
    Tyson v. Rasberry.
    From Greene.
    The acts of 1777, c. 25, and 1782, c. 29, do aiot apply to cases of burning; the woods from necessity, but only to voluntary firing:
    
      Hold, therefore, that one, who sets fire to woods by necessity, need not take “ effectual care,” or any care to extinguish it, so far as regards the penalty inflicted by those statutes — though he may be liable to an action on the case for the damages actually sustained by another.
    This was a warrant for the penalty of twenty-five pounds, under the act of 1782, c. 29, s. 2, for firing the woods. * It came on for trial on the general issue, at April Term, 1820, when the case appeared to be this: That on the 25th March, the Defendant put fire to Ms own ‘woods to bum around a'tar kiln, which afterwards communicated with the Plaintiff’s fence, about half a mile off, and consumed it: That on the morning of the 24th March, a fire was discovered to he burning in the woods about two miles distant, which created some apprehension for the safety of tho kiln, and induced the Defendant to believe that it would be necessary to burn around ir, and that he gave tamice lo the owners of the adjoining lands of his intention ; that the fire in the woods continued to approach the kiln'during both days, until it carie within a quarter of a mile, ami that then, the Defendant burnt the woods around the tar kiln for the purpose of saving it •, and that hut for such burning, the kiln would, have been lost. No evidence was offered to shew that tire Defendant had taken care to ex - tinguish the fire which lie kindled, nor to prove that he had been negligent. The. Court instructed the Jury, that under the emergency of the case, if the. burning around the ldln were necessary to sate if, the Defendant was not subject to the penalty for the act of setting fire to the woods : but that it was incumbent on him to use effectual exertions to prevent the fire extending to other lands than his own, which the Defendant had not shewn, and, therefore, the Plaintiff was entitled to recover. The Jury found a ver-diet for the Plaintiff, for the 25 pounds; which the Defendant moved to set aside for misdirection ; but it was refus-od, judgment rendered against him, and he appealed to this Court.
    
      Gusto'", for the appellant.
    The Court below erred in stating that it was the duty of the Defendant to shew, that he had used effectual exertions. The Plaintiff ought to have shewn the contrary. He cannot recover, unless he prove that the Defendant was negligent: For it is a genera! presumption, that every man lias conformed to the law 5 and the presumption stands until it be repelled by proof. To shew that the burden of proof lay on- the Plaintiff, he cited the cases of Powell v. MUburn,
      
       Williams v. East India Company,
      
       King v. Hawkins,
      
       and Phil. Evid. 150, 151.
    
      Benwell, for the appellee.
    All the cases cited on the other side, are those of officers, and do not apply, because they are presumed to do their duty : Not so with private individuals. They must prove/hat they have done all that the law requires of them. But that is emphatically the case under these acts of Assembly of 1782, c. 29, and 1777, c. 25, which must be taken in connection. That of "77 makes it v ¡'lawful to sire the woods, without first giving notice aad also talcing effectual care to extinguish the fire. When an act is unlaw ful nisi, that is, when one may not do one thing unless he shall have done some other thing before, he must shew that he has complied. The owner sets fire to his own land at his peril; he must “ effectu-4< ally” extinguish it, before it reaches the land of others. This act ought tc- be construed strongly against the Defendant, for it is a statute for the repose and safety of olliers.
    
      Mordecai, in reply.
    The act of Assembly was intended to prevent persons from setting fire to the woods, as matter of convenience, not when it should bo matter of noccs\y{)en n0 necessity exists, two days notice must be given to adjacent proprietors. But when there is a necessity, it is out of the purview of the statute, and there is no occasion for notice. So it is not only made the duty of him, who sets fne for convenience, to give notice, but he must, take effectual care to prevent the fire spreading to other lands : But when he is not required to give notice, ho cannot, by any sound rule of construction, be required to take this effectual care. This Court has already déci-ded, that notice is not necessary when the burning is by necessity ; and the penalty cannot be recovered in any case, where the party is excused from giving notice. When a man intends beforehand to fire the woods, “ he has an “ opportunity of providing the means of taking effectual es care 5” but when he is pressed by necessity, he lias none, and is not liable, on the statute, to the penalty : although lie may be to an action on the case for negligence.
    
      
       3 Wils. 360. 2 W. Bl. Rep. 852.
    
    
      
       3 East Rep. 192.
    
    
      
       10 do. 216.
    
   Tayi,or, Chief-Justice.

The act of Assembly was evidently intended to prevent a deliberate or a wanton setting •fire to the woods, by the owner of land, without giving the requisite notice. It certainly did not contemplate, the case of a man’s setting fire to his own woods to save his property or his land from the ravages of an approaching fire. To make the firing in such a case unlawful without notice, were to compel a man to become a passive spectator of the destruction of his own property.

It is, then, only in cases where a notice must be given, that the penalty can be incurred for not taking effectual care to extinguish the fire. If a person does not come within the act, lie cannot be liable for not doing any thing enjoined by it; and the obligation to take effectual care, is imposed on those only who are bound to give notice. There is another reason for this construction. The act requires effectual care to be taken to extinguish the fire; so that the party must extinguish it at all events, otherwise liis care is ineffectual and lie must pay the penalty. Although this might perhaps be exacted from a person, who is at liberty to choose his own time to set the fire, and who may accordingly provide himself with the aid of his neigh-bours to prevent its spreading, yet it would be unreasonable to expect it from one who fires the woods from a sudden emergency and in his own defence. Nor is there any necessity for so harsh a construction of the law, for a person injured by the negligence of him who does the act, lias a remedy at Common Law. I therefore think the judgment ought to be reversed.

HeNbrrsoN, Judge.'

Were it not for the word “ effee- “ Inal” in the statute, I might possibly concur with the Circuit Judge. But it seems very unreasonable that a man should not be permitted to set fire to his own woods to preserve his own property from destruction, unless lie should take effectual means to extinguish the fire.' — his best exertions will not do. If such were the law, the right of property .would not be worth possessing. In such a case, it would seem enough for him to repair the actual damages sustained by him who may have been injured; and if the present Plaintiff is of that class, let him bring his action for that purpose.

As the Defendant is not within the penalty of the law, the firing being from necessity, he need not shew that he took effectual, or any care to extinguish the fire; for the last would be unavailing, if lie were within the penalty. There is good reason that the endeavours should be effectual in case of a voluntary firing; for, as that is a thing of his own choice, in which he may select his own time, it is not unreasonable to .compel a man to see that the means which he provides to extinguish the fire be sufficient for ■that purpose. That it was a voluntary firing which the Legislature intended to prohibit under a penalty, 1 think js quite evident from the provision, that notice should be given. To prohibit a man from doing what he is strongly impelled to do by his- very nature, is not to be inferred £pon¡ any t’iing short of plain and evident words; and even if the words would well bear that meaning, ajad another sensible consi ruction can be given, the latter shall he preferred as the true one. I think, therefore, that the Court erred in instructing the Jury, that the Defendant incurred the penalty, because he did not prove that he took effectual means to extinguish the fire. In this case, it was not necessary that he should take any means; and I am of opinion that the rule for a new trial must be made absolute.

Rule made absolute.  