Crosby against Wadsworth
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 1805 |
| Date | 01 July 1805 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 1419
IN THE COURT OF KING'S BENCH.
Distinguished, Evans v. Roberts, 1826, 5 B. & C. 832. Explained, Carrington v. Roots, 1837, 2 M. & W. 257. Discussed, Jones v. Flint, 1839, 10 Ad. & E. 760. Applied, Roads v. Trumpington Overseers, 1870, L. R. 6 Q. B. 64. Referred to, Hand v. Hall, 1877, 2 Ex. D. 320, 355. Maddison v. Alderson, 1883, 8 App. Cas. 474.
crosby against wadswobth. Monday, July 1st, 1805. One who has contracted with the owner of a closei for the purchase of a growing crop of grass there, for the purpose of being mown and made into hay by the vendee, has such an exclusive possession of the close, though for a limited purpose, that he may maintain trespass qu. el. fregit against any person entering the close and taking the grass, even with the assent of the owner. But this, being a contract or sale of an interest in or concerning land, is voidable by the 4th section of the Statute of Frauds, 29 Car. 2, c. 3, if not reduced to writing, and maybe discharged by parol notice from the owner before any part execution of it. The 1st section of the Statute of Frauds, as construed by the 2d, is meant to vacate parol leases 1420 CROSBY fl. WADSWOBTH 6 EAST, 60S. &c. conveying a greater interest in land than for 3 years, and whereon a rent is reserved. [Distinguished, Evans v. Roberts, 1826, 5 B. & C. 832. Explained, Carrington v. Boots, 1837, 2 M. & W. 257. Discussed, Jones v. Flint, 1839, 10 Ad. & E. 760. Applied, Eoads v. Trumpington Overseers, 1870, L. E. 6 Q. B. 64. Referred to, Hand v. Hall, 1877, 2 Ex. D. 320, 355. Maddison v. Alderson, 1883, 8 App. Cas. 474.] In trespass, which was tried at the last Lincoln Assizes before Chambre J., a verdict was found for the plaintiff, damages 40s., subject to the opinion of the Court on the following case. The declaration stated, that the defendant on the 9th of July 1804, and on divers other days, &e. with force and arms broke and entered a certain close whereof the said plaintiff was then lawfully possessed, and trod down the plaintiffs grass and hay, and cut down the plaintiff's grass then growing in the said close, [603] and took and carried away the same, and also took and carried away the plaintiffs hay then being on the said close, and disposed thereof to his own use. The second count was for an asportavit generally. Plea, not guilty. The facts were, that on the 6th of June 1804 the plaintiff agreed by parol with the defendant for the purchase of a standing crop of mowing grass then growing in a close of the defendant's, situate in the parish of Clay pole, for 20 guineas. The grass was to be mowed and made into hay by the plaintiff; but the parties did not absolutely fix upon any time at which the mowing was to be begun. No earnest was given, nor was any note, memorandum, or writing, signed by either of the parties or by any person on their behalf, nor was possession of the close given to the plaintiff, but was retained by the defendant. On the 2d of July the defendant told the plaintiff he should not have the grass; and afterwards on that day sold it to W. Carver for 25 guineas. The plaintiff on the 12th of July tendered to the defendant 20 guineas for the crop, which the defendant refused to accept. The plaintiff went next morning to the defendant's close, and finding the gate unlocked, sent in a person to mow the grass, who cut near half of the close. On the evening of the 15th the defendant brought a letter from his attorney to the plaintiff, forbidding him to enter the close, and discharging him from mowing the grass. A lock was then fixed upon the gate by the defendant, and Carver by his direction, carried away the grass which had been mowed, and afterwards cut and carried away the remainder of the crop. The question for the opinion of the Court was, whether the plaintiff were entitled to recover. [604] Kough, for the plaintiff, supposed that the action would be resisted by the-defendant's counsel on two grounds; 1st, that the sale of the standing crop by parol was void by the Statute of Frauds (a)1. 2dly, that trespass was not maintainable because the plaintiff was not in possession of the close. As to the first, this is not a sale of "goods" within the 17th seet.(5), which word is there coupled with "wares-and merchandizes,," and cannot apply to a standing crop; and it has been decided that a sale of growing timber by parol is good (c), as not being within the statute. So it is said in Bull. N. P. 34, that standing corn belongs to a devisee of land and not to the executor, though a devisee of goods, stock, and moveables shall take it from, both...
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