CUTTING HEDGES. 135 



adjoining lands, which have once belonged to different persons, one of 

 whom was bound to repair the fences between the two, afterwards 

 become the property of the same person, the pre-existing obligation to 

 repair the fences is destroyed by the unity of ownership. It follows 

 also that where the person who has so become the owner of the entirety, 

 afterwards parts with one of the two closes, the oVliyation to repair the 

 fences will not revive, unless express words are introduced into the deed 

 of conveyance for that purpose." " As the deed of conveyance irom 

 Coffin to Boyle was not produced at the trial, the fair inference is that 

 Coffin did not bind himself by it to keep up the fence between the two 

 closes. I agree if there was proof of any such stipulation it would 

 support the allegation that the defendant ' by reason of his possession ' 

 was bound to repair, for then the gi*ant would be evidence, only of the 

 liability. Such a right to have fences repaired by the owner of adjoin- 

 ing lands, is in the nature of a grant of a distinct easement, affecting 

 the land of the grantor. The authorities referred to show that it is 

 usual in such cases to allege that the occupier is ' by virtue of his 

 possession' bound to repair" (6 B. & C. 329). 



Wilmot O.J. observed (3 Wils, Anon. 126) : " If a man turn his cattle 

 into BlacJcacre, where he has no right, and the?/ escape and stray into my 

 field for want offences, he cannot excuse himself or justify ibr his cattle 

 trespassing in my field," See Sir F. LeaMs case, and Poole v. Longuc- 

 ville (2 Saun. 285 V). In Dovaston v. Payne, on a plea of bar in avowry 

 for taking cattle damage feasant, viz., that the cattle escaped from a 

 public highway into the field through the defect of the fences, it was 

 held that such plea should show that the cattle were passing on the 

 highway when they escaped. And^^^r Eyre C.J. : " A party who would 

 take advantage of fences being out of repair as an excuse for his 

 cattle escaping from a way into the land of another, must show that he 

 was lawfully using the easement when the cattle so escaped." Heath J. 

 added: "The law is that if cattle of one man escape into the land of 

 another, it is no excuse that the fences were out of repair, if they were 

 trespassers in the place from whence they came. If it be a close, the 

 owner of the cattle must show an interest or a right to put them there. 

 If it be a way, he must show that he was lawfully using the way, for the 

 property is in the owner of the soil, subject to an easement for the 

 benefit of the public" (2 Smith's Lead. Cases). 



One tenant in common may sue another for destroying but not for 

 clipping a hedge {Voyce v. Voyce). In this action of trespass, the defen- 

 dants, who were tenants in common with the plaintiff of the hedge and 

 the close of land on which it stood, had grubbed it up ; and Holroyd J. 

 ruled that a tenancy in common could not be given in evidence under 



