person appointed by the Trinity House, to be conservators of the river Thames. The 52d section shows that very large powers were intended to be conferred upon that body. The 53d section enables them to grant to the owner or occupier of any land fronting and immediately adjoining the river Thames a license to make any dock, basin, pier, jetty, wharf, quay, or embankment, wall, or other work immediately in front of his land, and into the body of the said river, upon payment of such fair and reasonable consideration as is by this act directed, and under and subject to such other conditions and restrictions as the conservators shall think fit to impose. The saving clause, s. 179, does not, I think, go to the extent which has been contended for on the part of the company. It enacts"that none of the powers by this act conferred, or anything in this act contained, shall extend to take away, alter, or abridge any right, claim, privilege, franchise, exemption, or immunity to which any owners or occupiers of any lands, tenements, or hereditaments on the banks of the river, including the banks thereof, or of any aits or islands in the river, are now by law entitled, nor to take away or abridge any legal right of ferry, but the same shall remain and continue in full force and effect as if this act had never been made." This was evidently not intended to save any "rights of action," but refers to vested rights of property, and probably has a more particular application to s. 59, which authorizes the conservators to erect piers and landing-places, and to vary the public landing-places already erected or intended to be erected. In exercising their authorities, the conservators are not to interfere with any rights of the owners of the soil. It seems to me that no

right of that sort is at all interfered with or assailed by that [*410 which is proposed to be done here; and that the only persons whose consent or license was necessary, are the persons to whom the company are by this award directed to apply.

WILLES, J.-I am of the same opinion. The words of the 53d section of the 20 & 21 Vict. c. cxlvii. appear to me to be quite large enough to authorize the erection of a pier or landing-stage under the license of the conservators such as is contemplated by this award. As to the saving clause, s. 179, one may conceive a species of right existing concurrently with a public right which could not be interfered with. One can conceive a way first used as an occupation-way, and then turned into a public highway, and the public right afterwards extinguished, and so the private right alone remaining. Such a right would be within the saving clause. The rights here intended to be saved are, such rights, &c., as may belong to the parties as owners and occupiers of the adjoining premises, not as individuals forming part of the public. The sum of these rights of individuals as part of the public put together makes the public right; and that right is taken away or abridged by the powers conferred by the act upon the Thames conservators.

BYLES, J., having been engaged as counsel in the cause, contented himself with generally expressing his concurrence.

Rule discharged, without costs.

*411]

*THE LONDON GAS-LIGHT COMPANY v. THE VESTRY OF THE PARISH OF CHELSEA. May 11.

It is no objection to an order, under the 14 & 15 Vict. c. 99, s. 6, for the inspection of a document in the possession of a defendant, that its production will disclose his case, provided that it be satisfactorily shown that it also supports the plaintiff's case.

THIS was an action to recover the price of gas supplied by the plaintiffs to the defendants.

The declaration stated, that, theretofore, by deed, made the 23d of March, 1858, between the defendants of the first part and the plaintiffs of the second part, the plaintiffs, amongst other covenants of the plaintiffs as in the said deed mentioned, covenanted with the defendants that they the plaintiffs should and would at their own costs and charges, to the satisfaction of the defendants or their surveyor, for and during the term of three years, to be computed from the 1st of October, 1857, determinable as thereinafter mentioned, well and sufficiently light or cause to be lighted with gas, in all and every the streets and other public places and passages in the said parish of Chelsea in which their mains were at the time of the making of the said deed, or might thereafter be laid (exclusive as therein before mentioned), each and every night at sunset, and continue lighted till sunrise, such number of public lanterns, to be fixed in the manner therein mentioned, at and after the rate of 4. 108. for every lantern for a year, and so in proportion for any period less than a year, during which the said lanterns should be duly supplied and lighted with gas, such gas to be well and sufficiently purified, so that the said gas should give a clear and white and brilliant light, agreeably to the true meaning of the said contract, and the light or flame to be in all respects such a light or flame as is known by the name of the large "bat's-wing burner," each burner consuming at the rate of five cubic feet of gas per hour at the least: And the defendants *412] *thereby, as far as they lawfully could or might, covenanted and agreed with the plaintiffs, that, if the plaintiffs should and would paint and keep the columns and posts and service-pipes, bracket lanterns, iron lanterns, stop-cocks, bat's-wing burners, glass, and other apparatus therein mentioned, in good repair and condition, and well and effectually light the said lanterns with gas, and observe, perform, fulfil, and keep all and singular the covenants, clauses, and agreements therein contained, and which on their part ought to be observed, performed, fulfilled, and kept, in all respects, and particularly according to the true meaning of the said presents, they the defendants should and would well and truly pay, or cause to be paid, out of the funds in their hands, or which they could or might raise or obtain by virtue of the powers and authorities vested in them, unto John Rigby Hinde, the then secretary, or unto any future secretary for the time being of the plaintiffs, or such other person as the plaintiffs might appoint, for and on their account, for every lantern lighted with gas of the plaintiffs, at and after the rate of 47. 10s. for the year, and so in proportion for a less period than a year during which such lantern should be actually so lighted, painted, and repaired as therein before mentioned, in manner following, that is to say, on the 1st of October, the 1st of January, the 1st of April, and the 1st of July in every year, or as soon after as conveniently might be, without any

deduction or abatement whatsoever: Averment, that the said deed had been from the time of the making thereof hitherto, and still was, in full force and effect, and not determined; and that the said term of years thereby created had not been determined; and that the plaintiffs did, in pursuance of the said deed, supply and deliver to the defendants, who accepted the same, large quantities of gas during the year 1858, to wit, to the value of 22961. 0s. 6d. ; and that the plaintiffs had performed all conditions precedent on their part to be performed [*413 according to and under the said deed, and that all things had been done and happened necessary to entitle them to payment from the defendants in the manner provided by the said deed for the said gas so supplied and delivered as aforesaid, and that all times had elapsed necessary to entitle the plaintiffs to such payment by the defendants as aforesaid, and to maintain the action: Breach, that the defendants had not paid the plaintiffs, or any person on their behalf, for the said gas supplied as aforesaid, or any part thereof, but had therein wholly failed and made default, contrary to the said deed.

The declaration also contained counts for gas sold and delivered, and for money due on accounts stated. Claim, 40007.

The defendants pleaded,-first, to the first count, non est factum,— secondly, to the first count, that the plaintiffs did not during the said period light the said public lanterns, or cause the same to be and continue lighted, pursuant to the said deed, to the satisfaction of the defendants or their surveyor,-thirdly, to the first count, that the plaintiffs did not supply and deliver, nor did the defendants accept, as alleged,fourthly, to the first count, that the plaintiffs did not during the said period so light the said public lanterns during each and every night, at sunset, and so continue the same lighted till sunrise, that the light or flame therein was such a light or flame as is known by the name of the large bat's-wing burner, and consumed at the rate of five cubic feet of gas per hour at the least, within the true meaning of the said deed,— fifthly, to the residue of the declaration, payment of 1800l. into court. Upon these pleas issue was joined on the 8th of April, 1859. *On the 13th of April, the following order was made by Byles, J., at Chambers, on the application of the defendants :-" Upon Upon [*414 hearing the attorneys or agents on both sides, I do order that the plaintiffs do produce to the defendants, and permit them to take copies of, the following documents mentioned in the affidavit of J. R. Hinde, except such parts as do not relate to the matters in question in this cause, viz. Weekly reports of the inspector, Daily pressure papers in the districts, Pressure register papers at the works at Vauxhall, District inspector's book, containing list of public lamps, District inspector's report book, District inspector's book of measurement of quantity of gas consumed in public lamps in Chelsea during the last two months of 1858, Mr. Warrington's reports of the quantity of illuminating power of the plaintiffs' gas, and Ledger containing defendants' account,-the defendants to pay cost of inspection and copies; and all further proceedings herein to be stayed till such inspection is granted and copies taken."

This order was made on production of an affidavit of the plaintiffs' secretary (Mr. Hinde) in obedience to an order under the 50th section of the Common Law Procedure Act, 1854, which affidavit set forth in a schedule the plaintiffs' documents, and stated that the plaintiffs did

not, to the best of his belief, object to the production of such documents, except such parts of them as did not relate to the matters in question in this cause.

On the 13th of April, the plaintiffs served a summons for inspection and copies of the defendants' documents, with a copy of an affidavit in support, sworn by the plaintiffs' engineer, who deposed that "he was informed and believed that the defendants had, by their officers and others, made experiments and observations with regard to the lighting by the plaintiffs of the lamps in the defendants' parish under the con*415] tract declared on, and that they had in their possession and power certain papers and writings showing the results of the said experiments and observations, which would prove that the plaintiffs had performed their said contract both as to the quantity and quality of the gas supplied to the parish of Chelsea; and that the deponent was informed and believed that it would be material and necessary for the plaintiffs, in order to enable them to prepare for the trial of this cause, to inspect and take copies of or extracts from the said papers in the defendants' possession, showing the results of the said experiments and observations."

This summons was opposed on the part of the defendants, on the ground that the title to discovery was not shown, that the 50th section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), had not been complied with, and that the matters of which discovery was thereby sought were evidence relating exclusively to the defendants' case, and that obedience to the order would disclose the manner in which the defendants' case, and their disproof of the case of the plaintiffs, was to be established. The learned judge, nevertheless, on the 14th of April, made the following order :

"I do order that the plaintiffs by their attorneys and officers be at liberty forthwith to inspect and take copies of or extracts from certain papers and documents in the defendants' possession, showing the results of observations and experiments made by the defendants' officers and others on the lamps lighted by the plaintiffs, and of the quantity and quality of the gas supplied by the plaintiffs to the defendants from the month of June, 1858, to the month of December, 1858, both inclusive." David Keane, on a former day in this term, obtained *a rule *416] nisi to set aside the last-mentioned order. He referred to Micklethwait v. Moor, 3 Meriv. 292, and Bligh v. Berson, 7 Price 205. [BYLES, J., observed that the documents on both sides tended to show the quantity and quality of the gas supplied and consumed.]

Bovill, Q. C., and Holland, now showed cause.-If the papers in question show the quantity and quality of the gas supplied by the plaintiffs under the contract declared on, they must necessarily be material to their case. The 6th section of the 14 & 15 Vict. c. 99, enacts, that, "whenever any action or other legal proceeding shall be pending in any of the superior courts of common law, such court and each of the judges thereof may respectively, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party relating to such action or other legal proceeding, and, if necessary, to take examined copies of the same, (a)

(a) The costs of the inspection of documents under this statute must be paid by the party seeking it; but the costs of the application are costs in the cause: Hill v. Philp, 7 Exch. 232.†

or to procure the same to be duly stamped, in all cases in which previous to the passing of this act a discovery might have been obtained by filing a bill or by any other proceeding in a court of equity at the instance of the party so making application as aforesaid to the said court or judge." There are several cases both at law and in equity clearly showing that the order in question was fully warranted by the statute. Hill v. Philp, 7 Exch. 232,† is very like this case. In an action against the keeper of a lunatic asylum licensed under the 8 & 9 Vict. c. 100, for improper treatment of the plaintiff whilst confined there as a lunatic, the defendant was held not to be privileged from producing the

books required by that statute to be kept; and therefore an [*417

order was made under the 14 & 15 Vict. c. 99, s. 6, for the plaintiff to inspect "The book of admissions, The book of entries, The medical visitation book, The case book, and The patients' book," so far as related to the plaintiff and the court also ordered inspection of the defendant's license, and of the order and medical certificates under which the plaintiff was confined, and also of all letters written by the plaintiff's wife and the commissioners in lunacy to the defendant, relating to the plaintiff. It was argued there that the documents an inspection of which was prayed were privileged on the ground of public policy, that they were of a private and confidential character, and not material for the plaintiff's case. But these arguments did not prevail. In Hunt v. Hewitt, 7 Exch. 236,† which is a leading case upon this subject, it is laid down that the 14 & 15 Vict. c. 99, s. 6, has not given to courts of common law the power of compelling a discovery, but only of allowing an inspection of documents, subject to the following limitations,-first, there must be an action or other proceeding pending,-secondly, the documents must relate to such action or other proceeding, and thirdly, the case must be one in which a discovery could be obtained in a court of equity and that the right of a plaintiff in equity is limited to a discovery confined to a question in the cause, and to such material documents as relate to the proof of the plaintiff's case on the trial, and does not extend to the discovery of the manner in which the defendant's case is to be established, or to evidence which relates exclusively to his case. A further illustration of the rule is to be found in the case of Riccard v. The Enclosure Commissioners for England and Wales, 4 Ellis & B. 329 (E. C. L. R. vol. 82). There, on a feigned issue directed under the statute 8 & 9 Vict. *c. 118, s. 56, to try whether the plaintiffs had such an interest in a manner as entitled them to object to [*418 the enclosure of certain lands lying within it, the substance of the defendant's case was, that, though the plaintiffs were lords of the manor, yet a former lord, L., to whom the plaintiffs were privy in estate, agreed, in 1800, not under seal, to take an allotment in severalty of 151 acres of the waste in lieu of his interest, in the rest of the waste; that the agreement was acted upon, and the plaintiffs still enjoyed the allotment. A judge's order having been obtained by the defendant to inspect the conveyances by which L. acquired the manor before 1800, and the conveyance by L. to his son, the probate of the will of the son, under which the plaintiffs were executors, and also all leases and entries relating to the letting of the 151 acres alleged to have been allotted,-the court, upon a rule to rescind the order, held that each of the documents was relevant to the support of the defendant's case, and, being so, the