1841.

JOULE

v.

JACKSON.

Exch. of Pleas, that it was necessary that such a privilege should exist. In Muspratt v. Gregory, the boat being sent to the premises to be loaded with salt, was left there for the owner's convenience, and was not delivered into the custody of the tenant of the premises; and the decision in that case is quite consistent with what has been urged in the present case. [Parke, B. -The Judges there said, that they would not extend the principle beyond the cases already decided.] The right of the landlord to distrain the goods of his tenant is an artifi cial, not a natural right: if the right was originally granted for the public convenience, it ought also to be limited for the protection of trade. In Gilman v. Elton (a), Richardson, J., in answer to the argument that the goods ought to undergo some alteration in the hands of the trader, says (a) —“ It is not necessarily so, for a carrier does not operate upon goods, except to carry them; and the very words of the decision in Gisbourn v. Hurst include carrying or managing. The advancement of trade equally requires that the goods should be placed in the hands of a factor for sale, as that they should be placed in the hands of a carrier for carriage:" and he adds, "it would be highly injurious if goods so sent for sale were liable to be distrained for the private debt of the factor." If the trade of a brewer cannot be carried on without sending out his casks to the publican's house, neither can the trade of the publican; it is equally essential to the business of both; it is, therefore, for the convenience of the public weal, and if that is to be protected, this exemption from distress ought to be allowed.

LORD ABINGER, C. B.-It is too late at this day to enter into the principles of the law as to the landlord's power to distrain, where the case does not fall within any of the decisions on the subject; it having been determined by the majority of this Court, and afterwards by a Court of error, that the principle of those decisions ought not to be ex(a) 3 B. & B. 84.

1841.

JOULE

v.

JACKSON.

tended. If a cooper had had the casks in his possession, for Exch. of Pleas; the purpose of repairing them in the way of his trade, they would have been exempted from distress. All the cases are analogous to that. But here nothing is to be done to the casks, which are merely left with the publican till they are empty. That is very different from the case of an article left for repair. The case of Muspratt v. Gregory was much nearer the present; but there it was said, that the principle of exemption ought not to be carried further. If we were to extend the principle to a case like the present, we should get into too wide a sea; and it is, therefore, better to adhere to the decided cases.

PARKE, B.-I am entirely of the same opinion. A landlord has a right to distrain all goods found upon the demised premises, with the exception of certain specified cases, which are not to be extended. Primâ facie, every deposit of goods upon the premises where the trade is carried on, would have relation to that trade, and an exemption from distress would, in that view, be for the public good. But to hold all such goods to be exempt, would be establishing a very wide principle; and the case of Muspratt v. Gregory having decided that the principle of exemption already laid down in the books ought not to be extended, we are bound by that decision. The rule, therefore, must be ab

solute to enter a nonsuit.

ROLFE, B., concurred.

Rule absolute.

Exch. of Pleas, 1841.

Jan. 22.

Action on the case for continuing a nuisance to the

plaintiff's mar

ing which ex

of the space on

THOMPSON V. GIBSON and Another.

THIS was an action on the case for continuing a nuisance to the plaintiff's market, by a building which excluded the public from a part of the space on which the ket, by a build- market was held. The defendants pleaded not guilty. cluded the pub- A new trial had been granted; and on the second trial lic from a part of the cause, before Coltman, J., at the last Assizes for mar- Westmoreland, the defendants' counsel took an objecfully held. It tion, that the action could not be maintained. It appeared that the building was erected in October 1838, under the superintendence and direction of the defendants, though not on their own land, but on that of the and direction of corporation of Kendal, (of which they were members), and that it had continued there, obstructing the market,

which the mar

ket was law

appeared that the building

was erected in October 1838, under the superintendence

the defendants,

not on their own land, but on that of the corporation of K. (of which corporation they were members). The

Earl of L. was the owner of

the market in October 1838,

until after the commencement of this action. Lord Lonsdale was the owner of the market in October 1838, and in February 1839, he demised it to the plaintiff; and the market being afterwards obstructed by the building, this action was brought. The defendants contended, that, under these circumstances, they were not responsible for and, in Febru- the continuance of the nuisance; that they were distinct persons from the corporation; and that, though they were guilty of erecting the nuisance, they could not be considered as having continued it, because they were not in possession of or interested in the soil on which the building was erected. The learned Judge overruled the objection, but reserved the point.

ary 1839, he

demised it to the plaintiff; and the market being after

wards obstruct

ed by the build

ing, this action was broughtHeld, that the defendants were liable for continuing the nuisance, although

they had no right to enter upon the land

to remove it,

Dundas having, in Michaelmas Term last, obtained a rule to enter a nonsuit,

Cresswell, Alexander, and Cowling, in the same term, tion was there shewed cause.-The defendants have directed that to be

and that the ac

fore maintain

able.

done which the jury have found to be a nuisance. As

1841.

THOMPSON

v.

GIBSON.

suming that they were acting for themselves, there can be Erch. of Pleas, no doubt that they would be responsible for the nuisance; and the case is not altered by the fact, that the defendants were, at the time of the erection of the nuisance, members of a corporate body. That could not affect the plaintiff's right of action against the individuals who have directed the nuisance to be created; as, for a tort the individual is always liable: Wilson v. Peto (a). In Stone v. Cartwright (b), which was an action against the manager of a mine for damage done by the negligence of persons who were employed by him in the service of his principal, it was held, that the principal, or those actually employed, were alone liable. Lawrence, J., there points out the distinction between that case and the present. He says, "If the plaintiff had given evidence that the defendant had particularly ordered those acts to be done from whence the damage had ensued, that would have varied the case." It must therefore be taken to be, and is, the same as if the defendants had erected this building with their own hands. Now it is clear that an action might have been maintained by the then owner of the market for the immediate injury; but it is said, that though the defendants were guilty of erecting the nuisance, they are not liable for its continuance, because they are not in possession of or interested in the soil on which the nuisance stands. The case of Rosewell v. Prior (c) is in point as to this objection. There a tenant for years erected a nuisance, and afterwards made an under lease of the premises. The question was, whether, after a recovery against the first tenant for years for the erection, an action would lie against him for the continuance after he had made an underlease. It was held, that the action would lie; "for he transferred it with the original wrong, and his demise affirms the continuance of it." In Some v. Barwish (d), it

1841.

THOMPSON

v.

GIBSON.

Exch. of Pleas, was held, that for a nuisance erected in the time of the devisor, and continued afterwards, the devisee shall join in the action; for the continuance thereof is a new erection of such nuisance. The defendants, therefore, are liable to the plaintiff as lessee, as for a new nuisance. [Parke, B.-The defendants, not being in possession of the soil, have no power to remove the nuisance.] A party cannot excuse the continuance of a wrong by saying that he has no power to remove it. That is the result of the original wrongful act, for which he is responsible.

Dundas, W.H. Watson, and Ramshay, contrà.-The action is brought for an injury to this market by continuing a building, and not for the erection of a nuisance; but the defendants cannot be liable for an injury they have not committed, nor for the continuance of a building over which they have no control. If they were to remove the building, they would be guilty of a trespass, and liable to an action. If the argument on the other side is to prevail, even the carpenter who did the wood-work of the building will be liable for the continuance of it. In Wilson v. Peto, the question was, whether the defendant was a person who could be fixed with the act itself? And in Stone v. Cartwright, the defendant was interested in the nuisance. Rosewell v. Prior is more fully reported in 12 Mod., 639, where the Court say, that "if the alienee of the land brought an action against the erector, and the erection had been before any estate in the alienee, the question would be greater, because the erector never did any wrong to the alienee." In Rex v. Pedley (a), it was held, that if the owner of land erect a building which is a nuisance, or of which the occupation is likely to produce a nuisance, and let the land, he is liable to an indictment for such nuisance being

(a) 1 Ad. & Ell. 822; 3 Nev. & M. 627.