The Statesman.
London, England, 1809-07-13 00:00:00

11URGESS V. LA)IB.

This bill was filed by the remainder-man against
the tenant for life, without impeachment of waste,
to restrain him from cutting down timber.—Mr.
Lamb, deceased, the Testator, had left his estates
to the Defendant for life, with remainder to Sir J.
B. Burgess. He had also left the sum of 70,0001.
to be laid out in the purchase of lands, subject to
the like limitations. Of this will, Sir James Bland
Burgess, the father of the Plaintiff, was left Co-
Trustee with the Defendant, and in pursuance of
the trust, the mansion-house and estate of Beau.
port, in the county of Sussex, with the timber
thereon, was purchased with a part of the trust
money. The Defendant, as tenant for life to the
whole estates, toff hout impeachment of waste, pro-
ceeded to cut down a part of the woods on this
purchase, and thereupon the bill was filed by the
Plaintiff, to restrain him therefrom. The bill es-
pecially charged, that the said estate was purcha-
scd on the express stipulation, on the part of the
Defendant, with the Co-Trustee, Sir J. B. Bur-
gess, that the former should not cut down or
ewe the timber then growing thereon. The usual
injunction, restraining the Defendant from cutting
until the coming in of his answer, was obtained.

Mr. ALEXANDER now moved to dissolve the in.
junction. The answer of the Defendant expressly
denied the existence of any such agreement with
Sir James Bland Burgess, as stated in the Bill ;
but, an the contrary, stated, that his right to the
same privileges over the intended purchase, as
•ver the entailed estates, was fully recognised by
Sir James. It was now contended for the De.

fentlant, that even it there could be an equitable
waste in the present case, there was no act done
by the Defendant that was at all injurious to the
ornamental timber on the estate.

Sir S. RosittLLy was hoard on the came side. He

observed, that the chief ground on which the in-
junction had been moved for was, because his
Client was charged with having cut down wood,
which contributed greatly to the ornament of the
splendid mansion of Beaufort, and the adjacent
gruuuds. Now every tree upon the estate might,
in some sort, be said to be for ornament as well
as use. In that beautiful part of the country
where the estate lies, there was hardly a tree
which had not something of the picturesque about
it, if he might be permitted to use a term, not in-
deed known in that Court, but in very general
usts among modern artists. Resides, the opi-
nions of modern improvers of grounds varied
so much with regard to what constituted or-
nament, some being for clumps, and others
for scattered trees, that contradictory affidavits
as to what constituted ornament, conid easily be
produced to the Court. In short, this was a ques-
tion quite indeterminate, and depending solely on
the taste of individuals. There were various sects
among the improvers of grounds ; and Mr. Knight
had his followers as well as Mr. Brown. The
general principle which he understood to have
been laid down by this Court was, that a tenant
for life was not to be permitted to cut down such
trees as had been planted expressly fur ornament ;
such as those planted in clumps, in rows, or form.
ing vistas. Now his client had not cut down any
trees of this description, and therefore he sub.
mitted that the injunction ought to be dissolved.
Mr. Him and Mr. BILL were heard on the
same side.

1 Sir A. PIGOTT, Mr. RICHARDS, and Mr. WE-
THERELL argued for the continuance of the in-
junction ; and contended, that either the money
should not have been laid out in the purchase of a
wooded estate, or else, that, being so laid out, the
Defendant, or Sir James, should nut be at liberty
to deteriorate the estate, as against the remainder.
man, by cutting down and selling the timber.
They likened it to the owe of stock left; the in.
terest to be paid to the first taker fur life; re.

. Jr, '

mainder to another : the first taker would not be
allowed to sell out part of the capital stock, and put
the produde into his own pocket : •but the Conrt
would reserve it entire for the remainder man.
The original value of the timber on the estate was
15001. and the Defendant, Mr. Lambe, who wet
only tenant for life, had already cut down 11001.
worth of timber, by which the estate must come
so much •deteriorated into the hands of the neat
tenant for life. Mr. Lambe wu a mere trustee
of the property for his life. They therefore suh-
niitted that these trees could only be cut down under
the direction of a master, appointed by the Court,
who should determine what trees were proper to
be cut down, and what not ; and that the produce
arising from the fall of timber should be invested
in land for the benefit of future tenants fur life,
till the whole came into the possession of a tenant
in tail, who could do with the property as he
pleased. It had been slid that there were various
sects among ornamental improvers, and that it
would therefore be impossible for the Court to de.
cide what was ornamental in plantations, and
what uot ; but the conduct of Mr. Lambe went
literally, as well as figuratively, to lay the axe to
the root of all that on which the speculations of
improvers were founded. Were he to be permitted
to go on u he had begun, there would soon be
scarcely a tree left standing, for he had already
cut down timber to the value of 11001. the esti.
mated value of the timber on the estate at its purchase
being only 15001. In order to put an end to
the question between the parties, they proposed to
pay to the Defendant such consideration fur not
cutting, as the Court should think reasonable, in
order to prevent denuding the land, now held by
Sir James, by lease from the Defendant, for the
life of the latter, and descendable to the Plaintiff.
They contended, that, at all events, the injunc-
tion could not be dissolved, thus permitting the
Defendant to cnt down, nithout referring to the
Muter to inquire what trees were ornamental,
and, as such, not to be permitted the Defendant
to cut down ; and the rather, as lie had himself, in
the character of Trustee, concurred in the pur-
chase, on the very ground of its ornaments and ad.
vantages, as a residence fit for the successive ta.
kers of the estates of the Testator.

The LORD CUANCELLOR delivered his opinion
at considerable length on various principles laid
down by the Counsel on both sides. lie observed,
that Lord Thurlow had given it as his opinion,
that the tenant for life of an estate, without im.
peachment of waste, had a right to use his own
discretion as to the cutting of timber. It had
been held by the Court also, that to restrain the
cutting down of trees in such cues, they must be
held to have been planted expressly for ornament,
not merely that they were ornamental, which
might be more or less the case with every tree
on an estate. In this case, however, there might
be other persons who had a vested interest in this
estate, beside the present Plaintiff and Defendant ;
these were future or contingent lives, either as
tenant fur life or in tail. As it was the duty of a
Court of Equity to protect the interests of all
parties, he should therefure wait till next seal, to
see whether ally thing was said for such condo..
gent lives.

COURT OF KING'S BENCH,
Wednesday, July 12.

NOLDERO AND OTHERS 17. 'JACKSON.

This was a question of accounts between
Messrs. Boldero and Co. bankers, and the assig.
noes of Mr. Jackson, a bankrupt, who Clad very
extensive dealings with this banking.house, on the
subject of West-India property.
Mr. Garrow conducted the case for the Plain.
tiffs, and the Attorney-General for the Defend.
ant; it was a case upon admissions, in which none
of the facts were disputed. The only question
was as to the operation of law on the facts. As
much doubt had been expressed in the Court of
Chancery upon many of these points, as the snm
was considerable, and as none of the parties wish.
oil that the present decision at Nisi Prius should be
conclusive, his Lordship assented to its being
turned into the shape of a special case, to be ar.
gued before the Court of King's Bench, and there-
fore a verdict was entered by consent for the
Plaintiff—Damages 58,0001. subject to the opinion
of the Court on a caso to be stated.