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1850.

HANCOCK

V.
The York,
NEWCASTLE,
and BERWICK
RAILWAY Co.

of

place the anchor, or secure, or endeavour to secure and
properly fix the same, or indicate or make known the
situation of the same. But it does not appear that it
was their duty to do so. They might possibly have had
the power to do so; but it might be at a greater ex-
pense than it was worth their while to incur. In
Brown v. Mallett, Maule, J., delivering the judgment
the court, says: “In the case of The King v. Watts (a),
Lord Kenyon held, that the owner of a ship sunk in the
Thames by accident and misfortune, without his default
or misconduct, was not liable to an indictment for not
removing the obstruction. It was contended, for the
prosecution, in that case, that, although the defendant
was not punishable for causing the nuisance, it having
arisen from accident, it was his duty to remove it: but
the learned judge answered, that perhaps the expense
of removal might have amounted to more than the whole
value of the property. The same reason would apply
in the case of an indictment for not giving notice by
signal, or taking other means to prevent damage from a
sunken vessel; the expense of doing so might, and pro-
bably would, be greater than any private benefit which
the owner would derive from it: and, whether it were
greater or not, the reason seems to be the same, for not
throwing on the owner any special share in the conse-
quence of a public misfortune with which he had no
particular concern, except that it arose out of a private
disaster which he had innocently suffered. In the case
of such impediments to navigation arising out of un-
avoidable accident, the proper rule seems to be, that the
expense of removing or diminishing the danger arising
from them, should be defrayed by those who would be
benefited by such a measure; as is done in the case of
light-houses, which are erected to diminish the danger

(a) 2 Esp. N. P. C. 675. VOL. X. -- C. B.

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1850. arising from natural impediments to navigation; and

such measures are the proper subjects of local regulaHANCOCK

tions, 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 Rauway Co. 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

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the situation. [Maule, J. No.] It became displaced, 1850. and it was not necessary that the plaintiffs should aver

HANCOCK that it had been removed by some person or persons unknown, or by the winds and waves. Supposing the The YORK, weather had caused it. [Maule, J. In that case, it NewcastLE,

and BERWICK would be the defendants' misfortune, and they would Railway Co. 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. (6) Here, the declaration complains of a public nuisance(): 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. $5. (6) i Campb. 515.

(C) 1 Hawk. P. C., ch. 75. $13.

(d) See Dixon v. Bel, 5 M. & Selw. 198., Lynch v. Nurdin, 1 Q. B. 29., 4 P. & D. 672.

1850. nuisance, and a private injury, by them. This de

claration carefully steers clear of stating that the deHANCOCK

fendants did the mischief. It shews about as good a The YORK, cause of action, as if it had stated that somebody beat Newcastle, the plaintiff with the defendants' stick. The case falls and BERWICK Railway Co. within The King v. Watts and Brown y. Mallett.

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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.

NEWTON v. CHAPLIN.

Where a

THIS

HIS was an action of assumpsit for money had written docu

and received, brought to recover the balance of ment is in the possession 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 compeliable 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 subpena 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 subpæna duces tecum.

A barrister, party to a cause, cannot be allowed to address the court, where he is represented by counsel.

1850.

NEWTON

v. CHAPLIN.

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 company for insertion in various newspapers ; and, 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 subpæna

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