5i GROWING POTATOES. 



chattels may be seized by the sheriff. Xoay the potatoes in this case 

 might, in my opiuioii, be seized under a writ of fieri facias, and whether 

 at the time of the contract they were in a growing state, or in a ware- 

 house, it seems to me that they are to be considered as what the law 

 designates goods and cliattels. If that be so, then they are not within 

 the provision of the 4th section of the 29 Car. II. c. 3. In the case of 

 ParJcer v. Staniland, the potatoes were clearly considered as goods and 

 chattels, and not amounting to an interest in land. I agree that that 

 case is distinguishable from the present, because there the potatoes had 

 ceased to grow. The case of War/ricJc v. Bruce is distinguishable from 

 this in the same particular ; but I think the reasoning of Lord Mlen- 

 lorouijlt, in the latter case is extremely important in assisting us in 

 coming to a right conclusion when forming a judgment as to the effect 

 of that clause of the Statute of Frauds which speaks of an interest in 

 lands, tenements, or hereditaments. He there says, ' As to the last 

 objection, if this had been a contract conferring an exclusive right to 

 the land for a time, for the ])urpose of making a profit of the growing 

 surface, it would ]:»e a contract for the sale of an interest in or concern- 

 ing lands, and would then fall unquestionably within the range of 

 Croshij V. Wadsworth. But lierc is a contract for the sale of potatoes 

 at so much per acre ; the potatoes are the subject-matter of the sale, 

 and whether at the time of the sale they were covered with earth in a 

 field or in a box, still it was a sale of a mere chattel. It falls therefore 

 within the case of Parlccr v. Staniland, and that disposes of the point 

 on the Statute of Frauds.' It docs not appear that the other judges in 

 giving judgment made any observations upon that point ; but it is 

 clear that my Lord EllmlorouglC s judgment proceeded on the ground 

 that if the contract gave to the vendee no right to the land for the 

 purpose of enabling liim to make a profit of the growing surface, then it 

 was not to be considered as giving him an interest in the land, but 

 merely in a chattel. Now, trying this case by that test, there is nothing 

 but a contract for the sale and delivery at a future period of that which 

 at a future period Avould be in a perfect state as goods and chattels." 



In ParJcer v. Staniland the plaintiff o,wned a two-acre close, which 

 was crojiped with iiotatocs, and agreed with the defendant on November 

 21st, to sell him the potatoes at 4s. Gf7. per sack. The defendant was 

 to get them up himself, and to get them immediatehj, and he employed 

 men on the 2r)th, 2Gtli, and 27lh of the same month, and got 21, 24, 

 and 33 sacks full. On the 4th of December he got 7 sacks more, and 14 

 aljout Ladij-ddjf, the value of which was covered by the money paid 

 into Court. There remained about tliree I'oods of potatoes, which were 

 not dug up, and which were spoilt 1)y the frost j and in an action 



