by custom it may be made not due. But the court said, that this reason indeed was laid down by the judges of this court in that case; but they said, this has never been allowed for law by any of the other judges of Westminster-hall. And it certainly is not law for tithe is as much due of sylva cædua by the law of England, as any other tithe whatsoever. And judge Reynolds said, This may evidently be shewn not to be the reason of this law in relation to hundreds; for if it was, the same reason would prove that every private man may prescribe in a non decimando of this nature. And for this reason, and also because the defendant in the spiritual court had not alleged in his plea there that the trees were of twenty years' growth, a prohibition was denied. 1 Barnard. 71.

or small

2. That wood is a prædial tithe is plain; but whether great Whether it or small, hath been a question between the parsons and vicars: and it hath been resolved, that if a vicar be only endowed with tithe. the small tithes, and have by reason thereof always had tithe wood, in such case it shall be accounted a small tithe; otherwise it is to be accounted amongst the great tithes. Deg. p. 2. c.1.But this doth not alter the quality of the tithe: and the vicar's having received it, may be evidence of a grant thereof having been made subsequent to the endowment, although such original grant is now lost; but it is not evidence that wood in itself is a small tithe. (7)

3. By a constitution of archbishop Winchelsea: Tithes shall be paid of trees, if they be sold: Which Lindwood explains of large trees, which bear no fruit, and being cut down are not fit for timber, but are used for fuel. Lind. 200.

Tithe of sylva cædua

by the canon law.

And by a constitution of archbishop Stratford: Forasmuch as divers persons do refuse to pay tithes, which are notoriously due, of their sylva cædua, and of the wood thereof being felled, which things do not require so much labour as the fruits of the ground; and think that they lawfully refuse the same, because they have not paid tithes thereof in times past; and withal do render it doubtful what shall be deemed sylva cædua: We do therefore declare, that sylva cædua is that which, of whatsoever kind of trees it is, is kept on purpose and is mature and fit to be cut down, and which being cut down springs again from the stump or roots; and that the tithe ought to be paid thereof as a real and prædial tithe; and that the possessors of such woods [480] shall by all manner of ecclesiastical censures be compelled to pay the tithe thereof when cut down, as of hay and corn. Lind. 190.

4. But, by the statute of the 45 Ed. 3. c. 3. it is enacted as fol- By the sta

(7) And it seems de jure a great tithe. Reynolds v. Greene, Gwm. 1573. 2 Bulstr. R. 27. But wood used as fuel by the farmer in his house of husbandry is a small tithe. Lagden v. Flack, 2 Hagg. Rep.

307.

tute law:

c. 3.]

[45 Ed. 3. loweth: At the complaint of the great men and the commons, shewing by their petition, that whereas they sell their great wood (8) of the age of twenty years, or of greater age, to merchants to their own profit, or in aid of the king in his wars, parsons and vicars of holy church do implead and draw the said merchants in the spiritual court for the tithes of the said wood in the name of this word called sylva cædua, whereby they cannot sell their woods to the very value, to the great damage of them and of the realm; it is ordained and established, that a prohibition in this case shall be granted, and upon the same an attachment, as it hath been used before this time.

No tithe

timber.

what are

5. The wood intended in this statute is such as is fit for buildof wood for ing of houses and ships; and therefore without doubt it com(trees, and prehends oak, elm, and ash; but it hath also been adjudged to include beech as timber, in Buckinghamshire and some other such trees.] counties, where better timber is not to be had, or is very scarce. (9) And those trees are free not only as to the trunk of timber, but also as to the bark, root, and germins that grew upon the ancient stock (1); and it is not material, how oft or how seldom the branches thereof are lopped, because being once free they are always free. 2 Inst. 643.

(8) Gros bois here signifies specially such wood as either hath been, or is, by the custom of the country, timber; and all such wood, if of the age of twenty years or more, is free from payment of tithes. 2 Inst. 642. Fox v. Thexton, 12 Mod. 524.

(9) Cherry, holly, aspen, horse-chesnut, lime, walnut, and willowtrees, are by the custom of the country in many places timber. Mirehouse, 77. and see infra, 488.

(1) For they were said to be parcel of the inheritance, and therefore not tithable. 2 Inst. 643. But this doctrine is now overturned as to germins growing from stools of trees entirely cut down for there, no tree being left, the wood becomes an entire new wood. Great part of the underwoods of the kingdom are germins from such stools; and if not tithable, the clergy would be deprived of the tithe of many underwoods. Walton v. Tryon, supra. Amler v. Jackson, 3 Wood's Dec. 225. Wallbank v. Hayward, 3 Wood. 512. This is now quite settled, from the opinion of Lord Ellenb. in Ford v. Racster, 4 M. & S. R. 130. The question was, whether oak wood of more than twenty years' standing, growing, not from acorns, but from old stools which belonged originally to trees which had stood more than twenty years, were so clearly entitled to an exemption by the statute, as to make a verdict subjecting them to tithe a wrong verdict. It was held, that the exemption naturally, and by legal consequence, embraced whatever constituted a part of gros bois, or timber of the requisite age; and could not therefore comprehend germins cut before the tree was statutably gros bois, nor the wood growing from the stool on which the gros bois once stood but stands no longer, or the germins springing from the root of what once was the root of gros bois but is so no longer.

And it hath been also resolved, that oak under twenty years, being fit for timber in time to come, shall not pay tithe; and that though it stands till it is rotten, and unfit not only for timber, but for all manner of uses, except the fire, it shall be privileged upon this general maxim, that once discharged and always discharged. 1 Roll's Abr. 640. [Ram v. Paterson, Cro. El. 477. Brook v. Rogers, Moor. R. 908.]

But in the case of Buckle and Vanacre, 1692. Upon a bill for tithe wood in Erith in Kent, about twenty years' growth, part used for timber, and part made into billets and faggots; it was resolved, that the last shall pay tithes for the trees being above twenty years' growth alone will not privilege them, but the use. And the same resolution was in the case of Acton and Smith, which was reheard and reviewed; and of Franklin and Jones, in the year 1694; and also in the case of Cowper and Layfield, Bunb. 99.

And in the case of Greenaway and The earl of Kent, H. 1704; [481 ] timber trees above twenty years' growth, cut and corded for fuel, and the bark stripped from the same, were adjudged to pay tithes, as well as underwood; but that no tithe was due for such wood above twenty years' growth, nor of the bark thereof, which was not corded. Bunb. 98.

tings of

tithes.]

But, finally, in the case of Walton and Lady Mary Tryon, Dec. 15, [Lops,tops, 1751.(2) The plaintiff brought his bill, as rector of Mitcham, and cutin Surry, for the tithe of the tops and lops of old pollard oaks, timber ashes, and elms; and of the tops, lops, and bodies of beeches. trees, are Mr. Wilbraham argued for the plaintiff: The tithe of wood is free from certainly payable; and the law as to this is now pretty certain. The 45 Ed. 3. is an explanatory law; and all lops and to psare tithable if the tree be under twenty years' growth. Before the statute of sylva cædua, all were tithable; but by that law it is declared that all timber trees should be exempt: and the reason is plain; for timber trees yield but one profit, and that but once in a century; and therefore as it was so long before the owner had a profit, that wood was exempt. But even by this act it was not meant that the whole tree was exempt; the body only, not the tops and lops were so. Since this act, the courts have gone so far, as to exempt all parts of the tree: and even germins from these trees have also been determined to be exempt. After this, the courts endeavoured to bring it to some rule; and the buyers were always to pay the tithes. Afterwards, the courts held, that trees not converted to the use of timber were tithable; and on this some cases have been determined. As the case of Man and Somerton, 1 Brownl. 94. So the case of Harves and Cornwall,

(2) Gwill. 327. And see Brook v. Rogers, Cro. J. 100. 1 Roll. Abr. 640.

1 Lev. 189.; where it is said, that wood, or fire-wood, though of twenty-five years' growth, shall pay tithe when felled. So in the case of Rapley and Lloyd, all wood for burning was held tithable. In the case of Briggs and Martin, E. 6 W., a bill was brought by the plaintiff, as lessee of the rectory of Bromley, in Kent, for tithe wood made into bavings: The defendants by their answer insisted, that old pollards and dotards paid no tithes; but notwithstanding this, the court decreed an account and satisfaction to the plaintiff for them. The courts seem to have gone a step further. They have had regard to the use made of the wood, and not to the age of the pollard: namely, what was used for timber, and what for fire-wood; the former [482] was held to be exempt, the latter to pay tithes. And agreeable to this was the case of Greenaway and The earl of Kent, before the lord chief baron Ward. The bill was brought by the plaintiff as vicar of Walford, in Herefordshire. The defendant insisted, that no tithes were due of such wood as was above twenty years' growth. A cross bill was brought. And on hearing, the court declared, that the plaintiff was intitled to the tithe of all wood above twenty years' growth as well as under, which was corded, but not otherwise. But it may be objected, shall tithes be so uncertain, as to be determined by the use of them? I answer, that in many cases tithes must depend upon the use of them. As in wood, if it is made into bavings for firing, it is tithable; if to make fences, it is not so. So if one fats cattle on land, agistment is due for them; so if he keeps cattle as barren, tithes are paid but cattle kept for the plough are exempt, and even those reared for the plough are exempt. These are all established cases, and do not want any confirmation. The case of Brook and Rogers, Moor, 908., is very express, that if timber is lopped before twenty years' growth, tithes should be paid of the loppings. And if these trees in question have been constantly cut, and tithes have been paid of them without any contradiction (as now is in proof), why is this not an evidence that these trees were cut before twenty years' growth, and so out of the statute of sylva cædua? And this presumption may more naturally arise in this case, for the falls here happen but once in sixteen or twenty years; and one of the plaintiff's witnesses speaks to tithes being paid of these trees forty-five years ago without any molestation whatsoever; and there is not one witness produced for the defendant, who will venture to swear, that every one load of timber was cut without paying tithes and if that be the case, the natural presumption is, that this wood is tithable; for it has paid tithes, as long as memory can go back. As to the beech; if it be timber, as insisted upon by the defendant, then it comes within the statute of sylva cædua: and this matter must be tried, if the parties think it worth their while to dispute it.

By

Mr. Solicitor-general for the defendant: The question now put is, whether the tops and lops cut from trees above twenty years' growth are liable to pay tithe if cut in order to be used as fuel. And this is a question of a very extraordinary nature indeed, and contrary to both old and modern law. For no point was ever laid down more clearly, from the time of Edward the third to the present time, than this, that tops and lops of [483] trees above twenty years' growth are always exempt: and the reason is, when once it is privileged, it always remains so. The case in Moor, 908., cited for the plaintiff, is expressly for the defendant; for that particularly states, that if not cut within the twenty years, then it is exempt. And so have been abundance of other cases. And how can the right of the parson arise from the use of the thing? How is it possible for the parson to know the owner's intent? The right therefore ought to commence from the time it is cut and severed. The earl of Kent's case does not prove the present distinction. For that proves, that the trees themselves were in question; and nothing at all was said of the lops and tops. Besides, they were not pollards or dotards, but young oaks. This proves that all trees cut down and used for fire would be liable to tithes. But this proves too much. But there is a note on the back of Mr. Brown's brief in that cause (which I have), that settles what this case was: He says there was positive evidence, that the trees corded had grown from stems of old wood, and was formerly coppice-wood; and this will alter the case greatly. The case of Layfield and Cowper, T. 1698, was on a bill for tithes of lops and tops of timber trees; defendant insisted, that they were the product of beech and ash trees; he admitted, he did convert them to fuel and cordwood; but, in regard that they were above twenty years' growth, insisted, that they were exempt: By the decree, an account was directed for wood in general; and exceptions were taken to the remembrancer's report, that he had taken no notice that these beeches were some thirty, some fifty years' growth, and were timber, and therefore exempt; and of that opinion was the court. In the case of Bibey and Huxley, H. 1724, the bill was for tithe of coppice and other wood: The defendant insisted, that he had felled several timber trees of twenty years' and upwards, and had dug up several roots, and made them into stacks, and made the tops into faggots; some were used for repairs, others for fuel; and as these were all above the age of twenty years, the body with all the rest are exempt from paying tithes by law and it was decreed, that the plaintiff should have an account of the tithe wood, except for the tithe of oak, ash, and maiden trees of beech proceeding from stools above twenty years' growth: The application thereof to fuel, does not make the difference. But it is objected, that it must be presumed these trees now in

the