§ 253. That case is thus given by Lord Raymond. "Treby, C. J., reported to the other justices that it was a question before him in a trial at nisi prius at Guildhall, whether the sale of timber growing upon the land ought to be in writing by the Statute of Frauds, or might be by parol. And he was of opinion, and gave the rule accordingly, that it might be by parol, because it is but a bare chattel. And to this opinion Powell, J., agreed."1

W. 248, which was on a verbal agreement for the sale of grass, at so much an acre, to be taken by the purchaser, the court held that if it was for goods, etc., it was void by the seventeenth section, and if it was for land it was void by the fourth; but no point was made as to the subject-matter being prima vestura.

1 Reported anonymously in 1 Ld. Raym. 182. This case is pronounced by Mr. Baron Hullock in Scorell v Boxall, 1 Young & J. 396, to amount to a mere dictum. It certainly has the appearance of an actual decision at nisi prius, but reported at second hand. It is quoted as an authority

§ 254. But it would seem that even those cases in which cultivated crops have been held capable of being sold without writing have proceeded upon grounds inconsistent with this modern doctrine. The judges have uniformly paid attention to the fact that these crops were to be, when the contract was consummated, separated from the ground and therefore mere chattels.1 Again, it is well settled that, if those crops which are fructus industriales growing on land are purchased with the land and by one entire contract, they are considered as part of the land, and no recovery can be had upon a special valuation of the crops.2

§ 254 a. In the case of Marshall v. Green,3 in the Common Pleas Division of the English High Court of Justice, in by Mr. Justice Holroyd in Mayfield v. Wadsley, 3 Barn. & C. 357. Also by Mr. Roberts in his Treatise on the Statute of Frauds, who bases upon it the precise doctrine to which it is quoted in the text. Also by the Supreme Court of Massachusetts, in Claflin v. Carpenter, 4 Met. 580, where Mr. Justice Wilde speaks of it as the leading case on this point. To these add the high authority of Sir Edward Sugden, who approves it and says it ought not to have been lightly overruled. Law of Vendors and Purchasers, 110.

1 See, in addition to the cases which have been examined in the text, that of Watts v. Friend, 10 Barn. & C. 446, where A. agreed to supply B. with a quantity of turnip-seed, and B. agreed to sell the crop of seed produced therefrom at one shilling per bushel, and Lord Tenterden held it was not a contract for an interest in land, for " the thing agreed to be delivered would, at the time of delivery, be a personal chattel."

2 Earl of Falmouth v. Thomas, 1 Cromp. & M. 89. In Mayfield v. Wadsley, 3 Barn. & C. 365, Littledale, J., said: "If the giving up of the land was any part of the consideration for the defendant's agreeing to take the wheat which was then sown in the land, the wheat must be considered as part of the land itself . . . Where the land is agreed to be sold, and the vendee takes from the vendor the growing crops, the latter are considered part of the land. ... A parol agreement for the sale of crops may be good, also, between the outgoing and the incoming tenant; but then there would be no sale of any interest in the land, for that would come from the landlord." See further, on this subject, Mechelen v. Wallace, 7 Ad. & E. 49; Vaughan v. Hancock, 3 C. B. 766; Foquet v Moor, 7 Exch. 870; Thayer v. Rock, 13 Wend. (N. Y.) 53; Brantom v. Griffits, 1 C. P. D. 349.

3 Marshall v. Green. 1 C. P. D. 35.

1875, the distinction between fructus naturales and fructus industriales, as a test of the application of the Statute of Frauds, has been substantially rejected, and the decision of Treby, C. J., approved and followed. The declaration contained three counts, for trespass by injury to the plaintiff's realty, for trover for carrying away cut trees, and for injury to the plaintiff's reversion. Amphlett, B., before whom the case was tried without a jury, found the following facts. The plaintiff was the owner in fee of a copyhold tenement upon which certain timber trees were growing. This tenement was leased, but the trees, by the custom of the manor, were reserved to the owner of the fee. He entered into negotiation with the defendant for the sale of certain of the trees, and there was finally "a parol sale of twenty-two of the trees, at the price of 26," 1 with the understanding that they were to be taken away as soon as possible. After some of the trees had been cut down, the plaintiff attempted to set aside the sale, and forbade the defendant to proceed under it; but the latter entered, cut down the rest of the trees, and subsequently removed them. For this entry and removal the action was brought. It was assumed, both by the counsel in their argument and the court in their opinions, that the intention of the parties was that the title to the trees should pass presently, i. e., at the time of the sale and before severance; and it will be seen, therefore, that one of the questions squarely presented for decision was, whether standing trees, clearly not fructus industriales, could be sold standing, as goods, wares, and merchandise. The court, in opinions delivered seriatim, held that they could be and were so sold in the present case; that the seventeenth section was complied with by acceptance and receipt of part of them. The plaintiff therefore, it was held, had no property in the trees, and could not recover, the defendant's entry to take his own property being justifiable.

§ 254 b. It remains to notice the effect of this decision upon the questions previously discussed. It will be seen, first, that the judges have entirely disregarded any distinction founded upon the character or nature of the crop; or upon the time when the title passes, whether it is before or after the crop is severed from the soil. Those tests had, it is true, the sanction of previous decisions, but neither of them had proved satisfactory or been uniformly followed. The doctrine which laid down one rule for the sale of fructus naturales, and another for the sale of fructus industriales, is objectionable, because founded narrowly upon considerations of the ownership of the crop, not at all upon consideration of the conditions of the sale. The technical rules which govern the respective claims to the produce of land of its owner and its lessee are of necessity based upon grounds very different from those to be considered when the question is as to the nature of a certain transaction of sale, whether it be of lands or goods. Because as between lessor and lessee certain products of the land "went with it" by the technical rule of emblements, it does not follow by any necessary logical consequence that such products are land at all times and under all circumstances.