case walton against tryon and other Dec lop and top of ancient pollard oak and  ash be exempt from tithe the use to which wood be apply do not determine the  right to tithe lib Reg b foe S c dick Lord chancellor after have take time  from last term to consider of it give his opinion this bill be bring for  satisfaction of three species of tithe as rector of Mickleham in Surre first  of the lop of ancient pollard oak and ash in a certain wood second of beech  wood as well of the body as of the lop in the same wood three of stork breed  in Ashhurst warren the last be claim only by custom the principal question  arise on the two first species of tithe and on those two there be no great  difference as to the evidence of fact it be agree there be no Underwood in  Ashhurst wood that the oak and ash be ancient pollard that the beech which be  cut be of twenty year growth and upward and that by far the great part be make  into faggot and sell for firewood except some few use for wheelwright work c  that by two former fall of this wood tithe be set out and pay one of the fall  be in and the other in or the defendant have not prove any fall of this wood  when tithe be not pay but have prove that at one of those two ambler fall Mr  tryon the owner live in Northamptonshire and that tithe for wood of the like  kind be not pay first point make be that all kind of wood use for fire be  liable to tithe that the use and application determine the right of tithe it  have be argue on the reasonableness of the thing and on authority of precedent  and the case of greenaway v the earl of ken wood S c e you have be much rely  on it be argue there be no more reason why tithe shall not be pay of wood as  of any other product of the earth because annuatin renovator the answer be a  very plain one that reason will prove too much for tithe be not due of all  kind of wood as timber the wood may be say annuatin to come into being yet not  to renew for to renew mean profit take and the product renew again all coppice  wood be liable to tithe see turner v Wheedon e you wood and though non  annuatin to renew yet in a certain course of time after they be cut they grow  up again like saffron which in some place be not gather but once in three year  but as to timber tree from the ordinary use of they the law be otherwise they  be not cut at a certain state time it be argue that the Toppings be  tenantright profit and therefore not to be consider as part of the inheritance  but this be no rule of tithe it vary in different county by different usage  and will make the rule of law as to tithe very uncertain in many place the  Toppings of certain spiral tree be allow to be cut by the tenant and those  tree be certain timber tree and yet it be never think that they be liable to  tithe the next argument be that the use determine the right of tithe as it do  coppice and this go direct to the question seek to be put in issue by the bill  but this will be a innovation and introductive of confusion as to the right of  tithe that will equal affect the clergy as the laity the subsequent use of the  thing as it do not alter the nature of it so it can add a tithable quality to  it which it have not before if it can why not v ice line if maple or beech  which pay ambler tithe unless the custom be otherwise shall be apply  occasional to the same use as timber why shall such use not exempt then from  payment of tithe but this be never think of and yet it be equal reasonable  that it be say in certain case the use determine the right of tithe and there  will be no great uncertainty or inconvenience in the one case than in the  other and be instance in the case of wood cut to be burn in the house of the  parishioner in the parish but that be not of common right but by special  custom only cro car and operate by way of exemption another case cite of the  agistment of cattle for plough or pail no tithe be pay but that be not  praedial but mix tithe which the owner be not oblige to set out on any  particular spot of ground or at a certain time and the parson receive tithe  for they in another kind both those cause operate by way of exemption of thing  that be liable to tithe there be no ambler er p case where thing not original  Chargeable with tithe in their own nature shall afterward become so from the  use make of they tithe of wood be praedial and must be set out on the spot at  the time of fall it be impossible in many case to say at the time of cut to  what use it shall be apply as where sell to a dealer beside the subsequent use  will vary the law in many county without a custom to warrant it in county  where timber be very plentiful and particular when it be plentiful and remote  from watercarriage timber be often cut down and use for fire it will  constitute two different commonlaws of tithe so much on the reason of the  thing but the law of tithe be positive it be settle that all tree of twenty  year growth whether timber at commonlaw or by custom and their lop and top be  free from tithe to whatever use they be put except in case of fraud intend to  be put on the parson this general rule be declare in the stat of silva cdua  Edward much be say in the book whether that stat be a new law but all those  question be at a end and it have be determine ambler to be declarative of the  commonlaw though Belknap in the that Edward be of the contrary opinion as to  the state of Sarum mention in Leon Fitzherbert n b Reg Lord   in Inst say he  can find the concordatum so do Selden in his history of tithe the stat of  Edward consider the value of the wood as gross bois at the age of twenty year  the constant opinion of court of law have be from that time to the case of  greenaway v the earl of ken that timber tree be free from tithe as well their  lop and top as their body and so be Plowd Mulletts case in that case the court  hold hornbeam not to be timber Sobi v molins Plowd S c e you but make no  difference between pollard and other tree and ever since that case unless by  custom they be not consider as timber same doctrine in   liffords case Inst  lie down some general rule which have not be contradict except in the case of  sprout grow out of stool and that for good reason because great part of the  coppice grow from sprout of old timber tree and it will deprive the clergy of  great part of their tithe I be ask what difference whether sprout grow out of  the stool of treesentirely cut down or from the head after it be lop in answer  there be great difference for as to sprout from stool there be no tree remain  from whence they can derive the privilege as in the other case see c b  Alexander remark on this passage in the case of row v Evans Mcleland and young  in cro Elizabeth more the lop after twenty year growth of the tree shall be  privilege although loped every seven or ten year and so be light Rep but if  cut before twenty year the bough and branch shall always be titheable vicar of  Wainsboroughs case e you contra anon e you Ro Abr case cite in opposition to  this be man v Somerton Brownl opinion of Tanfield c I but it be not material  for what he lie down be clear law and do not contradict the above principle  Canwell v haw lev this be cite on the general question that the use determine  the right of tithe for Wyndham I there say that pollard of fifty year growth  shall pay tithe but there be no case to warrant it and it be not much to be  rely on and the less because the same case be report in Syd and it appear  there that he mean ambler coppice wood and the case as in Syd go further and  say that timber tree grow sparsim in coppice only privilege themselves if lop  it be say pollard be not timber but yet they have once gain a privilege shall  not lose it and there be no more reason why pollard shall lose their privilege  than that dotard shall I come now to modern precedent which be not easy  reconcilable between themselves in Briggs v Martin Trin W m wood e you it be  say tithe shall be pay for lop of pollard and dotard but it do not appear  whether they be cut before twenty year Norton v collard wood e you mich W m be  direct contrary to the former and tithe be decree to be pay except for the lop  of pollard which the court declare to be discharge by law Mayfield v Cowper  layfield v Cowper wood e you that July be not applicable and therefore shall  not go into it greenaway v earl of ken bill for tithe of wood and top of  pollard all use for fire it appear in proof that all have be cord and use  together and it be decree that tithe shall be pay of all tree of twenty year  growth as of Underwood that be cut and cord the court ambler er p be divide  and ware c b differ with the other three baron and deliver a very learned  argument against the decree and I think his the better opinion I have inform  myself of the ground on which the three baron will price b say ancient statute  be to be construe accord to the intent and meaning that gross bois be not all  sort of wood above twenty year growth but timber and use for building so that  the ground whether titheable or not be the be use for building but this be not  agreeable to the statute and the determination upon it he cite stat h VIII but  that statute only give protection to wood of such dimension and do not say  that other timber shall not be privilege and it may as well be say although  the law say a man shall be at age at twentyone yet it shall be determine by  his sense or stature as there be no precedent before that case so there have  be none since in Bibi v Huxley the court disavow the rule that the subsequent  use determine the right of tithe ambler but still if these tree be lop before  twenty year and have continue to be so since they will be liable to tithe but  first tithe of wood may be demand from necessity to prevent fraud on the  parson as if in a coppice there be a few tree of twenty year growth contra  anon e you Ro Abr and when the coppice be cut a few Toppings be make of those  tree and they be bind up with the other it be impracticable at least not to be  do without great expense which the parson must show to distinguish the one  from the other cro Elizabeth as to the fact it do not appear probable on the  proof there be evidence of two Toppings and tithe pay for they but that be not  sufficient for I to say in all event they be liable to tithe as they be lie in  the bill to be ancient pollard and by proof be very large if plaintiff choose  I will direct a issue j pretty difficult to say whether they be lop before  twenty year or not for no evidence can be of the fact for it be agree they be  at least two hundred year old as to beech question of fact whether beech wood  of twenty year growth be timber within this parish in abbot v Hicks wood Trin  W it be direct to inquire of the custom as to a parish only so Fitzherbert  title waste to edition which cite rastal man v Somerton e you Lapthomes case e  you the issue may be general whether time out of mind in the parish of  Mickleham beech have be deem timber and that will avoid the difficulty with  regard to the limit of the custom on which in the wield of ken there have be  abundance of trial d demand of tithe for rabbit in kind there be no evidence  of payment of tithe in kind but of four couple of rabbit and S ayear argue  that it be a composition and not a modus for then it will be too rank evidence  that other warren in this parish pay composition payment of part in kind and  part in money may be even a good modus ambler let the plaintiff take to the  first day of cause next term to consider whether he will have issue direct  afterward on the first day of cause in the next term the plaintiff consent to  take issue which be direct accord rames case Gwill S c e you ram v Patenson  cro Elizabeth S c e you Samson v Worthington   e you break v Roger cro James S  c e you reynold case more e you dr Newmans case godb e you Thompson v holt  wood S c Gwill e you modern v knight wood Gwill S c e you anon Br g S c e you  daw v molins Leon S c e you in most of the early case it seem to have be  consider that wood use as fuel be exempt at commonlaw see austin v Lucas cro  Elizabeth S c e you the parson of ramsay case Goulsb S c e you Selden v Walter  vent e you turner v Weedon wood S c e you Goodall v Perkins wood Gw S c e you  Roffe v Harding Gwill S c e you erskin v buffle Gwill S c e you Ellis v drake  roll Abr dr watt case keb S c e you Ellis v Fermor wood Gwill S c e you brown  v Nixon Ro ab Trott v Bud wood but in other it appear to have be hold exempt  by custom only rooket v Gomershall Litt you ambler er p Norton v Harmer cro  car Litt Rep S c e you Dowdeswell v Harker e you in a anon case Freem S c Gw e  you the court of exchequer will not determine whether wood use for fuel be  exempt without custom there be opinion both way but in the late case of Willis  v stone in the excheq that June you I Lord chief baron Alexander rely  principal upon what be say by Lord Hardwicke in the principal case and upon  the decision of sir Thomas plumer in the case of page and Wilson I W decide  after review all the previous authority that wood use for fuel in the  husbandryhouse be not exempt from tithe by the commonlaw but may be so by  custom see Lagden v Flack Hagg S c e you Burrel v Greenacres wood S c e you  weeden v harden e you and see Inst see walbank v Hayward wood S c e you ford v  racster m S S c e you amber v Jackson wood turner v smith Gwill Lewis v Snell  e you but see Wray v clinch cro Elizabeth S c e you anon cite in Lyfords case    e you stamp v Clinton Ro e you fox v Thexton Mod e you bibi v Huxley bunb S  c e you in the case of Chichester v Sheldon sir t plumer decide that tithe be  due of common right for timber tree of the age of year and upward grow from  old stool and this decision be follow in the exchequer in the case of Evans v  row m you but qucere the correctness of these decision and see observation  upon the case of Evans and row by Mr William eagle in the note of the  principal case in Mr Cox ms DD it be say a case be also mention of greenaway v  earl of ken in the excheq and a account of it be read b the Lord chancellor  out of Mr baron price ms which the Lord chancellor say he have from Lord  Parker where it be hold by three baron against Lord c b ware that the Toppings  of timber tree cord into faggot be titheable but the Lord chancellor say he  deny that case to be law and say he have read over the reason give by the  chief baron ware for his opinion which he concur with and that the other baron  be mistake in the law in serj hill ms Vol p this message stand thus the  plaintiff have prove that in the time of his predecessor title be pay as be  now claim once in and once in and but the defendant have proed that the owner  be absent in those year and that tithe in general have not be pay for wood  another demand by the bill in this case be for the tithe of rabbit and it be  hold by the Lord chancellor that rabbit be not titheable unless by custom and  there appear some doubt whether there be such a custom or not the Lord  chancellor direct a issue to try it Cox ms DD it do not appear however from  lib Reg that any such issue be direct by the decree that rabbit be not  titheable except by custom see anon Litt Rep S c e you anon e you daw v  Huddlestone cro car S c e you anon march e you Randal v head Eq can ab S c  hard e you Towerson v Wingate keb S c e you web v Newman keb S c e you Philips  v clever keb S c e you Nicholas v Elliot bunb wood e you bull v Robinson wood  S c e you from the entry in lib Reg b fol it appear that this cause be hear on  the that that and that day of November and on the that of January the date of  the entry on which last day it be state to have be order that the bill do  stand dismiss out of this court without cost this appear not to be quite  correct as in the same book fol there be a entry bear date the that February  from which it appear that upon motion make that day by the counsel for the  plaintiff it be allege that by the order make on the that January last the  plaintiff wave the try of any issue as to any of the demand name in the say  bill except that of the tithe of the oak and ash pollard tree in a certain  place call Ashhurst mention in the plaintiff bill it be order that the  plaintiff bill shall stand dismiss out of court as to all demand except for  tithe of oak and ash pollard without cost and as to the residue of the relief  seek it be order that the party shall proceed to trial on the follow issue  whether the say oak and ash pollard at the time they be first lop be of the  growth of twenty year or upward ambler er p and that the plaintiff here shall  be plaintiff at law and it be further order that the jury which shall try the  issue shall have a view of the say tree and the plaintiff now wave the trial  of the say issue it be pray on his part that the residue of the bill may be  dismiss without cost and his lordship upon hear the counsel of the defendant  order that the order make at the hear be draw up as a dismissal of the whole  bill without cost in vol of e you there be a note of this case from ms