CASE OF IMPEACHMENT OF WASTE. 263 



have insisted upon the longer, because I shall have use of an action im- 

 it for the clearing of the second. P lieth an inte &quot; 



Now to come to the force of the clause absque impetitione re: 

 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. 



Therefore I think the other side will not affirm that this No grant of 

 clause amounts to a grant of trees ; for then, according to P r P ert y- 

 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 5 H. 5. 

 for years without impeachment of waste accept a confirma 

 tion for life, the privilege is gone. 



And so are the books in 3 E. III. and 28 H. VIII. that 3 E. 3. 

 if a lease be made without impeachment of waste pour autre 28 H - 8 - 

 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 vani 

 ties. And therefore, if I make a feoffment in fee, provided 



