malicious burning of them is felony at common law. Haw. B. 1. c. 39. sect. 1. 4 Bl. Com. 221.

OF ANOTHER....The offence of arson (strictly so called) may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby also burnt; but if no mischief is done but to one's own, it does not amount to felony, though the fire was kindled with intent to burn another's. 4 Bl. Com 221.

If a landlord or reversioner sets fire to his own house, of which another is in possession under a lease from himself, or from those whose estate he hath, it shall be accounted arson, for during the lease the house is the property of the tenant. Ibid.

And it has been expressly determined, that if a tenant set fire to the house of his landlord, before the tenancy expires, he is not guilty of arson. 4 Bl. Com. 222. Christian's note (2.)

2. The punishment of arson was formerly death. (See 4 Bl. Com. 222. 1 Rev. Code, p. 45.) By the penitentiary law of 1796 (1 Rev. Code, p. 356, sect. 4.) it was made punishable by confinement in the penitentiary, for a period not less than five nor more than twelve | years; by act of 1803 (2 Rev. Code, p. 70, sect, 1.) the term of confinement was extended to not less than ten nor more than twenty-one years; but by act of 1804 (2 Rev. Code, p. 80, sect. 8.) arson is pu nishable with death.

Το

(A) Warrant for burning a house.

constable of the county of

County, to wit:

Whereas A J, of the county of

aforesaid, merchant, hath

this day made complaint, upon oath, to me J P, one of the commonwealth's justices of the peace for the county aforesaid, that on the day of a house, viz. (describe the kind) belonging to him the said A J, and in his possession, was wilfully and maliciously set on fire, and burnt, and that he hath just cause to suspect, and doth suspect that A O, of the county aforesaid, labourer, did feloniously, voluntarily and maliciously, burn the said house

These

are therefore, in the name of the commonwealth, to require you immediately to apprehend the said AO, and to bring him before me, or some other justice of the peace for the said county, to be examined concerning the premises, wherewith he is suspected. Given under my hand and seal, &c.

For other precedents, see title "CRIMINALS."

(B) Indictment for wilfully burning a house.

County, to wit:

The jurors for the commonwealth, upon their oath, do present, that A Ô, late of the county of

ing the fear of God before his eyes, the instigation of the devil, on the

about the hour of

aforesaid, labourer, not haybut being moved and seduced by day of

in the year in the night of the same day, with force and arms, at the county aforesaid, a certain house,* called

* Sufficient without saying dwelling house. Haw. B. 1, c. 39. sect. 1.

(describe the kind) of one AJ, there situate, feloniously, voluntarily and maliciously, did set fire to, and the same house then and there, by such firing as aforesaid, feloniously, voluntarily and maliciously, did burn and consume, against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth.

BUYING OF TITLES.

1. BY THE COMMON LAW.

IT is a high offence at common law, to buy or sell any doubtful title to lands known to be disputed, to the intent that the buyer may carry on the suit, which the seller doth not think it worth his while to do, and on that consideration sells his pretensions at an under rate; and it seems not to be material, whether the title so sold be a good or bad one, or whether the seller were in possession or not, unless his possession were lawful and uncontested, for all practices of this kind are by all means to be discountenanced, as manifestly tending to oppression, by giving opportunities to great men to purchase the disputed titles of others, to the great grievance of the adverse parties, who may often be unable or discouraged to defend their titles against such powerful persons, which perhaps they might safely enough maintain against their proper adversary. Haw. B. 1. c. 86. sect. 1.

II. BY STATUTE.

"No person shall convey or take, or bargain to convey or take, any pretensed title to any lands or tenements, unless the person conveying, or bargaining to convey, or those under whom he claims, shall have been in possession of the same, or of the reversion or remainder thereof, one whole year next before; and he who offendeth herein, knowingly, shall forfeit the whole value of the lands or tenements; the one moiety to the commonwealth, and the other to him who will sue as well for himself as for the commonwealth: but any person lawfully possessed of lands or tenements, or of the reversion or remainder thereof, may nevertheless take, or bargain to take, the pretensed title of any other person, so far, and so far only, as it may confirm his former estate." 1 Rev. Code, p. 37.

See a declaration for buying a pretensed title, Plowden 78, 80. Partridge v. Strange and Crocker.

CARRIERS.

The term Carrier is seldom used in common conversation; but in its legal acceptation, it comprehends masters and owners of ships, hoy men, lightermen, barge owners, proprietors of waggons, stage. coaches, &c. who, by the custom of the country, that is, by the common law, are bound to receive and carry goods for a reasonable hire or reward; to take due care of them in their passage; to deliver them safely, and in the same condition as when received; or, in default thereof, to make compensation to the owner for any loss or damage which happens while the goods are in their custody; except such loss or damage as arises from the act of God, as storms, tempests, or the like, or of the enemies of the commonwealth.(Selw. N. P. 323.) To which exception may be added such losses as arise from the default of the party sending the goods. 2 Esp. N. P. 619.

A carrier shall not evade the law, by refusing to carry goods at the prices limited. For if a common carrier, who is offered his hire, and who hath convenience, refuses to carry goods, he is liable to an action, in the same manner as an innkeeper who refuses to entertain a guest, or a smith who refuses to shoe a horse. 2 Show. 327.

So an action will lie against a common ferryman, who refuseth to carry passengers. 1 Bac. Abr. 344.

But if the porter puts up the box of a passenger behind a stage coach, and the master as soon as he knows of it says, he is already full, and refuses to take the charge of it, the master shall not be liable. For this is the same with an host who refuseth his guest, his house being full, and yet the party says he will shift, or the like, if he be robbed, the host is discharged. Ibid.

So a carrier may refuse to admit goods into his warehouse at an unseasonable time, or before he is ready to take his journey; but he cannot refuse to do the duty incumbent upon him by virtue of his public employment. L. Raym. 652.

If goods be sent by a carrier, and he embezzle them, it is not larceny. 4 Bl. Com. 230. Haw. B. 1. c. 33. s. 4.

But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcenies : for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. 4 Bl. Com. 230.

It has been decided, that if a parcel be left by accident in a hackney coach, and the coachman, instead of restoring it to the owner, opens

it, and embezzles part of its contents, he is guilty of larceny. Ibid. Christian's note.

Also, if goods be delivered to a carrier, to be carried to a certain place, and he carries them to another place, and there opens and disposes of them. it is felony. Kely. 82.

Where goods are delivered to a carrier, and he is robbed of them, he shall be charged, and answer for them, by reason of the hire: and this was at the common law, before the hundred was answerable for him; because such robbery might be, by consent and combination, carried on in such a manner, that no proof could be had of it. 1 Salk. 143. 1 Inst. 89, a.

And although it may be thought a hard case, that a poor carrier who is robbed on the road, without any manner of default in him, should be answerable for all the goods he takes; yet the inconvenience would be far more intolerable, if he were not so; for it would be in his power to combine with robbers, or to pretend a robbery, or some other accident, without a possibility of remedy to the party; and the law will not expose him to so great a temptation, but he must be honest at his peril. 12 Mod. 482.

And generally, if a man delivers goods to a common carrier, to carry to a certain place: if he loses or damages them, an action upon the case lies against him; for, by the custom of the country, he ought to carry them safely. (1 Bac. Abr. 343.) And if he be a common carrier, though there be no agreement, or rate settled, or promise of payment; yet he shall recover his hire on a quantum meruit, and therefore shall be liable for loss and damages. 1 Buc. Abr. 343.

Also, if a person, who is no common carrier, takes upon himself to carry my goods safely and securely, though I promise him no reward, yet, if my goods are lost or damaged by his default, I shall have an action against him. Lord Raym. 909.

For the very taking of the goods is a general consideration, though he be not a common carrier: and the acceptance of the goods makes him liable. Show. 104.

On an action against a common carrier, the question was, in whose name the action ought to have been brought. The declaration charged, that the plaintiff, being possessed of cloth, as of his own proper goods, delivered the same to the defendant to be carried to London, and delivered to a certain person there. The goods were lost, and the plaintiff obtained a verdict against the carrier. It was moved for a new trial, on the objection that the action ought to have been brought in the name of the person to whom the goods were consigned, and not in the name of the consignor. For the consignor parted with his property upon his delivering the goods to the carrier, and no property remained in him after the delivery. Upon this it was answered, that the question doth not turn upon the strict property. The carrier has nothing to do with the vesting of the property. It does not lie in his mouth to say, that the consignor is not the owner. He is the owner with respect to the carrier, who undertook to him, and was to be paid by him. Lord Mansfield said there was neither law nor conscience in the objection. The vesting of the property may differ according to the circumstances of cases: But it does not enter into the present question. This is an action upon the agreement

between the plaintiff and the carrier. The plaintiff was to pay him. Therefore the action is properly brought by the plaintiff, who agreed with him, and was to pay him. Bur. Mansf. 2680. See also, 1 Term. Rep. 659.

But it has since been decided, that the action against carriers must be brought by the owner of the goods. Hence, where a tradesman orders goods to be sent by a carrier, at the moment the goods are delivered to the carrier it operates as a delivery to the purchaser, and the whole property (subject only to the right of stoppage in transitu by the seller) vests in the purchaser, he alone can maintain an action against the carrier for any loss or damage to the goods; and this rule holds as well where the particular carrier is not named by the purchaser, as where he is. And the ground of the decisions in 5 Bur. 2680, and 1 T. Rep. 659, is said to be, that the consignor had made himself responsible to the carrier for the price of the carriage. See Selw. N. P. 339. 8 T. Rep. 330. 3 Bos. and Pull. 584. 1 Atk. 248.

A delivery to the carrier's servant, is a delivery to the carrier; and if goods are delivered to a carrier's porter, and lost, an action will lie against the carrier. 1 Salk. 282.

In the case of Harvey against Syliard and bis wife; the plaintiff brought his action against Syliard and his wife, for a box with 801. in it, which was delivered to her as book-keeper for her brother, who was a carrier, in order to be sent by the waggoner to London; which 801. was afterwards lost: It was adjudged that the action would not lie against her, but it ought to have been brought against the brother himself, and the plaintiff was nonsuited. 2 Barnard. 234.

If a box is delivered generally to a carrier, and he accepts it, he is answerable, though the party did not tell him there is money in it. But if the carrier asks, and the other says no, or if he accepts it conditionally, provided there is no money in it, in either of these cases the carrier is not liable. Stra. 145.

If a man delivers a box to a carrier to carry, and he asks what is in it, and the man tells him, a book and tobacco (as the case was) and in truth there is 1001. besides; yet if the carrier is robbed, he shall answer for the money; for the other was not bound to tell him all the particulars of the box, and it was the business of the carrier to have made a special acceptance. 1 Bac. Abr. 345.

But if a person, being a common carrier, receives by his book-keeper from another man's servant, two bags of money sealed up, containing, as was told him, 2001. and the book-keeper gives a receipt for his master to this effect-received of such a one two bags of money sealed up, said to contain 2001. which I promise to deliver on such a day, at such a place, unto such a person, he to pay 10s. per cent. for carriage and risque; though the bags contain 4001. and the carrier is robbed, he shall be answerable only for 2001. for this is a particular undertaking; and as it is by reason of the reward that the carrier is liable, when the plaintiff endeavours to defraud him of it, it is but reasonable he should be barred of the remedy, which is only founded on the reward. 1 Rac. Abr. 346. 1 Esp. N. T. 621.

A man took a place in a stage-coach, and in the journey the defendant, by negligence, lost the plaintiff's trunk: upon not guilty pleaded, the evidence was, that the plaintiff gave the trunk to the man that