would probably have a similar right now. But the selling off is so unusual that the executors and not the landlord must show what happened at entry. The manure brought back as an equivalent for produce sold off cannot now be removed, otherwise it ceases to become an equivalent.

The salient "principle" of most customs, viz., "that a man leaves as he entered," will decide whether or not the outgoing tenant in this case is entitled to be paid for the manure, even if he is bound to leave it on the farm. This custom is common enough in some districts.

"Custom," again, must decide whether any compensation is recoverable for cake and bones, and the other improvements claimed for, because there is now no other way for the executors to recover it.

Of course the removal of the manure and the selling off of produce may affect the allowance for cake and bones, because part of the improvement arising from such cake and bones may have gone off in the

manure.

Surely, also, the compensation for the cake and bones must be regulated according to the time when those items were consumed or applied, and according to the number and kind of crops which have since been taken, the correct basis in such cases being the value of the improvement to the incoming tenant. The indiscriminate allowance of half the cost, irrespective of these considerations, would make the custom an untenable one.

As to the draining, the fact that the landlord paid for the pipes may be taken as showing that he did it in consideration of the tenant executing the improvement. The latter can, therefore, hardly claim for his share unless the custom of the country is decidedly in his favour.

It is questionable, however, whether, under all the circumstances of the cases, the executors are entitled to anything, seeing that they voluntarily gave up the farm without due notice, and made no reservation as to the allowances claimed for.

The dealings with the incoming tenant in respect of the items he claims for will necessarily depend upon what is done in respect of the outgoing tenant's claims for bones and cake, as ordinarily the payment of such compensation is thrown upon the incoming tenant. It is assumed that, in assessing such compensation, deductions will be made or the items which the incoming tenant claims for. In the event of the outgoing tenant's claim being successfully resisted, it would be wise to allow the incoming tenant for the items he claims for, so that when he leaves he may not repeat the present outgoer's claims. F. PUNCHARD, Fellow.

Reply to Query CL. (Vol. VI., p. 132).

AGRICULTURAL HOLDINGS ACT-CLAIM FOR IMPROVEMENTS.

(A.)

Yes, I believe it does vitiate the claim, if the landlord chooses to take this technical objection. The Act clearly states that the tenant shall

"give notice to the landlord of his intention to make such claim," and I believe there is a case or cases recorded, though I cannot at this moment put my hand upon them, where the objection has been taken and upheld; that is, the notice of claim must be served personally on the landlord or his legal representative.

(B.)

C. BIDWELL, Fellow.

Although the Act prescribes that notice is to be given "to the landlord," yet it does not prescribe that the notice is to be served personally. (See Sec. 61.) And I should think it would be sufficient for the tenant to prove that his claim came to the knowledge of the landlord through the person who, in matters relating to the tenancy, represented the landlord-that is to say, the person who is usually known as the agent.

(c.)

S. B. L. DRUCE, Associate.

This is a conformation with the provisions of the Act, in the spirit though not in the letter, hence the notice is not in order. Except where the agent holds a legal authority, to act on his or their behalf, from the landlord or trustees of the estate, without such authority he would frequently come to a deadlock.

(D.)

GILBERT MURRAY, Fellow.

A case upon this point was, a few years since, before the Judge of the Hanley County Court, and he decided that, as the tenant had not sent his notice of claim direct to the landlord, his notice was void.

It may be important in connection with this matter to notice that, whilst in the Act of 1875 the interpretation clause provides that the word "landlord" shall include an "agent authorised in writing for "any special purpose" (e.g., collection of rents), the Act of 1883 has no such provision.

But it is very questionable whether the definition, in the Act of 1883, of the landlord as "any person entitled to receive the rents and "profits of any holding," would not be held to include the agent.

Possibly there may be a legal difference between addressing the notice of claim to the landlord, though delivering it to the agent, and addressing the claim to the agent only.

It may also be noticed that, in Section 3, the word landlord is followed by "or his agent duly authorised in that behalf," but it is the only time the word "agent" is used in the Act.

F. PUNCHARD, Fellow.

Reply to Query CLI. (Vol. VI., p. 132).

RIGHT OF WAY.
(A.)

I think it is probable that A has lost his right. It seems clear that upon acquiring the two fields, A ceased to utilise the way across B's

land, using instead a more convenient way across his own land, and so, apparently, abandoning the old rights of way; certainly, in my opinion, so far as the walled-up gateway is concerned, and, possibly, also in respect of the other, if, as I presume, the right has not been used through same for a number of years.

The question is complicated, however, by the fact that the existence of a tenant of A's land, whose part in the matter should be clearly set forth in the question, is only incidentally referred to at the end of it. In the absence of information as to when the property went out of A's occupation (presuming he ever did occupy it) and into that of a tenant, more cannot be safely said, the question arising as to how far this tenant had power to allow his lessor's rights to become lost.

Information as to when the rights were last used is also essential. P. E. PILDITCH, Fellow.

(B.)

1. The non-existence of the fences referred to does not affect the question.

2. The existence of the gate-posts in the manner mentioned (walled up) would not be sufficient to keep open the right of way.

The walling up of the opening would be taken as an indication that the right of way had been abandoned. A case is quoted, Seaman v. Vawdry, 16 Ves. 390, where non-user for over 100 years was not sufficient to destroy a prescriptive right; but, on the other hand, non-user of such a nature as is found to imply an intention of abandonment is not required to continue for any definite length of time. It proceeds upon the theory of a release, and the destruction is completed at once. (See R. v. Chorley, 12 Q.B., at p. 518.)

Questioner does not state whether there is unity of occupation in this case. If both A and B are occupied by the same person the matter would rest on a different basis.

S. B. SAUNDERS, Professional Associate.

(2) Probably A has not lost the right of passing over B's land through the gateway which has been wall d up. How long has the gateway been walled up? Has A allowed B, without objection, to do anything on his (B's) land which would interfere with this right claimed by A?

The facts to be ascertained are, Has A evinced an intention of abandoning this right of way? and, secondly, Have the acts of A been such as to induce B to believe A intended to abandon his right, and has B in such belief done some act on his land in respect of which he would be injured if A were to resume the exercise of the right which B believed A had abandoned?

If the answer to the second question is in the affirmative A will be deprived of his right, even though the answer to the first question is in the negative.

DOUGLAS WALKER, Q.C., Associate.

K

Reply to Query CLII. (Vol. VI., p. 133).

"FORMING AND METALLING ROADS.

(A.)

I assume the estate referred to is within an area where the local authorities have control over the formation of roads, and I think the vendor's liability would extend to forming and metalling the roads in accordance with a plan and specification that would meet their require

ments.

(B.)

ARTHUR GARRARD, Fellow.

It partly depends on the regulation in force within the district in which the estate is situated. If there are any bye-laws regulating the construction of new roads, these bye-laws must be complied with.

It is bad economy to attempt to make roads unless they are thoroughly done. The vendor's interest will be best served by making the roads with a good foundation of 8 in. to 12 in. hard core-slag, rough stone, &c., &c.; on this 6 in. of good rough road metal, 24 in. to 3 in. and 4 in. of metal to 2 in. gauge on this. All to be rolled, proper means of surface drainage being provided. The gutters should be kerbed and channelled. The covenant by which the purchasers are to contribute a certain sum per foot frontage will reduce the vendor's outlay, but how is that covenant re repairing and maintaining to be enforced? Who is to do the repairs? Who is to assess the amount? Who to collect it, and, in case of dispute, who is to take proceedings for the recovery of the sums apportioned ?

In course of time the presumption is that the purchasers of plots will endeavour to have these roads "taken over," and this will not be done unless and until the road authority is satisfied that they are properly made.

Under such covenants to repair and maintain, as stated in the question, the probabilities are that after the roads are made they will be allowed to go out of repair and become a thorough nuisance, until the sanitary authority steps in and exercises the powers under Sec. 150 P. H. Act, 1875, and calls upon the owners to make the roads good, after which they will be declared repairable by the inhabitants at large, thus putting a double charge on the purchasers, viz. :—

1. The sum covenanted to be paid.

2. The cost of making them good in future.

The most equitable way would be for the vendor to make them to satisfy the road authority now, and then get them "taken over."

(c.)

ROBT. GODFREY, Fellow.

Under the circumstances set forth, I am of opinion that the case would be met and the vendor's liability discharged if the roads on the estate were made as follows:

To dig out the ground over the whole surface of the carriageway of

the roads for a depth of sixteen inches, and the footways for a depth of eight inches, and cart surplus.

To form a foundation of hard core twelve inches deep in the carriageways and six inches deep in footways, and spread thereon four inches of gravel on the carriageways (in two coats of two inches each) and two inches of hoggin on the footways.

As may be seen, this is not by any means a complete specification; but having regard to the purchasers being under covenant to "contribute a certain sum per foot frontage," or, as is most likely the case, to pay directly or indirectly the whole cost of road-making, whatever it might amount to, I consider it sufficient; because, if the roads were to be properly made up, channels paved, footways flagged and kerbed, &c., prior to the erection of the buildings, not only would the purchasers' contribution per foot frontage be heavy, but by the time building operations were finished, much of the paving would be broken and kerb damaged, and considerable expenditure would be incurred to put ⚫ the roads in order again. Experience in the Metropolitan area has shown me that it is more economical for the owners to make up the roads only so far as I have indicated, and to complete the same after building operations have been brought to an end.

(D.)

C. H. LowE, Fellow.

It is somewhat difficult to answer the concluding part of the question without knowing the nature of the soil after the turf or other surface has been removed, since so much depends on the depth of the soil necessary to be removed, and the necessity of substituting hard core or other suitable material, which should be frequently rolled and consolidated before metalling and gravelling.

In some instances, such as in chalk subsoil formations, not much is necessary to be done beyond the proper formation as to gradients and sectional curves previous to the metalling, and on clay soils the burnt ballast affords good material for the primary formation.

My opinion is that, under the circumstances named, the vendors, having agreed to "form and metal" the whole of the roads on the estate, should make the roads in proper form with hard core foundations, properly rolled and consolidated, and metalled with the most suitable stone of the locality to a depth of four inches, all stones to be properly broken so as to pass through a 3 in. ring.

(E.)

W. BENNETT ROGERS, Fellow.

I think the forming and metalling" would be taken to mean that the vendors are to make up the roads and footpaths of a proper shape, and in a manner reasonably sufficient to bear the traffic which may be expected in the neighbourhood.

One would think that probably the case would be met by not less than 15 in. to 18 in. thick of good material, including a surface of gravel or broken stone for the carriageway, and half such thickness for the footways.