Page:Harvard Law Review Volume 5.djvu/202

186 1 86 HARVARD LAW REVIEW. the other of the line, has brought out the precise limits of the rule. 1 Fletcher v. Rylands shov/s one stage in the growth of a rule of law by means of decided cases. An example may now be taken of a more advanced stage in the process, where the result of a series of decisions, gradually grouped and classified, is a definite rule of law accepted and enforced by the courts in all respects like a legislative enactment. The law of distress, an ancient branch of the common law, gave the landlord a lien upon any chattels found upon the prem- ises, even though they were the property of a third person. From early times, however, it was recognized that this rule was not universal. For one reason or another, certain goods were held to be privileged from distress. The early decisions probably pro- ceeded upon simple grounds. " This would tend to a breach of the peace ; " " it would discourage trade ; " such arguments as these were the controlling considerations. The cases as they multiplied fell naturally into certain groups, and in 1744 Chief Justice Willes, in deciding that a stocking-frame was exempt from distress, 2 as an instrument of trade, enumerated five classes of articles privileged, either conditionally or absolutely. Among the latter were " things delivered to a person exercising a public trade, to be carried, wrought, worked up, or managed, in the way of his trade or employ." 3 In the case of Muspratt v. Gregory, 4 nearly one 1 In one particular, however, this process has already been performed by a series of later decisions. Fletcher v. Rylands expressly left open the question what circumstances would excuse the defendant. It has since been held that the act of God is an excuse (Nichols v. Marsland, 2 Ex. D. 1) ; so of the act of a third person (Box v. Jubb, 4 Ex. D. 76) ; the fact that the water was collected in the performance of a public duty (Madras Co. v. Zemindar, L. R. 1 Ind. App. 364) ; orfor the joint benefit of the plaintiff and the defendant (Carstairsz>. Taylor, L. R. 6 Ex. 217) ; and it has even been suggested (Car- stairs v. Taylor) that the defendant was not liable for an escape caused by rats. These cases leave a very limited field of operations for the principle of Fletcher v. Rylands. Moreover the doctrine, which had an important influence on the decision (see Lord Cranworth's opinion in the House of Lords), that a man who sets a force in motion must answer at his peril for the consequences, has lately been repudiated in England (Stanley v. Powell, 39 W. R. 76), as it was long ago in this country. ' It is not impossible that Fletcher v. Rylands may yet come to be regarded as a somewhat illogical appendage to the class of cases where, though the want of due care is a necessary element of liability, the mere occurrence of the accident is held to raise a presumption of negligence. 2 Simpson v. Hartopp, Willes, 512. 3 This was quoted in substance from the earlier case of Gisbourn v. Hurst, 1 Salk. 25a • * 1 M. & W. 633; 3 ib. 677.