Bulstrode the lady Billingsle plaintiff against Hersey defendant enter Trinity  James b r rot trespass for cut down and carry away tree more in a action of  trespass for cut down and carry away of certain tree upon not guilty plead the  jury find a special verdict upon which the case appear to be this that one  Roger leak Elizabeth do make a lease and grant of his manor farm and capital  message unto one Stafferton with all the emolument profit and appurtenance  together with all the wood and underwood there grow and all the tree To take  out hang of the great tree habendum for forty year render rend with free  liberty to fall and cut down at any time during the term with a covenant on  the part of the lessee to leave wood on the land at the end of the term to the  value of the lessee assign this over and by mean assignment the same come to  the plaintiff who assign it over unto Hersey the defendant with a exception of  the liberty of fall and cut down the defendant the assignee take away timber  tree for which take the action of trespass be bring and this appear to be  Bulstrode er p the case upon the special verdict it be urge for the plaintiff  by Walter and George croak that the action of trespass well lie wherein the  question considerable be whether the first lessee here have a special and  absolute interest in the tree or not or but only as a lessee in this case the  lease by mean assignment come to the lady Billingsle and her husband who have  the same as in right of his wife and they assign this to sir John Hersey  except all the wood and underwood whatsoever stand grow and be in and upon the  premise together with free liberty egress and regress to fall cut down and  carry away the same at all time during the say term in this case the lessee  have by this lease a absolute grant of the tree and not to be as a demise of  the wood with the land the question here arise out of the word of the lease  and therefore the effect and true meaning of these word be to be consider the  word be and all the wood and under wood and that it shall be lawful for he to  fall and cut down the same at any time during the continuance of the term  except of the best oak and all this be put in another clause in the lease by  it self whether he have here a absolute interest and property in they either  to sell or to make any other disposition of they at his will and pleasure or  only a special interest S as a lessee only and so to have only by this clause  his necessary boot as houseboat hayboot and fireboot as to this by the word  and the true sense meaning and construction of the lease the lessee have a  absolute property in the wood and tree and that the verb in the lease of  discontinue to give away and to farm let notwithstanding they be joint express  in the lease yet they shall be take and construe distributive and so to refer  to the word of demise to demise and the word of grant unto grant by these word  in the lease there be a full and express grant of the wood and tree to the  lessee if this have be make to a stranger or to the lessee himself at another  time after the lease none will deny but that these word will well carry a  property with they and be here in the lease it be the same his intent be here  apparent to pass a absolute property and interest in they and to enforce this  here be word of grant and also to have free liberty to cut the tree down and  this do very plain show his intent to be so the exception also here do show  the same this not beigg accord Bulstrode to the usual exception in all lease  to except all but here the exception be only of of the best tree also the next  covenant in the lease do plain show this to be so for the lessee by this do  covenant to leave upon the land at the end of his lease as much wood as shall  be worth so that lie all these part of the lease together it appear in some  clearness that the lessee be to have a absolute property and interest in the  wood and tree as to the objection make that here the lessee have liberty give  to he to fall and to cut down but not to earr away and therefore be have no  property it be urge in answer to this that if there have be such a clause add  for to carry away this have be a very idle clause for by the lease thus make  the lessee have the possession the which possession give he this liberty of  carry awav beina cut down otherwise it be if he have not the possession as to  another objection make out of the habendum the same be to have the manor farm  and all other the premise before specify for year that this do show his intent  to be that the lessee be to have this only as a lease it be allege in answer  to this that the habendum refer only to the land but not to the wood in which  he have a property and which be not demise unto he be have the same by the  word of grant here in this case the lessee have a particular interest grant by  the word of the lease be demise and grant and so he shall be say to be a  lessee of the land and a grantee of the tree and so shall have they as a  distinct interest in he he have a special and a distinct interest in the tree  not as a lessee but as a grantee so that be sever they but not before  severance as to the case urge for the defendant of Elizabeth dyer foe plea  where a lease be make of a farm and of diverse close to the same belong by the  word of demise grant and to farm let together with all and all manner of  timber wood underwood and bedgerows thereunto appertain except the great oak  grow in one of the close and about the farm house there it be question whether  the lessee may cut down and sell the timber tree not except there adjudge that  he can not as to this the case there differ from this case now in question in  this there be the clause that it shall be lawful for the lessee to cut down  and to fall at any time Bulstrode er p during the term but there be no such  clause in the case of Elizabeth dyer it be urge by davenport and Yelverton for  the defendant that by the word and meaning of the lessor nothing do pass unto  the lessee by way of property but only as a lessee but if this clause have  come after the habendum it may then have alter the case it be then to be  consider whether the clause for cut down shall make any alterationin the case  it be urge that it shall not that this do not at all enlarge the former word  be only by way of discharge of the party as to the action of waste to be bring  against he but admit the lessee here have a special interest their the  question will be when be cut they whether he may take they away without  special word Dodderidg justice demand whether the jury have find that the  lessor have take the tree by he except it be answer that this be not so  found Dodderidge then demand in who the election shall be as to this the  lessor here ought to make his election of the tree except and before he have  so do the lessee have no interest at all in the rest and here the difference  will be where the exception be of so many tree upon the ground to be out down  and take within a certain time and where not within which time the lessor have  his election but not after the time determine without any election make after  the time pass the lessee may then elect and cut down leave the number of the  tree except stand for the lessor in foster and S encers case cite in sander  case coke part fol where lessee for year assign over his term except the  timber tree and afterward the tree be cut down the action of waste hold  maintainable against the assignee for that this exception be void croak  justice by the exception here of the tree be have except such thing by this as  he may except and have by reason of the tree as the profit of Bulstrode the  tree and acorn Fleming chief justice the sole and chief point in this case  rest upon the true construction of these word in the grant and how far they  shall be extend in point of interest and whether by these word there be only  liberty or a interest give whether these word in the lease shall amount unto  grant of the tree or only a liberty thereby give to the lessee to cut they  down without be impeach for the same a oh this no interest by these word do  pass unto the lessee he have only a liberty to fall during the term and if be  do not fall they during that time they then remain annex and unite unto the  inheritance by these word there be only a liberty give to he to fall which  word do amount unto no more than this to jake he dl spunishable in a action of  waste for this his so do if a man do bargain and sell to another so many tree  to be by he cut down within year after if he do not cut they down and so sever  they within the time limit the bargain be then at a end and they shall be in  judgement of law reannexed unto the inheritance in e the lessor except certain  tree to be cut down within two year the lessee there come unto he and do  request he to make his election which he do refuse to do it be there hold that  the other may cut down leave the number of tree except in this case here he  ought so to have do and where the election be make of tree except if the other  cut down he be to show that they be none of the tree except which here be have  not so do dodderidge justice as to the case now in question the lease here be  with these word of demise give and grant the land and tree with liberty to cut  and fall c the first point considerable in this case be whether the tree by  these word shall pass unto the lessee several as by way of grant and whether  by these word the lessee have a several and distinct property in the tree the  lessee by these word have no distinct interest in the tree the word grant in  the lease be the only word that shall do this but this word can do it here the  same be couple and conjoin with the word demise and so be the case before  remember in Elizabeth dyer fol plea that case do only differ from this in the  exception there and here in this case but there it be rule that nothing do  pass by the word grant by it self because the same be join with the word  demise if a man do demise give and grant to another and to farm let a house  and a stock of cattle and the householdstuff these word shall not enure to  make the same a grant of the householdstuff he shall only have and enjoy the  same by way of demise and not otherwise and this case I have see in a  manuscript of my Lord dyer book where it be so hold but not in the print book  h dyer fol plea there be such a lease make in point Bulstrode er p where a man  do make a lease of land and of a stock of sheep as to the word here in this  principal case with liberty to cut c these word do not give unto the lessee  any property or interest in the tree if a man be seize of land in the right of  his wife and he sell certain tree grow upon the land before severance of they  the husband die the grantee or vendee shall not now have they which prove that  by the sale there be no distinct interest in he to who they be sell and grant  before severance of they but when the husband die before severance the vendee  have lose the benefit he be to have have by the sale or grant for that they be  not as personal chattel in he before severance and so be the book of e fol and  fol and Perkins in his chapter of grant fol plea if tenant in tail do give or  fall tree grow upon the land and die before severance of they and his issue  enter the donee or vendee shall not have they against the issue and if he cut  they down a action of trespass lie against he so that no property by the gift  or sale be in the party to who the gift or sale be make before actual  severance of they if a man do grant or sell tree grow upon his larid except to  himself a certain number of they be which do except the tree be to have his  election and if there be a time limit for to do this during this time be have  fie be to make his election but if he let this time slip without make of his  election then the other shall have the election but where there be no time  certain limit for the election to be make and he Bulstrode do not elect which  of they he will have to be leave stand it be doubtful in this case whether the  other may elect but it be a clear case that if the lessee do request the  lessor to make his election which tree he will have and he do refuse to elect  there the lessee or grantee shall have the election leave the number of tree  except for the lessor but where no such request be make nor time limit for the  lessor to elect there it be doubtful whether the lessee jour grantee may elect  and cut leave the number except if lessee for year assign over his term except  the tree this be a void exception as it be adjudge in foster and Spencer case  before remember otherwise all lessee will bWve the benefit of the tree by such  a exception in their assignment for prevent of which this be there adjudge to  be a void exception crook justice there be many difficulty in this case first  the lease make unto Stafferton with the liberty in manner as be before express  the tree here by the word in the lease clear do not pass disjoin but conjoin  with the land if a man do demise and grant a house and his utensil there this  be only a demise of all but if such a grant have be by a subsequent clause  there the same shall pass disjoin from the thing lease but not as this  principal case be the same be all in one and the same clause if a man make a  lease of certain land to one for year and afterward he grant or sell the tree  on the land to the lessee with liberty to cut they down at any time during the  term and afterward he do surrender up his lease unto the lessor  notwithstanding this his surrender he may well cut down and take these tree  during the say year and herein the difference will be where the tree be  conjoin and where disjoin from the term in point of interest in the first if  he surrender before take the benefit be lose otherwise where they be disjoin  there the reference shall be to the effluction of the term in the number of  year as where a man do grant unto another tree grow upon his lease land with a  power to cut in this case he may well cut and take they after a surrender by  he make as to the point of election the lessor be to have the election of the  tree by he except and he ought to make his election of they in time convenient  otherwise the law will impute a laches to be in he his foreslowing of this  shall not be any impediment to binder the other of his profit so that the  lessor here be to make his election in time convenient and if he do not so the  lessee may well cut and leave for the lessor six tree grow upon the land  accord to his exception if a man grant unto another common in his ground after  that his corn sow be out and carry away if he will not cut his corn yet the  other shall have his common as to the exception of the lessee upon this  assignment of all the tree this exception be void but yet not void to all  purpose it be void as to the work of any prejudice unto the inheritance but  yet in this respect the same be good for by force of this be may well take the  annual profit as acorn and the like profit the lessee may well accept to  himself but by this his exception he can sever and cut down the tree but he  may except solum farm where the house and tree be Bulstrode er p because this  belong to the lessor if a man do demise grant and to farm let a close and a  house upon it with liberty to he give to take the tile and lead of the same  omni modus quo legitime to be able be may take here and pull down but  otherwise it will be in the case of a wood if the timber and tile of the house  be grant to he be may well pull down and sell the timber and if he grant the  close over to another except the house this be a good exception because the  lessee have in this a disioviied interest if in this principal case he have  except such or such a tree this have b n a good exception but this general  exception of all tree be clear Dauglit and that judgement ought to be give for  the defendant and against the plaintiff Fleming chief justice the lessee here  have no several interest in the tree by the word of the lease this word grant  be a usual word in all lease if a man do bargain sell and grant his manor with  a advowson to the same appendant the church become void before the enrolment  the bargainee shall not have this presentment as a grant of the Bulstrode same  by the word grant but he be to have all by the bargain and sale and then be  can have no right to this presentment before the enrolment of the deed and so  it have be adjudge if in this principal case the same be by grant only for so  many year this will nothing at all aid he what then shall help he be to be  consider whether as it have be urge the clause in the lease by which liberty  be give unto he to cut down whether this shall aid he or not this clause here  as it be can no way at all aid he for notwithstanding this clause they become  not chattel until they be cut down if a man do lease his manor to another with  a stock of sheep these be personal if a man do demise grant and to farm let  these personal he shall here have they no otherwise than as a lessee but here  in this case as it be urge he have full liberty give he to sell they at any  time during the term yet these be not so in he as any distinct and settle  interest present before they be cut down here they be as chattel real annex  unto the inheritance and they be not nor can be in judgement of law personal  before severance in the next place the time be considerable when the Iessee  may cut they down and this rest upon the point of election by reason of the  lessors exception of six oak if a man give to another the best horse in his  stable the donor here shall have the election in case of a henot the same be  to be the best beast here he who be to have the benefit of the same be to have  the election and that shall be say to be the best which he think to be the  best and a crooked tree may be the best for some use the next matter here  considerable be the time within which the lessor be to make his election of  the six oak by he except and this ought to be make in convenient time so that  his slackness do not prejudice and hinder the other from make of his benefit  if a man be bind by bind to grant a advowson to another be now have liberty  all his life to do it but if the church become void then he be to do it  present his liberty be go and determine if the lessee do come to the lessor  and request he to make his election and he refuse so to do his election by  this his refusal be clear go and determine and this be the best and suiest way  in such a case for the lessee to come and desire the lessor to make his  election and if he then refuse his election be then at a end and the other may  elect and cut down leave the number stand accord to the exception by this  lease and the word in the same nothing do here pass sever from the land as to  the assignment here this liberty of cut be not assignable over the assignment  here be of all and the exception of the tree in this assignment be clear void  and by this exception he can not sever they which be conjoin before he have  here at the first only a liberty of cut and therefore after such assignment  make of the whole he can not make any such exception of the tree as in this  case be make but if he have assign over his whole term but one year with such  a exception there the same exception may be good in regard that here there be  a privity remain between they and not wonder fly destroy but otherwise it be  where the assignment be make of the whole term or there no privity remain and  so as this case here be the exception of the tree upon this assignment be a  mere void exception and this liberty now shall go with the privity of the land  but these remain as a chattelreal at the beginning and so continue till the  end and until severance and so judgement ought to be give for the defendant  and against the plaintiff but it be very apparent and that by the agreement of  the party themselves what the lady Billingsley be to have have the tree and  this Bulstrode er p which be here do by the defendant in cut of they contrary  to their express agreement be not well do by he neither have he show any good  conscience in this his so do but now the matter in court debate be upon point  in law and as this case here be the law be with he and so by the rule of the  court judgement be enter for the defendant et quod to express grief nil to  take in hand billam and this judgement upon the argument of the judge be give  and enter boundary Hillarii James b r