1826.

DOE

d.

KENSINGTON

27.

BRINDLEY.

The learned Serjeant contended, that, if the lessor meant to insist upon the forfeiture of the lease, he should have done so in the first instance; and that he had in law been guilty of a fraud, in permitting the defendants to continue their work upon the premises after the day upon which the forfeiture had attached. In Doe d. Sheppard v. Allen (a), although it was held, that, if a lessee exercise a trade on the demised premises, by which his lease is forfeited, the landlord does not, by merely lying by, and witnessing the act for six years, waive the forfeiture; yet, Sir James Mansfield observed (b):-" There was a circumstance which had not been adverted to: It was suggested, that a great deal of money had been laid out by the defendant, in altering and improving the premises; that was not merely a circumstance for the consideration of a Court of equity, for if the plaintiff lay by, and saw the money laid out, it was a strong circumstance from which a Jury might imply consent to the alteration." So, here, the defendants laid out money upon the premises in question after the forfeiture of the lease, with the knowledge of the lessor's agent or steward, which is equivalent to an assent of the lessor himself; and neither of them raised any objection to the progress of the work. At all events, whether such assent might or might not be implied, was a question which ought to have been left to the Jury.

Lord Chief Justice BEST.-The questions, whether there had been a forfeiture of the lease by the defendants, or a waiver of the forfeiture by the assent of the lessor, were both questions of law. It was proved, that only the carcasses of two of the houses had been completed; that another house had been built in a very improper manner; and that only the sash-work of the windows had been placed in any of the houses. There was no evidence of

any work having been done upon the premises after the end of October, 1825. There can be no doubt, but that there was a forfeiture, as the houses were to be completed on the 11th of that month; and the only question waswhether there was a waiver of the forfeiture by the lessor of the plaintiff? I think, under the circumstances, there was not; and, consequently, that there is no ground to disturb the verdict.

The rest of the Court concurring—

1826.

DOE

d. KENSINGTON

บ.

BRINDLEY.

Rule refused.

COURTENAY, Esq. v. FISHER and Another.

was

Thursday, Nov. 9th. A lease reserved all trees to cept those delivered by the

the lessor, ex

which might be

steward or bailiff to the ten

ant for house

bote, &c. The

bailiff pointed

out an oak tree

April, who marked it for

THIS was an action of trespass, and brought against the defendants for cutting down and carrying away an oaktree of the plaintiff's in the parish of Knowstone, in the county of Devon. Pleas-First, Not Guilty. Secondly, that the land, on which the said oak tree, at the time when, &c. was growing, was part and parcel of certain lands situated in the said parish of Knowstone; and that, long before the time when &c., to wit, on the 28th to the tenant, in December, 1782, one Anna Maria Throckmorton seised in fee of and in the said lands; and, being so seised, by a certain indenture, made the day and year last aforesaid, between the said Anna Maria of the one part, and one Samuel Fisher of the other part; the said Anna Maria did demise and grant unto the said Samuel Fisher, his executors, administrators, and assigns, the said lands, together with all appurtenances to the same belonging, being parcel of the manor of Knowstone Beaples, except (amongst other things) all and all manner of trees, the

the purpose of being cut down

to repair a barn fell it until No vember following:-Held,

but did not

that the pointing out and mark

a sufficient delivery by the bailiff; and that,

as the landlord

had not coun

termanded his bailiff's au

thority to the tenant to cut it down, the latter was not liable in trespass.

1826. bodies and stems of all trees whatsoever, and all young COURTENAY imps and saplings, growing or to grow on the said demised

v.

FISHER.

premises: To hold the said premises unto the said Samuel Fisher, his executors, administrators, and assigns, from the expiration of a certain term of ninety-nine years, determinable as therein mentioned, for the further term of ninety-nine years from thenceforth next ensuing, if Matthew Fisher, son of the said Samuel Fisher, should so long live; that by the indenture it was provided (amongst other things), that if the said Samuel Fisher, his executors, administrators, or assigns, did or should permit or suffer the said demised premises, or any part thereof, to be ruinous and in decay, for want of reparation, (he, the said Samuel Fisher, his executors, &c., having, towards such repairs, if such there could be found on the said demised premises, sufficient house-bote, gatebote, and bar-bote, by delivery of the known steward or bailiff, for the time being, of the said manor, and not otherwise, the same to be spent on the said demised premises, and not elsewhere, and without waste or spoil), the said indenture should be void, and the term thereby granted should determine. The plea then averred, that the said Samuel Fisher entered into and upon, and became and was possessed of the said lands under and by virtue of the said indenture; and that he held and enjoyed the same to the day of his death; previously to which, he, by will, bequeathed the same to his son Matthew Fisher; that the will was duly proved by him, the said Matthew Fisher, as executor, and that he assented to such bequest; whereby he became possessed, and continued so possessed, until and at the said time when &c.; and that, being so possessed, and the said term of ninetynine years being still undetermined, and a certain barn and certain out-houses and out-buildings, standing and being upon the said demised premises, being in want of repair, the said Matthew Fisher having occasion for house-bote

to repair the same, one Anthony Bowden, being, at the time of the said supposed trespass, the known steward or bailiff of the said manor, did, a little before the time of committing of the said supposed trespass, and whilst he was such bailiff as aforesaid, and the said barn, &c., were so out of repair, to wit, on the 10th April, 1823, assign, point out, and deliver to the said Matthew Fisher, the said tree then growing and being on the said demised premises, as such house-bote, &c., for the necessary repairs of the said barn, &c., in the declaration mentioned; and thereupon, the defendants, as the servants of the said Matthew Fisher, and at his command, cut down the said tree for the purpose of using it in the said repairs, as they lawfully might for the cause aforesaid. Replication— de injuria; on which issue was joined.

At the trial, before Mr. Justice Littledale, at the last assizes at Exeter, it appeared that Bowden, the plaintiff's bailiff, on the 10th April, 1823, upon the application of Matthew Fisher for timber to repair the barn, pointed out to him the tree in question, which was then growing on the premises demised, and told him he might cut it down; that the tree was accordingly marked for the purpose of being cut down, but that it was not felled until the month of November following. It appeared also, that, in the interim between the marking and cutting down the tree, Bowden was discharged from his stewardship for misconduct.

For the plaintiff it was contended, that the assignment of the tree by the bailiff to Fisher was fraudulent; but he having failed to prove that fact, the learned Judge left it to the Jury to say, whether there had been a sufficient delivery of the tree to Fisher by the bailiff, according to the custom of the country? They found in the affirmative, and accordingly returned a verdict for the defendants.

Mr. Serjeant Taddy now applied for a rule nisi, that judgment might be entered for the plaintiff, notwith

1826.

COURTENAY

v.

FISHER.

1826.

v.

FISHER.

standing the verdict found for the defendants, on the COURTENAY ground that there was no delivery of the tree by the bailiff to Fisher. The defendants, in the second plea, alleged that the lease contained an exception of all trees on the demised premises, except those that might be delivered by the bailiff for the purpose of house-bote, &c.; that the tree in question, when pointed out by the bailiff, was standing on the demised premises, and that it was afterwards cut down by the defendants. Although the words "assign and point out," are added in the latter part of the plea, yet, the words in the lease, as therein set out, are expressly confined to such trees as might be delivered by the bailiff for the purposes of house-bote, &c. The word delivery can only be applied to a chattel, and cannot be extended to a growing tree affixed to the freehold; and a tree standing cannot be said to be delivered by being merely marked and pointed out by the lessor's bailiff for the purpose of being felled by the tenant at a subsequent period. If the bailiff had felled the tree himself, or ordered it to be felled, and afterwards caused it to be delivered to Fisher, it might have been a sufficient delivery. Although the Jury found that there was a delivery according to the custom of the country, yet such custom cannot operate so as to contravene a well known rule of law; and a delivery, within the meaning of the statute of frauds, applies only to a chattel; although there may be a delivery of seisin in the case of land, yet it is merely symbolical.-But even, if the pointing out of the tree by the bailiff in April should be deemed equivalent to a delivery, yet the tenant should have had it cut down immediately afterwards; for the landlord was, at all events, entitled to the bark and the loppings, which could not be applied to the purpose of repairing the barn; and as the tree was pointed out and marked when it might have been barked, the tenant ought not to have postponed felling it until the month of November following, whereby he deprived the plaintiff of the value of the bark.