was aggrieved, he ought, according to the law and constitution of this country, to appeal for redress to a court of law, or to a Court of Exchequer sitting as a court of revenue, and ought not to be permitted to maintain an information in this court for the determination of such legal question and title, and that the corporation ought not to be compelled to set forth and discover how and by what means, and by what charters and documents in their possession the corporation made out their right and title to the freehold of the bed and soil of the river within the limits aforesaid, and they claimed the same benefit as if they had pleaded or demurred to the information and the jurisdiction of the Court in that respect; and the corporation claimed the benefit of the statute 21 Jac. 1. c. 14, intituled "An Act to admit the subject to plead the general issue in informations of intrusions brought on the behalf of the King's Majesty and retain his possession till trial," and the corporation submitted that to compel them to make any discovery, whether any charter or letters patent given or granted by any of Her Majesty's predecessors, kings or queens of the realm, did or did not contain any grant of the ground, soil, or bed of the river Thames, or of the shores thereof between high and low water mark, to the corporation, or to compel them to set forth under and by what charter or letters patent, or other grant, they claimed to be entitled to the freehold of the said soil and bed and shores of the said river, would be to violate the spirit and intent of the statute 21 Jac. 1. c. 14, and a subversion of the common law right and principle, that the claimant of an estate of freehold shall recover by the strength of his own title, and shall have no right to a discovery of the title by which such estate is held. And for the reasons aforesaid the corporation submitted that they ought not to be compelled to answer and set forth whether it was not true that in no charter or charters granted to the city of London by any of Her Majesty's predecessors had any immemorial right of the mayor, commonalty and citizens to the ownership of the soil, bed and shores of the river, as arising from some previous grant, been recognized and

confirmed, or by what charters or letters patent or other documents the mayor and commonalty and citizens maintained that the said right was recognized and confirmed; or whether it was not true that the charter or letters patent of His Majesty Henry the Sixth was or were of no force and effect to pass or convey to the said mayor, commonalty and citizens the soil, bed, and shores of the said river, or whether it was not true that such charter or letters patent had been subsequently revoked, rescinded or annulled; or whether it was not true that no sufficient acts of ownership on the part of the said mayor, commonalty and citizens, or other deeds, matters or things could be shewn as evidence of such immemorial usage as that set up by the mayor, commonalty and citizens; and they claimed the same benefit, as to so much of the information as they thereby submitted they were not bound to answer, as though they had pleaded or demurred thereto.

The answer then admitted that the defendants had in their possession certain deeds, instruments, charters, letters patent, copies of charters, copies of letters patent, leases, counterparts, entries, receipts, agreements, papers, and writings relating to and concerning the right and title of the corporation to the freehold of the bed and soil of the river Thames and the enjoyment thereof all which evidenced such right and title of the corporation, and were intended to be made use of and given in evidence in this cause, and that none of the said several charters, deeds, instruments, entries and other documents respectively did evidence or tend to prove the alleged right of the Crown set up by the information, nor would the said informant derive any proof in support of his case from the production of such documents or any or either of them. But the corporation said that they could not specify or describe such deeds, charters, instruments, entries, or other documents respectively, or any or either of them, in any list or schedule, without disclosing the nature and character of the evidence on which they intended to rely; and therefore the defendants insisted that they ought not to be compelled to set forth a list or schedule of such deeds, instruments, charters, letters patent, copies of charters, copies of letters patent, leases, counterparts,