under his influence and direction. The evidence | further establishes to my satisfaction that the testatrix communicated the contents of her will to Mr. Badley. Although it has not been, and indeed cannot be, shown that he distinctly promised to perform her intention, it must be taken that she believed him to have silently acquiesced in her purpose. The decree, however, must be that the defts. Badley are trustees of the residuary real estate for the heirs-at-law of the testatrix; and of the residuary personalty for her next of kin. The defts. the executors must be allowed, out of the pure personalty, any sums already applied by them in charity; and the costs of all parties must be paid out of the estate. Solicitors for the plts., Clarke, Woodcock, and Ryland. Solicitors for the defts., Ashurst, Morris, and Co.; S. W. Johnson. A gift for the repair of a vault and tombstone in a churchyard is not within the provisions of 43 Geo. 3, c. 108 Church Building Act), and is bad. Hoare. Osborne, 1 Law Rep. Eq. Cas. 585; 14 L. T. Rep. N. S. 9, followed. Where a bequest is valid as to part, and invalid as to the rest, and the court cannot, without inquiry, ascertain into what proportions the gift ought to be divided for the good and bad objects respectively, it will direct such an inquiry. This petition raised a question as to whether a gift in a will of 8007. to trustees upon trust to apply the interest to repair a monument in a church, and a tomb and railing in a churchyard, was valid. Joseph James Ward Rigley, who died in Nov. 1857, by his will gave to John Johnson and James Daley 8002 upon trust to invest it in the funds, with power to vary securities, and apply the whole of the dividends and interest in the expenses of a journey once in every year for ever after his decease to be taken by his trustees, or one of them, or the survivor, his executors, administrators, and assigns, or some other proper person appointed by them in writing, to the parish church of Edwinstowe, in the county of Nottingham, to view the condition of the vault and tablet thereinafter mentioned, and in cleaning, glazing with stained and figured glass, and painting and keeping up from time to time in the like clean, ornamental, decorative, sound, and good order and repair, and condition in all respects, the testator's family vault in the churchyard of the said parish church of Edwinstowe, and the tombstone over the same, and the iron fence surrounding it, and the yew-tree growing near the same, and also the monumental tablet erected by him to the memory of his family in the parish church of Edwinstowe, and the fabric whereon and under which the same stood, and the railing in front thereof; and the residue of the income the testator directed to be paid over to the minister and churchwardens for the time being of the said parish and parish church, to be by them laid out in the purchase of clothing for the poor of the parish. Upon the death of the testator, the trustees invested the 800% in the purchase of stock, and [V.C. K. applied the dividends, as directed in the will, by defraying the expenses of their annual journeys, and paying a guinea a-year for cleaning and attending to the tombs and railings; and they also purchased stained glass for the window of a recess or chapel adjoining to and forming part of the church in which the family monument stood; the monument stood under an open arch opening into the church, and an iron railing reached across the arch. The trustees continued these disbursements for some years, but the residuary legatees having been advised that the gift as to the monument in the churchyard was void, the question was raised, and the trustees paid the fund into court under the The residuary legatees preTrustee Relief Act. sented this petition. C. C. Barber, in support of the petition, maintained that the present case could not be distinguished from Hoare v. Osborne (infra); that the gift as to the objects within the church was good, and as to those in the churchyard void; and that the fund must therefore be divided into equal shares, and a moiety go to the residuary legatees. Glasse, Q. C. for the tenant for life of the residue. W. Pearson, for the vicar and churchwardens, did not dispute the decision in Houre v. Osborne, but submitted that the gift for the repair of the vault and tombstone came within the provisions of 43 Geo. 3, c. 108 (Church Building Act). Both gifts were good. C. C. Barber in reply. Cases cited: Hoare v. Osborne, 1 Law Rep. Eq. Ca. 585; 14 L. T. Fowler v. Fowler, 33 Beav. 161; Attorney-General v. Hartley, 4 Bro. C. C. 412; The 43 Geo. 3, c. 108, s. 1, enacted, That any person might by deed enrolled, or by his or her last will and testament, vest in any person or persons his or her estate, or any part thereof, not exceeding in value 5007, "for or towards the erecting, rebuilding, repairing, purchasing, or providing any church or chapel where the liturgy and rites of the said united church were or should be used or observed or of any outbuildings, offices, churchyard, or glebe for the same respectively, &c." The VICE-CHANCELLOR said:-I must adhere to the decision come to in Fowler v. Fowler (supra) before the M. R., and in Hoare v. Osborne (supra), before myself; and I do not feel any difficulty in concluding that, so far as relates to the monument, and the fabric under which it stands, with the railing connected with it, these are all objects within the church, and the gift in respect of them is good. I cannot say that I feel more difficulty with respect to the other objects of the testator's gift, namely, the vault or tomb in the churchyard, with the fencing and yew tree. It appears to me that as to those I must hold that the gift is not good. It has been contended that if the statute 43 Geo. 3, c. 108, which was not brought before the attention of the court in the other cases, had been cited, those cases would have been decided otherwise. I think that is not so, able as the argument was on the statute, and I think that the repair of a tomb in the churchyard is not within the scope of the objects of that Act. That being so, what is to be done? If the court can ascertain how much is required for one object and how much for another, it will then find in the proportions thus ascertained; but in doing so, the question as to what is the number of objects arises, and whether the case is such that the court sees, à priori, that it is utterly impossible to deter mine how much is wanted for each, in which case it will direct an inquiry. I can find no difficulty in saying that the objects within the church require more for their reparation than those on the outside; but what is the proportion I cannot venture to express an opinion. I shall therefore direct an inquiry as to how much will be required de anno in annum to' repair the objects specified within the church and in the churchyard; although, if one be ascertained, it may not be necessary to ascertain the other, for that would be surplus. The inquiry must be prefaced by a declaration that one gift as to the objects within the church is good, the other invalid When the inquiry comes back, the question will arise, which I think ought not to be dealt with now, whether the objects of the gift are two or three, or how many they are. The petition must, therefore, stand over till the inquiry is answered. Solicitors: Dobinson and Geare; Taylor, Hoare, and Taylor. Nov. 20, 21, 24, and 26. MACKENNA v. PARKES. [V.C. K. the presence of these diseases might very probably result in death by apoplexy. The evidence also showed that Dr. Parkes was himself aware that he was afflicted with "Bright's disease," and that his life was precarious. Dr. Parkes introduced the plt. to about twelve or fourteen of his patients, and notice of the partnership was given to several benefit societies which Dr. Parkes attended; but beyond this Dr. Parkes had been unable to give the plt. any further introductions in his business. After Dr. Parkes's death, when the bills of exchange fell due, plt. refused to pay them, and Mrs. Parkes brought an action upon them, whereupon the plt. instituted this suit. He had given notice at Dr. Parkes's death that he intended, under the clause in the articles of partnership, to purchase the share of his deceased partner at a valuation. He denied that he was aware at the time when the articles of partnership were executed that Dr. Parkes was afflicted with "Bright's disease," but it was admitted that he knew it prior to Dr. Parkes's death. Some of the evidence in the case is referred to in the V. C.'s judgment. Glasse, Q. C. and Lindley, for the plt., maintained Partnership-Consideration-Compensation—Accounts. that the contract had not been performed, and that Where A., a medical practitioner, entered into an agreement with B., another medical practitioner, to take B. into partnership, and introduce him to his patients, &c., in consideration of a fixed sum, and it was held, upon the evidence, that B. was not aware till after the date of the contract that A. was suffering from a fatal disease, of which he died a few months afterwards, and that a very limited introduction took place, The Court decreed an account, preceded by a declaration that A. was entitled to be remitted a reasonable portion of the consideration money, to be ascertained and paid to him. This suit was instituted by Dr. Mackenna, a medical practitioner, against Sarah Parkes, the widow and sole executrix of Dr. Parkes, also a medical practitioner, to restrain an action upon two bills of exchange, for an account, and for a return of the whole or some portion of a sum of 1250l. paid by Dr. Mackenna as a consideration for his being taken as a partner of Dr. Parkes. The circumstances of the case were as follows: Dr. Parkes was the owner of an established medical practice in Great Marlborough-street, London, and on the 28th July 1863 he and Dr. Mackenna entered into a written agreement for a partnership, which was to continue for twenty-one years; Dr. Parkes was to take an active part in the business for three years, and to introduce the plt. to his patients; Dr. Mackenna was to pay 12501. as the consideration for his being taken as a partner; viz., 650l. to be paid down, and 600l. by two bills of exchange of 300l. each, one at twelve months, and the other at two years after date. The articles of partnership contained a provision that on the death of either of the partners the survivor might at his option purchase the share of the deceased partner at a valuation. Dr. Parkes's business had produced from 1000l. to 14001. a-year, and his patients numbered between 300 and 400. The arrangement as to the partnership had been conducted by a Mr. Wilson, who had fixed the consideration at 12507. Shortly after the execution of the deed of partnership Dr. Parkes was compelled by ill-health to be absent from London for several months, and on the 11th Dec. 1863 he died of apoplexy. It appeared from the evidence that for a considerable time previous to his death Dr. Parkes had been afflicted with gout, and with an affection of the kidneys called Bright's disease," and it was also in evidence that 66 it had been entered into, and the amount of premium had been fixed, while the plt. was in ignorance that Dr. Parkes was suffering from a fatal disease. The circumstances of the case were sufficient to entitle the plt. to relief. They cited Hirst v. Tolson, 2 M. & G. 134; Freeland v. Standish, 2 Sm. & G. 429; maintained that the plt. must be held to have Baily, Q. C. and W. W. Cooper, for the deft, affirmed the contract, inasmuch as he made no complaint at the time when, on his own admission, he first discovered that Dr. Parkes was suffering from Bright's disease, and, upon the death of Dr. Parkes, he even elected to purchase his partner's share in the business. The plt. had no case upon the evidence. Glasse, Q. C. in reply. The VICE-CHANCELLOR, after going through the facts, said that this was a simple case of a medical practitioner who, owing to bad health wished for some one to assist him, and took a partner upon certain terms. One important term was introduction to patients, who would naturally confide in one recommended to them by their own medical attendant; but it was clear that this was only done to an extremely limited extent, and that for several months Dr. Parkes was absent from illhealth, and no doubt the introduction to patients did not take place as provided for from this cause. The medical evidence established the fact that Dr. Parkes was suffering from a disease known as "Bright's disease," and that the disease was such that his condition was extremely precarious, and yet that he might live for years. He had gout also, and this combination of diseases led to apoplexy, of which he died. The important fact of the existence of these diseases was not known to Mr. Wilson, who arranged the terms of the partnership, as he deposed that, had he been aware of it, it would have formed a material element in fixing the amount of consideration to be paid by Dr. Mackenna. Prime facie, if the plt. had not got the benefit, he was not liable to the obligation of paying the full amount. The question then was, whether Dr. Mackenna knew of Dr. Parkes's state of health when the agreement was entered into. There was a conflict of evidence. Mr. V.C. S.] BURBEY v. BURBEY-THE EARL OF NORBURY V. KITCHIN. Wells, Dr. Parkes's assistant, swore that he told the dition to the plt., and that the plt. was content to adopt the clause in the agreement for three months' absence, not being told of it; but taking all the matters together, the conclusion must be that Dr. Mackenna was not aware of the ailment under which Dr. Parkes laboured at the time he executed the agreement, nor till some time after, and that, when he knew it, he did not assert his rights, because, probably as a medical man, he considered it possible that Dr. Parkes might live for years. The plt. did not get the introduction he bargained for, and the business naturally fell off. Under these circumstances, according to the cases and the law of this court, a party might come, where accounts were to be taken, between him and another person, and ask for relief with respect to the nonperformance of the agreement between them. In this case it was not disputed that there must be an account, and, in taking that account, the plt. must be debited with the 6007, but credited with so much as ought to be repaid to him. This must be preceded by a declaration that he was entitled to be remitted a reasonable portion of the 12507.; the amount, when ascertained, to be paid to the plt. No costs to either side. It would not be necessary to come back to the court. Solicitors: White, Borrett, and White; E. Lewis. V. C. STUART'S COURT. Reported by EDWARD WINSLOW, Esq., Barrister-at-Law. Thursday, Jan. 17. BURBEY V. BURBEY. Administration-Bequest of stock-Erroneous description-Satisfaction. A testator bequeathed to each of his six cousins "3000Z., Three per Cent. Consols, part of that sum standing in his name in the said funds." The testator's estate at the time of his death was insufficient to satisfy the whole of the legacies. Amongst other property he was entitled to 11,000l. New Three per Cent. Annuities, but to no Consols or any other stock: Held, that the legatees were entitled to the 11,000l. stock in equal shares. This was an administration suit. [V.C. W. of 11,000l. New Three per Cent. Annuities, standing in his name in the books at the Bank of England, but not to any Three per Cent. Consolidated Annuities, or and other Government security. Various questions of difficulty having arisen as to the true construction of the will, the executors declined to administer the estate without the court's guidance, alleging (inter alia) that they were unable safely to pay the six legacies of 30007. Three per Cent. Consols. This bill was consequently filed by one of the legatees, praying that the rights and interest of himself and defts. and of all other persons in and to the testator's real and personal estate might be ascertained and declared; that the real and personal estates might be administered under the direction of the court; and that such accounts, might be taken, directions given, and inquiries made, as might be necessary for the purposes of the sale. Greene, Q.C., and Haynes, for the plt., submitted that the legatees were entitled to the payment of In any their legacies out of the whole of the estate. case they ought to be allowed to have the stock standing in the testator's name apportioned amongst The mere fact of its being a different fund and amount to that bequeathed by the testator could not prejudice their claim. They cited Sparrow v. Josselyn 16 Beav. 135; Door v. Geary, 1 Ves. sen. 255. Sawrey v. Rumney, 16 Jur. N.S. 1110. them. Renshaw appeared for two of the defts. in the same interest with the plt. He referred to Attwater v. Attwater, 18 Beav. 330; and Bevan v. The Attorney-General, 4 Giff. 361; 9 L. T. Bacon, Q.C., Archibald Smith, and Mellor Renshaw appeared for the other defts. The VICE-CHANCELLOR said that he was of opinion that the six legatees named in the will were entitled to the 11,000l. stock standing in the testator's name in equal shares. Solicitor, E. Hodgkinson. V. C. WOOD'S COURT. Reported by W. H. BENNET and R. T. BOULT, Esqrs, Barristers-at-Law. Monday, Nov. 26. THE EARL OF NORBURY v. KITCHIN. Richard Burbey by his will, dated 29th May 1861, Injunction-Obstruction to flow of river-Nominat disposed of his property as follows: Iappoint John Burbey, Thomas Burbey, executors. Knowing that without a will all relatives of equal degrees would take equal shares, I wish on account of the unequal portions thus going to them to make additional gifts in favour of those hereinafter mentioned. I give the several sums hereinafter mentioned, that is to say, the sum of 30001. Three per Cent. Consols, part of that now standing in my name in the said funds, to each of those my cousins, John Burbey, Emily Bradley Burbey, Thos. Burbey, George Burbey, Louisa Davidson Burbey, and Robert Burbey, in addition to and not in any way as a substitute for the shares and properties which they would otherwise equally take together with my cousins the Carters, in New Brunswick, or elsewhere. And I declare that every part or share that may be taken by any female cousin or cousins shall not be liable to the debt or control of any husband of any such female cousin or cousins. And as to all the residue of all my property, not heretofore disposed of between all my cousins, I give and bequeath unto all my cousins in all respects. The testator died in May 1861, leaving about seventeen first cousins, and upwards of fifty first cousins once removed, and second cousins surviving him. The testator's estate at the time of his death was insufficient to satisfy the whole of the above legacies. Amongst other property he was entitled to the sum damages-Costs. A riparian owner has a right, irrespective of any actual damage sustained by him, to complain of an obstruction to a stream. The bill in this suit was filed, in March 1859, to restrain the deft. Joseph Kitchin from pumping away the waters of a stream by means of an apparatus in the bill mentioned, or from damming up, obstructing,, or altering the natural flow of a small stream which took its rise in the deft.'s land, and flowed thence into and through pleasure-grounds belonging to the plt. The deft. had dammed up the stream shortly above where it entered the plt.'s land by means of a penstock or valve, placed in an old stone dam, so as to make a head to feed the water-wheel of a waterengine with a forcing pump, which he had erected on the 24th July 1861. His Honour directed the bill to be retained for twelve months with liberty to bring an action. An issue at law was tried before Martin, B., at Maidstone, in 1862. The jury found Q. B.] MITCHELL V. LEE-LORD FITZHARDINGE v. PRITCHETT AND OTHERS. | [Q. B. for the deft. that the quantity of water abstracted | Secondly, is a mortgagee a person having a lien was not excessive; but they found for the plt. that within sect. 29 of the C. L. P. A. 1800? He is. the deft. had obstructed the flow of the water, and [Lusu, J.-How could these mortgagees recover that the mode of obstructing the water was unlawful, this rent either at law or equity?] The mortgagees and they suggested the removal of the penstock, may get possession of the land, and recover the but gave the plt. only nominal damages, and the rents as mesne profits. [BLACKBURN, J. -How do Judge refused to certify for costs. The deft. then you make out any equitable claim on these rents?] moved to dismiss for want of prosecution, and the Having referred to the case of Hickman v. Machin, cause had been ordered to be set down. 4 H. & N. 716, the learned counsel abandoned this point. G. M. Giffard, Q. C. and G. O. Morgan now moved for the injunction. Manisty, Q. C. in support of the rule.-The C. L. P. A. 1854 (sects. 61 et seq.) was passed not Locock Webb (with him the Attorney-General, Sir merely with the view of extending the remedy by J. Rolt) for the deft. The VICE-CHANCELLOR said that, although the jury had given the plt. merely nominal damages, yet he could do nothing inconsistent with the recent decision in Bickett v. Morris, 1 Law Rep. H. L. Ch. Ap. 47; 14 L. T. Rep. N. S. 835, which decided that a riparian owner had a right, irrespective of any actual damage sustained by him, to complain of an obstruction to a stream. Considering that the jury had found that the deft. had obstructed the flow of the stream, he should grant an injunction, but without costs, to restrain the deft. from damming up or obstructing the natural flow of the stream, but there would be no injunction as to pumping away the water, nor did he think the simple use of a water-wheel in a stream an obstruction to the flow within the meaning of Bickett v. Morris. Solicitor for the plt., F. W. Blake. Rule nisi calling on the claimants Jones and Lee to state the nature of their claim, and to show cause why the judgment-creditor should not have execution against the rent accruing due from one Ives. The judgment-creditor had attached rent accruing due under a parol demise from Ives to the judgment-debtor. The judgment-debtor had mortgaged the premises to Jones and Lee, but was allowed to remain in possession, let the property, and receive the rents. The judgment-debtor let to Ives, who became tenant after the mortgage. After the rule nisi had been obtained attaching the accruing rent, the mortgagees Jones and Lee gave notice to Ives not to pay his rent to the judgment-debtor. Tomlinson showed cause.-First, ordinary debts only, and not rents, are attachable under the C. L. P. A. 1854, s. 61. Landlords have a remedy by distress, re-entry, and other ways, for nonpayment of rent; and they will be prejudiced if the statute is held to include rents. The statute was intended not to interfere with the relation of landlord and tenant. Under the custom of foreign attachment in London rent could not be attached: Com. Dig. "Attachment," A.; Locke on Foreign Attachment, 4; foreign attachnient, but further to extend the right of execution to things not the subject of execution previously. The language of sect. 61 is most extensive, and comprehends all debts. Rent was the subject of an action of debt, and clearly comes within the language of the statute. No such limitation has up to the present time been put upon the language of the statute. COCKBURN, C. J.-This rule must be made absolute. The construction we must put upon the statute may operate in some respect to the prejudice of landlords, and the result may be that they will lose those remedies given to them by law wirile the rent is tied up by an attachment obtained by a judgment-creditor; yet the language of the statute is too strong to put any other construction upon it. The words are "all debts owing or accruing," without any restriction or limitation whatever. Rent is a debt, although a landlord may have a summary remedy by distress for nonpayment of it. The attachment of rents may be attended with inconvenience by preventing the suminary remedy by distress, but that is no reason why we should put a limitation on the construction of the statute which the Legislature has not thought fit to put. BLACKBURN, J.-I am of the same opinion. Mr. Tomlinson was not able to show any specific lien on the part of the mortgagee to prevent his claim being barred, and therefore he was obliged to rely on the point that rent could not be attached, because the landlord had a collateral remedy by distress which would be prejudiced by the attachment. The suspension of the remedy by distress may produce inconvenience to the landlord, but a creditor whose debt is secured by a warrant of attorney is he could not sign judgment pending the attachin the same position, because if a debt is attached ment. So also a creditor who has proceeded to judgment, and lodged a writ of execution with the of the Act are too strong not to hold them to include sheriff, may be prejudiced. Nevertheless the words rent. MELLOR and Lusu, JJ. concurred. Friday, Jan. 18. Rale refused. LORD FITZHARDINGE v. PRITCHETT AND OTHERS. Poor-rate-Saleable underwoods- What are. Certain woods covering hundreds of acres in the county of Gloucester, and consisting mainly of beech trees intermixed to a small extent with hazel and ash trees, were treated in this way: A few maiden trees were left in different parts, and the other trees were cut down to stools, from which shoots grew out. The woods are cut annually in patches, and each patch is cat on an average once in thirty years, and that portion of the wood so cut which is large enough is sold as "pit timber" for use in coul-mines, and the rest for "brushwood" or "firewood." The woods ar Q. B.] LORD FITZHARDINGE v. PRITCHETT AND OTHERS. sold standing by the owner to dealers, who cut them down at their own expense: Held, that these woods were rateable as “saleable underwood" within the statute of Elizabeth, although beech is considered as timber by the custom of Gloucestershire. Replevin to try the right of the defts. (the churchwardens and overseers of Wotton-under-Edge, Gloucestershire) to distrain for 17. 14s. 10d. arrears of poor-rate assessed on saleable underwood belonging to the plt. The cause came on for trial before Keating, J., when a verdict was found for the plt. for 5l., subject to the opinion of this court on the following CASE. The plt. is the owner and occupier of certain woods, partly in the parish of Wotton-under-Edge, in the county of Gloucester, and partly in the adjoining parish of North Nibley, in the said county. The said woods cover some hundreds of acres, and in the parish of Wotton-under-Edge consist of about 172 acres. The woods are composed almost entirely of beech, having a very little ash and hazel intermixed, and consist principally of stools, but have a large number of maiden trees in them. A maiden tree is a tree springing from seed, and which has never been cut down in the manner hereinafter mentioned. A stool is formed in the following way: a maiden tree is cut down near to the roots; a number of shoots spring out from the stump; these stools, after a period, and in a manner hereinafter to be more specially mentioned, are cut off, and fresh shoots again spring out, and this process is continued as long as the vitality of the stool continues. By the continuation of this process the stool gradually increases in size, presenting when cut the appearance of the head of a pollard tree standing above the ground, and in case of the very ancient ones the appearance of several such heads fixed to and forming part of a spreading mass of wood partly above and partly below the ground, and supported from roots throughout. The treatment of the woods is as follows: they are cut in patches of several acres in extent in such a manner that each patch is cut on an average once in thirty years. There is cutting every year of some portion of these woods, but as these woods extend into the adjoining parish of North Nibley, such annual cutting is sometimes in North Nibley, and sometimes in Wotton-under-Edge. In cutting, some of the maiden trees are cut down near the ground, some left standing, and some have stems or shoots left on them called leaders, the object of the cutter being to have the uncut maiden trees and leaders scattered with tolerable regularity over the ground so as to favour their growth. The maiden tree and leaders thus left are about ten years old, and vary from seven feet to twenty or twenty-five feet high, the latter being in general the case. The number of leaders left on a stool varies; sometimes the stools are clear, and there are none left, but generally one, two, or three leaders are left; in some few cases even six or seven. During the period of thirty years which elapses before the next cutting, the uncut maiden trees and leaders do not increase so much in height as in bulk, and inasmuch as the woods are on a hill, and the soil and situation at the bottom are more favourable to them than at the top, they increase more rapidly the lower they are on the slope; at the end of that period they are generally about twenty-five to thirty feet high. Even at the top of the woods some of them attain, and some nearly attain, what is called timber size in the timber trade, i. e., six inches quarter-girth halfway up, which roughly approximates to thirty-two inches round at the bottom, [Q. B. and the average girth is about twenty inches in girth round the bottom, or not quite four inches quarter-girth halfway up, and at the bottom of the woods the growth is finer. During the same period the stools also produce a large number of other fresh shoots which, when the time for cutting comes round, are of various sizes, but not fit for the purpose of what is called pit wood or coal-pit timber, which ought to be at least two and a half or three inches quarter-girth. When the woods are cut, as hereinafter described, those stems which are large enough for pit wood or coal timber are trimmed, and their tops cut off at the proper height, so as to form stems or trunks to be sold for use in the coal-mines; as much of the branches and tops, and as much of the inferior stems as are large enough, are cut into cord wood, and the remainder of the material is sold as brushwood or faggots; the object of this peculiar treatment in this kind of woods is to obtain pit wood or coal-pit timber, and the obtaining of the cord wood and faggots is subsidiary to, and only an inevitable and natural adjunct to this treatment. The woods are bought standing from Lord. Fitzhardinge at from 87. to 10. per acre. The pit wood or coal-pit timber is cut for the buyer by the woodcutters by the ton, and then sold by him by the ton or foot, and the brushwood or faggots are sold by him the said buyer by the acre. It is admitted that by the custom of the county. of Gloucester beech is timber in the same way as oak and ash are at common law, but it is contended on the part of the defts. that shoots, sticks, stems, or germs growing from old stools, although of the growth aforesaid, and treated, in the manner in which the produce of the stools in the woods in question has been treated, are not timber, and are liable to be rated to the relief of the poor as saleable underwoods. In the county of Gloucester there are, first, woods consisting of large trees growing from their own roots with underwood beneath them, in which the trees are cut down once for all, and are clearly timber trees; beech woods of this description exist in the district round the woods which are now in question. Secondly, beech woods such as those now in question, and treated as they are. Thirdly, woods consisting of oak and ash coppice, or underwood growing partly from stocks, partly as maiden trees. Some of these woods are cut at intervals of thirteen or fourteen years, and some at intervals of twentyone years, according to the nature of the soil and proportion of oak which is of slower growth than the ash. The ash is cut clean to the ground, but there is left a stock of oak stems called "stores," growing partly as maiden trees, partly from stools, and of these stores at the next cutting about threefourths are cut down, and about a fourth left and called double stores, which are cut down at the next cutting; such of the wood as is large enough is used for fencing and analogous purposes, but the main object is to obtain oak bark, which is most valuable when grown upon young wood. Where the coppice is entirely oak it is cut down clean at about twenty-one years' growth. This third class of woods. exists on the opposite or western side of the county. Fourthly, woods consisting of hazel and ash underwood on which the stems are completely cleared away every fourteen or fifteen years, are greatly inferior in size to those in the woods in question, are used for hoops and hurdles, and generally, though not universally, cut by the acre, but are sometimes cut by the ton. Woods of this description exist in the neighbourhood of the wood now in question. The woodcutters of the district call these beech woods now in question timber, because they are not completely cleared; because they are not grown for coal-pit timber; because they are cut by the ton |