but treating this as not being a sale of any interest in land, we think the declaration is sufficiently adapted to the case.

The declaration stated, that the plaintiff was the owner of a gristmill; and the defendant, having it in contemplation to build one within a short distance, and being desirous of procuring materials for it, as well as of securing to it, when built, the custom of such persons as usually went for grinding to the plaintiff's mill, proposed to the plaintiff that he should stop his mill on the first day of January then next, and the defendant would purchase the mill-stones, running-geers, bolt, tackling, tools and utensils, which belonged to and were removable from the mill, and would pay the plaintiff for the same the sum of four hundred dollars. To this proposition the plaintiff acceded, and had performed everything to be done on his part.

The defendant pleaded the general issue.

On the trial the plaintiff offered to prove his case by parol evidence. It was agreed, that the plaintiff's mill was what is commonly called a gig mill, standing on a small stream of water; that the mill-stones were laid in the mill for the purpose of grinding in the same manner as millstones are usually placed in such mills for that purpose, — viz., by the bed stones being laid upon the floor timber of the mill; that the running geers consisted of a horizontal water-wheel, the shaft of which was upright, which passed through the lower mill-stone for the purpose of turning the upper mill-stone; that the lower part of the shaft rested and turned on a pivot at the bottom; and that the wheel was turned by the water being received in the usual manner of mill-wheels of that description. It was also agreed, that the mill-stones, running-geers, &c., were, at the time of the contract, in actual use for the purpose of grinding, and have never since been removed, but might be removed without doing violence to the mill-house, and without even so much as the drawing of a nail. It was further admitted that the plaintiff stopped his mill on the first day of January, according to his agreement, and the next day gave notice thereof to the defendant.

The defendant objected to the admission of the evidence offered, on the ground that the contract set forth in the declaration, and offered to

1 Followed in Lee v. Gaskell, 1 Q. B. D. 700. See South Balto. Co. v. Muhlback, 69 Md. 395, 404.

be proved, was a contract for the sale of lands, tenements, or hereditaments, or some interest in or concerning them; and not being in writing, was, therefore, within the Statute of Frauds and Perjuries. the court overruled the objection, and admitted the evidence.

But

A verdict being found for the plaintiff, the defendant moved for a new trial.

N. Smith and Hatch, in support of the motion.

Bacon, in the absence of Allen, opposed the motion.

BY THE COURT. The contract was not embraced by the Statute of Frauds and Perjuries. When there is a sale of property, which would pass by a deed of land, as such, without any other description, if it can be separated from the freehold, and by the contract is to be separated, such contract is not within the Statute. Such are the contracts for the purchase of gravel, stones, timber trees, and the boards and brick of houses to be pulled down and carried away.

The agreement not to use his mill, after a certain day, is not within the Statute of Frauds and Perjuries; for this Statute contemplates only a transfer of lands, or some interest in them. In this case, there was no transfer of any right, but only an agreement not to exercise a right. He parts with no interest to any person. There is no conveyance of the stream, or indeed of any interest whatever. Thus, it differs nothing in principle from the case where a man has carried on a trade in his house, or shop, and agrees, for a valuable consideration, not to carry on his business at that particular stand; and yet such contract has never been held to be within the Statute.

New trial not to be granted.1

1 See Moody v. Aiken, 50 Tex. 65.

CHAPTER V.

EMBLEMENTS.

LIT. § 68. Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him. Yet if the lessee soweth the land, and the lessor, after it is sown and before the corn1 is ripe, put him out, yet the lessee shall have the corn, and shall have free entry, egress and regress to cut and carry away the corn, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for years, which knoweth the end of his term, doth sow the land, and his term endeth before the corn is ripe. In this case the lessor, or he in the reversion, shall have the corn, because the lessee knew the certainty of his term, and when it would end. 2

CO. LIT. 55 a, 55 b. "Yet if the lessee soweth the land, and the lessor after it is sown, &c." The reason of this is, for that the estate of the lessee is uncertain, and therefore lest the ground should be unmanured, which should be hurtful to the Commonwealth, he shall reap the crop which he sowed in peace, albeit the lessor doth determine his will before it be ripe. And so it is if he set roots, or sow hemp or flax, or any other annual profit, if after the same be planted, the lessor oust the lessee; or if the lessee dieth, yet he or his executors shall have that year's crop. But if he plant young fruit trees, or young oaks, ashes, elms, &c., or sow the ground with acorns, &c., there the lessor may put him out notwithstanding, because they will yield no present annual profit. And this is not only proper to a lessee at will, that when the lessor determines his will that the lessee shall have the corn sown, &c., but to every particular tenant that hath an estate uncertain, for that is the reason which Littleton expresseth in these words (because he hath no certain nor sure estate). And therefore if tenant for life soweth the ground and dieth, his executors shall have the corn, for that his estate was uncertain, and determined by the act of God. And the same law is of the lessee for years of tenant for life. So if a man be seised of

1 Where possession is taken under a parol contract of sale of the land, and the vendee sows, he is entitled to the crop against the vendor who afterwards repudiates the contract. Harris v. Frink, 49 N. Y. 24.

2 In tenancies for years the law is otherwise in Pennsylvania. Stultz v. Dickey, 5 Binn. 285 (1812). And see Van Doren v. Everitt, 2 South. 460.

See Bradley v. Bradley, 56 Conn. 374.

land in the right of his wife, and soweth the ground, and he dieth, his executors shall have the corn, and if his wife die before him he shall have the corn. But if husband and wife be joint-tenants of the land, and the husband soweth the ground, and the land surviveth to the wife, it is said that she shall have the corn. If tenant pur terme d'auter vie soweth the ground, and cestuy que vie dieth, the lessee shall have the corn. If a man seised of lands in fee hath issue a daughter and dieth, his wife being enseint with a son, the daughter soweth the ground, the son is born, yet the daughter shall have the corn, because her estate was lawful, and defeated by the act of God, and it is good for the Commonwealth that the ground be sown. But if the lessee at will sow the ground with corn, &c., and after he himself determine his will and refuseth to occupy the ground, in that case the lessor shall have the corn,1 because he loseth his rent. And if a woman that holdeth land durante viduitate sua soweth the ground and taketh husband, the lessor shall have the emblements, because that the determination of her own estate grew by her own act. But where the estate of the lessee being uncertain is defeasible by a right paramount, or if the lease determine by the act of the lessce, as by forfeiture, condition, &c., there he that hath the right paramount, or that entereth for any forfeiture, &c., shall have the corn.

MR. SPENCER'S CASE.
COMMON PLEAS. 1622.

[Reported Winch, 51.]

Harvy, Serjeant, came to the bar, and demanded this question of the court, in the behalf of Mr. Spencer: A man was seised of land in fee, and sowed the land, and devised that to I. S., and before severance he died; and whether the devisee shall have the corn, or the executor of the devisor, was the question; and by HOBERT, WINCH, and HUTTON, the devisee shall have that, and not the executor of the devisor; and HARRIS said, 18 Elizabeth, Allen's Case, that it was adjudged, that where a man devised land which was sowed for life, the remainder in fee, and the devisor died, and the devisee for life also died before the severance, and it was adjudged that the executor of the tenant for life shall not 1 See Oland v. Burdwick, Cro. El. *460.

"In relation to emblements, the right of the tenant was unquestionably conferred for the encouragement of agriculture; but this right has never been held to obtain until the seed is sown, and the common law has drawn a distinction between the right to emblements and the costs of the preparation of the ground for the reception of the seed; as where the tenant for will is ousted after ploughing and manuring the land, he wholly loses his costs and labor, although if he had planted he would have been entitled to the emblements. Bro. Ab. Tit. Emblements, 7. If, therefore, the term of the lessee was determined by the death of the tenant for life, he would only be entitled to the emblements of the land then seeded." GOLDTHWAITE, J., in Price v. Pickett, 21 Ala. 741, 743.

have that, but he in remainder; and WINCH, Justice, said that it had been adjudged, that if a man devise land, and after sow that, and after he dies, that in this case the devisee shall have the corn, and not the executor of the devisor, nota bene.1

LATHAM v. ATWOOD.

KING'S BENCH. 1638.

[Reported Cro. Car. 515.]

TROVER and conversion of two hundred and fifty pounds of hops. Upon not guilty pleaded, the case appeared to be:

A woman, tenant for life, takes to husband the plaintiff, 5 Car. 1, the remainder being to the defendant for his life. These hops were growing out of ancient roots, being within the land in question; the wife dies the 19th August, 9 Car. 1, the hops then growing and not severed, &c.

The question was, Whether these hops appertained to the husband or to him in remainder? because she died so small a while before the gathering of them; and they are such things as grow by manurance and industry of the owner, by the making of hills and setting poles.

THE COURT, upon the motion of Grimston, who was of counsel with the plaintiff, held, that they are like emblements, which shall go to the husband or executor of the tenant for life, and not to him in remainder; and are not to be compared to apples or nuts, which grow of themselves. Wherefore adjudged for the plaintiff.

PEACOCK v. PURVIS.

COMMON PLEAS. 1820.

[Reported 2 Brod. & B. 362.]

REPLEVIN for growing corn. Cognizances for half a year's rent, due the 12th of May, 1819. Pleas. First, non tenuit; second, a writ of fieri facias sued upon a judgment recovered by the plaintiff, in Hilary term, 1819, against W. Peacock, under which the sheriff seized the corn on the 28th April, 1819, and, having paid the landlord one year's rent, sold the corn (not saying by agreement in writing) to the plaintiff, who then became possessed of the same. There were also pleas, stating a custom for a waygoing crop. General demurrer and joinder. Hullock, Serjeant, for the defendant.

D'Oyley, Serjeant, for the plaintiff.

1 See Anon., Cro. El. 61.