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PATTERSON v. M'CAUSLAND. 81
land, that of a multitude of oaks he had felled there, he counted
the concentrical rings of one of about thirty-four inches in diame-
ter, which was sound at the butt, as nearly as he could ascertain
them, to the number of two hundred; but those of the last fifty
years growth, next the bark, were so thin, he could not count
them with certainty; though, as he thought, with sufficient accu-
racy to ground a calculation upon as to the proper age for felling
timber; ranging as to oaks from one to two hundred years of age;
and as to elms from fifty to a hundred years of age. (e)
There is, according to the law of England, not only a custom as
to what may properly be regarded as timber; (f} but also a cus-
tom as to what is called a husbandlike manner as well in regard to
the best season as to the proper growth at which trees should be
cut. And to prevent the violation of such customs an injunction
may be obtained, (g) Yet there does not appear to have been any
clear well settled rules laid down as to what is to be deemed the
proper age, size and season for cutting timber of any description.
What, in some of the old books, is called Sylva Caedua, coppice,
or under growth, was not considered as fitto be cut sooner than at
twenty years growth. But latterly the common forest growth
seems to have been regarded as timber, not according to its age,
but by its size and utility. It would seem to have been held, in
England, that the proper season for cutting timber was when the
sap was down; that is, in the winter season after the trees had
been divested of their foliage, (h) In this country, it is believed,
there are no legal rules in relation to this matter. But it has been
said, that after the forest trees have parted with their leaves in
autumn, that their organs still continue their functions, though more
slowly, during the whole winter; and in so doing accumulate a
considerable quantity of matter in the vascular tissue of the stem;
which matter, except the resin of the pine, being often of a nature
rather to accelerate than prevent decay, is believed to be liquified
and carried up in the spring, and then by the newly formed leaves
digested, and sent down again for the nourishment and enlarge-
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(e) Rees' Cyclo, v. Timber.—(f) Co. Litt. 53; Chandos v. Talbot, 2 P. Will.
606.—(g) Aston v. Aston, 1 Ves. 264; Chamberlyne v. Dummer, 1 Bro. C. C. 166, S.
C.; 3 Bro. C. C. 549, S. C.; 2 Dick. 600; Oxenden v. Compton, 2 Yes. jun., 70,73:
Hampton e. Hodges, 8 Ves, 105; Ex parte Phillips, 10 Ves. 119; Gower v. Eyeir,
Coop. Hep. 156; Bridges o. Stephens, 2 Swan, 159,note; Smythe v. Smythe, 2 Swan,
251.—(&) 2 Inst 642; F. N. B. 59; Chamberlyne v. Dummer, 3 Bro. C. C. 540;
Bac. Abr, tit. Waste, C. 2.
11 v.3
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