the information alleged that the corporation virtute officii had made grants, and that they had received profits. The information then alleged that the defendants were conservators, but that the office was exercised, not by the corporate body generally, but by the mayor individually, but the office of conservator was performed by the mayor alone. It was then prayed that the defendants might be declared to have committed a breach of trust, and for a direction that they might account, but this was only to invest the whole with a colouring which was not warranted. It was said that the defendants as conservators had done things they ought not to have done, and that they had not only availed themselves of the title of the Crown to do them, but that they had perverted their office by doing them; but there was no passage in the information which justified that. The Crown had made a case that the defendants were using their office in order to found a title upon it; and it was used also for the purpose of saying that the defendants had received money which they should have accounted for: but the boundaries of law and equity were not to be confused. The Star Chamber Abolition Act had provided against the arbitrary questioning of men's titles; could, then, an equitable title be so called in question on the equity side of the Exchequer? If so, it was insisted that it might be brought before this Court, and that what that Court could do, this had a right to do. There were two passages in the answer referring to the office of conservator, but it could not be admitted that the office of conservator was derived from the CrownIt was not affected by the Statute of Westminster 2, 13 Ed. 1. c. 47. The office was given by the legislature, and not by the Crown: it had been the subject of state consideration, and the origin might be very different from what was alleged, but still there might be direct privity and possession between the Crown and the defendants; the answer distinctly said that the mayor did not take any interest in the bed and soil of the river. The defendants claimed to be seised in fee, and referred all they had done to their seisin and ownership. There was a great difference between what was given to the Crown for its maintenance and dignity and what was vested in

V.

it by way of public trust. It was sufficient to carry back the case to the time when the law would supply the rest by presumption The Attorney General Berkeley. If the owner of a forest was to ask for an account his bailiff must shew it; but if prescription was known to the law the defendants had shewn their claim. Could it be supposed that a Crown bailiff had usurped Crown property from times when the memory of man failed? The defendants were found here in possession. The commencement of the defendants' title might be antecedent to the feudal origin of the law, which ascribes all originally to come from the Crown.

It was then said that there was a prerogative in the Crown which enabled it to require subjects to set forth their peculiar title; and as the defendants pleaded prescription, it was said that they had not shewn their title, because they had not set out their evidence; but sufficient was done if they had shewn distinctly the title which they had set up. In the outset, not conceiving that the boundaries of the discussion would be confused, the opening was confined to the nature of the title; the Crown came here on an alleged principle of law, and all the allegations made were of that fishing and inquisitive nature, but no title had been established, neither had any discovery been made to authorize the call for documents; they were not satisfied with knowing the defendants' title, but they also claimed a right to know the defendants' defence. It was idle to go through Dyer, who spoke generally. It was idle to go through the case of The Attorney General to the Prince of Wales v. Sir John St. Aubyn; there was nothing which shewed the measure of the discovery to which they claimed to be entitled. It was plain that the defendants were asked, on behalf of the Crown, how they supported their title they properly objected to answer that, and with a singular want of modesty the Attorney General was silent as to the way he intended to use it. Distinctions might be drawn between questions asked affirmatively and negatively; but questions might be put to get an answer to all the questions they were entitled, without fishing for the means to make a case. The opinion of Lord Burleigh might be dismissed as com

ment for the hearing; and as to the existence of such a prerogative right in the Crown as alleged, there was no authority to support such a claim.

Mr. Turner, on the part of the Crown, claimed a right to reply generally on the whole case.

Mr. Bethell was not aware of any foundation for such a claim.

The MASTER Of the Rolls said, if it was questioned he must hear it discussed.

The Solicitor General, on a subsequent day said, it was not intended to make any general reply in the present case. He would not, therefore, press the point.

The MASTER OF THE ROLLS.-This case came on upon exceptions to the report of the Master, who has allowed certain exceptions taken by the Attorney General to the defendants' answer to the information. It is admitted that the answer is not full; but the defendants having answered to some extent, insist that they are not bound to answer further; and they support their exception principally by saying, that having stated a sufficient title to the matters claimed by the Crown against them in this information, they are not now bound to state further the particulars of that title, the mode in which they intend to make it out, or the evidence by which it is to be supported.

In the course of the argument in this case it was suggested, on the behalf of the defendants, that this endeavour to enforce further discovery was an attempt on the part of the Crown to encroach on the rights of the subject. I mention this only for the purpose of stating, that in this place and on this occasion I have nothing to do with any question of that sort. However, the suggestion does seem to me to require this observation, that the Crown by this information is seeking that which, if recovered, can be held only for the benefit of the public at large, and not for any private or separate interest whatsoever.

In the consideration of this case, we have to look both at the office of conservator or bailiff of the river Thames, and at the right to the ground and soil of the bed and shores between high and low water mark of the same river.

It is stated by the information, and admitted, that the mayor or the corporation of the city of London has for a long period held and exercised the office of bailiff or conservator, the office being exercised by the mayor for the time being, or his sufficient deputy. Upon this there is no controversy.

The information further alleges, that by the royal prerogative the ground and soil of the coasts and of every port, haven, and arm of the sea and navigable river, into which the sea ebbs and flows, and the shores between high and low water mark, belong to Her Majesty, and that Her Majesty hath right of empire and government over the navigable rivers of the kingdom: that Her Majesty and her progenitors, time out of mind, is and have been seised in right of the Crown of England, of and in the port and haven of London, and of the river Thames, the same being an arm of the sea into and from which the sea has always flowed and reflowed: that the same river is also, and from time immemorial has been, an ancient, royal and navigable river and king's highway for all persons with their ships, vessels, boats and craft to pass, repass and navigate at their free will and pleasure, and to moor their vessels in convenient parts of the river, not impeding the navigation thereof that the defendants have held the office of conservator of the river by prescription, or under some grant from the Crown: that the duty of the mayor or corporation as bailiff or conservator is to see to the navigation of the river, to prevent the erection of nuisances and obstructions in the river, and to regulate the fishing thereof; but that the mayor or corporation does not by virtue of the office of bailiff or conservator take or acquire any interest or estate in the ground or soil of the bed or shores of the river.

Such being the nature of the allegations relating to the title of the Crown, the defendants on their part allege, that the corporation is, and from time immemorial has been, seised and possessed of, and well entitled to, and been in the actual uninterrupted possession of, by acts of ownership over, the bed and soil of the river, and also the banks and shores thereof, between high and low water mark, and has for all the time

aforesaid been in the actual and exclusive exercise and enjoyment of all such rights as belong to and are capable of being exercised and enjoyed by the owner of the legal estate and interest in the bed and soil of the river.

This claim is certainly expressed with considerable obscurity, but in shorter expression, it has been at the bar, and I think correctly, explained, to be a claim on the part of the corporation to be entitled by prescription to the freehold of the bed and shores of the river, that is, to the land itself over which the river flows.

The corporation claiming this title not to any incorporeal hereditaments, but to the land, further say, that from time immemorial they have had and held the office of bailiff or conservator, the conservancy of the river being exercised and occupied by the mayor for the time being, or his sufficient deputy, and have taken for their own use all wages and profits pertaining to the same office of bailiff. The claim of the corporation seems to be, that it has been immemorially owner of the land over which the river flows, and has also immemorially held the office of bailiff or conservator of the river.

It may be observed that the right claimed by the Crown to the bed and soil of navigable rivers, is a right belonging to the Crown by the common law, and extends and is applicable to the bed and soil of the river Thames, unless excluded by a stronger title in the defendants, or some of them; that by the general rules of law, a title by prescription can only be made to incorporeal hereditaments. That the office of bailiff or conservator claimed contemporaneously by the defendants implies an authority or delegation conferred by some other, and can scarcely, if at all, be made consistent with the claim of ownership, which to a large extent at least would exclude the notion of any such delegation or authority from another.

There is no authority for saying that the grantor of an office, the duties of which are performed upon land originally belonging to the grantor, is not entitled to compel the grantee of the office claiming the land to discover the means by which he has, as he alleges, during his exercise of the office, become entitled to the land, or to the pro

perty upon which the authority to grant the office depends.

In the present case, and on this occasion, without entering into an investigation of the general rights and prerogatives of the Crown, with respect to the coasts of the sea and to navigable rivers, I consider myself bound to come to the conclusion, that the office of conservator or bailiff of the river Thames must have been and must be held to have been derived from the Crown, and held under the Crown by its own grant or commission, or by act of parliament, necessarily made with the concurrence of the Crown, and that the power, estate, or authority, by or out of which the office of conservator or bailiff was granted or derived, must be presumed to have reserved or kept to itself all that was not granted with the office of conservator.

I am desirous to state this distinctly, in order that if it be erroneous, the error may be the more easily detected and corrected. I think, that the office of conservator, being derived from the Crown, must, from its nature, be held to be fiduciary, and that the corporation must be held to have had imposed upon it, not only the duty of faithfully executing the office of conservator, but of so exercising it as to protect, and not encroach upon, the rights of the

Crown.

Moreover, the office of conservator is plainly of such a nature that, in the performance of its proper duties, many and easy opportunities would occur of doing somewhat more than a narrow and strict performance of the duties required, and that some degree of extension might be convenient and useful, and for that reason would be more likely to be permitted or acquiesced in for the occasion, than complained of on behalf of the public; and, therefore, in a case like this, such acts, as might seem to be acts of ownership, may have less probative force than they might have in many other cases.

The other grounds, on which the defendants claim to be protected from discovery, do not appear to me to be of any weight, and on a consideration of the whole case, having regard to the nature of the title claimed to the bed or soil of the river, to the circumstances under which it is claimed,

Contract-Specific Performance-Principal and Agent-Authority-Nuisance.

On the treaty for the under-lease of a house, the agent for the plaintiff tendered an unconditional agreement for the signature of the defendant. The latter signed his name and initials in pencil, and added also in pencil his approval of the agreement, subject to the condition that there was nothing unusual in the covenants in the original lease. Pending the settling of the draft of the underlease, the defendant discovered the existence of a nuisance, which would prevent his occupation of the house, and he thereupon abandoned the treaty. The existence of the nuisance was unknown to the plaintiff :Held, in a suit for the specific performance of the defendant's agreement, that under the circumstances, the Court would try the case strictly between the parties, and that in the absence of actual evidence of the agent having direct or implied authority to accede to the pencil additions, he could not bind the plaintiff; and that until the latter had assented to the alterations, the agreement was only a proposal, and might be abandoned by the defendant: and the bill was dismissed, with

costs.

This was a suit for the specific performance of an agreement to accept a lease.

The plaintiff was assignee for valuable consideration of a leasehold house and NEW SERIES, XVIII.-CHANC.

premises for certain terms of years, granted by Sir Richard Sutton, subject to the usual covenants contained in the leases of his property in the same neighbourhood, and amongst them, to a covenant that every assignment or under-lease should, within one calendar month after execution, be left for seven days at the Sutton Estate Office for registry, and the sum of 1l. 1s. paid for such registry; and also subject to a proviso for re-entry on breach or nonperformance of any of the covenants. In January 1848 the plaintiff employed a house-agent to let the house and premises; and in the beginning of that month the defendant applied to the latter in respect of them. The bill alleged that upon the treaty for the letting, the defendant was informed by the house-agent, or her clerk, Henry Lofts, that the plaintiff was only assignee of the premises, and that the defendant was not to look into the title, but might see the original leases.

By a memorandum of agreement, purporting to be made on the 7th of January 1848, between the plaintiff Flora Jones Lucas, spinster, of the one part, and the defendant of the other part, the plaintiff agreed to grant a lease of the house and premises to the defendant for a term of twenty-one years, determinable at the expiration of the first seven or fourteen years, at the clear yearly rent of 1807.; and the defendant agreed to accept such lease (which was to contain all the usual covenants, and also those covenants expressed in the lease from Sir R. Sutton to the plaintiff), and to pay the expense of preparing the lease and counterpart. Upon this agreement the defendant wrote in pencil as follows:-"I have no objection to this agreement, supposing that there is nothing unusual in Sir R. Sutton's leases, which I presume there is not"; and further, "I agree to these terms, subject to the above observations."

On the 14th of the same month, the solicitors of the plaintiff sent to the defendant the draft of a lease prepared, as they stated in a letter, in accordance with the agreement. The defendant returned the draft on the following day, signed with his name, and with sundry alterations and remarks in his own handwriting, accompanied by a note, dated the 15th of January 1848, and ad

2 U

dressed to the plaintiff's solicitors, in which he informed them that he had only altered the draft in matters which he considered essential, and he begged, therefore, that the lessor should at once grant him the lease as so altered, or refuse to do so. On the same day the solicitors of the plaintiff sent back the draft to the defendant, with a letter to the following effect, and dated the 15th of January 1848-"We beg to send you herewith the draft of the lease of the house, &c., which we have prepared in accordance with your agreement with Miss Lucas. The schedule of fixtures is not quite ready, but shall be sent in the course of to-morrow."

The defendant next wrote to the solicitors of the plaintiff a note, dated the 17th of January 1848, in which he expressed his regret "that he is under the necessity of breaking off the negotiation for a lease of the house, &c. Independently of the objections to the draft proposed, and to the lease from Sir R. Sutton, under which Miss Lucas is stated to derive her title, and which would themselves prevent Mr. James from taking the lease, he thinks it right to add, that he has just received such information as to the character of several houses immediately around as to render it quite out of the question to take the house for a family residence."

To this note the solicitors sent the following reply, dated the 18th of January 1848:

"Sir, We have received your letter of yesterday's date, in which you announce your intention of breaking off what you call the negotiation for a lease of (the house in question), and we learn from it with great surprise that any reason can exist from the character of any of the houses around which can tend to make its occupation as a residence objectionable or unplea

it. We hope that on further inquiry you may find the reports you have heard to be unfounded; but under the circumstances we have mentioned, our client cannot be expected to release you from the clear binding engagement into which you have entered. She is quite ready to complete the agreement at once, and we therefore reply to that part of your letter which relates to the points you have raised on the draft lease sent to you. We give up the covenant not to assign without licence in compliance with your desire. The covenants in Sir R. Sutton's lease, to which you allude as being objectionable, cannot possibly affect you, as they only operate at the termination of his lease at the commencement of the next century, and we do not desire to have them in the lease to you. We believe there is not any other point to be disposed of. The schedule of fixtures was agreed to by your agent on the 15th."

Some further correspondence upon the subject was carried on between the parties, and on the 11th of April following the present bill was filed.

The defendant, by his answer, denied the allegations in the bill relative to the time of his having been informed that the plaintiff was only assignee of the premises, and stated the following account of the negotiation. On the 7th of January 1848, Lofts brought him a memorandum of agreement of that date, by which the plaintiff agreed to let the house to the defendant, "for a term of seven, fourteen, or twenty-one years, at a rental of 1804. per annum, to be paid quarterly, all rates and taxes and the insurance to be paid by him, I paying ground-rent only. Rent to commence at the half-quarter on or about the 13th of February next. The fixtures to be scheduled to the lease, and 201. to be paid for the blinds. Signed, Flora Jones Lucas. Witness, Henry Lofts." This memorandum was the first intimation which the defendant had that the plaintiff was not the owner in fee of the house and premises. The defendant did not concur with the terms of this memorandum, but required all the landlord's taxes to be paid by the plaintiff. Lofts then left this memorandum with the defendant, and afterwards, either in the evening of the same day or on the fol