House v. House , 5 H. & J. 125 ( 1820 )

Dos sky, J.

delivered the opinion of die court. The; counsel for the appellant has argued with much ingenuity, that the words laid in the declaration do not perse import an offence, for which the plaintiff could; be prosecuted and punished, and therefore are not actionable, as no colloqui1im is stated in either count. IBs argument is this, that the act concerning crimes and punishments, passed in the year 1809, eh. 138, s. 5, declares it to- bo a felony to bum a barn that is empty, or having in it personal property; and inasmuch as a barn may have in it other things than, personal property, as animals feree natures, such a barn, cannot be considered as empty; neither can it be considered as having personal property within it, and of course it is not an offence within- the view of the act of assembly to. burn such a bam; and therefore, to charge a, man with burning a ham generally, is not actionable, because, by-possibility, there may have been within it animals fsrx natures, or human beings, and a barn in such a condition is not empty, neither does it contain personal property. The sixth section of the act declares, “that every person who-shall be duly convicted of the crime of wilfully burning a mill, distillery, manufactory, barn, meat-house, tobacco-house, stable, ware-house or other hpuge, being empty, or I aving therein any tobacco, wheat, rye, oats, Indian corn, barley,, flax, hemp, hay, or other country produce, horse or. horses, cattle, goods, wares and merchandize, shall suffer death by hanging by the neck, orbe sentenced to undergo a confinement in the penitentiary house for a term of time not less than three or more than twelve years.” As the law inflicts the same punishment for burning an empty bam, as a barn containing any kind of personal property, it is difficult to conceive why the legislature have introduced such a laboured enumeration of articles. If they had used the expression 41 any bam,” every object would-have been answered. It is impossible to believe that the legislature did not intend to punish the burning of every ham, whatever its condition might he, when they were denouncing the severest penalties, even unto death, against those who should burn a barn either empty or having personal property in it. Can it be supposed that they meant te exempt from punishment those, who by a conflagration should involve the building and the persons within it, in •one common ruin? Or are we to suppose that 'they considered noxious animals, as hastes human,i generis, and that therefore,, both they, and their retreat, if it happened to be a barn, might with impunity be consumed by fire? The word “empty” must be considered as relative, and used iit contradistinction to' enumerated articles; and therefore, •every barn within, the view of the law must he considered as empty, that does not contain personal property. The legislature never intended to use the word “empty” in its strictest sense; because, under no circumstances could a barn, strictly speaking, be said to be empty. While we admit the principle, that penal laws are hot to be extended, by construction, we hold ourselves bound to give them .3, •rational interpretation.

JUDGMENT AFFIRMED.