and shall not go to the executor: Deer in a park : Conies in a warren: Doves in a dove-house: Fish: but if the deceased was termor for years, the deer, fish, &c., go to the executor: pass to the executor or administrator. Thus deer in a park (h), (i. e. as it should seem, in a park properly so called, which must be either by grant or prescription) (i), conies in a warren, doves in a dove-house, will not go to the executor or administrator (k); and the reason assigned by Lord Coke, is, because, without them, the inheritance would be incomplete. Another and more obvious reason mentioned by Lord Coke in the same case, is, that the deceased had not any property in them (). So, if a man buys fish, as carps, bream, tenches, &c., and puts them into his pond, and dies, in this case the heir who has the water shall have them, and not the executors; but they shall go with the inheritance; because they were at liberty and could not be gotten without industry, as by nets, and other engines (m); otherwise, (as it has already been said) (n), if they are in a trunk, or in a net, or the like; for then they are severed from the soil (0). But if the deceased has only a term for years in the lands. in which the park, warren, dove-house, or pond is situate, the deer, conies, doves and fish will go to the executor or (h) Co. Lit. 8, a. Liford's case, 11 Co. 50 b. Com. Dig. Biens, (B.) Wentw. Off. Ex. 127, 14th edition. (i) Davis v. Powell, Willes, 46, in which case it was held, that deer in an enclosed ground, in which deer had been usually kept, and which was therefore called a park, might be distrained for rent. And it has been lately held that deer in an ancient and legal park may be so tame and reclaimed from their natural wild state as to pass to executors as personal property: Morgan v. Earl of Abergavenny, 8 C. B. 768, (k) Com. Dig. Biens, (B.) Wentw. Off. Ex. 127, 14th edition. (1) The case of Swans, 7 Co. 17, b. As to Bees, see 2 Black. Comm. 393. In Hannam v. Mockett, 2 Barn. & Cress. 944, Bayley, J., says, that bees are property, and are the subject of larceny. The reader is also referred on these matters generally, to the Treatise on the Law of Fixtures, &c., p. 167, et seq. by Messrs. Amos and Ferard, from which excellent work the author has derived great assistance in compiling this and the following part of the present Book. (m) Co. Lit. 8, a. See also Liford's case, 11 Co. 50, b. Parlet v. Cray, Cro. Eliz. 372. Anon. 4 Leon. 240. Grey's case, Owen. 20. S. C. Gouldsb. 129. Com. Dig. Biens, (B.) (n) Ante, p. 625. (0) Bac. Abr. tit. Executors, (H. 3.) vol. iii. 64. administrator as accessary chattels, following the estate of their principal, viz. the park, warren, dove-house, or pond (p). It must, however, be understood, that the executor or administrator can have no further interest than the deceased had in them, i. e. a right to take to his own use as many as he pleases, during his term, provided he leaves enough for the stores; for if a lessee for years of a park, vivary, warren, or dove-house, kills so many of the deer, fish, game, or doves, that there is not sufficient left for the stores, it is waste (g), and will be equally waste in his executor or administrator. execution : war: Before quitting the subject of an executor's estate in qualified prochattels animate, it is proper to mention the sort of qualified perty in the property which a man may have in human beings, and which man beings : is transmissible to his personal representatives. The interest prisoner in which a testator has in the person of his debtor, who has been taken in execution or, more properly, in his liberty, is a personal chattel, and the prisoner cannot be discharged without the concurrence of the executor (r). So a man may acquire prisoner of a sort of personal property in the body of an enemy by taking him prisoner in war; at least till his ransom be paid; which interest will pass to the executor (s). And this doctrine seems to have been extended to negro-servants who are pur- negro slaves. chased, when captives, of the nations with whom they are at war, and are therefore supposed to continue in some degree the property of their masters who buy them: though, accurately speaking, that property, (if it indeed continues) consists rather in the perpetual service than in the body or person of the captive (t). (p) Wentw. Off. Ex. 127, 14th edit. Godolph. Pt. 2, c. 13, s. 4. (g) Co. Lit. 53, a. (r) Wentw. Off. Ex. 139, 140, 14th ed. 3 Bac. Abr. 57. Execucutors, (H. 1.) (s) Went. Off. Ex. 140, 14th edit. A writ of trespass appears in the Register for taking away a prisoner, viz. quare quendam Scotum prisonarium suum cepit, &c. And in the time of King Henry VIII., (t) 2 Black. Comm. 402. See What growing things shall go to the heir: Trees and fruit not severed: certain cases trees go to the executor, &c. SECTION II. Of the Estate of an Executor or Administrator in Chattels Personal effects of a vegetable nature are the fruit or other parts of a plant or tree, when severed from the body of it, or the old plant or tree itself, when severed from the ground (u). But unless they have been severed, trees, and the fruit and produce of them, from their intimate connexion with the soil, follow the nature of their principal, and therefore, when the owner of the land dies, they descend to his heir, and do not pass to his executor or administrator (x). Hence apples, pears, and other fruits, if hanging on the trees at the time of the death of the ancestor, shall go to his heir, and not to his executor and administrator (y). So it is of hedges, bushes, &c.; for all these are the natural or permanent profit of the earth, and are reputed parcel of the ground whereon they grow. Some cases, however, exist, where even growing timber where growing trees are, owing to special circumstances, considered as chattels, and as such will pass to the executor or administrator. Thus, if tenant in fee simple grants away the trees they are absolutely passed from the grantor and his heirs, and vested in the grantee; and if the latter should die before they are felled, they will go to his executor or administrator: for in consideration of law, they are divided as chattels from the freehold (z). So where tenant in fee simple sells the land and reserves the trees from the sale, the trees are in property divided from the land, although, in fact, they remain annexed (u) 2 Black. Comm. 389. (x) Com. Dig. Biens, (H.) Liford's case, 11 Co. 48, a. s. 10, pl. 8. Swinb. Pt. 7, (y) Swinb. Pt. 7, s. 10, pl. 8. Wentw. Off. Ex. 146, 147, 14th edit. to it, and will pass to the executors or administrators of the vendor (a). But if the person so entitled to the trees distinct from the land, afterwards purchases the inheritance, the trees will be re-united to the freehold in property, as they are de facto, and descend to the heir (b). Yet if the tenant in fee simple lease the land for years, excepting the trees, and afterwards grant the trees to the lessee, they are not by this means re-annexed to the inheritance, but the lessee has an absolute property in them, which will go to his executors or administrators (c). So if tenant in tail sells the trees to another, they are a chattel in the vendee, and his executors or administrators shall have them; and in such case also, fictione juris, they are severed from the land; but if the tenant in tail dies before actual severance, as to the issue in tail, they are part of his inheritance, and shall go with it, and the vendee or his executor cannot take them (d). The law, it may be presumed, is the same with respect to the vendee of a tenant in tail after possibility of issue extinct, or a tenant for life without impeachment of waste (e). And it seems that Equity would not afford relief (ƒ). With respect to the property in trees and bushes when severed, there seems to be a material difference between such trees as, by the general law of the land, or by the custom of the country where they grow, are timber, and such as are not. For if tenant in dower, or by the curtesy, or tenant for life or years unless he be so without impeachment of waste, cuts down timber trees, or a stranger does so, or the wind blows them down, the trees so severed shall not go to the tenant, or when trees, &c., that are severed go to the executor. Emblements : to his executor, but to the owner of the first estate of inheritance in the land (g). On the other hand, if such a tenant cuts down hedges or trees, not timber, or they are severed by the act of God, the tenant shall have them (h): and, consequently, his executor or administrator. So if trees are blown down, which are in their nature timber, but are dotards without any timber in them (i), or if such are wrongfully severed by the lessor, they belong to the tenant, and will pass to his executors (k). There are, however, certain vegetable products of the earth, which, although they are annexed to and growing upon the land at the time of the occupier's death, yet, as between the executor or administrator of the person seised of the inheritance, and the heir, in some cases, and between the executor or administrator of the tenant for life, and the remainder-man or reversioner, in others, are considered by the law as chattels (), and will pass as such. These are usually called Emblements. (g) Herlakenden's case, 4 Co. 63, a. Or Bewick v. Whitfield, 3 P. (h) Com. Dig. Biens, (H.) Ber ryman v. Peacock, 9 Bingh. 384. S. C. 2 M. & Scott, 524. (i) Herlakenden's case, 4 Co. 63, a. b. Countess of Cumberland's case, Moore, 812. (k) Channon v. Patch, 5 B. & C. 897. S. C. 8 D. & R. 651. (1) They are in fact not only in this respect, but in most others looked upon as chattels : for the rule seems now to be established, that all those vegetables which go to the executor and not to the heir, are for most purposes considered mere chattels. They may consequently be seized and sold under a fieri facias; and the sale of them while growing is not a contract, or sale of any lands, tenements, or hereditaments, or any interest in or concerning them, within the 4th section of the Statute of Frauds; but a sale of goods, wares, and mer |