This was an action of trespass in which the defendants were charged with pulling down a s house.
They pleaded not guilty, under an agreement authorizing them to give in evidence, under that plea, every matter that might be got in under any special pleas they could have adopted. The cause was tried by a jury, and the defendants had final judgment in their favor. The evidence is not upon the record. The following instructions are complained of:
“ 1. That men acting in case of fire,' from sudden impulse, and upon good motives, are not to be held to strict accountability for their conduct; and if the jury believe from the evidence that the crowd engaged at the fire, and the defendants, really believed it necessary to tear the building down to save it from being consumed and consuming other buildings adjoining, the defendants are not guilty;”
“2. Though there mav not have been a.n absolute necessity fyet, if the danger "was anuareiit. and seemed to be so, it was right to pull down the housre.”
In The Governor, &c. v. Meredith, 4 Term Reports, 790, Buller, Justice, says: “ There are many cases in which individuals sustain an injury, for which the law gives no action; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the *36kingdom against the king’s enemies.” Kent, in his Commentarles, Vol. 2, p. 238, says: . “ So it is lawful to raze pouses †0 qie ground to prevent the spreading of a conflagration.” “The maxim of the law is, that private mischief is to be endured rather than a public inconvenience.”
J. Ryman, for the plaintiff. W. S. Holrhan, for the defendants.There is no doubt, then, as to the right to destroy buildings when necessary, in case of a fire. The question is as to the state of facts which will justify the exercise of the right. The instruction given in this case says, when men believe it to hg necessary. It seems to us it should have been, when there is reasonable ground to believe it to be necessary. This is analftgous to the doctrine of probable cause in malicious prosecutions. (
Per Curiam.The judgment is reversed with costs. Cause remanded, &c.