The works of Francis Bacon, lord chancellor of England.

CASE OF IMPEACHMENT OF WTASTE. 271
Three argu- And therefore I will use a distribu- fell timber trees, they shall join in an action of
monts of pro-s tion which rather presseth the proof. waste; but he in the reversion shall recover the
scmpesand The question is of property. There be whole damages: and great reason, for the special
three arguments of property; damages, property was in the lessee for years, the general
seisure, and grant: and according to these I will in him in the reversion, so the tenant for life
examine the property of the trees by the authority nieane had neither the one nor the other.
of books. Now, for the seisure, you may not look for
And first for damages. plentiful authority in that: for the lessor, which
For damages, look into the books of the law, had the more beneficial remedy by action for
and you shall not find the lessee shall ever recover treble damages, had little reason to resort to the
damages, not as they are a badge of property; for weaker remedy by seisure, and leases without
the damages, which he recovereth, are of two impeachment were then rare, as I will tell you
natures, either for the special property, as they anon. And, therefore, the question of the seisure
call it, or as he is chargeable over. And for this, came chiefly in experience upon the case of the
to avoid length, I will select three books, one windfalls, which could not be punished by action
where the lessee shall recover treble damages, of waste.
another where he shall recover but for his special First, therefore, the case of 40 E.
property, and the third where he shall recover for III. pl. 22, is express, where at the 40. 3,pl.2.
the body of the tree, which is a special case, and king's suit, in the behalf of the heir of Darcy,
standeth merely upon a special reason. who was in ward, the king's lessee was questioned
The first is the book of 44 E. III. in waste, and justified the taking of the trees,
44 E. 3 f 27 f. 27, where it is areed, that if tenant because they were overthrown by winds, and
for life be, and a disseisor commit waste, the taken away by a stranger. But IKnevet saith,
lessee shall recover in trespass as he shall answer although one be guardian, yet the trees, when by
in waste; but that this is a kind of recovery of their fall they are severed from the freehold, he
damages, though per accidens, may appear plainly. hath no property of the chattels, but they apperFor if the lessor die, whereby his action is gone, tain to the heir, and the heir shall have trespass
then the disseisor is likewise discharged, other- of them against a stranger, and not the guardian,
wise than for the special property. no more than the bailiff of a manor. So that
The second book is 9 E. IV. f. 35, that book rules the interest of the tree to be in the
9 E.' 4, f. where it is admitted, that if the lessor heir, and goes to a point farther, that he shall have
himself cut down the tree, the lessee shall recover trespass for them; but of seisure there had been
but for his special profit of shade, pannage, lop- no question.
pings, because he is not charged over. So again in 2 H. VII. the words of
2 H. 7, L 14.
The third is 44 E. III. f. 44, where Brian are, that, for the timber trees, the'
44..41.'' it is said, that if the lessee fell trees to lessor may take them; for they are his; and
repair the barn, which is not ruinous in his own seemeth to take some difference between them
default, and the lessor come and take them away, and the gravel.
he shall have trespass, and in that case he shall The like reason is of the timber of a house, as
recover for the very body of the tree, for he hath appears 34 E. III. f. 5, abridged by
an absolute property in them for that intent. Brook, tit. MTaste, pl. 34, when it is
And that it is only for that intent appeareth said, it was doubted who should have the timber
39 Ass f 1 notably by the book 38 sass. f. 1. If of a house which fell by tempest; and, saith the
the lessee after he hath cut down the book, it seems it doth appertain to the lessor;
tree employ it not toreparations, but employ other and good reason, for it is no waste, and the
trees of better value, yet it is waste; which lessee is not bound to re-edify it: and, therefore,
showeth plainly the property is respective to the it is reason the lessor have it; but Herlackenden's
employment. { case goes farther, where it is said that the lessee
E4 f. 100 Nay, 5 E. IV. f. 100, goeth farther may help himself with the timber, if he will
and showeth, that the special property re-edify it; but clearly he hath no interest but
which the lessee had was of the living tree, and towards a special employment.
determines, as Herlackenden's case saith, by Now, you have had a case of the timber tree,
severance; for, then, magis dignum trahit ad se and of the timber of the house, now take a case
minucs dighmum: for it saith, that the lessee cannot of the mine, where- that of the trees is likewise
pay the workmen's wages with those parts of the put, and that is 9 E. IV. f. 35, where
tree which are not timber. And so I leave the it is said by Needham, that if a lease'
first demonstration of property, which is by be made of land wherein there is tin, or iron, ot
damages; except you will add the case of lead, or coals, or quarry, and the lessor enter and
27. 8 f 13. 27 H. VIII. f. 13, where it is said, that take the tin or other materials, the lessee shall
if tenant for life, and he in the rever- punish him for coming upon his land, but not for
sion join a lease for years, and lessee for years taking of the substances. And so of great trees;