C. A.

1897

more than a fishing attempt to go through documents for the purpose of discovering something to help the informant on some part of the river other than that now in question. The appel- ATTORNEYlants are at a disadvantage, because while discovery cannot be compelled by them as subjects against the Crown, the Crown NEWCASTLEcan always claim discovery against the subject.

But in the present case the Crown has to meet the difficulty that, according to the practice, an objection on the ground of insufficient discovery ought to be taken by way of exception to the sufficiency of the answer put in by the defendants. No such exception was taken within the six weeks limited by the Rules under the Crown Suits Act, 1865, in that behalf, i.e., rules 4, sub-rule 1, and 5, sub-rule 5, and consequently the right of the Crown to further discovery is barred, and the Court had no jurisdiction to make the order appealed against: Fowler's Exchequer Practice, p. 354.

Sir R. E. Webster, A.-G., and Vaughan Hawkins, for the respondent. An offer has been made on behalf of the Crown to give the appellants the same discovery as they would have been entitled to if the litigation had been between subject and subject.

It is said that the Crown's right to further discovery is barred because no exception was taken to the sufficiency of the answer. But there is in fact no such rule. In the matter of discovery the Crown and a subject litigating together are precisely on the same footing as ordinary parties: Attorney-General v. Corporation of London (1); Attorney-General v. Emerson. (2) If it appears that the documents may probably relate to the case of the informant (as it does here), it is not enough for the defendants to say generally that they relate only to other parts of the river, or to their duties as conservators, and to refuse to produce them on that account. The defendants claim the whole foreshore and bed of the river within the limits of the port, and are also conservators of the river; and it may be of vital importance to the Crown to know what documents they possess, and what acts of ownership they have done as conservators or otherwise with reference to the foreshore and bed outside what (1) 2 Mac. & G. 247. (2) 10 Q. B. D. 191.

GENERAL

V.

UPON-TYNE CORPORATION.

C. A.

1897

ATTORNEY

is claimed by the Crown. The objection as to the omission to except is purely technical, and it was not open to the informant to except, because the answer upon the face of it GENERAL was perfectly good. But neither the sufficiency of the answer NEWCASTLE- in point of form nor the omission to except prevents the Court CORPORATION. from ordering a further affidavit where there is a reasonable

v.

UPON-TYNE

suspicion that the defendant has not made sufficient discovery: Noel v. Noel. (1) At most the objection is one which might be got rid of by amendment, and the Court will not nowadays require that formality to be gone through.

The practice which has subsisted for upwards of 100 years, and ought not to be disturbed, shews that in a case like this the circumstance that the answer has not been excepted to has no effect whatever upon a plaintiff's or an informant's right to inspection or discovery, and there can be no doubt that the Court had full jurisdiction to order a further affidavit, and that this is the least that the Crown is entitled to: 1 Fowler's Exchequer Practice, ed. 1817, pp. 49, 50; Wigram on Discovery, pp. 199, 200.

Graham, in reply.

LOPES L.J. I am of opinion that the order of the learned judge in the Court below, dated April 10, 1897, ought to be maintained. [The Lord Justice then read the order, and continued:-]

In my opinion that was as lenient an order as the learned judge, in the circumstances of the case, could make. Amongst other things, it was urged on behalf of the appellants that they had a grievance; for while on the one hand discovery could not be compelled from the Crown, on the other hand the subject was bound to discover. That grievance was entirely removed by the statement at once made by the Attorney-General that this practice would not govern the present case, and that the Crown would afford the same discovery in this case as a subject would be entitled to in a suit between subject and subject. Then the point was taken and strenuously urged that there was no jurisdiction to order dis

(1) (1863) 1 De G. J. & S. 468.

C. A.

1897

GENERAL

v.

UPON-TYNE

Lopes L.J.

covery in this case because the answer had not been excepted to. It was contended that the answer ought to have been excepted to within six weeks; that the time had expired ATTORNEYwithout its having been excepted to; and, therefore, that there was a bar to any further discovery. I do not think that NEWCASTLEthat contention can be for one moment maintained. In the CORPORATION. first place, it is a technical objection, because the information might be amended, and the difficulty might be got rid of. But the objection is not maintainable. In my view the right of the Crown to discovery against a subject is the same as in a suit between subject and subject, and I cannot think that that right can be taken away by the fact that the six weeks' time for excepting to the answer has been allowed to expire. There is very strong authority in favour of what I have said. There is the long practice. I am not so familiar with those matters as my learned brother who sits by my side, but I am told that a long practice has prevailed extending over a hundred years to the effect that discovery can be granted in a case like this notwithstanding there has been no exception to the answer. There are two cases which have been referred to, one, AttorneyGeneral v. Corporation of London (1), and the other, AttorneyGeneral v. Emerson (2), they are strong authorities in favour of that point. I come, therefore, to the clear conclusion that there is jurisdiction to order discovery in this case.

But a further point arises with regard to the merits; and the line which appears to have been taken by the defendants is this. They say, all that is claimed by the information is the foreshore to two manors, and all that we can be called upon to discover are documents and acts of ownership relating to those two manors; and if we have any other documents, or if there are any other acts of ownership which relate to other portions of the River Tyne, we cannot be called upon to discover those. I think there the town clerk has acted on a wrong principle. Directly you get to the "unum quid" (3), which you do in this case-I mean by unum quid a stream or common, whichever it may be other acts of ownership on other parts of the common or (1) 2 Mac. & G. 247, at p. 268. (2) 10 Q. B. D. 191.

(3) Neill v. Duke of Devonshire, (1882) 8 App. Cas. 135, 151.

VOL. II. 1897.

2 E

2

C. A.

1897

ATTORNEY-
GENERAL

v.

UPON-TYNE

Lopes L.J.

of the river, as the case may be, are admissible as evidence, and are subject-matter of discovery by the opposite party, because they are acts which more or less may go, and very often do go, to repel the title which is set up by the defendant. NEWCASTLE- Now it is most material in this case to bear in mind what CORPORATION. the defendants do claim. They claim in their answer to be owners of the whole of the foreshore and bed of the River Tyne within the limits of the port of Newcastle, and they also are Conservators of the River Tyne. And what the Crown desires is to have discovery of any documents or acts of ownership which relate to other parts of the River Tyne outside the foreshore of those two manors, and also any acts of ownership or documents which have anything to do with their position as Conservators of the River Tyne. It appears to me that they are clearly entitled to discovery of such matters.

The rule was very well put, if I may say so, by Parke B. in Jones v. Williams (1), where he says: "Evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury that the place in dispute belonged to the plaintiff if the other parts did." I think that is applicable to the present case.

With regard to anything done by the defendants as conser vators, it appears to me that there may be acts and documents relating to them as conservators which it may be most material for the Crown to have discovery of for the purpose of determining what the nature of those acts or the character of those documents may be. I mean by that whether they are acts referable to their agency as conservators, or whether they are acts referable to their being the owners of the soil. There are acts which may be done by conservators such as (taking a case which was put to us by the Attorney-General) the erection of a pier, or the creating an obstruction in a river which might, if they were not conservators, be a most formidable act of ownership, but which might be qualified or accounted for, so as not to be of any value as proving ownership of the soil, if those same things were done by the defendants in their character (1) (1837) 2 M. & W. 326.

of conservators. I think, therefore, it is most material that discovery should be made of those matters.

C. A.

1897

GENERAL

v.

In my opinion, the order of the learned judge in the Court ATTORNEYbelow is perfectly right, and I think the Crown are entitled to see all such documents as I have alluded to which repel the NEWCASTLEdefence which has been set up by the defendants-I mean CORPORATION. documents which have anything to do with the soil of the bed of the river.

I think the appeal ought to be dismissed.

RIGBY L.J. I am of the same opinion. First, on what I may call the point of procedure, it is suggested that because there was an Act of 1865 followed by the rules of the next year, 1866, with regard to the procedure in Crown suits, unless you can find in black and white in that Act something pointing to the particular procedure here, you cannot have it at all. I do not agree with that in the least. The particular rule which is insisted upon is that with regard to exceptions to answers. The time given for exceptions is six weeks. Well, with regard to this individual case, it appears to me that whether the time is six weeks, six months, or six years, is of very little importance, because the answer could not have been excepted to. It is as good an answer in point of form as could possibly have been required. The question was as to the documents relating to the subject-matter of the suit in the possession of the defendants. The answers are strictly correct in point of form ; and, assuming them to correspond with the facts (I am not suggesting that there is any departure from the truth), the answer is unexceptionable.

Therefore, the contention must really come to this: that if the defendants to an information have brought themselves by what I will assume to be an honest process of reasoning up to the mark of saying, "We have these documents and no others," there is an end for ever in that suit to any claim for further discovery to be obtained from them. I think that is altogether unreasonable. I think it altogether in opposition to what has been the substantial practice, first of all, as laid down in Wigram V.-C.'s well-known book on Discovery, and then,

UPON-TYNE

Lopes L.J.