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sufficient acts of ownership, deeds, matters or things, could be shown as evidence of the immemorial usage pretended by the corporation as the foundation of their rights. The defendants by their answer denied the title of the crown, and alleged a title in themselves; and after admitting that they were conservators, and had exercised the acts of ownership alleged in the bill, insisted that they were not bound to answer the charges. Exceptions taken by the Attorney-General to the answer of the defendants were allowed by the Master, whose decision was confirmed by Lord Langdale, M. R. (12 Beav. 8). The defendants appealed to the Lord Chancellor, and contended that, although the informant was entitled to the discovery necessary to make out his own title, he had no right by a fishing bill, alleging that the defendants' deeds will not make out his right, to have a discovery of the defendants' title, and thus enable persons to pick holes in it.
Lord Cottenham, in a judgment comprising several other important points, and of which we give merely the substance, said nothing could be more clear from authority and universal practice, than that a plaintiff is entitled to discovery, not only of that which constitutes his own original title, but for the purpose of repelling what he anticipates will be the defence. If, he said, the plaintiff can anticipate what the defence will be, he alleges, by means of a charge in the nature of a replication, facts which if true would show that the defence is not available against him. If he cannot, he asks the defendant what his defence is, and in what manner he means to support it. His right to ask what the defence is, admits of no doubt. He has also a right to ask in what manner the defendant means to support his defence; not, indeed, in the sense in which Sir James Wigram understands those words, namely, that the plaintiff has a right to see the documents, or to know the evidence by which the defence is to be proved, which the authorities show he is not. It is not enough, therefore, for a defendant to deny the plaintiff's title, and to assert his own; he must also show how he derives his right; must show, in short, that he has a title, which, if proved, would displace that of the plaintiff. The plaintiff having a right to a discovery of every thing which can establish or strengthen his title, or repel what he expects to be set up against it, it follows that if he alleges that a deed forming part of defendant's title, and of which without more he could not compel production, contains something which would show or support his own title, the defendant, if he does not produce the document, is bound to negative
the allegations, and that whether they relate to something to be found in the document itself, or to something to be inferred from the silence of the document. Therefore, in this case, when the plaintiff charges that in none of the charters from the crown to the corporation of London, is there any grant of the soil or bed of the river, he has clearly a right to discovery, whether it is not true that no charter contains any such grant, in order that when the matter comes to a hearing he may have an admission from the defendants themselves, that no charter contains any such grant. The other part of the interrogatory, requiring the defendants to discover and set forth under or by what charter, or letters-patent, or other grant they claim to be entitled to the freehold of the soil, looks like an investigation of the defendant's title, but it is not an investigation of the proof of that title, except as to that which constitutes the foundation of it; and that comes exactly within what Lord Redesdale says, and in which Sir James Wigram concurs, that the plaintiff is entitled to a discovery of the case upon which the defendant relies. Lord Redesdale goes further, adding, "and how he means to support it." If by these words it is intended to say that the plaintiff in the present case might ask to see the charters, and then to investigate the evidence on which the defendants rely, that would clearly be going beyond what the rule of the court would permit, and Lord Redesdale would have expressed himself too largely; but taking the words in a restricted sense, they simply enable the plaintiff to ask under what title the defendants claim the property which the plaintiff asserts to be still vested in the crown. His lordship, therefore, although he admitted that the latter part of the interrogatory was apparently open to some doubt, held, that the plaintiff was clearly entitled to an answer to the whole of the interrogatory embraced in the first exeeption. The remaining exceptions were allowed, upon the ground that they fell within the same principle as that already observed upon with reference to the first.
In a later part of his Treatise, Lord Redesdale expressly says, "In general, where the title of the defendant is not in privity, but inconsistent with the title made by the plaintiff, the defendant is not bound to discover the evidence of the title under which he claims." (Mitf. Pl. 190.) It is clear, therefore, that in the passage quoted at the commencement of this article, he did not intend to assert that a plaintiff is entitled to have a discovery of the documents or other evidence, by which the defendant intends to prove his case. Thus interpreted, the rule that a plaintiff is entitled to a discovery of the case on which
the defendant relies, and of the manner in which he intends to support it, is consistent with the authorities. The defendant must show that he has a title, which, if proved, would displace that of the plaintiff.
COSTS, WHERE THE ATTORNEY-GENERAL IS A PARTY.
S. C. 2 M N. & G. 269.
THE last preceding case decides an important question, as to the course of proceeding with regard to costs, where the Attorney-General is a party.
The saying that the Attorney-General neither pays nor receives costs had passed into an axiom, which, in the words of Lord Cottenham, " too often gave encouragement to parties to carry on an unnecessary and improper litigation." It had been acted upon by the House of Lords in Smith v. The Earl of Stair and others (6 Bell's App. C. 487), and by the same House in affirming the judgment of Lord Langdale, M. R., overruling the demurrer to this information, when the House, acting upon Lord Cottenham's advice, had refused costs. On the other hand, there were cases in which the House of Lords had given the Attorney-General costs, particularly in The Skinners' Company v. The Irish Society (12 Cl. & Fin. 425), where the Attorney-General was a defendant, but the bill having been dismissed at the Rolls with costs, the House of Lords, on appeal, affirmed the whole of that decree. The authorities were conflicting, and it was most important that the rule should be clearly understood.
The question was again raised in the case before us. In overruling the defendant's exceptions to the Master's report, Lord Langdale, M. R., had dealt with the parties as private individuals, and gave costs accordingly. On the appeal to Lord Cottenham, the defendants contended that costs ought not to have been given, relying upon the rule that the crown, when suing in respect of its private revenue, neither pays nor receives costs; and they cited, amongst other authorities, the judgment of the House of Lords on the demurrer in the present case, pronounced upon the advice of Lord Cottenham himself. The question having stood over for the court to make inquiries as to the course of proceeding, Lord Cottenham, upon a subsequent day, admitted that there was an error in the advice which he had formerly given to the House of Lords. That advice was given without time for consideration; there was no argument,
and he thought there was an error in that advice. His lordship then proceeded to deliver the judgment he had formed after consulting the best authorities. To a certain extent the rule that the Attorney-General could receive no costs was necessary, in order to protect parties opposed to him as a suitor from injustice. In a suit in which the Attorney-General, if he had been a private individual, would have been compelled to pay costs, nothing would be more unjust than that he should, under any circumstances, be entitled to receive costs. In such a case, therefore, and to such an extent, the court adopted the rule. This, however, was not a case of that description, and did not fall within the rule so adopted. The party in possession of a judgment was never made to pay costs. Having got the judgment, he was entitled to defend it; and although the court upon rehearing, or upon hearing exceptions to the Master's report, which was the same thing, might be of opinion that the judgment was not right, and therefore alter it, the party who merely supported what a court of competent jurisdiction had already determined, was never made to pay costs in that contest. Here the Attorney-General was in possession of the Master's report. The defendants complained of that report. The Master of the Rolls was of opinion that there was no ground for that complaint, and gave the costs of upholding the judgment. The Attorney-General could not have been made to pay costs, and therefore his position as to costs was no grievance to the defendant upon appeal. The appeal was therefore dismissed generally, including the question of costs.
The practical conclusion from this judgment will be best expressed in the words with which Lord Cottenham concluded :— "I have consulted with the best authorities upon the subject, and we are all of opinion that it would be well to consider, not as a rule without exception (because it is always matter of discussion to a certain extent), but as a general rule, that the principle that the Attorney-General never receives nor pays costs, may be modified in this way, namely, that the Attorney-General never receives costs in a contest in which he could have been called upon to pay them, had he been a private individual. That would give all the protection to the suitor opposed to the Attorney-General, which is in justice due to him, and at the same time discourage what, I think, is too often the case, namely, carrying on an unnecessary litigation in consequence of the rule."
STATUTE OF LIMITATIONS-PART PAYMENT-PROOF OF BY ADMISSION OF Debtor-9 Geo. 4, c. 14.
Cleave v. Jones (in error), 20 Law Journ. Exch. 238.
FROM the passing of the Statute of Frauds until the 9 Geo. IV. c. 14, a debt, of what magnitude soever, might have been taken out of the operation of the Statute of Limitations, by evidence of a nature wholly insufficient to fix a defendant with it originally if above a certain sum. A mere verbal acknowledgment or promise given in evidence as having been made by the debtor, was enough to make him liable for a debt, the recovery of which was barred by the lapse of time; and thereby in those very cases in which the Statute of Limitations was most likely to be an honest defence, its beneficial effects were liable to be defeated by false swearing, of a class the most difficult to expose or punish, and the most impossible to rebut. Lord Tenterden's Act, however, rendered it necessary that the promise or acknowledgment should be in writing and signed by the debtor, and so remedied the evil; at the same time it expressly professed to leave untouched the third way of defeating the effect of the Statute of Limitations on a debt, viz. by proving a payment on
Now it never was doubtful on the construction of this statute, but that independent proof of a payment by the debtor on account within six years would revive a debt; but where the only evidence of the payment on account was a verbal acknowledgment of that fact by the debtor, it was held, in Willis v. Newham (3 You. & J. 518), that such evidence was excluded by the statute; and this decision has hitherto been followed, doubtingly, indeed, and sometimes with great reluctance. At length a prediction in Mr. Smith's Leading Cases (vol. i. 321b), that its doctrine would not stand the test of a writ of error has been verified by the present case, in which a memoranduin of payment of interest within six years in the debtor's handwriting (unsigned, and therefore a mere parol acknowledgment) has been held to be clearly evidence of the fact of payment. Lord Campbell, C. J., after observing that the preamble of the 9 Geo. IV. c. 14, points to the proof and effect of acknowledgments and promises, states the three methods of reviving a debt, and also the express enactment as to two of them, and the express exception of the third, and forcibly deduces from thence that "the effect and proof of payment on account is left exactly