
    *Den against Jacob A. Kinney.
    Euletostay waste, not the cutting of is fo'rthe m--’ dinary use of as^utttno’36^.' wood for a furnace. 
    
    CHETWOOD, for plaintiff,
    presented affidavits, by which it appeared, that several hundred acres of woodland, annexed to a furnace, were in dispute in this action; that the defendant had cut several hundred cords of wood upon it, for the use of the furnace: but it was not more than was usually cut every year for that purpose. Whereupon he moved a rule to stay the defendant from com- .,,. , mitting waste.
    
      Attorney-General objected,
    1. That the plaintiff had not set out that he had title nor the extent of it. Br. Ch. 57. Har. Ch. 237, 239. That this ought to be done, otherwise by issuing a declaration in ejectment and applying for tbis rule the teuant might always be deprived of the use of his property. 2. That it appeared by the affidavits which he read, that plaintiff has covenanted to convey the premises to the defendant, and has put him in possession; and that the defendant is only in the ordinary enjoyment and use of the land. 1 Ves. 278. 1 Mod. 114.
    
      Chetioood.
    
    In this court, title need not be set out in order to obtain this rule. And defendant, by his own shewing upon the affidavits, cannot dispute the legal title of the lessor. The lessor has merely covenanted to convey.
    
      
       See Harker vs. Christy, post 717. Capner vs. Flemington Mining Co., 2 Gr. Ch. 467. Brick vs. Getsinger, 1 Hal. Ch. 391. Vervalen vs. Older, 4 Hal. Ch. 98. Van Syckel vs. Emery, 3 C. E. Gr. 387. Emmons vs. Hinderer, 9 C. E. Gr. 39. Morehouse vs. Cotheal, 2 Zab. 521.
      
    
   Kirkpatrick C. J.

In chancery, the complainant must shew his right, if he would obtain this benefit. It is not so at common law. It is against the mode of proceeding here to spread out the title upon such applications. But notwithstanding this, where there is a contest for land we will as far as possible keep the property from waste, and in the state in which it was at the time when the suit commenced. But then every cutting is not to be considered waste. The use of the wood for the common purposes of the estate, is not waste. Here the land is annexed to a furnace; cutting wood for it is no waste ; it is using the land in the ordinary mode. The court will not therefore interfere.

By the court:

The rule refused.  