where

7 H. 6. 44 E. 3. f. 44.

authorities touching the interest of the windfalls, 7 H. VI. and 44 E. III. f. 44., upon waste brought and assigned in the succision of trees, the justification is that they were overthrown by wind, and so the lessee took them for fuel, and allowed for a good plea; but these books are reconciled two ways. First, look into both the justifications, and you shall find that the plea did not rely only in that they were windfalls, but couples it with this, that they were first sere, and then overthrown by wind; and that makes an end of it, for sere trees belong to the lessee, standing or felled, and you have a special replication in the book of 44 E. III. that the wind did but rend them, and buckle them, and that they bore fruit two years. after. And secondly, you have ill-luck with your windfalls, for they be still apple-trees, which are but wastes per accidens, as willows or thorns are in the sight of a house: but when they are once felled they are clearly matter of fuel.

Another kind of authorities, that make show against us, are those that say that the lessee shall punish the lessor in trespass for taking the trees, which 5 H. 4. f. 29. are 5 H. IV. f. 29. and 1 Mar. Dyer, f. 90. Dyer, f. 90. Mervin's case; and you might add if you will 9 E. IV. the case vouched before: unto which the answer is, that trespass must be understood for the special property, and not for the body of the tree; for those two books speak not a word what he shall recover, nor that it shall be to the value. And, therefore, 9 E. IV. is a good expositor, for that distinguisheth where the other two books speak indefinitely. Yea, but 5 H. IV. goes farther, and saith, that the writ shall purport arbores suas, which is true in respect of the special property;

neither are writs to be varied according to special cases, but are framed to the general case; as upon lands recovered in value in tail, the writ shall suppose donum, a gift.

And the third kind of authority is some books (as 13 H. 7. f. 9. 13 H. VII. f. 9.) that say, that trespass lies not by the lessor against the lessee for cutting down trees, but only waste; but that is to be understood of trespass vi et armis, and would have come fitly in question if there had been no seisure in this case.

Upon all which I conclude, that the whole current of authorities proveth the properties of the trees upon severance to be in the lessor by the rules of the common law; and that although the common law would not so far protect the folly of the lessor, as to give him remedy by action, where the state was created by his own act, yet the law never took from him his property, so that, as to the property, before the statute and since, the law was ever one.

Now come I to the third assertion, that the statute of Gloucester hath not transferred the property of the lessee upon an intendment of recompense to the lessor: which needs no long speech. It is grounded upon a probable reason, and upon one special book.

The reason is, that damages are a recompense for property; and therefore that the statute of Gloucester giving damages should exclude property: the authority 12 E. 4. f. 8. seems to be 12 E. IV. f. 8., where Catesbey, affirming that lessee at will shall have the great trees, as well as lessee for years or life, Fairfax and Jennings correct it with a difference, that the lessor may take them in the case of tenant at will, because he hath no remedy by the statute, but not in case of the termor.

This conceit may be reasonable thus far; that the lessee shall not both seise and bring waste, but if he seise he shall not have his action, if he recover by action he shall not seise. For a man shall not have both the thing and recompense. It is a bar to the highest inheritance (the kingdom of Heaven) receperunt mercedem suam. But at the first, it is at his election whether remedy he will use; like as in the case of trespass, where if a man once recover in damages it hath concluded and turned the property. Nay, I invert the argument upon the force of the statute of Gloucester thus; that if there had been no property at common law, yet the statute of Gloucester, by restraining the waste, and giving an action, doth imply a property; whereto a better case cannot be put than the case upon the statute de donis conditionalibus, where there are no words to give any rever- giving an acsion or remainder, and yet the statute giving a formedon, where it lay not before, being but an action, implies an actual reversion and remainder.

A statute

tion implieth an interest.

Thus have I passed over the first main part, which I have insisted upon the longer, because I shall have use of it for the clearing of the second.

Now to come to the force of the clause, absque impetitione vasti. This clause must of necessity work in one of these degrees, either by way of grant of property, or by way of power and liberty knit to the state, or by way of discharge of action: whereof the first two I reject, the last I receive.

No grant of

First therefore I think the other side will not affirm that this clause amounts to a grant property. of trees; for then, according to the resolution in Herlackenden's case, they should go to the executors, and

the lessee might grant them over, and they might be taken after the state determined. Now it is plain that this liberty is created with the estate, passeth with the estate, and determines with the estate.

5 H. 5.

That appears by 5 Hen. V. where it is said that if lessee for years without impeachment of waste accept a confirmation for life, the privilege is gone.

3 E. 3.

28 H. 8.

And so are the books in 3 E. III. and 28 H. VIII. that if a lease be made without impeachment of waste pour autre vie, the remainder to the lessee for life, the privilege is gone, because he is in of another estate; so then plainly it amounts to no grant of property, neither can it any ways touch the property, nor enlarge the special property of the lessee. For will any man say, that if you put Marwood and Sanders's case of a lease without impeachment of waste, that he may grant the land with the exception of the trees any more than an ordinary lessee? Or shall the windfalls be more his in this case than in the other? for he was not impeachable of waste for windfalls no more than where he hath the clause. Or will any man say, that if a stranger commit waste, such a lessee may seise? These things, I suppose, no man will affirm. Again, why should not a liberty or privilege in law be as strong as a privilege in fact? as in the case of tenant after possibility? or where there is a lessee for life the remainder for life? For in these cases they are privileged from waste, and yet that trenches not the property.

Now, therefore, to take the second course, that it should be as a real power annexed to the state; neither can that be, for it is the law that mouldeth estates, and

not men's fancies. And therefore if men by clauses, like voluntaries in music, run not upon the grounds of law, and do restrain an estate more than the law restrains it, or enable an estate more than the law enables it, or guide an estate otherwise than the law guides it, they be mere repugnancies and vanities. And therefore if I make a feoffinent in fee provided the feoffee shall not fell timber, the clause of condition is void. And so on the other side, if I make a lease with a power that he shall fell timber, it's void.

So if I make a lease with a power that he may make feoffment, or that he may make leases for forty years, or that if he make default I shall not be received, or that the lessee may do homage; these are plainly void, as against law, and repugnant to the state. No, this cannot be done by way of use, 1 Co. 175. except the words be apt, as in Mildmay's case: neither is this clause in the sense that they take it, any better.

Therefore, laying aside these two constructions, whereof the one is not maintained to be, the other cannot be let us come to the true sense of this clause, which is by way of discharge of the action, and no more. Wherein I will speak first of the words, then of the reason, then of the authorities which prove our sense, then of the practice which is pretended to prove theirs; and, lastly, I will weigh the mischief how it stands for our construction or theirs.

It is an ignorant mistaking if any man take impeachment for impedimentum, and not for impetitio. For it is true that impedimentum doth extend to all hindrances, or disturbances, or interruptions, as well in pais as judicial but impetitio is merely a judicial claim or inter

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