coke b lewis bowless case pasch James see leigh v Dickeson QBD QBD covenant to  stand seize in consideration of a intend marriage to the use of t and a his  intend wife for their life without impeachment of waste and after a raym roll  Rep b Br Tresp Br corporation h b h b h b h b Br Baily h b coke report a er p  their decease to the use of the first issue male and to the heir male of such  issue lawful beget and so over to the second three c issue male remainder to  the use of the heir male of t and a and for want of such issue to the use of b  and the heir male of his body remainder to the heir of the body of t and a the  marriage take place t die leave issue by a I who afterward die resolve t and a  be seize of a estate tail execute sub modus videlicet until the birth of issue  male and then by operation of law the estate be divide videlicet t and a  become tenant for their life the remainder to the issue male in tail the  remainder to the heir male of t and a c tenant in tail after possibility of  issue extinct shall not be punish for waste shall not be compel to attorn  shall not have aid on alienation no similar things grammatical case lie after  death there can be no intrusion such tenant may join the mouse on the mere  right shall not name herself nor be name tenant for life such tenant have but  a estate for life and a feoff in fee be a forfeiture a exchange between her  and tenant f or life be good the estate of tenant in tail after possibility  ought to be a remnant and residue of a estate tail and can be b the limitation  of the party a tenancy in tail after possibility will not merge a prior estate  for life a although but tenant for life shall have the privilege of tenant in  tail after possibility for the inheritance that be once in her if tenant for  life or year fall timber or pull down the house the lessor shall have the  timber if a house fall down per vim wind the particular tenant have a special  property in the timber to rebuild the house the preeminence and privilege  which the law give to house tenant for life without impeachment of waste have  as great power to do waste and to convert it at his own pleasure as tenant in  tail have the privilege be annex to the privity of estate if one who have a  particular estate without impeachment of waste change his estate he lose his  advantage when timber tree be sever from the inheritance either by act of the  party or of the law and become chattel the whole property of they be in the  tenant for life without impeachment of waste SC roll Rep Raymond Lewis bowl  Esq bring a action upon the case upon trover against Haseldine bury the young  which begin in the king bench hill James king rot and declare that he be  possess of thirty cart load of timber and lose they and that they come into  the hand of the defendant and that he Feb year James king at Norton in the  county of Hertford convert they to his own use and upon not guilty plead the  jury grave a special verdict to this effect Thomas bowl Esq grandfather of the  say Lewis be seize of the manor of NortonBury in the say county in fee and I  September year by indenture betwixt he on the one part and William hide and  Leonard hide of the other part in consideration of a marriage to he have  betwixt the say Thomas bowl and whether daughter of the say William hide c  covenant that after the say marriage have and solemnized that the say Thomas  his heir and assign will stand seize of the say manor of NortonBury to the use  of the say Thomas and whether for the term of their life without impeachment  of waste and after their deceases to the use of their first issue male and to  the heir male of such issue lawful beget and so over to the second three and  four issue male c and for want of such issue to the use of the heir male of  the body of the say Thomas and whether lawful beget and for want of such issue  to the use of Thomas bowl son and heir apparent of Thomas bowl the grandfather  and the heir male of his body issue and for want of such issue to the use of  the heir of the body of the say Thomas and whether lawful issue which marriage  be solemnized accord and the say Thomas the grandfather and whether have issue  John and afterward coke a the say Thomas the grandfather die without any issue  on the body of whether but the say John after who death the say whether enter  into the say manor and be thereof seize with the say remainder over as  aforesaid and afterward the say John bowl die and afterward Thomas the son  convey by fine his remainder to the use of Lewis bowl the plaintiff and Diana  his wife and coke report b er p the heir male of his body and the say whether  be so seize of the say manor with the remainder over as aforesaid videlicet  Feb a Reg James ring a barn parcel of the say manor per vim to come et season  inside overturn etad lerram deject to be and that the say thirty cart load of  timber in the declaration mention be parcel of the say barn and that the say  timber be sound and fit for building wherefore the defendant as servant of the  say whether and by her command take the say timber and carry it out of the  limit of the say manor to radial in the same county and afterward the say  whether Feb year James Reg make her last will and thereof make Robert Osborne  and Leon hide Knts her executor and die after who death the plaintiff seize  the say timber and afterward the defendant by the command of the say executor  convert it to his use and if upon the whole matter the defendant be guilty or  not the jury pray the opinion of the court and in this case two question be  move if upon the whole matter the wife shall be tenant in tail after  possibility or that she shall have the privilege of a tenant in tail after  possibility know to do waste c admit that she shall not have the privilege c  if the clause of without impeachment of waste shall give her property in the  timber so blow down by the wind and in this case eight point be resolve by the  whole court that a till issue Thomas the grandfather and whether be seize of a  estate tail execute sub modus know until the birth of the issue male and then  by the operation of law the estate be divide know Thomas and whether become  tenant for their life the remainder to the issue male in tail the reversion to  the heir male of Thomas and whether the remainder over as aforesaid for the  estate for their life be not absolute merge but exist with this imply  limitation until they have issue male vide chudleighs case in the first part  of my report fol and archer case fol b a that tenant in tail after possibility  have a great preeminence and privilege in respect of the quality of his estate  than tenant for life but he have not a great quantity of estate than tenant  for life in respect of the quality of his estate it taste much of the quality  of a estate in tail out of which it be derive and therefore b she shall not be  punishedfor waste she c shall not be compel to attorn she d shall not have  coke b aid on e her alienation no consimilir grammatical case lie after f her  death no writ of intrusion lie she g may join the mouse in a writ of right in  a special manner tempt e be e a b e aid e a e e a h a h b h b e e a h h b e  Entre congeable e b h aid f n b in h a action bring by her she shall not name  herself tenant for life e a a woman bring a who in vita quod proclaim rashly  ad vine and a Ves vern vent Jones keb raym a vide note z archer case   b  serjeant William note Purefoy v Roger sand a press on Conv   Litt a and note  ib b Doct and Stud lib c light sect h b a h b e a e b h b a h b roll roll Rep  west Symb b   a   a Inst   a   light b roll Rep f n b b e a b c   light b roll  Rep roll e a b h b e a Br Attorn Br quid law proclaim e a Fitzherbert quid law  proclaim e a b e a e a h I b e b d e aid h a h b Fitzherbert aid e a b  Fitzherbert to point out de faits h aid   light b roll e a b h b Br aid h a  roll Rep e roll Rep   light b f roll Rep   light b g roll Rep   light b e b h  roll Rep   light b Doct pl coke report a er p maintain it in her count by a  gift in special tail to her and her husband and that her husband be dead  without issue and the writ for variance of the title abate in a action bring  against her she shall not be name tenant for life know quod tenet ad boundary  vitce mich Elizabeth rot in common banc I inter veal et elsewhere queretRead  def in quid law proclaim and the note of the fine suppose that the defendant  tenet ad boundary vike the defendant demand oyer of the writ and of the note  of the fine and have it and plead that he be seize in fee without hoc quod the  day of the note levy to hold pro ten r7nino vitce and the jury find that be  hold as tenant in tail after possibility of issue extinct and it be adjudge  pro to ward off for tenant in tail after possibility shall not be in judgement  of law include in a writ or fine e within the general allegation of a tenant  for life vide e b but as to the quantity he have but a estate for life and  therefore if he make a feoff in fee a it be a forfeiture of his estate e Entre  Cong Edward e b ass f n b b so if fee or tail general descend or remain to  tenant in tail after possibility c the fee or estate tail be execute e age e e  b and by the stat of W c he in reversion shall be receive upon his default e  receipt e e receipt Edward vide e b e a b d and a exchange betwixt tenant for  life and tenant in tail after possibility be good for their estate be equal it  be resolve that the estate of a tenant in tail after possibility ought to be a  remnant and residue of a estate tail and that by the act of God and not by the  limitation of the party e disposition law and not ex provision man awl  therefore if a man make a gift in tail upon condition that if he do such all  act that he shall have but for life he be not tenant in tail after possibility  of issue extinct for that be ex provision man and not ex disposition law but  it ought to be the remnant and residue of a estate tail and that by the act of  God and the law know by the death of one donee without issue light b Doct and  Stud lib cap foe coke a h b h aid if tenant in special tail recover in assize  and afterward one die without issue and afterward he who survive who be tenant  in tail after possibility be redisseized he shall have a redisseizin for it be  the same freehold he have before for it be parcel of the estate tail and  because the wife in the case at bar have the estate for life by limitation of  the party and the estate which she have in the remainder know of the tenancy  in tail after possibility be not a large estate in quantity and therefore can  not merge the estate for life as have be say before for this cause the wife be  not tenant in tail after possibility it be resolve that in this case the wife  shall have the f privilege of a tenant in tail after possibility for the  inheritance which be once in her for now when John the issue male be dead the  privilege which she have in respect of the inheritance which be in her in  remainder shall not be lose and there be no question but a woman may be tenant  in tail after possibility of a remainder as well as of a possession c and  therefore if a lease for life be make the remainder to husband I roll Rep e a  b Cr Elizabeth Noy a h b h a ass Br forfeiture Br aid roll Rep roll e a    light a Br waste Br Entre congeable light sect e a h a b   light a roll Rep e  a Br estate Br tenant per courtesy c roll Rep   light a d   light a roll Rep e  roll Rep   light a b Vid Preston on cony et seq William v William east f    light a roll Rep press cony c devise of a reversionary estate in a message c  to the testator wife for the term of her natural life and from and after her  decease to the heir of her body by the testator lawful beget or to he beget  and for want of such issue remainder over the wife be tenant in tail after  possibility after the period from her husband coke report b er p and wife in  special tail the husband die without issue now be the wife tenant in tail  after possibility of this remainder and if the tenant for life surrender to  her as he may for the life of he in the remainder be high than the other life  now be she tenant in tail after possibility of possession and like this case a  if the father be feoff to he and his heir with warranty and the father feoff  the son c and die in this case the son although he have the land by purchase  yet he shall take the benefit of the warranty as heir for he can vouch as  assignee and the warranty betwixt the father and he be lose as it be adjudge  in e b so here although the wife can claim the estate of tenant in tail after  possibility yet she may claim the privilege and benefit of it and it be  observe that tenant in special tail at the commonlaw have a limit feesimple  and when their estate be change by the statute de gift conditional yet there  be not any change of their interest in do of waste so when by the death of one  donee without issue the estate be change yet the power to commit waste and to  convert it to his own use be not alter nor change for the inheritance which be  once in he vide hill James rot inter b brook and Roger in common banc if a  timber tree become Anda sicca non to bear produce nec Jolia in cestate nec to  step out maeremium yet because it be once a inheritance c no tithe shall be  pay for it for that the quality remain although the state of the tree be alter  d coke b that if c tenant for life or for year fall timber or pull down the  house the lessor shall have the timber and because this point be resolve in  this court upon a solemn argument in d Lifords case at mich term which vide  before in this book I will make the short report it be apparent in reason that  the lessee have they but as thing annex to the soil and therefore it will be  absurd in reason that when by his act and wrong he sever they from the land  that he shall gain a great property in they than he have by the demise it e be  without question as it be resolve in the say case that the lessor have the  general ownership and right of inheritance in the house and timber tree and  the lessee have but a particular interest and therefore be they pull down or  fall by the lessee or any other or by wind or tempest blow down or by any  other mean disjoin from the inheritance the lessor shall have they in respect  of his general ownership and because they be his inheritance and as to that  the resolution in Herlakendens case in the four part of my report fol a be  affirm for good law and paget case in the five part of my report fol b for  although he can punish they in a action of waste at the commonlaw because it  be his own act and in his lease he have not make provision by covenant or  condition yet the inheritance and general ownership remain in the lessor and  the lessee as have be say have but a special interest in the house and  timbertrees so long as they be annex to the land and this appear by the  statute of a marlebridge c item firmarii empty c non facient nisi not general  ind to have permission per scriplum corwentionis mention to make quod hoc to  make to be able whereby it appear that the lessee for life or year which then  be can not rightful fall the tree or pull down the house unless the lessor  have grant by deed to do it in which it be also observe that at the time of  the make of the same Act the say clause of without impeachment of waste be in  use which prove that it be to such purpose that the lessee may commit waste  and dispose it to his own use which he can not do without such clause every  lessee for life and year ought by the law to do fealty upon his death when she  may have have issue by he though there never be any issue of the marriage  Platt v pole m S a roll   roll Rep   light b b more Inst roll Rep roll Cr  James ante b a Doct Stud b d Vid note f Lifords case ante p a c Cr car roll d  before a e Cr car before b Cr car more palmer   b   roll Rep a roll Rep Inst  coke report a er p oath and it will be against his oath to waste the house and  timbertrees and notam reader upon this statute of marlebridge lie a  prohibition of waste against the lessee for life and lessee for year to  prohibit they that they shall not do waste before any waste be do as it be b  against tenant in dower and tenant by the courtesy at the commonlaw coke a  vide bract the judgement in waste at the commonlaw tenant in dower or by the  courtesy have as high a estate as lessee for life and it appear that it be not  lawful for tenant by the courtesy or in dower to do waste ergo no more for  tenant for life the only difference be that a prohibition of waste lie against  tenant in dower and by the courtesy at the commonlaw and not against the  lessee till the say statute of Marl and to prove what interest the lessee for  life have in the tree at the commonlaw it appear by Bracton who write before  the statute of glou lib tract de assisa novee this c f si quis empty to make  well destruction in property quod tenet ad vine svan in eastern quod manner to  et account cum of such size to go away ei the pure milk of reason estoverium  compose transgression et si ankle impedialur that to hold assisam non to have  thought ankle to set free a disseizina because in eastern quod lenens to use  up male act  etdebitum use et manner debt is owed excedend non to be able to  dedicate quod disseizitus est quia tantrum the pure milk of reason use ei to  go away which prove direct that it be a wrong in the lessee for life to do  waste or destruction at the commonlaw and it be resolve if a house fall down c  per vim wind in the time of such lessee for life or for year or in the time of  the tenant in dower or tenant by the courtesy c that such particular tenant  have a special property in the timber to rebuild the like house as the other  be for his habitation as if they fall a tree for reparation they have a  special property to that purpose in it and therewith agree a e b e b e and e a  but the say particular tenant can give or sell e the tree so fall for the  general property be in the lessor and therefore light f b hold that if I bail  good to another to manure his land now he have a special property in they to  that purpose and in that case if he kill they a general action of trespass lie  against he see h a b the preeminence and privilegewhich the law give to house  which be for man habitation be observe first a house ought to have the  priority and precedency in a S quod To give back before land meadow pasture  wood c f n b c for his house be his castle et c house thirst be unicuique to  look at refugium d the house of a man have privilege to protect he against  arrest by virtue of process of law at the suit of a subject vide semaines case  in the five part of my report fol b it have privilege against the king  prerogative for it be resolve by all the judge mich e James that those who dig  for saltpetre shall not dig in the mansionhouse of any subject coke b without  his assent for then he or his wife or child can be in safety in the night nor  his good in his house preserve from thief and other misdoers he who kill a man  see to ward off or a thief who will rob he in the highway by the commonlaw  shall forfeit his good but he who kill one that will rob and spoil he in his  house shall forfeit nothing e coroner ass c if there be two jointtenants of a  wood or arable land the one have no remedy against the other to make enclosure  or prepare again b roll   light b Inst   b h a h b c   a   light a d Cr  Elizabeth   a roll Rep roll   b Cr be e Vid note b Lifords case ante p b b  sect   light a see Mod c ibidem c   b   light a roll Rep Ida d Inst hob Cr  James Jones Cr car march Brownl Yelv Cr Elizabeth more e execution contra Leon  e a e a Br execution Br trespass Bulstr be e roll Rep   king b way coke report  a er p tions for safeguard of the wood or corn but if there be two  jointtenants of a house the one shall have a writ de repq@ratione to make  against the other and the word of the writ be ad restoration et f  suslentationem the same house lenetur f n b a b g if a man be in his house and  hear that other will come to his house to beat he he may call together his  friend c into his house to aid he in safety of his person for as it have be  say a man house be his castle and his defence and where he proper ought to  remain but if a man be threaten if he come to such a fair or market that he  shall he beat I n that case he can make such assembly but he ought to have  remedy by surety of the peAcc h a f h the clause of without impeachment of  waste give a power to the lessee which will produce a interest in he if he  execute his power during the privity of his estate and therefore to examine it  in reason these a word without impelitione huge be as much as to say without  any demand for waste for action of attacking be derive from in and pelo and to  strive for be to demand and petitio be a demand and without impelitione be  without any manner of demand or impeachment then this word demand be of a  large extent b for if a man seize I of my land or take my good if I release to  he all action yet I may enter into the land or take my good as light hold fol  and therewith agree ass h b h b e for by the release of the action the right  or interest be not release but if in such case I release c all demand that  will bar I not only of my action but also of my entry and seizure and of the  right of my land and of the property of my good as it be resolve in chancy  case h Br release d h b the king make one sheriff without compulo therebV he  shall have the revenue which belong to his office to collect to his own use  but if the word have be e without attack huge per some breve de to make empty  then the action only will be discharge and not the property in the tree but  that the lessor after the coke a fall of they may seize they and this  difference appear in Edward a b in f Walter idle case where a lease be make  without be impeach or implead for waste upon which it be collect that these  word without be implead without these word without g be impeach for waste be  not sufficient to bar the lessor of his property and that if the lessor have  grant that the lessee may do waste he thereby have power not only to do waste  but also to convert it to his own use and that the word of the say Act of  marlebridge and the statute de h Prrogativa king c do prove where it be say  that the king shall have annum diem etvastum see which be as much as to say  that he shall have the tree c at his own disposition it be say that the  continual and constant opinion of all age be that those word give I power to  the lessee to do waste to his own house and it will be dangerous now to recede  from it and a S it be say in Edward a by the judge so we say in this case we  will not change the law which have be always use and it be well say in Henry b  it be better that there shall be a defect than that the law shall be change  king and the opinion of Wray CJ and manwood cite f   light b roll Rep   b g h  a Br riot c Fitzherbert Tresp Mod f Vid Semaynes case   a and note and ref ib  h roll Rep more Inst hob lib f a Poph a latch Bridgm die pl b   a a pl b Cr  James roll Inst   a roll Rep hetl more b light f S   light a b   a roll Rep c  roll Rep   a d l roll Rep Br patent e   light a Inst roll Rep Cr car f   b  Poph g roll Rep hob h roll Rep I dyer pl roll Rep   light a hob king roll Rep    a die pl coke report b er p in Herlakendens case be not judicial but prima  fancy upon a arbitrament without any argument and perhaps upon the sight of  Henry waste and therefore although the chief justice argue in this case  against their opinion yet it be with great reverence to they say with  Arand stle in thelike case friend Plato friend Socrates send to greater extent  friend veritas and who non freely veritatempronunciat proditor reality be g  and the truth of this case appear by Littleton in his chapter of condition fol  a where he put this case if a feoff be make upon such condition that the feoff  shall give the land to the feoff and to the wife of the feoff to have and to  hold to they and to the heir of their two body beget the remainder to the  right heir of the feoff in that case if the husband die live the wife before  any estate in tail make to they then ought the feoff by the law to make a  estate to the wife as near the condition and as near the intent of the  condition as he can make it see to lease the land to the wife for term of her  life without impeachment of waste the remainder to the heir of the body of her  husband of her beget the remainder to the right heir of the husband h and the  reason why the lease shall be make in this case to the wife without  impeachment of waste be that the estate shall be to the husband and his wife  in tail and if such estate have be coke b make in the life of the husband then  after the death of the husband she have have a estate in tail which estate be  without impeachment of waste and so it be reasonable that a man shall make a  estate as near the intent of the condition as he can which case direct prove  that tenant for life without impeachment of waste have as great power to do  waste and to convert it at his own pleasure as tenant in tail have that these  word without impeachment of waste be sufficient word to give tenant for life  such power vide b h b and the Lord Cromwell case in the second part of my  report fol a b a and for this clause of without c impeachment of waste Edward  Edward a b a Edward Edward a ilen Henry waste e a Henry h dyer and so the  qurere in the say book of h well resolve and see the opinion of Statham in  abridge the say book against it d but the say privilege of without impeachment  of waste be annex to the privity of estate Edward by share and stone if one  who have a particular estate without impeachment of waste change his estate he  lose his advantage Heil a if a man make a lease for year without impeachment  of waste and afterward he confirm the land to he for his life now he shall be  charge for waste Henry dyer e b if a lease be make to one for the term of  another life without impeachment of waste the remainder to he for his own life  now he be punishable for waste for the first estate be go and drown I so of a  confirmation it be adjudge in Ewens a case mich and Elizabeth that where  tenant in tail after possibility of issue extinct grant over his estate that  the grantee be compel in a quid law proclaim to attorn for by the assignment  such privilege be lose and that l Poph c Vid note d Herlakendens case   a vin  ab g a r a a sect   light b a roll Rep vin ab waste g a r a h Vid note b  Frauncess case   b b Fitzherbert condition Br condition c h a Plowd a h a h  dyer pl oh h a h a Perk sect h a   b   a   light a Bulstr h a Fitzherbert  waste Plowd b h b h a h a h b roll Rep Popham d roll Rep   light a more   b Br  be latch e dyer pl   a buist   b h a Poph latch I Vid press cony p et seq vin  ab merger f boss case   a a roll Rep   light a a Inst coke report a er p  judgement be affirm in the king bench in a writ of error and therewith agree b  h aid in Statham vide e b the heir at commonlaw shall have a prohibition of  waste against tenant in dower but if the heir grant over his reversion his  grantee shall not have a prohibition of waste for it appear in the register  that such assignee in au action of waste against tenant in dower shall recite  the statute of Gloucester ergo he shall not have a prohibition of waste at  commonlaw for then he shall not recite the statute vide f n b c h h b last it  be resolve that the say woman by force of the say clause of without  impeachment of waste have such power and privilege that though in the case at  bar no waste be coke a do because the house be blow down per vim wind without  her fault yet she shall have the timber which be parcel of the house and also  the timber tree which be blow down with the wind and when they be sever from  the inheritance either by the act of the party or of the law and become  chattel the whole property of they be in the tenant for life by force of the  say clause of without impeachment of waste and for this cause judgement be  give per omnesjusticiarios One voice quod to express grief nothing caparet per  billam