136 PROPERTY IN HEDGE CUTTINGS. 



the plea of Uhcnon tenemcntnm, but that it would have been receivable 

 iu evidence as a justilieation, under the general issue, if the defendants 

 had merely exercised that right of ownership over the subject matter of 

 the tenancy in common, -which every tenant in common may lawfully 

 do, such as clipping the hedge. As, however, iu (his case, the hedge 

 itself had been destroyed, the act of destruction rendered it impossible 

 for the plaintiff to exercise his rights as co-tenant in common with the 

 defendants, and therefore it could not be justified. The plaintiffs had 

 the verdict. 



Gazdec J. in Berriman v. Pcacocl: thus stated the rule with regard to 

 hedge ndiings : " The tenant has a general property in the cuttings of a 

 hedge, whoever cuts it. If by his permission a stranger cuts it impro- 

 perly, so as to damage the fence, that may give the landlord a ground of 

 action on the case." Here the defendant Peacock occupied land next a 

 field let by the plaintiff to one AYardell for a term of j^ears, and requested 

 the latter to lower a fence between the two properties. Some delay 

 occurring, the defendant lopped the fence himself, but carried the 

 cuttings to Wardell, the plaintiff's tenant, who said at the trial, that 

 according to the custom of the country he believed he was entitled to 

 them. Defendant cut the hedge unskilfully, but the tenant said it was 

 a good job, and the fence the better for it. The action was for trespass 

 (k hon asj), and a verdict was found for the plaintiff, with nominal 

 damages ; but the Court made a rule absolute to enter a nonsuit, and 

 considered that as the tenant adopted the acts of the defendant, no 

 action could lie by him against Peacock. Tindal C.J. thought that " it 

 would be over-refinement to say that because a small ])ortion more of a 

 fence has been cut than the tenant is entitled to cut, the landlord has a 

 right to claim it. Here, indeed, the complaint was rather as to the 

 mode than the amount of the cutting ; but the question now is, whether 

 the property in the cuttings belonged to the landlord. Now, according 

 to the old authorities, the general property in trees is in the landlord, 

 and the general property in bushes is in the tenant ; although if he 

 exceeds his right, as by grubbing up or destroying fences, he may be 

 liable to an action of waste. We should be introducing a distinction 

 never drawn befoi-e, if we were to decide that when a tenant cuts rather 

 more than he ought, the property in bushes so cut passes to the 

 landlord" (9 Bing. 384). 



With respect to stealing or injurwg trees and shrnhs of different values, 

 roots and vegetables, as well as fences and gates and stiles, see 7 & 8 

 Geo. lY. c. 29, ss. 38-43, and 7 & 8 Geo. IV. c. 30, ss. 19-24. It was 

 lield in lifg. v. WJi'deman, that section 19 of the latter act (The Malicious 

 Trespass Act) does not apply to consequent ial injury, but means injury 



