agreement for the sale of goods, not existing in that capacity at the time of the contract. And when the agreement is, that the property is to be transferred before the thing is severed, it seems clear enough, that it is not a contract for the sale of goods, it is a contract for a sale but the thing to be sold is not goods. If this be the principle, the true subject of inquiry in each case, is, when do the parties intend that the property is to pass: if the things perish by inevitable accident before the severance, whom do they mean to bear the loss? for in general that is a good test of whatever they intend the property to pass or not; in other words, if the contract be for the sale of the things after they have been severed from the land so as to become the subject of larceny at common law, it is at least, since the 9 Geo. 4, c. 14, a contract for the sale of goods, wares, and merchandizes, within the 17th section of the Statute of Frauds. If the contract be for the sale of the things whilst they are attached to the soil and not the subject of larceny at common law, it is a contract for the sale of things, crops fixtures emblements trees or minerals, which may or may not be an interest in land within the 4th section of the statute, but are not goods, wares, and merchandize within the 17th section. On the whole the cases are very much in conformity with these distinctions, though there is some authority for saying that a sale of emblements or fixtures vesting an interest in them, whilst in that capacity, and before severance, is a sale of goods within the meaning of the 17th section of the Statute of Frauds, and a good deal of authority

that such a sale is not a sale of an interest in land within the 4th section, which, however, may be the case though it is not a sale of goods, wares, and merchandizes within the 17th.

In reviewing the authorities, it is of some importance to remark, how the question arose before the Court, and whether the decision turned upon the legal effect of the contract proved in evidence, or upon the contract stated in the pleadings, for some misapprehensions seem to have arisen from neglecting this.

The first case that is generally cited on the subject was Waddington v. Bristow (a), decided by the Common Pleas in 1801. It was an action against executors. The declaration was that the defendant's testator was possessed of land on which hops were then growing; that the plaintiffs bargained for and agreed to buy, and the testator agreed to sell all the hops then growing, to be delivered in pockets, &c. In proof of this declaration a document was produced, signed by both parties, which was in the following terms:-"Agreed to give the undermentioned gentlemen at the rate of 10l. per cwt. for the quantities of hops as attached to their respective names, to be in pockets, and to be delivered at Whitstable.-Wm. "Francis (the testator), about 23 acres. This paper

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was not stamped, and the question was not whether it came within the Statute of Frauds or not, but whether it came within the exemption in the Stamp Act of agreements relating to the sale of goods wares and

(a) Waddington v. Bristow, 2 B. & P. 452.

merchandizes. Lord Alvanley thought it an agreement for the sale of goods, and something more, viz., an agreement not to sell the produce of the land to any one else before it was severed. Heath, J., and Rooke, J., thought a contract for the sale of non-existing goods was not within the exemption, and that as in this case the hops did not at the time of the sale exist as goods, it required a stamp. Chambre, J., thought a contract for the sale of non-existing goods was within the exemption; he seems to have doubted whether the agreement proved was not within the exemption, but he agreed with Lord Alvanley that the agreement declared upon gave the purchaser an interest in the produce of the vendor's land. It seems probable that Chambre, J., would have held the agreement declared on within the 4th section of the Statute of Frauds, but it seems difficult to treat this case as directly deciding anything.

In Crosby v. Wadsworth (a), in 1805, the action was trespass to the plaintiff's close growing grass and hay. The plaintiff claimed the hay under a parol contract; Lord Ellenborough expressed an opinion that it could not be an agreement within the 17th section, because the goods did not exist as such at the time of the contract; on this opinion he afterwards acted in Groves v. Buck, and as has been already observed, it is now by act of Parliament, not law, whatever it might be then. But the judgment of the Court was that an agreement conferring an exclusive

(a) Crosby v. Wadsworth, 6 East, 602.

right to the growing grass was an agreement for an interest in land. It may be observed that on these pleadings the effect of the agreement was not material; if the agreement did not give an exclusive right to the growing grass, trespass would not lie; if it did, the statute applied: in either case the plaintiff failed.

In Scorell v. Boxall (a), in 1827, on similar pleadings, the Exchequer decided the same point the same way, where the subject matter of the action was growing underwood.

In both those cases the Court had to decide upon the contract as it was stated on the pleadings; but in many cases the question depends as to the legal effect of the contract proved. In general, when there is a contract for the sale of goods in a state not yet fit for delivery, it is considered that the property is not intended to be transferred to the purchaser until the seller has done all that he is bound to do to render the goods fit for delivery, unless a contrary intention clearly appear (post, part 2), and this rule must apply where the contract is for the sale of things not yet rendered into goods, but which are, if the agreement is pursued, to be rendered into goods. The intention of the parties must be presumed to be to transfer the property in the things when in a deliverable state, i. e. when severed from the soil, if that is to be done by the seller, and not before. There is no doubt on the authorities that such a contract, continuing executory till the subject matter of the

(a) Scorell v. Boxall, 1 Y. & J. 396.

sale is converted into goods, is (now at least) a contract concerning the sale of goods, and not a contract for the sale of an interest in land.

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Thus, in Smith v. Surman (a), in 1829, the King's Bench held that a verbal agreement for the sale of timber then growing, and to be cut by the vendor, was a contract for the sale of goods within the meaning of the 17th section. Littledale, J., said, in delivering judgment," The impression on my mind is "that wherever the subject matter at the time of the completion of the contract is goods, wares, and “merchandizes, the 17th section attaches upon it, "although it has become goods, wares, and merchan"dize between the time of making and completing the contract, either by one of the parties having bestowed "his work and labour upon his own materials, or by "his having converted a portion of his freehold into "goods and chattels." In that case the timber was to be cut by the vendors. In Sainsbury v. Matthews (b), in 1838, the Exchequer held that a contract for the sale of potatoes not yet at maturity, at so much per sack, to be dug by the purchaser, was not a contract passing any immediate interest at all, but a contract for the sale of goods at a future day. Parke, B., said, "The contract gives no right to the land, if a tempest "had destroyed the crop in the meantime, and there "had been more to deliver, the loss would clearly "have fallen upon the defendant" (the vendor). "It "is only a contract for goods to be sold and delivered."

(a) Smith v. Surman, 9 B. & C. 570.

(b) Sainsbury v. Matthews, 4 M. & W. 343.