{
  "id": 2088624,
  "name": "HEZEKIAH ROBERSON v. SAMUEL KIRBY",
  "name_abbreviation": "Roberson v. Kirby",
  "decision_date": "1860-06",
  "docket_number": "",
  "first_page": "477",
  "last_page": "478",
  "citations": [
    {
      "type": "nominative",
      "cite": "7 Jones 477"
    },
    {
      "type": "official",
      "cite": "52 N.C. 477"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "simhash": "1:c99b2afa07db04ee",
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  "last_updated": "2023-07-14T15:16:19.129964+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "HEZEKIAH ROBERSON v. SAMUEL KIRBY."
    ],
    "opinions": [
      {
        "text": "Pearson, C. J.\nThe first count, for an injury at common law, cannot be sustained, because there was no proof of negligence.\nThe second count, under the statute, cannot be sustained; for, however it may be in respect to an indictment, or an action for penalty, we concur with-his Honor that, in an action for the injury done to the plaintiff, proof that he waived his right to a notice in writing, is an answer to the action. The notice being required for his benefit, it may, of course, be waived in respect to himself; and if damage ensue, in the absence of proof of negligence on the part of the defendant, it is damnum absque injuria, and falls under the maxim voluntas non fit injuria. Indeed, to maintain an action in favor of one who is present and concurs in the act, would be to aid him in committing a fraud on the defendant.\nThere is no error.\nPer Curiam,\nJudgment affirmed.",
        "type": "majority",
        "author": "Pearson, C. J. Per Curiam,"
      }
    ],
    "attorneys": [
      "Baker, for the plaintiff.",
      "No counsel appeared for the defendant in this Court."
    ],
    "corrections": "",
    "head_matter": "HEZEKIAH ROBERSON v. SAMUEL KIRBY.\nIn an action on the case, under the statute, Rev. Code, ch. 16, sec. 2\u2019, for an injury to adjoining land, by one\u2019s setting fire to his. own woods, without a notice in writing, it was Sold that the proof of a waiver of a written notice was an answer to such action.\nAction on the case, tried before Shepherd-, at the last Spring Term of Brunswick Superior' Court.\nThe plaintiff declared in two counts \u2014 one for the negligent use of fire by the defendant, whereby his woods were burned, and, secondly, in case upon the statute, for injury to his trees by defendant\u2019s setting fire to his own woods, without giving notice in writing.\nIt was in evidence, that the defendant did set fire to his own woods on 9th of March, 1858, and that be gave no notice in writing to the plaintiff, who was the owner of an adjoining tract of land, the woods of which were burned. The plaintiff had been informed of the defendant\u2019s intention to burn his Woods, and on the day the fire was set ont, cautioned him to be particular, lest he might do injury to himself and others. The fire in the plaintiff\u2019s woods was seen on 11th of March. 'The plaintiff was with the defendant while the fire was burning on the 8th.\nThe defendant offered a witness, who stated that soon after the fire had burned the plaintiff\u2019s woods, the plain tiff said, \u201c we had a fine time for burning, and while we were at it, I wish we had burned a certain other part of my woods,\u201d pointing to the place.\nThe Court charged, (among other things not excepted to) that the plaintiff had a right to insist upon a notice, in writing, if he pleased ; but he might waive it; and if the jury found that he gave his consent to the defendant\u2019s setting the woods on fire, he thereby discharged him from the action. Plaintiff excepted.\nYerdict and judgment for defendant. Appeal by plaintiff.\nBaker, for the plaintiff.\nNo counsel appeared for the defendant in this Court."
  },
  "file_name": "0477-01",
  "first_page_order": 485,
  "last_page_order": 486
}