Page:North Dakota Reports (vol. 1).pdf/166

appellant complains of a portion of the charge to the jury in which the trial judge said that defendant had testified that he did not set the fire, or authorize it to be set, and that there was no evidence to dispute such testimony. We find no error in this instruction, under the facts of the case. The plaintiff's evidence all pointed to a certain place on the defendant’s farm as the source of the fire. While it appeared that the defendant had set other fires on the farm at different points, yet there was nothing in the case to show that any one of these fires was the author of the fire which burned plaintiff’s property. On the contrary, the testimony was positive that there was no trace of fire between the point B, from which the fire started, and the other points, C and H, at which fires were set out by defendant. A. W. Linton, called as a witness on behalf of plaintiff, said: “There were no traces of fire between C and B.” William Hermanson, another witness on behalf of plaintiff, testified: “The ground was not burnt over between B and C. Saw no stubble on Mr. Job’s premises burned over, except between B and the north-west corner of the section.” This is the direction the fire spread from B, in communicating with plaintiff's farm. There was no direct evidence that defendant set the fire at this place. The witness Hermanson says: ‘On Thursday, about 10 o’clock in the morning, I saw two men go over to B or C. I didn’t see them start the fire there the first time on the start, but I see two men working at the fire.” He does not pretend to identify the defendant as one of the men, but says that defendant’s buggy drove over to that point, and one of the men got into it, and the other walked behind, and that they all went towards defendant’s house. There was therefore no evidence on which the jury could base a finding that defendant himself set the fire. Nor was there anything in the case to show that he expressly authorized the fire to be set. There was no error in allowing the witness Holman to testify to orders which he heard defendant give about setting fire. It was not an attempt to prove the unsworn narration by the witness of a past event. It tended to establish as a fact that defendant had not expressly authorized the setting of a fire at that point, but that, or the contrary, he had expressly forbidden it. We have examined the other ques-