Harshaw v. Crow, 33 N.C. 240, 11 Ired. 240 (1850)

Aug. 1850 · Supreme Court of North Carolina

33 N.C. 240, 11 Ired. 240

PHILIP P. HARSHAW vs. WILLIAM CROW.

The preamble to a warrant constitutes a part of if, and where it sets out, in apt words, the offence, for which, as the plaintiff alleged, the defendant had incurred the penalty sued for, the form is a proper one.

Appeal from the Superior Court of Law of Cherokee County, at the Spring Term 1850, his Honor, Judge Elms, presiding.

This was a suit by warrant for $50, the penalty for burning the plaintiff’s woods. The warrant was as follows :

STATE OP NORTH CAROLINA, >

Cherokee County. J

To any lawful officer to execute and return:

Whereas, Philip P. Harshaw complains tome, William Manchester, a justice of the peace of said County, that William Crow, on the-day of April last past, did set fire to a certain piece of woods of complainant and adjoining the wood lands of complainant and others, without previously giving two day’s notice to the owners of said adjoining wood lands, contrary to the act of Assembly in such case made and provided, whereby he has forfeited the sum of fifty dollars for the said offence:— This is therefore to command you to take the body of the said William Crow and him have before me or some other justice of the said County to answer the premises and render to the said Harshaw the said sum of fifty dollars, which he owes and unjustly detains. Herein fail not. Given under myhand andsealthis21stofNovember 1849.

Signed, WM. MANCHESTER, [seal.]

The warrant was tried before a magistrate and came up by successive appeals to the Superior Court. The jury there found a verdict for the plaintiff, and the defendant moved in arrest of judgment, and, being sustained in his motion, the plaintiff appealed.

No counsel for the plaintiff.

J. W* Woodfin, for the defendant.

Pearson, J.

This was a warrant for $50, the penalty for burning the plaintiff’s woods. The jury found in favor of the plaintiff, but the judge below arrested the judgment, being of opinion, that “ the preamble constituted no part of the warrant.” In this, we think there was error. The recital or preamble, as it is called, does constitute a part of the warrant and sets out, in apt words, the offence, for which, as the plaintiff alleged, the defendant had incurred the penalty sued for.

The warrant is a very good form. We can see but one objection to it, as applied to this case ; and that is, the negative averment as to two day’s notice not having been given to the owners of adjoining wood land. The defendant set fire to the plaintiff’s wood land, and in such case he incurred the penalty, without reference to the fact of notice. That provision only applies to cases, where one sets fire to Ms own wood land. This averment, however, is mere surplusage, aud has no effect upon the validity Of the warrant.

The judgment must be reversed, and there must be judgment for the plaintiff.

Per Curiam Judgment accordingly.