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crop is made thicker; if not so fed off, the shoots would be killed by the frost in the winter. In this case the clover was not depastured. Broad clover is sometimes sown by itself; but more frequently with barley, flax, oats, or wheat. The part of the clover plants cut off with the barley at the time of mowing it, makes the barley straw better as fodder; but the clover is sown for hay, or seed, and not to improve the barley straw. When the clover grows up high, it is injurious to the barley. It is the common course of husbandry, to take for hay a second crop of the clover in the autumn of the year after it is sown; and a second crop was so taken by the defendant in the autumn of 1831. But when it is intended for seed, no crop is taken for hay in the summer. Sometimes the clover is left for a third year, but it is not then a good crop. The usual course of husbandry is to plough up the land in the autumn of the second year for wheat. There was no covenant in the lease as to the away going crop, or binding the tenant to any particular course of husbandry.

The learned judge took the opinion of the jury on the two following questions: First, whether the plaintiff received any benefit from taking the clover with the barley straw, sufficient to compensate him for the cost of the clover seed, and the extra expense of sowing and rolling. Secondly, whether a prudent and experienced farmer, knowing that his term was to expire at Michaelmas, would sow clover with his barley in the spring, where there was no covenant that he should do so; and, whether, in the long run, and on the average, he would repay himself in the autumn for the extra cost incurred in the spring. The jury answered both these questions in the negative.

The question for the opinion of the court was, whether the plaintiff was entitled to the clover cut in May, 1831, as emblements.

The case was argued in this term.

Follett, for the plaintiff.

Gambier, for the defendant.

DENMAN, C. J. In this case the plaintiff is undoubtedly entitled to emblements. The question is, whether that which is here called the second crop of clover falls under that description? We think it does

not.

In the very able argument before us, both sides agreed as to the principle upon which the law which gives emblements was originally established. That principle was, that the tenant should be encouraged to cultivate, by being sure of receiving the fruits of his labor; but both sides were also agreed that the rule did not extend to give the tenant all the fruits of his labor, or the right might be extended in that case to things of a more permanent nature, as trees, or to more crops than one; for the cultivator very often looks for a compensation for his capital and labor in the produce of successive years. It was, therefore, admitted by each, that the tenant could be entitled to that species of product only which grows by the industry and manurance of man, and to one crop only of that product. But the plaintiff insisted that

the tenant was entitled to the crop of any vegetable of that nature, whether produced annually or not, which was growing at the time of the cesser of the tenant's interest; the defendant contended that he was entitled to a crop of that species only which ordinarily repays the labor by which it is produced, within the year in which that labor is bestowed, though the crop may, in extraordinary seasons, be delayed beyond that period. And the latter proposition we consider to be the law.

It is not, however, absolutely necessary to decide this question; for, assuming that the plaintiff's rule is the correct one, the crop which is claimed was not the crop growing at the end of the term. The last cestui que vie died in July; the barley and the clover were then growing together on the same land, and a crop of both, together, was taken by the plaintiff in the autumn of that year; though the crop of clover of itself was of little value. Thus the plaintiff has had one crop; and if it were necessary, either generally, or in the particular case, that the crop taken should remunerate the tenant, we must observe, that though the crop of clover alone did not repay the expense of sowing and preparation, the case does not find that both crops together did not repay the expenses incurred in raising both. The decision, therefore, might proceed on this short ground; but as the more general and important question has been most fully and elaborately argued, we think it right to say we are satisfied that the general rule laid down by the defendant's counsel is the right one.

The principal authorities upon which the law of emblements depends, are Littleton, § 68, and Coke's Commentary on that passage. The former is as follows: "If the lessee soweth the land, and the lessor, after it is sown and before the corn is ripe, put him out, yet the lessee shall have the corn, and shall have free entry, egress and regress to cut and carry away the corn, because he knew not at what time the lessor would enter upon him." Lord Coke, Co. Lit. 55 a, says, "The reason of this is, for that the estate of the lessee is uncertain, and, therefore, lest the ground should be unmanured, which should be hurtful to the Commonwealth, he shall reap the crop which he sowed in peace, albeit the lessor doth determine his will before it be ripe. And so it is if he set roots or sow hemp or flax, or any other annual profit, if after the same be planted, the lessor oust the lessee; or if the lessee dieth, yet he or his executors shall have that year's crop. But if he plant young fruit trees, or young oaks, ashes, elms, &c., or sow the ground with acorns, &c., there the lessor may put him out notwithstanding, because they will yield no present annual profit." These authorities are strongly in favor of the rule contended for by the defendant's counsel; they confine the right to things yielding present annual profit and to that year's crop, which is growing when the interest determines. The case of hops, which grow from ancient roots, and which yet may be emblements, though at first sight an exception, really falls within this rule. In Latham v. Atwood, Cro. Car. 515, they were

held to be "like emblements," because they were "such things as grow by the manurance and industry of the owner, by the making of hills and setting poles:" that labor and expense, without which they would not grow at all, seems to have been deemed equivalent to the sowing and planting of other vegetables. Mr. Cruise, in his Digest, i. 110, ed. 3. says that this determination was probably on account of the great expense of cultivating the ancient roots. It may be observed, that the case decides that hops, so far as relates to their annual product only, are emblements; it by no means proves, that the person who planted the young hops would have been entitled to the first crop whenever produced.

On the other hand, no authority was cited to show that things which take more than a year to arrive at maturity, are capable of being emblements, except the case of Kingsbury v. Collins, 4 Bing. 202, in which teazles were held by the Court of Common Pleas to be so. But this point was not argued, and the court does not appear to have been made acquainted with the nature of that crop or its mode of cultivation, or it may be, that in the year when the plant is fit to gather, so much labor and expense is incurred, as to put it on the same footing as hops. We do not therefore consider this case as an authority upon the point in question.

The note of Serjeant Hill in 9 Vin. Abr. 368, in Lincoln's Inn Library, which Mr. Gambier quoted, is precisely in point in the present case, and proves that, in the opinion of that eminent lawyer, the crop of clover in question does not belong to the plaintiffs. It is stronger, because there the estate of the tenant is supposed to determine after harvest, whereas here it determined before.

The weight of authority, therefore, is in favor of the rule insisted upon by the defendant. There are besides some inconveniences, doubts, and disputes, which were pointed out in the argument, which would arise if the other rule were to prevail. Is the tenant to have the feeding in autumn, besides the crop in the following year? If so, he gets something more than one crop. Is he to have the possession of the land for the purpose? Or is the reversioner to have the feeding; and, in that case, is the reversioner to be liable to an action if he omits to feed off the clover, and thereby spoils the succeeding crop? These inconveniences do not arise if the defendant's rule is adopted. It also prevents the reversioner from being kept out of the full enjoyment of his land for a longer time than a year at the most; whereas, upon the other supposition, that period may be extended to two or more years, according to the nature of the crop.

We are therefore of opinion that the rule regulating emblements is that which the defendant has contended for, and that for this reason also he is entitled to our judgment. Judgment for the defendant.1

1 See Reiff v. Reiff, 64 Pa. 134; Evans v. Iglehart, 6 G. & J. 171, 188 et seq.; Flanagan v. Seaver, 9 Ir. Ch. 230.

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THE declaration alleged that W. Cooper, in his lifetime and at the time of his death, was seised in fee of certain land called the " Clay pits," and being so seised sowed the same with a crop of corn and barley, which was growing thereon at the time of his death; and that at the time of the committing of the grievances hereinafter mentioned, the plaintiffs, as executors, were entitled to the said crop of corn and barley, which was then growing on the said land, and to a right of way, &c., for the purpose of cutting and carrying away the said crop of corn and barley; that the crop was ripe and ready to be cut; yet the defendant obstructed the said way, and prevented the plaintiffs from entering and carrying away the said corn, &c.

Plea. That W. Cooper, by his last will, devised the said land, called theClay pits," unto one M. Woolfitt, to hold the same to the use of M. Woolfitt, her heirs and assigns forever, whereby M. Woolfitt became seised of the said land called the "Clay pits," and entitled to the crop of corn and barley growing thereon; and that M. Woolfitt being so seised and so entitled to the said crop of corn and barley, the defendant, as the servant of M. Woolfitt, committed the supposed grievances.

Replication. That W. Cooper, by his will, gave and devised the said land to M. Woolfitt, chargeable, nevertheless, with the payment of a legacy of £20 thereinafter bequeathed to Samuel Cooper, to hold the same, chargeable as aforesaid, unto and to the use of M. Woolfitt, her heirs and assigns forever. And, by his will, he gave and bequeathed to M. Woolfitt and Sarah Cooper, in equal shares, all his moneys, securities for money, household furniture, goods, chattels, personal estate and effects whatsoever and wheresoever not thereinbefore specifically bequeathed; and by a codicil to his said will, duly executed, &c., he revoked the said bequest, in favor of the said M. Woolfitt, of one half part of the residue of his personal estate and effects, and bequeathed such one half part to the plaintiff, Henry Cooper, and afterwards died without altering his said will and codicil as to the said bequest, and that the corn and barley in the declaration mentioned was not specifically bequeathed by the will or codicil, or otherwise.

The defendant demurred to the replication. He also rejoined: That W. Cooper, by his said will, bequeathed to the said Samuel Cooper, the legacy of £20, to be payable at the end of twelve calendar months next after his decease, by M. Woolfitt, out of the close of land called "Clay pits," &c. And he also bequeathed unto Joseph Cooper

absolutely, all that his post windmill, with the sails, gear and appurtenances; and that the said W. Cooper, by his said will, gave and bequeathed unto M. Woolfitt and the plaintiff, Sarah Cooper, in equal shares, all his moneys, securities for money, household furniture, goods, chattels, personal estate and effects whatsoever and wheresoever not therein before specifically bequeathed, subject to the payment of all his just debts, his funeral and testamentary expenses, as well as to the payment of legacies of £20 apiece unto James Cooper and E. Cooper, and he appointed them, the said M. Woolfitt and Sarah Cooper, joint exccutrixes of his said will; and that the said W. Cooper, by his said codicil, charged his aforesaid mill and appurtenances bequeathed to the said Joseph Cooper with the payment of the said two legacies of £20 apiece to the said James Cooper and E. Cooper, in exoneration of his residuary personal estate, and he appointed the plaintiff, Henry Cooper, joint executor with the said Sarah Cooper of his will. The plaintiff demurred to the rejoinder.

Bittleston, for the defendant.

Joseph Brown, for the plaintiff.

POLLOCK, C. B. The question is, whether, under the large words employed by the testator in 'the bequest of personalty, the growing crops are so clearly given to the legatee as to take them out of the operation of the rule of law which, in case of a devise of the ground on which the crops stand, gives them to the devisee. A devisee takes more than the heir would have done; for he is not hæres factus, but takes by conveyance. He is therefore entitled to everything which is appurtenant to the land, and as such to all crops growing on the land at the time of the testator's decease, unless it appears with certainty that the testator intended some one else to take them. Here it is impossible to say that it is clear that the testator intended to give these crops to the executors. I am therefore of opinion that there

must be judgment for the defendant.

MARTIN, B. I am of the same opinion. The replication shows that the testator having given to M. Woolfitt the close called "the Clay pits," bequeathed to H. Cooper and S. Cooper all his personal estate whatsoever and wheresoever not thereinbefore specifically bequeathed. It is said that this applies to the crops growing on the land in question. But according to the well-established rule, they go to the devisee of the land unless expressly given by the will to some one else.

BRAMWELL, B. I am of the same opinion. It is said that the general bequest of the personal estate, not thereinbefore specifically bequeathed, shows that the emblements were not to go to the devisee of the land. But, in fact, this amounts to nothing, because in every case where an executor is appointed all the personal effects vest in him.

CHANNELL, B. I am of opinion that the defendant is entitled to judgment upon each of the demurrers. The law is thus stated in Sheppard's Touchstone, by Preston, p. 472: "As between an executor

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