and his heirs, all, &c., being composed of the north part of lot number two, in the tenth concession of the township of Windham, one hundred acres, and therein specially described, together with (in print) all and singular the houses, buildings, woods, waters, easements, privileges, profits, hereditaments, and appurtenances thereto belonging or in anywise appertaining, or therewith used and enjoyed, or known or taken as a part or parcel thereof, or as belonging thereto or to any part thereof, &c., and all the rents, issues, and profits thereof, and all the estate, right, title, interest, property and demand at law and in equity of the plaintiff of, in, to or out of the same. Habendum to the defendant and heirs in fee.

At the time of the execution of this deed the plaintiff had wheat sown in the autumn, in one of the fields thereby conveyed; which wheat the defendant cropped in the following harvest, and forms the subject of this action.

The plaintiff offered parol evidence to shew that half of the wheat was reserved to the plaintiff, when the deed was executed, which was objected to as inadmissible.

A verdict was rendered for the plaintiff, with leave to the defendant to move to enter a nonsuit.

During Easter term, Vannorman, for defendant, obtained a rule upon the plaintiff, pursuant to leave reserved, to shew cause why the verdict should not be set aside and a nonsuit entered.

M. C. Cameron shewed cause during the same term.

MACAULAY, C. J.-It appears to me that the growing crops in the ground passed by the deed; and the only question is whether it can be treated as exempted by reason of the defendant's subsequent declarations.-Baker v. Dewey (1 B. & C. 704); Flinn v. Calow (1 M. & G. 589); Earl Falmouth v. Thomas (1 Cr. & Mee., 88 S. C. 3 Tyr. 26.)

The merits of this case being seemingly with the plaintiff, I have endeavoured to find authority on which the court might satisfactorily rest a decision in his favour, but I cannot say I have been successful. A verbal reservation of the growing crops or half the growing wheat, accompanying a deed of the land in terms that transferred the right of property in such

crops or wheat, cannot afterwards be set up in opposition to the deed; it is inconsistent with it; and contradictory to its legal import.

Then subsequent verbal admissions of such fact, or of the plaintiff's being entitled to half of the wheat, without any new or additional consideration beyond the consideration mentioned in the deed of conveyance, seem equally insufficient. There was no subsequent or independent contract for half of the crops; all was included in the original transaction. The growing wheat passed by the deed, or it did not. If it passed, as I think it did, it became the defendant's property; and if so, his right thereto would not be diverted by his afterwards saying that half of it belonged to the plaintiff: such admissions could only be available as proving that the property in the subject matter did not pass by the deed, that is, in the absence of any separate or distinct contract relative thereto; and if it did not pass, it must have been reserved or excepted, and to prove that by parol is infringing upon the terms or import of the conveyance. The actual bargain seems to have been concluded between the parties in private; and if it was agreed that half the wheat was to remain to the plaintiff, it shews that the other half was to go to the defendant; and the deed shews, whether inadvertently or not, that the whole passed to the defendant; the plaintiff parted with his right under such; and I cannot satisfy myself that the effect of such deed can be controlled and altered by the verbal evidence offered in support of this action, which, treats the wheat in question as personal property of the plaintiff wrongly converted by the defendant.

The plea denies plaintiff's alleged right of property, and the evidence fails to establish it. I think the rule should be made absolute.

MCLEAN, J.-It appears from the evidence and the finding of the jury that at the time of the execution of the conveyance their was an understanding and agreement between the parties that only one half of the wheat in the ground was to pass to the defendant and that the other half was reserved by the plaintiff for his own use; and if such agreement did not require to be in writing, the plaintiff's verdict ought not to be disturbed.

In the case of Rodwell v. Philips (9 M & W. 501) an agreement in writing to sell to the plaintiff all the crops of fruit and vegetables in a certain portion of a garden from large pear trees, was held to be an agreement for the sale of an interest in lands and to require a stamp.

Lord Abinger, in giving judgment, said there were a great many cases in which a distinction is made between the sale of growing crops and the sale of an interest in lands; and that no general rule is laid down in any one of them which is not contradicted in some other. The court thought that case ought to be governed by any of those in which it is decided that a sale of growing crops is a sale of goods and chattels; growing fruit would not pass to an executor, but to the heir. In the course of the argument Lord Abinger remarked that the difference appeared to be between annual productions raised by the labor of man and the annual productions of nature, not referable to the industry of man except at the period when they where first planted-Parker v. Stainland (11 East. 362), Warwick v. Bruce (2 M. & S. 205), Evans v. Roberts (5 B. & C. 829), Sainsbury v. Matthews (4 M. & W. 343.) Sales of potatotes growing on the land to be dug by the purchasers, held to be sales of goods and chattels. Jones v. Flint (10 A. & E. 753)-see 2 P. & D. 594. Lord Denman says, "Three things were the subject matter of the contract, crops of corn, potatoes and the after eatage of stubble and lay grass; of these all but the lay grass are fructus industrales; as such they are seizable by the sheriff under a Fieri Facias and go to the executor, not to the heir. If they had been ripe at the date of the contract, it may be considered now as settled that the contract would have been held to be a contract merely for the sale of goods and chattels; and although they had still to derive nutriment from the land, yet a contract for the sale of them has been determined, from their original character, not to be on that account a contract for the sale of any interest in land. He refers to the case of Evans v. Roberts (5 B. & C. 829, S. C. 8 D. & R. 611) in support of this view.

In the case of Jones v. Flint the only question was, whether the crops of corn and potatoes, being included in the

same contract with the eatage of stubble and lay grass, which were not of the same character of annual productions by the labor of man, the whole must not be regarded as coming within the fourth section of the Statute of Frauds; but the court held that as the cattle of the defendants were to run with those of the plaintiffs on the stubble and lay grass, the contract as to that did not amount to a sale, but must be considered rather as an agistment of the plaintiff's cattle by the defendant.

Earl of Falmouth v. Thomas (1 C. & M. 88, S. C. 3 Tyr. 26) -Declaration stated that the plaintiff was possessed of a farm, upon which were certain growing crops, and on which the plaintiff had done certain work and labor, expended certain materials in making the lands ready for tillage, of which work, labor and materials the plaintiff had not derived the benefit; and that in consideration the plaintiff would let the farm to the defendant for fourteen years, the defendant undertook to take the crops and pay for them and for the work, labor and materials, according to a valuation. Averments that the plaintiff let the farm accordingly and left the crops upon it, and that the defendant took possession of the farm and had the benefit of the work, labor, and materials, and that the valuation was made, but the defendant did not pay.

Plea-That the crops, and the benefit of the work, labor and materials, were not excepted or reserved out of the letting or agreement to let, and that there was no agreement in writing in respect of the causes of action, or any memorandum or note thereof signed by the defendant or any person by him lawfully athorised.

Demurrer-Held that the contract was for an interest in land, and that the right to the crops and the benefit of the work and labor were both of them an interest in land within the fourth section of the Statute of Frauds.

In this case the contract was considered entire, and the part relating to the crops and work and labor could not be separated from that relating to the letting of the farm for fourteen years. Had the cutting been for one year by parol, and the agreement only for such crops as had been cultivated

by labor during the season, there can scarcely be a doubt that the plaintiff would have been entitled to recover, though the contract might be regarded as entire. If however the work and labor bestowed upon the land to prepare it for tillage, and which could not be withdrawn or separated from the land, were sued for, it might be questionable whether it did not amount to an interest in land and coming within the provisions of the 4th section of the Statute of Frauds, by which it is declared that "no action shall be brought on any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing."

Lord Lyndhurst says, "At the time when each of these contracts (there were several counts varying the statements of contracts) upon which the plaintiff sues is stated to have been made, the crops were growing upon the land, the defendant was to have the land as well as the crops; and the work, labor, and materials, were so incorporated with the land as to be inseparable from it."

The defendant would not have the benefit of the work, labor, and materials, unless he had the land; and we are of opinion that the right to the crops and the benefit of the work, labor and materials were both of them an interest in the land; but if either of the two were properly an interest in land, this would form a sufficient objection to the special counts, for the crops and work and labor united are the consideration in each count, and if either part of the consideration fails the plaintiff cannot recover."

I think that, under the authority of these cases, there can be no doubt that growing wheat, or any annual production of the soil, raised by the labor of man, must be regarded as goods and chattels liable to be seized on execution, and going, in case of death, to the executor or administrator, unless devised with the land; though at the time of death in such a state as to require further nutriment from the land to bring them to maturity.

The wheat which was growing on the land sold to the defendant was up to the time of the sale a portion of the

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