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2 Inft. 648.
Lord Coke, after stating this act, says that two doubts arose on its construction: first, what should be said great wood; secondly, of what age the same should be, because it is parcel of the inheritance, and that the word grosse signifies such wood, as hath been or is, either by the common law or custom of the country, timber : for this act extends not to other woods, that have not been or will not serve for timber, though they be of the greatness of timber.
$ 29. All trees, which serve for the reparation of houses, mills, cottages, &c. such as oak, ash, and elm, are deemed timber within this act : fo is beech, hornbeech, and horn-beam, where used for building, contrary to the opinion of Plowun 470. which the court, upon deliberate advice held not to be law.
S 30. As to the second doubt, of what
those timber trees, whereof no tithes should be had, muft be, the statute resolves this doubt in these wordsGreat wood of the age of 20 years or upwards—which point was also declaratory of the common law,
S 31. Tithe is, in general, due of beech, birch, hazel, willow, fallow, alder, maple, and whitethorn trees, and of all fruit-trees of whatsoever age they are; because the wood of these trees is not usually employed as timber. But, if any of these trees have been used as timber, they are not titheable.
S 32. In a case, where tithe was demanded of beech of above twenty years growth, Lord Hardwicke said, this depended on the question of fact, whether beech was timber by the custom of the country: and his Lordship said, that the issue should be whether, by the custom, beech growing within the parish of M. are,
and have used to be, deemed timber.
$ 33. It is said by Lord Coke, that no tithes shall be 2 Inft. 651. paid of sylva cadua, employed in hedging, or for fuel, Gwill. 562. or for maintenance of the plough or pail.
S 34. In a subsequent case, it was determined, that, Croucher v. where a person cut down underwood for the purpose Gwill.'1576. of fencing his own corn, it was not titheable. But a custom, that underwood cut and used for fencing of corn, generally, whereof tithes are payable, and not fold or otherwise disposed of, should be discharged from the payment of tithes, was held void.
$ 35. This doctrine has been contradicted in the following case.
In a bill for tithes of wood, the defendant said, he Smith v.
Williams, felled yearly, at ten years growth, five acres of wood, Gwill. 603. worth twenty-five shillings an acre; which he used in amending his hedges, and upon his land, and so was of no profit to him.-Decreed to account.
S 36. Tithe is not due of Sylva cædua, used in mak. Anon.
Gould. R.93 ing or repairing carts or ploughs, to be employed in husbandry, in the parish, wherein the wood grew; because, by the use of carts and ploughs, the tithes of other things are increased.
S 37. If
$ 37. If the tithe of hops and the tithe of wood are both due to the same person, tithe is not dué of sylva cædua, used in poling the hops; because the tithe of the hops is increased by the use of the poles.
Gwill. 828. 969.
S 38. By the common law, tithe is payable of wood employed in the house for fuel ; but there may be a custom, that it is not titheable.
Walton v. Tryon, Gwill. 327
S 39. Where trees are considered as timber, either by common law or by custom, no tithes are to be paid of the lops or tops of such trees, for whatever use they are cut; with this exception, that is, in certain peculiar cases, where a fraud is actually attempted upon the parfon; or from necessity to avoid fraud.
S 40. The profits, arising from agistment or pafturage of cattle, are titheable of common right; because the grass that is eaten is titheable, and must have paid tithe, if cut when full grown. And, in a modern case, it was determined that agistment was a small tithe.
I Wils. R. 170.
Inft. 651. Bunb. 446.
S 41. This kind of tithe, however, is payable only for dry or barren cattle, that otherwise yield no profit to the parson, and not for cattle which are kept for the plough or pail in the same parish; because the parson has tithe for them in another way.
§ 42. Agistment tithe is not payable for horses kept for husbandry, saddle-horses, coach-horses, or other horses used merely for pleasure. But, where coachhorses were used in carrying coals and manure into
Gwill. 558. "
another parish, an agistment tithe was held to be pay- Thorp
Bendlowes, able for them.
S 43. Meadow grounds, which have paid tithe of Ayd v.
Flower, hay, are not afterwards liable to an agistment tithe.
S 44. Agistment tithe is payable by the occupier of the ground, not by the owner of the cattle: and, as this tithe cannot be taken in kind, the perfon entitled to it can only receive what it is valued at, according 3 Burn. 448. to the price paid for the keeping of different beasts.
§ 45. Hemp and flax are titheable; but, to encou. Hemp, Flax, rage the growth of these articles, it is enacted by the ftat. 11 and 12 Wm. III. c. 16. that every person, who shall fow any hemp or fax, shall pay to the parson, vicar, or impropriator, yearly the sum of 5 s. and no more for each acre of hemp and flax fo fown, before the fame be carried off the ground.
S 46. Madder is also titheable by statute, in the same manner as hemp and flax.
$ 47. Hops are titheable, and accounted among small tithes. The tenth of this article is to be paid after they are picked, and before they are dried.
S 48. Turnips are subject to tithe when severed, Gwill. 606. though there be more crops than one in the year. And, in a bill for tithe of turnips, the defendant infifted, that no tithe was due for turnips, sown after cořn the same year; and that he ought not to pay tithe
for any crop or profit of arable land the same
that the parson received tithe-corn from the same ground: but the tithe was decreed.
S 49. An agistment tithe is also due for turnips, fown after corn, and not severed, but eaten by unprofitable cattle; though it was urged to be an improvement of the land, and that the parson had the benefit of it in the next year.
$ 50. All garden herbs and plants, such as parsley,
sage, cabbage, are titheable; and the same is a small 3 Burn 466. tithe ; but, most commonly, a certain sum of money
is payable in lieu of tithes of gardens, either by custom, or by agreement with the vicar.
3 Burn 466.
All fruit of trees are predial tithes, to be paid when they are gathered. If they are stolen, the parson as well as the owner shall bear the loss; but, if the owner suffer a stranger to take his fruit, the tithe shall be answered.
S 52. A claim was made, in the year 1780, by the Waller, Gwill. 1204. vicar of Kensington, to the tithe of hot-house plants.
The court of exchequer was of opinion that they were.
titheable; but the case went of on another point. It Worrall v. Miller.
has, however, been determined by the same court Mich, 1801. in a subsequent case, that hot-house plants are not
S 53. Mixed tithes consist, first of the tenth of the young of cattle bred in the parish; such as calves,