GROWING CROrS. 57 



such a possession of the close though, for a limited purpose, that he 

 might maintain trespass qu. d. freg. against any person entering the 

 close, and taking the grass even with the assent of the owner ; but that 

 this being a contract for the sale of an interest in and concerning land, 

 it was voidable by the 4tli section of the statute if not reduced to 

 writings and might be discharged by parol notice from the owner before 

 any part execution of it. Baylcy J. observed upon this case, in Evans 

 V. Roberts, " The contract was clearly for the sale of an interest in land. 

 There the grass was growing, and the vendee was to mow it, and con- 

 vert it into hay. He had the whole of the vesture of the land, and had 

 the exclusive possession of the soil from the date of the contract, until 

 the period when the grass should be cut and made into hay. Grass 

 growing in a natural state stands on a very different footing from pro- 

 duce which is obtained from the land by artificial means, or by the 

 application of a particular course of husbandry. Grass is the natural 

 growth and produce of the land itself, permanently remaining, not 

 exhausted when once cut, but constantly growing and renewing. It 

 cannot be seized in execution under a fieri facias, as goods and 

 chattels, and on the death of the owner of the laud it goes to the heir, 

 and not to his executor or personal representative." 



Poidter V. KiUimjlmlc, which was alluded to at the close of the plain- 

 tifiTs argument in the above case, had no material application in favour 

 of the plaintiff. There the plaintiff wished to cultivate some pieces of 

 fen land, and agreed verbally to let them to the defendant without rent, 

 the latter to plough, dress, and sow them for two successive crops, and 

 in lieu of rent to allow the plaintiff a moiety of the crops. Yvhile the 

 crops of the second year were in the ground an appraisement of them 

 was taken fur both parties, and the value ascertained ; and as the 

 defendant refused to pay a moiety of the value, this action was brought. 

 It was held by the Court of Common Pleas that the plaintiff might 

 well declare in indeMatus assumimt for a moiety of the value of the 

 crop sold, without stating the special agreement, as that was executed 

 by the appraisement, and the action rose out of something collateral to 

 it. Bidler J. said, " If no appraisement had taken place, the objection 

 to the action in this form might have prevailed. But that circum- 

 stance is decisive. With res[)ect to the point made at the trial, on the 

 Statute of Frauds, that agreement does not relate to any interest in 

 land, which remains altogether unaltered by the arrangement concern- 

 ing the crops." Lord EUenhorovgh remarked on this point, in Croslnj 

 V. WadsworUi, " The contract in Poidter v. KiJJinglycclc, if it had origi- 

 nally concerned an interest in land, after the agreed substitution of 

 pecuniary value for specific produce no longer did so ; it was originally 



