
    The State vs. Angus Lewis.
    One who wilfully sets fire to his neighbor’s grass or fence, maybe indicted under the Act of 1789, $ 5, 5 Stat. 125.
    BEFORE W ARDE AW, J., AT MARION, FALL TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendant was indicted for burning the woods, &c.
    
      “ The Act of 1789, (5 Stat. 125, § 5,) enacts that “no person shall put fire to or burn any grass, brush, or other combustible matter, so as thereby the woods, fields, lands, or marshes be set on fire; provided that no person shall be prevented from firing woods, fields, lands or marshes within his own bounds, so that he suffer not the fire to get without the bounds of his own land, and injure the woods, fence, or grass of his neighbor.”
    “The evidence showed that the defendant having spite against the prosecutor, about midnight brote the prosecutor’s fruit trees, pulled down some panels of his fence, and set fire to small tufts of grass, which were under the rails in another part of the fence, whereby a portion of the fence was burned; but the ground within the field having been ploughed, the grass inside having been chopped out, and the leaves on the outside having been previously raked by the prosecutor from the fence, the fire did not extend beyond the fence.
    “ Por the defendant, it was argued that the title and preamble of the Act show that the burning prohibited, is only such burning as proceeds from fire-hunting, or other negligence, unintentional of wrong; and that setting fire to a fence, whereby the fence only, and not the woods, fields or marshes, were burnt, does not fall within the prohibition of the Act.
    “ I held that the enactments, which are beyond the scope of tbe title and preamble, are not limited by them; that fences fixed upon lands fall witbin tbe term lands, used in tbe primary enactment, as appears plainly from tbe introduction of tbe word fence in tbe proviso. That by this Act is prohibited every setting of fire, wilful or negligent, (wbicb does not fall witbin some other Act providing a higher penalty,) where no care to prevent spreading is taken, and tbe fire is either set upon another’s land or spreads to it; and that in this case, whether tbe fire was set to tbe grass and spread to tbe fence, or was set to tbe fence, itself combustible matter, and spread to other parts of tbe fence, tbe defendant, if found to have done tbe act wilfully or negligently, might be convicted.
    
      “ Yerdict guilty.”
    Tbe defendant appealed and now moved for a new trial:
    Because tbe evidence did not show that tbe act of tbe defendant was an offence witbin tbe provisions of tbe Act of 1789, under wbicb be was indicted, and that tbe charge of bis Honor that it did constitute such an offence was erroneous.
    
      Harllee and McDuffie, for appellant.
    Mclver, solicitor, contra.
   Tbe opinion of tbe Court was delivered by

G-loyeb, J.

This Court concurs with tbe Circuit Judge in bis construction of tbe Act. Tbe rational interpretation wbicb be has adopted enables us to collect tbe intention and apply tbe provisions of tbe Act to cases that we must conclude were intended to be embraced and punished by it.

Tbe Legislature could not have intended to punish a person who negligently suffers tbe fire to get without bis own bounds and thereby injure bis neighbor’s fence, and not to embrace witbin tbe penalties of. tbe Act, him who committed tbe wrong maliciously by setting fire to bis neigbor’s grass ox fence. Sucb an interpretation would impute to tbe Legislature an intent not to punisb wilful, but negligent acts, wben attended witb injurious consequences, and thereby secure impunity to tbe greater offender.

Motion dismissed.

O’Neall, Waedlaw, Withees, Whitkteb and Muíteo, JJ., concurred.

Motion dismissed.  