case bishop of winchester versus knight see Portland v hill l r Eq Phillips v  Homfray Ch d distinguish peek v Gurney l r h l Lord chancellor Cowper Eq can  ab pl Lord of a manor may bring a bill for a account of over dig or timber cut  by defendant testator but a action will not lie in such case Utterson v Vernon  t r William v Breedon Bos pull otherwise of blow up meadow or ancient pasture  or such tort as die with the person but see Garth v Colton atk dick Hamble v  Trott Cowp lansdown v lansdown mad Wheatley v lane sand note Adair v shaw Sch  Lef Hardwicke v Vernon Ves one hold customary land of the bishop of Winchester  as of his manor of Taunton dean in somersetshire in which land there be a  coppermine that be open by the tenant who dig thereout and sell great quantity  of copper over and die and his heir continue dig and dispose of great quantity  of co per over out of the say I the bishop of Winchester bring a bill in  equity against the executor and heir pray a account of the say over and allege  that these customary tenant be as copyhold tenant and that the freehold be in  the bishop as lord of the manor and owner of the soil and that the manner of  pass the premise be by surrender into the hand of the lord to the use of the  surrendee see Stephenson v hill burr on the other side it be say that it do  not appear the admittance in this case be to hold ad will domini secundum  experience c without which word ad will peer William domini it be insist there  can be no copyhold as have be adjudge in Lord c I holt time salk crowther v  Oldfield and Garth gate v noble vide hark   Litt b note then as to the over  dig in the ancestor lifetime there be no colour to ask relief because this be  a personal tort the same die with the person and that with respect peer  William er p to the over dig in the heir own time there can be no remedy for  that these customary tenant be as freeholder and there be full proof that they  from time to time have use to cut down and fall timber from off thepremisses  and have also dig stone and sell it Lord chancellor it will be a reproach to  equity to say where a man have take my property as my over or timber and  dispose of it in mrs lifetime and die that in this case I must be without  remedy it be true as to the trespass of break up meadow or ancient  pastureground it die with the person but as to the property of the over or  timber it will be clear even at law if it come to the executor hand that  trover will lie for it and if it have be dispose of in the testator lifetime  the executor if asset be leave ought to answer for it but it be strong in this  case by reason that the tenant if a sort of a fiduciary to the lord and it be  a breach of the trust which the law repose in the tenant for he to take away  the property of the lord so that I be clear of opinion the executor in such  case be answerable as to the evidence that the tenant may do one sort of waste  as to cut down and dispose of the timber this may be peer William by special  grant but it be no evidence that the tenant have a power to commit any other  sort of waste videlicet waste of a different species as that of dispose of  mineral but a custom empower the tenant to dispose of one sort of mineral as  coal may be a evidence of their right to dispose of another sort of mineral as  lead out of a I but this question be doubtful and at law let the bishop bring  his action of trover as to the over dig and dispose of by the present tenant  accord this be try and there never have be any I of copper before discover in  the manor the jury can not find that the customary tenant may by custom dig  and open new coppermines see Curtis v Daniel east so that upon the produce of  the postea the court hold that neither the tenant without the licence of the  lord nor the lord without the consent of the tenant can dig in these  coppermines be new i see bourn v tailor east Whitechurch v Holworthy Ves m S  grey v Northumberland Ves Ves in jesus college v bloom atk and Amb S c Lord  Hardwicke dismiss a bill for a mere account of timber cut down as be the  proper subject of a action at law but his lordship add that there be many  instance where the court have decree a account in the case of i which they  will not have do in the case of timber see his lordship observation on that  case in Garth v cotton dick and see lee v Alston bro C C Pulteney v warren Ves  lansdown v lansdown mad and note to Whitfield v bewit post Vol two because the  dig of i be a sort of trade vide jesus coll v bloom Amb Curtis v Curtis bro c  c