The vegetable chattels so named, are the corn and other growth of the earth, which are produced annually, not spontaneously, but by labour and industry, and thence are called fructus industriales. When the occupier of the land, whether he be the owner of the inheritance or of an estate determining with his own life, has sown or planted the soil with the intention of raising a crop of such a nature, and dies before harvest time, the law gives to his executors or administrators the profits of the crop, Emblavence de bled, or Emblements, to compensate for the labour and expense of tilling, manuring, and sowing the land (m). The rule is established as well for the encouragement of husbandry and the public benefit (n), as on the consideration, in the case of tenant for life, that the estate is determined by act of God, and that the maxim of law is, actus Dei nemini facit injuriam (o). The doctrine of emblements extends not only to corn and to what prograin of all kinds, but to every thing of an artificial and duce the docannual profit, that is produced by labour and manurance (p): As hemp, flax, saffron, and the like (q); and melons of all kinds (r); and hops also, although they spring from old roots, because they are annually manured, and require &c. : cultivation (s); and so of potatoes (t). chandize, within the 17th section: See the judgments of Bayley and Littledale, Justices, in Evans v. Roberts, 5 B. & C. 829; and of Hullock, B., in Scorell v. Boxall, 1 Younge & Jerv. 398. See also Jones v. Flint, 10 A & E. 753, S. C. 2 Perr. & Dav. 594. (m) Swinb. Pt. 7, s. 10, pl. 8. (n) 2 Black. Comm. 122. (0) By Lord Hardwicke, in Lawton v. Lawton, 3 Atk. 16. (p) Co. Lit. 55, b. (q) Ibid. Wentw. Off. Ex. 147, 14th edition. (r) Wentw. Off. Ex. 153, 14th edit. The author of that book expresses his opinion, that artichokes go to the heir, as they have not that yearly setting or manurance as (s) Co. Lit. 55, b. note (1) from Gib. Ev. 216. Anon. (t) Evans v. Roberts, 5 B. & C. trine of emble ments extends: corn, hemp, flax, saffron, melons: hops: potatoes: not to fruits growing : or young trees planted : nursery grounds, &c. : grass: But the rule does not apply, (as it has already appeared,) to fruit growing on trees (u); nor to the plantation of trees: for the general rule is, quidquid plantatur solo, solo cedit; and when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of it's being useful to himself in future, and to future successions of tenants (x). Therefore, if a man sow the land with acorns, or plant young fruit trees, or oak, elm, ash, or other trees, these cannot be comprehended under emblements (y). The case of trees, shrubs, and other produce of their grounds planted by gardeners and nurserymen, with an express view to sale, may be mentioned as an exception; for they are removable by them or their executors as emblements are (2). The growing crop of grass, even if sown from seed, and though ready to be cut for hay, cannot be taken as emblements; because, as it is said, the improvement is not 832, by Bayley, J. It is said in the remark of Lawrence, J., in 3 East, 44, note (c). But where a tenant, not being a nurseryman by trade, makes a nursery for fruit trees, for the purpose of transplanting to the orchards, he has no right to sell them by Heath, J., in Wyndham v. Way, 4 Taunt. 316. Lord Ellenborough held at Nisi Prius, that it was waste for an outgoing tenant of garden ground to plough up strawberry beds in full bearing, although when he came in he paid for them at a valuation: Wetherell v. Howells, 1 Campb. 227. And it was held in Empson v. Sodon, 4 B. & Adol. 655. S. C. 1 Nev. & M. 720, that a tenant (not a gardener by trade) cannot remove a border of box planted by himself on the demised premises: And in this case Littledale, J., denied that the tenant could remove flowers which he had planted. distinguishable from what is natural product, although it artificial may be increased by cultivation (a). It seems, however, grasses: that the artificial grasses, such as clover, saint-foin, and the like, by reason of the greater care and labour necessary for their production, are within the rule of emblements (b). But the doctrine of emblements extends to a crop of that second year's species only which ordinarily repays the labour, by which it crops. is produced, within the year in which that labour is bestowed, though the crop may in extraordinary seasons be delayed beyond that period (c). In Graves v. Weld (d), the tenant for a term determinable upon a life, sowed the land in spring, first with barley, and soon after with clover: The life expired in the following summer: In the autumn the tenant mowed the barley, together with a little of the clover plant which had sprung up: The clover so taken made the barley-straw more valuable, by being mixed with it; but the increase of the value did not compensate for the expense of cultivating the clover, and a farmer would not be repaid such expense in the autumn of the year in which it was sown: The reversioner came into possession in the winter, and took two crops of the same clover, after more than a year had elapsed from the sowing: It was held that the tenant was not entitled to emblements of either of these two crops: first, because emblements can be claimed only in a crop of a species which ordinarily repays the labour by which it is produced within the year in which that labour is bestowed; and, secondly, because, even if the plaintiff were entitled to one crop of the vegetable growing at the time of the cesser of his interest, this had been already taken by him at the time of cutting the barley. It remains to consider in what cases the executor or (a) Gilb. Ev. 215, 216. Com. Dig. Biens, (G. 1.) See also Evans v. Roberts, 5 B. & C. 832, in the judgment of Bayley, J.; and Co. Lit. 56, a. (b) 4 Burn. E. L. 299. No case seems to have occurred where these matters have come in question. (c) 5 B. & Adol. 118. (d) 5 B. & Adol. 105. S. C. 2 Nev. & M. 725. In what cases the executor is entitled to emblements: heir: administrator is entitled to emblements. Where the deceased was seised in fee simple of the land, his personal representatives are entitled to emblements as against the heir (e): as against the though not as against a dowress (f). So if the deceased was seised in fee tail, his executor or administrator is entitled to the privilege as against the heir in tail (g). But where a man is seised of the soil as joint-tenant, and dies, the corn, &c., sown, goes to the survivor, and the moiety shall not go to the executors or administrators of the deceased (h): Yet if a joint-tenant agree that his companion shall occupy and sow all the land, who sows and dies before severance, his executors shall have the emblements (i). as against a devisce: It must be observed, however, that if a man seised in fee, sows the land, and then conveys it away, and dies before severance, the crops will not go to the executor of him who has conveyed away the land, but will pass with the soil as appertaining to it (k). In like manner, the executor of a tenant in fee does not enjoy the right to emblements as against a devisee; for if the land itself is devised, the growing crops pass to the devisee, and the executor is excluded (1). And though the devise was made before sowing, and the devisor afterwards sows, and dies before severance, the devisee shall have them, and not the executor (m). So, if the testator, being seised in fee, sows the land, and devises it to A. for life, (without any remainders over,) and the testator and A. both die before severance, the executors of A. shall have the crop, though (e) Co. Lit. 55, b. note (2). Lawton v. Lawton, 3 Atk. 16. Com. Dig. Biens, (G. 2.) Gilb. Ev. 214. 215. (f) See post, p. 638. (g) Com. Dig. Biens, (G. 2.) Wentw. Off. Ex. 145, 14th edit. (h) Per Popham, J., in James v. Portman, Owen, 102. Rowney's case, 2 Vern. 323. Com. Dig. Biens, (G. 2): for joint-tenants are supposed to carry on the cultivation of the soil by a joint stock, and in all joint stock, except merchants', there is a survivorship: Gilb. Ev. 212, 213 but see ante, p. 577. (i) James v. Portman, Owen, 102. (k) Gilb. Ev. 214. (1) Spencer's case, Winch. 51. Gilb. Ev. 215. (m) Com. Dig. Biens, (G. 2.) A. did not sow (n). This rule is founded upon a presumption that it is the Will of the testator, that he who takes the land should take the crops which belong to it; because every man's donation shall be taken most strongly against himself (0). However, this distinction between the heir and devisee, though fully established, is mentioned by Lord Ellenborough, in West v. Moore (p) as capricious enough. And the presumption may be rebutted by words in the Will, that show an intent that the executor shall have the emblements (q). Thus where the testator devised certain estates to A. in fee, and to his executors all his money, &c., stock upon his farm, with the implements of husbandry, and all other his personal estate of what nature or kind soever, in trust, to pay debts and legacies, &c., it was held that the devise of the stock upon his farm carried the standing crops of corn growing there at the time of his death from the devisee of the land to the executors; although there were assets sufficient to pay all the debts and legacies without that aid (r). So where there is expressly a legatee of the growing crops, or any (n) Winch. 51. Co. Lit. 55, b. note (2), from Hal. MSS. (0) Gilb. Evid. 214. On the same ground, if a man seised in fee sows copyhold lands, and surrenders them to the use of his wife, and dies before the severance, the wife shall have the corn, and not the executors of the husband: for this is a disposition of the corn, being appurtenant to the land: 1 Roll. Abr. 727, pl. 18. Gilb. Ev. 214. (p) 8 East, 343. See also a note of Hargrave to the same effect, Co. Lit. 55, b. (9) 8 East, 343, by Lord Ellenborough. (r) West v. Moore, 8 East, 339. Cox v. Godsalve, 6 East, 604, note. See also Godolphin, Pt. 3, c. 21, s. 13, that by a bequest of Moveables," the industrial fruits of the ground will pass. But in Vaisey v. Reynolds, 5 Russ. 12, Sir John Leach, M. R., held that a gift of "all farming stock" will not pass crops on the ground, as between a particular and residuary legatee ; and his Honor observed, that in Cox v. Godsalve, and West v. Moore, the devisee was excluded, rather because the executor was plainly meant to take the whole personal estate, than from the mere force of the words "stock on my farm." See, however, Blake v. Gibbs, 5 Russ. 13, in notis, where Lord Gifford held that emblements will pass as against a residuary legatee, under the description of stock on a farm, of which the testator was tenant for life. See also Rudge v. Winnall, 12 Beav. 357. |