1850. HANCOCK บ. and BERWICK RAILWAY Co. arising from natural impediments to navigation; and such measures are the proper subjects of local regulations, to be made on a comparison of the danger to be The YORK, guarded against, and the expense to be incurred. It is NEWCASTLE, Scarcely necessary to observe, that, if no indictment Would lie, under the circumstances stated in this action, for the danger and impediment to the public, no action can be maintained for the particular damage sustained by the plaintiff. The duty of the defendant, if it exist at all, is of a public nature; and the plaintiff, in order to succeed, must shew a breach of public duty, as well as special injury to himself." Barstow, contrà. This declaration sufficiently discloses a duty on the part of the defendants, and a breach of that duty, to entitle the plaintiff to maintain the action. In Brown v. Mallett, the obstruction was caused by misfortune. But, here, the defendants, or some persons for whose acts they are responsible, for their own purposes, placed the anchor in the river. [Maule, J. In its original position?] Yes. The declaration alleges that the anchor was in the possession of the defendants at the time of the injury. Whether the placing it in the river originally was lawful or not, is immaterial: it came into the defendants' possession, and it remained there. [Williams, J. Suppose some one had wrongfully removed the anchor, would it not still remain in the possession of the proprietors? Maule, J. Suppose a person unknown to the owner removes an anchor from a distance, say from the anchorsmith's yard, and drops it in a place where it is a nuisance to a navigable river, is the owner bound to remove it, or to indicate its position?] This anchor appears to have been removed from some place in the river. [Maule, J. That makes no difference: the original position is quite immaterial.] It was the defendants' duty to indicate the situation. [Maule, J. No.] It became displaced, and it was not necessary that the plaintiffs should aver that it had been removed by some person or persons unknown, or by the winds and waves. Supposing the weather had caused it. [Maule, J. In that case, it would be the defendants' misfortune, and they would not be bound to refix it, according to the authority of Brown v. Mallett, which was strictly founded upon The King v. Watts.] The defendants left the anchor there. Lord Hale says that it is unlawful to leave an anchor in a navigable river, without a buoy: Hale, De Portibus Maris, ch. vii. (a) [Maule, J. I say so too. And so said Lord Ellenborough, in Harmond v. Pearson. (b) Here, the declaration complains of a public nuisance (c): but it does not say that the defendants committed it.] It is averred that the anchor was removed without the knowledge of the defendants: but, having originally placed it in the river for their own profit and convenience, are not the defendants responsible for what afterwards becomes of it? [Maule, J. If a man has a gun, and another person fires it off, and injures a third party, is the owner of the gun liable?] Probably not. (d) But that case is not identical with the present. This is the case of a leaving of the anchor; for which the defendants are responsible. MAULE, J. This declaration in effect states that an anchor, the property of the defendants, somehow was placed in a part of a navigable river; but how, is not stated. The circumstance of the anchor being the defendants' property, will not of itself render them liable. To have this effect, it must amount to a public (a) Hargr. Tracts, p. 85. § 13. (d) See Dixon v. Bell, 5 M. & Selw. 198., Lynch v. Nurdin, 1 Q. B. 29., 4 P. & D. 672. 1850. HANCOCK v. nuisance, and a private injury, by them. This declaration carefully steers clear of stating that the defendants did the mischief. It shews about as good a cause of action, as if it had stated that somebody beat NEWCASTLE, the plaintiff with the defendants' stick. The case falls RAILWAY CO. Within The King v. Watts and Brown v. Mallett. The YORK, and BERWICK CRESSWELL, J. I am of the same opinion. The person who drew this declaration saw the difficulty, but has not succeeded in avoiding it. No negligence or want of care is imputed to the defendants, either in placing the anchor where it was originally placed, or in allowing it to be removed. WILLIAMS, J., and TALFOURD, J., concurring, Judgment for the defendants. Where a written docu ment is in the possession of NEWTON V. CHAPLIN. THIS was an action of assumpsit for money had and received, brought to recover the balance of a deposit of two guineas per share paid by the plaina witness who tiff upon forty shares which had been allotted to him in is not com peliable to produce it, and he refuses to do so, secondary evidence of the contents is admissible. Where a person, not party to a suit, attends on a common subpæna, and is called as a witness, and refuses to permit the production of a document which his attorney has brought into court in obedience to a subpœna duces tecum, but which the latter also declines to produce; the plaintiff, having done every thing that could be done to make apparent the impossibility of using the primary means of proof, is entitled to resort to secondary evidence of the contents, and is not precluded from so doing by his omission to serve the client with a subpoena duces tecum. A barrister, party to a cause, cannot be allowed to address the court, where he is represented by counsel. a projected company called The Direct Sheffield and Manchester Railway Company. The defendant pleaded non assumpsit. At the trial before Wilde, C. J., at the sittings at Westminster, after Michaelmas term, 1848, the plaintiff sought to sustain his case by shewing that the defendant was the managing director of the company, and that, by his connivance, and that of others associated with him in the management, advertisements had been issued containing false and fraudulent statements, by which the plaintiff had been induced to take the shares and pay the deposit, and also by shewing a failure of consideration. One Newton, a news-agent, was called for the purpose of producing the manuscript of certain advertisements which had been sent to him by the secretary of the for insertion in various newspapers; and, company in particular, it was proposed to give evidence of the insertion of one in the Times of the 17th of October, 1845, which was said to contain false and fraudulent statements as to the position and prospects of the company. This being objected to on the part of the defendant, on the ground, that, as the case then stood, there was no evidence before the jury to connect the defendant with those by whose authority the advertisement had been inserted, and the lord chief justice being of opinion that the evidence was not admissible, unless the defendant could be shewn to have been at that period connected with the company, it was then proposed, on the part of the plaintiff, to put in the minute-book of the company; and, for this purpose, he called Mr. Fry, the defendant's attorney. It appeared that Fry had been solicitor to the company; that the company was dissolved; and that one half of the deposit upon each share had been returned to the allottees. Fry had been served with a subpœna 1850. NEWTON V. CHAPLIN. 1850. NEWTON v. CHAPLIN. duces tecum. He stated that he held the book in his hand; but he declined to produce it, on the ground of privilege in William Chaplin, the defendant's brother, from whom he, Fry, had received it for the purpose of defending him in an action brought against him as a member of the provisional committee. The lord chief justice, having consulted the other judges (a), who were sitting in banco in the adjoining court, decided that Fry was, under the circumstances, justified in declining to produce the book. William Chaplin was in court, having been served by the plaintiff with a common subpana; and he was asked whether he would consent to the book being produced, but he declined to do so. The plaintiff then proposed to give secondary evidence of the contents of the book, from the mouth of the secretary of the company. But it was insisted, on the part of the defendant, that, inasmuch as William Chaplin, the client, had not been served with a subpœna duces tecum, the plaintiff had not done all that he was bound to do, to shew the primary evidence to be unattainable, and consequently was not entitled to give secondary evidence. The lord chief justice expressing himself of opinion that this objection was well founded, the plaintiff submitted to be nonsuited. Atherton, in Michaelmas term, 1848, moved for a new trial, on the ground that secondary evidence of the contents of the minute-book ought to have been admitted. The plaintiff could not have anticipated that Fry would object to produce the book; nor could he know the party on whose account the privilege was to be set up. The attorney held the book equally on behalf of all (a) Coltman, J., Maule, J., Cresswell, J., and Williams, J. |