GROWING POTATOES. 51 



not see how it can be distinguished from the case of hops decided in 

 this court." 



In Emmersoii v. Heelis the defendant, by his agent, who was his 

 farming servant, attended at the sale, and being the highest bidder was 

 declared the purchaser of twenty-seven different lots, of fourteen stitches 

 or furrows each, and his name was written in the sale-bill by the 

 auctioneer opposite each particular lot which he had purchased. On 

 this case also Bayleij J. thus commented in Evans v. RoVerts : " It was 

 not necessary to decide the point upon the Statute of Frauds, because 

 there was another point in favour of the plaintiflF, which rendered a 

 decision upon the first question perfectly unnecessary, for the contract 

 being signed by the auctioneer as the agent of the buyer was equally 

 binding, whether it was for a sale of goods and chattels or of an interest 

 in land." Parlce B. also said in allusion to Waddington v. Bristoice, in 

 the course of the argument in Rodwell v. Phillips, " hops are fnidus 

 industriales. That case would now probably be decided differently. 

 The distinction is pointed out in Sainshurij v. MaWieivs." 



The facts in Evans v. Rolerts were as follows : The defendant, on 

 September 25, 1825, agreed by parol with the plaintiff to purchase a 

 cover of potatoes then growing on land of the plaintiff at the price of £5, 

 and the defendant paid \s. earnest. Some dispute arose as to who 

 should raise the potatoes, and the plaintiff agreed to dig them np, 

 the defendant agreeing to come and take them away before the next 

 Christmas ; but in consequence of the price falling from 12s. to 8s. 

 per sack he refused to stand by his bargain. Garroiu B. ruled, in an 

 action of indehitatus assumpsit for a cover of potatoes bargained and 

 sold, that inasmuch as the vendor was to take up the potatoes, it must 

 be considered not as an interest in land within the 4th, but as merely 

 a contract for the sale and delivery of goods and chattels within the 

 meaning of the 17th section of the Statute of Frauds, and the plaintiff 

 had a verdict for £4 19s. The Court of King's Bench refused to 

 enter a nonsuit, and held that this was clearly not an interest in 

 land. 



Bagleg J. said, " The defendant has no right to any possession of the 

 land ; the only thing for which he has bargained is that he shall have 

 the potatoes delivered to him when their growth shall be complete." 

 " In the case of growing potatoes, which are the artificial produce of 

 the land, arising from a particular course of husbandry, they come 

 within the description of emblements, and go, not to the heir, but to 

 the executor, and they may be seized in execution under a writ of fieri 

 facias. That writ goes against the goods and chattels of the party, and 

 therefore whatever the executor would be entitled to take as goods and 



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