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waste, but he in the reversion shall recover the whole damages: and great reason, for the special property was in the lessee for years, the general in him in the reversion, so the tenant for life mean had neither the one nor the other.
Now for the seisure; you may not look for plentiful authority in that for the lessor, which had the more beneficial remedy by action for treble damages, had little reason to resort to the weaker remedy by seisure, and leases without impeachment were then rare, as I will tell you anon. And therefore the question of the seisure came chiefly in experience upon the case of the windfalls which could not be punished by action of
First, therefore, the case of 40 E. III. pl. 22. is express, 40 E. 3. pl. 22. where at the King's suit in the behalf of the heir of Darcy, who was in ward, the King's lessee was questioned in waste, and justified the taking of the trees, because they were overthrown by winds, and taken away by a stranger. But Knevet saith, although one be guardian, yet the trees when by their fall they are severed from the freehold, he hath no property of the chattels, but they appertain to the heir; and the heir shall have trespass of them against a stranger, and not the guardian, no more than the bailiff of a manor. So that that book rules the interest of the tree to be in the heir, and goes to a point' farther, that he shall have trespass for them; but of seisure there had been no question.
So again in 2 H. VII. the words of Brian are that for the 2H. 7. f. 14. timber-trees the lessor may take them, for they are his, and seemeth to take some difference between them and the gravel.
The like reason is of the timber of a house, as appears 34 34 E. 3. f. 6. E. III. f. 5., abridged by Brook Tit. Waste, pl. 34., when it is said it was doubted who should have the timber of a house which fell by tempest; and, saith the book, it seems it doth appertain to the lessor; and good reason, for it is no waste, and the lessee is not bound to reedify it: and therefore it is reason the lessor have it; but Herlackenden's case goes farther, where it is said that the lessee may help himself with the timber if he will reedify it; but clearly he hath no interest, but towards a special employment.
Now you have had a case of the timber-tree, and of the timber of the house; now take a case of the mine, where that of
"appoint" in MS.
9 E. 4. f. 35.
the trees is likewise put, and that is 9 E. IV. f. 35. where it is said by Needham, that if a lease be made of land, wherein there is tin, or iron, or lead, or coals, or quarry, and the lessor enter, and take the tin or other materials, the lessee shall punish him for coming upon his land, but not for taking of the substances. And so of great trees. But Danby goes farther and saith, the law that gives him the thing doth likewise give him means to come by it; but they both agree that the interest is in the lessor. And thus much for the seisure.
For the grant, it is not so certain a badge of property as the other two. For a man may have a property, and yet not grantable, because it is turned into a right, or otherwise suspended. And therefore it is true that by the book in 21 H. VI. f. that if the lessor grant the trees, the grantee shall not take them, no not after the lease expired, because this property is but de futuro, expectant; but it is as plain on the other side, that the lessee cannot grant them, as was resolved in two Marwood and notable cases, namely, the case of Marwood and Sanders, 41 El. in communi banco, where it was ruled, that the tenant of the inheritance may make a feoffment with exception of timber trees, but that if lessee for life or years set over his estate with an exception of the trees, the exception is utterly void; and the like resolution was in the case between Foster and Mills plaintiffs, and Spenser and Boord defendants, 28 Eliz. rot. 820.
Sanders. 5Co. 12.
Foster and Spencer's case.
7 11. 6.
41 E. 3. f. 44.
Now come we to the authorities which have an appearance to be against us, which are not many, and they be easily answered, not by distinguishing subtilly, but by marking the books advisedly.
First, there be two books that seem to cross the authorities touching the interest of the windfalls, 7 H. VI. and 44 E. III. f. 44., where 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 appletrees, 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
Dyer, f. 90.
for taking the trees, which are 5 II. IV. f. 29. and 1 Mar. 5 H. 4. f. 29. 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. 13 H. 7. f. 9. 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 seems to be 12 E. IV. 12 E. 4. f. 8.
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 tion implieth give any reversion or remainder, and yet the statute giving a formedon, where it lay not before, being but an action, implies an actual reversion and remainder.
giving an ac
No grant of property.
5 H. 5.
3 E. 3. 28 H. 8.
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.
First therefore I think the other side will not affirm that this clause amounts to a grant 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.
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.
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
say, that if a
that trenches not the
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 feoffment 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, except 1 Co. 175. 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