LANDLORD ENTERING TO CUT TREES. 127 



timber, the proceeds of which were invested and the interest paid to 

 him for life, and on A.'s death B. claimed the proceeds of the timber 

 for his own use, and C. the reversioner in fee, resisted the claim, on 

 the ground that they formed part of the corpus of the estate, it was 

 held by Shadivell V.C, in conformity with Waldo v, Waldo, that B. was 

 entitled to receive the proceeds {Phllipps v. Barlow). 



In an action of waste for cutting timber, the defendant cannot give 

 in evidence, even in mitigation of damages, that the timber ivas cut for 

 the purpose of neccssarij repairs, but turning out unfit for the purpose 

 was exchanged for other timber, which was applied to the repairs 

 {Simmons v. Norton). He should have specially pleaded that he cut it 

 for repairs, and he was bound to confine himself to fell such trees as 

 were proper for repairs. And per Bosajiquet J., though the tenant may 

 fell trees for necessary botes, he must at his own peril select such as are 

 fit for the purpose, and employ them accordingly. 



Such a clause in a lease as "all the hedges, trees, thorn hushes, fences, 

 ivith the lop and top, are reserved to tlie landlord," was decided in 

 Hewitt V. Sir G. Ishcwi to afford evidence of leave and licence, if tlie 

 landlord enters and, having cut down some trees, digs sawpits in the 

 land for the purpose of sawing the timber. Here the plaintiff was 

 tenant to the defendant, of a farm under a parol demise, which con- 

 tained the above stipulation, on which (although he gave evidence that 

 the act was done with plaintiff's permission) the cTcfendant principally 

 relied. Maule J. directed the jury that the stipulation in the lease 

 afforded evidence of leave and licence, and tlie Court of Exchequer 

 refused to set aside a verdict for the defendant. And per Farlce B. : 

 " This stipulation could not operate as a grant or an easement, because 

 it is not under seal. It can only operate as a licence from time to 

 time to enter upon the land {Wood v. LeadUtter, Kavanagh v. Gudije). 

 In Liford's case (11 Eep. 51 l) it was resolved, 'that when the lessor 

 excepted the trees, and afterwards had an intention to sell them, the 

 law gave him, and them who would buy, a power, as incident to the 

 exception, to enter and show the trees to those who would have them, 

 for without sight none would buy, and without entry they could not 

 see them.' So that, according to the authority of that case, wherever 

 trees are excepted from a demise there is by implication right in the 

 landlord to enter the land, and cut the trees at all reasonable times. 

 If, indeed, he leaves them on the laud for an unreasonable time, he 

 does more than the law authorizes him to do. But here there was no 

 evidence of that." 



Williams V. Currie was an aggravated case of trespass on the part 

 of the defendant, who was landlord to the plaintiff of four grass 



