By the ftatute law.

No tithe of

paid thereof as a real and prædial tithe; and that the poffeffors of fuch woods fhail by all manner of ecclefiaftical cenfures be compelled to pay the tithe thereof when cut down, as of hay and corn. Lind. 190.

4. But, by the ftatute of the 45 Ed. 3. c. 3. it is enacted as followeth At the complaint of the great men and the commons, fhewing by their petition, that whereas they fell their great wood 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, parfons and vicars of holy church do implead and draw the faid merchants in the fpiritual court for the tithes of the faid wood in the name of this word called sylva cædua, whereby they cannot fell 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 cafe fhall be granted, and upon the fame an attachment, as it hath been used before this time,

5. The wood intended in this ftatute, is fuch as is fit wood for timber, for building of houfes and fhips; and therefore without doubt it comprehends oak, elm, and afh; but it hath alfo been adjudged to include beech as timber, in Buckinghamshire and fome other counties, where better timber is not to be had, or is very fcarce. 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; and it is not material, how oft or how feldom the branches thereof are lopped, becaufe being once free they are always free. 2 Inft. 643.

And it hath been alfo refolved, that oak under 20 years, being fit for timber in time to come, fhall not pay tithe; and that tho' it stands till it is rotten, and unfit not only for timber, but for all manner of uses, except the fire, it fhall be privileged, upon this general maxim, that once difcharged and always difcharged. I Roll's Abr. 640:

But in the case of Buckle and Vanacre, 1692. Upon a bill for tithe wood in Erith in Kent, about 20 years growth, part ufed for timber, and part made into billets and faggots; it was refolved, that the laft fhall pay tithes for the trees being above 20 years growth alone will not privilege them, but the use. And the fame refolution was in the cafe of Alton and Smith, which was reheard and reviewed; and of Franklin and Jones, in the year 1694; and alfo in the cafe of Cowper and Layfield, Bunb. 99.

And

And in the cafe of Greenaway and the earl of Kent, H. 1704; timber trees above twenty years growth, cut and corded for fuel, and the bark ftripped from the fame, were adjudged to pay tithes, as well as underwood; but that no tithe was due for fuch wood above twenty years growth, por of the bark thereof, which was not corded. Bunb. 98.

But, finally, in the cafe of Walton and lady Mary Tryon, Dec. 15, 1751. The plaintiff brought his bill, as rector of Mitcham in Surry, for the tithe of the tops and lops of old pollard oaks, afhes, and elms; and of the tops, lops, and bodies of beeches. Mr. Wilbraham argued for the plaintiff: The tithe of wood is certainly payable; and the law as to this is now pretty certain. The 45 Ed. 3. is an explanatory law; and all lops and tops are tithable if the tree be under 20 years growth. Before the ftatute of fylva cædua, all were tithable; but by that law it is declared that all timber trees should be exempt: And the reafon is plain; for timber trees yield but one profit, and that but once in a century; and therefore as it was fo 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 fo. Since this act, the courts have gone so far, as to exempt all parts of the tree: and even germins from thefe trees have alfo been determined to be exempt. After this, the courts endeavoured to bring it to fome 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 fome cafes have been determined. As the cafe of Man and Somerton, 1 Brownl. 94. So the cafe of Hawes and Cornwal, 1. Lev. 189. where it is faid, that wood for firewood, tho' of 25 years growth, fhall pay tithe when felled. So in the cafe of Rapley and Lloyd, all wood for burning was held tithable. In the cafe of Briggs and Martin, E. 6 W. a bill was brought by the plaintiff, as leffse of the rectory of Bromley in Kent, for tithe wood made into bavings: The defendants by their answer infifted, that old pollards and dotards paid no tithe : but notwithstanding this, the court decreed an account and fatisfaction to the plaintiff for them. The courts feem to have gone a step further. They have had regard to the ufe made of the wood, and not to the age of the pollard: namely, what was used for timber, and what for firewood; the former was held to be exempt, the latter to VOL. III.

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pay tithes. And agreeable to this was the cafe 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 infifted, that no tithes were due of fuch 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 otherwife. But it may be objected, fhall tithes be fo uncertain, as to be determined by the use of them? I answer, that in many cafes tithes muft depend upon the ufe of them. As in wood, if it is made into bavings for firing, it is tith-. able; if to make fences, it is not fo. So if one fats cattle on land, agiftment is due for them; so if he keeps cattle as barren, tithes are paid: but cattle kept for the plough are exempt, and even thofe reared for the plough are exempt. Thefe are all established cafes, and do not want any confirmation. The case of Brook and Rogers, Moor 908. is very exprefs, that if timber is lopped before 20 years growth, tithes fhould be paid of the loppings. And if thefe trees in queftion have been conftantly cut, and tithes have been paid of them without any contradiction (as now is in proof), why is not this an evidence that thefe trees were cut before 20 years growth, and fo out of the statute of fylva cædua? And this prefumption may more naturally arife in this cafe, for the falls here happen but once in 16 or 20 years; and one of the plaintiff's witnelles fpeaks to tithes being paid of thefe trees 45 years ago without any moleftation whatsoever; and there is not one witness produced for the defendant, who will venture to fwear,, that ever one load of timberwas cut without paying tithes And if that be the cafe, the natural prefumption 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 infifted upon by the defendant, then it comes within the ftatute of fylva cœdua: And this matter must be tried, if the parties think it worth their while to difpute it. -By Mr. Solicitor

General for the defendant: The question now put is, Whether the tops and lops cut from trees above 20 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 prefent time, than this,

that tops and lops of trees above 20 years growth are always exempt: And the reason is, when once it is privileged, it always remains fo. The cafe in Moor 908. cited for the plaintiff, is exprefsly for the defendant; for that particularly ftates, that if not cut within the 20 years, then it is exempt. And fo have been abundance of other cafes. And how can the right of the parfon arife from the use of the thing? How is it poffible for the parfon to know the owner's intent? The right therefore ought to commence from the time it is cut and fevered. The earl of Kint's cafe does not prove the prefent diftinction. For that proves, that the trees themselves were in question; and nothing at all was faid of the lops and tops. Befides they were not pollards or dotards, but young oaks. This proves that all trees cut down and ufed 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 caufe (which I have), that fettles what this cafe was: He fays there was pofitive evidence, that the trees corded had grown from ftems of old wood, and was formerly coppice wood; and this will alter the cafe greatly. The cafe of Layfield and Cowper, T. 1698, was on a bill for tithes of lops and tops of timber trees; the defendant infifted, that they were the product of beech and afh trees; he admitted, he did convert them to fuel and cordwood; but, in regard that they were above 20 years growth, infifted, 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 fome 30, fome 50 years growth, and were timber, and therefore exempt; and of that opinion was the court. In the cafe of Bibey and Huxley, H. 1724, the bill was for tithe of coppice and other wood: The defendant infisted, that he had felled feveral timber trees of 20 years and upwards, and had dug up feveral roots, and made them into ftacks, and made the tops into faggots; fome were used for repairs, others for fuel; and as these were all above the age of 20 years, the body with all the rest are exempt from paying tithes by law: And it was decreed, that the plaintiff fhould have an account of the tithe wood; except for the tithe of oak, ash, and maiden trees of beech proceeding from ftools above 20 years growth: The application therefore to fuel, does not make the dif ference. But it is objected, that it must be prefumed thefe trees now in queftion were cut before 20 years

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growth; and therefore never had the privilege: But as that is not charged by the bill, it cannot be prefumed, As to the beech, if infifted on, it must be tried.-By the lord chancellor Hardwicke: The tithes demanded by the bill are of two forts; first, tops and lops of old pollard oaks, afhes, and elms; fecondly, beech trees, both body and branches. The principal queftion arifes on the tops and lops of old pollard oaks, and the reft. There is no difference in point of fact. It is admitted on both fides, that there is no coppice wood in this ground; that they are ancient pollards: and as to the beeches, that they are of 20 years growth and upwards, and the greatest part of them was cut and made into billets, and fold for fire, except a small part of them which was ufed for pofts and rails. The plaintiff has proved, that at two former falls, tithes were fet 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 fet 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 fe and application of the things of which tithe is demanded: But tho' this be the general right fet forth in the bill; yet if any other right appears, the plaintiff will be intitled to an account. This is a queftion of very great confequence, both to the owners of wood, and to the clergy alfo; and has been argued both from reafon and authorities. And upon the reafon of the thing, it has been faid, that there is no more reason why tithes fhould 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 reafoning, all wood in general would be liable; and tho' this does annuatim crefcere, yet it does not annuatim renovare; at common law coppice wood is fubject to tithes, tho' it does not annuatim rengvare; yet in its nature it ought to pay; for it is cut under a certain courfe of years, and is looked upon as an ordinary stated renewal, like the cafe of faffron; but of timber trees the ftated rule is otherwife, there the law does not wait for a stated courfe of felling. It was further reafoned 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