this only incidental, mention of contribution towards jettison to be found in our law books is given in Coke's Reports, as occurring in the 6th year of King James I.'s reign, under the title of Mouse's Case [supra]. . . . Lord STOWELL, in the case of The Gratitudine, in 1801, speaks as follows concerning jettison. . "Nothing can be better settled than that the master has a right to exercise this power in case of imminent danger. He may select what articles he pleases; he may determine what quantity. . . . It is said, this power of throwing over the whole cannot be but in cases of extreme danger, which sweeps all ordinary rules before it: and so it is. So likewise with respect to any proportion, he can be justified only by that necessity: nothing short of that will do: the mere convenience of better sailing, or more commodious stowage, will not justify him to throw overboard the smallest part. It must be a necessity of the same species, though perhaps differing in the degree."

Topic 3. Fire

769. BISHOP BURNET. Life of Lord Clarendon. [Printed ante, as No. 617.]

770. BISHOP & PARSONS v. MAYOR AND CITY COUNCIL OF MACON

SUPREME COURT OF GEORGIA. 1849

7 Ga. 200

MOTION for new trial. Bibb Superior Court. Heard before Judge FLOYD, January Term, 1849. This was an action on the case, brought by the plaintiffs in error against the defendants in error, for the recovery of $1,378.14. The declaration sets forth, that on the 20th day of August, 1844, the plaintiffs were in possession of divers goods, wares and merchandize, tools and other implements used in the tinware manufacture, of the value of $1,378.14; that on the day and year aforesaid, a fire broke out in the city of Macon, in a tenement in the vicinity of the one occupied by the plaintiffs, but that plaintiffs would have succeeded in removing all their goods, wares and merchandize to a place of safety, had not the Mayor and Council of the city of Macon caused divers kegs of powder to be deposited in the cellar and under the tenement occupied by the plaintiffs, long before it became necessary so to do, for the purpose of blowing up the building, to arrest the fire; that in consequence of the depositing the powder as aforesaid, the agents, servants, hirelings, and all other persons assisting plaintiffs in the removal of their goods, wares and merchandize, &c. were hindered and prevented from saving the same; and that the same were wholly consumed and burnt during the progress of the fire.

The defendants filed the plea of the general issue. The cause came on to be tried on the appeal, at May Term, 1847. The jury returned a verdict in favor of the plaintiffs for five dollars and costs of suit. Whereupon counsel for plaintiffs moved the Court for a new trial, on the

grounds, 1st. Because the finding was contrary to the charge of the Court. 2d. Because it was contrary to law. 3d. Because it was contrary to evidence. The motion for a new trial was heard and overruled by Judge Floyd, at January Term, 1849, on the ground that this was not such a case of damages as would authorize the Court to grant a new trial. To which decision of the Court counsel for plaintiffs excepted, and assigned error.

Hines and Gresham, for plaintiffs in error.
Poe, for defendants.

By the Court,

LUMPKIN, J. delivering the opinion.

I shall not undertake to discuss the many grave questions which naturally arise upon this record. I shall assume, however,

1st. That it is now well settled, that in a case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity, the private property of an individual may be lawfully taken, and used or destroyed, for the relief, protection or safety of the many.. . . If the public necessity exists, and of this the constituted authorities are to judge, no trespass or wrong has been committed. 17 Wend. 285. 18 Ib. 126.

...

2dly. It is equally evident, on the other hand, that if the private property of an individual, the whole or a part of which might otherwise have been saved to the owner, is taken or destroyed for the benefit of the public, or of the inhabitants of a particular county, city, town, or other smaller section of the community, those for whose supposed benefit the sacrifice was made, ought, in equity and justice, to make good the loss which the individual has sustained for the common advantage of all. And there is an implied assumption or undertaking on the part of the public, that adequate remuneration shall be made. Ib.

3dly. Where the same extent of loss or injury would have been sustained by the individual, as the necessary consequence of the fire or other public calamity, if his property had not been thus taken or destroyed for the protection of others, he would hardly seem entitled to compensation. For in such case, although others have been benefited, he has in fact sustained no damage. Ib.

But passing by these questions, I shall confine myself strictly, and within the narrowest limits, to the single point in the case. It seems that, during the fire which occurred in the city of Macon, on the night of the 20th of August, 1844, the plaintiffs were engaged, with their servants and friends, in removing the goods from the tenement which they occupied. While thus employed, and the fire having communicated to the building in the immediate neighborhood, several kegs of powder were placed by order of the City authorities, in their cellar, and trains laid to explode them. This fact being made known, all the persons who had been previously engaged in removing plaintiff's goods, instantly desisted, and retired from the premises. Some time elapsed before the fire reached the adjoining edifice; and it was from 30 to 60

minutes before the tenement was blown up. The plaintiffs had some fourteen or fifteen hundred dollars' worth of merchandize in the store at the time, and brought their action to recover its value — a bill of particulars being annexed to their writ - upon the ground, that but for this premature movement on the part of the Mayor and Council, they could have saved all their property. The proof sustained the declaration in every particular; but the Jury returned a verdict of five dollars only. A new trial was asked, on the ground that the finding was contrary to evidence, and refused for the reason "that this was not such a case of damages as would authorize the Court to disturb the verdict." Was the presiding Judge right in this opinion?

Now, this was an action on the case, in the nature of an indebitatus assumpsit, for the value of the property of the plaintiffs, destroyed by order of the City authorities. Here was an exact measure of damages for the jury to go by. The proof, as it appears in the bill of exceptions, as to the goods consumed and their value, was full and explicit, and uncontradicted. And yet the verdict, instead of being for $1,378.14, was for $5.00, It was manifestly, therefore, against evidence, and should have been set aside by the Court. From mistake, or some other cause, they found a much less amount than in justice they ought. The plaintiffs were entitled to a re-examination of the matter. A new trial is consequently awarded.

771. TAYLOR v. PLYMOUTH

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1844

8 Metc. 462

THIS was an action on the Rev. Sts. c. 18, § 7. By § 4 of said chapter, it is provided, that "the firewards, who shall be present at the place in immediate danger from any fire, or any three of them, and, where no firewards are appointed, the selectmen present, or, in their absence, two or more of the civil officers present, or, in their absence, two or more of the chief military officers of said town present, shall have power to direct the pulling down or demolishing of any such house or building as they shall judge necessary to be pulled down or demolished in order to prevent the further spreading of the fire." By § 7, it is provided, that "in case the pulling down or demolishing of any house or building, by directions of the firewards or other officers aforesaid, shall be the means of stopping the said fire; or if the fire shall stop before it come to the same; then every owner of such house or building shall be entitled to recover a reasonable compensation therefor from the town; but when the building so pulled down or demolished shall be that in which the fire first began and broke out, the owner shall receive no compensation therefor."

The trial was before HUBBARD, J., whose report thereof (so far as it

respected the point on which the case was decided by the full Court) was as follows: The building mentioned in the plaintiff's declaration was pulled down, during a fire in Plymouth, on the 4th of February, 1843. It was admitted that the building was owned by the plaintiffs; that the fire did not first begin therein, but reached it; and that the progress of the fire, in the direction of that building, was stopped by the act of pulling it down. The evidence showed, and the parties admitted, that before the demolition of the building was begun, it was materially on fire in more than one place; that at the time, it was impossible to save it from destruction by fire; and that it was not insured. The defendants contended that the plaintiffs could not, under the statute, maintain this action; and that, if they could maintain it, the measure of damages would be the value of the building at the time the order was given to demolish it, and not its value before the fire. The judge instructed the jury, pro forma, that the plaintiffs were entitled to recover nominal damages, and a verdict for such damages was returned for the plaintiffs, subject to the opinion of the whole Court. Verdict to be set aside, and the plaintiffs to become nonsuit, if they are not entitled to maintain their action.

Eddy & Coffin, for the plaintiffs.

Eliot & Gilbert, for the defendants.

SHAW, C. J. The plaintiffs bring their suit against the town, to recover damage for the value of a building alleged to have been pulled down, by order of the firewards, by means of which the flames were stopped during a fire. It is founded on the Rev. Sts. c. 18, § 7. The first question is, whether the building was demolished under such circumstances as to render the town responsible under the statute. It appears that before any order was given for pulling down the building (supposing the order to have been rightfully given, which is denied by the defendants) the building was materially on fire in more than one place, and that it was impossible to save it from destruction by fire. The force, therefore, which was used for pulling it down, rather hastened than caused its destruction. There was no voluntary sacrifice of the property of one proprietor for the safety of other proprietors; it was rather the pulling down of the burning materials of a house already in flames and partly consumed, and the destruction of which was inevitable, in order to prevent them from spreading the flames. . . . The distinction is obvious between a case of imminent danger, in which, though the chance is small, the building may be saved, and a case where the cause of destruction has taken effect and cannot be arrested. When this has occurred, to all practical purposes the loss has occurred. . . . In order to charge the town, the remedy being given by statute only, the case must be clearly within the statute. Independently of the statute, the pulling down of a building in a city or compact town, in time of fire, is justified upon the great doctrine of public safety, when it is necessary. Mouse's Case, 12 Co. 63 [ante, No. 767]. In 12 Co. 13,

Lord Coke-putting the case as an illustration of a general proposition, that what the immediate safety of the public requires is justifiable says, "for saving of a city or town, a house shall be plucked down, if the next be on fire." It is one of those cases, to which, says Mr. Justice BULLER, the maxim applies, "salus populi suprema est lex." 4 T. R. 797. But if there be no necessity, then the individuals who do the act shall be responsible. This is the more reasonable, as the law has vested an authority in the proper officers, to judge of that necessity. But the town is responsible by force of the statute only, and such responsibility is limited to the cases specially contemplated. The Court being of opinion that the case in question was not one contemplated by the statute, it becomes unnecessary to express any opinion upon the other questions suggested by the report.

Verdict set aside, and plaintiffs nonsuit.

774. SIR ANTHONY FITZHERBERT. New Natura Brevium. (1534.) "Breve de Leproso Amovendo." [Printed ante, as No. 27.]

775. THOMAS FIDELL. A Perfect Guide for a Studious Young Lawyer, both delightful and profitable for any Gentleman. (1654. p. 253.) Writ. Whereas we are credibly informed, that the plague is in the house of T. M. of your Parish, whereof one died; and whereof also we are informed, that divers of the inhabitants of your said Parish have resorted to the said house, both after and before the said party was dead, and especially two children in the house of I. R., by reason whereof it is feared that they are sick, and so by reason thereof the sickness is like to increase and spread further in the town, unless there be speedy provision made for the preventing thereof; These are therefore, in the names of the keepers &c., straitly to charge and command you that forthwith you cause the said house so infected to be shut up, and that you appoint a warder at the door, to keep them from coming forth and others from coming at them; and that you, the Church-wardens and overseers of the poor, be careful that the parties shut up be sufficiently provided for for their present relief and sustentation; and further that you cause the said I. R. and his family to keep themselves within their own doors, and that in the meantime he forbear to victual, or let any come into his house till he hath further orders; And of your care and diligence herein we do expect a continual account, that we may give further directions as the cause shall require; And we are further to advise the parishioners that they be very careful not to mingle themselves with those that may have been of the same infected house. And of this our advertisement, we require you to give special notice, whereof fail not, &c. Dated, &c.