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r emblements turn; namely the point of uncertainty: since

>could not possibly know when his landlord would deter

nd therefore could make no provision against it; and

land, which is for the good of the public, upon

ition, the law will not suffer him to be a loser

nant at will be determined either by his death

1, he or his executors may reap the corn

i corn sown by a tenant at will (who

Tsed by another person, cannot be

•t due to him from a subsequent

son equally good, where the this case the landlord shall

wosor before sowing, the lessee at will

. ploughing and manuring (o).

b, for ninety-nine years determinable on his life,

,j of re-entry if let to tillage without licence; C. under

ploughs and sows in the life-time of B. who dies, no re-entry

being made; the proviso was gone, for it could only operate during

the continuance of the lease; and A. having never been in possession

by right of re-entry for the condition broken, can have no advantage

thereof; and he who ploughed and sowed the land, has, in law and

justice, a right to reap and take the emblements (c).

If a husband hold lands for life, in right of his wife, and sow the land, and afterwards she die before severance, he shall have the emblements (d).

So where the wife has an estate for years, life, or in fee, and the husband sows the land and dies, his executors shall have the corn (d).

But if the husband and wife are joint-tenants, though the husband sow the land with corn and die before it be ripe, the wife, and not his executors, shall have the corn, she being the surviving jointtenant (e).

If a widow be endowed with lands sown, she shall have the emblements, and not the heir: and a tenant in dower may dispose of corn sown on the ground; or it may go to her executors, if she die before severance (J~). Indeed it is provided by the stat. of Merton, 2 H. 3. c. 2. that a doweress may dispose by will of the growing corn, otherwise it goes to her executor (g). But where lands are limited to a woman during life for her jointure,

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the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place: Greater; for in those cases where tenant for life shall not have the emblements because the estate determines by his own act, the exception shall not reach his lessee who is a third person (a): thus, in the case of a woman who holds durante viduitate s her taking husband is her own act, and therefore deprives her of the emblements, which, if she be a feme copyholder, the lord shall have; but if she lease her estate to an under-tenant who sows the land, and she then marry, this her act shall not de* prive the tenant of his emblements, who is a stranger and could not prevent her (b).

With regard to emblements or the profits of lands sowed 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 hold from Midsummer for ten years,) and in the last year he sows a crop of corn, and it is not ripe, and cut before Midsummer, the end of the term, his landlord shall have it (c); for the tenant knew the expiration of his term, and therefore it was his own folly to sow that of which he never could reap the profits. In such case the landlord, it is said, must enter on the lands to take the emblements (d).

But where the lease for years depends upon an uncertainty; as upon the death of the lessor, 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 cases of this kind, the estate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant, or his executors, shall have the emblements in the same manner that a tenant for life would be entitled thereto (c).

Not so, however, if it determine by the act of the party himself: as if tenant for years surrender before severance, or does any thing that amounts to a forfeiture; in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default (c).

If, however, lessor covenant that lessee for years shall have the emblements which are growing at the end of the term, there the property of the corn is well transferred to the lessee, though it be not severed during the term (e).

If tenant at will sow his land, and the landlord before the corn is ripe, or before it is reaped, put him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits: and this for the same reason upon which all

(4) a Bl. Com. 123. 1 (</) I Bac. Abr. 511.

(») Knevett v. Poole. Cro. Eliz. 463. | («) Co. Lie 55- »• »-5(<:) 2 Bl. Com. 14J. I

the cases of emblements turn; namely the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it (a).

So, if the estate of a tenant at will be determined either by his death or by the act of the landlord, he or his executors may reap the corn sown by him.—Wherefore the corn sown by a tenant at will (who dies before harvest) and purchased by another person, cannot be distrained by the landlord for rent due to him from a subsequent tenant F.

But it is otherwise, and upon reason equally good, where the tenant himself determines his will; for in this case the landlord shall have the profits of the land (i).

So in the case of entry of the lessor before sowing, the lessee at will shall not have the costs of ploughing and manuring (a).

A. lets lands to B, for ninety-nine years determinable on his life, with a proviso of re-entry if let to tillage without licence; C. undertenant ploughs and sows in the life-time of B. who dies, no re-entry being made; the proviso was gone, for it could only operate during the continuance of the lease; and A. having never been in possession by right of re-entry for the condition broken, can have no advantage thereof; and he who ploughed and sowed the land, has, in law and justice, a right to reap and take the emblements (c).

If a husband hold lands for life, in right of his wife, and sow the land, and afterwards she die before severance, he shall have the emblements (d).

So where the wife has an estate for years, life, or in fee, and the husband sows the land and dies, his executors shall have the corn (d).

But if the husband and wife are joint-tenants, though the husband sow the land with corn and die before it be ripe, the wife, and not his executors, shall have the corn, she being the surviving jointtenant (e).

If a widow be endowed with lands sown, she shall have the emblements, and not the heir: and a tenant in dower may dispose of corn sown on the ground; or it may go to her executors, if she die before severance (_/"). Indeed it is provided by the stat. of Merton, 2 H. 3. c. 2. that a doweress may dispose by will of the growing corn, otherwise it goes to her executor (g).

But where lands are limited to a woman during life for her jointure,

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she has the same rights with respect to estovers and emblements, and is under the same restrictions respecting waste, (unless there be a deficiency in her jointure,) as other tenants for life. A jointress is not, however, entitled to the crop sown at the time of her husband's death; because a jointure is not a continuance of the estate of the husband, like dower : on the death of a jointress, therefore, her representatives are not entitled to emblements (a).

If tenant by statute-merchant sow the land, and before severance a sudden and casual profit happens, by which he is satisfied, yet he shall have the emblements (b).

Where lands sown are delivered in execution upon an extent, the person to whom they are so delivered shall have the corn on the ground (c).

So, where judgment was given against a person, and then he sowed the land, and brought a writ of error to reverse the judgment, but it was affirmed; it was adjudged that the recoveror should have the corn (d).

If a man enter by title paramount, he shall have the emblements; as if a disseisor sow and the disseisee enter before severance (t).

The advantages also of emblements are particularly extended to the parochial clergy by the stat. 28 H. 8. c. 11., which considers all persons who are presented to any ecclesiastical benefice, or to any civil office, as tenants for their own lives, unless the contrary be expressed in the form of the donation. By this statute, if a parson sow his glebe and die, his executors shall have the corn; and such parson may by will dispose thereof, s. 6. (f).

A. grants to B. that he may sow As land, which is done accordingly; yet A. shall have the emblements, because B. hath not an interest (g).

If the lessee for a tenant for life be disseised, and the lessee of the disseisor sow the land, and then the tenant for life dies, and he in remainder enters, yet he shall not have the emblements, but the lessee of the tenant for life; for quicquid platttatur solo, solo credit (h).

Where there is a right to emblements, ingress, egress, and regress are allowed by law, in order to enter, cut, and carry them away when the estate is determined (i).

Emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels: they are deviseable, and at the death of the owner, shall vest in his executor, and not his heir: they are forfeitable by outlawry in a

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personal action j and by the stat. 11 G. a. c. 19. (though not by the common law) they may be distrained for rent arrear (a).

But though emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distrainable for rent, they are not in other respects considered as personal chattels, and particularly they are not the object of larceny before they are severed from the ground (a).

Of Gleaning.—It may perhaps be as well to introduce here a word respecting gleaning or lesing. An idea very universally prevails among the lower classes of the community that they have a right to glean, that is, to take from off the land the corn that remains thereon after the harvest has been gotten in; than which notion nothing can be more erroneous. By custom, indeed, such a right may possibly in some particular places exist •, and the laudable kindness of tenants generally induces them to permit the poor to collect the corn they have left upon the land, and to appropriate it to their own use. As a right, however, it has no more existence than a right to take the tenant's furniture from out of his messuage, and the pillage in the one case is as much felony as the plunder would be in the other: for the act is not simply a trespass, but a felony; and the compiler well remembers a conviction at the Old Bailey on an indictment found for the exercise of this supposed right. The parties were tried before Mr. Justice Roske, (if he mistake not) about the year 1798. Indeed, it has been determined, after two solemn arguments, that no such right exists at common law; whatever may possibly be the case on the ground of custom in particular places (b).

For though it be no larceny, but a bare trespass, to take corn or grass growing, it is larceny to take them being severed from the freehold, whether by the owner or by the thief himself, if he sever them at one time and then come again at another time and take them (c),

(a) a Bl. Com. 404. I Rex v. Price. 4 Burr. 1926.

(*) Steel v. Houghton. 1 H. Bl. R. 51-3. I (c) I Hawk. P. C. c. 83. s. 41.

CHAPTER X.

Of the general Incidents to Leases (continuedJ.

Section I. Of implied Covenants and Agreements.

Section II. Of express Covenants and Agreements.

Section I, of implied Covenants and Agreements.

/"COVENANT, contract, and agreement, are often used as synony^-> mous words, signifying an engagement entered into, by which

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