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nuring, and sowing the lands ; and also
for the encouragement of husbandry, which,
being a public benefit tending to the in-
crease and plenty of provisions, ought to
have the utmost security and privilege
that the law can give it." And again :
"The doctrine of emblements extends not
only to corn sown, but to roots planted,
or other annual artificial profit ; but it is
otherwise of fruit trees, grass, and the like,
which are not planted annually at the ex-
pense and labor of the tenant, but are
either a pennanent, or natural, profit of
the earth. For when a man ]>lants a tree
he cannot be presumed to plant it in con-
templation of any present profit, but merely
with a prospect of its being useful to him-
self in future, and to future successions of
tenants." Blk. Com. 122, 123.

1 Jovce V. Havman, K. B. Ire. T. T.
1831; 4 Ir. Law Rev. 273.

2 10 A. & E. 753.



PART I.] WHAT ARE WITHIN THE STATUTE OF FRAUDS.



233



eiiteentli section of the statute, and not within the fourth ; and
the contract with reference to the lay grass, was, in effect, a con-
tract for the agistment by the plaintiff of the defendant's cattle ;
that the possession of the land was, therefore, not in the defend-
ant, but in the plaintiff ; and, hence, as to the eating of the lay
grass, it did not come within the fourth section of the statute.^



1 Lord Denman, in delivering the judg-
ment of the court, said : " Nothing, it will
be observed, was expressly agreed on as to
the possession of the land. It will be our
duty, therefore, in construing the contract
as to this particular, to have regard to
its subject-matter, and to imply so much,
and only so much, as is necessary to give
full effect to its expressed terms, nothing
appearing in the subsequent acts of the
parties to influence our construction either
way. Three things were the subject-mat-
ter of the contract, — crops of corn, pota-
toes, and the after eatage of stubble and
lay grass. Of these all but the lay grass
are frudus industr tales ; as such they are
seizable by the sherifi" 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 con-
tract for the sale of any interest in land."
(See Evans v. Roberts, 5 B. & C. 829; ante,
229.) " The present case differs from Evans
V. Roberts in this, that there the potatoes
were to be dug up by the seller ; the judg-
ments, however, do not proceed on this
distinction, although it was not unnoticed.
Holroyd, J., expressly says that, even if
they were to be dug up by the buyer, ' I
think he would not have had an interest
in the land.' And 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 effec-
tuate the intentions of the parties, it is
necessary to give the vendee an interest in
the land. Tried by these tests, we think
that, if the lay grass be excluded, the par-
ties must be taken to have been dealing
about goods and chattels, and that an
easement of the right to enter the land
lor the purpose of harvesting and carrying
them away is all that was intended to be
granted to the purchaser." On the other
point decided the court said : "Upon this
priiiciplc we are to examine whether the
introduction of the lay grass into the
contract ought to vary the decision. This
is the natural produce of the land, not



distinguishable from the land itself, in
legal contemplation, until actual sever-
ance. It passes accordingly to the heir,
not to the executor ; and in Crosby v.
Wadsworth, 6 East, 602, it was decided
that the purchaser of a crop of mowing
grass, unripe, and which he was to cut,
took an exclusive interest in the land before
the severance. If, therefore, this be a case
in which the parties intended a sale and
purchase of the grass, to be mowed or fed
by the buyer, both on principle and au-
thority the objection of the defendant must
prevail. Looking, however, at the facts,
we think this was not such a bargain. It
may well be doubted, upon all the evi-
dence, whether anything that could be
called a crop of grass was in the ground,
or in the contemplation of the parties at
all, for it does not appear that any clover
or other grass had been sown with the
corn ; and the word ' grass ' seems merely to
have been adopted by the witness in cross-
examination from the defendant's counsel.
But, not relying upon this, we find that
the plaintifT was to pay the tithe, and
that, after the harvesting, he reserved to
himself the right of turning his own cat-
tle into the fields ; and 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 the harvesting as before.
It was not necessary to the vendee before
on account of the gi'ass, because that, what-
ever it was, could not then be got at ; nor
did it need preservation ; and afterwards
it is more reasonable to consider the owner
as agisting the vendee's cattle than as hav-
ing his own cattle agisted by him whose
interest at the best was of so very limited
a nature. Upon these grounds, not im-
peaching the principle of Crosby v. Wads-
worth, 6 East, 602, 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." Wood v. Man-
ley, 11 A. & E. 34, although not a case
within the statute of frauds, shows the
right of a vendee of goods, wares, and
merchandise, which are within the 17th
section of the statute, to enter on the
lauds under a license for the removal of
the goods. There goods which were upon
plaintifi"'s land were sold to defendant by



234 COMMENTARIES ON SALES. [BOOK IV.

Similar questions have been decided in the Court of Exchequer.
In Earl of Falmouth v. Thomas,^ the question came up on demur-
rers to the defendant's pleas. The contract there declared upon
was that the plaintiff, who was possessed of a farm, upon which
were certain growing crops, and on which the plaintiff had done
certain work and labor, and expended certain materials in mak-
ing the lands ready for tillage, of which work, labor, and mate-
rials he had not derived the benefit, would let the farm to the
defendant for a term of years ; and in consideration thereof the
defendant undertook to take the crops and pay for them, and for
the work, labor, and materials, according to a valuation. The
plaintiff let the farm accordingly, and left the crops upon it. The
defendant took possession of the farm, and had the benefit of the
work, labor, and materials. The valuation was made, but the de-
fendant did not pay. The court held that the contract was within
the fourth section of the statute ; that the defendant could not have
the benefit of the work, labor, and materials unless he had the
land ; and that the right to the crops, and the benefit of the work,
labor, and materials, were both of them an interest in the land.
But that, if either of the two were properly an interest in land, this
would form a sufficient objection to an action on the contract ;
for the crops and work and labor, united, were the consideration
for the contract, and if either part of the consideration failed, the
plaintiff would not be entitled to recover.^

Carrington v. Roots ^ was an action of trespass for seizing
and impounding the plaintiff's horse and cart. The defendant
pleaded that he was possessed of a certain close and crop of grass
thereon, and that he distrained the horse and cart for being un-
lawfully on his close, and doing damage. The plaintiff, in his
replication, alleged a contract (which proved to be verbal) under
which he had bought the crop of the grass from the plaintiff with
liberty to enter and cut the grass when ready to be cut, and that
he was on the close with his horse and cart for the purpose of
cutting and removing the grass. The court held that if this
were a contract under the seventeenth section of the act, it was

the plaintiffs landlord under a distress, entry locked the gates and forbidden de-

By the conditions of sale, to which plain- fendant to enter, and defendant had broken

tiff was a party, the buyer was to be al- down the gates, and entered to take the

lowed to enter and take the goods. It was goods. And see Winter v. Brock well.



held that, after the sale, plaintiff could East, 308; Tayler v. Waters, 7 Taunt. 374;

not countermand the license. And, de- Liggins v. Inge, 7 Bing. 682; Bridges v.

fendant having entered to take, and plain- Blanchard, 1 A. & E. 536, further, as to

tiff having brought trespass, and defend- leave and license,
ant having pleaded leave and license and ^ 1 Cr. & M. 88.

a peaceable entry to take, to which plain- 2 gee Thomas i-. Williams, 10 B. & C.

tiff replied de injuria, that defendant was 664; Chater v. Beckett, 7 T. R. 20; Neale

entitled to the verdict, though it appeared v. Viney, 1 Camp. 471.
that plaintiff had between the sale and the ^ 2 M. & W. 248.



PART I.] WHAT ARE WITHIN THE STATUTE OP FRAUDS. 235

void, and if under the fourth section, being void under it, no ac-
tion could be sustained vvliich depended, as in this case, on an as-
sumption of the validity of the contract. If the plaintiff had been
sued by the defendant in trespass, he might have pleaded a license.
The agreement might have been available in answer to a trespass,
by setting up a license ; not setting up the contract itself as a
contract, but only showing matter of excuse for the trespass. In
this case license was not alleged, but the contract itself was
relied on.

In Sainsbury v. Matthew^s,^ the defendant in the month of
June agreed to sell to the plaintiff the potatoes then growing
on a certain quantity of land of the defendant, at 2s. per sack,
the plaintiff to have them at digging-u^ time (October), and
to find diggers. It was held that this was not a contract for
the sale of an interest in land, within the fourth section of the
statute. 2

In Rodwell v. Phillips,^ where the question came up under the
Stamp Act, it was held that an agreement for the sale of growing
fruit from pear-trees is not a contract for the sale of goods, wares,
and merchandise, but is an agreement for the sale of an interest
in land, and if of the value of <£20 requires a stamp. The ground
upon which this case was decided was that such fruit is not fructus
industriales ; passes to the heir, and not to the executor ; cannot
be taken by a tenant for life, or levied in execution under a writ
oi fi.fa. by the sheriff ; therefore it is distinct from all those cases
where the interest would pass, not to the heir-at-law, but to some
other person ; the difference appearing to be between annual
productions raised by the labor of man, and the annual produc-
tions of nature, not referable to the industry of man, except at
the period when they were first planted.* There is another point
in this case which escaped notice. The purchase was on the 14th
of July, of the pears on the" trees, then growing, for the one spe-
cific sum of £30, on which a deposit of £1 was then paid. Hence,
if the contract had been binding, the property in the fruit on the
trees would then have passed to the vendee ; and any loss prior

1 4 M. & W. 343. land. If a tempest had destroyed the crop

2 Lord Abinger said: " I think this was in the meantime, and there had been none
not a contract giving an interest in the to deliver, tlie loss would clearly have
land. It is only a contract to sell pota- fallen upon the defendant. The case is
toes at so much a sack on a future day, to stronger than that of Evans t;. Roberts,
be taken up at the expense of the vendee. 5 B. & C. 829, because here there is only
He must give notice to the defendant for a stipulation to pay so much per sack for
that purpose, and cannot come upon the the potatoes when delivered. It is only a
land when he pleases." And Parke, B. : contract for goods to be sold and deliv-
"This is a contract for the sale of goods ered."

and chattels at a future day, the produce ^ 9 M. & W. 501.

of certain land, and to be taken away at a * Per Lord Abinger, ibid, at p. 503.

certain time. It gives no right to the



236



COMMENTARIES ON SALES.



[book IV.



to the gathering of the fruit would have been his, and not that of
the vendor. This is quite different from the case where the con-
tract is for future delivery at a price to be ascertained at the time
of the delivery. Here, the loss prior to the delivery would be in
the vendor, and would be but a contract for the sale of goods for
future delivery, giving the vendee no interest in the land.^



1 In this case, Parke, B., at p. 503,
referring to Waddington v. Bristow, 2
Bos. & P. 452, said: "Hops a.re fructus
induslriales. That case would now prob-
ably be decided differently." We have
already pointed out that Waddington v.
Bristow was not decided under the statute
of frauds at all, but under the Stamp Act.
The case does not decide that the contract
would not have been within the 17th sec-
tion of the statute of frauds, nor does it
decide that it would have been within the
4th section of that statute. The exemp-
tion under the Stamp Act only related to
agreements for or relating to the sale of
any goods, wares, or mercliandises. What,
in effect, the court held was, not that this
was a contract for the sale of an interest
in lands, but that, on the contrary, it was
"«H ayreenuntfor the sale of goods, wares,
and merchandise, and something more."
But that "something more" was not at
all necessarily a contract for an interest in
lands. The argument of Sergeant Shep-
herd is not addressed to the contention of
there having been any such interest ; but
rather to this, that though it was a sale
of goods "before the goods were in esse," it
was not, therefore, any the less a sale of
the goods than it would have been if a
wine merchant undertook to deliver a cer-
tain quantity of wine in the ensuing year
of the vintage of the current year. And
Eooke, J., puts it thus: "The object of
the legislature in introducing the excep-
tion of the 4th section [of the Stamp Act]
was to prevent the duty which had been
imposed by the 1st section upon all agree-
ments generally from impeding ordinary
commercial transactions. But tlie subject
of the agreement is a speculative bargain
relative to things not in esse at the time
when the contract was made." The case
would seem to hold that though the sale
was an agreement for the sale of goods,
wares, and merchandise which would come
within the purview of the 17th section of
the statute of frauds, yet that there was
something more in the contract, of a
"speculative" character, which prevented
it from being confined to the strict limits
of the 4th section of the Stamp Act. Jones
u. Flint, 10 A. & E. 753, is a case which
might be similarly treated. There the
sale was of a crop of corn and potatoes,
which was held to come within the 17th



section, and not the 4th section, of the
statute. But there was a further por-
tion of the contract which ^s held to be
for an agistment of cattle, and, therefore,
neither within the 4th nor the 17th sec-
tion of the statute. Hence, while in this
case the sale of the corn and potatoes
would be a contract within the 17th sec-
tion of the statute of frauds, as a sale of
goods, wares, and merchandise, it would not
as a whole be a contract within the exemp-
tion of the Stamp Act, because it was not
only a contract for the sale of goods, wares,
and merchandise, as the contract was held
to be in Waddington v. Bristow, 2 Bos. & P.
452, but, as was also held in that case,
"something more." So that, in one case
as in the other, the contract might be
held to be within the 17th section of the
statute of frauds, and not within the 4th
section of the Stamp Act. As will thus
be seen, the difference between the effect
of the 17th section of the statute of frauds
and the 4th section of the Stamp Act is
very material. Under the former, if the
contract do not come within the 4th sec-
tion of the statute of frauds, and is good
as a contract for the sale of goods, wares,
and merchandise under the 17th section,
it is good no matter what else it may con-
tain. But under the 4th section of the
Stamp Act, the exemption from stamp
duty only extends to contracts for the
sale of goods, wares, and merchandise.
Hence, if it is a contract for anything
else, or for that and anything else, —
whether it is matter within the 4th sec-
tion of the statute of fraud.« or not, — it
is not a contract which comes within the
exemption of the Stamp Act. Therefore
it follows that a contract for the sale of
goods, wares, and merchandise may be
perfectly valid under the 17th section of
the statute of frauds, and not be within
the exemption of the 4th section of the
Stamp Act. Hence Waddington v. Bris-
tow, 2 Bos. & P. 452, may have been —
though we think it was not even that
— a well -decided case under the Stamp
Act, and yet have no bearing whatever
upon the question of the proper construc-
tion of the statute of frauds.

This reasoning is fully sustained by the
decision of the Court of Exchequer in
Horsfall v. Hey, 2 Ex. 778, which was
another case under the Stamp Act (55



PART I.] WHAT ARE WITHIN THE STATUTE OP FRAUDS. 237

The 2 & 3 Vic. c. 37, which in some respects repeals the usury
laws, provides " that nothing therein contained shall extend to the
loan or forbearance of any money upon security of any land, tene-
ments, or hereditaments, or any estate or interest therein." A
question arose in Washbourn v. Burrows,^ the decision of which is
equally applicable to the construction of the fourth and seven-
teenth sections of the Statute of Frauds. The action was in cove-
nant for payment of .£250 and interest on demand. The defendant
pleaded that the covenant was entered into in pursuance of an usu-
rious contract, by which the defendant agreed to pay more than £5
per cent, by way of interest, and that the payment was secured by
a deed, whereby the defendant bargained and sold to the plaintiff,
by way of security, certain personal chattels, and also " the crops
of grass then growing on certain lands.'''' The plaintiff replied
that the contract was entered into after the passing of 2 & 3 Vic.
c. 37. It was held, on general demurrer, that the plea was good,
and the replication bad ; for though the term " crops of grow-
ing grass " might mean crops to be severed by the owner of the
soil, and delivered as a personal chattel, yet the plea afforded
a good prima facie answer to the action, it being sufficient for
the defendant to show that the contract was injurious within the
12 Anne, sec. 2, c. 16 (that statute being still in force as far as it
was not affected by the statute of 2 & 3 Vic.) ; and if the plain-
tiff relied upon the 2 & 3 Vic. c. 37 as excepting the case from
the operation of the act of 12 Anne, he should have replied that
the contract was entered into after the passing of the statute of
Victoria, and that the security did not relate to land.^

Geo. 3, c. 184). This was an action of 12 Moore, 213, also showing that fixtures

trover for goods, chattels, and effects, are not goods within the exemption in the

There was a written memorandum of sale Stamp Act.

by the defendant to the plaintiff of "all i 1 Ex. 107-

the goods, stock-in-trade, and fixtures " ^ xhis case sustains the principle that

in A. for £90. It was held that this in- a contract for the sale of growing grass,

strument, being a conveyance relating to as well as growing timber, growing fruit,

the sale, would have been within the ex- or any other growing crop, though not

emption of the act, and required no stamp, coming within the description of fructus

if it had not also embraced the transfer of industrial es, may or may not be, accord-

fixtures. And yet, as it is now well es- iug to the particular facts which show

tablished (see infra) that the sale of un- that it is or is not a contract with refer-

severed fixtures is neither within the 4th ence to an interest in or concerning lands,

nor the 17th section of the statute of within the 4th or 17th section of the stat-

frauds, a written contract for the sale of ute of frauds. Gray, of counsel for the

goods, wares, and merchandise, meeting plaintiff, contended that it was not shown

the requirements of the 17th section, by the plea that the loan was secured on

would be perfectly good though it con- an interest in land ; that the term "grow-

tained a provision also for the sale of fix- ing crops of grass " does not necessarily

tures, as it would be if it contained a imply an interest in land, and that it

provision for the agistment of cattle ; for might mean crops of grass which are not

work and labor ; for the sale of res incor- the natural produce of the land, and

porales ; or for any other contract not re- which would not pa.ss to the heir, but to

quired to be evidenced in writing under the executor ; or it might mean crops of

the statute. And see Wick v. Hodgson, grass then growing, but to be afterwards



238



COMMENTARIES ON SALES.



[book IV.



The law is admirably summarized by Brett, J., in Marshall v.
Green,^ where it was held that a sale of growing timber to be
taken away as soon as possible by the purchaser, is not a con-
tract for the sale of land, or any interest therein, within the
fourth section of the Statute of Frauds. The law as summa-
rized by Brett, J., is as follows : " When the subject-matter of
the contract is something affixed to laud, the question is whether
the contract is intended to be for the purchase of the thing affixed
only, or of an interest in the land as well as the thing affixed.
In the former case the contract is not within the fourth section.



cut and delivered as goods and chattels.
Alderson, B., in effect assenting to this,
added : " The case mentioned by Lord
Abinger, in Rod well v. Phillips, 9 M. &
W. 505, in which a contract to sell timber
growing was held not to convey any inter-
est in the land. Smith v. Surman, 9 B. &
C. 561, is explained by what is said by
Bayley, J., in his judgment in Evans v.
Roberts, 5 B. «S: C. 829 ; it was in fact a
contract to sell timber as a chattel." The
ground of the decision is very jdainly put
by Rolfe, B., in delivering the judgment
of the court: "The question is, whether
the contract stated in the plea is void
under the statute of Anne, notwithstand-
ing the statute of Victoria. It certainly
is void, if the plea sufficiently shows that
the security consisted in part of an inter-
est in land, for the statute of Victoria has
no application to such securities. Now,
part of the property assigned by way of
security to the lender of the money, con-
sisted of certain crops of grass, described
in the deed as growing on a certain estate
called the Sheeping-house estate, and it
was argued, on the authority of Crosby v.
Wads worth, 6 East, 602, that this is an
interest in land. When a sale of growing
crops does, and when it does not, confer
an interest in land, is often a question of
much nicety ; but certainly, when the
owner of the soil sells what is growing on
the land, whether natural produce, as tim-
ber, grass, or apples, or fructus industri-
ales, as corn, pulse, or the like, on the
terms that he is to cut or sever them from
the land, and then deliver them to the
purchaser, the purchaser acquires no in-
terest in the soil, which in such case is
only in the nature of a warehouse for what
is to come merely as a personal chattel.
The doubt here is, what is the true mean-
ing of the plea as to these crops. Mr.
Gray argued that the plea would be satis-
fied by proving that the plaintiff, not
being the owner of the Sheeping-liouse
estate, was yet entitled to the grass in
question, as having purchased it on the
terms that it was to be severed by the



owner of the soil, and then delivered to
him as a mere personal chattel ; and we
are inclined to attach great weight to this
argument, and think the case will be in
the same position as if the plea had con-
tained no reference to the subject-matter



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