CUTTING DOWN ORNAMENTAL TIMBER. 113 



of the timber, and it was held by Cocldmrn 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 {Whiiti/ 

 V, Lo7-d Dillon). 



Fences and frees 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 Boole of Parish Lair, p. IC), 



Cutting down ornamental timber or immature trees hy 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 Miclclethwait v. Micldetliwait 

 (1 De Gex. & Jo. 504, and 2G 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 Avhich he himself enjoyed. 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, and all those whose 

 estate he had, and his ^and their tenants, to enter on a part or strip 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 

 righft There were other pleas, which set up the enjoyment of a 

 precisely similar right for 60 years and 30 years respectively ; and 



