Newton v Chaptlin
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 144
IN THE COURT OF COMMON PLEAS
S. C. 19 L. J. C. P. 374; 14 Jur. 1121.
144 NEWTON V. CHAPLIN 10 C. B. 357. newton v. chaplin. 1850. [S. C. 19 L. J. C. P. 374; 14 Jur. 1121.] Where a written document is in the possession of a witness who is not compellable 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 subpoena, 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 subpoena 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. 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 plaintiff upon forty shares which had been allotted to him in [357] a projected company called the Direct Sheffield and Manchester Eailway 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 subpoena [358] 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 subpoena; 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 subpoena 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. (a) Coltman, J., Maule, J., Cresswell, J., and Williams, J. IOC. B. 359. NEWTON V. CHAPLIN 145 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 [359] who might be...
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