The plaintiff declared in two counts — 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's setting fire to his own woods without giving notice in writing.
It was in evidence that the defendant did set fire to his own woods on 9 March, 1858, and that he 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's (478) intention to burn his woods, and on the day the fire was set out cautioned him to be particular lest he might do injury to himself and others. The fire in the plaintiff's woods was seen on 11 March. The plaintiff was with the defendant while the fire was burning on the 8th.
The defendant offered a witness who stated that soon after the fire had burned the plaintiff's woods the plaintiff said, "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," pointing to the place.
The 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's setting the woods on fire, he thereby discharged him from the action. Plaintiff excepted.
Verdict and judgment for defendant. Appeal by plaintiff. The first count, for an injury at common law, cannot be sustained, because there was no proof of negligence.
The 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 *Page 369 proof of negligence on the part of the defendant, it is damnum absqueinjuria, 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.
PER CURIAM. No error.
Cited: Lamb v. Sloan, 94 N.C. 537; Roberson v. Morgan, 118 N.C. 995;Wood v. R. R., id., 1064.
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