388 
Cutting Beech Woods. 
this; that as cutting the timber is the mode of cultivation, the timber is not 
to be kept as part of the inheritance but part, so. to say, of the annual fruits 
of the land, and in these cases the same kind of cultivation may be carried 
on by the tenant for life that has been carried on by the settlor on the 
estate, and the timber so cut down periodically, in due course, is looked upon 
as the annual profit of the estate, and tlierefore goes to the tenant for life/’ 
In tlie case before me it was contended for the plaintifls that in this passage 
the late Master of the Holls was referring not to timber trees of twenty 
years’ growth, but to underwood or the like. This contention is inad- 
missible ; it is opposed to the obvious sense of the passage and to the plain 
and direct language of the learned judge, who was dealing with timber in 
the strict sense of the term, and with an exception to the general law. It 
was further contended for the plaintiffs that the statement was a mere 
dictum ; that it is not supported by authority, ancient or modern ; that it is 
contrary to principle, and that it is not law ; but it appears to me that I am 
not at liberty to refuse to follow this deliberate statement of the law unless 
I am convinced that it is erroneous, which I am not. 
The learned J udge then discussed various old authorities, and in 
the result held that not only the beech trees, but also the oaks, 
ashes, and elms that had been felled by Lady Dashwood in the 
management of the woods, as above described, had been properly 
felled, and that Lady Dashwood had not exceeded her rights, nor 
were her executors accountable to the plaintiff for the timber which 
she had so cut down. 
The defendants appealed fi’om this decision, and the appeal was 
heard by Lords Justices Lindley, Bowen, and Kay. The two former 
agreed witli Mr. Justice Chitty, but Loi’d Justice Kay did not. In 
his Lordship’s judgment, the usage which had been proved as to the 
mode in which the woods in Buckinghamshire had been treated 
could not control the ordinary law of waste. Such usages applied 
to cases between landlord and tenant or to other persons who had 
contracted with each other, but not between a tenant for life and 
remainder-man. Custom, that is an immemorial or prescriptive 
custom alone, could control the law of waste, and to substantiate 
their defence in this respect the defendants ought at least to have 
proved that from time immemorial a limited owner, though impeach- 
able for waste, had been accustomed to exercise the right to cut the 
timber in the way in which Lady Dashwood had cut it. But there 
was not the slightest evidence that any limited owner who was 
impeachable for waste ever attempted to exercise any such right, 
and the usage for absolute owners to manage the woods in the way 
in which the woods of the West Wycombe estate had been managed 
could not justify a limited owner so impeachable in doing the same. 
His Lordship’s judgment then contained the following passage, 
which I cite at length, because it seems to me to be of great impor- 
tance as regards agricultural customs or usages : — 
It was argued, however, tliat the evidence establishes not a custom for a 
limited owner so to cut timber, but a usage of management so universal in 
the county of Bucks that the testator must have intended that Lady Dash- 
wood shoidd continue it during her life. 
