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

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.