the house burnt, being referred to by the subsequent words "there situate;" (ante, p. 98). Therefore, if the house be proved to be situate in another parish, the defendant must be acquitted. In a late case, upon an indictment for setting fire to a stack of pulse, it was holden that the offence was not of a local nature. R. v. * Woodward, 1 Mood. [ *314 ] C. C. 323. But in that case the indictment gave no local description to the property destroyed.

ute.

Feloniously, unlawfully and maliciously.]—The burning must be done wilfully and maliciously, in order to be an offence, either at common law, or within the stat 7 W. 4, and 1 Vict. c. 89; and therefore no negligence or mischance amounts to it. 4 Bl. Com. 222; 3 Inst. 67. For which reason, though an unqualified person, by shooting a gun, happen to set fire to the thatch of a house, this Lord Hale determines not to be felony, contrary to the opinion of former writers. 1 Hale, 569. But if a man, intending to commit a felony, by accident set fire to another's house, this, it should seem, would be arson at common law, and also within the statSee Fost, 258, 259. If, intending to set fire to the house of A., he accidentally set fire to that of B., it is felony, 1 Hale, 569. Even if a man, by wilfully setting fire to his own house, burn also the house of one of his neighbours, it will be felony; (see R. v. Probert, 2 East, P. C. 1031; R. v. Isaac, Ib.); for the law, in such case, implies malice, particularly if the party's house were so situate that the probable consequence of its taking fire was that the fire would communicate to the houses in its neighbourhood. And generally, if the act be proved to have been done wilfully, it may be inferred to have been done maliciously, unless the contrary be proved. The absence of malice or spite to the owner is no answer to the charge. R. v. Salmon, R. & R. 26.

Set fire to.]-The words in stat. 7 W. 4, & 1 Vict. c. 89, are "set fire to," merely; and therefore, it is not necessary to aver in the indictment that the house, &c. was burnt; R. v. Salmon, R. & R. 26: R. v. Stallion, 1 Mood. C. C. 398. But within this act, as well as to constitute the offence of arson at common law, there must be an actual burning of some part of the house; a bare intent, or attempt to do it, is not sufficient. Where, upon an indictment on the repealed stat. 9 G. 1, c. 22, for setting fire to a paper-mill, it appeared that the defendant set fire to some paper that was drying in one of the lofts, but that no part of the mill itself was burnt; the judges held, that it did not amount to an offence within the act. R. v. Taylor, 1 Leach, 49. And where the defendant set fire to a parcel of unthreshed wheat it was holden not to be within the statute. R. v. Judd, 2 T. R. 255. But the burning and consuming of any part of the house, however trifling, is sufficient, although the fire be afterwards extinguished. 1 Hawk. c. 39, s. 17; 3 Inst. 66; 1 Hale,

569; Dalt. 506. Where, on an indictment upon the act now in force, it was proved that the floor of the room was scorched; that it was charred in a trifling way; it had been at a red heat, but not in a blaze;" this was held a sufficient burning to support the indictment. Reg. v. Parker, 9 C. & P. 45. But where, a small faggot having been set on fire, on the boarded floor of a room, the boards were thereby "scorched black, but not burnt," and no part of the wood was consumed; this was not held sufficient. Reg. v. Russel, C. & Mar. 541.

It is seldom that a wilful burning by the defendant can be made out by direct proof; the jury, in general, have to presume the defend[ *315 ] ant's *guilt from circumstantial evidence, (see ante, p. 122). Where a house was robbed and burnt, the defendants being found in possession of some of the goods which were in the house at the time it was burnt, was admitted as evidence tending to prove him guilty of the arson. R. v. Rickman, 2 East, 1035.

A certain Dwelling-house.]—Arson at common law extended to the burning not only of dwelling-houses, but of all out-houses parcel thereof, such as barns, stables, &c., though not contiguous thereto, nor under the same roof, as in the case of burglary. 1 Hale, 567. The statute 7 W. 4 & 1 Vict. c. 89, s. 3, extends to the burning of any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hopoast, barn, or granary, or any building or erection used in carrying on any trade or manufacture, or any branch thereof. Upon an indictment for burning a dwelling-house, either at common law or under the statute, it would, perhaps, be sufficient to prove a burning of a building parcel of the dwelling-house. (See ante, p. 305). Where such an out-house was burnt, and an indictment on the stat. 9 G. 1, c. 22, described it as a "certain out-house," an objection, that the offence should have been described as a burning of the dwelling-house, (the word "out-house" in the statute meaning, as it was suggested, an out-house which is not parcel of a dwelling-house), was over-ruled by the judges. R. v. North, 2 East, P. C. 1021. So, where the indictment described the house, in some of the counts, as "a certain out-house," in others as a "certain house," and the evidence was of a burning of a school-room, separated from the dwelling-house by a small passage, but the roof of one extending over the roof of the other; it was holden that the evidence satisfied the description in both sets of counts. R. v. Winter, R. & R. 295. So, where the indictment charged the burning of "a certain house" of the corporation of Liverpool, and the proof was of a burning of a gaol belonging to the corporation, the judges held it to be sufficient. R. v. Donnevan, 2 W. Bl. 682. But a building constructed as a dwelling-house, but which had not been completed or inhabited, and in which the owner had deposited straw and agricultural instruments, was holden not to be a house, out-house,

or barn, within the meaning of the repealed statute: it was not a house in respect of which burglary could be committed-it was a house intended for residence, but not inhabited; and it was not, therefore, a dwellinghouse, though it was intended for one: it was not an out-house, because it was not parcel of a dwelling-house: and it was not a barn, within the meaning of the statute. Elsemore v. St. Briavells, 8 B. & C. 461. So, a building erected, not for habitation, but for workmen to take their meals and dry their clothes in, having four walls, a roof, and a door, but no windows, was held not to be a house within the statute; although a person slept in it with the knowledge, but without the actual permission, of the owner. Reg. v. England, 1 C. & K. 533. So, an indictment for burning a stable is not supported by proof of burning a shed, which had been built for and used as a stable originally, but had latterly been used merely as a lumber-shed. Reg. v. Colley, 2 M. & Rob. 475. An open building in a field, at a distance from and out of sight of the owner's house, though boarded round and covered in, is not an outhouse within the meaning of this statute. R. v. Ellison, 1 Mood. C. C.

336. But an open shed in a *farm-yard, composed of upright [316] post supporting pieces of wood laid across them, and covered with straw as a roof, is. R. v. Stallion, 1 Mood. C. C. 398. So, a thatched pigsty, in a yard adjoining the prosecutor's house, is an out-house within the act. Reg. v. Amos Jones, 2 Mood. C. C. 308; 1 C. & K. 303. Where a building, formerly a kiln, but latterly used for keeping a cow, was set fire to, and it appeared that the building was one hundred yards from any house, and a much greater distance from the house of the owner-Taunton, J., held, that it was neither a stable nor an out-house within the meaning of the statute. R. v. Haughton, 5 C. & P. 555. And where the building fired was a kind of cart hovel, formed of uprights covered with a stubble roof, in a field by itself, some distance from any dwelling-Vaughan B., was of opinion that it was not an out-house, and would have saved the point, but the prisoner was acquitted. R. v. Parrot, 6 C. & P. 402. All these distinctions, however, are now rendered immaterial by the provisions of the stat. 7 & 8 Vict. c. 62, s. 1, which extends the operation of the former statute to "any hovel, shed, or fold, or any farm-building, or any building or erection used in farming land."

The house also must be proved to be the house of J. N., in the same manner as in burglary. (Ante, p. 299). See R. v. Glandfield, 3 East, P. C. 1034. Where a parish pauper set fire to a house in which he was put to reside by the overseers, and it was not known who the trustees were in whom the legal ownership was vested, it was holden that it might be described as the house of the overseers, or of persons unknown. R. v. Rickman, 2 East, P. C. 1034. And a house, in part of which a man lives, but lets other parts to lodgers, may be described as his house, even though he be an insolvent debtor, and have assigned the house to

his assignee, if the assignee have not taken possession; at all events, the room in which he lives may be described as his house. R. v. Ball, 1 Mood. C. C. 30. So, if the possession of a house be obtained wrongfully, it may be described as the house of the wrongful occupier. R. v. Wallis, 1 Mood. C. C. 344. At common law, and under the repealed stat. 9 G. 1, c. 22, it was necessary to describe and prove the house to be the house of another; but under the present statutes, it is immaterial whether the house be that of a third person or of the defendant himself; for these statutes apply, whether the house, &c., be in the possession of the offender, or in the possession of any other person. 7 W. 4 & 1 Vict. c. 89, s. 3; 7 & 8 Vict. c. 62, s. 1.

With Intent, &c.]-The intent stated in the indictment must be proved as laid. Where the offence consists of the setting fire to the house of a third person, the intent to injure that person is inferred from the act, for every person is deemed to intend the necessary consequence of his own act; and therefore, where the defendant was indicted for setting fire to a certain mill, with intent to injure the occupiers thereof, it was holden that he was properly convicted, although it appeared at the trial that he was a harmless, inoffensive man, and had no motive to induce him to commit the act. R. v. Farrington, R. & R. 207. (See ante, p.104). But this doctrine can only arise where the act is wilful; and therefore, if the fire appear to be the result of accident, the party who is the cause of it will not be liable.

(Ante, p. 314). On the other hand, where the defendant is [ *317 ] *charged with setting fire to his own house, the intent to defraud cannot be inferred from the act itself, but must be proved by other evidence. Where, therefore, upon an indictment for arson, with intent to defraud an insurance company, the policy was inadmissible by reason of its not being stamped, a majority of the judges held that it could not be received in evidence, and as the insurance could not otherwise be proved, the defendant ought to be acquitted. R. v. Gilson, R. & R. 138. The intention must be to injure some person who is not identified with the defendant. Therefore a married woman cannot be indicted for setting fire to the house of her husband, with intent to injure him. R. v. March, 1 Mood. C. C. 182.

Indictment for setting Fire to a Church or Chapel.

Commencement as ante, p. 313]-in the county aforesaid, feloniously, unlawfully, and maliciously did set fire to a certain church (" any church or chapel, or any chapel for the religious worship of persons dissenting from the United Church of England and Ireland, duly registered and

recorded") there situate; against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.

Felony. 7 W. 4 & 1 Vict. c. 89, s. 3. See the last precedent.

Evidence.

Prove that the defendant set fire to the church or chapel, situate as described in the indictment. (See ante, p. 313). If it be a chapel of dissenters, &c., it must be proved to have been duly registered and recorded, by the production of the book of registration, or perhaps, by an examined copy of the entry.

BURNING HOUSES, SOME PERSON BEING THEREIN.

Statute.

7 W. 4 & 1 Vict. c. 89, s. 2]-Enacts, that whosoever shall unlawfully and maliciously set fire to any dwelling.house, any person being therein, shall be guilty of felony, and being convicted thereof, shall suffer death.

Indictment for setting Fire to a House, some Person being therein.

Commencement as ante, p. 313]—in the county aforesaid, feloniously, unlawfully, and maliciously did set fire to a certain dwelling-house, ("any dwelling-house"), of J. N., there situate, one J. L., and M., his wife, then, to wit, at the time of the committing of the felony aforesaid, being in the said dwelling-house; against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity. The defendant cannot, upon this indictment, be convicted, under s. 3, (ante, p. 312), *because under [ *318 ] that section an intent to injure or defraud some person must be alleged. Reg. v. Paice, 1 C. & K. 73.

Felony, death. 7 W. 4 & 1 Vict. c. 89, s. 2. This sentence may be recorded. 4 G. 4, at any quarter sessions.

c. 48, (ante, p. 251).

48, (ante, p. 251). This offence is not triable 5 & 6 Vict. c. 38, s. 1, (ante, p. 69).