Wright v. Yarborough, 4 N.C. 263, 1 Taylor 263 (1818)

Jan. 1818 · Supreme Court of North Carolina

4 N.C. 263, 1 Taylor 263

WRIGHT against YARBOROUGH.

fire to the cun*dun]ess ilays n0' tice is given to the owners agreement of ⅛ take slior-wfu no tobara strangerfrom undeTthe’ C. 29.

This was an action of debt to recover the penalty under the act of Assembly, to prevent the firing of woods, &c. It appeared in evidence that the Defendant had informed one of his neighbors who had lands adjoining his, that _ _ J , , intended to fire his woods in a short time thereafter, up-bn which his neighbor replied to him that a few minutes notice would do for him ; the Defendant accordingly gave him notice about an hour before he set fire to his woods. The Court directed the Jury to find for the Plaintiff, as the notice was not sufficient under tbe aforesaid act. The case therefore comes up to the Court on a motion for a new trial—on the ground that the charge of the Court was against taw. The Defendant had other neighbors besides the one above alluded to* but the Court would not permit him to show whether he had given them sufficient notice, until it should first be decided Whether the above notice Was sufficient.

Daniel* Ji

delivered the opiniofl of the Court:

The act of 1777, c. 2a, sec. 2, makes it unlawful for any person whatever to set fire to any woods, except it be his own property, and in that case it shall not be lawful for him to set fife to his own woods without first giving notice to all persons owning lands adjacent to such wood lands intended to be fired, at least tivo daps before setting suchiwoods on fire, Ssc;

The act of 1782, c. 29,,sec. 2, says “ every person offending against the above act of 1777, shall forfeit and pay for every such offence, the sum of twenty five pounds specie, t© be recovered by action of debt, bill, plaint, or information, to the use of the person who shall sue or prosecute for the same, and be liable to an action to the party injured,” &c.

This being a penal action, which might have been brought by any person, the Defendant cannot resist the Plaintiff's recovery without shewing he gave the two days notice required by the act. The assent of a neighbor to take shorter notice than the law prescribes, does not present the penalty from being incurred. Motion for a nett trial overruled.