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Vol. 1.] Metallic COMPRESSION CASTING Co. v. FITCHBURG R. R. Co. (No. 3. rights of property are subject to some limitations. No one has a right to his real estate, which is absolutely exclusive. In Cooley on Constitutional Limitations, 594, it is said that police regulations may authorize one to take, use, and destroy the private property of individuals, to prevent the spread of fire, the ravages of pestilence, the advance of a hostile army, or any other public calamity. See also the authorities there cited. But we have no occasion to consider the principle further than it is settled by this court in Taylor v. Plymouth, 8 Met. 462. It is there held that the right to take private property to prevent the spread of fire exists by the common law. Chief Justice Shaw discusses the principle, and cites the authorities. We cannot doubt the soundness of the principle; and it authorized the parties engaged in extinguishing the fire in the plaintiffs' factory to lay their hose across the defendants' track.

The elaborate provisions which our statutes have made for the extinguishment of fires indicate the magnitude of the interest which the community has in preventing the spread of conflagrations ; but these statutes do not supersede the common law. Their purpose is merely to enable the community to protect themselves more effectually than they could do otherwise. Thus the organization of a fire department with officers and implements does not deprive the people of a neigborhood from obtaining an engine and hose, and crossing the neighboring lands to obtain water for stopping a conflagration, without waiting for an organization; and individuals may climb upon neighboring roofs to carry buckets of water. It is a sufficient justification, that the circumstances made such an invasion of private property reasonable and proper, in helping to extinguish the fire.

The objection of the defendants, that the officers of the fire department in Cambridge had no jurisdiction in Somerville, and could not act officially in that town has no validity. They had a fire company organized, and an engine and hose, and were in the vicinity of the building, and they could not with propriety stand idly by, and witness the spread of a fire which they might extinguish, merely because it was beyond the town line. They had a right, as citizens, to do what they reasonably could to prevent this public calamity, whether in their own city or a neighboring town.

It is urged that upon this principle one person may enter upon the property of another for the purpose of extinguishing a fire in a small building of no importance, and where there is no danger to other buildings. Undoubtedly the principle is to have a reasonable limitation. He who enters upon the property of another takes upon himself the burden of establishing the fact that there was a just occasion for it; and in this case the plaintiffs must submit to the jury, with proper instructions, the question whether there was good cause for laying the hose across the defendants' track. All that the court can say is, that there is sufficient evidence to submit to the jury.

But assuming that the hose was properly laid across the track, yet the defendants contend that the plaintiffs have no cause of action, because the hose was not their property, nor were the men who had possession of it their servants. It is true that the hose was not their property, and the men in charge of it were not their servants. Their services were voluntary, and if they had gone away and taken the hose and engine with them, the plaintiffs would have had no legal claim against them. But we do not

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Vol. I.] METALLIC COMPRESSION CASTING Co. v. FITCHBURG R. R. Co. (No. 3. think that these circumstances are material. The men and the engine were in fact furnishing water to the plaintiffs, and were thereby extinguishing the fire. They were rendering the same services to the plaintiffs as if they were hired and were using the plaintiffs' hose. The defendants cut off the supply of water, and this was as really an interference with the plaintiffs' possession as if they held the possession under a deed, and as if the men were laboring under a contract. The interference was tortious.

It is further contended, that no direct or immediate injury was occasioned to the plaintiffs by the act of the defendants, but that the injury was occasioned by the fire directly, and by the defendants remotely. The question of proximate cause is often involved in difficulty, by reason of the endless variety of circumstances in which injuries may occur; and the cases on the subject are very numerous. A case which much resembles the present is Atkinson v. Newcastle f Gateshead Waterworks Co. Law Rep. 6 Exch. 404. The defendants were a company incorporated to erect waterworks and supply water to the inhabitants, with the obligation to keep a certain head upon the fire plugs. They neglected to do this, and were thereby subject to a penalty. The plaintiffs' saw-mill and lumber-yard took fire; and in consequence of the defendants' neglect in respect to the head of water, the plaintiffs could not obtain a supply, and their property was burned. It was held that the defendants were liable, on the coramon law principle stated in Com. Dig. Action on the Case, A:“Whenever a man has a temporal loss or damage by the wrong of another, he may have an action on the case to be repaired in damages.” The defendants contended that the damages were too remote, but the court held otherwise. Kelly, C. B., significantly asked, “ What kind of damage can be more a promixate consequence of the want of water than the destruction by fire of a house which a proper supply of water would have saved ?" Baron Bramwell remarked that it was the immediate consequence of the proximate cause. Couch v. Steel, 3 El. & Bl. 402, was cited as decisive of this principle. Among other cases illustrating the subject of direct consequences are Scott v. Shepherd, 2 W. Bl. 892; Gilbertson v. Richardson, 5 Ĉ. B. 502; Lee v. Riley, 18 C. B. (N. S.) 722; Dickinson v. Boyle, 17 Pick. 78; Wellington v. Downer Kerosene Oil Co. 104 Mass. 64.

Other cases are cited where the damages were held to be too remote, but they are unlike the present case. The law regards practical distinctions, rather than those which are merely theoretical; and practically, when a man cuts off the hose through which firemen are throwing a stream upon a burning building, and thereupon the building is consumed for want of water to extinguish it, his act is to be regarded as the direct and efficient cause of the injury.

It is further contended that the advantage to be gained by the plaintiffs from the supply of water through the hose was merely prospective, and thus was remote. But it was not prospective, in the sense in which that word is used in the cases cited by the defendants. In respect to the extinguishment of the fire, the advantage was immediate.

It is further contended that the railroad company owed no duty to the plaintiffs in a case like this. It may be true that the company owed the plaintiffs no active duty; but it cannot be doubted that they owed the negative duty of forbearing to do an unlawful act which caused an injury.

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Vol. I.)


(No. 3.

And the defendants are responsible for the act of their agents who had the control of the train. This principle is too well settled to require discussion.

Case to stand for trial.


[FEBRUARY 9, 1874.]




The holder of a promissory note executed a written instrument by which he agreed with the maker to extend the time of payment, which written instrument contained the following clause : Provided further, that no delay of demand shall interfere with any claim I may have upon the indorsers of said note." Held, on a suit against the indorser upon the note, that his liability was not discharged by such agreement.

ERROR to the district court of Philadelphia.
Opinion of the court by MERCUR, J.

This suit was against the indorser of a promissory note. The first assignment of error raises the question as to whether he was discharged by reason of an agreement between the holder and the maker, after the note became due, extending the time of payment. It is a well recognized rule, that an extension of time by a valid agreement between the creditor and the principal will, as a general rule, discharge the indorser. The reasons therefor are these: The liability of the indorser to the holder is secondary and contingent. On his paying the note, he has a right of action against the principal, or of subrogation to the rights of the creditor. Hence, if time has been given, or an act has been done by the creditor which prejudices these equities in the indorser, he will be discharged.

It has, however, been repeatedly held in England, and in this country, that a discharge by the creditor of the principal debtor will not discharge the surety, if there be an agreement between the creditor and the principal that the surety shall not be thereby discharged. Byles on Bills, 316; Ex parte Glendinning, 1 Buck B. C. 517; Ex parte Carstairs, Ib. 560; Gifford, ex parte, 6 Vesey Jr. 805; Boultbee v. Stubbs, 18 Vesey Jr. 20; Nichols et al. v. Norris, 3 Barn, & Ad. 41 (23 E. C. L. R. 28); Kearsley v. Cole, 16 Mee. & Wels. 128; Boaler et al. v. Mayor et al. 115 Eng. Com. Law Rep. 76 (19 C. B. N. S. 76). It was said, however, by Lord Chancellor Eldon, in Ex parte Glendinning, supra : “ Ever since Mr. Richard Buck's case, the law has been clearly settled, and is now perfectly understood, that unless the creditor reserves his remedies, he discharges the surety by compounding with the principal, and the reservation must be upon the face of the instrument by which the parties make

Mr. 9. Chancen w Rep. 78. & Wel Barn. &

(No. 3.

Vol. I.)


orsers, is Pon a validaker,

the compromise ; for evidence cannot be admitted to vary or explain the effect of the instrument.” It was held in Wyke v. Rogers, 1 De G., Mac. & G. 408, that parol evidence might be given to show that an agreement, which would by itself operate to release the surety, was not to have that effect.

The ground upon which an agreement to give time to the maker, made by the holder without the consent of the indorsers upon a valid consideration, is held to be a discharge of the indorsers, is solely this, that the holder thereby impliedly stipulates not to pursue the indorsers, or to seek satisfaction from them in the intermediate period. It can never apply to any case where a contrary stipulation exists between the parties. Hence, if the agreement for delay expressly saves and reserves the rights of the holder in the intermediate time against the indorsers, it will not discharge the latter. In such case the very ground of the objection is removed, that their rights are postponed against the maker, in case they should take up the note. Story on Prom. Notes, § 415. The same rule is recognized in Viele v. Hoag, 24 Vt. 46; Morse v. Huntington, 40 Vt. 488; Clagett et al. v. Salmon, 5 Gill & Johns. 315. The whole course of Chancellor Walworth's reasoning in Bangs v. Strong, 10 Paige's Chan. Rep. 11, leads to the same result.

The indorser was not a party to the contract between the holder and the maker. He was not thereby precluded from paying the note at any moment. Having paid it he would have had an immediate right of action against the maker. None of his rights were in the slightest degree impaired.

Neither the search of counsel or our own examination has resulted in finding that the precise point has ever been decided by this court. When not in conflict with our own precedents, it is desirable that we conform to what seems to be the general rule of the commercial world. The case of Manufacturers' Bank v. Bank of Pennsylvania, 7 W. & S. 335, has been cited in opposition to this rule. Such is not the case. The point there decided is merely that an indorser may be discharged by the holder giving time to the maker, after judgment has been obtained against him; that the creditor must no more impair the rights of the indorser, after he has obtained judgment against the maker, than before.

The written instrument executed by the plaintiff below, by which he agreed with the maker to extend the time of payment, expressly declares : Provided further, That no delay of demand shall interfere with any claim I may have upon the indorsers of said note.” The case is thus clearly brought within the rule, and we hold that the extension of time to the maker in a manner which preserved all the rights of the indorser, did not discharge the latter.

The second and third assignment have no merit. The acceptance of the conveyance of land in the absence of the plaintiff below, by acting without authority, and so known by the defendant below, and repudiated by the holder of the note, cannot prejudice his rights against the indorser.

The learned judge was correct in instructing the jury to find in favor of the plaintiff below.

Judgment affirmed.,

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By the constitution of the Commonwealth, the governor with the advice of the council may grant a pardon of an offence after a verdict of guilty, and before sentence and while exceptions allowed by the judge who presided at the trial are pending in this court for argument ; and the convict, upon waiving his exceptions and pleading the pardon, is entitled to be discharged.

INDICTMENT for cheating by false pretences ; returned at March term 1871 of the superior court in Suffolk for criminal business. At May term of that court a trial was had, a verdict of guilty returned, and exceptions taken by the defendant to the rulings and decisions of the presiding judge were allowed.

The exceptions were duly entered in this court, and while they were pending here, and before any argument or decision of the questions arising thereon, the defendant on December 13, 1871, came into the superior court, and there pleaded a pardon, granted by the governor with the advice of the council on December 8, of the offence charged in the indictment. The district attorney, in behalf of the Commonwealth, replied that the pardon was granted a while the exceptions were pending and undecided as aforesaid, and before any judgment on said verdict was or had been rendered by said superior criminal court or any conviction had on said indictment, and was, and is null and void.” The defendant demurred to the replication; and Lord, J., reported the case for the determination of this court as follows:

"By consent of the parties, I report for the determination of the supreme judicial court, whether said pardon can be pleaded in bar of sentence upon said indictment; and whether it can or cannot be pleaded, what is the legal effect of the pleading in the case. It was agreed between the parties, that the exceptions to the rulings and decisions of the superior court were pending at the time the pardon was issued; and that said exceptions were subsequently waived, and the pardon pleaded, as appears by the record. The Commonwealth's attorney contended that, under the constitution of the Commonwealth, the governor cannot pardon till conviction is established by the judgment of the court upon a verdict of guilty ; that at all events, even if the executive may interpose his pardon before sentence, it can only be when nothing of judicial proceeding remains except sentence, when the right of the government to move for sentence is judicially determined ; and that under no circumstances whatever can a pardon be issued while there remains undecided a judicial question, upon which conviction and sentence depend. On the part of the defendant, it was contended that the power and right of the governor to pardon is absolute upon the rendition of a verdict of guilty by the jury, and, whether so or otherwise, the defendant is entitled upon the pleadings to be discharged.”

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