Surocco

delivered the opinion of the Court. Heydenebldt, Justice, concurred.

This was an action, commenced in the court below, to recover damages for blowing up and destroying the plaintiffs’ house and property, diming the fire of the 24th of December, 1849.

Geary, at that time Alcalde of San Francisco, justified, on the ground that he haebauthoritv. fr? virtue-of-h-is-effice. to destroy said building, and also that it had been blown up hv him to stop the progress of the conflagration then raging.

It was in proof, that the fire passed over and burned beyond the building of the plaintiffs’, and that at the time said building was destroyed, they were engaged in removing their prope'rty, and could, had they not been prevented, have succeeded in re'-, moving more, if not all of their goods.

The cause was tried by the court sitting as a jury, and a verdict rendered for the plaintiffs, from which the defendant prosecutes this appeal under the Practice Act of 1850.

The only question for our consideration is, whether the person who tears down or destroys the house of another, in good faith, and under apparent necessity, during the time of'a, conflagration, for the purpose of saving the…