based upon the theory, that with proper vigilance the act might and ought to have been prevented. That this is true with mobs, as a general rule, is well known. A mob is always cowardly, and usually of slow growth. It increases in size and courage just in proportion as the authorities evince hesitation or timidity. That this hesitation is often the result of indifference, if not of open sympathy, is unfortunately too true. It is rare that a mob is without a large body of sympathizers at its commencement. This is because its fury is generally directed against an unpopular object. In populous communities, especially in large cities, there are always antagonisms of race, religion, politics, or social condition, which enable the demagogue to fan the fires of popular discontent, and incite the disorderly to acts of violence. It is because of this sympathetic feeling that mobs are often enabled to get the mastery, the fact being overlooked that a mob, when once aroused and maddened by success, becomes, like a wild beast, dangerous alike to friend and foe. There is nothing upon the face of this record to show that the Pittsburgh riots of 1877 were an exception to this rule. We see no evidence of any serious attempt upon the part of the local authorities to suppress it at the time of its commencement. A feeble attempt was made by the sheriff, resulting in the enrolment of some half-dozen deputies. But there was no proclamation calling the body of the county to come to his assistance, in preserving the public peace. No one doubts at this day that if a proper effort had been made at the proper time, the mob could have been held in check. No one doubts that it would have been, had the citizens of the county realized that they were responsible for the loss. But this Act of Assembly, folded away among the pamphlet laws, was probably forgotten or overlooked, even by those who knew of its existence. In the end, the mob that had defied the military power was put down in the main by the civil authorities, after the citizens had been aroused by a sense of common danger. The law will not tolerate the spectacle of a great city looking on with indifference, while property to the value of millions is being destroyed by a mob. To prevent just such occurrences was one of the objects of the Act of 1841. The fact that the State, when called upon, rendered its assistance, and sent a portion of its military to the scene, did not absolve the county from its implied obligation to preserve the peace, nor from its responsibility for a neglect of that duty. Were it otherwise, it might be to the interest of a municipality to increase the size of the mob. . . . The learned judge was right in rejecting the offers of evidence embraced in the second, third, and fourth specifications. It is manifest that if received they would not have amounted to a defence. Upon all the points presented, the law is against the county. The judgment, therefore, must be affirmed.1 1 [TOPIC 3. PROBLEMS: A city ordinance required hotel-keepers to provide fire-escapes. The defendant's hotel was not provided with them. A fire broke out, and the plaintiff's Topic 4. Sundry Special Responsibilities 416. HILL v. METROPOLITAN ASYLUM DISTRICT L. R. 6 App. Cas. 193 [Printed ante, as No. 28.] 417. PITTSFIELD COTTONWEAR MANUFACTURING COMPANY v. PITTSFIELD SHOE COMPANY SUPREME COURT OF NEW HAMPSHIRE. 1902 71 N. H. 522, 53 Atl. 807 EXCEPTIONS from Superior Court; STONE, Judge. Action by the Pittsfield Cottonwear Manufacturing Company against the Pittsfield Shoe Company. There was an order overruling a demurrer to the declaration, and defendants except. Exceptions overruled. Case for negligence. The declaration states the following facts: The plaintiffs occupy a part of the lower floor of a mill building, called the "Drake & Sanborn Mill," consisting of a basement, three stories, and an attic. The remainder of the mill was in the possession of the Drake & Sanborn Shoe Company, though the attic was in fact unoccupied. The plaintiff's occupancy was under rental from the Drake & Sanborn Company, and began April 1, 1900. The defendants occupied another mill. building, distant about 150 feet from the Drake & Sanborn building. Between the two mill buildings was a boiler house, containing boilers and an engine designed to furnish heat and power to the two mills. The boilers were connected by piping with the different floors of each intestate, a guest in the hotel, was burned to death. If his life was lost in consequence of the lack of fire-escapes, is the defendant responsible? (1898, Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809.) NOTES: "Liability of water company to property owner." (A. L. Reg., LVIII, 555.) 66 Liability to stranger for non-performance or negligent performance of contract: Failure to supply water in case of fire." (H. L. R., XX, 242.) "Liability of water company for fire losses." (M. L. R., IV, 540.) [ESSAYS: Edson R. Sunderland, "Liability of Water Companies for Fire Losses." (M. L. R., III, 442.) Albert M. Kales, "Liability of Water Companies for Fire Losses; Another View." (M. L. R., III, 501.) Arthur L. Corbin, "Liability of Water Companies for Losses by Fire." (Y. L. J., XIX, 425.)] mill, so that each mill could be supplied with steam and heated., The system was so constructed that the steam could be admitted to or shut off from either mill, and each floor of each mill building, as desired. The Drake & Sanborn mill was supplied, as a protection against fire, with an automatic sprinkler service, consisting of a system of pipes kept constantly filled with water under pressure. To keep the water in the pipes from freezing, bursting the pipes, and escaping and subjecting the machinery and stock in the mill to injury by water, it was necessary the buildings should be warmed at all times in cold weather. December 1, 1897, the defendants entered into a contract with the Drake & Sanborn Company to operate the boilers and furnish sufficient steam at all times to the heating pipes in the Drake & Sanborn mill to so warm the building that the water in the sprinkler pipes would not freeze. Under this contract the defendants had exclusive charge and control of the boiler house and the management of the heating plant therein contained. Upon the night of January 19-20, 1901, while this contract was in force and the defendants had the management of the boiler house and boilers, they carelessly permitted the fire to go out so that no steam was supplied for heat to the Drake & Sanborn mill, in consequence of which a sprinkler pipe in the attic of the mill froze and burst, and the escaping water flowed down through the mill into the lower story, and injured the plaintiffs' goods which were there stored. There were no means of heating the Drake & Sanborn mill except by steam from this boiler house. The plaintiffs knew of the defendants' contract with the Drake & Sanborn Company, and relied upon their faithful performance of it, Upon the foregoing facts the declaration alleges that it was the duty of the defendants to exercise reasonable care and prudence in the management of the boiler house and in the maintenance of a proper fire under the boilers, and to furnish sufficient steam to heat the Drake & Sanborn mill and to prevent the freezing of the water in the pipes therein, and that if the defendants had exercised such care the pipes would not have frozen and burst, and the plaintiffs would not have been damaged. The defendants' demurrer was overruled at the October term, 1901, of the Superior Court, subject to exception. Sargent, Niles, & Morrill, for the plaintiffs. Albin & Shurtleff, for the defendants. This is an action of tort, and it cannot be maintained unless the defendants have violated some duty which they owed to the plaintiffs. . . . A legal duty is created in only three ways: (1) by the common law, (2) by statute, and (3) by contract. The character of the duties arising from common law are various but limited, while the persons to whom the duty is owed are unlimited; and any one injured by the violation of such duties may sue therefor. Of this class, public duties and the duty of refraining from the maintenance of a public niusance are the principal and most common. Duties arising from statutes are limited in character and as to persons by the intent of the Legislature. Duties arising from contract are limited in the same respects by the intent of the parties to the contract. . . . The distinction between these [last two cases does not seem to make them different in principle. In each class the defendants had certain duties under a contract or statute; they did not perform them, and injury resulted to the plaintiffs, who were not contracting parties; and in all of the cases the injury resulted directly from the violation of the duty. In all these cases there is a common characteristic; the negligence was of omission, and not of commission. The defendants merely neglected to do something which, but for a contract or statute, they would have been prefectly free to neglect. That characteristic is also found in the case at bar. . . A person responsible for certain conditions on account of which, if due care is not exercised, injury may result, is bound to exercise such care; but a person not responsible for such conditions has no legal duty to prevent injury. A is legally and rightfully cutting down a tree, and, as it is about to fall, B runs in where the tree falls upon him; A negligently fails to warn B, or support the tree and keep it from falling, which he could easily have done; A is responsible for the injury to B. A is standing near a tree which is about to fall, but through no agency of his; B runs in where the tree falls upon him, but A carelessly fails to warn B, or to do anything to prevent the tree from falling, although he could have done so without danger to himself; A is not liable for an injury resulting to B. The act of negligence in both cases is exactly the same, yet in one case A is liable and in the other he is not. What is the distinction? Simply this: In the first instance A was responsible for the condition of things from which, on account of want of due care, the injury resulted; in the second case he was not responsible, and as a consequence owed no duty toward B to prevent his injury. It is in a broad sense that we use the word "omission," as distinguished from "commission." The defendants omitted from the very beginning, as did A in the second illustration. . . . In no case has the defendant been held liable for negligence unless in the first instance responsible for the dangers of the situation. . . . In all the cases cited in the defendants' brief, as well as in the plaintiffs', the party held liable had control and possession of the very force or thing that caused the injury, thus being responsible for the dangerous situation; while in every case where the defendant did not have such control and possession, and so was not responsible for the dangerous situation, he was not liable, however gross or seemingly proximate his carelessness. . . . The defendants were not responsible for the dangerous situation. They were not responsible for the cold night, nor for the pipes, nor for the plaintiffs' occupancy. These were the combined elements that brought about the injury, and over none of them had the defendants any control. As the defendants were not responsible for the dangerous situation, they owed no common-law duty to prevent injury therefrom. PARSONS, C. J. . . . It has been said that, in ascertaining the "con tent of the law," "legal duties come before legal rights" (Holmes, Com. Law, 219); but in the administration of the law there must be found a correlative existence of rights and duties. If there is no wrong without a remedy, there can be no invasion of a legal right for which the law affords a remedy, unless there exists at the same time a legal duty upon some one to prevent or abstain from such invasion. The wrong to the plaintiffs being the incursion of water upon their premises, the next inquiry, in a philosophical search for a remedy, is: Upon whom does the law, upon these facts, impose the duty of preventing the invasion by water from which the plaintiffs suffered? In the attic of the Drake & Sanborn mill, for a lawful purpose, protection against fire, water was so confined and maintained that there was probability of injury to others if it escaped. Upon the parties responsible for the collection and maintenance of this water the law imposes the duty of exercising care to prevent its escape. The care and control of the premises upon which the dangerous condition existed having been surrendered by the owners to others, the responsibility for the failure to exercise such care and control rests with the guilty parties, and not with the owners. Carter v. Berlin Mills, 58 N. H. 52, 42 Am. Rep. 572. In this situation, the only duty of the Drake & Sanborn Company toward the plaintiffs which the plaintiffs could insist upon against them of care to prevent injury to them. . . . Their right to damages for their injury is not dependent upon the fact of lack of care in heating. Any carelessness by which the water escaped upon them to their injury would have sustained their action. . . . the only right was the exercise It is alleged in the plaintiffs' declaration that it was the duty of the defendants to exercise care and prudence in the operation of the boilers, and to furnish sufficient steam to heat the Drake & Sanborn mill, and to prevent the freezing of the water in the pipes therein. As the duty, the breach of which constitutes actionable negligence, is one imposed by law, the mere allegation of the duty is insufficient to establish it. The question remains whether upon the facts stated the law imposes the duty. 1 Ch. Pl. 370; Seymour v. Maddox, 16 Q. B. 326; Kennedy v. Morgan, 57 Vt. 46; Safe Co. v. Ward, 46 N. J. Law, 19, 23. It is alleged that at the time of the injury complained of the defendants were under contract with the Drake & Sanborn Company to furnish sufficient steam to heat their mill; but this allegation does not make out a cause of action in favor of these plaintiffs against the present defendants. It discloses a duty on the part of the defendants to heat the building; but this duty was to the Drake & Sanborn Company, and to no one else. Nothing is better settled than that an action will not lie in favor of any third party for a breach of duty so created. Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Necker v. Harvey, 49 Mich. 517, 14 N. W. 503; Winterbottom v. Wright, 10 Mees. & W. 109; Longmeid v. Holliday, 6 Exch. 761; Heaven v. Pender, 11 Q. B. Div. 503. The plaintiffs concede in argument that no recovery can |