Opinion
(January Term, 1818.)
The penalty for setting fire to the woods is incurred under the acts of 1777 and 1782 (1 Rev. Stat., ch. 16), unless two days notice is given to the owners of adjoining lands; and an agreement of one neighbor to take shorter notice will not bar a stranger from recovering the penalty under those acts.
DEBT to recover the penalty under the act of Assembly to prevent the firing of woods, etc. It appeared in evidence that the defendant had informed one of his neighbors who had lands adjoining his, that he intended to fire his woods in a short time thereafter, upon 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 the aforesaid act. The case, therefore, comes up to this Court on a motion for a new trial, on the ground that the charge of the court was against law. 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.
The act of 1777, ch. 25, 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 fire to his own woods without first giving notice to all persons owning lands adjacent to such woodlands intended to be fired, at least two days before setting such woods on fire, etc.
The act of 1782, ch. 29, sec. 2, says: "Every person offending against the above act of 1777 shall forfeit and pay for every such offense the sum of £ 25 specie, to 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," etc.
This being a penal action, which might have been brought by any person, the defendant cannot resist the plaintiff's recovery without showing 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 prevent the penalty from being incurred. (688)
Motion for a new trial overruled.
NOTE. — The penalty under the acts of 1777 and 1782 is only incurred by a voluntary firing the woods and not by burning them from necessity. Tyson v. Raspberry, 8 N.C. 60.
Cited: Lamb v. Sloan, 94 N.C. 537.