Opinion
(Spring Term, 1800.)
1. The action of waste will lie in this State.
2. It is not error for the judgment in an action of waste to be for the damages only and not also pro the place wasted.
This was a writ of error brought in the Superior Court of Law for Edenton District, to reverse the judgment of the county court of Currituck, rendered in a cause between the above-mentioned parties. The plaintiff brought a writ of waste in the words following, (252) to wit: "State of North Carolina, to the sheriff of Currituck County — Greeting: You are hereby commanded to summon Simon Wilson and Franky, his wife, that they be before the Justices of our county court of pleas and quarter sessions, to be held at the courthouse of our said county on the last Monday of February next, to answer unto Silas Bright, an infant, etc., by Aaron Bright, his father and natural guardian, in a plea why in the houses, lands, and woods, in the county of Currituck aforesaid, which in the right of said Franky they hold for the term of the life of the said Franky, by the devise of Silas Bright, deceased, they have made waste, spoil, and destruction to the disinheriting of him the said Silas, against the provisions of law and to the damage of him, the said Silas, 500 pounds; herein fail not," etc.; which, being executed and returned to February Term, 1797, the defendants appeared and pleaded "the general issue, with leave to give the special matter in evidence," and the cause was continued from term to term until May Term, 1798, when a jury being impaneled and sworn, found the defendants guilty of having committed waste in the premises charged in the plaintiff's declaration, and assessed the plaintiff's damages to £ 138 8d and costs; whereupon the defendants prayed and were allowed a writ of error, and by their attorney assigned the following errors, to wit: "That in the record and proceeding aforesaid, and also in giving the judgment aforesaid, there is manifest error, to wit, that the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said Silas Bright to have and maintain his aforesaid action thereof against the said Simon Wilson and Franky, his wife; there is also an error in this, to wit, that by the record it appear that the judgment aforesaid, in form aforesaid given, was given for the said Silas Bright; whereas, by the laws of the land, the said judgment ought to have been given for the said Simon Wilson and Franky, his wife, against the said Silas Bright; and the said Simon Wilson and Franky, his wife, pray that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings aforesaid, may be reversed (253) and annulled, and altogether held for nothing, and that they may be restored to all things they have lost by occasion of the said judgment.
William Slade for plaintiffs in error.
I am of opinion that the judgment of the county court should be affirmed.
No special errors are assigned in this case, and I have not, upon a view of the record, been able to discern any; the writ in its substantial parts is conformable to the precedent in the register, and though the judgment does not appear to be rendered according to 6 Ed. 1, for the place wasted, yet that omission being for the defendant's benefit, was not, I presume, intended to be assigned.
I am also of opinion that the judgment of the county court should be affirmed.
Judgment for defendants in error.
Cited: Dozier v. Gregory, 46 N.C. 104.
NOTE. — See Ballentine v. Poyner, 3 N.C. 110, and the cases referred to in the note.