case thomas foster and other against spooner and afford if a lessor reserve  the wood upon the demise premise he may justify a entry to cut it down and  carry it away but qure if a lessee can make such a reservation to a  undertenant Inst Leon   b sand term r   b   a on default in a writ of waste  the sheriff shall inquire of the waste and damage but on judgement after  appearance of the damage only post cro James f n b Poph black Com waste the  place where be Wallingford park Spooner one of the defendant p make default at  the grand distress and thereupon against he the inquest be award to inquire of  the waste and damage afford plead he have nothing in the tree in which the  waste be suppose and upon this they be at issue upon evidence the case appear  to he that Shelly be lessee for year of the park grant all his interest and  title in the say lease to afford save and except all the wood and Underwood  grow upon the land and if upon this matter Shelly shall he say to he lessee of  the wood against who the action of waste shall he bring or afford be the  question the sergeant of the plaintiff part say notwithstanding this exception  it be a good grant of Shelly to afford of the wood for he that make the  exception have croak Elizabeth er p no interest in the tree be only lessee for  year and so the exception void and in this action the land be to b recover as  well as damage and if afford he not the lessee the plaintiff can know against  who to bring the action for Shelly have only the tree and not the land and so  no action against he Anderson c j and mead hold that the action shall he bring  against Shelly for the tree pass not to afford for the interest in they that  Shelly have he have reserve so as he shall have all the profit of they as if  herne c breed in they c Anderson say as to what be say that Shelly have no  property in the tree by the commonlaw the lessee have interest in the tree and  the statute do not take it way but prohibit he that he shall do no waste and  make he punishable for it and as to the objection that they can recover no  land croak Elizabeth and so no action of waste lie if a man let we the tree of  his park waste lie against the lessee for cut they and if a action of waste do  not lie yet he may have a action upon his case and to this opinion Wyndham  seem to agree periam hold strong the contrary that the exception be void by a  lessee for year for he have no interest in the tree and neither at commonlaw  or since the statute be the property of tree in the lessee and although before  the statute there be no law to punish he yet that do not prove he may lawful  cut they and at this day if the lessor cut down the tree and take they away  the lessee shall not recover accord to the value of the tree but for the entry  e which case mead agree and because the court be divide they command the jury  to find the special matter and to leave it to the discretion of the court in  this case it be affirm by they all that if a man make a lease reserve the wood  c he may justify the entry to cut they and carry they away and it be hold by  all the prothonotaries in this case that if the defendant in a writ of waste  lose by default at the grand distress enquiry shall he make of the waste and  to what damage but if he lose by confession or nient dedire or by plead non  sum shape c it the waste shall not he inquire but only the damage and so it be  do in this case for as to Spooner they be command to inquire of the waste and  damage and as to afford of the damage only notam   cite it to he adjudge that  the exception be void and that waste lie against the assignee vide coke entry  the whole record of the case but no judgement