Edenton,

April Term, 1800.

#### Ballentine and others vs. Poyner and wife.

''jpH'fS was an action in the county court, for waste, and a ver-diet and judgment thereupon, and.a writ of error wherein general errors were assigned ; and amongst others, Slade relied upon the following:

First — That the county court had not jurisdiction. Second-ly__An action of waste will not lie in this country: what is waste in England, cannot be so considered here, and there is no act of Assembly to define what waste is. Thirdly — A view is incident to the action of waste — -and here it does not appear upon the record, that the jury had a view of the place said to be wasted; and notwithstanding this defect, there is a verdict and judgment.

Per curiam.

Haywood, Judge

The words of the act of ■1777, eh. 2, sec. oí, are, “That the county courts shall have *111“jurisdiction of all causes whatsoever at the common law, *• within their respective counties, where the debt, damages, or “ cause of action, is above twenty pounds, except certain cases “■ within which the action of waste is not.” And even as to these excepted cases, many of them are now under the jurisdiction by subsequent acts. Secondly — -It is true some difficulty may arise in precisely determining what shall be taken to ba waste ; but that is no argument to prove that an action of waste will not li.e : There are many things all men would agree to be. waste; though there are otheis which might divide opinions. Suppose a widow pulls down valuable buildings in order to sell the timber, or to erect new buildings with the materials upon another tract of land ; would it not he a great defect iu the law were she not punishable in an action of waste for this ? I would define waste thus: an unnecessary cutting down and disposing of timber, or destruction thereof upon wood lands, where there ss already sufficient clearer! land for the widow to cultivate, and over and above what is necessary to be used for fuel, fences, plantation utensils and the like; but if it respects juniper swamp, and other lands similarly circumstanced, where the timber made into staves and shingles, is the only use to be made of the lands, then the devisee or widow shall not be liable to waste for using such timber, according to the ordinary use made of the same in that part of the country. As to the third objection, a view at the common law was not only incident to the action, but necessarily to be observed therein. This, hotvever, is altered by 4 and 5 Ana, 616, where the court is directed to order a view in such cases where to them it shall seem necessary.

Judgment for the plaintiff.