
    LANSING a. STONE.
    
      Supreme Court, First District; General Term,
    
    
      Jan., 1862.
    Common Law in this State.—Evidence.—Admissions.—Pre sumption of Ordinary Care.
    
      It seems, that the English statute (6 Anne, ch. 3: re-enacted, 14 George III.) which provides that no action, suit, or process shall be had against any person in whose building or on whose estate any fire shall accidentally begin, for any damage "thereby,—is in force in this State as part of the common law brought with them by the colonists.
    In an action by a tenant against his landlord for damages to the furniture of the former, by negligently setting the leased premises on fire, evidence on behalf of the tenant that the landlord had obtained a policy of insurance on the premises, and received the amount mentioned therein is properly rejected.
    In regard to the performance of a lawful act, the presumption exists that at least ordinary care was used.
    Declarations out of court are not to be construed as admissions, by the speaker, of any thing not within the popular meaning of the language employed.
    
      In an action to recover damages for loss of personal property by a fire, the evidence was that the defendant, shortly before the fire broke out, rightfully went into a chamber of the house where the property was with a lighted candle, and that the defendant had stated that he thought the house must have taken fire from the candle, the circumstances showing that the fire might have had a, different origin,—EM, that the verdict was against evidence.
    Appeal from a decision of the Madison County Court affirming a justice’s judgment.
    This action was brought before a justice of the peace, where the plaintiff, George W. Lansing, complained of the defendant, Daniel D. Stone, that he rented a house of the defendant, in the year 1858, in the town of Cazenovia, and placed his household furniture in it; that the defendant afterwards entered the house in the absence of the plaintiff and his family, and through the negligence and carelessness of the defendant the house took fire and plaintiff’s furniture therein was burned to his damage, &e. The defendant’s answer was a denial of each and every allegation in the complaint.
    The action was tried before the justice without a jury.
    The proof showed that the defendant owned about ninety acres of land, on which the house was situated. That the plaintiff hired the house of the defendant for one year from April 1, 1858; that the house and some of plaintiff’s furniture, which was not got out, were burned in the daytime in August, 1858, when the plaintiff and his family were all absent. The defend•ant cultivated the ninety acres of land, and kept some things in the chamber over the wing or wood-house, and went into the ■chamber “ once in a while” to the knowledge of the plaintiff and without objection. The plaintiff testified that the defendant did not reserve the chamber, but had the privilege .of leaving some irons there. The defendant testified that by the contract of leasing he was to have the privilege of keeping things in the chamber, and kept things there, such as ox-bows, staples, and other things. The plaintiff testified that the defendant said, “it was all his doings the house burning; that he had been into the chamber in the daytime previous with a lighted candle.” Palmer Freeborn testified that defendant said “ he had been up in the chamber to look for an iron of some description, and that he had a candle there, and that he thought it (the house) must have taken fire’ from the candle.” Gordon Barnard testified that defendant said “ he must have set it (the house) afire from his candle; that he went into the chamber with a lighted candle, and he thought it (the fire) must have taken from that.” The defendant testified that he had been in the habit of going into the chamber with a lighted candle after such things as he kept there, and kept a candle there to light and go in with. That on the day of the fire, soon after the plaintiff went away, at about 10 a. m., he went into the chamber with a lighted candle to get a part of a staple to an ox-yoke. That he first sent his son for it, and he came back without it. Defendant testified in substance that he was careful so as not to set any thing on fire with the candle and put it out when he left. ■ That he was from 80 to 100 rods from the house on the farm when he first saw the house was on fire. That the smoke was then coming out of the roof of the upright part of the house. That he and his son ran for the house, got water, and went into the chamber where he had been with the candle, and “ there was no fire there.” That there was fire in the garret. Defendant’s son was not sworn on the trial. "Walter Ainsworth testified that when he first saw the fire, it was pretty much over the roof of the upright part, and that “ the roof over the wing was not on fire any.” The defendant got some of the plaintiff’s furniture out of the house, and tried as hard as he could to get the whole of it out and to put out the fire. The plaintiff testified he had a fire in the house in the morning before he and his family left the same the day it was burned; but he supposed his fire went down while he and his family were eating breakfast, and also supposed it was not built up again. The plaintiff asked the defendant if he had not previously had the house insured, which the justice excluded as immaterial. The plaintiff offered to prove that subsequently to the fire the defendant received the insurance, which was also excluded by the justice. The justice rendered a judgment against the defendant for §10 damages, besides costs, which was affirmed by the Madison County Court. The defendant appealed from the judgment of the latter court to this court.
    
      D. W. Cameron, for the appellant.
    
      H. C. & R. L. Miner, for the respondent.
   By the Court.—Balcom, P. J.

It is proper in this case to refer to the law touching the liability of a person for damage a fire does to the building or other property of another, that accidentally begins in his own house or other building. I mean a . fire that happens by reason of the negligence of the owner of the house or other building in which it begins, or the negligence of his servant, and burns the house or other property of a neighbor. Blackstone stated the law, in his time, as follows: “ If a servant kept his master’s fire negligently, so that his neighbor’s house was burned down thereby, an action lay against the master ; because this negligence happened in his service; otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house ; for there he is not in his master’s immediate service, and must answer the damage personally. But now the common law is, in the former case, altered by statute (6 Anne, 3), which ordains that no action shall be maintained against any in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servant’s carelessness.” (1 Black. Com., 431.) The above-mentioned act was re-enacted by statute (14 Geo. III.), which provided that “ no action, suit, or process whatever shall be had against any person in whose house, chamber, stable, barn, or other building, or on whose estate, any fire shall, after the 24th day of June, 1774, accidentally begin; nor shall any recompense be made by such person for any damage thereby, any law, usage, or custom to the contrary notwithstanding.” I think the statute of Anne, above mentioned, as altered by that of 14 Geo. III., I have quoted, is a part of the common law of this State, notwithstanding the remarks arguendo of Judge Denio in Althorf a. Wolf (22 N. Y., 366). In Bogardus a. Trinity Church (4 Paige, 178), Chancellor Walworth said: “The common law of the mother country as modified by positive enactments, together with the statute laws which were in force at the time of the emigration of the colonists, became in fact the common law, rather than the common and statute law of the colony. The statute law of the mother country, therefore, when introduced into the colony of Hew York by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of the province.” Chancellor Kent says: It is also the established doctrine, that English statutes passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country.” (1 Kent's Com., 4 ed., 472; see 19 N. Y., 73.) By section 17 of article 1 of the existing Constitution of the State, such parts of the common law, and of the acts of the Legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, one thous- and seven hundred and seventy-five, are in force, which have not since expired, or been repealed or altered. A similar provision was .contained in our State Constitutions of 1777 and 1821. The statute (14 Geo. III.) I have quoted, was in force in the colony of New York on the 19th day of April, 1775, and it has not since expired, or been repealed or altered; for it was a part of the common law of said colony, and therefoi-e is now a part of the common law of the State. I think no repealing act of our Legislature, not even that passed December 10, 1828 (2 Rev. Stat., 779), is applicable to English or colonial statutes which were a part of the common law of the colony of New York. This conclusion is sustained by the opinions of Chancellors Walworth and Kent which I have quoted.

I have said this much to show that if a man’s house or other building takes fire by reason of his own or his servant’s negligence, he is not liable for the damage the fire does by spreading and burning his neighbor’s house or other property. The interest the owner of houses and other buildings has in preserving them from destruction by fire, is probably the only guaranty his neighbors have against his own or his servant’s negligence in the use of that dangerous element in his own houses and other buildings. A man’s loss by a fire that accidentally begins in his own house or other building and burns it, according to Blackstone, is sufficient punishment for his own or his servant’s carelessness, without making him pay the damage such fire does to the property of others. And his opinion clearly is, if such a fire be caused by negligence it is to be deemed accidental.

The defendant in this case had as great an interest in preserving his house from destruction by fire as the plaintiff had in taking care of his household furniture so it would not be burned. If the plaintiff had been permitted to prove, as he offered to, that the defendant had the house insured before it was burned, and that he afterwards received the insurance money, the evidence would not have materially changed the case. The offer was not to prove an over-insurance; and the plaintiff, did not allege or claim that the house was intentionally set on fire by the defendant. But as the offer was rejected, its character or that it was made at all is of no importance.

It cannot be said that the defendant wrongfully went into the chamber with the candle. The complaint did not charge him with wrongfully entering the house or chamber, or with wrongfully going into the latter with a lighted candle. And I think the plaintiff’s own evidence shows the defendant had at least an implied license to go into the chamber with a lighted candle at any time after things he kept there. There can be no presumption 'that .he did not exercise ordinary care when he went into the chamber with the lighted candle the day the house was burned; for ordinary care is that amount of attention or diligence which men of common prudence generally bestow in the care and use of their own property or in transacting their own business; and the presumption, without proof to the contrary, is that he was thus careful.

The declarations of the defendant, to the effect that the burning of the house and furniture was all his doing, that he had been into the chamber with a lighted candle just previous to the fire, and that he thought the house must have taken fire from the candle, if there was no evidence to weaken their force, would not prove he was negligent or careless in the use of the candle. They only show that the fire was accidental, or, at most, that it might have been caused by the careless manner the defendant used the candle,—not that it was so caused. But. the force of those declarations was greatly weakened, if not entirely overcome, by the evidence of the defendant and of Ainsworth. Their statements are uncontradicted, that the fire was pretty much over the roof of the upright part of the house before the roof on the wing was on fire at all: and the defendant swore positively that he was careful with the candle; and also that after the upright part of the house was on fire he went into the chamber where he had been with the candle, and “ there was no fire there.” Besides, the plaintiff testified he had a fire in. the house iu the morning before he and his family left the same, the day it was burned, though he supposed his fire went down while he and his family were eating breakfast, and also supposed it was not built up again. It seems to me the evidence, when all considered together, wholly failed to show the fire was caused by the carelessness or negligence of the defendant.

But I think the plaintiff could not recover, by reason of the common law that exempts a person from liability for damage caused by a fire that accidentally begins in his own house or other building through the carelessness or negligence of himself or his servant, and burns the house or other property of his neighbor, without showing that the fire was caused by the wilful act of the defendant, or that he wrongfully entered the house or chamber with a lighted candle.

Suppose it were clear that the fire in question originated from that kept in the house by the plaintiff, I think the defendant could not recover the value of the house, in an action against him, unless he could show that the plaintiff intentionally left his fire so it would burn the house: for tenants were relieved from the liability the ancient common law imposed on them for the consequence of fires that accidentally begin in houses rented and occupied by them, by statute, 6 Anne, ch. 31, § 67 (made perpetual by 10 Anne, ,ch. 14), which provides “ that no action shall be maintained against any person in whose house or chamber any fire shall accidentally beginand more recently by the statute of 14 Geo. III., ch. 78, by which it is enacted, that no action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby. They can, however, make covenants that will oblige them to rebuild the buildings demised to them, if they are destroyed by fire during the continuance of their leases. (See Woodf. Landl. & Ten., by Harrison, 434; Archb. Landl. & Ten., Law Library, 4th series, vol. 28, 192; 2 Platt on Leases, 187.) And as those statutes modified the common law of Great Britain, they became a part of the common law of the colony of Hew York, and are now a part of the common law of the State. (See authorities touching this question, cited supra.) But this question and some others I have discussed need not he definitely passed upon in this case.

My conclusion is that the defendant rightfully went into the chamber with a lighted candle; and that the plaintiff did not show he was negligent in using the candle at the time he went into the chamber with it: in other words, I think the evidence, when all considered together, does not establish a cause of action against the defendant. The judgment of the justice was therefore against evidence and law; and the County Court should have reversed it, instead of affirming it. It follows that this court should reverse the judgment of the County Court and that of the justice, with costs.

Judgment reversed. 
      
       Present, Balcom, P. J., Campbell and Parker, JJ.
     