SALEABLE UNDERWOODS. 119 



wood. But in Rex v. 3Imchinhampton, Lord Mansfield C.J. said, " Beech 

 is certainly not timber by the general law of the land, yet it may be by 

 the particular custom of the place. I do not mean of the county 

 (Gloucester), but that particular part of the country where the trees 

 grow. It is not the use it is put to that makes it either timber or not 

 timber ; its being or not being timber depends upon the custom of the 

 country. And if it be timber by the custom of the comitry, it must be 

 presumed, and it may be true in fact ' that it was timber before the time 

 of Queen Ehzabeth.' " Mr. White, in a note to his edition of " Cruise's 

 Digest," vol i. 116, says, "Birch trees are considered timber in York- 

 shire and Cumberland ; hccch, cherry, and asi)en in Buckinghamshire ; 

 beech also in Gloucestershire and Bedfordshire ; beech and willow in 

 Hants : in some places, white thorn, holly, black thorn, horse chestnut, 

 lime, yew, crab, and hornbean : in other districts, jwllards, or other 

 timber trees which have been lopped, are, contrary to genei'al estimation, 

 also considered timber." Lord Kiny held ivalnut trees to be timber, and 

 pollards, if their bodies are sound. 



Fir and larches planted with oalcs, for the purpose of sheltering the 

 latter, and cut from time to time, as the oaks grew larger and required 

 more space, but once cut not growing again, and some of them yielding 

 a profit by sale, were held in Rex v. Inhabitants of Ferrybridye not to Ije 

 saleable underwoods within the 43 Eliz. c. 2, the primary object of 

 planting them being to protect the oaks, and not to derive a profit from 

 them|;er se by sale. And per Baylcy J. : " Generally speaking, the term 

 ' underwood ' is applied to a species of w^ood w^hich grows expeditiously 

 and sends up many shoots from one stool, the root remaining perfect 

 from which the shoots are cut, and producing new shoots, and so yield- 

 ing a succession of profits. It is probable that this is the description 

 of underwood to which the statute of EUzaMh applies. But it is not 

 necessary to decide that, inasmuch as that statute also requires that it 

 should be saleable underwood, and the word saleable in Rex v. Inhabi- 

 tants of Mirfield has been held to denote such as is intended or destined 

 for sale, in contradistinction to such as is to supply the land with 

 estovers for fuel and other purposes of the estate. It does not, there- 

 fore, come within the description of saleable underwood, unless the 

 prospect of deriving a profit by sale was the main object of the proprietor 

 when the plantation ' was made." In Rey. v. Inhabitants of Narbcrth 

 North, a wood consisting of oak gi-owing from old stools, with a few ash, 

 alder, and beech trees, had not been felled for 50 years, until three years 

 before it was rated. During the last three years, the owner had annually 

 cut the worst shoots, selling the poles by the dozen for colliery purposes 

 and firewood, and the bark by the ton ; the wood was also occasionally 



