sense, or to vegetable health, I do not say, nor do I deem it necessary to intimate any opinion." "The important point next for consideration may properly, I conceive, be thus put,-ought this inconvenience to be considered in fact as more than fanciful, or as one of mere delicacy or fastidiousness, or as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions among English people? I am of opinion that this point is against the defendant; for, the plaintiffs have, I think, established that the defendant's intended proceeding will, if prosecuted, abridge and diminish seriously and materially the ordinary comfort and existence to the occupier and inmates of the plaintiff's house, whatever their rank or station, or whatever their state of health may be." In Viner's Abridgment, Nusance (G) pl. 16, it is said that "the stopping of wholesome air is a nuisance, as well as the stopping of the light." So, pl. *343] 18, "If a *dyer erects a dye-house so near my house, by which I dare not dwell in this my house, for the stink of the smoke and other nastiness, this is a nuisance." And for these passages Aldred's Case, 9 Co. Rep. 59, is cited. In Stephen's Commentaries, 4th edit., Vol. 3, pp. 491, 492, it is said, that, "If a person keeps his hogs or other noisome animals so near the house of another, previously built and inhabited, (a) that the stench of them incommodes him, and makes the air unwholesome, this is a nuisance, as it tends to deprive him of the use and benefit of his house. (b) A like injury is if one's neighbour sets up and exercises any offensive trade; as, a tanner's, a tallow-chandler's, or the like; for, though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is 'sic utere tuo ut alienum non lædas:' this, therefore, is an actionable nuisance." "And upon the same principle it may be laid down generally, that if one does any other act, in itself lawful, which yet, being done in that place, necessarily tends to the damage of another's land, it is a nuisance; for, it is incumbent on him to find some other place to do that act, where it will be less offensive." If there be any such rule of law as suggested, it can have no application to a thing which is not done in the course of carrying on a trade. To entitle the defendant to immunity in a case of this sort, he must show a prescriptive right of twenty years user: Bliss v. Hall, 5 Scott 500, 4 N. C. 183 (E. C. L. R. vol. 33), 6 Dowl. P. C. 442; Flight v. Thomas, 10 Ad. & È. 590 (E. C. L. R. vol. 37), 2 P. & D. 531, 7 Dowl. P. C. 741.(c)

*344] *CROWDER, J.(d)-I am of opinion that this rule should be discharged. It was moved upon two grounds,-first, that the verdict was against the evidence, secondly, for misdirection. As to the first ground, there was evidence on both sides of an extremely conflicting character: but the question was one especially for a jury; and the learned judge who tried the cause has not expressed himself dissatisfied with the result. That point, therefore, is disposed of. Then, with

(a) See 1 Smith's Leading Cases, 4th edit. 131. But see Elliotson v. Feetham, 2 N. C. 134 (E. C. L. R. vol. 29), 2 Scott 174.

(b) Citing Morley v. Pragnell, Cro. Car. 510.

(e) See the authorities collected in a very elaborate judgment delivered by Vice-Chancellor Kindersley in Soltau v. De Held, 2 Simons, N. S. 133, 154.

(d) Williams, J., had gone to chambers.

respect to the alleged misdirection,-The complaint is that the learned judge put it to the jury as an ingredient for their consideration whether the burning of these bricks was in a proper and convenient place. By the language he used, he evidently referred to the passage which has been cited from Comyns's Digest, Action upon the Case for a Nuisance (C), and which is to be found in Selwyn's Nisi Prius, 10th edit. p. 1115, and in Gale on Easements 295. The question is, whether that is a misdirection. The passage from Comyns's Digest is as follows:"An action upon the case does not lie for a reasonable use of my right, though it be to the annoyance of another; as, if a butcher, brewer, &c., use his trade in a convenient place, though it be to the annoyance of his neighbour." The instances given certainly are of trades: and this defendant was not carrying on the trade of a brick-maker; but he was burning bricks upon his own land, for the purpose of building houses, which are necessary for the habitation of man. It seems to me that the rule is as applicable to the burning of bricks under such circumstances, as to the carrying on of a trade. It must be a question for the jury in each case whether or not the burning was in a convenient place. Without, therefore, going into the *facts of this case, I am of opinion

that the direction of Brother Byles to the jury was consistent [*345

with all the authorities, and that we should be in effect overruling several of them if we were to make this rule absolute.

WILLES, J.-I am of the same opinion, and for the same reasons; and I will only add a word or two to what has fallen from my Brother Crowder. The common law right which every proprietor of a dwellinghouse has to have the air uncontaminated and unpolluted, is subject to this qualification, that necessities may arise for an interference with that right pro bono publico, to this extent, that such interference be in respect of a matter essential to the business of life, and be conducted in a reasonable and proper manner, and in a reasonable and proper place. And this is not without analogy. Every man has a right to enjoy his character untainted and uncontaminated by the breath of slander: but that right is subject to the rule as to privileged communications, which justifies and permits a reasonable publication of defamatory matter, even though it should amount to a charge of felony. So, every man has a right to the enjoyment of his land: but, in the event of a foreign invasion, the Queen may take the land for the purpose of setting up defences thereon for the general good of the nation. In these and such like cases, private convenience must yield to public necessity. It seems to me that we shall be only acting upon that principle in discharging

this rule.

BYLES, J., said nothing.

Though it is difficult to lay down any precise rule on the subject, it seems to be admitted by all the authorities, that while there are certain trades or employments, which, when carried on in or near a town, are nuisances per se, such as a slaughter-house, or bone or soapboiling establishment, or a distillery at

Rule discharged.

which pigs are lodged and fed, yet that others, such as those of a livery-stable keeper, blacksmith, or ordinary manufacturer, are not necessarily so, unless where established in an improper location, or so carried on as to tend necessarily to the annoyance or injury of others: see Ray v. Lynes, 10 Alabama

63; Kirkman v. Handy, 11 Humphreys 408; Dargan v. Waddell, 9 Iredell 244; Coker v. Brize, 9 Georgia 426; 10 Id. 336; Smith v. M'Conachy, 11 Missouri 517; Whitney v. Bartholomew, 21 Connecticut 213; Howell v. M'Coy, 3 Rawle 286; Smith v. Cummings, 2 Parsons Eq. Cas. 100; Catlin v. Valentine, 9 Paige 575; Brady v. Weeks, 3 Barbour Sup. Ct. 157; Froh v. Dodge, 4 Denio 311; Peck v. Elder, 3 Sandford

Sup. Ct. 126; Howard v. Lee, Id. 281. In determining whether a particular trade or its exercise created a nuisance, it is not necessary to show that it is actually prejudicial to health; it is sufficient if it be offensive to the senses, and render the enjoyment of life and property uncomfortable: Catlin v. Valentine, 9 Paige 575; Brady v. Weeks, 3 Barbour S. C. 157; Whitney v. Bartholomew, 1 Conn. 213.

*346]

*PARKER v. IBBETSON. April 28.

An agreement was entered into between the plaintiff and the defendant in the following terms: "A. engages to serve B. as agent or representative, at the salary of 1507. per annum: Also provided at the end of the year B. find A. has done sufficient business to justify him in recompensing by making up his salary to 1807., to do so, being a donation of 30l. to his present stipulated amount of 1501."

It being proved at the trial, that, by a general custom of the trade, a yearly hiring is determinable by a month's notice at any time:-Held, that there was nothing in the proviso to exclude the application of the custom to the particular case.

In an action upon the above agreement, charging a wrongful dismissal within the year, the judge left it to the jury to say whether the proviso was meant by the parties to exclude the custom: -Held, a misdirection; there being no ambiguity in the contract, and its construction being for the court.

THIS was an action against the defendant for wrongfully discharging the plaintiff from his service.

The first count of the declaration stated, that, by agreement between the plaintiff and the defendant, the plaintiff agreed to serve the defendant for one whole year in the capacity of agent or representative in the defendant's business of a manufacturer of woollen and mohair cloths, at a salary of 1501. per annum; that the plaintiff duly entered upon the said service; and that, although the plaintiff had always been ready and willing to continue in such service on the terms aforesaid, yet the defendant, before the expiration of the said year, refused thenceforth to allow the plaintiff to continue in his said service, and then wrongfully discharged him therefrom without any reasonable cause.

The declaration also contained counts for money paid, and for money found to be due upon accounts stated.

The defendant pleaded several pleas; amongst others,-first, a traverse of the agreement alleged in the first count,-fifthly, to the first count, that the plaintiff became and was the agent of the defendant, as in that count mentioned, upon certain terms and according to a certain condition annexed to the said contract by the general usage and custom in that behalf of and in the trade and business in which the plaintiff was so employed as aforesaid, that is to say, that either of the said parties *347] might determine the said *service, upon giving to the other of them one calendar month's notice of his intention to do so, the plaintiff, in the event of the said service so being determined, and upon

the determination thereof, becoming and being entitled to claim from the defendant a proportionate part of his wages or salary aforesaid up to the expiration of such notice, and to the time of such determination of the said service: Averment, that theretofore, and one calendar month before the defendant put an end to the said service, or refused to suffer or permit the said plaintiff to continue in his said service, and discharged the plaintiff therefrom, he, the defendant, gave to the plaintiff one calendar month's notice of his, the defendant's, intention to put an end to the said service, and to discharge the plaintiff therefrom; and that the defendant at and after the expiration of the said calendar month refused to allow the plaintiff to continue in his, the defendant's, said service, and discharged the plaintiff therefrom,-which was the said alleged breach of contract in the first count mentioned. Issue thereon. The cause was tried before Cresswell, J., at the sittings in London after last Michaelmas Term. It appeared that the defendant, who was a woollen merchant at Leeds, having a place of business in London, engaged the plaintiff to serve him in the capacity of agent or representative there, upon the terms contained in the following memorandum :

"Memorandum of agreement made between Henry Ibbetson & Co., of Leeds, of the first part, and Richard Awood Parker, of, &c., of the second part: The aforesaid Richard Awood Parker engages to serve the said Henry Ibbetson & Co. as agent or representative, at the salary of 1507. per annum in consideration thereof. Also provided at the end of the year the said H. Ibbetson & Co. find the said Richard Awood Parker has done *sufficient business to justify them in recom[*348 pensing by making up his salary to 180l., to do so, being a donation of 301., to his present stipulated amount of 150l. As witness our hands this 30th day of January, 1857.

(Signed)

"HENRY IBBETSON & Co.
"RICHARD AWOOD PARKER."

The plaintiff continued in the service of the defendant under this agreement until the 1st of August (receiving his salary monthly), when the defendant gave him a month's notice to quit. For this dismissal, which the plaintiff contended was wrongful, and in contravention of the agreement, the present action was brought.

On the part of the defendant, several witnesses were called to prove a custom in the particular trade to dismiss at a month's notice, though the engagement was at a yearly salary: and it was proved that one house of great eminence adopted a form of hiring to exclude the custom for a month's notice: but some of the witnesses, on cross-examination, said they had never known an instance of a clerk having been dismissed at a month's notice, where the agreement stipulated for a bonus for good conduct at the end of the year.

In his summing up, the learned judge instructed the jury in substance as follows:-The plaintiff in this case complains that he has been dismissed by the defendant on a month's notice, notwithstanding he was engaged under a contract for a year. The defendant, on the other hand, says, "It is true I entered into a contract with you for a year, but, by the custom and usage of the place where the contract was made and was to be fulfilled, viz., London, a clerk or servant, though hired under such circumstances, is liable to be discharged, and entitled to put an end to the service, at a month's notice." No doubt, with

*reference to domestic servants, the custom is universally so: a

*349] servant is hired at yearly wages; the hiring is yearly, but is

liable to be terminated by either party on a month's notice. It does not, however, follow from that that the same state of things exists with regard to clerks and persons in the position of the present plaintiff. The circumstance of the contract being in writing makes no difference: it is not any stronger or more binding by being written, though it renders. the proof of its terms more easy and less liable to misrepresentation or mistake. If that which is here put upon paper had simply been expressed by word of mouth, its legal operation and effect would have been precisely the same. In order to justify his dismissal of the plaintiff within the year, the defendant by his fifth plea sets up the custom of a month's notice and, if he proves that to your satisfaction, whether the contract be in writing or not makes no difference. Now, the defendant has called before you several witnesses to prove the custom as alleged. It was not necessary, perhaps hardly possible, to adduce an instance exactly in point, of a person in the precise position of the present plaintiff. But you must judge from the general understanding of the trade in analogous cases, whether the parties meant to contract upon the footing of that custom. Where there is a general custom prevailing with reference to a particular trade in the place where a contract is made, and nothing is said to exclude it, the contract must be assumed to have been made subject to the importation of the custom into it. For instance, in a particular trade, a contract for the sale of goods, nothing being said. to the contrary, is understood to be at a credit of a fortnight or a month,—in that case, the parties are supposed to contract with reference to the custom, and are bound by it. One of the defendant's witnesses states that it is the custom of the trade *generally to put an end *350] to the service at a month's notice, where the hiring is yearly and at a yearly salary. Generally speaking, a yearly salary imports a yearly hiring; as in the case of a butler or a coachman: and, in the cases under the old settlement law, a general hiring at a yearly salary was always held to be a hiring for a year. The principal witness on the part of the defendant, however, on cross-examination, stated that he did not remember an instance of a clerk or agent in this particular trade having been dismissed at a month's notice, where the contract contained such a provision as in this case, for a bonus for good conduct at the end of the year. That, as it seems to me, may have some influence in determining your judgment upon this question. The parties first agree for a general hiring, at a yearly salary: then they add a proviso, that, if the employer shall at the end of the year consider the agent deserving of it, he shall be rewarded with a donation of 301. Now, the only legitimate effect of that,-assuming the custom to have been established,would seem to be, that, by introducing that stipulation into the contract, they meant the custom to be excluded. The first question, then, for your consideration will be, whether such a custom as alleged exists in the particular trade: and the second question will be, whether the contract was made with reference to the custom, or was a special contract to which the custom did not apply. If you think the evidence establishes the custom, it merely remains for you to consider whether you infer from the latter part of the agreement that the parties meant to exclude the application of the custom in the particular case. If you think they did