Sheppard v. Sheppard, 3 N.C. 382, 2 Hayw. 382 (1806)

Jan. 1806 · North Carolina Superior Court

3 N.C. 382, 2 Hayw. 382

Sheppard and others vs. Sheppard, widow.

*T'HE plaintiffs, as heirs at law of their ancestor, sued the de-iendant as tenant in dower, for waste done on about 40 acres, part of her dower lands. And the jury found that waste was done as they had declared, and assessed damages to sife pence. Whereupon it was moved in arrest of judgment, that where such small damages were assessed, the court could not consider it as such waste for which an action would lie. And the defendant’s counsel stated the law to be, that the court cculd not adjudge any destruction to be legally a waste, unless it amounted to something considerable : and he cited 2 Bos. & Pull. 86, and the cases there cited, viz. Fitz. Ab. Waste, p. Ill, 123. Co, Idtt. 54 a. 2 Inst. 306. Cro. C. 414» 452. Finch Law, Lib. 19 ch. 3, sec. 34» 3 Bl. C. 22§. Viner Ab. Title Waste n. Bull, N. P. 120.

Mali, Judge,

(after taking till the last day of the term to consider of the authorities.) The authorities cited are strong to the point for which they were cited, nor did he conceive them unreasonable. Where waste of insignificant value is done scat-teredlv through a whole tract, the tenant must lose the place; wasted; and this is too heavy a penalty where the damage is to the amount only' of a small sum. That ought only to be considered waste which is substantially an injury to the inheritance-

judgment arrested.