56 GROWING UNDERWOOD. 



vendor any property in the trees, until they were cut, and ceased to be 

 part of the freehold."' And per curiam there was no part acceptance or 

 actnal receipt of the broods to satisfy the iTth section, inasmuch as there 

 was nothing to show that the purchaser had divested himself of his right 

 to object to the quality of the goods, or tliat the seller had lost his lien 

 for the price. 



Scorrdl v. Boxall, where it was ruled in the Court of Exchequer that 

 the sale of groiving wider wood to be cut by the purchaser confers an 

 interest in land, was relied on for the defendant in Smith v. Siirman, 

 but was not commented upon in any of the judgments, which were 

 principally directed to show that the contract was one for the sale of 

 goods, wares, and merchandize, within the 17th section of the statute. 

 Hidloclc B., in ScorrcU v. Boxall, refused to recognize as law the 

 opinion of Treljy C.J. and Poicell J. (1 Ld. Raym. 182), that the sale 

 of timber growing upon land may be by 7;«ro?, because it is but a bare 

 chattel, and rested his decision on the principle that trees annexed to 

 the freehold are parcel of the inheritance, and pass with it, while corn 

 and other industrial crops go to the executor, and may be seized under 

 a fi.fa., which was the distinction on which Littledale J.'s judgment 

 was based in Evajis v. Rolcrts. His Lordship also relied- on Teal v. 

 Auiy, where the Court of Common Pleas intimated that the sale of 

 growing ])oles or young trees which the defendants had purchased and 

 afterwards cut and carried away, does confer an interest in land. 

 There, however, it was not necessary to inquire whether the original 

 agreement was in writing, as the poles were taken away and the agree- 

 ment executed, and the plaintiff was nonsuited in consequence of the 

 absence of proof as to what was strictly due. 



Crosly V. Wadsivorth is among the first of the cases which were 

 decided, under the statute, on the question of grass crops. The plaintiff 

 agreed by parol with the defendant, on June C, 1804, for the purchase 

 of a standing crop of moiving grass, then growing in a close of the 

 defentant's at Claypole, for 20gs. It was to be mown and made into 

 hay by the plaintiff, but the parties did not absolutely fix upon any 

 time at or which the mowing was to be begun. JSTo earnest was given, 

 and no note or memorandum signed. The defendant, who kept pos- 

 session of the close, told the plaintiff on the 2nd of July that he should 

 not have the grass, and sold it to another person on the same day for 

 2.5g8. Later in the month, the plaintiff tendered to the defendant 

 20gs., which the latter refused, and then, finding the gate unlocked, 

 entered and cut part of the grass. He was discharged, and the whole 

 of the crop was taken away by the new purchaser. It was held by the 

 Court of King's Bench that the plaintiff had, under the circumstances, 



