This was a suit for an account of the profits of certain joint adventures entered into by the plaintiff and the defendant for the supply of saddlery to the French Government. The defendant was a saddler carrying on business in partnership with his father, who however had no interest in the French contracts. The accounts, or some of them relating to the French contracts, had been entered by the defendant in the books of his partnership with his father. Upon making the usual affidavit of documents he set forth a list of these books, but stated that as they were in the joint possession of himself and his father he could not produce them, since his father refused to permit such production.

The Vice-Chancellor, on the application of the plaintiff, ordered the defendant to produce the books, with liberty to seal up such parts of them as did not relate to the matters in question in the suit. From this order the defendant now appealed.

Mr. Glasse and Mr. W. Pearson, for the appellant. The Court has no power to make this order, and besides, the defendant has no means of complying with it. How can the Court affect the rights of a person who is not a party to the suit? The defendant's father has a perfect right to keep his partnership books from the inspection of any person except his own partner. The defendant, therefore, has no right to produce them for the inspection of a stranger to the partnership. They referred to the following cases

Reid v. Langlois, 1 Mac. & G. 627; s. c. 19 Law J. Rep. (N.S.) Chanc. 337;

Taylor v. Rundell, 1 You. & C.C.C.

121; s. c. Cr. & Ph. 104; s. c. 13 Law J. Rep. (N.S.) Chanc. 20; Murray v. Walter, Cr. & Ph. 114; Warrick v. Queen's College, Oxford,

36 Law J. Rep. (N.S.) Chanc. 505; s. c. Law Rep. 4 Eq. 254.

Mr. Cotton and Mr. F. Harrison, for the respondent.-The defendant's father could not object to produce books which, so far as we seek to see them, contain entries having no connection with his partnership business. If he wished to keep his books secret he ought to have prevented such entries being made in them.

LORD JUSTICE JAMES.-I think it would be a serious matter to interfere with settled rules of Court. The Court cannot make an order for production upon a person who is not a party to the suit. The plaintiff is not without remedy. He may, if he thinks proper, amend his bill and make the defendant set out in his answer all the entries which he desires to see, and he can get the production of the originals at the hearing by means of a subpoena duces tecum. The order must be discharged, the costs of both sides to be

costs in the cause.

LORD JUSTICE MELLISH Concurred.

Solicitors Mr. Mark Shephard, for appellant; Messrs. Harrrison, Beal & Harrison, for respondent.

Representations made on plans deposited by the promoters of an intended railway in pursuance of the standing orders of the Houses of Parliament previous to an application for an Act do not bind the railway company after the Act is obtained nor give other persons any equity against the company, except so far as they are incorporated with the Act.

Where a General Act of Parliament is incorporated with a Special Act, if there is any contradiction between them, the Special Act is to prevail.

A Special Act of Parliament, with which was incorporated The Railway Clauses Consolidation Act, 1845, empowered a railway company to stop up all streets within a certain area in the City of London. The deposited plans shewed that S. Street which was within the area was not to be stopped up but to be crossed by an arch. The same plans shewed that other streets within the area were to be stopped up. Subsequently the company obtained another Act, authorizing them to make an underground instead of an above-ground railway, and re-enacting the powers given them by the previous Act. In a suit for an injunction to restrain the company from stopping up S. Street:Held (reversing a decision of BACON, V.C.), that the plans were not incorporated in the Special Act and that the power to stop up all streets within the area, including S. street, was an existing power and capable of being exercised.

This was an information by the Attorney General at the relation of the Commissioners of Sewers of the City of London, and a bill filed by the said Commissioners against the Great Eastern Railway, for the purpose of restraining the company from stopping up or interfering with the public traffic through Sun Street, in the City of London.

The Vice Chancellor Bacon had granted an interim injunction, as reported ante, NEW SERIES, 41.-CHANC.

p. 202. From this order the company appealed, but on the appeal motion coming before their Lordships on February 16, the Court suggested, that as the question to be then argued would be the subof the cause, the motion should be poststantial and only question at the hearing poned to the hearing, both parties undertaking to speed the cause which was to be heard before their Lordships in the first instance. The suit therefore now came before the Court on motion for decree.

The facts, documents and arguments are fully stated in the report of this case in the Court below and in the judgment

of the Lord Justice.

The Solicitor General, Mr. Amphlett, and Mr. Pontifex, appeared for the relators. Sir R. Palmer, Mr. Kay, and Mr. N. R. Smart, for the company.

MELLISH, L.J.-This is an information in the name of the Attorney General at the relation of the Commissioners of Sewers of the City of London to restrain the Great Eastern Railway Company from stopping up a street called Sun Street. The sole question to be determined is whether according to the true construction of the Acts of Parliament which the Great Eastern Railway Company have obtained for the purpose of making their station, they have power to stop up Sun Street. The General Railway Act gives no power to stop up streets and therefore they cannot have power to stop up Sun Street unless an express power is given by the Special Act. Now, certainly the Act of 1864, if we look at that alone without considering the deposited plans and the General Railway Clauses Act, appears to me to confer the power upon the company to stop up Sun Street in the plainest possible terms. In the recital it is stated, "Whereas it is expedient that the company should be authorized to purchase all the lands and buildings in the City of London comprised within an area,' and then it sets out that area, which beyond all question includes a great portion of Sun Street. Then it says, "and to stop up all streets and highways within the said area and to appropriate the site of such area to the purposes of a railway

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station." The recital therefore is to the effect, that it is expedient that the railway company should be authorised to purchase lands including a great portion of Sun Street and to stop up all the streets and highways within that area and to appropriate the site of the area which includes a portion of Sun Street for the purpose of a railway station.

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Now, that being the recital, by the eighth section it is enacted, that the company may stop up and cause to be discontinued as public highways all streets and highways within the area hereinbefore described as the site of the intended station and may appropriate the site of such streets and highways to the purposes of such station." It is very difficult to conceive words which could more clearly say, first, that they may stop up the street; and secondly, that they may appropriate the site of the street for the purposes of the Station. Then the section goes on, "But the western moiety or half-part of the site of Peter Street shall from the time of such stopping up be vested in and belong to the North London Railway Company, and nothing herein contained shall authorise the stopping up of the said street or public place known as Broad Street Buildings, and numbered 57 in the parish of St. Botolph, Bishopsgate, on the said deposited plans." I do not think it is necessary to consider whether anything turns upon the express exception of Broad Street Buildings. Looking to the recitals and this eighth section, it is difficult to say, how plainer words could have been used for the purpose of shewing that the company were to be entitled to stop the streets and were to be entitled to appropriate the site of the streets for the purpose of the station. All you can say is, that they did not think it necessary to enumerate all the streets which are in the area. It appears to me that if it were intended that they should be allowed to stop up all the streets that were within the area, it would be wholly useless and unnecessary and might possibly have led to difficulty if they had professed to set them all out by name, because if they happened to leave one out the consequence would be, that they could not stop up that street. But the exact boundaries of the

area being specified, it was quite sufficient to say that they were entitled to stop up all the streets within the area. That is simply how the case stands under that

Act.

Now let us see what there is on the other side. It appears that in the deposited plans the railway company did specify what streets were intended to be stopped up and what streets were not intended to be stopped up. It is said "Liverpool "Liverpool Street, level unaltered," "Half Moon Street to be stopped," "Sun Street, level unaltered.” There fore no doubt there was a representation made that Half Moon Street was to be stopped, and that Sun Street was not to be stopped. Then, besides that, it is stated on the plans that there was to be an arch of 35 feet span and 16 feet high. Now it is perfectly settled law since the case of The North British Railway Company v. Tod (1), that the mere fact of a representation having been made in a deposited plan, although no doubt it may have the effect of preventing the persons interested in the matter from opposing the railway company in Parliament, does not in any way bind the company unless it is incorporated in the Act. The railway company are obliged by the standing orders of the Houses of Parliament to deposit certain plans which contain what they propose to do. That need not be done for the purpose of deceiving the public, but they are obliged to do it, and it is settled law which cannot be altered now that representations made on such deposited plans do not bind them or give other persons any equity against them except so far as they are incorporated in the Act of Parliament.

Now, the question is how far the representation that Sun Street would not be stopped, and that it would be crossed by an arch of a certain height, is incorporated in the Act of Parliament. In the special Act itself, the only section which has reference to the plans and sections is the 6th. That section says, "And which plans and sections of the proposed railways shewing the lines and levels thereof respectively, and the

(1) 12 Cl. & F. 722.

lands required for the purposes thereof, and of the said intended station in the City of London, and of the enlargement of the Bishopsgate station, and of the other purposes of the undertaking, and also books of reference to such plans, have been deposited with the Clerks of the Peace of the City of London and the counties of Middlesex and Essex respectively. Therefore, subject to the provisions and powers of deviation in this Act, and the Acts incorporated therewith contained, the said railway shall be made in the line or within the limits of deviation, and upon the lands delineated on the said plans and described in the said books of reference, and according to the levels defined on the said sections." That appears to me simply by itself not to be sufficient to incorporate the statement that Sun Street was not to be stopped, or that even the railway was to pass on an arch. It simply states that the railways are to be made upon the line and within the limits of deviation, and upon the lands delineated in the plan. Indeed, reliance was not put to any considerable extent on that section, but reliance was placed, and the whole case in fact against the company depends upon the 13th and 14th sections of the Railway Clauses Consolidation Act.

Now the 1st section of the Railway Clauses Consolidation Act, which is incorporated by the 1st section of the special Act, says, "That this Act shall apply to every railway which shall by any Act which shall hereafter be passed be authorised to be constructed, and this Act shall be incorporated with such Act; and all the clauses and provisions of this Act, save so far as they shall be expressly varied or excepted by any such Act, shall apply to the undertaking authorised thereby, so far as the same shall be applicable to such undertaking, and shall, as well as the clauses and provisions of every other Act which shall be incorporated with such Act, form part of such Act, and be construed together therewith as forming one Act."

Now it was argued by Mr. Amphlett that because there is a section here incorporating that Act, therefore the limitation in the first clause, namely, that the clauses and provisions of the Act shall

apply save as far as they shall be expressly varied or excepted by any such Act, ought not to be construed as applying to the present case. But I am not of that opinion. It appears to me very improbable indeed that Parliament should have intended that the general provisions of the Railway Clauses Consolidation Act should be incorporated in the special Acts in such a way as not to be subject to that limitation; on the contrary, you would expect that when something expressly different is contained in the special Act, that should overrule the general Act. Indeed, in all cases where Acts of Parliament are incorporated, it is the general, and as far as I know, the universal rule that if you find a contradiction between a general Act and a special Act, the special Act is the Act which is to prevail.

What, then, is the effect of the 13th section of the general Act? That section does not come within that class of sections which relate to the crossing of roads by railways, but it is in the class of sections which simply relate to the construction of the railway and the works connected therewith. It enacts that "Where in any place it is intended to carry the railway on an arch or arches or other viaducts as marked on the said plan or section, the same shall be made accordingly." I agree that that does so far incorporate the plans and sections; that it does, unless there is something in the special Act which expressly varies it, enact that the railway (which I think means in this case the line of railway, and does not refer to the station) shall cross Sun Street by an arch. I think that the company could not make it cross Sun Street if there were nothing to vary it in the special Act in any other way than by that arch.

Then the 14th section says, "It shall not be lawful for the company to deviate from or alter the gradients, curves, tunnels, or other engineering works described in the said plan or section,' " with certain exceptions, which I think are not applicable to this case. It may be assumed that the arch would be an engineering work within the meaning of that section. If it would, then it amounts to a repetition.

It would not appear to me to carry the case further than what is contained in the 13th section, that unless there is something which expressly varies it in the special Act that that arch is to be constructed over Sun Street.

Now, what appears to me to be the real question which has to be decided in this case is this: Does the recital of the special Act and the 8th section amount to an express varying of this clause, which says that the arch is to be constructed as delineated on the section? I am very clearly of opinion that it does. If Sun Street had been mentioned by name; if in the 8th section of the special Act all the streets had been enumerated which are within the area, and Sun Street had been one of those enumerated, it could hardly have been contended, and, as I understand the argument, it is not contended, that that would not have overruled the provisions in the Railway Clauses Consolidation Act, respecting the construction of arches where they are shewn on the section. I cannot see that it makes any difference that the special Act does not enumerate all the streets: it says that they may stop up all the streets within the area, and may appropriate the site of the streets (which makes the matter still stronger) for the purposes of the station. It appears to me that that does expressly vary the provisions of the 13th and 14th sections of the Railway Clauses Consolidation Act, and does enable the company to stop up the street, and appropriate the site of the street for a station.

Now, some of the sections were referred to. The 7th section was referred to, but it really appears to me to have little or no bearing on the question. It simply provides for the benefit of landowners that they are to construct one portion of the line before the other.

Therefore I am of opinion that upon the proper construction of the first Act, it gave the railway company power to stop up Sun Street, and to appropriate the site of Sun Street for a station.

Then it can hardly be contended, and I do not think it was seriously contended, that if that is the true construction of the first Act, the right to stop up Sun Street is not continued by the second Act. In

fact, the second Act contains several clauses, but it is only necessary to refer to one. The 38th section does expressly and in terms preserve the 8th section of the first Act, "Except as by this Act otherwise expressly provided nothing in this Act contained shall repeal, alter, prejudice or affect any of the provisions of the Station Act, 1864, contained in the 8th and following sections of the said Act to the 73rd section inclusive, so far as such provisions are applicable and capable of being carried into effect consistently with the alterations which this Act authorises to be made in the railways and works authorised by that Act; and where by this Act any such alteration, or any new railway or works, in substitution for any such authorised railway or works, is authorised to be made, such provisions shall apply to the alteration or the new railway or works, if applicable or capable of being carried into effect with reference thereto, in like manner, in all respects, as the same respectively would have applied to the authorised railway or works, and as if such provisions had been specially reenacted in this Act with reference to such alteration, or new railway or work." Now, this new Act of 1870 entirely did away with the arch. That is not disputed. It altered the level by which the railway was to cross Sun Street, and if Sun Street was not to be blocked up it would make it go under Sun Street instead of going over it. Then, that alteration having been made, you are then to read the 8th section of the old Act, that they may shut up Sun Street, and may appropriate the site of it for their station, as incorporated in the Act of 1870. Therefore, it appears to me, that the true construction of the first Act being that they may stop it up, so far from that being altered that view is really strongly confirmed by the second Act.

Upon the whole, therefore, I am of opinion that the company have power to obstruct Sun Street, and have power to appropriate the site, provided, of course, that they make their station there, because they would not have the power if they did not make the station there, but only took their line of railway over it. Provided they include Sun Street in their