ants, according to the agreed valuations, by $20,000, and for this difference the defendants gave their notes to plaintiff. The defendants had not received any property or benefit from, and hence did not owe any debt or duty to, the Lorillard Steamship Company, in consideration of which they should promise to pay any existing debt, or any debt that might accrue thereafter, against the Lorillard Steamship Company. The defendants had put their property, with cash to equal the property put in by plaintiff, into the Philadel phia & New York Steam Navigation Company, and the stock of that company to be issued upon such basis was to be and was in fact equal.

In the case of Lawrence v. Fox, Holly, who parted with his money to Fox on his promise to pay Lawrence, made the agreement with Fox to pay Lawrence, and Fox promised Holly that he would. There is no proof in this case that the Lorillard Steamship Company made any agreement with defendants to pay its debt to the Philadelphia Steamship Wharf Company, or that defendants made any promise to the Lorillard Steamship Com. pany, or to the Philadelphia Wharf Company, to pay such debt, or that either of these companies had any knowledge of this agreement, or of the pretended obligation arising from it, until long after the agree ment was made, and had been in process of performance in other respects. My conclusion is that the facts of this case are materially different from the facts in the case of Lawrence v. For, and the courts have repeatedly said that the principle of that case should be limited to cases having the same essential facts. Wheat v. Rice, 97 N. Y. 302.

against the Lorillard Steamship Company, contribute certain property owned by them, the lessee, for the balance of the rent, of respectively, at an agreed valuation, to the which the defendants had notice and oppor- capital of a new corporation, to be thereafter tunity to defend, and recovered a judgment organized. The value of the property to be therefor, which was paid by the Lorillard contributed by plaintiff exceeded the value Steamship Company, and that the latter of the property to be contributed by defendassigned to the plaintiff the cause of action set forth in said complaint. This analysis of the complaint brings me to the question involved in this appeal, and that is whether the Lorillard Steamship Company had any cause of action upon which it could have maintained an action against the defendants. It is generally regarded as essential that none but a party to a contract has a right to complain of or to recover damages for the breach of it against any of the other parties to it. The Lorillard Steamship Company was not a party to or even named in the agreement. The agreement was made and signed by the plaintiff and the defendants as individuals assuming to act for themselves only, and not as directors or agents of a corporation, or the agent of any person. The ground of the complaint is that the defendants agreed with the plaintiff that a corporation not in being, but which plaintiff and defendants agreed should come into being, should assume and pay the rent reserved in a lease, not between themselves, or to which either of them was a party, but between two corporations, neither of which was a party to the contract, at least in name. But it is urged in behalf of appellant that though the Lorillard Steamship Company was not a party to nor referred to in the agreement, the assumption of its obligation to pay rent reserved in its lease with the Philadelphia Steamship Dock Company was intended to be, and was, in fact, for its benefit, and that theory brings the case within the principle of the celebrated case of Lawrence v. Fox, 20 N. Y. 268. Whether the principle of that case is applicable to this depends upon this consideration: whether the facts of that case are the same, or of the same essential nature, as the facts of this case. Legal principles spring from the essential facts of a case, and it is not safe to apply the principle which controls the decision of one case to the decision of another case until the facts of the two cases have been closely compared, and found to be essentially the same. The essential facts of the case of Lawrence v. Fox were that one Holly, at the request of Fox, loaned the latter $300, at the same time stating to Fox that he, Holly, owed that sum to plaintiff, Lawrence, for borrowed money, and had agreed to pay it the next day, and the defendant, Fox, in consideration of receiving said sum from Holly, promised to pay it to the plaintiff, Lawrence, the next day. Fox failed to pay Lawrence according to the promise he had made Holly, and Lawrence brought an action against Fox upon the promise made to Holly to pay Lawrence the $300, and recovered a judgment. In this transaction, Fox, in consideration of receiving $300 from Holly, promised Holly he would pay the debt that he owed Holly to Lawrence, the creditor of Holly. The facts in this case under consideration are that the plaintiff and defendants agreed to

All that case decides is "that where one person loans money to another upon his promise to pay it to a third party, to whom the party so lending the money is indebted, the contract thus made by the lender is made for the benefit of his creditor, and the latter can maintain an action upon it without proving an express promise to himself from the party receiving the money." Garnsey v. Rogers, 47 N. Y. 240.

This was distinctly held in Vrooman v. Turner, 69 N. Y. 284. The court said that, "in every case in which an action has been sustained, there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise. Whether the decisions rest upon the doctrine of agency, the promisee being regarded as the agent of the third party, who, by bringing his action, adopts his acts, or upon the doctrine of a trust, the promisor being regarded as having received money or other things for the third party, is not material. In either case there must be a legal right founded upon some obligation of the promisee in the third party to adopt and claim the promise as made for his benefit."

I have considered this case as if the action

had been brougnt by the Philadelphia Wharf If I had reached a different concrasion as to Company, of whom the Lorillard Steamship the liability of defendants under the agree Company leased the property, and to whom ment, it would have been necessary to conthe rent under the lease was payable. I have sider other facts before holding that the assumed, in my discussion of the case, that defendants were liable to the plaintiff in this the Lorillard Steamship Company might case. maintain this action against the defendants for not paying the rent if the defendants had been liable under the agreement to pay the rent to the Philadelphia Wharf Company.

MASSACHUSETTS SUPREME JUDICIAL COURT.

nuisances, it was assumed that the question Legislature could throw the burden on owners whether the particular dog killed was unlicensed was open in an action against the officer who killed it, and that if he killed a licensed dog he would be liable in tort; in other words, that he proceeded in that respect at his own risk. P. 143, citing Shaw, Ch. J., in Tower v. Tower, 18 Pick. 262. It could have made no difference in that case if a board of three had been required to decide ex parte beforehand whether the dog was licensed.

of innocent rags in that case, why could it not throw the burden on the owners of innocent horses in this? If it could order all rags to be disinfected, why might it not have ordered such rags to be disinfected as a board of three should determine summarily and without notice or appeal? The latter provision would have been more favorable to owners, as they would have had a chance at least of escaping the burden, and it would stand on the same ground as the severer law.

In Salem v. Eastern R. Co., 98 Mass. 431, it was decided, in agreement with the views The answer, or a part of it, is this: Whethwhich we have expressed, that the decision of er the motives of the Legislature are the same a board of health that a nuisance existed on or not in the two cases supposed, it declares certain premises, and the order of the board different things to be dangerous and nuisances that it be removed at the expense of the owner, unless disinfected. In the one it declares all were not conclusive upon the owner, in a sub-imported rags to be so; in the other, only all sequent action against him to recover the ex-infected rags. Within limits it may thus enpense, he having had no notice or opportunity large or diminish the number of things to be to be heard. The general rule is that a judg- deemed nuisances by the law, and courts canment in rem, even when rendered by a regu- not inquire why it includes certain property larly constituted court after the fullest and and whether the motive was to avoid an invesmost formal trial, is not conclusive of the facts tigation. But wherever it draws the line an on which it proceeds against persons not enti- owner has a right to a hearing on the question tled to be heard and not heard in fact, although whether his property falls within it, and this it does change or establish the status it deals right is not destroyed by the fact that the line with as against all the world from the necessi- might have been drawn so differently as unties of the case, and frequently by express leg-questionably to include that property. Thus islation. Brigham v. Fayerweather, 140 Mass. in the first case the owner has a right to try 411, 413, 1 New Eng. Rep. 736. the question whether his rags were imported; in the second whether they were infected. His right is no more met in the second case by the fact that the Legislature might have made the inquiry immaterial by requiring al' imported rags to be disinfected, than it would be in the first by the suggestion that possibly the Legislature might require all rags to be put through the same process whether imported or not. But if the property is admitted to fall within the line there is nothing to try, if the line drawn is a valid one under the police power. All that Train v. Boston Disinfecting Co. decided was that the line there considered was a valid one.

It is true that it is said in Salem v. Eastern R. Co. that the board's determination of questions of discretion and judgment in the discharge of their duties would protect all those employed to carry such determinations into effect. The remark is obiter, and it is doubtful perhaps on reading the whole case whether it means that the determination would protect them in an action for damages when the Statute provided no compensation for property taken which is not a nuisance. To give it such an effect as a judgment merely would be inconsistent with the point decided and with Brigham v. Fayerweather. We are not prepared to admit that a condemnation by the present board under section 13 could be made conclusive of the fact that the plaintiff's horse had the glanders in the present action. See further Holcomb v. Moore, 4 Allen, 529; Foley v. Haverhill, 144 Mass. 352, 354, 4 New Eng. Rep. 263.

But we are led by the dictum in Salem v. Eastern R. Co. to consider another possible suggestion. It may be said, suppose that the decision of the board is not conclusive that the plaintiff's horse had the glanders, still the Legislature may consider that self protection requires the immediate killing of all horses which a competent board deems infected, whether they are so or not, and if so, the innocent horses that are killed are a sacrifice to necessary self protection and need not be paid for.

In Train v. Boston Disinfecting Co., 144 Mass. 523, 4 New Eng. Rep. 437, it was held that all imported rags might be required to be put through a disinfecting process at the expense of the owner. Of course the order did

not

mean that the Legislature or board of health declared all imported rags to be infected, but simply that the danger was too great to risk an attempt at discrimination. If the

Still it may be said if self protection required the act why should not the owner bear the loss? It may be answered that self protection does not require all that is believed to be necessary to that end, nor even all that is reasonably believed to be necessary to that end. It only requires what is actually necessary. It would seem doubtful at least whether actual necessity ought not to be the limit when the question arises under the Constitution between the public and an individual. Such seems to be the law as between private parties in this Commonwealth in the case of fires, as we have seen. It could not be assumed as a general principle without discussion that even necessity would exonerate a party from civil liability for a loss inflicted knowingly upon an innocent person who neither by his person nor his property threatens any barm to the defendant. It has been thought by great lawyers that a man cannot shift his misfortunes upon his neighbor's shoulders in that way when it is a question of damages, although his act may be one for which he would not be punished. Gilbert v. Stone, Aleyn, 35, Style, 72; Scott v. Shepherd, 2 W. Bl. 892, 896.

Upon this we express no opinion. It is enough to say that in this case actual necessity

only required the destruction of infected horses, construed. That construction holds that no and that was all that the Legislature purported power or jurisdiction was conferred upon the to authorize. commissioners to order the killing of an animal which they adjudged to be affected by the farcy or glanders unless the same was actually thus infected. It would therefore follow that in a subsequent proceeding, as in an action against the person who executed the order of the commissioners, if it were shown to the satisfaction of a jury that the animal was not thus diseased the owner of the animal would be entitled to recover its value in damages. In section 12 provision is made for the killing of certain animals upon the order of the commissioners, who are directed to have the same appraised at their fair value except as provided for in section 13, and provision is made for the payment thereof. The animals affected by the farcy or glanders described in section 13, wheu condemned by the commissioners as such, are to be killed without appraisal. No provision is made for the payment thereof, although it is made for the expense of killing. When the two sections are read together the fair result appears to be that it was the intention of the Legislature that the right of any servant or agent whem the commissioners employ should rest, not on the fact that the animal is actually affected by the glanders, but upon this condemnation. The constitutionality of the Act must therefore be discussed. The distinction between the exercise of the right of eminent domain and the power to make police regulations by virtue of which the uses of property may be limited and controlled to the pecuniary disadvantage of the owner, or even property itself destroyed, is well recognized. Where property is appropriated to the public use provision must be made for compensation to the owner. Mass. Const.; Declaration of Rights, art. 12.

Again, there is a pretty important difference of degree at least (Rideout v. Knox, 148 Mass. 368, 372, 2 L. R. A. 81) between regulating the precautions to be taken in keeping property, especially property sought to be brought into the State, and ordering its destruction. We cannot admit that the Legislature has an unlimited right to destroy property without compensation on the ground that destruction is not an appropriation to public use within article 10 of the Declaration of Rights. When a healthy horse is killed by a public officer acting under a general statute, for fear that it should spread disease, the horse certainly would seem to be taken for public use as truly as if it were seized to drag an artillery wagon. The public equally appropriates it whatever they do with it afterwards. Certainly the Legislature could not declare all cattle to be nuisances and order them to be killed without compensation. Watertown v. Mayo, 109 Mass. 315, 319; Re Jacobs, 98 N. Y. 98, 109. It does not at tempt to do so. As we have said it only declares certain diseased animals to be nuisances. And even if we assume that it could authorize some trifling amount of innocent property to be destroyed as a necessary means to the abatement of a nuisance, still if in this section 13 it had added in terms that such healthy animals as should be killed by mistake for diseased ones should not be paid for, we should deem it à serious question whether such a pro vision could be upheld. See, further, Hutton v. Camden, 39 N. J. L. 122; Hale v. Lawrence, 21 N. J. L. 714; Grant v. United States, 1 Ct. Cl. 41; Wiggins v. United States, 3 Ct. Cl. 412; Mitchell v. Harmony, 54 U. S. 13 How. 115, 134, 14 L. ed. 75, 83.

For these reasons the literal, and as we think the true, construction of section 13 seems to us the only safe one to adopt, and accordingly we are of opinion that the authority and jurisdiction of the commissioners to condemn the plaintiff's horse under section 13 was conditional upon its actually having the glanders. If this be so, their order would not protect the defendants in a case where the commissioners acted outside their jurisdiction. Fisher v. MeGirr, 1 Gray, 1, 45.

The fact as to the horse having the disease was open to investigation in the present action, and, on the finding that it did not have it, the plaintiff was entitled to a ruling that the defendants had failed to make out their justification.

In view of our conclusion upon the main question, we have not considered whether an order signed by two members of the board, upon an examination by one, satisfies the Statute, or whether cases like Ruggles v. Nantucket, 11 Cush. 433, and Parsons v. Pettingell, 11 Allen, 507, apply.

Exceptions sustained.

Devens, J., dissenting:

I am unable to concur in the opinion of the majority of the court in the narrow and limited construction which they give to section 13 of chap. 252 of Acts of 1887, or in the view expressed of its constitutionality if otherwise

Ban

But laws passed in the lawful exercise of the police power are not made unconstitutional because no provision is made for compensation to the individual whose property may be affected thereby. They are passed for the protection of the community against the ravages of fire, the spreading of pestilence and the prevention of other serious calamities, and such property is not taken for any use by the public within the meaning of the Constitution. The regulations in regard to quarantine, health, fire, and the laws for the abatement of existing, and preservation of threatened, nuisances are instances of the exercise of this power. croft v. Cambridge, 126 Mass. 438, and authorities. Their validity rests upon the necessity of providing for the public safety, and the individual is presumed to be compensated by the benefit which such regulations confer upon the community of which he is a member, or by which his property is protected. It is for the Legislature ordinarily to determine how, when and through whom this police power is to be exercised, and all rights of property are held subject to such reasonable control as it may deem necessary for the prevention of injury to the rights of others, or for the protection of the public health and welfare. "In the exercise of this power," says Mr. Justice Gray, "the Legis lature may not only provide that certain kinds of property (either absolutely or when held in such manner or under such circumstances as