CASE OF IMPEACHMENT OF WASTE. 267 



and his mother, referred to my Lord Wrey and Sir Roger 

 Man wood, resolved upon conference with other of the judges 

 vouched by Wrey in Herlackenden s case, and reported to 

 my Lord Chief Justice here present, as a resolution of law, 

 being our very case. 



And for the cases to the contrary, I know not one in all Statute, &c. 

 the law direct ; they press the statute of Marlebridge, which Marle 

 hath an exception in the prohibition, Jirmarii non facient 

 vastum, etc. nisi specialem inde habuerint concessionem per 

 scriptum conventionis, mentionem faciens, quod hoc facere 

 possint. This presseth not the question ; for no man doubt- 

 eth, but it will excuse in an action of waste ; and again, 

 nisi habeant specialem concessionem may be meant of an ab 

 solute grant of the trees themselves; and otherwise the 

 clause absque impetitione vasti taketh away the force of the 

 statute, and looseth what the statute bindeth ; but it touch- 

 eth not the property at common law. 



For Littleton s case, in his title Of Conditions, where it Littleton. 

 is said, that if a feoffment in fee be made upon condition, 

 that the feoffee shall infeoff the husband and wife, and the 

 heirs of their two bodies ; and that the husband die, that 

 now the feoffee ought to make a lease without impeachment 

 of waste to the wife, the remainder to the right heirs of the 

 body of her husband and her begotten ; whereby it would 

 be inferred, that such a lessee should have equal privilege 

 with tenant in tail : the answer appears in Littleton s own 

 words, which is, that the feoffee ought to go as near the 

 condition, and as near the intent of the condition as he may. 

 But to come near is not to reach, neither doth Littleton 

 undertake for that. 



As for Culpepper s case, it is obscurely put, and con- Culpepper s 

 eluded in division of opinion ; but yet so as it rather makes a * e - 

 for us. The case is 2 Eliz. Dyer, fol. 184, and is in effect l 

 this : a man makes a lease for years, excepting timber-trees, 

 and afterwards makes a lease without impeachment of waste 

 to John a Style, and then granteth the land and trees to 

 John a Down, and binds himself to warrant and save harm 

 less John a Down against John a Style ; John a Style cut- 

 teth down the trees ; the question was, whether the bond 

 were forfeited ? and that question resorteth to the other 

 question : whether John a Style, by virtue of such lease, 

 could fell the trees ? and held by Weston and Brown that 

 he could not : which proves plainly for us, that he had no 

 property by that clause in the tree ; though it is true that 

 in that case the exception of the trees turneth the case, and 

 so in effect it proveth neither way. 



