question were cut before twenty years' growth; and therefore never had the privilege: But as that is not charged by the bill, it cannot be presumed. As to the beech, if insisted on, it must be tried. By the lord chancellor Hardwicke: The tithes demanded by the bill are of two sorts; first, tops and lops of old pollard oaks, ashes, and elms; secondly, beech trees, both body and branches. The principal question arises on the tops and lops of old pollard oaks, and the rest. There is no difference in point of fact. It is admitted on both sides, that there is no coppice-wood in this ground; that they are ancient pollards: and as to the beeches, that they are of twenty years' growth and upwards, and the greatest part of them was cut and made into billets and sold for fire, except a small part of them which was used for posts and rails. The plaintiff has proved, that at two former falls, tithes were set out and taken of this wood, the one in 1712, the other in 1728. On the other hand, the defendant has not proved any fall when tithe was not paid; but has proved, that in these two falls the family lived in Northamptonshire, and knew nothing of their being set out and taken, and that no other wood in the parish does pay tithe, or ever had paid. The plaintiff has founded his right on this; namely, the use and application of the things of which tithe is demanded: But though this be the general right set forth in the bill; yet if any other right appears, the plaintiff will be intitled to an account. This is a question of very great consequence, both to the owners of wood, and to the clergy also; and has been argued both from reason and authorities. And upon the reason of the thing, it has been said, that there is no more reason why tithes should not be paid of wood, than of any other product of the earth, for it annuatim renovat. But this proves too much; for according to this reasoning, all wood in general would be liable; and though this does annuatim crescere, yet it does not annuatim renovare : at common law coppice-wood is subject to tithes, though it does not annuatim renovare; yet in its nature it ought to pay; for it is cut under a certain course of years, and is looked upon as an ordinary stated renewal, like the case of saffron; but of timber trees the stated rule is otherwise: there the law does not wait for a stated course of felling. It was further reasoned for the plaintiff, that the lops and tops of pollards are tenancy profits: But this is no rule of tithes; and varies in different counties; and would make the affair of tithes very uncertain; and in many places the lops of spiral trees are allowed to tenants for fire-wood, and yet such [485] lops are not tithable. It was further said to be reasonable, that the use and application should determine whether the thing was tithable or not; that as a coppice is liable, so it is reasonable that any other wood, not timber, but used for fuel, should be so too: But this goes to the question put in issue by the bill, and I am afraid would be a very dangerous innovation: the subsequent use of the thing, as it does not alter the nature, cannot give a tithable quality which it had not before; if it could, why not vice versa? that is to say, if wood not timber should be applied to the use of timber, why should not such use exempt it from the payment of tithes? This was never heard of, yet it is equally reasonable. It is said, there are certain cases, where the use and application of the thing shall make it tithable; and there will appear no greater uncertainty in one case than in the other; as for instance, wood cut to be burned in the house of a parishioner, this was said to be not tithable: but that is not true, unless by custom; for it was otherwise determined in the case of Norton and Fermer, Cro. Cha. 113. It was said also, that cattle for the plough and pail are not tithable; so there the use determines: but this is not a prædial, but a mixt tithe, which the parishioner is not obliged to set out at a particular place or time; and the parson receives it in another manner by taking the tenth part of the profits. In many cases it is impossible to say, to what uses the wood may be applied the owner may sell it standing, the buyer to cut it; and if so, how is the intention to be known? And in many counties where timber is very plentiful, there it is often cut down and used as fuel; and if the use and application was to prevail, it would make two different common laws of tithe, and this without any custom. The law for tithes of wood is a positive law; to wit, that of all timber trees of 20 years' growth or upwards, whether timber by law or custom, no tithe is to be paid, either of bodies, lops, or tops. It has been much controverted, whether the statute of sylva cædua is a new law, or only declaratory of the common law: the latter is now the settled opinion; for the words of the statute are, it hath been used of old. In the statute, the wood is particularly mentioned, and its age and growth: but not one word is said of the use; and the opinion of all the courts upon the construction of this statute has been, that where the tree is timber, by law or custom, of 20 years' growth or upwards, it is [486] exempt. And in 2 Inst. 642, 643., the rules are very particularly laid down. These rules have not been contradicted, except in the case of germins that came from old stools, and which is the case of most coppices in England. But it is asked, what difference is there, if germins grow from trees entirely cut down, or from trees that have been lopped? I answer, that the difference is great; for in the case of germins that come from stools, no tree remains from whence the privilege is derived; but in the case of lops and tops, the tree remains, and so does the privilege. I come now to consider the case cited against this doctrine by the counsel for the plaintiff. The case of Man and Somerton, 1 Brownl. 94., is not applicable to the present case. The case of Hawes and Cornwall, 1 Lev. 189., is this; "Wood cut for firing, "though above 20 years' growth, shall pay tithes; and so pol"lards of above 50 years:" But this is very short and imperfectly stated, and is not supported by law at all; and by report of the same case in 1 Sid. it is said, that the wood was coppicewood; and by the determination, most probably it was so, and therefore proves nothing for the plaintiff. But it is said, there is no difference between pollards and underwood, for pollards are not timber; but I answer, that pollards having gained this privilege always retain it; and the bodies of pollards may serve to many uses as timber doth; and if dotard trees are privileged, much more ought pollards. The next case cited was that of Briggs and Martin, which was on a bill for lops and tops of old pollard and dotard trees, and an account was accordingly directed: But on what this was founded does not appear, nor whether these pollards were under the time of privilege or not; and what makes this case the more extraordinary is, the decree in the case of Northley and Colbe in the very next term, and it is directly contrary; and the only way of reconciling these two cases is, that in the first case it must have appeared that the pollards were cut before 20 years' growth. Greenaway and The earl of Kent was the next case, and most principally relied on; and the ground of this decree was, that all wood, even above 20 years, that was cut and corded, should be tithable; and goes further than any case before or since: but the lord chief baron Ward in that case was of a quite different opinion, and made a learned argument against the decree; but the other three barons [487] differed from him: therefore I observe, this was not a uniform au thority; and I think the chief baron Ward's was the best opinion: baron Price's reasons in that cause do not satisfy me at all; when he was considering the statute of sylva cædua, he said, that ancient statutes must be construed according to the intent, and not literally; and that great wood does not in its strict sense mean trees of this sort, but such wood as is applicable to large buildings; which is in effect to say, that a tree which in its nature is timber, yet if it is not large, and is applied to firing, shall be tithable: another ground that he went upon was, the statutes relating to the rules of felling of wood; but these are rules laid down only for the preservation of timber, and cannot be applicable to tithes that are demanded of them: and upon the whole, this determination is directly contrary to all the other authorities; for there is a tempus constitutum, and that cannot be departed from; and I will say further, that there has been no precedent since to follow it; for as to that case of Bibey and Huxley, that is rather against it. If these trees now in question were lopped and made pollards before 20 years' growth, and so have continued to be lopped, then they will be liable to tithes : But this is a question of fact proper to be tried, being too much for me to determine upon the evidence now laid before the court: I am rather inclined to think that they were not, for the plaintiff himself in his bill has stated them to be ancient pollards and large. The second question relates to the tithes of beeches, both bodies and branches and it is not disputed, but that this wood is above 20 years' growth: and then the matter of fact must be tried, whether it is timber by the custom of the country: And if so it will be exempt; otherwise it must pay tithes. (h) [After all, it must needs be difficult oftentimes precisely to determine the age of oaks, ashes, and other trees; which spring frequently from seeds shed upon the ground, of which no account is, or can be, kept by the owner or any other. In many places where wood is plentiful and grows freely, it is the custom to estimate the same by measuring round the middle part of the tree: and if it is 24 inches in circumference, it is deemed of 20 years' [488] growth; if under that measure, it is accounted underwood.] 6. Of wood not fit for timber, tithes shall be paid. As of hazel, birch, willow, [sallow,] white thorn, holly, alder, maple, asp, hornbeam (3), and such other like trees of base and inferior nature, and unfit for buildings: of these tithes shall be paid, though they be above 20 years' growth. 1 Roll's Abr. 640. Yet the scarcity of other timber (as hath been said) and custom of the country to put such trees to the uses of good timber, may free them, being of twenty years' growth or under, from payment of tithes ; as hath particularly been adjudged of [beech], asp, cherry-tree, and other like trees, in Buckinghamshire: so of willows in the county of Southampton. See ante, 480. n. Wood growing in hedgerows is not exempt by the custom of a parish from tithes. Mantill v. Paine, 4 Gwill. 1504. 7. And if a man cut down a coppice wood, and thereof pay his tithes, and afterwards before any new branches spring out, he grubbeth up the roots and stubbs of the wood, he shall not pay tithes thereof; for that they are parcel of the frank tenement, and not annually renewing. 1 Roll's Abr. 637. But only of wood not fit for tim ber. No tithe of the roots of trees. Nor of 8. Also trees cut only for mounds, plough gear, hedging, fencing (4), fuel, maintenance of the plough or pail, are not wood for tithable. 2 Inst. 655. [Gould. R. 93.] (h) S. C. Amb. 130.; where it is said that the oak pollards were 200 years old, and that the court afterwards, at the desire of the plaintiff, directed issues. These, according to the opinion of Lord Hardwicke, seem to have been 1. Whether the oak and ash pollards were lopped before they were twenty years old.-2. Whether, time out of mind in the parish of Mickleham, beech has been deemed timber. (3) But in Harbert's case, 3 Rep. 12. 2 Inst. 642., this opinion of Plowden, in Soley v. Molins, Plowd. R. 420., was held not to be law. (4) East v. Harding, Cro. Eliz. 499. Croucher v. Collins, 1 Saund. R. 143. 2 Inst. 652. Hetley. R. 88. Anon. 1 Vent. R.75. Wats. Cl. L. 546. husbandry or fuel. Nor for hurdles of sheep. Nor for But this is to be alleged, not absolutely, that by the law of the land, wood so applied shall not pay tithe: but sub modo, that is, that the parson hath some consideration for it, or at least that the house is for maintenance of husbandry, by reason of which the parson hath more plentiful tithes. By which rule, if a man hath an house of husbandry with lands, and demising the lands, reserveth the house; tithe of fire-wood is payable. Gibs. 686. 9. For osiers employed in hurdles for sheep, no tithe shall be paid. Gibs. 684. 10. If wood be cut to make hop-poles, and so employed, no hop poles. tithes are due, where the parson or vicar hath tithe hops. Bunb. For making bricks. 20. 11. If a man cut down wood, and burneth it to make brick for the reparation of his house within the parish, for the habitation of himself and his family; no tithes shall be paid for this, inasmuch as the parson hath the benefit of the labour of his family. 1 Roll's Abr.645. [Thornhill's case, Hetl. R. 93.] But if a man cut down wood and burn it to make bricks for the enlargement of his house within the parish, more than is necessary for his family, as for his pleasure and delight, he shall [489] pay tithes for this. Accordingly, where the plaintiff in prohibition had affirmed, that he burned it for the reparation and enlargement of his house, generally, without saying for the necessary habitation of his family, a consultation was awarded; for the court said, that by this surmise he might build a castle, and yet pay no tithes. 1 Roll's Abr. 645. Fruit trees. [The subsequent use of the article of wood seems in these instances to determine its liability to be tithed: a proposition calculated to produce great confusion in the law of tithes. (See per lord Hardwicke in Walton v. Tryon, ante, 485.) And perhaps these discharges from payment of tithes in consequence of the subsequent use, can only be claimed on the principle of special custom operating by way of exemption in respect of some satisfaction to the tithe owner, which it lies on the parishioner to shew. (5) A custom to be discharged of the tithes of wood used in husbandry houses, or repairing fences on the premises, may undoubtedly be good. (6) But in Lagden v. Flack (7) it is said that any custom of exempting wood used as fuel by the farmer in his house of husbandry from tithe (which is a small tithe), is strictissimi juris, and requires to be established on the fullest evidence.] 12. If a man pay tithes for the fruits of trees, and afterwards cut down the same trees, and maketh them into billets or faggots, and selleth them; he shall not pay tithes for the billets or fag (5) Norton v. Fermer, Cro Car. 113. (6) Waterman v. Jones, 1 Wood's D. 468. |
