The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-02-19
No. 800. James ". Harral, vs. Michael Miller

No. 800. James " Harral. vs.. Michael Miller.
This action was brought by the plaintiff
in error. under the Statute to recover the
penalty for cutting down and destroying
a number of trees upon the land of the
plaintiff.
The defendant pleaded the general is
sue: and upon the trial it was proved in
behalf of the plaintiff that since the 18th
dav of August, 1913, had cut down, upon
certain described tract of land. a certain
number of pine trees. He also produced
and proved a bond executed by William
g. Andrews. dated 18th August, lS4S, con-
ditioned to convey to the plaintiff the
tract of land referred to, with the appurte-
nances thereto belonging, upon the plain
! tiff paving the sum of one thousand dol
| lars according to certain promissorv notes
executed therefor He also proved that
plaintitfhad informed defendant before the
cutting of the trees, that he had purchased
| the land and would hold him acount-
able for any timber he might cut down,
| that Andrews had told the defendant that
he had sold the land to the plaintiff and
| had not reserved the trees, but would fur
| nish the defendant other trees for them.
The defendant then offered to prove a
| parol contract between Andrews and the
defendant in the Spring of 1913, by which
Andrews sold to the defendant, for a val
liable consideration all the pine timber on
the land: to the introduction of which the
plaintiff objected, but the objection was
overruled, and the testimony permitted
to 90 to the jury, the plaintiff excepting
The plaintiff then proved that the pa
rol contract between the defendant and
Andrews referred to, was that the defen
dant should have the pine timber on the
land in the event that Andrews did no
sell the land, but that he sold the same t
| plaintiff before the timber was cut by tn,
defendant, and of which he had notice.
This being all the evidence, the verdic
was for the defendant, and the plaintiff
moved for a new trial.
lst. Because the verdict was contrary t
law and the evidence
/ md. Because of the improper admissio
of the evidence for the defendant, whic
motion the Court overruled, and the plair
tiff excepted.
: l.. The question presented upon the oil
Z lection to the admission Of the evidenc
2 offered 10y the defendant is whether a
: agreement for the sale of growing tree
, ! TO be cut by the vendee, and removed,
a a contract for the sale of lands, tenement
y hcreditaments within the first section
: our Statuteof Frauds, and void unless !
e writing
j, Upon this question there is much dive
N sity Of opinion both in the decisions
England, and in this country. Several
these decisions from highly respectao
sources hold crowingTees to be mere cha
/ tells. and that contracts for the sale
, them are not within the Statute. 81
many other cases hold them TO he pare
Of The land. and within the Statute; an
Is this opinion appears to be more IN acco
r. dance with principle and legal establish
ed distinctions.
The term G7Hd embraces not only IL
ne soil but its natural produce, growing upc
and affixed to it. Such things being Il
u natural product of the land, are part al
marcel of it, and therefore pass by gra
x of the land. (Ship Touchs. 9l.) Bei
M naturally affixed to it, they are not dist
nh guished from it until actually severed.
'Ss (Jones VS.. Flint, 10 Adolp and Ellis 10,
Int Hence growing trees were not the subje
or of larceny at common law. Bl. COM
80, and they descend to the heir, and
oil not go to the executor, and even the Il
4 ant for life has no right to cut them dow
- z Bl. comm. l22.
When the Statute speaks of lands, e
md nlepts and hereditdments," it must be und
Sc stood to refer to them in such sense, as I
terms imported at common law and
cordingly to the principles above stat
on growing trees must be considered as T
:, tanning to the soil and embraced by
hall terms of the Statute.
This view has been sanctioned by ms
# well considered cases. Teal vs.. Aut,