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2 Inft. 648.



Walton v.

Tryon, Gwill.


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Lord Coke, after ftating this act, fays that two doubts arose on its conftruction: firft, what should be faid great wood; fecondly, of what age the fame fhould be, because it is parcel of the inheritance, and that the word groffe fignifies fuch 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 ferve for the reparation of houses, mills, cottages, &c. fuch 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 Plowden 470. which the court, upon deliberate advice held not to be law.

§ 30. As to the fecond doubt, of what age those timber trees, whereof no tithes fhould be had, must be, the statute refolves this doubt in these words— Great wood of the age of 20 years or upwards-which point was also declaratory of the common law,

§ 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.

§ 32. In a cafe, 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 cuftom of the country: and his Lordship said, that the iffue fhould be whether, by the custom, beech growing within the parish of M. are, and have used to be, deemed timber.

$ 33. It is faid by Lord Coke, that no tithes fhall be paid of fylva cadua, employed in hedging, or for fuel, or for maintenance of the plough or pail.

S 34. In a fubfequent cafe, it was determined, that, where a person cut down underwood for the purpose of fencing his own corn, it was not titheable. But a custom, that underwood cut and ufed for fencing of corn, generally, whereof tithes are payable, and not fold or otherwife difpofed of, fhould be discharged from the payment of tithes, was held void.

S $ 35. This doctrine has been contradicted in the following cafe.

In a bill for tithes of wood, the defendant faid, he felled yearly, at ten years growth, five acres of wood, worth twenty-five fhillings an acre; which he used in amending his hedges, and upon his land, and so was profit to him.-Decreed to account.

of no

§ 36. Tithe is not due of fylva cadua, used in making 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.

$ 37. If

2 Inft. 651. Gwill. 562.

Croucher v.


Gwill. 1576.

Smith v.


Gwill. 603.

Gould. R.93.


Bunb. 20.

Gwill. 828. 969.

Walton v. Tryon, Gwill. 327.


I Wilf. R. 170.

I Inft. 651.
Bunb. 446.

Gwill. 558.

1571. 1582.

§ 37. If the tithe of hops and the tithe of wood are both due to the fame perfon, tithe is not due of fylva cadua, ufed in poling the hops; because the tithe of the hops is increased by the use of the poles.

§ 38. By the common law, tithe is payable of wood employed in the house for fuel; but there may be a cuftom, that it is not titheable.

§ 39. Where trees are confidered 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 cafes, where a fraud is actually attempted upon the parfon; or from neceffity to avoid fraud.

§ 40. The profits, arifing 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 cafe, it was determined that agiftment was a small tithe.

§ 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 fame parish; because the parfon has tithe for them in another way.

§ 42. Agiftment tithe is not payable for horses kept for husbandry, faddle-horses, coach-horses, or other horses used merely for pleasure. But, where coachhorses were used in carrying coals and manure into another

another parish, an agiftment tithe was held to be pay. Thorp v. able for them.

§ 43. Meadow grounds, which have paid tithe of hay, are not afterwards liable to an agistment tithe.

§ 44. Agiftment 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

Bendlowes, Gwill 899.

Ayd v. Flower, Gwill. 613.

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 sow any hemp or flax, fhall pay to the parfon, vicar, or impropriator, yearly the fum of 55. and no more for each acre of hemp and flax fo fown, before the fame be carried off the ground.

§ 46. Madder is also titheable by statute, in the fame manner as hemp and flax.

§ 47. Hops are titheable, and accounted among fmall tithes. The tenth of this article is to be paid after they are picked, and before they are dried.

§ 48. Turnips are fubject to tithe when fevered, 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, fown after corn the fame year; and that he ought not to pay tithe


Crow. v.
3 Burn 465.

Gwill. 714.
S. P.


3 Burn 466.

3 Burn 466.

Adams v.

for any crop or profit of arable land the fame year that the parfon received tithe-corn from the fame ground : but the tithe was decreed.

§ 49. An agiftment tithe is alfo due for turnips, fown after corn, and not fevered, but eaten by unprofitable cattle; though it was urged to be an improvement of the land, and that the parfon had the benefit of it in the next year.

§ 50. All garden herbs and plants, such as parsley, fage, cabbage, are titheable; and the fame is a small tithe; but, most commonly, a certain fum of money is payable in lieu of tithes of gardens, either by custom, or by agreement with the vicar.

§ 51. 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 fhall bear the lofs; but, if the owner fuffer a stranger to take his fruit, the tithe fhall be answered.

§ 52. A claim was made, in the year 1780, by the 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 cafe went of on another point. Ir has, however, been determined by the fame court in a fubfequent cafe, that hot-house plants are not titheable.

Worrall v.

Mich. 1801.

Of what
Things mixed
Tithes are


§ 53. Mixed tithes confift, firft of the tenth of the young of cattle bred in the parish; fuch as calves,


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