(h) See ante, vol. ii. p. * 71.

(i) See ante, vol. ii. p. * 63.

(j) Wood p. Savage, Walk. Ch. 471. Bat see ante, vol. ii. p. * 71, n. (v).

(k) Mountacue v. Maxwell, 1 Stra. 236; De Beil v. Thomson, 8 Beav. 469; 8. c. nom. Hammersley v. De Beil, 12 Clark & F. 45; Snrcome v. Pinniger, 3 De G, M. & G. 571, 17 Eng. L. & Eq. 212.

(l) Per Story, J., in Jenkins v. El-dridge, 3 Story, 291. But see Montacate v. Maxwell, 1 P. Wms. 618. In this case the plaintiff brought a hill against the defendant, her husband, setting forth that the defendant, before her intermarriage with him, promised that she should enjoy all her own estate to her separate use; that he had agreed to execute writings to that purpose, and had instructed counsel to draw such writings, and that, when they were to he married, the writings not being perfected, the defendant desired this might not delay the match, in regard his friends being there, it might shame him; but engaged, that upon his honor she should have the same advantage of the agreement as if it were in writing, drawn in form by counsel, and executed; whereupon the marriage took effect. To this bill the defendant pleaded the statute of frauds. And the Lord Chancellor said: "In cases of fraud, equity should relieve, even against the words of the statute; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former; in this or such like cases of fraud, equity would relieve; but where there is no fraud, only relying upon the honor, word, or promise of the defendant, the statute making these promises void, equity will not interfere; nor were the instructions given to counsel for preparing the writings material, since, after they were drawn and engrossed, the parties might refuse to execute them."

(m) Seagood v. Meale, Prec. in Ch. 560; Wankford v. Fortherly, 2 Vera. 322; Bird v. Blosse, 2 Vent. 361. In this last case a father wrote a letter signifying his assent to the marriage of his daughter with one J. S., and that he would give her £1,500. Afterwards, by another letter, upon a further treaty concerning the marriage, he went back from the proposals of his first letter. But subsequently to his writing the last letter, he declared that he would agree to what was proposed in his first letter. The court held, that the last declaration had set the terms in the first letter up again; and that the undertaking therefore was sufficiently evidenced by writing within the statute of frauds.

(n) See ante p *4, n ( c )

(o) Ayliffe v. Tracy, 2 p Wms 65.

(p) Douglas v. Vincent, 2 Vera. 202.

(q See Randall v. Morgan, 12 Ves.67. Ogden v. Ogden, 1 Bland, 284. In Mann-sell v. White, 1 Jones & La T. 539, it appeared, that, upon a treaty for a marriage between M. and £., a minor, M. communicated to the guardians of E. a letter from his uncle, H., stating that he had, by his will, left his T. estate to M. The guardians resolved, that until a suitable settlement should be made by H., of real estate, upon the marriage, in the usual course of settlement, it was not advisable that it should take place. This resolution was communicated to H., who in reply wrote to M.: "My sentiments respecting you continue unalterable; however, I shall never settle any part of my property out of my power so long as I exist. My will has been made for some time; and I am confident that I shall never alter it to your disadvantage. I repeat that my T. estate will come to you at my death, unless some unforeseen occurrence should take place;" and desired his letter to be communicated to the guardians. The guardians thereupon consented to the marriage, which was solemnized. The court held, 1st, that the letter did not amount to a contract by H. to devise the T. estates to M., and that H. might dispose of them as he pleased by his will; 2d, that supposing it amounted to a contract, matters connected with the subsequent conduct of M. were "unforeseen occurrences;" and that H. was the sole person to determine whether, upon their happening, he would alter his will.

(r) This is the rule declared by the Supreme Judicial Court of Massachusetts, in Whitmarsh v. Walker, I Met. 313. That was an action founded on a parol agreement, whereby the defendant agreed to sell to the plaintiff two thousand mulberry trees at a stipulated price. The trees, at the time of the agreement, were growing in the close of the defendant. It was proved at the trial, that the plaintiff paid the defendant in hand the sum of ten dollars in part payment of the price thereof, and promised to pay the residue of the price on the delivery of

1 A promise by a father to pay an allowance to his child after marriage is within the statute. Johnstone v. Mappin, 60 L. J. Ch. 241. So mutual promises by parties about to marry that each shall retain control of his or her property, Mallory's Adm. v. Mallory's Adm., 17 S. W. Rep. 737 (Ky.); or that certain specified property shall go to the survivor, Hannon v. Hounihan, 85 Va. 429; or that the husband shall have the wife's property on her death, White v. Bigelow, 154 Mass. 593.

2 See Kerr v. Hill, 27 W. Va. 576.

* growing grass, or growing trees, or fruits; although some cases take a distinction in this respect, between what grows spontaneously, *and that which man has planted or sown and cultivated, holding, that only emblements, or what might be emblements, are to be considered as chattels, while the spontaneous growth of the land remains a part of it; at least, the trees, which the defendant promised to deliver on demand; but which promise, on his part, he afterwards refused to perform. The defence was, that the contract was for the sale of an interest in land within the meaning of the statute of frauds. Wilde, J., said.: "We do not consider the agreement set forth in the declaration, and proved at the trial, as a contract of sale consummated at the time of the agreement; for the delivery was postponed to a future time, and the defendant was not bound to complete the contract on his part, unless the plaintiff should be ready and willing to complete by the payment of the stipulated price. Sainsbury" v. Matthews, 4 M. & W. 347. Independently of the statute of frauds, and considering the agreement as valid and binding, no property in the trees vested thereby in the plaintiff. The delivery of them and the payment of the price were to be simultaneous acts. The plaintiff cannot maintain an action for the non-delivery, without proving that he offered, and was ready to complete the payment of the price; nor could the defendant maintain an action for the price, without proving that he was ready and offered to deliver the trees. According to the true construction of the contract, as we understand it, the defendant undertook to sell the trees at a stipulated price, to sever them from the soil, or to permit the plaintiff to sever them, and to deliver them to him on demand; he at the same time paying the defendant the residue of the price. And it is immaterial whether the severance was to be made by the plaintiff or the defendant. For a license for the plaintiff to enter and remove the trees would pass no interest in the land, and would, without writing, be valid, notwithstanding the statute of frauds. . . . We think it therefore clear, that, giving to the contract the construction already stated, the plaintiff is entitled to recover. If, for a valuable consideration, the defendant contracted to sell the trees, to deliver them at a future time, he was bound to sever them from the soil himself, or to permit the plaintiff to do it; and if he refused to comply with his agreement, he is responsible in damages." And the case of Nettleton v. Sikes, 8 Met. 34, is to the same effect. It was there held, that an agreement by an owner of land that another may cut down the trees on the land, and peel them, and take the bark to his own use, is not within the statute of frauds. And see Baker v. Jordan, 3 Ohio State, 438; Smith v. Bryan, 5 Md. 141. The same view has been taken in several English cases. Smith v. Surman, 9 B. & C. 561; Sainsbury v Matthews, 4 M. & W. 343. And see Evans v. Roberts, 5 B. & 0. 829. It must be admitted, however, that the English courts manifest a strong inclination, in the more recent cases, to bold a contract to be within the statute or not, according as the subject-matter of it consists of fructut industriales, or the spontaneous productions of the earth. See Scorell v. Boxall, 1 Young & J. 396; Evans v. Roberts, 5 B. &. C. 829; Rodwell v. Phillips, 9 M.& W. 501; Jones v. Flint, 10 A. & E. 753. The same rule was very authoritatively declared in Ireland, in the case of Dunne v. Ferguson, Hayes, 540. That was an action of trover for five acres of turnips. It appeared that in October, 1830, the defendant sold to the plaintiff a crop of turnips which he had sown a short time previously. In February, 1831, and previously, while the turnips were still in the ground, the defendant severed and carried away considerable quantities of them, which he converted to his own use, and for which the present action was brought. No note in writing was made of the bargain. It was held that the plaintiff was entitled to recover. For other cases upon the sale of growing crops, see Anonymous, 1 Ld. Raym. 182; Poulter v. Killingbeck, 1 B. & P. 397; Waddington r. Bristow, 2 B. & P. 452; Crosby v. Wadsworth, 6 East, 602; Parker v. Staniland, 11 id. 362, Newcomb v. Ramer, 2 Johns. 421, n. (a); Austin v'. Sawyer, 9 Cowen, 39; Mell-vaine v. Harris, 20 Mo. 457; Warwick v. Bruce, 2 M. & S. 205; Emmerson v. Heelis, 2 Taunt, 38; Mayfield o. Wadsley, 3 B. & C. 357; Teal v. Auty, 2 Brod. & B. 99; Knowles v. Michel, 13 East, 249; Earl of Falmouth v. Thomas, 1 Cromp. & M. 89; Erskine v. Plummer, 7 Greenl. 447; Marshall v Ferguson, 23 Cal. 65; Ross v. Welch, 11 Gray, 235. As to growing until it is fully ripe and ready for removal, (s)l If, by the same contract, these things and the land on which they stand are sold, it is not a sale of land and chattels; for then they pass with the realty as a part of it, and the contract, in reference to them, is as much within this clause of the statute as it is in reference to the land itself. (t) Such are the views expressed, as we think, by the highest authorities, and supported by the best reasons. But there is some uncertainty and conflict on the subject. And, perhaps, it may be stated as a general rule, that, if the parties appear to consider the land merely as a place of deposit or storing for the vegetable productions, or as a means by which for a time they may be improved, they are so far disconnected from it, that trees, see Hutchins v. King, 1 Wallace, 53; Byassee v. Reese, 4 Met. (Ky.) 372.