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writing, but before the end of the month the plaintiff swore 1862. he saw one of the defendants, and that they then alluded

'J Watts

to the contract. Nothing more, however, passed between v.

them until the 13th of August, when the seed was ready and Others. for delivery, and the plaintiff gave the defendants notice of it. They thereupon declared that they had not deemed the contract as binding, as they had received no reply to their last letter. The produce of the three acres was eighty-eight bushels, or eleven quarters, which were warehoused at Hythe, and sent to the plaintiff by railway, and were now lying at the station.

Lush contended that there had been no acceptance of the defendants' offer in their last letter, and that, before then, the plaintiff had never offered to sell at a less price than 18s. 6d. There was not, therefore, the contract in writing under the Statute of Frauds.

Haickins argued that the defendants' letter was in itself a sufficient "note or memorandum" of a contract, to buy at 18s., and that the plaintiff's previous letter was in effect an offer at 18s., and the defendants' last letter was an acceptance of that offer.

The learned Judge said there was no agreement on the part of the plaintiff to the quantity of three acres at the price of 18s.

Hawkins urged the verbal assent by the defendants.

One of the defendants was called, and denied this.

The learned Judge, in summing up the case to the jury, said that the question for them was, whether they were satisfied that at the interview the plaintiff agreed to the proposition in the defendants' letter, or whether he rejected it, because what had passed at that interview was relied on by one side as an acceptance, and by the other side as a rejection or repudiation. If the plaintiff's version of the interview was correct there had been a verbal acceptance of the offer in that letter.


The jury found that there had been such an acceptance.

Prentice thereupon asked for leave to move to enter the verdict for the defendants, on the ground that there must be a contract in writing; but

The learned Judge said there was a note of the contract signed by the defendants, "the party to be charged" in this action. However, to save expense, he would give leave to move, in order to avoid another trial.

The verdict was taken for 791. 4s. 8d.

Spring Assizes.

Where the de-
fendant had
burnt bricks in
a kiln, within
twenty feet of
the plaintiff's
garden and
forty feet of
his house,
where he had
lived and car-
ried on business
as a gardener
for more than
twenty years:
Held, that it
was for the
jury whether
the smoke, Sic,
made the house
less comfort-
able, and the
garden sub-
stantially less
profitable, and
that, if so, it
was an action-
able nuisance.


J-HIS was an action by a nursery gardener against a brickmaker, for keeping his brick-kiln so near to the plaintiff's house and garden as to be a nuisance.

Archibald for the plaintiff.

Prentice for the defendant.

The plaintiff' had been twenty-two years in his present premises, and had well stocked his garden with fruit trees and flower plants. The garden was on the side of the road, which was eighteen feet wide, and on the other side of which lay some ground which, in May last, the defendant had taken on a lease and used for brickmaking. He had made a kiln, or clamp, about 150 feet long, and 14 or 15 feet high, which was within 40 feet of the house and 20 feet of the garden. It would appear, indeed, that the whole of the kiln was not set burning at one time. The result of the burning had been, however, as alleged by the plaintiff and his witnesses, that in the house the inmates were, to use their own words, "almost suffocated with the heat, the steam and the sulphurous stink;" and that, as regarded the garden, the trees were deprived of their leaves and fruit, and the flower plants and shrubs dried up and killed. The plaintiff's witnesses stated it was the result of their experience that a nursery garden could not be carried on 1862 near to a brick-kiln. The kiln in question lay in a hollow. The plaintiff's bouse was in this same hollow, and the smoke hung about it. The windows could not be opened when the wind came from it, so that the house was close, and wanted air.


Prentice, for the defence, relied on the recent case of Hole v. Barlow (a), which decided that an action would not lie for a reasonable use of any lawful trade in a convenient place, although it rendered the life of others less pleasant or comfortable; but

Archibald said this doctrine had been modified by a later case now before a Court of Error, Bamford v. Turnley (b).

The learned Judge observed that, even assuming the doctrine as so laid down, the terms "convenient" and "reasonable" were rather wide, and must surely be construed with some reference to the land or house injured. The place might be very "convenient" for the kiln, but very inconvenient and injurious in regard to the lands or houses it adjoined. If, for instance, the kiln was within five feet of the house, it would destroy its value; and, as regarded heat and smoke, perhaps a distance of 20 feet was as bad as five. Where a kiln had been erected as far as 100 yards from a house, the brick maker had been restrained by injunctions, and here the distance was 20 feet. It would be a question for the jury whether the kiln was so near as to be a nuisance.

Witnesses were called for the defendant to disprove the alleged nuisance. The effect of the whole of their evidence, however, appeared to be, not to deny the alleged annoyance from the smoke, &c, but that it was not (as one of

(a) 27 L. J., C. P. 207; followed tiff's house;" and both pnrties had

in Bamford v. Turnley, Vol. II., p. lately purchased, from the same

231, where, however, the kiln was owner, and with notice to the plaintiff. "ixafar us practicable hom the plain- (A) Vol. II., p. 231.


1862. them said) "more than usual" with brick-kilns.- One or two persons in the neighbourhood said they did not feel the annoyance, but then they were from home most of the day. Brick makers stated that they suffered no injury from working all day in brickfields; and, though the plaintiffs wife said she had suffered in health, the evidence did not show so strong a case on that ground as upon the alleged annoyance and injury to the nursery. It appeared that the kiln had been carried on in the usual and proper manner as far as regarded the business of brickmaking. It also appeared that the kiln was in an open space, a mile from the village, and with only a few scattered houses near to it, of which the plaintiff's was one. It appeared, however, that the kiln was in a low part of the field, in a hollow, in which the house lay, and that thus the smoke hung about the place more than it would have done had the kiln been (as it might have been) on a part of the field where the ground was higher, and where the smoke would be carried off" by the wind.

The learned Judge left to the jury, first, whether the burning of the kiln made the house of the plaintiff substantially less comfortable; secondly, whether it caused substantial injury to the plaintiff's ejaju'en. There was, no doubt, evidence of injury to both; no doubt the business of brickmaking was useful and necessary, but it must not be carried on so as to cause a serious injury to neighbours. Then it appeared that the kiln lay in a hollow, and within twenty feet of the plaintiff's house. There did not seem to have been any real injury to health, but it would be enough to sustain the action that there was substantial injury to the enjoyment either of house or garden.

Prentice desired that it should be left to the jury whether the kiln was in a convenient place.

The learned Judge.—Convenient to whom? To the plaintiff? I will leave that, if you like, to the jury; but


it is, in effect, already left to the jury, and is involved in
the question whether it is a nuisance. If so, it cannot be
convenient to the plaintiff; of course, it is so for the de-
fendant. The questions for the jury are—first, did the
kiln make the house substantially less comfortable; and,
secondly, did it substantially injure the plants and trees in
the garden?

The jury answered both questions in the affirmative.
Verdict for the plaintiff, damages 20/.

The learned Judge, as the question was pending in a
Court of Error, stayed execution until next term (a).

(a) Next term, Prentice got a coram Cockburn, C. J., where the

rule nisi in C. P., but the Court ruling was in accordance with the

granted it with evident reluctance, decision in the former case. When

and merely on account of the ques- it is said that the kiln is not a nui

tion being before a Court of Error. sance if in a convenient place, it is

They pointed out that Hole v. Bar- conceived that this is only an ele

Inw was distinguishable; and so is ment in the cases to show that it is

Bamford v. Turnley, Vol. 11., p. 231, not a nuisance.


T Spring Assizes.

RESPASS, against the bailiff of the County Court of The owner of a

Tunbridge Wells and his officer, for entering the premises ona|t1tuowanken

of the plaintiff", a riding-master at that place, and taking a premises,

r 7 & under a County

horse, under an execution from that Court against a third Court execution against a party, third party,

Pleas: not guilty, and not possessed. cannot sue the

° *' ~ bailiff in Ires

M. Chambers and Butler Riyby for the plaintiff. fhTchattel, "*

SAee, Seijt, and Honyman, for the defendants. f()r the wrong

The plaintiff had taken the premises of the execution debtor, and his name was put up upon the livery stables; but the change was not known. When the horse was taken the plaintiff claimed it, and there had been an interpleader summons; but, as the plaintiff refused to pay the appraised


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