ground upon which he held the purchaser entitled to forbear payment of the interest, his construction of the words "from any cause whatever" is sufficiently clear:-"When the words used are from any cause whatever,' they must mean some cause not provided for by the contract, the parties not considering the probability of either one or the other breaking the contract." This loophole has already given occasion to attempts to evade the decision in De Visme v. De Visme, by inserting in conditions of sale some stronger form of expression, which may be held to extend to the contingency of default on the part of a vendor. It is difficult, however, in the face of the judgment before us, to understand how the hope of evading its effects can be entertained. To any one who examines that judgment, it must be clear that no terms short of a distinct contract that the purchaser shall pay interest from a day certain, although prevented from performing his part of the contract by the acts or defaults of the vendor, would have been construed by Lord Cottenham to extend to such contingencies; and even if a purchaser could be found so regardless of his own interest as to bind himself by such an agreement, it would not avail the vendor, who, upon the broad principle adopted in De Visme v. De Visme, could not enforce specific performance without making compensation.

The first practical inference from the case before us is a caution to vendors not to presume upon any stipulation, however strongly worded, relative to the payment of interest upon purchase-money. The second is a caution to purchasers, in cases of such default by a vendor as occurred in De Visme v. De Visme, to abstain from setting apart their purchase-money until such time as the vendor has put himself right. As an inference from the doctrine that a purchaser is not liable to pay interest until a good title is shown, Lord Cottenham held further, that the purchaser in this case, having set apart his money at an earlier date, had done so in his own wrong; and that notwithstanding he had given the vendor notice, he must bear the loss occasioned by his money having lain idle.

De Visme v. De Visme was followed by Lord Langdale, M. R., in Skelton v. Robinson (12 Beav. 363), and is cited in Monro v. Taylor (8 Hare, 70). Rowley v. Adams (12 Beav. 476) will be found on examination not to affect the principle adopted by Lord Cottenham, the delay in that case having been held not to be attributable to the vendor.




The Attorney-General v. The Corporation of London, 2 M'N. & Gor. 247. LORD REDESDALE, speaking of the purposes for which discovery is given, says that a plaintiff may require a discovery of the case on which the defendant relies, and of the manner in which he intends to support it. The words in italics are disputed by Sir James Wigram in his Treatise on Discovery. "The first of these propositions," his Honor observes in reference to the passage in Lord Redesdale, " that a plaintiff is entitled to a discovery of the case on which the defendant relies, that is, that the plaintiff is entitled to know what the case is, admits of no doubt. The common rules of pleading make it necessary that the defendant should so state his case, that the plaintiff may know with certainty what case he has to meet; and in the strict observance of those rules a plaintiff is secure against surprise. is at the peril of the defendant, if his pleadings are defective in this respect; but this is quite independent of the law of discovery. The second part of the above quotation from Lord Redesdale, viz., that the plaintiff has a right to know in what manner the defendant intends to support his case, must, it is conceived, be an inaccuracy. It is decidedly opposed to all the authorities."


The point in dispute between these high authorities was determined by Lord Cottenham in the Attorney-General v. The Corporation of London. The information in that case insisted on the right of the crown by royal prerogative to the ground and soil of the River Thames, and alleged that the corporation of London had for a long period, either by prescription or under some grant from the crown, held the office of bailiff or conservator of the river, but that they did not by virtue of such office acquire any estate or interest in the ground and soil of the bed or shore of the river. It then alleged that the corporation claimed to be seised of the freehold of such ground and soil, and had assumed to exercise acts of ownership, which were beyond their power as bailiff and conservator, and charged in the usual form of replication charges that no grant had been made, by charter or letters-patent by her majesty's predecessors, of the soil and bed of the river to the corporation; that in no charter had any immemorial right of the corporation to the ownership of the soil, bed and shore of the river, as arising from a previous grant, been recognized or confirmed; and that no 2 P. 285, pl. 372.

1 Mitf. Pl. 7.

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.


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,

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