word "goods," or under the word "chattels," depends upon the whole context of the will, and it was held, that a bequest of "all monies, goods, chattels, clothing, &c. the testator's property, which may remain after paying my funeral charges and debts," will pass the testator's interest in stock and money, (y) but a bequest of "all the rest of my money," without other words, will not pass stock. (z) CHAP. III. I. RIGHTS ΤΟ PERSONALTY. Ships and Vessels, in respect of their great importance in Ships. commerce, have been distinguished by particular enactments, and in many respects, and principally by the Register Acts, relating to their construction, and the evidence of their ownership, and the modes of transfer. (a) The Bankrupt Act also expressly exempts ships, the mortgage or transfer of which has been duly registered, from passing under the general law to the assignees of a bankrupt, in respect of his being in possession as reputed owner, (b) and even a new rudder and cordage bought specifically for such a ship, though not actually attached to it at the time of the act of bankruptcy of such mortgagor, will stand on the same footing as the ship, and will pass to the mortgagee as parts thereof; (b) and a contract relating to the sale of a ship need not be stamped. (c) A ship usually is described by name, together with all her tackle, apparel, rigging, sails, yards, and furniture thereto belonging, of the value of so much, and which description is usual and proper in trover. (d) There are several particular provisions against criminal injuries to ships, which will hereafter be noticed. (e) 3. Various growing vegetables, termed in law emblements, and 3. Growing plants vegetaproperly speaking the profits of sown land, but extended in law bles, crops and not only to growing crops of corn, but to roots planted, and emblements. other annual artificial profit, are deemed personal property, and pass as such to the executor or administrator of the occupier, whether he were the owner in fee, or for life, or for years, if he die before he has actually cut, reaped or gathered the same; and this, although these being affixed to the soil for some purposes, might be considered, whilst growing, as part of the realty. All vegetable productions are so classed when they (a) 6 Geo. 4, c. 109, 110; 7 Geo. 4, c. 48; see Chit. Col. St. Ships. (b) 6 Geo. 4, c. 16, s. 72; and see 5 B. & Ald. 918. (c) 6 Geo. 4, c. 41; 1 Dans. & Lloyd, (d) Morg. Prec. Trover for a Ship. CHAP. III. I. RIGHTS ΤΟ are raised annually by labour and manure, which are considerations of a personal nature. They include corn growing and PERSONALTY. the year's produce of growing crops, though from old roots,(ƒ) and of saffron, hemp, flax, and as it seems, clover, saintfoin, and every other yearly production, in which art and industry have combined with nature. (g) But natural meadow grass, though previously manured, and bush harrowed, and shut up for a crop of hay, does not go to the executor, if his testator die before severance; (h) nor fruit growing on trees; (i) though on the above principle growing melons, cucumbers, artichokes, parsnips, carrots, turnips, and the like, belong to the executor, in respect to the labour and trouble in cultivating and rearing those annual productions. (k) Manure in a heap, before it is spread on the land, is also a personal chattel.(/) If a tenant for life or pur auter vie die, his executor is entitled to emble-ments, (m) and the advantages of emblements are extended to parochial clergy by the statute 28 Hen. 8. c. 11; (n) but a parson who resigns his living, or forfeits by his own act, (o) is not entitled to emblements, although his lessee is. (p) By devise the devisee may, without express words, be entitled to the growing crops. (q) But a legatee of the goods, stock, and moveables on a farm, is entitled to growing corn in preference both to the devisee of the land and the executor. (r) So a tenant at will or sufferance, the duration of whose tenancy is uncertain, is, if the lessor suddenly determine the tenancy, entitled to emblements,(s) and at common law, fructus industriales, as growing corn and other annual produce, which would go to his executor upon death, may be taken in execution, (t) but the appraisement and sale thereof are regulated by statute, (u) and by statute growing crops may be taken as a distress, and sold when ripe. (v) But a crop of natural grass, growing at the time of the death of a tenant for life, does not belong to his executor, but goes to the remainderman.(x) (g) Com. Dig. Biens, G. 1; Co. Lit. 55b; 2 Freem. 210; 2 Bla. C. 122, 123; Toller, 2d ed. 149, 194. (h) Swinb. 934; Toller's Ex. 194, 2d ed. 192; 6 East, 604; 8 East, 339; 9 B. & C. 577. (i) Toller's Ex. 2d ed. 192, 193. (k) Rol. Ab. 728; 4 Burn's Ecc. L. 254. (1) 11 Vin. Ab. 175; Sty. 66. (m) Toller, 2d ed. 203. (n) 1 Rol. Ab. 655; 2 Bla. C. 123; Toller, 2d ed. 207. (e) 7 Bing. 154. (p) 2 B. & Ald. 470. (q) 6 East, 604; 8 East, 339; 2 Bla. C. 122, note 4, 403, 404; Toller, 2d ed. 202, 203. (r) Id. ibid.; Winch, 51, and other cases; Toller, 2d ed. 203. (s) 10 Bar. & C. 720. (t) Tidd, 9th ed. 1001; Gilb. Exe. 19; 1 Salk. 368; 1 Y. & J. 598; 3 Atk. 15; 3 Bar. & C. 368; M'Clel. 207. (u) 56 Geo. 3, c. 50. (v) 11 Geo. 2, c. 19. CHAP. III. 1. RIGHTS TO At one time it was held that a crop of growing turnips, growing potatoes, or corn, partook so much of the real property where they were growing and continuing to improve, that PERSONALTY. a sale of them was in effect a sale of an interest in or concerning land, and that unless the contract of sale were in writing, and signed by the vendor, it was therefore void under the statute against frauds, 29 Car. 2, c. 3, s. 4. (y) Afterwards a distinction was taken as to the degree of maturity, and the time of the year when the sale took place; and if a crop of potatoes were sold in November, when they had done growing, the land was considered and termed merely a warehouse, and the sale in effect only of personalty; (z) but, finally, another and more sensible principle was established, and which still prevails, that when the growing crop is of such a nature as that it would constitute emblements going to an executor in case of death, the same, in whatever state of maturity it might be, is to be considered as goods, and not an interest in land, (a) though it might be otherwise in the case of a sale of a growing crop of natural grass. (b) A sale of growing underwood, to be cut by the purchaser, has been considered a sale of an interest in land, (c) though after the wood or trees have been cut it would be otherwise. (d) And now a sale of such underwood or of growing trees would be considered as merely a sale of goods. (e) It has been observed, that the apparent desire of the courts rather to escape from the rule in Crosby v. Wadsworth, respecting the sale of a growing crop of meadow-grass, without overruling that case, renders it difficult to apply the law to individual cases. (ƒ) Growing plants, vegetables, herbs, and fruits, are treated like emblements, and are enumerated and protected as if personal property by particular enactments against criminal injuries, whether in the nature of larcenies or malicious injuries. (g) Thus the stealing any plant, root, fruit, or vegetable production growing in any garden, orchard, nursery ground, hothouse, greenhouse, or conservatory, is punishable summarily before a justice by imprisonment and hard labour, for not exceeding six calendar months, or the payment of the value of the article stolen, and a penalty not exceeding 201.; and a subsequent offence is felony; (h) but a young fruit tree is not a plant or (y) Croshy v. Wadsworth, 6 East, 602; Emmerson v. Ellis, 2 Taunt. 138; 2 M. & S. 205. (:) 2 M. & S. 205; 11 East, 362; 5 B. & C. 829; 3 B. & C. 357. (a) 9 Bar, & Cres. 577; and see 10 Bar. & Cres. 446; Gow, R. 109. (b) 6 East, 602; but see 1 Ld. Raym. 182; Sugden's V. & P. 76. (c) 1 Younge & J. 396; but see 1 Ld. (e) 9 B. & Cres. 561. (f) Sugd. V. & P. 8th ed. 77,78. I. RIGHTS ΤΟ CHAP. III. vegetable production within the meaning of this act; (i) and the stealing any cultivated root or plant used for food or mediPERSONALTY. cine, or distilling, or dying, or any manufacture, not being in a garden, orchard, or nursery ground, is a minor offence, punishable summarily, with not exceeding one calendar month's imprisonment, or the value, and 20s. (j) Malicious injuries to the like and other properties are punishable even in an higher degree; (k) and though a tree be not totally destroyed, yet if it be cut or broken, and materially damaged, the case is within the act. (1) 4. Fixtures, &c. 4. Fixtures, if annexed to the freehold for the purposes of agriculture, or otherwise than for trade, or where there is a covenant to leave all improvements, belong to the landlord. (m) But when put up for the purposes of trade, or when what are usually termed tenant's fixtures, such as grates, stoves, &c. they are in general removeable by the tenant; (n) and even trees in a garden, when used for the purposes of trade, as in nursery grounds, are removeable by the tenant; (0) but then he must remove them during his tenancy, or they become the property of the landlord; (p) or, at least, a tenant strictly at will must remove within a reasonable time; (q) and if a tenant have covenanted to leave all improvements, he cannot then legally remove any fixtures that would rank under such general terms; (r) and in case of the sale of a freehold estate, if the vendor do not remove fixtures before he executes the conveyance, they pass to the purchaser. (s) When removeable by the tenant, the fixtures put up may be taken and sold under an execution against him. (t) But fixtures put up by a freeholder could not be so taken. (u) Fixtures and growing trees, part of the freehold, and when annexed thereto, cannot by common law or statute be taken as a distress for rent, nor if they be wrongfully so taken will replevin be the proper remedy, as that is sustainable only for taking goods and chattels. (a) So trespass for severing and (i) Rex v. Hodges, 1 Mood. & M. 341. (1) Taylor's case, R. & R. 373. (n) Id. ibid. (o) Panton v. Roberts, 2 East, 88. 258; East, 88; 8 Bing. 186. (g) 10 B. & Cres. 720. (r) 9 Bing. 24; 3 Simons, 450; 1 Taunt. 19; 2 B. & Cres. 608. (s) 2 Bar. & Cres. 76. (t) 1 Salk. 368; 3 Atk. 13; M'Clel. 217; 3 B. & C. 368; Tidd, 9 ed. 1001. (u) 5 B. & Ald. 625; Tidd, 9 ed. 1002. (x) Fixtures, 4 T. R. 584; 2 Saund. 84; Machinery fixed, M'Clel. 217, 218; Trees, 3 Moore, 96; 13 Price, 459; 2 Id. 491. I. RIGHTS TO taking away fixtures is the proper remedy, and not trover. In CHAP. III. trespass for taking goods, chattels, and effects, the plaintiff might recover the value of severed fixtures, but not so for PERSONALTY. taking goods and chattels only; (y) and unsevered fixtures are not recoverable in trover; (2) and an assumpsit for goods, wares, and merchandize sold, without adding effects, the price or value of fixtures could not be recovered. (a) These instances show the necessity for keeping in view the distinction between removeable and actually fixed property, although the latter might be readily removed. It was always a larceny and felony at common law, if the owner, or a stranger, or the thief, sever the fixtures and chattels from the freehold, and the thief afterwards, at a subsequent distant time, come and steal them, but not if he severed them and immediately afterwards carried the same away; (b) but such severances and taking at the same time, or attempting to sever from any building, or wherever fixed on any land, are now provided for by 7 & 8 Geo. 4, c. 29, s. 37 to 45; and it should seem that the stealing of brass fixed to any house, church, or other building or land, (c) or even to tombstones in a churchyard, is a felony under that act. (d) 5. There are some description of personal property tangible 5. Property par and moveable of a mixed character, or, as Blackstone describes, realty as of pertaking as well of of a mongrel amphibious nature, such as an heir-loom, or tomb- sonalty. stones, monuments, &c. (e) in a church, or the coat of armour of an ancestor there hung up with the pennons and other ensigns of honour suited to the degree, and which Courts of Equity so far regard, that besides an action of detinue or trover, a bill may be sustained for the specific delivery thereof, (ƒ) and they descend to the heir.(g) The title deeds to an estate are of this nature, and follow the legal interest, and belong to the legal owner for the time being; and yet, as being moveable, may be the subject-matter of personal actions, as trover or detinue. (h) &c. Shares in canals, bridges, &c., though interests issuing in a Canal shares, degree out of real property, are usually to be considered as personalty, and consequently they give no right to vote for a member of parliament, though under a particular statute it was held that (y) 4 B. & Ald. 206. (3) 2 Bar. & Cres. 76. (a) 2 Marsh. R. 495; 4 J. B. Moore, 75; 4 B. & Ald. 206. (b) 1 Hale, 510; 3 Inst. 109. (c) 1 East's P.C.592; R. & R.C.C.69. (d) 4 Car. & P. 377. (e) As to monuments, ante, Burial, ch. ii. p. 50; and Jacob's R. 180. (f) Chit. Eq. Dig. Chattels personal; and Id. tit. Estate, IX. (g) 2 Bla. C. 428, 429. (h) 3 Bar. & Adol. 174; 4 Bing. 106; 2 Bla. C. 428. |