Harshaw v. . Crow

33 N.C. 240

• Court: Supreme Court of North Carolina
• Decided: August 5, 1850
• Status: Published

Opinion

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.