ruption by suit in law, and upon the matter all one with implacitatio. Wherein first we may take light of the derivation of impetitio, which is a compound of the preposition in and the verb peto, whereof the verb peto itself doth signify a demand, but yet properly such a demand as is not extrajudicial: for the words petit judicium, petit auditum Brevis, &c. are words of acts judicial; as for the demand in pais, it is rather requisitio, than petitio, as licet sæpius requisitus. So much for the verb peto. But the preposition in enforceth it more, which signifies against: as Cicero in Verrem, in Catilinam; and so, in composition, to inveigh is to speak against. So it is such a demand only where there is a party raised to demand against, that is an adversary, which must be in a suit in law. And so it is used in records of law.

As Coke, lib. 1. f. 17., Porter's case, it was pleaded in bar that dicta domina regina nunc ipsos Johannem et Henricum Porter impetere seu occasionare non debet, that is, implacitare.

So likewise Coke, 1. 1. f. 27., case of Alton Woods, quod dicta domina regina nunc ipsum proinde aliqualiter impetere seu occasionare non debet.

So in the book of entries, f. 1. lit. D. 15 H. VII. rot. 2., inter placita Regis. Et super hoc venit N. B. Comonachus Abbatis W. loci illius ordinarii, gerensque vices ipsius Abbatis, ad quoscunque clericos de quolibct crimine coram domino Rege impetit' sive irritat' calumniand'. So much ex vi et usu termini.

For reason; first it ought to be considered that the punishment of waste is strict and severe, because the penalty is great; treble damages, and the place wasted: and again, because the lessee must undertake for the

acts of strangers. Whereupon I infer, that the reason which brought this clause in use ab initio was caution, to save and to free men from the extremity of the penalty, and not any intention to countermand the property.

Add to this, that the law doth assign in most cases double remedy, by matter of suit and matter in pais; for disseisins, actions [and]1 entries; for trespasses, action and seisure; for nuisances, action and abatement; and, as Littleton doth instruct us, one of these remedies may be released without touching the other. If the disseisee release all actions, saith Littleton, yet my entry remains. But if I release all demands, or remedies, or the like words of a general nature, it doth release the right itself. And therefore I may be of opinion, that if there be a clause of grant in my lease expressed that if my lessee or his assigns cut down and take away any timber-trees that I and my heirs will not charge them by action, claim, seisure, or other interruption, either this shall inure by way of covenant only, or you take it to inure by way of absolute discharge, it amounts to a grant of property in the trees like as the case of 31 Assis.;2 I grant that if I pay 31 Assis. not you ten pounds per annum at such feasts, sounds to a shall distrain for it in my manor of Dale; amounts to a you though this sound executory in power yet it property, be amounts to a present grant of a rent. So as I conclude that the discharge of action the law knows, grant of the property the law knows, but this same mathematical power being a power amounting to a property, and yet no property, and knit to a state that

if

1 Not in MS.

2 A blank for the folio is left in the MS.

A clause that

the state bear

it.

cannot bear it, the law knoweth not, tertium penitus ignoramus.

For the authorities, they are of three kinds, two by inference, and the third direct.

42 E. 3. f. 23, 24.

The first I do collect upon the books of 42 Edw. III. fol. 23. and 24., by the difference taken by Mowbray, and agreed by the court, that the law doth intend the clause of disimpeachment of waste to be a discharge special, and not general or absolute. For there the principal case was that there was a clause in the lease, that the lessor should not demand any right, claim, or challenge in the lands during the life of the lessee: it is resolved by the book, that it is no bar in waste, but that if the clause had been that the lessee should not have been impeached for waste, clearly a good bar; which demonstrates plainly, that general words, be they never so loud and strong, bear no more than the state will bear, and to any other purpose are idle; but special words that inure by way of discharge of action are good and allowed by law.

4 E. 2. Fitzh.

tit. waste 15.

Fitzh. tit.

waste 101.

The same reason is of the books 4 Ed. 17 E. 3. f. 7. II. Fitzh. tit. waste 15. and 17 E. III. f. 7. Fitzh. tit. waste 101., where there was a clause, Quod liceat facere commodum suum meliori modo quo poterit: yet, saith Skipwith, doth this amount, that he shall, for the making of his own profit, disinherit the lessor? Nego consequentiam. So that still the law allows not of the general discharge, but of the special, that goeth to the action.

9 H. 6. f. 35. Fitzh tit. waste 39.

The second authority by inference is out of 9 H. VI. fol. 35. Fitzh. tit. waste 39., and 32 H. VIII. Dyer, fol. 47., where the learning is taken, that notwithstanding this clause be in

Dyer, f. 47.

serted into a lease, yet a man may reserve unto himself remedy by entry. But say I, if this clause should have that sense which they on the other side would give it, namely, that it should amount to an absolute privilege and power of disposing, then were the proviso flat repugnant, all one as if it were absque impetitione vasti, proviso quod non faciet vastum, which are contradictories; and note well that in the book of 9 H. VI. the proviso is quod non faciat vastum voluntarium in domibus, which indeed doth but abridge in one kind, and therefore may stand without repugnancy, but in the latter book it is general, that is to say absque impetitione vasti, et si contigerit ipsum facere vastum tunc licebit reintrare. And there Shelley making the objection, that the condition was repugnant, it is salved thus, sed aliqui tenuerunt, that this word impetitione vasti is to be understood that he shall not be impleaded of1 waste, or punished by action; and so indeed it ought: those aliqui rectè tenuerunt.

For the authorities direct, they are two, 27 H. 6. Fitzh. the one 27 H. VI. Fitzh. tit. waste 8., where

tit. waste 8.

a lease was made without impeachment of waste, and a stranger committed waste, and the rule is that the lessee shall recover in trespass only for the crop of the tree, and not for the body of the tree. It is true it comes by a dicitur, but it is now a legitur; and a quære there is, and reason; or else this long speech were time ill spent.

And the last authority is the case of Sir Moyle Finch and his mother, referred to my Lord Wrey and Sir Roger Manwood, resolved upon conference with other of the judges, vouched by Wrey in Herlacken1 "By" in MS.

Statute of

den's case, and reported to my Lord Chief Justice here present, as a resolution of law, being our very case. And for the cases to the contrary, I know Marlebridge. not one in all the law direct. They press the statute of Marlebridge which hath an exception in the prohibition firmarii non facient vastum, etc. nisi specialem inde habuerint concessionem per scriptum conventionis, mentionem faciens, quod hoc facere possint. This presseth not the question, for no man doubts but it will excuse in an action of waste; and again nisi habeant specialem concessionem may be meant of an absolute grant of the trees themselves. And otherwise the clause absque impetitione vasti taketh away the force of the statute and looseth what the statute bindeth, but it toucheth not the property at common law.

Littleton.

For Littleton's case in his title of conditions, where it is said that if a feoffment in fee be made upon condition, that the feoffee shall infeoff the husband and wife, and the heirs of their two bodies; and that the husband die; that now the feoffee ought to make a lease without impeachment of waste to the wife, the remainder to the right heirs of the body of her husband and her begotten; whereby it would be inferred, that such a lessee should have equal privileges with tenant in tail: the answer appears in Littleton's own words, which is that the feoffee ought to go as near the condition, and as near the intent of the condition, as he may, but to come near is not to reach, neither doth Littleton undertake for that.

case.

Culpepper's As for Culpepper's case, 2 El. f. 184., it Dyer, f. 184. is obscurely put, and concluded in division. of opinion; but yet so as it rather makes for us. The case is 2 Eliz. Dyer, fol. 184. and is in effect this. A