objected to the libel, that this is not wilful fire-raising, but fraud, and informations were ordered to be given in; before advising which, the pannels gave in a petition praying to be transported for life, which was accordingly done.1 Again, in the case of John Ker, 19th December 1791, it appeared that the pannel was proprietor of a tenement of houses near Dunbar, possessed partly by himself and partly by his tenants, which he had insured much above their value in the Sun Fire Office of London. The libel charged wilful fire-raising, especially when committed with intent to defraud insurers, and then set forth that the houses burned were partly possessed by tenants and partly by the pannel. Informations were ordered, and the Public Prosecutor restricted the libel, which was found relevant. The point cannot be said, therefore, to have received an express determination; but, from the course adopted by the Prosecutor in these two cases, it may fairly be concluded that he had no great chance of obtaining in either case a capital conviction; and indeed the principles of law, as well as the authority of our criminal writers, are clearly in favour of the milder construction.3

2

One point, however, seems perfectly settled. If, in consequence of the flames thus kindled by a proprietor from a fraudulent design in his own house, his neighbour's house is burned, this is wilful fire-raising. The case is analogous to homicide committed in pursuance of an intent to commit a felony, which is unquestionably murder.

4

In England, it is fixed, that if one set fire to his own house maliciously and unlawfully, in order to defraud an insurance office, and from the flames thus raised a neighbour's house is consumed, this is arson; but, if his own house only is consumed, it is at common law only misdemeanour.5 And the burning a man's own house in a town, and near other houses, so as to endanger other houses, though the case does not fall within the definition of arson, yet at common law it is a great misdemeanour, deserving of the most exemplary punishment. In an indictment for arson, they justly hold it indispensable that the ownership of the house should be correctly stated, so as to shew it to be the house of another; and, therefore, an in

1 Burnett, 217.-2 Ibid. 219; Hume, i. 134.-3 Ibid. Ibid. Isaac's Case, East. ii. 1031; Russell, ii. 487.-6 Probert's Case, East. ii. 1031; Russell, ii. 489.- Menton's Case, East. ii. 1033; Russell, ii. 494.

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dictment is bad which merely states that the prisoner set fire to a house in a certain parish, without specifying to whom it belongs.' With regard to the nature of the possession, they hold that a house, in part of which a man lives, and other parts of which he lets to lodgers, may be described as his house. It appeared that Fearne occupied part of the house, and let out the rest to lodgers: the room set fire to belonged to the prisoner: five months before the fire Fearne was discharged as an insolvent debtor, and had previously executed an assignment, including this house, to Davie, who never took possession. In these circumstances, the Twelve Judges held that the whole house was in the possession of Fearne; the possession by his tenants being his possession: and they were also of opinion that the prisoner's own room might be deemed his house."

By Mr Peel's act, 7th and 8th Geo. IV. c. 30, it is made capital" unlawfully and maliciously to set fire to any church or chapel, or any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-work, barn or granary, or any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether in the possession of the offender or any other person, with intent to injure or defraud any person." This statute, intended to prevent fraudulent fire-raising to defraud insurers, does not extend to Scotland.

7. By special statute it is capital to burn, or otherwise wilfully destroy, any insured vessel, with intent to prejudice the underwriters or others concerned.

A British statute, 29th Geo. III. c. 46, enacts, "That if any person shall maliciously and unlawfully set fire to, or in anywise destroy, any ship or vessel, whether the same be complete or in an unfinished state, or shall maliciously and unlawfully set fire to, cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that hath underwritten, or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same; every such offender shall suffer death as a felon." This statute

1 Rickman's Case, East. ii. 1034.- Ball's Case, 1824, Russell, ii. 495.

extends to Scotland,' although the statute in which it is reenacted, Mr Peel's act, 7th and 8th Geo. IV. c. 30, is only applicable to England.

8. Not only the wilful burning of houses, but of corns, coal-heughs, and woods, is by the common and statute law of Scotland a capital offence.

By the statute 1526, c. 10, the crime of wilful fire-raising is raised to the rank of treason. "The auld lawis," it says, shall be keepit, with this additioune, that quha cummis and byrnis fock in their housis, and all byrnings of housis and cornis and wilful fire-raising, be treason.” 2 The pains of treason were afterwards applied by 1592, c. 148, to the burners of coal-heughs; and, by 7th Anne, c. 21, fire-raising, in all cases where it had been raised to the rank of treason, is again lowered to a capital crime. By 1st Geo. I. c. 48, § 4, it is enacted: "That if any person shall maliciously set on fire or burn, or cause to be burnt, any wood, underwood, or coppice, or any part thereof, such malicious setting on fire, burning, or causing to be burned, shall be, and is hereby declared and made felony, and the offender and offenders shall suffer and be liable to all the penalties and forfeitures, as other felons by the law now are; and, where such offences are committed in that part of Great Britain called Scotland, such offender and offenders shall suffer and be liable, as wilful fire-raisers, according to an act passed in the 7th of Queen Anne, entitled, An Act for Improving the Union of the Two Kingdoms.'"

The species of fire-raising, therefore, which are by the Scotch law capital, are the wilful burning of houses, corns, woods, coal-heughs, and ships, with intent to defraud. In the case of Andrew Ross, Inverness, 27th September 1822, the indictment charged the prisoner with wilful fire-raising, in respect that he had set fire to a heath in a muir contiguous to a wood, with intent to consume the wood; that a large tract of the heath was consumed, and that the fire spread to within a few yards of the wood, and that it was with great difficulty extinguished. It is evident that this was not the capital crime, but an attempt only to its commission; for although, if the fire had spread from the heath to the wood, it would have been the

1 Hume, i. 134.-2 Thomson's Acts, ii. 316.

same thing as if the flames had been applied to the wood itself; yet as the flames did not reach the wood, it was only an attempt to commit the capital, and an actual commission of the minor, offence of burning heath. The objection to the indictment was accordingly sustained.1

Corn is equally protected by the capital pains, whether it is in the field growing, or cut down in the stack-yard or barn.2 In the cases of William and Alexander Fraser, November 4. 1720, and David Young, July 24. 1728, capital convictions took place for burning corns, in both of which cases they were in the barn-yard.3

9. Wilful burning of heath, furze, mosses, stacks of fuel or hay, or any sort of moveables, though not by law capital, is an indictable offence, punishable according to the magnitude and peril of the offence with severe arbitrary pains.

The wilful combustion of heath, hay, whins, furniture, carriages, wooden articles, clothes, books, or moveables of any sort, is an offence punishable with the highest arbitrary pains; but it is not wilful fire-raising, or at least it is not the capital branch of that crime, and should not, correctly speaking, be indicted under that name.1 It constitutes an offence which may be called, "the wilfully and feloniously burning any heath, muir," &c. according to the article to which the flames have been communicated. In the cases of Peter Lamont and James Gray, Aberdeen, autumn 1826, the setting fire to heath was indicted under the name of " malicious mischief, particularly the maliciously setting fire to any heath, moss, or pasture, belonging to or in the occupation of others;" but the flight of the pannels prevented the case being tried.5

10. Attempts at wilful fire-raising, or instigations to commit, or threats of perpetrating it, are cognizable offences, and punishable with arbitrary pains.

As in other cases of atrocious and dangerous offences, attempt at wilful fire-raising is a crime cognizable by the criminal courts, and justly warranting the infliction of severe arbitrary pains. In judging of the degree of progress which the

1 Hume. i. 121.2 Ibid. i. 131.3 Ibid. i. 132. Ibid. i. 131.-5 Unreported. Hume, i. 135; Burnett, 222.

offender's design must have made, the same rule is adopted as in other cases, viz. that si devenit ad actum proximum: if the combustible has nearly produced the desired effect of burning the house or corns, the attempt is held to have been committed.' If, therefore, the furniture has been set on fire, and in part consumed, though no part of the tenement itself has been in flames; or if the lighted torch has been applied to the roof or joists, or the ignited peat put under the stack, though neither the wood nor the corns have begun to burn, the attempt has been completed. Accordingly, in the case of Walter Buchanan, January 15. 1728, the casting a kindled peat into a house with the design to burn the tenement was found relevant to infer an arbitrary punishment, though the fire had not taken effect.2 In the case of Robina Spence, also, February 24. 1824, a libel for attempt at wilful fire-raising was sustained, where the mischief set forth in the indictment was, that the pannel had set fire to a mattress in her room, with design to burn the house, which was her landlord's property, but the flames were extinguished before they had spread farther than the mattress itself. After the libel was found relevant, it was remitted to the Sheriff for trial of the attempt; and the pannel was convicted, and sentenced to two years' imprisonment.3

Farther, the soliciting or instigating others to commit fireraising is itself a point of dittay by our practice, even although they refuse compliance, and nothing beyond the mere conatus has taken place. In the case, accordingly, of William and Alexander Fraser, November 14. 1720, the Court found the inviting or soliciting others to set fire to a barn, or corns in the barn-yard, relevant to infer an arbitrary punishment. The libel stated, that the persons tampered with had refused the solicitation; notwithstanding which the prisoners were transported for life.1

Nay, so far does our practice carry its jealousy of this of fence, that the mere uttering of threats of fire-raising, though unaccompanied either with any solicitation of others, or attempt at individual performance, is relevant to infer an inferior punishment. Accordingly, in the cases of Grizel Somerville, April 5. 1686, and Ludovick Grant, June 7. 1712, such threats were sustained as sufficient to infer an arbitrary punishment, though no damage had ensued in either case. The

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1 1 Hume, i. 135.—2 Ibid.—3 Unreported.—* Hume, i. 136.—5 Ibid. i. 135.