— The complaint states two causes of action for the destruction of tan bark, cord wood, etc., by fires alleged to have been negligently set by the defendant upon its own land and for its own convenience, and which it negligently permitted to escape, and to extend to plaintiff’s land; the first occurring October, 1887, and the second July 30, 1889. The value of the property destroyed by the first fire is alleged to be one hundred and ninety-eight dollars, and by the second eight hundred dollars, and treble damages are prayed for. The jury returned a verdict for the plaintiff and fixed the damages at seven hundred and seventy-five dollars. At the close of plaintiff’s evidence, defendant moved for a nonsuit upon several specific grounds, the substance of which is, that the evidence failed to show that the defendant negligently or otherwise set fire to its own, or any woods, or that it negligently or otherwise permitted *270the fires to escape from its land. The motion was denied and defendant excepted.

There was some evidence tending to show that the fires originated on defendant’s land, but none that they were started by the defendant, unless it could be inferred from the fact (itself doubtful) that they orignated on its land; but however that may be, there was not a scintilla of evidence that the fires were started negligently, or for an unnecessary purpose, or that due care was not exercised to prevent the fires from spreading to other lands; and without negligence, either in starting the fires or in permitting them to escape or get beyond defendant’s lands, no recovery can be had.

Section 3344 of the Political Code provides: “ Every person negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own land is liable in treble damages to the party injured.”

This action was brought under the above section of the code, and the burden of proof was upon the plaintiff. Under it the actual damages sustained are trebled, not as a compensation to the plaintiff, but as a punishment to the defendant for his negligence; not for doing a lawful act in a careful and proper manner, which, without his fault, inflicts an injury upon another. Negligence is the essential fact and must be proved. (For a construction of section 3344 of the Political Code and of the other statutes cited by respondent and hereinafter noticed, see Garnier v. Porter, 90 Cal. 105.)

Respondent contends, however, that “ proof of setting the fire is sufficient, and is itself proof of negligence”; and cites section 384 of the Penal Code: “Every person who wilfully or negligently sets on fire, or causes or procures to be set on fire any woods, prairies, grasses, or grain on any lands, is guilty of a misdemeanor.” This section will bear no such construction. It is penal, and in such statutes the word “ wilfully ” means with evil intent, or with legal malice, or with a bad purpose.

Counsel for respondent also cites the act of February 13, 1872, for the purpose of showing that it is unlawful to set Ares in woods; but that act relates only to public lands belonging to this state or the United States, and is also penal, and applies to those who “shall wilfully and deliberately set fire,” etc. It *271is quite true, as counsel say, that where damage is caused by an unlawful act, no negligence need be proven; but the complaint does not allege that defendant “unlawfully” set the fire or unlawfully permitted it to spread to plaintiff’s laud, whilst his argument seems to concede that lie has not proven negligence unless it can be inferred from the fact of the fire having originated upon defendant’s land, non constat that the fire may have been purely accidental or occurred through the negligence of a hunter, or been maliciously set by a third person for whose acts defendant is not responsible. A plaintiff must prove every material fact which goes to constitute his cause of action; proving loss alone is not sufficient.

The evidence introduced by defendant after the motion for nonsuit was denied did not supply the defects in plaintiff’s evidence, and the verdict was therefore not justified.

The judgment and order appealed from should be reversed.

Temple, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.

Harrison, J., Garoutte, J., McFarland, J.

Hearing in Bank denied.

Beatty, C. J., and De Haven, J., dissented from the order denying a hearing in Bank.