cclxix sir richard LEWKNORS case sir Richard Lewknor seize of Willingford park  lease the same for year and die the lessee assign over his term except the  wood and underwood stand grow and be in and upon the premise the assignee  commit waste the term expire the daughter and heir of sir rich and the husband  of the three daughter coparceners as tenant by the courtesy bring a action of  waste against the assignee and the opinion of the court be that the husband  ought not to join in that action for he can recover nothing for damage be can  have for the waste be not do to his disinheresin and the land he can have  because the term be expire snag sergeant I conceive that the exception in the  assignment be good for a exception of tree by the lessor himself in his lease  be good and by reason thereof the lessee shall not have fireboat heybote c  which otherwise he shall have and the property of the tree be in the lessor  and also the soil h h dyer vide e a lease for year be make with such exception  and the lessor bring a action for the tree cut quare enclosed space to break  in pieces and that prove that the Leonard er p soil also be except and then  the action of waste lie against the lessee who have except to himself the wood  and the soil and not against his assignee Walmsley sergeant to the contrary  and he say where land be demise the absolute property of the great Leonard  tree be in the lessor and the lessee have in such case a qualify property and  he cite h the lessor command the lessee to dig gravel in the land demise or  licence he so to do such commandment or licence be not good for the lessor  have nothing to do with the gravel nor have any property in it but such  licence to cut tree have be good and vide h waste be assign in the break de to  make one mouse of stone the defendant plead the licence of the plaintiff to  break it and upon that they be at issue and he say if the lessor cut tree upon  which the lessee bring a action of trespass be shall not recover damage accord  to the value of the tree cut down but for the trespass to the soil and for the  loss of the shadow and the acorn c and if the lessee cut down tree the lessor  can take they because he have other remedy where a reversion be grant to a and  b and to the heir of b waste be do a and b bring a action of waste b shall  recover all the damage and a nothing which prove that all the interest in the  land demise be in b and not in a therefore here in the principal case the  exception be void for that which the law allow to the former be only houseboat  hedgebote ploughbote fireboat and he say that the lessee sell the tree and the  vendee cut they down that waste lie against the lessee which prove that in  that case the soil do not pass with the tree by the exception of the tree the  soil be also except as a servant to the tree videlicet to nourish the tree and  if he who except the tree cut they down or root they up the lessee shall have  the soil and he say that for the property that the lessor have in the tree if  he cut they down the rend shall not be apportion and if the lessor grant the  tree to one and his heir there shall be no attornment which have be requisite  if the soil have pass at another day it be argue by Shuttleworth sergeant and  exception take because it be too general sure quod fecit empty in terris quas  sir r Lewknor pater two to express grief pron  interrog  haeredes Self are a  saying beforehand ford to send different ways c and the plaintiff count the  reversion be entail by Act of parliament to the say sir r Lewknor and so the  writ ought to be special sure pron  interrog  haeredes de corpore Self are for  although there be not any such form in the register yet that be to no purpose  for in to make new grammatical case novum be remedy apponend and he compare it  to the case in f n b where land be give to husband and wife and the heir of  the body of the wife the wife die the husband commit waste the writ shall be  idem a de house in b quas tenet ad vine svan ex dimission how ind fecit a  saying beforehand a m quondam of or belonging to a wife he heir de corpore  Self m matris speech r pron  interrog  haeres ipse be to go out and vide h  beneficiary and use leas for year the lessee commit waste the feoff bring a  action of waste the writ contain the special matter Leonard although there be  not any such writ in the register Fenner and Walmsley contrary for there be  not any such form in the register pron  interrog  haeredes de corpore c and we  be not to devise a new form in this case but it be sufficient to show the  special matter in the count also the word in the writ be true for the  plaintiff be heir to sir r Lewknor and the count be well pursuant and agree to  the writ for they be heir although they be but heir special of his body and  the court award the writ good and say that the case be not like the case in  Fitzherbert n b nor to h before cite for in the first case the plaintiff can  show of who demise the tenant hold unless that he also show the special  conveyance sure that the land be give to the husband and wife and to the heir  of the body of the wife for always the demise to the tenant ought to be show  certain which can be in both these case if not by disclose also the title to  the inheritance and the estate in it another exception be take to the count  that where the two defendant be tenant in common of the say land demise the  writ be to hold which be intend a joynttenure but this exception be not allow  and vide e in waste the plaintiff count upon diverse lease and Fitzherbert n b  f and the writ shall suppose one tenet and not diverse tenet another exception  be take to the writ because the two coparceners and the heir of the three join  in the writ whereas the husband of the three sister be tenant by the courtesy  be alive vide h but that exception for the tenant Leonard er p by the courtesy  join to no purpose for be be not to have damage because the waste be not to  his disinheresin and the land he shall not recover against the defendant for  the term be not determine and such be the opinion of the court as to the  matter in law Shuttleworth say that the action of waste ought to be bring  against the lessee himself and not against the assignee for when he grant over  his term except the tree it be a good exception for when the land upon which  the tree grow be lease to another the tree pass by the lease as well as the  laud and the property of they be in the lessee during the term by which when  he grant his land be may well except they as the first lessor may have do and  if the lessee for year cut down the tree the lessor can take they for that he  have other sufficient remedy sure a action of waste Fenner and Walmsley  contrary and they conceive that the lessee have but a special property in the  tree sure for fireboat ploughbote houseboat c but if he demise the land or  grant his interest in it be can except the tree nor his special property in  they no more than he who have common appendant maygrant the land except the  common and in such Leonard case the general property in the tree remain in the  lessor as parcel of his inheritance and this appear by many case h lessee for  life and be in the remainder join in a lease for life the lessee commit waste  the tenant for life and he in the remainder join in a action of waste the  tenant for life shall recover the place wash and be in the reversion all the  damage vide h h cite before that the lessor may licence the lessee to cut the  tree which prove that the property be in he and vide ass the lessor shall have  the windfall and as to that which have be say that by the exception of the  tree the soil it self be also except that be true as to the tree for  nourishment and not otherwise for if the lessor cut down the tree or root they  up he shall not after meddle with the land where c but the soil shall be  entire to the lessee the lessor during the term may grant the tree so can the  lessee therefore the great and better property in the tree be in the lessor  and not in the lessee and the tree particularly to speak be not parcel of the  thing demise if this exception of the tree or wood shall hold place  inconvenience will follow for as it be hold in h if the termor of wood commit  waste in one corner of the wood he shall not lose all the wood but that place  only but if in the say wood there be diverse plait of land in diverse place of  the wood if the termor commit waste in that wood he shall lose all the say  plait although he have not do waste in they for they be parcel of the wood  vide temps e Fitzherbert waste and vide ibidem waste e waste do in parcel of a  house the whole house shall be recover vide also e Fitzherbert amendment and e  waste now if that be law and the exception be good how shall the place wash be  recover here and against who it seem to the Lord Anderson that the exception  be void and that the action be bring against the assignee and he say it be a  knavish and foolish demise and if it shall be effectual in law some mischief  will follow which he will not remember Windham be of the same opinion and that  the lessee can not assign his estate with such exception for he have but a  special interest in the tree sure for fireboat ploughbote c which shall go  with the land Periarn conceive that as to such special property that none can  have it but he who have the land and therefore the exception be void but as to  the fruittree such a exception may be good and although that the tree be not  express demise yet in modus and after a sort they may be say demise as annex  to the land and if waste be bring against he who make the exception sure the  lessee be can say they be not let to he and therefore he doubt of the  exception and Rhodes doubt also of the exception Leonard and Anderson say that  he be clear of opinion that the lessor shall have the windfall and afterward  the case be adjourn to be further argue c post Leonard er p temps roign  Elizabeth