1 Ante, § 240.

2 Scorell v. Boxall, 1 Young & J. 398. See the remarks of Wilde, J., on this case, in Claflin v. Carpenter, 4 Met. (Mass.) 580.

1 Ante, § 242.

2 Rodwell v. Phillips, 9 Mees. & W. 503, 505. In making this decision, the court thus alluded to Smith v. Surman: " Undoubtedly there is a case in which it appears that a contract to sell timber growing was held not to convey any interest in the land, but that was where the parties contracted to sell the timber at so much per foot, and from the nature of that contract it must be taken to have been the same as if the parties had contracted for the sale of timber already felled." But a glance at the cases which have been examined in the text will show that no weight has been allowed in them to the circumstance that the produce was to be sold by the foot or bushel, or by the acre or row.

Here the action was assumpsit for not permitting the plaintiff to gather the crop. In Dunne v. Ferguson,1 an Irish case, it was trover for a quantity of turnips which had been gathered and carried away by the defendant, he having previously, by a verbal bargain, sold the crop to the plaintiff; the same rule was followed, and the plaintiff was held entitled to recover.1 Lastly, in Jones v. Flint, decided in 1839 in the Queen's Bench, which was an action of debt for the price stipulated to be paid for a crop of corn on the plaintiff's land and the profit of the stubble afterwards, some potatoes growing on the land, and whatever lay grass was in the fields; the defendant to harvest the corn and dig the potatoes; the plaintiff to pay the tithe; and when the crops, etc., were actually taken by the defendant, in conformity with this agreement; it was held that the Statute of Frauds did not apply to the contract. The opinion of the Chief Justice, Lord Denman, while it clearly illustrates and perfectly accords with the principles which we have had occasion to deduce from previous cases, adopts in terms the modern distinction founded upon the nature of the crop. He observes, first, that at the time of the contract the crops were not ripe, though nearly so, and that there was some dispute as to whether the sale was by the acre or not, and that nothing was expressly agreed on as to the possession of the land; again, that there were three things contracted for, - corn, potatoes, and the after-eatage of stubble and lay grass. "Of these," he says, "all but the lay grass are fructus indus-triales: as such, they are seizable by the sheriff under a fieri facias, and go to the executor, not to the heir. If they had been ripe at the date of the contract, it may be considered now as quite settled that the contract would have been held to be a contract merely for the sale of goods and chattels. And although they had still to derive nutriment from the land, yet a contract for the sale of them has been determined, from this their original character, not to be on that account a contract for the sale of any interest in land." He then says: "We agree that the safer grounds of decision are the legal character of the principal subject-matter of sale, and the consideration whether, in order to effectuate the intentions of the parties, it be necessary to give the vendee an interest in the land. Tried by those tests, we think that, if the lay grass be excluded, the parties must be taken to have been dealing about goods and chattels. ... It is very difficult to reconcile all the cases, and still more so all the dicta, on this subject from the case of Waddington v. Bristow to the present time; and we are, therefore, at liberty to abide by a general principle." And he adds, referring to Crosby v. Wadsworth, that if the present was a case in which the parties intended a sale and purchase of the grass to be mown or fed by the buyer, both on principle and authority the contract must be held within the statute. Then he examines the facts, and inasmuch as it was doubtful whether what could be called a crop of grass was in the ground, or in the contemplation of the parties at all, and the plaintiff was to pay the tithe and resume the right, after the harvesting, to turn his own cattle into the field, he says, "We think that, however expressed, the more reasonable construction of the contract is that the possession of the field still remained with the owner after harvesting, as before;" and adds, "Upon these grounds, not impeaching the principle of Crosby v. Wadsworth, but deciding on the additional facts in this case, we think this incident in the contract does not alter its nature; and the objection founded on the statute will not prevail."1

1 Dunne v. Ferguson, 1 Hayes 540.

1 Jones v. Flint, 10 Ad. & E. 753. In Teal v. Auty, 4 Moo 542, it was said that a contract for poles, made when they were growing, was a contract for an interest in land; but there the contract was executed, and the sale being made by one who had previously purchased them and thus severed them in law from the land, they could no longer be regarded in any view as making part of the realty. See Sugden on Vendors and Purchasers, 110, and ante, § 236, as to what works such a severance in law; and Yale v. Seeley, 15 Vt. 221. In Carrington v. Roots, 2 Mees. &

§ 252. It is not to be denied that there thus appears a very strong tendency to stand upon the distinction between the prima vestura and fructus industrials, as conclusive of these questions on sales of crops. Of the four cases which have been referred to under that head, however, Evans v. Roberts was decided on another ground; Rodwell v. Phillips was not upon the Statute of Frauds; and Jones v. Flint was, it appears, perfectly determinable without resorting to that distinction. With the greatest deference, it must be said that throughout these cases there appears to have been an entire misconception of the true doctrine of Crosby v. Wadsworth. That Lord Ellenborough did not intend in that case to say that a sale of growing trees, to be delivered separated from the soil, was void unless in writing, is manifest from the fact that, though he alluded afterwards to that decision several times, he never intimated that it rested upon the circumstance of the nature of the growth, but especially from the fact that an early decision of Chief Justice Treby, which was to the contrary, and upon which much stress was laid in the argument, was not alluded to in his decision.