¶1delivered the opinion of the Court. A setting on fire an inhabited dwelling house, though the fire should afterwards go out of itself, or be extinguished by another, would constitute the crime of arson. And it has been decided by the Court, that a gaol is an inhabited dwelling house within the meaning of the act. But this case stands on peculiar grounds. It does not appear to have been the intention of the prisoners to burn the gaol. Their original and primary intention was to effect their escape, and the burning was merely for that purpose. It lay on the prisoners to show that it was no part of their intention to bum the gaol, and we think they have done so. The statute makes it felony, for a person to aid or assist a felon to escape from prison; but neither by the statute nor the common law, is- the attempt of a felon to escape a felony. We think it wduld be carrying the doctrine too far, to say that setting fire to a prison by a prisoner, merely for the purpose of effecting his own escape, amounted to the crime of arson. Judgment must, therefore, be arrested.
¶2Judgment arrested.
¶3N. B. It appearing that the prisoner, Cotteral, had been convicted of horse stealing, he was sentenced to the state prison for ten years; and the other prisoner was remanded.