The answer admitted that other than and besides such last-mentioned documents the corporation had in their possession divers books, documents, papers, and writings relating to the matters in the said information mentioned, other than the title of the defendants to the bed and soil of the said river Thames as aforesaid, a full, true and perfect list whereof they had set forth in the schedule to their answer annexed, and which they prayed might be taken as part thereof. But they denied that they had now or had lately or ever in their custody, possession, or power, divers or any books of account, or account, deeds, instruments, charters, letters patent, copies of charters, copies of letters patent, leases, counterparts, entries, receipts, memoranda, agreements, maps, plans, elevations, drawings, papers or writings, whereby or by any or either of such particulars the several embankments in the said information mentioned or either of them or any part or parts thereof, were stated or shewn to be common nuisances, or a common nuisance, or detrimental to the said river Thames, or any injury to Her Majesty's subjects navigating the same, or any inconvenience to the navigation thereof, or which shewed or tended or made out the alleged truth of the several unfounded allegations contained in the said information respecting the alleged interruption to the free navigation of the said river. And save and except the deeds, charters, instruments, entries, and documents which were thereinbefore referred to as being the evidence of the case of the defendants exclusively, and the books, instruments, and documents comprised in the schedule, the corporation denied that they had now, or had lately or ever in their custody, possession, or power, divers or any books or book of accounts, account or accounts, deed or deeds, instruments or instrument, charters or charter, letters patent or letter patent, copies of charters or a copy of a charter, copies of letters patent or copy of a letter patent, leases or lease, counterparts or counterpart, entries or entry, receipts or receipt, memoranda or memorandum, agreements or agreement, maps or map, plans or plan, elevations or elevation, drawings or drawNEW SERIES, XVIII.-CHANC.

relating to the matters in the said information mentioned or to any of them.

The answer admitted that Henry Alworth Merewether was the town clerk of the said city of London, and that he was conversant with the several matters and things in the said information stated and charged.

The defendant H. A. Merewether also put in his answer to the said information similar in substance to that put in by the corporation.

In November 1848, the Attorney General took exceptions to the answer—

Because the corporation had not stated that no charter or letters patent given or granted by any of Her Majesty's predecessors, kings or queens of this realm, contained 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 mayor, commonalty and citizens; and that they had not discovered under and by what charter or letters patent or other grant they claimed to be entitled to the freehold of the soil, bed, and shores of the river:

Because they had not stated 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 said soil, bed and shores of the said river, as arising from some previous grant as aforesaid, been recognized and confirmed, and that the said defendants, the mayor, commonalty, and citizens, had not discovered and set forth by what charters, or letters patent, or other documents they maintained the said pretended right was recognized and confirmed:

Because the defendants had not stated that the said charter or letters patent of his late Majesty King Henry VI. was or were of no force and effect to pass or convey to the said mayor, commonalty and citizens, the said soil, bed and shores of the said river, or that such charter or letters patent had been subsequently revoked, resumed, or annulled:

Because they had not stated that no sufficient acts of ownership on the part of the said mayor, commonalty and citizens, or other deeds, matters or things could be

2 T

shewn as evidence of such immemorial usage as that set up by the said mayor, commonalty and citizens as aforesaid :

Because they had not stated whether they had not now, and had not lately, and when last, in their possession, custody or power divers or some and what books of account or accounts, deeds, instruments, charters, letters patent, copies of charters, copies of letters patent, leases, counterparts, entries, receipts, memoranda, agreements, maps, plans, elevations, drawings, papers or writings relating to the matters aforesaid, or to some or one of them, and whereby the truth of the several matters in the said information stated and charged or some of them would appear, and had not set forth a full, true, and perfect list and schedule of all and every the said books of account and accounts, deeds, instruments, charters, letters patent, copies of charters, copies of letters patent, leases, counterparts, entries, receipts, memoranda, agreements, maps, plans, elevations, drawings, papers and writings, or set forth what had become of such of them as were not now in his or their possession, custody, or power.

water mark; and that they ought to have set forth under and by what charters or letters patent, or other grant, they claimed to be entitled to the freehold of the soil, bed, and shores of the river. The fifth exception was confined to the general discovery of books, papers, and other documents in the custody or power of the corporation, whereby the truth of the matters inquired after would appear. The Master had found that the further answer was insufficient, and the exceptions were now brought under the notice of the Court. The information was founded on the general allegation that the Crown had a right to the bed and soil of all navigable rivers, and the ground and shores thereof between high and low water mark; and that the Crown had a right over all navigable rivers of the kingdom : that title did not require any evidence or proof, or any explanation from discovery. The information complained, first, that the corporation had made grants particularly of the ground between high and low water mark for its own benefit; and secondly, that certain grants and licences had been made, which were public

On the 22nd of December 1848, the Master certified that both the further answers were insufficient in the points excepted to, and that the costs of the exceptions and of the reference thereon ought to be borne by the corporation of London, and he directed that they should put in a better answer.

And on the 8th of January 1849, exceptions were taken to the Master's finding by the corporation and also by the town clerk.

Mr. Bethell and Mr. Randell, in support of the exceptions. . There were originally five exceptions taken to the further answer of the defendants, involving two points, and divisible under two heads : the first, which included the first four exceptions, was, in effect, that the defendants ought to have discovered whether it was not true that no charter or letters patent, given or granted by any of Her Majesty's predecessors, kings and queens of England, contained any grant of the ground or soil of the bed of the river Thames, or of the shores thereof, between high and low

was then alleged that no charter or letters patent contained any grant to the corporation of the bed and soil of the river, or the shores thereof; and that they would shew no grant; and that they had books of account and other documents, from which the

truth would appear. The defendants were required to answer a negative proposition, that if the corporation would produce the charters and letters patent, they would not shew any grant; but the corporation said they were owners and seised in fee of the bed and soil of the river and the shores thereof, and they claimed the benefit of the Statutes of Limitations, including the 9 Geo. 3. c. 16. and 21 Jac. 1. c. 16; they also claimed to be conservators of the river, and they denied that the duties and rights of conservators were inconsistent with the ownership of the bed and soil of the river. The officers of the Crown, with the knowledge of the Attorney General, had applied to the corporation for grants of parts of the shores. The defendants, in support of their title, appealed to various acts and other things as evidence of their title, and the

rights claimed, and they stated that such title had been acknowledged and recognized by various charters and other documents; and that they had deeds, which related to their title, and which shewed the nature of the recognition, but that they were confined exclusively to their title, and that they did not, and would not shew any adverse title in the Crown, or any other title than that which the corporation had set up. The defendants did not claim as grantees, but they claimed the benefit of documents, which the Crown had executed, recognizing their title, and they claimed a right to use all other evidences of such title, and which related to their title only, and shewed nothing further. There was also another class of documents, which related to the conservancy, and there were also grants of parts of the shores to individuals, which had been challenged as a nuisance, and they set out the last particularly, and, save as aforesaid, they denied having any documents. The answer therefore was sufficiently full. The defendants set up a title adverse to the Crown, which had no right: and unless the law between king and subject differed from the law between subject and subject, the Crown had no right to have a schedule of the documents, which were evidence of the defendants' title-Bolton v. the Corporation of Liverpool (3).

If an

heir came to this Court, the land was his unless it was devised away, and no discovery of title was necessary. It was the same with the Crown, which required no discovery of its right any more than an heir-at-law-Burrell v. Nicholson (4), Smith v. the Duke of Beaufort (5), Edwards v. Jones (6), Glover v. Hall (7).

If the deeds were evidence of the title of the corporation and not of the Crown, there was no right to enforce production in this Court. The title of the defendants was not founded on charters, but upon immemorial enjoyment, but at the same

time it might be supported and recognized. by charter. There existed no such thing as a prerogative right to discovery in the Crown; by the 21 Jac. 1. c. 14. if the defendants pleaded the general issue, they had a right to the judgment of the Court upon it before they could be ousted of possession, since the Crown was only able to recover by force of its own specific title. By the ancient practice of the Exchequer, if an information of intrusion was filed, and the defendant pleaded not guilty, he lost the possession, because it was alleged the king's title appeared upon record, and was known to the defendant, while the defendant's title was not known, and could not be answered. This arose from a fiction of law, and was found to be a hardship, and the 21 Jac. 1. c. 14. was passed to prevent that discovery from being required; and in 16 Car. 1. c. 10. s. 5, for abolishing the Star Chamber, it was enacted, "that neither his Majesty nor his privy council have or ought to have any jurisdiction, power, or authority by English bill, petition, articles, libel, or any other arbitrary way whatsoever, to examine, or draw into question, determine, or dispose of the lands, tenements, hereditaments, goods, or chattels of any the subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law." Therefore the answer would be held sufficient.

It would no doubt be argued, as it had been before the Master, that it was not sufficient where the Crown was interested, but the right of the Crown was no greater than the right between subject and subject; the exceptions, therefore, to the Master's report ought to be allowed.

They also cited—

Buden v. Dore, 2 Ves. sen. 445. Bellwood v. Wetherell, 1 You. & C. Exch. 211; s. c. 4 Law J. Rep. (N.S.) Ex. Eq. 23.

The Attorney General to the Prince of Wales v. Sir John St. Aubyn; Wightw. 212, 215, 216, 218, 230, 231, and as cited therein,

Parmeter v. the Attorney General, 1 Dow, 316.

The Attorney General v. Richards, 2 Anst. 603.

The Attorney General v. Lord Derby,
Wightw. 232.

Chitty de Prerog. Regis, 256.
Standforde de Prerog. Regis, 67, b.
The Attorney General v. Vernon, 1
Vern. 277.

The Solicitor General, Mr. Turner, and Mr. Maule, for the Crown.-It was necessary to consider the case on common grounds, which required that the pleadings should be definite, and that the case should be stated issuably- Wigram on Discovery, p. 285, which referred to Mit. Plead. 9, 3rd edit. The information stated that the Crown, from time immemorial, was entitled to the bed and soil of all navigable rivers, and of the river Thames in particular, and the banks and shores thereof between high and low water mark; and that no grant had been made of them to the corporation. Now the defendants had not taken any issue on that they merely said, we claim, but they refused to state the title by which they claimed. There was no case similar to the present; in those which had been brought under the notice of the Court, the defendants had pleaded issuably; but in Wormald v. De Lisle (8) a demurrer was allowed for uncertainty. In the present case a fiduciary relationship existed between the defendants and the Crown. The corporation were conservators or bailiffs of the Crown, and they had taken all wages, fees, and rewards. From the decision in the House of Lords it was apparently supposed that the bed and soil of the river might have been excepted from any grant which might have been made-Hale de Jure Maris, 23. Now the conservancy of the Thames was given to the corporation; that was a trust, and the earliest case mentioned by the corporation of the exercise of the right to grant licences to embank was in 1788, which was followed by that in 1793, when the corporation of the Trinity House agreed to pay a rent of 1s. a-year to the corporation of London as conservators. must be considered that conservancy was altogether inconsistent with ownership. This was not like a case in which a commission would be issued to ascertain boundaries. The conservation was given to the defendants for a special purpose: it was their duty

(8) 3 Beav. 18.

It

to preserve it for the owner, and for the benefit of the public. In Bolton v. the Corporation of Liverpool it was considered that documents under which both parties claimed ought to be produced as well as those under which the plaintiff alone claimed; and in The Attorney General v. Berkeley (9) an opinion of counsel which had been taken with reference to the landlord's title, on a case stated for the benefit of both parties, was ordered to be produced, so that all documents which related to the common title must be brought forward. The Crown was invested with peculiar rights to enable it to compel discovery, and in property of this description the defendants were bound to shew their title, inasmuch as the title of the Crown was upon the record. This was a right vested in the Crown by the common law; and it was not taken away by he 21 Jac. 1. c. 14. or any other statute. It was a principle of law "that a statute made in the affirmative, without any negative expressed or implied, did not take away the common law"-2 Inst. 200, Co. Lit. 115 a, 116 a, Whitton v. Sir H. Compton (10), Sir R. Leigh v. Hudson (11), Dig. tit. Prerogative' (D) 74, 80. And by the 4 Ann. c. 16. the defendants could not plead several matters to an information of intrusion-The Attorney General v. Allgood (12). That case had been argued upon the supposition that the right to compel discovery was taken away by the 21 Jac. 1. c. 14, but it was not the case; and when a statute did not apply, the law remained as it was. This statute merely applied where the title had been adverse for twenty years. The corporation were before the Court as conservators; in addition to that they claimed to be owners; but as conservators they were not protected by the act, since they had taken toll in that character up to the present time. The river Thames was a highway, and unless the corporation were conservators they had no right to take any toll. The defendants also claimed the benefit of the 2 & 3 Will. 4. c. 71, but it had nothing to do with the question. They then insisted upon the 16 Car. 1. c. 10. s. 5, and they cited The Attorney General

(9) 2 J. & W. 291. (10) Dyer (Eliz.) 278. (11) Ibid. 238. (12) Parker, 1.

Com.

to the Prince of Wales v. Sir John St. Aubyn, but they contained nothing to shew that the Crown had not a right to insist upon discovery. This right existed in the Court of Exchequer, and it was transferred to this Court by the 5 Vict. c. 5.—The Attorney General v. the Corporation of London (13), The Attorney General v. Halling (14), The Attorney General v. Hallett (15). Considering, therefore, the fiduciary relationship between the Crown and the corporation, and the extraordinary jurisdiction which the Crown had to compel production, it must be considered that the exceptions taken by the defendants to the Master's report must be overruled—

Speer v. Crawter, 2 Mer. 410.
Shaw v. Ching, 11 Ves. 303.

The Baron de Bode's case, 8 Q.B. Rep.
208.

Se

Mr. Bethell, in reply, said that the question had been mistaken on the part of the Crown; the arguments had been directed not to the sufficiency of the answer, but the merits of the case. By the answer a defendant was bound to satisfy the inquiries of the plaintiff, and at the same time to make his own defence; and if in so doing he stated his case obscurely, and without regard to technical rules, it was the worse for him. It was said, first, that the defendants had not pleaded issuably; that they had not stated their defence sufficiently clear to comply with the ordinary rules of the court. condly, that there was a fiduciary relationship existing between the Crown and the defendants, which disabled the defendants from withholding, as being peculiar to themselves, anything relating to the matters in question. Thirdly, that there had existed at all times in the Court of Exchequer, and that it did exist at the time of its abolition as a court of equity, when it was transferred to this Court, a prerogative right in suits between the Crown and its subjects, which entitled the Crown to require the subject to set forth the peculiar title under which he claimed. It was a principle of law

(13) 8 Beav. 270; s. c. 14 Law J. Rep. (N.s.) Chanc. 305.

(14) 15 Mee. & W. 687; s. c. 16 Law J. Rep. (N.S.) Exch. 303.

(15) 15 Mee. & W. 97; s. c. 15 Law J. Rep. (N.S.) Exch. 246.

that there was no limit to the rights of the Crown, and it followed, consequently, that a restrictive title could not be set up; but that was altered by the 9 Geo. 3. c. 16, which limited the time to sixty years' adverse possession, and bound the rights of the Crown. This left the whole case to a mere question of criticism upon the answer, whether it did or did not denote the defence. The information set up a claim of immemorial possession, and it alleged that the defendants claimed by immemorial usage, and by various acts, deeds, matters and things. The defendants said they were a corporation by prescription, and if this was proved it would give a title against the Crown. It was argued, for the Crown, that prescription was not available, and was nothing unless the origin of the right claimed was shewn; but prescription was consequent on the infirmity of human nature, and its merit was, that after tracing a right until a cloud of darkness dropped on further information, the law with its beneficial stipulations aided to support such rights. The defendants had in the most distinct manner pleaded prescription, and yet it was said they had not pleaded issuably. Had they pleaded a title of 700 years and upwards, and had then referred to charters and grants, they would have been told that they had abandoned all they relied on, and that they should be fixed to these charters and grants as the source and origin of their title; but the defendants had not done that, they had committed no such suicide, and they had pleaded issuably, and that there was nothing to prevent the Court from sending an issue to try the question of immemorial usage and uninterrupted enjoyment, and the corporation was content to let the answer remain at its peril.

It was then said that the Crown had peculiar rights to discovery arising out of the fiduciary relationship between the Crown and the defendants; and it was Isaid to be similar to that between landlord and tenant, or lord and bailiff, and that neither tenant nor bailiff were at liberty to set up a title in themselves, or withhold the discovery of any knowledge which came to them in their subordinate capacity; but no such case was stated, neither was it admitted or countenanced by what was stated in the answer. It was by