GROWING TIMBEPw 55 



lands which has not been excepted by the Stamp Act, and that it is not 

 a sale of goods and merchandise." 



Smith V. Sunnan, which Alder son B. alluded to in the course of the 

 argument of Washhourne v. Burrows, as " in fact a contract to sell 

 timber as a chattel," was an action to recover £17 3s. &d. for 229 feet 

 of ash timber at l.s. Qil. per foot. The plaintiflF, who was the" proprietor 

 of a coppice, had given orders to fell some ash trees. When two of the 

 trees had been already felled, the defendant came to the coppice, and 

 the plaintiflF pointed out to him the remainder, which were numbered 

 from 1 to 14. The defendant said to a bystander he had made a good 

 bargain, and told one of the cutters to tell the other men to cross-cut 

 them fair. When they were cut and measured, the defendant met the 

 measurer, and on hearing that they were measured, offered to sell him 

 the butts (which he alleged he had bought of the plaintiff), and then 

 said, when this was not acceded to, that he would go to the plaintiff's 

 and convert the tops into building-stuflf. He afterwards said that he 

 had bought ten trees only, and that the reason he did not take them was 

 that they were unsound. The timber not having been taken away, tlie 

 plaintiff's attorney wrote him to say that the timber he objected to as 

 faulty and unsound, was " very kind and superior, and a superior 

 marketable article," and that he could have no objection to the mode 

 of cross-cutting, as it was done agreeably to his own direction. The 

 defendant wrote in his answer that he bought the timber from Mr. Smith 

 "/tf he sound and good, which I have some doubts whether it is so or not ; 

 but he promised to make it so, and noiv denies it. When I saw him, he 

 told me I should not have any without all ; so we agreed on these terms, 

 and I expected him to sell it to somebody else." The Court of Queen's 

 Bench held that the contract was not one for the sale of an interest in 

 land within the meaning of the 4th section, but one for the sale of 

 goods, within the 17th. Litlledalc J., said : " I think that the contract 

 in this case was not a contract for the sale of lands, tenements, or here- 

 ditaments, or any interest in or concerning the same within the meaning 

 of the 4th section. Those words in that section relate to contracts 

 (for the sale of the fee-simple, or some interest less than the fee), which 

 give the vendee a right to the use of the land for a specific period. If 

 in this case the contract had been for the sale of the trees, with a 

 specific liberty to the vendee to enter the land to cut them, I think it 

 Avould not have given him an interest in the land, Avithin the meaning 

 of the statute. The object of a party who sells timber is not to give 

 the vendee any interest in his land, but to pass to him an interest in 

 the trees when they become goods and chattels. Here the vendee was 

 to cut the trees himself. His intention clearly was not to give the 



