58 GROWING GEASS. 



an agreement to render what should have become a chattel, ?'. c, part 

 of a severed crop, in that shape, iu lieu of rent ; and by a subsequent 

 agreement it was changed to money instead of remaining a specific 

 render of produce. So that one wonders rather how it should ever 

 have been thought an interest in land, than that it should have 

 been decided not to be so," 



In Caii-iiKjton \. Roots the plaintiff had verbally agreed with the de- 

 fendant, in ]May, to buy of him a crop of grass, growing in a four-acre 

 field, at £5 lO-s, per acre, to be cleared by the end of September, and 

 half the price to be paid down before the plaintiff cut any of the grass. 

 This condition not having been complied with, the defendant turned the 

 plaintiffs horse and cart out of the field, and prevented him from cutting 

 or carrying away the grass. It was held by the Court of Exchequer 

 that trespass did not lie, for that this was in substance an action 

 charging the defendant on the contract within section 4 of the Statute 

 of Frauds, and that a contract for the sale of an interest in land without 

 a note in writing, may operate as a licence, so as to excuse the entry 

 of the purchaser on the land, but cannot be made available in any 

 Avay (IS a contrcict. 



Parlce B. said, " The question is, what the plaintiff means when he 

 avers in his replication, that while the close or crop of grass was the 

 property of the defendant, he agreed to sell and sold to the plaintiff, 

 and the plaintiff agreed to buy and bought of him the crop of grass at 

 a certain price per acre, with lil)erty to the plaintiff to cut and take 

 away the grass, and to enter upon the close with his horse and cart for 

 that purpose, by virtue of which he became possessed of the crop of 

 gi'ass. Docs he mean an agreement in fact, operating as a licence only ? 

 or a binding contract for the sale of the crop, and for him, the plaintiff, 

 to have a right of entry on the land to gather it ? I think the latter is 

 the true construction, and that it means a contract which one party 

 could enforce against the other as a matter of right. If this be so, then 

 supposing the agreement to be for the sale of chattels, it was not proved 

 by the evidence : if it was an agreement for the sale of an interest in 

 land, it was not binding, by virtue of the 4th section of the Statute of 

 Frauds. I think the right interpretation of that section is, that an 

 agreement which cannot be enforced on either side, is as a contract void 

 altogether : no doubt it may have, as an agreement in fact, some opera- 

 tion in communicating a licence, but such licence would be counter- 

 mandablc ; and tliat appears to be the whole effect of the decision in 

 Crosby v. Waclsivorth. There, no doubt, tlie j^laintiff might have pleaded 

 a licence; but the defendant Avould have rcjjlied that it was counter- 

 manded, and the plaintiff could not have succeeded on that issue. I 



