to another house, both being of wood, and the space between the two being only a few inches, that it would be next to impossible that the one should be burnt without also burning the other; that the dead body of a woman was in the bed at the time; that her death had been caused by violence; that she had been recently delivered of a child, whose body was found in the kitchen, and that she had lived in the house since it had been rented by the prisoner, who frequently went there at night. It was also shewn that the prisoner had been indicted for the murder of this woman, and acquitted, and the record of his acquittal was put in. This evidence was objected to, as tending to prejudice the prisoner's case; but the Court held it admissible, for, the house being the prisoner's, it was necessary to shew that his attempt to set fire to it was unlawful and malicious, and that these facts would prove it, and might also satisfy the jury that, the murder being committed by another, the pri soner's act was intended to conceal it. (a)

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. (b) An indictment on s. 3 of the 32 & 33 Vic., c. 22, must allege the intent to injure or defraud. (c)

Where the prisoners are indicted under the 32 & 33 Vic., c. 22, s. 3, for unlawfully, maliciously, and feloniously setting fire to a shop "of and belonging to" one of the prisoners, the averment of ownership is an immaterial averment, which may be rejected as surplusage, and need not be proved; and an intent to injure another person, whose name is not stated in the indictment, may

(a) 23 U. C. Q. B. 250.

(b) Reg. v. March, 1 Mood. C. C. 182; Arch. Cr. Pldg. 512. (c) Reg. v. Paice, 1 C. & K. 73.

be proved in support of the indictment; for, by s. 63 of the Act, it is not necessary to allege an intent to injure or defraud any particular person. (a)

The word "arson" is not used as a term of art, as murder," or the like, in legal documents; but is used to express what indictments describe as wilfully, maliciously, and feloniously, setting fire to a house, etc. (b)

The prisoner was charged with inciting one W. to attempt feloniously, unlawfully, and maliciously to set fire to a certain dwelling-house, by then and there saturating a blanket with coal oil, and placing it against said dwelling-house, and sprinkling coal oil upon the doors and sides thereof, and attempting to apply a burning match to said oil, said house being at the time inhabited. The evidence shewed that W., after arranging, under the prisoner's directions, the saturated blanket, so that, if the flame were communicated to it, the building would have caught fire, lighted a match, and held it in his fingers till it was. burning well, and then put it down towards the blanket, and got it within an inch or two of the blanket, when the match went out, the blaze not touching the blanket, and he throwing away the match, and leaving, without making any second attempt. No fire was actually communicated to the oil or blanket:Held, that these were overt acts inmediately and directly tending to the execution of the principal crime, (c) and that the prisoner was properly convicted under the 32 & 33 Vic., c. 22, s. 12, of an attempt to commit arson. (d)

On an indictment under the corresponding English sec. of 32 & 33 Vic., c. 22, s. 8, it appeared that the prisoner, from ill-will and malice against a person lodging in a

(a) Reg. v. Newboult, L. R. 1 C. C. R. 344.

(b) Re Anderson, 11 U. C. C. P., 69, per Hagarty, J.

house, made a pile of her goods on the stone floor of the kitchen, and set fire to them, under such circumstances that the house would almost certainly have been burned, had not the police extinguished the fire before the house was actually ignited. The Judge, at the trial, told the jury that, if the house had caught fire from the burning goods, the question whether the offence would have. amounted to felony would have depended upon whether such a setting fire to the house would have been malicious, and with intent to injure, so as to bring the case within the corresponding section of 32 & 33 Vic., c. 22, s. 3; and that, though the prisoner's object was only to destroy the goods, and injure the owner of them, and not to destroy the house, or injure the landlord, yet, if they thought he was aware that what he was doing would probably set the house on fire, and so necessarily injure the owner, and was at best reckless whether it did so or not, they ought to find that, if the building had caught fire, from the setting fire to the goods, the offence would have been felony, otherwise not. The jury found that the prisoner was guilty, but not so that, if the house had caught fire, the setting fire to the house would have been wilful and malicious:-Held, that, upon the finding of the jury, the prisoner was not guilty of felony; for their finding was only that the goods were set on fire, with intent to injure the owner of the goods, and there was no section in the Act which makes the wilful and malicious setting fire to goods felony. (a)

It is a felony, under 14 & 15 Vic., c. 19, s. 8, coupled with 7 Wm. 4, and 1 Vic., c. 89, s. 3, for a man to set fire to goods in a house in his own occupation, with intent to defraud an insurance company, by burning the goods. One of these Acts makes it felony to set fire to a house, (a) Reg. v. Child, L. R. 1 C. C R. 307.

with intent to defraud. The other, felony to set fire to goods in a house, the setting fire to which house would be felony. If the intention to defraud is meant to extend to the defrauding of any person who may be defrauded by the effects in the house being destroyed, then, in this case, it would be felony to set fire to the house; but setting fire to goods in a house, the setting fire to which house would be felony, is felony. (a)

Upon an indictment under 7 Wm. 4, and 1 Vic., c. 89, s. 10, for setting fire to a stack of grain, it was proved that the prisoner set fire to a stack of flax, with the seed in it, and the jury found that flax seed is grain :—Held, that a conviction upon the above facts and finding of the jury was right. (b)

Perjury and Subornation of Perjury.-Perjury at common law is defined, to be a wilful false oath by one, who being lawfully required to depose the truth in any proceeding in a Court of Justice, swears absolutely, in a matter of some consequence to the point in question, whether he be believed or not. (c) Subornation of perjury, by the common law, is an offence, in procuring a man to take a false oath, amounting to perjury, who actually takes such oath. (d) These offences are now misdemeanors, by the 32 & 33 Vic., c. 23. s. 1.

An oath or affirmation, to amount to perjury, must be taken in a judicial proceeding, before a competent jurisdiction; and must also be material to the question depending, and false. (e)

The swearing falsely by a voter, at an election of alderman or common councilman for the city of Toronto, that he is the person described in the list of voters, not being

(a) Reg. v. Lyons, 5 U. C. L. J. 70; Bell C. C. 38.

(b) Reg. v. Spencer, 3 U. C. L. J. 19; Dears. & B. 131; 26 L. J. (M. C.) 16. (c) 3 Russ. Cr. 1.

(d) Ib.

(e) R. v. Aylett, 1 T. R. 69; 3 Russ. Cr. 2.

This

made perjury by any express enactment, is not an oath upon which, by the common law, perjury can be assigned, not being in any judicial proceeding, or anything tending to render effectual a judicial proceeding. (a) would probably now be perjury, under the 32 & 33 Vic. c. 23, s. 2. Taking a false oath is not an offence in law, unless it be in a judicial proceeding, or on some other lawful occasion, on which it has been made an offence by law to swear falsely. (b)

Wilful and corrupt false swearing before a local marine board, lawfully constituted, upon a matter material to an enquiry, then being lawfully investigated by them, in pursuance of the 17 & 18 Vic., c. 104, is perjury and indictable, as such, for it is in a tribunal invested with judicial powers. (c)

Although a summons in bastardy is irregularly issued, yet, if the defendant actually appears, he thereby waives any irregularity there might be in the process; consequently the proceeding of the Justices, in taking his evidence, is a valid judicial proceeding sufficient to make the prisoner's false swearing, in the course of it, perjury. (d)

Where the affidavit is not taken in a judicial proceeding, and, therefore, does not constitute perjury in its strict sense, the party may nevertheless be indicted for a misdemeanor at common law. (e) In the latter case, A. was indicted for perjury in an affidavit made, under the Bills of Sale Act, for the purpose of having a bill of sale filed. The indictment was in the ordinary form. The affidavit was sworn before a Commissioner for taking affidavits in the Court of Queen's Bench. A. having been found guilty,

(a) Thomas v. Platt, 1 U. C. Q. B. 217.

(b) Hogle v. Hogle, 16 U. C. Q. B. 520, per Robinson, C. J.

(c) Reg. v. Tomlinson, L. R. 1 C. C. R. 49; 36 L. J. (M. C.) 41.

(d) Reg. v. Fletcher, L. R. 1 C. C. R. 320.

(e) R. v. Chapman, 1 Den. 432, 2 C. & K. 846; Reg. v. Hodgkiss, L. R. 1 C. C. R. 212; 39 Ľ. J. (M. C.) 14.