Attorney General v The Corporation of London and Others
| Jurisdiction | England & Wales |
| Judgment Date | 24 March 1851 |
| Date | 24 March 1851 |
| Court | High Court of Chancery |
English Reports Citation: 47 E.R. 1572
HIGH COURT OF CHANCERY
S. C. 2 Mac. & G. 247; 42 E. R. 95 (with note).
Keports of CASES ARGUED and DETERMINED in the HIGH COURT OF CHANCERY during the time of LORD CHANCELLOR COTTENHAM and the LORDS COMMISSIONERS. 1849-50. By FREDERICK JAMES HALL and PHILIP TWELLS, Esqrs., Barristers - at - Law. Vol. II. 1851. [1] the attorney-general v. the corporation of london and others. Dec. 8, 13, 14, 17, 1849; Jan. 14, 1850. [S. C. 2 Mac. & G. 247; 42 E. R. 95 (with note).] An information by the Attorney-General-after stating the title of the Crown to the bed of the river Thames, and to the land and soil under all navigable rivers; that Her Majesty was, and had from time immemorial been, seised of the port and haven of London and of the river Thames, the same being an arm of the sea, into which the sea always flowed and reflowed; that the river had always been navigable; that the Defendants had at all times been conservators of the river, and claimed the freehold of the soil, and, under that title, had made certain grants, which were pretended to be supported by their claim to the freehold, which the information alleged to be bad, inasmuch as the Defendants had no freehold; that such grants were injurious to the navigation of the river, and therefore obnoxious as nuisances, even supposing that the Defendants had any such freehold; that it would be the Defendants' duty, as conservators of the river, not to permit encroachments, which, it was alleged by the information, were injurious to its navigation ; that the Defendants pretended that they had a grant of the bed of the river from the Crown, and that they had some charters, not containing the grant, but recognising the grant-charged-that there was no such grant of the freehold in any charter from the Crown to the Defendants, and that there was no charter recognising such grant. Other pretences of title by the Defendants were stated in the information, and negatived by it; and it concluded with the charge that the Defendants had in their possession, &c., clivers documents relating to the matters aforesaid. The Defendants, by their answer, denied the title of the Crown to the bed of the river Thames, and left it as a matter of law whether any such general right existed in the Crown as was claimed by the information ; and they met the fact of title of the Crown to the land and soil of the river by a direct negative, and insisted that the Crown was not, but that the Defendants were, entitled thereto. The Defendants admitted that they had held the office of conservators. Held, that the answer was insufficient. A Plaintiff is entitled to a discovery from the Defendant, not only of that which constitutes his own original title, and of what the Defendant's case is [though not to the discovery of the evidence by which that defence is intended to be supported], but also to a discovery to enable him to repel a defence which he expects will be set up. 2H. 4TW.2. ATTORNEY-GENERAL V. COEPORATION OF LONDON 1573 The object of the stat. 21, Jac. 1, c. 14, was to place a party contesting with the Crown in the same situation as a party contesting with any other Plaintiff. An agent cannot gain an adverse title, unless he can very distinctly shew that what he has done is in respect of title, and not of his agency. Where it is charged by a bill that the Defendants have in their possession documents which relate to the matters aforesaid, that is, the Plaintiffs title (amongst other things), it is not sufficient for the Defendants, with a view to excusing their production, simply to state their belief that such documents do not contain evidence of, or tend to shew, the Plaintiff's title; but they must, in distinct terms, negative the grounds on which the Plaintiff asks for their production. Observations on the passages contained in Mitford on Pleadings in Equity, p. 190, 5th edit. ; and Wigram on Discovery, p. 285, 2d edit. The principle of the rule, that the Attorney-General never receives or pays costs, will for the future be modified thus-viz., that the Attorney-General is not to receive costs in a contest in which he could have been called upon to pay costs, had he been a private individual; but the rule is not to be without exception. This was an ex qfficio information, filed by Her Majesty's Attorney-General against the Corporation of the City of [2] London, and William Cubitt, Sir Thomas Turton, John Oliver Hanson, William George Prescott, Sir Courtenay Boyle, John Peter Rasch, and John Cornelius Park. The substance of the information will be found satisfactorily stated in the 8th Vol. of Mr. Beavan's Reports, p. 270, on the argument before the Master of the Rolls of the demurrer and answer put in to the information by the Corporation of London. On that occasion the demurrer was overruled by the Master of the Rolls. On the 4th of July 1848 the Corporation of the City of London filed their further answer to the information, to which five exceptions were taken on behalf of the Attorney-General, and afterwards referred to the Master and allowed by him. The Master's report, allowing the several exceptions taken to the answer, was excepted to on the part of the corporation, and after argument before the Master of the Rolls, his Lordship made an order overruling all the exceptions to the report. From that order the corporation now appealed to the Lord Chancellor. The purport and effect of the information and answer thereto being stated in the Lord Chancellor's judgment, it has not been deemed proper to insert the same here. The five following passages contained in the information were those to which the Master reported that no sufficient answer had been made by the Defendants:- 1st, "Whether it is not true that no charter or letters [3] patent, given or granted by any of Her Majesty's predecessors, Kings or Queens of this realm, 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 said mayor, commonalty, and citizens, or how do the Defendants make out the contrary; and that the said Defendants have not discovered and set forth under and by what charter, or letters patent, or other grant they claim to be entitled to the freehold of the said bed and shores of the river." 2d, " Whether it is not true, that, in no charter or charters granted to the City of London by any of Her Majesty's predecessors, has 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 recognised and confirmed, or how do the Defendants make out the contrary; and that the said Defendants, the mayor, commonalty, and citizens, have not discovered and set forth by what charter or letters patent or other documents they maintain that the said pretended right is recognised and confirmed." 3d, " Whether it is not true that the said charter or letters patent of His late Majesty King Henry VI. is or are of no force and effect to pass and convey to the said mayor, commonalty, and citizens the soil, bed, and shores of the said river, or how do the Defendants make out the contrary; and whether it is not true that such charter or letters patent has or have been subsequently revoked, resumed, or annulled, or how do the said Defendants make out the contrary." 4th, " Whether it is not true that no sufficient acts of ownership, on the part of the said mayor, commonalty, and [4] citizens, or other deeds, matters, or things, can 1574 ATTOENEY-GENBEAL V. CORPORATION OF LONDON 2 H. & TW. 5. be shewn as evidence of such immemorial usage as that set up by the said mayor, commonalty, and citizens as aforesaid, or how do the Defendants make out the contrary." 5th, "And that the Defendants may in manner aforesaid answer and set forth whether they have not or 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 may set forth a full, true, and perfect list and schedule of all and every the said books of account and accounts, deeds, instruments, and charters, letters patent, copies of charters, copies of letters patent, leases, counterparts, entries, receipts, memoranda, agreements, maps, plans, elevations, drawings, papers, and writings, and set forth what have or hath become of such of them as are or is not now in their or his possession, custody, or power." Mr. Bethell, Mr. Serjeant Merewether, and Mr. Eandell, in support of the appeal. The title of the Defendants to the land between high and low water mark is evidenced by a long series of acts of ownership by or on the part of the Defendants, their rights being referred to in charters granted by the Crown and other documents, which the Defendants insist on their right to withhold from the Crown, as exclusively belonging to them. It appears from the information itself, that the title of the Crown requires no document to support it, [5] the Crown being entitled jure corona; to the soil of all navigable rivers between high and low water mark. The discovery sought by the information is merely for the purpose of enabling the Attorney-General to impeach the title of the Defendants; but the rule of the Court is, not to compel the production by a Defendant of any documents that will impeach the Defendant's title. The reasoning of the learned Judge who decided the case in the Court below it is submitted is incorrect, or at least...
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