of the defendant, who had been accustomed to plough up the paths, to the great inconvenience of the public. The right of way being established by undisputed evidence, the learned judge declared the law to be: That if the public were entitled to a road (or footway) at all, they were entitled to a good one, and that either the parish or the person occupying the field, as the custom might be, was bound to keep it in a proper state for the use of the public; that if the road (or path) led from a village to the church, he apprehended the proper persons to repair were the parish officers or way wardens; that it was easy if the farmer chose to plough up the field without ploughing up the footpath, and if he did plough it up he was liable to fine and imprisonment for destroying the road (or path); that the King's subjects were not to be put to inconvenience, merely because he would not give himself a little additional trouble in passing the plough parallel with the path ;" and the defendant was fined 40s.

Discharging water from eaves on to land subject of action by reversioner.-Building a roof with eaves, which discharge rain-water on to the land, may be injurious to the reversion, and will warrant the jury in finding that the act alleged is an injury of a permanent character to the land. But if the act be done merely with the view to establish an easement on the land, and is not in fact injurious to the reversion, the action will not lie. The action by the reversioner is independent of that by the tenant for damage to his possession. The Prescription Act (2 and 3 Will. IV., c. 71, s. 8), reserves to the reversioner three years for resisting any claim after his estate has come into possession, though the full period of prescription has previously elapsed (Tucker v. Newman).

Rule as to going 100 yards through turnpike-gate.-A person who had here come on to the turnpike-road 20 yards below the gate, and passed 300 yards through it, is liable to pay toll at a toll-gate, on a turnpike road, though he has not travelled 100 yards on the road before coming to the gate, if, after passing through the gate, he uses the road for a space which together with that he has passed over previously exceeds in all the distance of 100 yards (Horwood v. Powell).

Composition for tolls made by lessees are not illegal (Stott v. Clegg). Construction of "other thing" in Turnpike Roads Act.-The words "other thing" in 3 Geo. IV. c. 126 s. 121, which imposes a penalty on persons drawing "any timber, stone, or other thing" on a turnpike road otherwise than on a wheeled carriage, were held to apply (Cockburn C.J. dub.) only to things ejusdem generis, and therefore not to a load of straw. Judgment was therefore for the respondent, and the view of the magistrates who had dismissed the information upheld. He had used a vehicle on two wheels, so constructed, that when going down hill the front part of the vehicle came into contact with the road, and ploughed it up, acting as a kind of drag, but it was only laden with straw. The Court thought that this was a sledge, and not a carriage on wheels within the act, as the magistrates had decided; but they agreed with them that the general words in the section must be limited to things of the same nature, and calculated to produce the same mischief as those enumerated, and dismissed the appeal (County Road Board of Radnor v. Evans).

Rights of Lord over waste, planting trees, &c.-Where fences are wrongfully erected upon land subject to a right of common, the commoner in exercising his right is not restricted to pulling down so much of the fence, as it may be necessary for him to remove in order to enter on the locus in quo, but he may remove the nocumentum injuriosum. The lord may, however, make his waste beneficial to himself by pianting trees upon it, as they may afford shade to the commoner's cattle at certain seasons of the year. He may also turn in rabbits, if he leave sufficiency of common for the commoners. Such an act is not prima facie injuriosum. It is, prima facie, the exercise of his legal rights as owner of the soil (Arlett v. Ellis).

Effect of sale of timber by tenant for life to trustees of remainder man.-If a tenant for life, without impeachment of waste, sells for value "all and singular the timber and timber-like trees then growing or being, or which should thereafter grow or be upon settled estates' to trustees, for the benefit of those in remainder, he will be restrained from either cutting or thinning the timber: per Romilly M. R. (Gordon v. Woodford).

Cutting of timber by tenant for life.-Where timber ripe for cutting is cut by a tenant for life impeachable for waste, he is entitled to the income of the fund produced by the sale thereof; and the first person taking an estate unimpeachable for waste will, on coming into possession, be entitled to the capital. Where the timber so cut is not ripe for cutting, semble the produce belongs immediately to the first person having an estate of inheritance, passing over all the intermediate life estates, whether impeachable for waste or not. But whether it belongs to him or to the first tenant for life unimpeachable for waste, the cutting being a tort, the remedy is by action at law, and not in this court. Therefore under no circumstances, can a tenant for life unimpeachable for waste, be entitled, on coming into possession, to back interest on the produce of timber, whether properly or improperly cut by a previous tenant for life, impeachable for waste: per Wood V.C. (Gent v, Harrison).

Tenant for life barred by lapse of lime from receiving proceeds of timber cut down by previous tenant.-A tenant for life cut timber in excess of what he was entitled to cut; nearly 20 years after his death, the succeeding tenant for life filed a bill for an account, and to make the estate of the deceased tenant for life liable for the timber cut in

excess; and it was held by Sir J. Romilly M. R., that the plaintiff was barred by lapse of time, and the bill was dismissed with costs. Roberts v. Tunstall (4 Hare 257, 14 L.J., Ch. 184); Pryce v. Burn, (cited by Lord Alvanley, 5 Ves. 681); Gregory v. Gregory (G. Cooper, 201, s. c., Jacob 631), were cited for the plaintiffs on the question of waste; and Sibbering v. the Earl of Balcarras (3 De G. and S m., 735, and 19 L.J., Ch. 252); and Pickering v. Lord Stamford, (2 Ves. Jun. 272), cited by the defendants on the question of delay in filing the bill, were thus referred to by His Honour in his judgment. "In Pickering v. Lord Stamford the Master of the Rolls observed that the very forbearance to make the demand affords a presumption either that the claimant is conscious it was satisfied, or that he intended to relinquish it. Here the claim is made in respect of timber cut during sixteen years' enjoyment of the property by a tenant for life, who died in March 1838, and all this was at the time within the knowledge of the present plaintiff, who seeks redress in March 1858" Harcourt v. White.

Permissive waste by tenant for life.-The court in Warren v. Rudall (29, L.J. (N. S.), Ch. 543), quoted Powys v. Blagrave (24, L.J. (N. S.), Ch. 142), as a proof that the court will not interfere in a case of permissive waste by tenant for life.

Prohibition against timber cutting.-Freehold, copyhold, and leasehold estates were devised and bequeathed to A B in fee simple, subject to a limitation over, by way of executory devise, in the event of A B dying without leaving issue male living at his death, with a prohibition against his cutting timber, and with a discretion as to the copyhold and leasehold estates (held upon leases determinable with lives) that such property should be kept "fully estated" with three lives. A B died without issue male, and during his life committed various acts of waste by cutting down timber and allowing the property to become dilapidated. He also omitted to keep the copyholds and leaseholds "fully estated." It was held by Kindersley V.C., that it was competent for the testator to impose upon A B the obligation not to cut timber, although_without such prohibition he could have done so; and also that A B was under no obligation to repair, and was not liable for permissive waste, but all losses consequent upon his omission to keep the property fully estated with three lives must be borne by the estate (Blake v. Peters).

Definition of "timber" in a valuation.-The defendant having told the plaintiff, a land surveyor, that he was tenant for life of an estate, and wanted to sell every stick of timber on it, gave him an order signed by himself to value it at a certain rate per cent. The witnesses on both sides agreed that timber ordinarily meant trees of a certain growth, and the valuation included mere saplings, so that it did not show the value of the timber, and it was held by Cockburn C.J., that there was nothing to show that the word "timber" was not used in its ordinary sense, and that therefore the jury might find the valuation to be valueless (Whitty v. Lord Dillon).

Fences and trees in churchyard.-At common law the parishioners are bound to repair the fences of the churchyard, although custom

may in particular cases throw the obligation upon either the parson or the owners of particular estates. But the parishioners have no power to cut down trees or mow the grass in the churchyard, without the consent of the parson, to whom they belong. He can, however, only cut down the trees (unless they are decayed) for the repair of the church or parsonage house" (Holdsworth's Handy Book of Parish Law, p. 16).

Cutting down ornamental timber or immature trees by devisee in fee. -A devisee in fee, subject to an executory devise over, is not impeachable for waste, but the Court will restrain him from committing equitable waste, by cutting down ornamental timber or immature trees: per Wood V. C. This decision was affirmed by Lord Chancellor Campbell. His Lordship stated that he was quite willing with Wood V.C., to accept the clue by which Lord Justice Turner in Micklethwait v. Micklethwait (1 De Jex., and Jo. 504, and 26 L.J., Ch. (N. S.), 721), proposed to solve the difficulty. "If a devisor or settler occupies a mansion-house, with trees planted or left standing for ornament round or about it, or keeps such a mansion-house in a state for occupation, and devises or settles it so as to go in a course of succession, he may be reasonably presumed to anticipate that those who are to succeed him will occupy the mansion-house; and it cannot be presumed that he meant it to be deprived of that ornament which he himself enjoyed," but that he could not go as far as the Vice Chancellor, who is reported to have added, "This reasoning obviously applies to every case of an estate limited, so as to go in a course of succession. The tenant for life sans waste is as much owner of the timber as the tenant in fee; their legal rights in this respect are identical” (Turner v. Wright).

Claim of right to enter close of another and cut down trees.—To an action of trespass for cutting down and carrying away trees growing in the close of the plaintiff, the defendant pleaded an immemorial enjoyment of a right in one A B, the owner in fee of a close called "Bloody Field," and all those whose estate he had, and his and their tenants, to enter on a part or strip called a lugfall of the said close of the plaintiff, and to cut down and convert to their own use the trees growing there, such right being claimed as appurtenant to the close of the said A B, but the plea did not allege that the timber so taken was not to be used in any way in or about the said close of A B. Averment that the defendant was tenant to A B of the said close, and that the trees were cut down by the defendant in exercise of the said right. There were other pleas, which set up the enjoyment of a precisely similar right for sixty years and thirty years respectively; and also a plea alleging a grant by deed, which was lost, by the then owner in fee, of the close of the plaintiff to the then owner in fee of the close of the defendant, of the right now claimed. It was held by the Court of Common Pleas, that all the pleas were bad, as the right claimed being a right in gross could not pass with the occupation of the land. Semble also that such a right could not pass with the ownership of land; and per Willes J., "Except in the case of landlord and tenant, in order that rights over the land of one may be attached to the land of another,

so as to pass with the ownership of the land, they must be such rights as are beneficial to the owner of the dominant tenement, only so long as he remains owner of that tenement, and to other persons are of no benefit whatever." And per Erle C.J., "These pleas are bad. They set up in effect a right in the occupiers of the close occupied by the defendant to go upon the close of the plaintiff to cut and take trees; that is to take profit in the shape of wood from the land of the plaintiff; and this right is claimed as passing with the occupation of the close occupied by the defendant. All the diligence and research of Mr. Prideaux have brought before us no precedent for establishing such a right. The case of Douglass v. Kendal (Cro. Jac. 256), was one of a claim of prescription on the part of an owner of a messuage to take all thorns growing in a certain place, "to expend in the said house." This is a right claimed as appendant to an estate, and falls within the well known class of cases, where profit in the land of one is claimed as appendant to the land of another, to be used on the land on which it is appendant. That case does not bear on the present, which is a claim to cut down trees and sell them, or dispose of them in any other way that the claimant pleases. Then Sir Francis Barrington's case (8 Co. Litt. 136), and Liford's case (11 Co. Litt. 466), have been referred to, to show that a man may grant to A B and his heirs all the grass growing in a certain place, or any other profit arising out of his land; but these are profits in gross and stand on quite a different footing. There is no single case of such a right as is here claimed enjoyed by the occupier of a close, and passing with the occupation of the close. Hoskins v. Robins (2 Saund. 823), has been referred to, but that was a claim by a copyholder to pasture in the lord's soil. It was a claim as one of the customary tenants of the manor to have the sole and several pasture of certain lands within the manor at their will and pleasure. But there are many rights arising out of the relation of lord and tenant of a manor, which have no relation in ordinary law, and from which the validity of rights in ordinary cases cannot be inferred. Stanley v. White (14 East., 332), in which a reservation of the trees growing in a particular part of a close was held to be a reservation of the land itself, was an entirely different case to this. On the other hand, the cases cited by Mr. Smith of Clayton v. Corby (5 Q.B. 415, 14 L.J. (N.S.), Q.B. 364), [see Law of the Farm, p. 65], are strong to show that the owner of the dominant tenement could not by express grant or by prescription claim such a right as this permanently (Bailey v. Stevens).

Boughs overhanging land.-It is a nuisance if a man allows the boughs of his trees to grow so that they overhang his neighbour's land (Earl of Lonsdale v. Nelson).

Taking timber for house-bote.—In a lease for lives of a manor and demesne, the lessee covenanted to repair, and keep the premises in all needful and necessary reparations, having or taking in and upon the demised premises competent and sufficient house-bote for the doing thereof, without committing waste, and it was held by the Court of Queen's Bench that the covenant was an absolute and not