The provision that occupiers of land may elect to be assessed under Schedule D instead of B does not, in my opinion, affect this question. The assessment may still be under Schedule B, but the income tax thereon may be discharged; otherwise, where the occupiers are not liable to income tax at all the titheowner would lose his tithe.

(B.)

F. PUNCHARD, Fellow.

(1) Tithe is a payment issuing out of the land. Neither the owner or occupier are personally liable for any tithe rent-charge, the land alone being liable. The owner, if aggrieved, must apply to the County Court. If the claim can be shewn to exceed two-thirds of the annual value as assessed to income tax, then the authorities have power to remit the whole of the amount so claimed in excess.

(2) This is a common occurrence. If correct accounts are produced to the satisfaction of the Commissioners showing that no profits have been made, then the occupation is not assessable to income tax under Schedule B.

(3) No; the onus of proving the land to be barren rests on the owner. Land of fair natural quality is not considered barren even although the costs of breaking up from a waste state and bringing into cultivation exceeds the value of the returns.

(4) A person who is engaged in farming only, and who, owing to unfavourable circumstances, fails to realise a profit and hence becomes exempt under Schedule B, is not liable to be assessed under Schedule D except he is engaged in some other trade or profession; in neither case would this lighten the burden of tithe.

(c.)

GILBERT MURRAY, Fellow.

The County Court has to be satisfied that the tithe rent-charge for the year exceeds two-thirds of the annual value of the lands according to Schedule B, and if the annual value of the land is not entered in Schedule B, the Income Tax Commissioners will, on the application of the owner or occupier of the lands, ascertain and certify such annual value.

It appears to me that remission does not depend on whether the lands are let to a tenant or farmed by the owner, and a loss sustained, nor on whether the tax itself has or has not been paid, but upon the annual value as set forth in Schedule B only.

It should be borne in mind that the section does not apply to any lands other than those used solely for agricultural or pastoral purposes, or for the growth of timber or underwood.

HARLEY M. GRELLIER, Fellow.

Reply to Query CLXXI. (Vol. VI., p. 238).

DIDAPIDATIONS-SURVEYOR'S CHARGES.

A lessor cannot, after the expiration of a lease, recover from the lessee the costs of preparing and serving a schedule of dilapidations.

He may, however, proceed by bringing an action, when the costs will be in the discretion of the Court.

Section 2 of the Conveyancing Act of 1892 does not apply.

The Conveyancing Act of 1881, whilst compelling a lessor to serve a schedule of dilapidations before enforcing a right of re-entry, did not provide for the costs, and when it was decided by the Court of Appeal in the case of The Skinners' Company v. Knight and Others,* that the costs were not recoverable under the Act of 1881, steps were taken by the legal profession to remedy what was regarded as a hardship on owners, and the Act of 1892 was the result.

J. H. SHERWIN, Fellow.

Reply to Query CLXXII. (Vol. VI., p. 238).

THE METROPOLIS MANAGEMENT ACT-COMBINED DRAINAGE-COSTS OF REPAIR. (A.)

The enquirer emphasises the fact of no "order" for the combined drainage, as required by Sec. 250 (not 150) of the Metropolis Management Act having been produced by the Vestry, and suggests that the drain might have been constructed prior to 1856; in that case an order was probably made by the Metropolitan Commissioners of Sewers, and Sec. 112 of 25 & 26 Vic., c. 102, extends the definition of "drain" in the former section to all combined drainage sanctioned by them.

It seems to me that, on discovering the combination of the drainage of A's house with that of the adjoining owner, A should have informed the Vestry of the fact, leaving them to serve any further notices upon those concerned, and have also abstained from the execution of any work on that part of the drainage system which was used by the adjoining owner. As the whole of the reconstruction was apparently performed without demur, I cannot see that the vestry are in any way liable. A should, in any case, be at the cost of all work executed on his portion of the drain above the junction with that of the adjoining house. I, therefore, reply to the questions asked as follows:

1. (a) & (b). No; the only chance of recoupment is by amicable arrangement with the adjoining owner for the apportionment of the expense incurred in reconstructing that section of the drainage through which the flow from the next house takes place.

2. I know of none.

3. I should say the custom is to deny their liability.

4. I think not.

CHARLES H. Lowe, Fellow.

See" Professional Notes," vol. v., p. 151.

(B.)

Unless it can be shewn that the two houses were drained in one combined operation by order of the vestry, the presumption is that the owner of the adjoining house has a right of drainage through the premises of A. It may be that when the drain was made there was unity of possession of both houses, and that A's house was subsequently sold off subject to the easement of drainage; or, the easement may have been gained by prescriptive user. If the drain were made previous to 1855, as the questioner suggests, that would be before the passing of the Metropolis Local Management Act, and it could not have been done as a combined operation by order of the vestry under that Act. 1. A is not entitled to recover from the vestry

(a) Except in the event of the drainage, on inspection, being found to be not defective, in which case the whole cost (of inspection) is recoverable.

(b) Nor does the fact that a portion of the drain is a combined drain make any difference.

2. I know of no case which governs this.

3. I know of no case in which a vestry has repaid one of the
owners of a number of houses drained by a combined opera-
tion, for repairs done by him by their order to the drain used
by more than one house, merely because the drain was used
by other houses as well as by the house of such owner.
4. The magistrate having suggested postponement for the work to
be done does not appear to me to affect the case.

These replies must be taken subject to this:-That if it can be proved that the houses were drained by a combined operation by order of the vestry, or by the vestry itself in default of compliance with such order, it appears to me that if the vestry now proceed under Section 85, as quoted, to do the work of repair itself, it should equitably apportion the cost on both the owners who would benefit by the work, and who, on this hypothesis, were originally forced by the vestry into an unwilling partnership in the drain. There has, however, been no case in the courts, so far as I know, where this been tested.

There is a strong case deciding that a combined drain is not a sewer repairable by the vestry. I have not its index reference, but it is, I think, about five years old, and the Poplar District Board of Works were the successful defendants. It is referred to in a letter from a surveyor in the Builder or Building News, Friday, 1st December, 1893. ARTHUR HARSTON, Fellow.

Reply to Query CLXXIII. (Vol. VI., p. 239).
RIGHT OF WAY.

Questioner does not definitely indicate the course of the way which is the subject of his enquiry. It is admitted that B has occasionally used the doors at D for ingress and egress since 1859, presumably at

between D and the spot marked "Gate," and I suppose also that the gate opens on to a public road. On these suppositions I am inclined to think that B has acquired a right of way between these points. The fact of the user having been only occasional would not prevent the acquisition of such a right by B. Lindley, L.J., in the case of Hollins v. Verney, says: "It is not required to be put in use every minute-but "the user must be such that, having regard to the nature of the right "in question, it cannot be said that the owner has not used it at any "time when he might reasonably have required to do so."

On the other hand, the mere opening of the door by B and going on to the land of A with no particular object in view, and irrespective of an association with some definite right of way such as I have referred to above, would be too vague for prescription, and would probably be found to be a trespass by B upon the land of A.

S. B. SAUNDERS, Professional Associate.

Reply to Query CLXXIV. (Vol. VI., p. 240).

PURCHASED FEEDING STUFFS-ARE HORSES CATTLE?

(A.)

It is not usual to allow compensation for feeding stuffs consumed by horses. The only instance in which I have known it done was where the chief stock of the farmer consisted of a stud of brood mares and their produce.

When the Agricultural Holdings Act of 1883 was in Committee of the House of Commons, an effort was twice made to get "horses' included amongst the stock coming under the Act, but it was defeated each time by a large majority. The chief argument against the proposal was that horses are part of the machinery of the farm. Also that horses would include hunters and horses kept and let out for hire.

There has been no legal decision under that Act as to whether or not the word "cattle "includes horses, but there have been cases under other Acts in which the word "cattle" has been held to cover severally horses, pigs, and asses. Probably much depends upon whether or not the word is used separately or, as in the Agricultural Holdings Act, in direct conjunction with other kinds of stock. In the Fertilisers and Feeding Stuffs Act the word is interpreted as meaning, inter alia, sheep, goats, swine, and horses.

F. PUNCHARD, Fellow.

(B.)

This is a point which is constantly cropping up in the settlement of the claims of an outgoing tenant, and one which frequently leads to heated discussion without leading to any definite conclusion. Whatever may be the legal definition of the word "cattle," it is obvious that the framers of the Act of 1883 in drafting this clause evidently had in

their minds the exclusion of horses, otherwise they would have been mentioned along with the animals enumerated. The solid excrement of the horse contains less water than that of neat cattle, and hence possesses greater manurial value. Where the corn is used for the feeding of horses constantly employed on the land, an allowance is generally made; when fed to horses otherwise employed, the manurial value is struck out. Half the cost of purchased corn and other feeding stuffs consumed during the last year of the tenancy is liberal; oneeighth of the cost for the last two years more nearly represents the manurial value.

GILBERT MURRAY, Fellow.