APPLE-FARM LEASE. 121 



time, and that he could not be rated in any one rate for more than that 

 amount. 



It was held by Jlcl/or, Lush, and Archihald, JJ. (disscnticnte, Cock- 

 burn, C.J.) that the appellant ought to be rated in each rate in respect 

 of ten acres at their enhanced value. 



A bill will lie to restrain a tenant for life from cutting clown underwood 

 and timber generally of an insufficient growth {Bnjdijes v. Stcpliens) ; 

 and according to Picjoi v. Bulloclc, he has no property in the underwood 

 till his estate comes into possession, and therefore he cannot have an 

 account of what was cut wrongfully by a preceding tenant. In Gcdwatj 

 V. Baher it was held by the House of Lords, affirming the judgment of 

 the Court below, that a clause in an indenture of lease reserving out of 

 the demise to the lessor " all wood and underwood, timber and timber 

 trees standing, growing, or being thereon, or at any time thereafter to 

 stand or grow thereon, with full and free liberty of ingress and egress to 

 take and carry away the same," applies only to trees standing when the 

 lease was granted, and not to those afterwards planted by the tenant. 

 Its operation is so restricted by the 23 & 24 Geo. III. c. 39. 



In a Devonshire apple farm lease, by an exception of " all trees, 

 woods, coppice, wood grounds, of Avhat kind or growth soever," apple 

 trees are not excepted {WijndJumi v. Way). In Bullen y. Denning it 

 was held by the Court of King's Bench that where in a cider county a 

 lessor demises " all timber and other trees, but not the annual fruit 

 thereof," apple trees are not within the exception. This was a case of 

 trespass for felling the plaintiff's apple trees, and a verdict having been 

 found for the plaintiff, the Court made the rule absolute to enter a 

 nonsuit. Littlcdale, J. said, " The word trees, generally speaking, 

 means wood applicable to buildings, and does not include orchard trees. 

 The words 'not the annual fruit thereof may apply either to the 

 produce of orchard or to that of timber trees. Those words may there- 

 fore be satisfied without holding them to apply to the produce of 

 orchard trees. And as it is doubtful whether it was intended to except 

 fruit trees, the words of the exception must be construed favourably for 

 the lessee. I think we are therefore bound to hold that fruit trees do 

 not come within it." Baijley J. also observed in the course of his judg- 

 ment that " the term fruit in legal acceptation is not confined to the 

 produce of those trees which in popular language are called fruit trees, 

 but applies also to the produce of the oak, elm, and walnut trees. In 

 the old books the lessee is stated to have an interest in the trees in 

 respect of the shade for cattle and the fruit thereof. Looking at the 

 nature of the subject-matter of demise, which is land situate in a 

 county where cider is made, and where apples constitute a great part of 



