Newbern,

July Term, 1803.

#### Ward and others vs. Sheppard, widow.

'TpHIS, was an ss.ction of waste ; for waste alledged to be com. mitted in the dower lands of the’ widow. The plea was, a© %raste committed.

Johnston, Judge.

Actions of waste have beea rarely brought Ir.. this country. I: remember but one in my practice : That was against Holderness, formerly of Roanoke, ’ And then it wss decided, that waste in this country is not to he defined by the rules of the English law in at! respects5 for cutting timber trees for the purpose of clearing the lands, was not waste here, though it Was £.0 in England. ]¡í lands are leased to a lessor in an un», cultivated state, he must of necessity have the power to cl< ?r, Otherwise the lease v/ould be of no profit or advantage to him.' The same is. the case of dower lands. It ia proved here,, or attempted. to be proved, that the cleared lands, were not enough for her cultivation and that the trees were cut down in contemplation, of making a, clearing. What shall be deemed waste, must in a considerable degree be in the discretion of the jury upon evidence. It seems to me the evidence rather proves that the trees, were cut down, for sale. The jury will consider *284thcr they me cut down for this purpose or not ; and if they shall be of opinion that this wan the design, then they shook! find her guilty of the waste, if on the contrary the evidence proves they were cut, down with a view to clearing the land, they should find her not guilty.

Verdict for the plaintiff as to 40 acres out of A77. Small damages assessed, and motion to arrest judgment.