CASE OF IMPEACHMENT OF WASTE. 265 



inter placita regis, et super hoc venit W. B. commonachus 

 abbatis W. loci illius ordinarily gerensque vices ipsius abbatis, 

 ad quoscunque clericos de quolibet crimine coram domino 

 rege impetitos sive irritatos calumniand . So much ex vi et 

 usu termini. 



For reason : first, it ought to be considered that the pu 

 nishment of waste is strict and severe, because the penalty 

 is great, treble damages, and the place wasted : and again, 

 because the lessee must undertake for the acts of strangers ; 

 whereupon I infer, that the reason which brought this clause 

 in use, ab initio, was caution to save, and to free men from 

 the extremity of the penalty, and not any intention to coun 

 termand the property. 



Add to this, that the law doth assign in most cases double 

 remedy, by matter of suit, and matter in pais ; for disseisins, 

 actions and entries ; for trespasses, action and seisure ; for 

 nuisances, action and abatement: and, as Littleton doth 

 instruct us, one of these remedies may be released without 

 touching the other. If the disseisee release all actions, 

 saith Littleton, yet my entry remains ; but if I release all 

 demands / or remedies, or the like words of a general nature, 

 it doth release the right itself. And, therefore, I may be of 

 opinion, that if there be a clause of grant in my lease ex 

 pressed, that if my lessee or his assigns cut down and take 

 away any timber-trees, that I and my heirs will not charge 

 them by action, claim, seisure, or other interruption, either 

 this shall inure by way of covenant only, or if you take it 

 to inure by way of absolute discharge, it amounts to a grant 

 of property in the trees, like as the case of 31 Assis. I grant, 31 ^ssis. 

 that if I pay not you ten pounds per annum at such feasts, A clause that 

 you shall distrain for it in my manor of Dale, though this 80un&amp;lt; ^* to 

 sound executory in power, yet it amounts to a present grant fo a^roperty,* 

 of a rent. So as I conclude that the discharge of action the if the state bear 

 law knows, grant of the property the law knows, but this iu 

 same mathematical power being a power amounting to a 

 property, and yet no property, and knit to a state that can 

 not bear it, the law knoweth not, tertium penitus ignoramus. 



For the authorities, they are of three kinds, two by in 

 ference, and the third direct. 



The first I do collect upon the books of 42 Edw. III. fol. 42 E. 3. f. 23, 

 23 and 24, by the difference taken by Mowbray, and agreed 24. 

 by the court, that the law doth intend the clause of disim- 

 peachment of waste to be a discharge special, and not 

 general or absolute ; for there the principal case was, that 

 there was a clause in the lease, that the lessor should not 

 demand any right, claim, or challenge in the lands during 



