ccclxii sir richard LEWKNORS case sir Richard Lewknor seize of Wallingford  park make a lease thereof for year and die the lessee grant over his term to  another except the wood the land expire and a action of waste be bring against  the second lessee by the coparceners and the husband of the three coparceners  be tenant by the courtesy Shuttlewood and snag sergeant do argue that the  action will not lie in the form it be bring and the first exception which be  take by they be because the action be general videlicet quod fecit empty in  terris quas sir Roger Lewknor pater predict of the plaintiff pron  interrog   haeredes Self are say beforehand advance defendant to send down and the count  be that the reversion be entail by parliament unto the heir of the body of sir  Richard Lewknor and so they conceive that the writ ought to have be special  pron  interrog  haeredes de corpore Self are for they say that although there  be not any such writ in the register yet in to make new grammatical case novum  be apponend remedy and therefore they compare the case to the case in  Fitzherbert n b videlicet if land be give to husband and wife and to the heir  of the body of the wife and the wife have issue and die and the husband commit  waste the writ in that case and the like shall be special and shall make  special recital of the estate and so be the case h where beneficiary and use  make a lease and the lessee commit waste there the action be bring by the  feoff contain the special matter and it be good although there be not any such  writ in the register pron  interrog  haeredes de corpore and we be not to  devise a new form in such case but it be sufficient to show the specia Leonard  er p matter to the court and the word of the writ be true for they be heir to  sir Roger Lewknor and the count be sufficient pursuant and agree to their writ  for they be heir although they Leonard be not special heir of the body and so  the court be of opinion that the writ be good notwithstanding that exception  and Anderson and periam justice say that the case be not to be compare to the  case in Fitzherbert nat narrow places for there he can show by who demise the  tenant hold if he do not show the special conveyancer videlicet that the land  be give to the husband and wife and to the heir of the body of the wife nor be  it like to the case of h for the same cause for always the demise of the  tenant ought to be special show and certain which it can be in these two case  but by the disclose of the title also to the reversion another exception be  take la because that the writ do suppose quod to hold which as they conceive  be to be mean that to hold joint whereas in truth they be tenant in common  Walmsley contrary because there be not any other form of writ for there be not  any writ which do contain two tenuerants and the word of the writ be true quod  to hold although to hold in common but although they be not true yet because  there be no other form of writ it be good enough as Littleton if a lease be  make for half a year and the lessee do waste yet the writ shall suppose quod  to hold ad boundary a year and the count shall be special e e if the lessee do  commit waste and grant over his term the writ shall be bring against the  grantor and shall suppose quod tenet and yet in truth he do not hold the land  and the writ shall not contain two tenet and such also be the opinion of the  court the three exception be because that the writ be bring by the two  coparceners and the heir of the three coparceners without name of tenant by  the courtesy and thereupon snag cite the case of e that where a lease be make  for life the remainder for life and the tenant for life do waste he in the  reversion can have a action of waste during the life of he in the remainder so  in the like case the heir of the three coparcener can have waste because there  be a mean estate for life in the tenant by the courtesy and to prove that the  tenant by the courtesy ought to join in the writ be cite the case of e which  he have see in the book at large where the reversion of a tenant in dower be  grant to the husband and to the heir of the husband and the tenant in dower do  waste and they do join in the action of waste and hold good and so be e f n b  h Walmsley contrary for here in our case there be nothing to be recover by the  tenant by the courtesy for be can recover damage because the disinherisin be  not to he and the term be expire and therefore no place wash be to be recover  and therefore it be not like to the book which have be vouch for in all those  the tenant be in possession Leonard and the place wash be to be recover which  ought to go to both accord to their estate in reversion but so it be not herd  for in as much as the term be expire the land be in the tenant by courtesy and  so he have no cause to complain and such also be the opinion of the whole  court that the writ be good notwithstanding the say exception then concern the  principal matter in law which be whether it be well bring against the second  lessee or whether it ought to have be bring against the first lessee it be  argue by Shuttleworth that it ought to have be bring against the first lessee  for when he grant over his term except the tree the exception be good ergo c  for when the land upon which the tree be grow be lease out to another the tree  pass with the lease as well as the land and the profit of they be in the  lessee during the term and therefore when he grant his term he may well except  the tree as well as the lessor may have do and that be prove by the statute of  marlbridge for before that statute the lessee be not punishable for cut down  the tree and that statute do not alter the property of the tree but only that  the lessee shall render damage if he cut they down c also the word of the writ  of waste prove the same which be videlicet in terris house c Himself surrender  and the lessee may have cut they down for reparation and for firewood if there  be not sufficient underwood which he can not have do if the tree have not be  except and in h Br it be hold that the except of the tree be the except of the  soil and so be e where one make a lease except the wood and afterward the  lessee do Leonard er p cut they down and the lessor bring a action of trespass  quare way arms enclosed space to break in pieces c and it be good  notwithstanding exception be take to it and it be hold e by Fairfax Littleton  that if the lessee cut the tree that the lessor can carry they away but he be  put to his action of waste Fenner and Walmsley sergeant contrary and they  conceive that the lessee have but a special property in the tree videlicet for  fireboot ploughboot houseboot c and if he pass over the land unto another that  be can reserve to himself that special property in the tree no more than he  who have common appendant can grant the principal except and reserve the  common or grant the land except and reserve the common or grant the land  except the foldage the grand property of the tree do remain in the lessor and  it be prove by h h if tenant for life and he in the reversion join in a lease  and the lessee do waste they shall join in a action of waste and the tenant  for life shall recover the freehold and the first lessor the damage which  prove that the property of the tree be in Leonard he as to that that he be  dispunishable at the commonlaw that be the folly of the lessor and although it  be so at the commonlaw yet it be otherwise at this day for when the statute  say that the lessor shall recover damage for the waste that the property of  the tree be in he as the statute of Merton cap enact that if the lessor do  approve part of the waste have sufficient for the commoner and they  notwithstanding that bring a assize they hall be bar in that case and the lord  may have a action of trespass against they if they break the hedge by force of  that statute as it have be adjudge for the intent of the statute be to settle  the inheritance of the land approve without interruption of the commoner and  so in this case but note that by the statute of marlbridge the lessor shall  recover damage for the house c which be wash c and yet a man can infer  thereupon that therefore the lessee have no interest nor property in they and  such interest have he in the tree notwithstanding the word of the statute  which be contrary to the meaning as it seem and therefore quaere if there be  any difference betwixt they and what shall be mean by this word property but  the damage be give by the statute in respect of the property which the lessor  be to have in reversion after the lease determine Anderson chief justice the  lessor have no great property in the tree than the commoner have in the soil  Walmsley h h the lessor may give leave to the lessee to cut the tree and the  same shall be a good plea in a action of waste and the reason of both the book  be because the property of they be in the lessor and to this purpose the  difference be take in h betwixt gravel and tree e if a prior licence the  lessee to cut tree the same shall discharge he in a writ of waste bring by the  successor but if the lessee cut down the tree and then the prior do release  unto he the same shall not bar the successor and so be h and be cite  Culpeppers case Elizabeth and e Statham and ass to prove that the lessor shall  have the windfall if a stranger cut down tree and the lessee bring a action of  trespass he shall recover but only to his loss videlicet for lop and top as to  that which be say that if the lessee cut down tree that the lessor can take  they away that be true for that there be a contract of the law that if the  lessee do cut they down that be shall have the tree and the lessor have Triple  damage for they also he say that the tree be no part of the thing demise but  be as servant and shall be for reparation as if one have a piscary in the land  of another man the land adjoin be as it be a servant videlicet to dry the net  so if one have conduit pipe lie in the land of another be may dig the land to  mend the Leonard pipe and yet he have no interest nor freehold to that which  be say that by the except of the tree upon the land the land upon which they  stand be except it be true as a servant to the tree for their nourishment but  not otherwise for if the lessor sell the tree he afterward shall not meddle  with the land but it will be whole in the lessor because lift causan to lift  execution and if the lessee tieth a horse upon the land where the tree stand  the lessor may distrain the same for his rend and avow as upon land within his  distress and fee and hold of he and be say that the lessor may grant the tree  but so can the lessee and therefore be say that the property be in the lessor  and not in the lessee and if the lessor grant they they pass without  attornment but contrary if the lessor have but a Leonard er p reversion in  they and if the lessor cut they down the rend shall not breed apportion and  therefore they be no part of the thing demise for e Temps e Fitzherbert waste  in two or three place it be hold that if the waste be do sparsim in a close or  ground the lessor shall recover the whole then admit that the tree be cut down  if the exception shall be good how shall the thing wash be recover and against  who quod notam Anderson chief justice do conceive that the exception be void  and that the action be well bring and he say it be a knavish and a foolish  demise and if it shall be good many mischief will follow which he will not  remember Windham be of the same opinion and he say that the lessor may have  accept they and so take from the lessee his fireboot ploughboot c which shall  go with the land periam justice agree that as to such a special property none  can have it but such a one who have the land and therefore the exception of  the wood by the lessee be void but as to the other thing perhaps if they be  appletree or other fruittree the exception have be good also although the tree  be not let direct yet they be after a sort by a mean annex to the land and if  the action be bring against he who make the exception be can plead that they  be let unto he and therefore be doubt of the exception Rhodes justice also say  that he doubt of the exception and be say that the book of e be that the  lessee shall have the windfall and do not much regard the opinion of Statham  but Anderson be of opinion that the lessor shall have the windfall note the  case be not at this time adjudge but adjourn ante