¶1We are inclined to think the court took the right view of the statute. The evidence here •shows no intentional setting fire to the woods, but merely to burn the log and brush-piles on defendant’s clearing. The section of the statute under which the action is ■brought is as follows :
“Sec. 2129. Id. Damages. — If any person shall wilfully set on fire any woods, marshes, or prairies, whether his own or not, so as thereby to occasion any ■damage to any other person, such person shall make satisfaction in double damages to the party injured, to be recovered by. civil action.”
¶2Formerly the statute did not apply to a person •setting fire on his own farm, but afterwards such provision was omitted and it now applies whether the land ■on which the fire is set is his own or not. But it must ■ still be a wilful act, to come within the terms of the ■statute; that is, there must have been an intention to set fire to the woods, marsh, or prairie.
¶3In this case the intention was evidently to burn the ’brush-piles and log-heaps resulting from the clearing. If this was defendant’s sole aim and the resulting fire was a misfortune not foreseen or intended, the statute is not applicable to his case.
¶4The case of Finley v. Langston, 12 Mo. 120, arose under the statute of 1835, which did not extend to any person setting fire on his own farm if done without any Intention of firing woods, marshes, or prairies, but which did, of course, include firing outside the farm; yet in that case it was held that “cases might, no doubt *477be put where a farmer would not be responsible for unintentionally firing the woods or prairie, by setting-, out fire outside of his enclosures. In clearing timber land, fires are set out to burn up the brush and roots and. log-heaps before the fence is built, and it would be-readily admitted that if this was the sole design of the-fire, the farmer would not be answerable, if it accidentally escaped into an adjoining prairie or woods. Other such, instances might be put, but v/e think there is no difficulty in distinguishing all such cases from the one-against which the statute is aimed.”
¶5It must be borne in mind that this case is not a; common-law action for negligence, but is conceded by the-parties to be under the statute quoted, and as such must come within its terms, spirit, and intent.
¶6The judgment is affirmed.