If the lord of a manor cut down fo many trees as not to 12 Mod. 379. leave fufficient eftovers, his copyholder may bring trefpafs Bull. N. P. 85. f. c. against him, and recover the value of the trees in damages; and even if the lord leave fufficient eftovers, yet he shall recover fpecial damages, viz. for the lofs of his umbrage breaking his clofe, treading down his grafs, &c. for the tenant had the fame cuftomary or poffeffory intereft in the trees that he has in the land; and if the lord has a mind to cut trees, his business is to compound with the tenant.

But an enclosure of the common by the lord may be no 6 T. R. 748. interruption of the tenant's enjoyment of their common of eftovers; nay, probably it may be better for fuch enclosure. If indeed, by fuch enclosure, their common of eftovers were affected, or they were interrupted in the enjoyment of it, they might certainly bring their action; and the lord, in fuch cafe, could not juftify fuch enclosure in prejudice to those rights.

R. 13.

If the lord of a manor plant trees on a common, the com- 2 Bof. & Pull, moner has no right to abate them, though there be not a fufficiency left; his remedy is by action. But if the lord fo plant as to deftroy the common, fuch an act would be confidered as a nuisance, and the commoner might abate it.

The diftinction feems to be this: if the lord of the manor 6 T. R. 435. make a hedge round the common, or do any other act that entirely excludes the commoner from exercising his right, the latter may do whatever is neceffary to let himself into the common; but if the commoner can get at the common, and enjoy it to a certain extent, and his right be merely abridged by the act of the lord, in that case his remedy is by an action on the cafe, or by an affife, and he cannot affert his right by any act of his own:

SECTION III. Of Emblements.

The word emblements is derived from the French 2 Bl. Com. 123. emblavence de bled, corn fprung or put above ground, and ftrictly fignifies the profits of fown land; but the doctrine

of emblements extends not only to corn fown, but to roots

planted, or other annual artificial profits.-Hops growing Cro. Car. 515. out of antient roots have been held to be like emble

2 Bl. Com. 123.

Com. Dig. tit.

ments, which shall go to the husband or executor of the the tenant for life, and not to him in remainder; and are not to be compared to apples or fruits, which grow of themselves.

But it is otherwife of fruit-trees, grafs, and the like, which are not planted annually at the expence and labour of the tenant, but are either a permanent or a natural profit of the earth; for when a man plants a tree, he cannot be prefumed to plant it in contemplation of any present profit; but merely with a profpect of its being useful to himself in future, and to future fucceffions of tenants.

In some cases, he who fows the corn fhall have the emblements, in others not.

If tenant in fee, or in tail, or in dower, die after sowing Biens (G. 2.) the corn, and before feverance, his executor or adminiftrator generally fhall have the emblements.

Ibid. 122.

Cro. Eliz. [464.]

Ibid.

Ibid. [463.]

Tenant for life or his representatives fhall not be prejudiced by any fudden determination of his eftate; because fuch a determination is contingent and uncertain.-Therefore if a tenant for his own life fows the land, and dies before harvest, his executors fhall have the emblements or profits of the crop; for the estate was determined by the act of God, and it is a maxim in the law, that actus Dei nemini facit injuriam. The reprefentatives therefore of the tenant for life fhall have the emblements, to compensate for the labour and expence of tilling, manuring, and fowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the encrease and plenty of provifions, ought to have the utmost fecurity and pri vilege that the law can give it.

Therefore if a man fows land and lets it for life, and the leffee for life die before the corn be fevered, his executor shall not have the emblements, but he in reverfion; but if he himself had fowed the land and died, it were otherwife.

So, if tenant for life fows the land, and grants over his eftate, the grantee dies before the corn fevered, fuch grantee's executor fhall not have the corn.

So, if the leffee of a tenant for life be diffeifed, and the leffee of a diffeifor fows the land, and then the tenant for

life dies, and he in remainder enters, yet he shall not have the emblements, but the leffee of the tenant for life.

So it is also, if a man be tenant for the life of another, Ibid. 123, and ceftui que vie, or he on whofe life the land is held, dies after the corn sown, the tenant pur auter vie shall have the

emblements.

The fame is alfo the rule, if a life eftate be determined Ibid. by the act of law.

Therefore if a lease be made to husband and wife during coverture (which gives them a determinable eftate for life) and the husband fows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this cafe; for the fentence of divorce is the act of law.

So if tenant in tail give or grant his emblements of corn Shep. Touch: growing on the ground; the donee may cut and take them 244 after the death of the tenant in tail.

So every one who has an uncertain eftate or intereft, if Ibid. before feverance of the corn, his eftate determine either by the act of God or of the law, he shall have the emblements,

or they shall go to his executor or administrator: for, so it is Shep. Touch. in all cafes regularly, where a man fows land whereof and 471. wherein he hath fuch an eftate as may perhaps continue un

til the corn be ripe.

But if the estate be determined by the tenant's own act, as 2 Bl. Com. 123. by forfeiture by tenant for life for wafle committed; or if a tenant during widowhood marries; in thefe and fimilar cafes, the tenants having thus determined the eftates by their own acts, shall not be entitled to take the emblements. The under-tenants or leffees of tenants for life, have the bid. fame, nay greater, indulgences, than their leffors, the original tenants for life. The fame; for the law of eftovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who reprefents him and stands in his place:-Greater; for in thofe cafes where tenant for life shall not have the emblements because the eftate determines by his own act, the exception fhall not reach his lefsee who is a third person: thus, in the cafe of a woman who holds durante viduitate; her taking hufband is Cro. Eliz 460. her own act, and therefore deprives her of the emblements,

2 Bl Com. 145.

which, if he be a feme copyholder, the lord fhall have; but if the leafes her eftate to an under-tenant, who fows the land, and fhe then marries, this her act fhall not deprive the tenant of his emblements, who is a ftranger and could not prevent her.

With regard to emblements or the profits of lands fowed. by tenant for years, there is this difference between him and tenant for life: that where the term of tenant for years depends upon a certainty, (as if he holds from Midsummer for ten years,) and in the last year he fows a crop of corn, and it is not ripe, and cut before Midfummer, the end of his term, his landlord fhall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to 1 Lit. Abr. 511. fow that of which he never could reap the profits. In fuch cafe the landlord, it is faid, must enter on the lands to take the emblements.

2 Bl. Com. 145.

Ibid.

Co. Lit. 55, 4. n. 5.

Co. Lit. 55. a.

2 Bl. Com. 146.

But where the leafe for years depends upon an uncertainty; as upon the death of the leffor, being himself only tenant for life, or being a husband seised in right of his wife; or if the term of years be determinable upon a life or lives; in all cafes of this kind, the eftate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant, or his executors, fhall have the emblements in the fame manner that a tenant for life would be entitled thereto.

Not fo, however, if it determine by the act of the party himself as if tenant for years furrenders before feverance, or does any thing that amounts to a forfeiture; in which cafe the emblements fhall go to the leffor, and not to the leffee, who hath determined his eftate by his own default.

If however, leffor covenants that leffee for years thall have the emblements which are growing at the end of the term, there the property of the corn is well transferred to the leffee, though it be not severed during the term.

If tenant at will fows his land, and the landlord before the corn is ripe, or before it is reaped, put him out, yet the tenant fhall have the emblements, and free ingrefs, egrefs, and regrefs, to cut and carry away the profits: and this for the fame reafon upon which all the cafes of emblements turn; namely, the point of uncertainty: fince the

tenant

tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having fown the land, which is for the good of the public, upon a reasonable presumption, the law will not fuffer him to be a lofer by it.

But it is otherwife, and upon reafon equally good, Ibid. where the tenant himself determines his will; for in this

cafe the landlord fhall have the profits of the land.

4.

So in the case of entry of the leffor before sowing, the Co. Lit. 55. an leffee at will fhall not have the costs of ploughing and ma'nuring.

A. lets lands to B. for ninety-nine years determinable on 3 Wilf. 140. his life, with a provifo of re-entry if let to tillage without licence; C. under-tenant ploughs and fows in the life-time of B. who dies, no re-entry being made: the provifo was gone, for it could only operate during the continuance of the leafe; when that was determined, the provifo was vanished and gone; and A. having never been in poffeffion by right of re-entry for the condition broken, can have no advantage thereof; and he who ploughed and fowed the land, has, in law and juftice, a right to reap and take the emblements.

If a husband holds lands for life, in right of his wife, and 1Nals,Abr.701. fows the land, and afterwards the dies before feverance, he

fhall have the emblements.

So where the wife has an eftate for years, life, or in fee, Ibid. 70% and the husband fows the land and dies, his executors shall

have the corn.

Cro. Eliz. 61.

But if the husband and wife are joint-tenants, though the Co. Lit. 55.6. husband fow the land with corn and die before it be ripe, the wife, and not his executors, fhall have the corn, fhe be

ing the furviving joint-tenant.

If a widow is endowed with lands fown, fhe fhall have 2 Inft. 80, 81.

the emblements, and not the heir: and a tenant in dower

may difpofe of corn fown on the ground; or it may go to

her executors, if fhe die before severance.

One feifed in fee of land dies, leaving a daughter, and Co. Lit. 55. bu his wife privement enfeint with a fon; the daughter enters

and fows the land, and before severance, the fon is born; in