Scorell v Boxall, and Another
| Jurisdiction | England & Wales |
| Judgment Date | 26 May 1827 |
| Date | 26 May 1827 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 724
EXCH OF PLEAS.
scorell v. boxall and another. Exch. of Pleas. Saturday, May 26th, 1827. -The Bale of growing underwood, to be cut by the purchaser, confers an interest ' in land under the fourth section of the statute of frauds, 29 Car. 2, c. 3. Trespass, for cutting down, and carrying away underwood. Plea, the general issue. This case was tried at the Surrey Summer Assizes, 1827, before Mr. Serjeant Onslow; and the question was, whether the plaintiff, who had purchased by parol, the underwood, then standing, to be cut by him, had such a possession as would enable him to maintain trespass agaiust the defendants for cutting and carrying it away. The 1 Y. &J. 397. SCORELL V. BOX ALL 725 learned Judge was of opinion, that the sale came within the fourth section of the statute of frauds (29 Car. 2, c. 3, a. 4), and was void, there being no note or memorandum in writing, pursuant to that statute ; upon which the plaintiff was nonsuited. In Easter Term last, Comyn obtained a rule to shew cause why the nonsuit should not be set aside, and a new trial had, contending that the case of Crosby v. \Vadswwih (6 East, 602), which had been cited at the trial, and relied upon by the learned Judge, did not apply, underwood being merely a chattel, according to the dictum of Treby, C. J. (1 Ld. Raym. 182) us reported in Lord Raymond's Reports, and cited by Holroyd, if., in the case of Mat/field v. Waddey (5 D. & R. 224; H. C. 3 B. & C. 357); and the right of going oa the land to cut the wood being merely an easement, and conferring no interest in the land. He cited also the case of Evans v. Roberts (8 D. & R. 611 ; S. G. 5 B. & C. 829. [397] Barnewall and Norton, now shewed cause. The question is, whether the plaintiff had such an interest in the underwood, as would enable him to maintain trespass, which is a possessory action. It is clear that he had not actual possession, for the underwood stood upon the land of the person by whom it was sold, neither had he a constructive possession. The fourth section of the statute of frauds says, that no action shall be maintained upon a contract relating to the sale of an interest in or concerning land, unless it be in writing; now the subject matter of this sale forms parcel of the inheritance, and is not a chattel; it descends to the heir, and does not go to the executor. Liford's case (11 Co. 46; S. C. 1 Roll. Kep. 97). The true distinction, as laid down in...
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