Opinion
(1793.)
One leased a farm for years, except all trees growing or that would grow on the premises. The lessor covenanted for himself, his executors, administrators, or assigns, to find sufficient house-bote and hay-bote. The lessee made his executor and died. The executor assigned the term to another; and the house being out of repair, he cut down two pines and an oak to mend it, and the question on a demurrer was whether trespass lies against the assignee. It was said that whatever interest the lessee had in the trees, he ought to request the lessor to assign what trees he should have for the repairs, and a question is made whether on such a request and a denial he is not put to his action on the covenant; or whether he may of his own head cut what trees he pleases. Nota. The word dedi was not in the deed.
The case was not argued, because judgment was given on a defect in the pleadings. The trespass was supposed to have been committed the 25th of March, 20 Jac. The defendant justified quod ante predict. tempus quo, etc. (Sci.), ultimum die Martii, the executor assigned the land to him, to have and to hold from Lady-day (before which is the day on which the trespass is supposed to have been committed) for five years. It was said that if it had not been for the habendum the (Scil.) would have been void.