3 Bligh v. Brent, 2 Y. & C. 268.

4 Gould v. Mansfield, 103 Mass. 408 (1869). 5 Purcell v. Miner, 4 Wall. 513 (1866).

1 Rodwell v. Phillips, 9 M. & W. 505. In Scorell v. Boxall, 1 Y. & J. 399, Baron Hullock says: "My brothers Bayley and Holroyd, in the case of Mayfield v. Wadsley, were of opinion that an off-going crop might be considered as goods and chattels; and the judgment of Mr. Justice Little-dale in that of Evans v. Roberts, proceeds expressly on the ground of distinction between such things as go to the heir or to the executor. There is a manifest distinction between crops and the subject-matter of this contract. It is true that the dictum in Lord Raymond is opposed to this opinion; but it is to be remembered that if that were law, the several modern cases which have been decided could never have arisen. I must confess that I never before heard that dictum cited as an authority; and the only claim which it has, in my opinion, to that distinction is the allusion to it by Mr. Justice Holroyd."

2 This is so stated in Evans v. Roberts, 5 B. & C 829; Scorell v. Boxall, 1 Y. & J. 398; The Bank of Lansingburgh v. Crary, 1 Barb. 545.

3 Rodwell v. Phillips, 9 M. & W. 505, per Lord Abinger. So, also, in Sainsbury v. Matthews, 4 M. & W. 313; Green v. Armstrong, 1 Denio, 554.

4 A contract for crops of potatoes is held to be a contract for chattels, and not within the statute, in Jones v. Flint, 10 Ad. & El. 753; Sainsbury v. Matthews, 4 M. & W. 343; Warwick v. Bruce, 2 M. & S. 20ft; Parker v. Staniland, 11 East, 363. A crop of corn is held to be a contract for chattels personal in Jones v. Flint, 10 Ad. & El. 753, and New-comb v. Ramer, 2 Johns. 421, note. Growing wheat has been held to be a chattel not within the statute in Stewart v. Doughty, 9 Johns. 112; Whipple v. Foot, 2 Johns. 422; Green v. Armstrong, 1 Denio, 554. In Waddington v. Bristow, 2 Bos. & Pul. 452, growing hops are said to be an interest in land; but in Rodwell v. Phillips, 9 M. & W. 503, Baron

Under the latter class are growing trees, fruit, and grass, not severed from the land.1 If they be severed from the land, they become of course mere chattels.2 § 1441. Where a contract originally within the clause of judge in perplexity, and the cases in obscurity. Another criterion must, therefore, be had recourse to; and fortunately the later cases have rested the matter on a more rational and solid foundation. At common law, growing crops were uniformly held to be goods; and they were subject to all the legal consequences of being goods, as seizure in execution, etc. The Statute of Frauds takes things as it finds them, and provides for lands and goods, according as they were so esteemed before its enactment. In this way the question may be satisfactorily decided. If, before the statute, a growing crop had been held to be an interest in lands, it would come within the second [fourth] section of the act; but if it were only goods and chattels, then it came within the thirteenth [seventeenth] section. On this the only rational ground the cases of Evans v. Roberts, 5 B. & C. 829; Smith v. Surman, 9 B. & C. 561, and Scorell v. Boxall, 1 Y. & J. 396, have all been decided. And as we think that growing crops have all the consequences of chattels, and are like them liable to be taken in execution, we must rule the points saved for the plaintiff." See, also, Earl of Falmouth v. Thomas, 1 C. & M. 89.

Parke says, "that case would now probably be decided differently." See, also, Frank v. Harrington, 36 Barb. 415; and Waddington v. Bristow may be considered as overruled on this point.

1 A contract for growing trees is said to be for an interest in land in Green v. Armstrong, 1 Denio, 554; Warren v. Leland, 2 Barb. 613; Bank of Lansingburgh v. Crary, 1 Barb. 542; Putney v. Day, 6 N. H. 431; Olmstead v. Xiles, 7 Ib. 522; Teal v. Auty, 2 B. & B. 99; Pattison's Appeal, 61 Penn. St. 294 (1869); Yeakle v. Jacob, 33 Id. 376; Smith v. N. Y. Central Railroad Co., 4 Keyes, 180. The contrary rule as to growing trees has been held in Massachusetts in Whitmarsh v. Walker, 1 Met. 313, and Nettleton v. Sikes, 8 Met. 34. See Kingsley v. Holbrook, 45 N. H. 313. In the case of Smith v. Surman, 9 Barn. & C. 561, a distinction is taken between the sale of growing trees which the owner is to cut down before delivery, and those which the buyer is to have a right to enter and cut down, the latter class of contracts being within the statute. In Mayfield v. Wadsley, 3 B. & C. 357; Crosby v. Wadsworth, 6 East, 602, a contract for growing underwood is held not to convey an interest in land. But in Scorell v. Boxall, 1 Y. & J. 398, the contrary is held. A growing crop of grass is held to be an interest in land in Carrington v. Roots, 2 M. & W. 218, and Bank of Lansingburgh v. Crary, 1 Barb. 542; Crosby v. Wads-worth, 6 East, 602. If quite ripe, it is only a chattel, is held in Jones v. Flint, 10 Ad. & El. 753. Growing fruit is held to be within the statute in Rodwell v. Phillips, 9 M. & W. 503. In this conflict of cases it is difficult to state a rule other than that in the text. It is hopeless to attempt to reconcile them. In a late case in Ireland, Dunne v. Ferguson, Hayes, 540, where the question was in respect to a crop of turnips sown a short time previously, Joy, C. B., thus laid down the rule: "The general question for our decision is whether in this case there has been a contract for an interest concerning lands within the second [fourth] section of the Statute of Frauds, or whether it merely concerned goods and chattels; and that question resolved itself into another, whether or not a growing crop is goods and chattels. The decisions have been very contradictory, - a result which is always to be expected when the judges give themselves up to fine distinctions. In one case it has been held that a contract for potatoes did not require a note in writing, because the potatoes were ripe; and in another case the distinction turned upon the hand that was to dig them, so that if dug by A. B., they were potatoes; and if by C. D., they were an interest in lands. Such a course always involves the the statute, so that it could not be enforced as an executory contract, has been executed, and payment of the consideration is claimed, it may be recovered, after an admission of liability, not as upon the original contract, but on the ground of an implied promise, and so it should be stated in the declaration.1