#### JOHN A. AVERITT v. ELIJAH MURRELL, JR.

Where a person working in his new ground, within twenty-five yards of woods, puts fire to log-heaps, when the weather is calm, but afterwards, ,the wind arose and drove the fire with irresistible violence into the woods, he is not guilty of negligence, so as to subject him for damages done by the fire.

This was an action on the case, tried before Bailey, Judge, at the Spring Term, 1857, of Onslow.

*324Tbe action was brought on the Statute, ch. 16, Rev. Code, for unlawfully bring the woods. The facts are as stated in the preceding case.

His Honor charged the jury, upon those facts, that every one had a right to use and exercise dominion over his property, in such manner as he thought best; but in the exercise of this right, he must take care not to do any injury to the property of another; that if he was guilty of negligence, either by his own act, or by the act of his servant, in the use of his property, and thereby damage was sustained by another, he would be liable for such damage ; that, in this case, if the defendant directed his negroes to put fire to the logs, and they did so when the wind was blowing in the direction of the plaintiff’s land, and by reason of the wind, the fire was carried to the plaintiff’s land and burnt his trees, the defendant would be responsible for the negligent conduct of his servants, and they ought to find a verdict for the plaintiff; that if, on the contrary, they should be satisfied that, when the fire was put to the logs, the weather was good and calm, and the wind arose afterwards, and blew with such violence as to carry the fire so that it could not be stopped or extinguished, the plaintiff could not recover.

The plaintiff’s counsel asked the Court to instruct the jury that, if the land set fire to by the defendant was wood-land, the defendant would be responsible. Which his Honor declined to do. Plaintiff excepted.

Yerdict for defendant. Judgment and appeal by plaintiff.

No counsel for plaintiff in this Court.

W. A. Wright, for defendant.

Battle, J.

We think the law applicable to the case was fairly and fully expounded by the presiding Judge; and, for the reasons given by his Honor, we affirm the judgment. The instruction prayed by the plaintiff’s counsel had no facts upon which to be based, and his Honor acted right in refusing it.

Pek Cueiam. Judgment affirmed.