262 CASE OF IMPEACHMENT OF WASTE. 



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 it 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 sever 

 ance 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 pro 

 perty, 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 pro 

 perty ; and, therefore, that the statute of Gloucester giving 

 damages should exclude property. The authority seems 

 12 E. 4. f. 8. to be 12 E. IV. f. 8, where Catesbey, affirming that the 

 lessee at will shall have the great trees, as well as lessee for 

 years or life ; Fairfax and Jennings correct it with a dif 

 ference, 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 termors. 



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 Glou 

 cester 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 

 reversion or remainder; and yet the statute giving a for- 

 medon, where it lay not before, being but an action, implies 

 an actual reversion and remainder. 

 A statute giving Thus have I passed over the first main part, which I 



