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1850.

Hancock and Another v. THE YORK, NEW

CASTLE, AND BERWICK RAILWAY COMPANY.

The declara- CASE. The declaration stated, that the plaintiffs, betion stated

fore and at the time of the committing of the grievthat the defendants were

ance by the defendants as thereinafter next mentioned, possessed of a were lawfully possessed of a certain ship or vessel, to mooring anchor, which wit, of the value of 30001., laden with coal, to a large was kept by amount, to wit, 20001., then lawfully being in the river them fixed in

Tyne, the same being a public navigable river; that the a known part of a navigable defendants, before and at the time of the committing of river, covered the said grievance, were possessed of a certain anchor, by ordinary tides, - that

called a mooring anchor; that, before the committing The anchor of the grievance thereinafter mentioned, the said anchor hall become

had been placed and fixed in the soil of the said river, removed into, and remained and there ordinarily remained, at and on a certain in, another

known part thereof, wherein the said anchor would be river covered

covered by ordinary tides, and would be then invisible ; by ordinary that, before the committing of the said grievance, the tides, not

said anchor, while so fixed, came into the possession of indicated, whereof the

the said company, and the said company, while the said defendants anchor was so in their possession, and before the conihad notice, and although mitting of the grievance thereinafter next mentioned, had they had the notice of the premises; that, while the said anchor was means and

in the possession of the said company, so fixed as aforerefixing and said, and before the committing of the grievance thereinsecuring the

part of the

after next mentioned, the said anchor, until the same beanchor, and indicating it, they neglected so to do, whereby the plaintiffs' vessel, wbilst sailing in a part of the river ordinarily used by ships, ran foul of and struck against the anchor, and was thereby damaged, &c:-Held bad, on demurrer, for not shewing that the defendants were privy to the removal of the anchor, or that it was their duty to refix it and to indicate it.

power of

came removed as thereinafter mentioned, was continued by 1850. the said company so fixed as aforesaid ; that, afterwards,

HANCOCK and while the said anchor, so fixed, was in the possession of the said company, the said anchor had become The York, removed from the said known part of the said river, NEWCASTLE,

and BERWICK wherein the same ordinarily remained, whereof the said

RAILWAY Co company, afterwards, to wit, on the day and year aforesaid, had notice, and the same remained in and on the soil of the said river, in some part thereof not indicated, covered by ordinary tides, whereof the defendants, to wit, on the day and year aforesaid, had notice; that, before the committing of the said grievance, the said lastmentioned part whereat the said anchor was situated, was unknown to the plaintiffs, and was unknown to them without their default; that, before the committing of the said grievance, a reasonable time, to wit, ten days, had elapsed, from the time of the said company having notice that the said anchor had become so removed as aforesaid, and that the same remained in the river in some part covered by the ordinary tides, and not indicated, as aforesaid, and the defendants, during all the time aforesaid, had the means and the power of properly placing the said anchor, and of securing and properly fixing the same, and of indicating and making known the situation of the same: Yet that the defendants, knowing the premises, did not nor would, within a reasonable time after such notice as aforesaid, properly place the said anchor, or secure, or endeavour to secure, and properly fix the same, or indicate or make known the situation of the same, but wholly neglected so to do; and that, by means thereof, the said ship of the plaintiffs, then, to wit, on the day and year aforesaid, lawfully going, sailing, and passing, in and along the said river, in a part ordinarily used by ships, and not the part thereof at which the said anchor had been originally placed, and ordinarily remained, as

1850. aforesaid, ran foul of and struck against and on the said

anchor of the defendants, which thereby made divers HANCOCK

holes in the bottom of the plaintiffs' said ship, and deThe York, stroyed the timbers thereof, and the said plaintiffs' said NEWCASTLE, ship then sank in the said river, and was otherwise and BERWICK Railway Co.

much broken, spoiled, damaged, and depreciated in value; and also, by reason of the premises, the plaintiffs had been forced and obliged to pay, lay out, and expend, and had necessarily paid, laid out, and expended, a certain large sum of money, to wit, the sum of 10001., in and about the raising of the said vessel, conveying and discharging the cargo, and repairing the said damage, and supporting the crew of the said ship, for a reasonable time after the said damage so done as aforesaid; and also, by means of the premises, the plaintiffs lost and were deprived of a portion of the said coal, to wit, twenty tons thereof, of the value of 501., and also lost and were deprived of the use of their said vessel, for a long space of time, to wit, for the space of five weeks, and thereby lost and were deprived of all the advantages and profits, to a large amount, to wit, 2001., which during that time they might and would otherwise have derived and acquired from the use of their said vessel, &c.

Special demurrer, assigning for causes, – that it is not averred, nor does it appear, in or by the said declaration, that it was the duty of the defendants properly to place the said anchor, or to secure or properly to fix the same, or to indicate or make known the situation of the same; that it is not averred, nor does it appear by the said declaration, by whom the said anchor was originally placed and fixed in the soil of the said river in the declaration mentioned, or that the same was wrongfully placed and fixed there, or that the defendants were privy to the placing or fixing of the same there, or that the defendants could have prevented the same from being so placed and fixed;

that it is not averred, nor does it appear in or by the 1850. said declaration, that the said anchor became removed,

HANCOCK as in the declaration is mentioned, by any consent or fault of the defendants, or that the defendants caused The York, such removal to take place, or that the defendants had NEWCASTLE,

and BERWICK the power, or that it was their duty, to have prevented Railway Co. such removal, or that they were in any way answerable for such removal, or that the defendants were privy to such removal, or that such removal was wrongful;. that it is not averred, nor does it appear in or by the said declaration, that the defendants were possessed of, or had any control over, the said anchor, at the time it was originally placed and fixed in the soil of the said river ; – that it is not averred, nor does it appear in or by the said declaration, that the defendants had any legal right or legal power properly to place the said anchor, or to secure or properly fix the said anchor, or to indicate or make known the situation thereof; and that the averment in the declaration, that the defendants had the means and the power of so doing, is too vague and uncertain, and that it is uncertain whether by the words “means and power,” as used in the last-mentioned averment, is meant legal means and legal power and right, or physical means and physical power merely; - that it is not averred, nor does it appear in or by the declaration, that the defendants have been or were guilty of any breach of duty which rendered them liable to the plaintiffs for the damages in the declaration mentioned; — that, notwithstanding anything which is averred, or which appears in or by the said declaration, the said ship of the plaintiffs in the declaration mentioned may have run foul of and struck against the said anchor, as in the declaration mentioned, by reason of some want of skill or care, or improper conduct of the plaintiffs or their servants or agents in that behalf; – that, notwithstanding anything which is

1850. averred or which appears in or by the said declaration,

the said ship of the plaintiffs in the declaration menHANCOCK

tioned may have run foul of and struck against the The YORK,

said anchor, as in the declaration mentioned, without Newcastle, any fault on the part of the defendants ;-- that the said and BERWICK

declaration does not disclose with sufficient certainty Railway Co.

any cause of action against the defendants, &c.

Joinder in demurrer.

Channell, Serjt., with whom was J. Addison, in sup. port of the demurrer. There is no averment that it was the duty of the defendants to place or secure the anchor properly or to indicate its situation. The want of that averment may not be material: but it is essential that the duty should appear on the face of the declaration,- Brown v. Mallett (a)- which it does not. It does not appear who fixed the anchor. It is consistent with the statement in the declaration, that the anchor may have been removed by circumstances over which the defendants had no control. It is merely alleged that the defendants had notice of the removal. [Maule, J. It appears that the defendants had notice of the removal of the anchor, but not to what it was removed.] Although it is alleged that the defend/ants had the means and the power of properly placing and securing the anchor, and indicating its situation, yet the meaning of that expression is ambiguous. Dues it mean that they had legal power, without committin." an act of trespass? or does it mean physical power? The corporation of Newcastle are conservators of the river. [Maule, J. In its largest sense, it means both. You must take “ means and power” in their ordinary sense.] The breach is, that the defendants did not, within a reasonable time after such notice, properly

part

(a) Ante, Vol. V. p. 599.

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