CASE OF IMPEACHMENT OF WASTE. 261 



and Sanders, 41 El. in communi banco; where it was ruled, Mai-wood and 



that the tenant of the inheritance may make a feoffment Sanders - c - 



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 plaintiff, and Spencer Foster and 



and Boord defendant, 28 Eliz. rot. 820. Spencer s case. 



Now come we to the authorities, which have an appear 

 ance to be against us, which are not many, and they be 

 easily answered, not by distinguishing subtilly, but by 

 marking the books advisedly. 



1. There be two books that seem to cross the authorities 

 touching the interest of the windfalls, 7 H. VI. and 44 7 H. 6. 

 E. III. f. 44, where, upon waste brought and assigned in * 

 the succision of trees, the j ustification 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 recon 

 ciled 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 sear, and then overthrown by wind; and that 

 makes an end of it, for sear 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 wil 

 lows 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 are 5 H. IV. f. 29. and 5 H. 4. f. 29. 

 1 Mar. Dier. f. 90, Mervin s case ; and you might add if l Ma - f - 90 - 

 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 distinguished 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 13H.7. f. 9 



