The offense which the plaintiff claims the defendant imputed to him by the words laid in the declaration, is the one made punishable by statute. Rev. Stat., title 6, sec. 35. That statute provides that “ every person who shall willfully burn any ship or other vessel, any office, store, shop, warehouse, mill, distillery, brewery or manufactory,” Ac., “ the same being the property of another, shall suffer imprisonment,” &c.
TÍie defendant contends that the words laid in the declaration do not per se impute to the plaintiff any offense, and that there are in the declaration no sufficient allegations or averments of fact to show that they were intended or understood to charge such offense.
The words laid do not indeed charge the offense in the very language of the statute, but the plain and natural import of *84them, the idea they were calculated to convey to those who heard them, is, we think, that the plaintiff had willfully and maliciously burnt the factory alluded to, and the court is bound to understand the worlds as the rest of mankind understand them. Rex v. Matthews, 9 State Trials, 710. Tomlinson v. Brittlebank, 4 B. & Ad.630. Rex v. Horne, Cowp., 672. Peake v. Oldham, Cowp., 278. Goodrich v. Woolcott, 3 Cow., 239. Roberts v. Camden, 9 East, 95. Gilman v. Lowell, 8 Wend., 577. Bloss v. Tobey, 2 Pick., 328. Tested by this rule, the words which the jury have found were uttered by the defendant do, in our judgment, upon their face impute to the plaintiff the offense claimed.
In the second count it is averred that the defendant uttered and published, of and concerning the plaintiff, these words:— “ We know that our building was set on fire, there is no doubt in our minds, we are satisfied Bishop did it. We are as well satisfied that Bishop burnt our factory as we are of any thing we did not see with our own eyes. I am as well satisfied that Bishop burnt our factory as I am of any thing I did not see with my own eyes. I am well satisfied that he burnt our fac tory. He set fire to David Shelton’s barn.”
From this recital of the defendant’s language is it possible to entertain a doubt as to the defendant’s intention to Charge the plaintiff with j;he willful burning of the defendant’s factory ? or that that was the idea which his words were calculated to convey to the minds of those who heard them ? Is this the language of one whose building has been burnt by accident or in consequence of another’s negligence, of one who is lamenting his misfortune, rather than giving utterance to his indignation ? Why was the charge of setting on fire and of burning so many times repeated ? And why those emphatic expressions of the convictions of the defendant and of his partners in relation to it ? And why the direct charge that the plaintiff set fire to David Shelton’s barn ? If the defendant intended to impute negligence or inadvertence rather than crime, why did he not accompany his charges with some intimation tending to that conclusion ?
To set on fire or burn a building, according to the natural *85meaning and popular acceptation of the terms, implies an active agency in the party setting on fire or burning, as well as the concurrence of his will in the act performed. A fire originating in accident or negligence can with no propriety be, and seldom or never is, said to be set by any one. A building burnt by accident seldom or never is said to be set on fire, nor is it said to be burnt by human agency or action.
We think it clear that the plain and natural import of the words was, that the plaintiff had willfully set on fire and burnt the defendant’s factory ; that that was the idea they were calculated to convey to the minds of those who heard them, and that the hearers must have so understood them.
But that this is the sense in which the words were uttered, and intended to be understood, is settled by the verdict of the jury. In the introductory part of the count it is averred that the defendant intended to subject the plaintiff to the penalties of the law for burning buildings, and, after the recital of the words uttered, it is also averred by way of inuendo that the defendant meant that the plaintiff had maliciously set on fire and burnt said factory, and these averments the jury have found true. Now the law affixes no penalty to the accidental or even the careless burning of a building; but to set on fire and burn a building maliciously is the very crime which the statute describes and punishes. It is the willful burning of such building. Malice is a wicked intention to do an injury. Bouvier Law Diet. “ Malice.” 2 Chit. Crim. Law, 727. Maliciously is with deliberate intent to injure. Webster’s Diet. “ Maliciously." See also Case v. Bulkley, 15 Wend., 327; Wood v. Scott, 13 Verm., 42; Nichols v. Packard, 16 Verm., 83; McClaughry v. Wetmore, 6 Johns., 82. After verdict then, at any rate, this count must be holden good. Whether the first count is good or not we need not inquire.
There is no error in the record complained of.
In this opinion the other judges concurred.