4 N.C. 687 | N.C. | 1818
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 *491 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,
Cited: Lamb v. Sloan,