They might have partaken of it, but they did not. When they left, they carried the oleomargarine away with them. This, in my opinion, they had no right to do. A guest at a hotel may satisfy his appetite when he goes to the table. He may partake of anything that is placed before him, but, after filling his stomach, he may not also fill his pockets and carry away the food he cannot eat. . . . If the proprietor of a hotel places a bottle of wine before his guests, who do not partake thereof, it cannot be said that it is a sale of the wine, nor has the guest the right to carry it away. He might as well carry off the table furniture."

§ 6. Goods or an Interest in Land.

38. English law treats real and personal property as distinct species; and the rules governing their use, their transfer, and their descent or their distribution are quite different. This distinction is recognized but not defined by the Statute of Frauds. It is important, therefore, to note the tests which determine whether a particular contract is one for the sale of goods or of an interest in land.

39. Minerals. - Land extends indefinitely above and below the surface. It therefore includes all minerals while they are unsevered. But the ordinary use of mines results in detaching minerals from their natural bed, in transforming them into movables, and consequently in their treatment as goods. Hence a contract for the sale of mined or severed ore is one

1 The fourth section of the English statute, which has been adopted in many of our States, contains this provision among others, that no action shall be brought "upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized." It will be observed, that a duly signed memorandum in writing is the only evidence of the contract receivable under this section, no matter what the price of the subject-matter is. Neither part payment, nor receipt and acceptance, satisfies the statute. Prested Miners, etc. Co. v. Garner (1910); 2 K. B. 776; 79 L. J. K. B. 1143, holds that a contract for the sale of goods which is not to be performed within a year is governed by a provision of this section (not reproduced in the above extract) and not by the seventeenth section, now § 4 of the Sales Act.

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for the sale of a chattel and not for an interest in land; and a contract for a partnership in opening and working a stone quarry on the land of one of the partners is not one for an interest in land. Under a contract by which the land-owner "bargains and sells the right of digging for lead ore on a certain range, for the sum of $500, the receipt whereof is hereby acknowledged," the purchaser does not acquire an estate in the land, nor does he become the owner of any ores save those which he digs; and he cannot maintain replevin against the land-owner for ores dug by the latter in violation of the contract. A mining claim is treated in the Pacific States as personal property, for the transfer of which a written conveyance is not necessary; and is distinguished from a mine, which is considered real property.5

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40. Ice. This, until severed, belongs to the owner of the soil under the water upon which it forms, and generally is deemed real property, because "connected with and in the nature of an accession to the land; "7 although a contract for the sale of ice already formed but unsevered has been held one for the sale of personal property.8 Said Campbell, C. J.: “In its frozen condition, it drew nothing from the land and got no more support from it than a log floating on water would have had. . . . It does not seem to us that it would be profitable to attempt to determine such a case as the present by applying the inconsistent and sometimes almost whimsical rules that have been devised concerning the legal character of crops and emblements. . . . It can only be used and sold as personalty, 1 Green v. Ashland Iron Co., 62 Pa. St. 97 (1869); cf. Forbes v. Gracey, 94 U. S. 762 (1876).

...

Treat v. Hiles, 68 Wis. 344 (1887).

3 Gillett v. Treganza, 6 Wis. 343 (1858); contra, Desloge v. Pearce, 38 Mo. 588 (1866); that the right to enter and dig for ores is an incorporeal hereditament, as it gives the right to commit waste and to carry away a part of the realty.

Union Con. Silver Co. v. Taylor, 100 U. S. 37 (1879).

› Hardenbergh v. Bacon, 33 Cal. 356, 381 (1867).

Hoag v. Place, 93 Mich. 450; 53 N. W. 617 (1892); cf. Howe v. Andrews,

62 Conn. 398; 26 At. 394 (1892).

7 Wash. Ice Co. v. Shortall, 101 Ill. 46 (1881).

'Higgins v. Kusterer, 41 Mich. 318; 2 N. W. 13; 32 Am. R. 160 (1879).

and its only use tends to its immediate destruction. We think it should be dealt with in law according to its uses in fact, and that any sale of ice ready formed, as a distinct commodity, should be held a sale of personalty, whether in the water or out of the water."

41. Soil Products. - These, while attached to the earth, are within the general definition of real property, and they pass as a part of the land, without enumeration, by a deed from the exclusive owner and occupier. For most purposes, however, the common law treated certain land products as personal and not as real property. These were called emblements or fructus industriales, and consisted of "such crops as in the ordinary course of things return the labor and expense bestowed upon them strictly within the year." A tenant at will, whose estate was determined by the landlord, or the representatives of a tenant for life, were allowed to enter and take such products as a "compensation for the labor and expense of tilling, manuring, and sowing the lands, and also for the encouragement of husbandry, which, being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give." The same doctrine was "extended to tenants in fee, principally for the benefit of their creditors." 1

42. Annual Crops. As the common law thus distinguished emblements from the land, devolving the former upon the personal representative and the latter upon the heir, subjecting one to seizure under an execution and not the other, in short, treating one as goods for most purposes; and as the Statute of Frauds "takes things as it finds them, and provides for lands and goods, according as they were so esteemed before the enactment," 2 a contract for the sale of this class of land. products is treated generally as one for the sale of goods, and not of an interest in lands.3 It is to be borne in mind that this

1 2 Blackstone's Commentaries, pp. 122, 146, 404; Graves v. Weld, 5 B. & Ad. 105 (1833).

2 Dunne v. Ferguson, 1 Hayes (Irish), 540 (1832); Burdick's Cases on Sales, 38.

Evans v. Roberts, 5 B. & C. 829 (1826).

class includes only such crops as are produced within the current year by manurance and industry.1

By the English Sale of Goods Act, not only emblements, but industrial growing crops, are declared to be goods. The latter term is the Scotch equivalent of emblements, and was inserted in the statute because of that fact; but the suggestion is made by a Scotch writer that its presence in the statute may have disposed of a question which had not been settled by judicial decision in England, whether such products of the soil as madder, clover, teasels, which are not permanent products as trees, nor requiring annual cultivation like cereals, are goods.2

The Uniform Sales Act follows the English statute in declaring "goods" to include "emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale."3

43. Natural Soil Products. The natural and permanent produce of the soil, such as grass, trees with their fruits, and the like, before severance, was not treated as personalty by the common law, and a contract for its sale is, by the weight of judicial authority, deemed one for the transfer of an interest in lands. If, by the agreement, however, the title to the produce is not to pass until it has been severed and thus converted into a chattel, the contract is one for the sale of goods." Prior to the Sales of Goods Act the judicial view in England was that the natural growth of land may be the subject-matter of a present sale of goods, if it is not to derive further benefit from the soil; and this doctrine is held by a few of our State

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1 Kieff v. Rieff, 64 Pa. St. 134 (1890); Burdick's Cases on Sales, 39; contra, Whitmarsh v. Walker, 1 Met. (Mass.) 313 (1840).

2 Brown on Sales (1st ed.), 286. "The term 'industrial growing crops' seems to comprehend this class of property."

3 Mass. L. 1908, ch. 237, § 76.

4 Green v. Armstrong, 1 Denio (N. Y.), 550 (1845); Hirth v. Graham, 50 Ohio St. 57; 33 N. E. 90 (1893); Stuart v. Pennis, 91 Va. 688; 22 S. E. 509 (1895); Burdick's Cases on Sales, 40.

5 Killman v. Howlett, 48 N. Y. 569 (1872).

6 Marshall v. Green, 1 C. P. D. 35 (1875); Burdick's Cases on Sales, 42. The doctrine of this case seems to have been abolished by the Sale of Goods Act, § 62 (1), defining “goods."

courts. The agreement of the parties that the produce shall be separated presently from the land is treated as working its constructive severance, in such cases.2 The language of the Uniform Sales Act, quoted in the preceding paragraph, seems to declare that growing trees, buildings, and other things forming part of the realty, may be converted into "goods," and thus brought within the seventeenth section of the Statute of Frauds (or its present equivalent), not only when it is agreed that title shall pass after severance, but also when the contract is one of present sale; if such contract provides for severance. If this is the correct interpretation of the statute, it is immaterial whether the subject-matter of the contract is to derive further benefit from the soil or not.

44. Other Views. Even in those jurisdictions where the subject-matter of a contract for the present sale of natural produce is deemed an interest in land, it is held generally that if the vendee severs the growth before the vendor's repudiation of the contract, he acquires title to it as a chattel.3 In two States the broad ground is taken, that if the contract is to eventuate merely in the transfer of title to a chattel, it is one for the sale of goods, whether the natural growth is to derive further benefit from the soil or not, and whether it is to be severed from the land by the vendor or the vendee. Such

1 Leonard v. Medford, 85 Md. 666; 37 At. 365 (1897); Robbins v. Farwell, 193 Pa. 37; 44 At. 260 (1899). In re Benjamin, 140 Fed. 320 (1905).

2 Byasse v. Reese, 4 Metc. (Ky.) 372; 83 Am. Dec. 481 (1863); Leonard v. Medford, 85 Md. 666; 37 At. 365 (1897). But this doctrine is not applied when standing timber is sold not for immediate severance. Wiggins v. Jackson, 73 S. W. 779 (Ky. 1903); buyer was to have two years for cutting and removal; McCoy v. Fraley, 113 S. W. 444 (Ky. 1908); the contract was in writing and passed an equitable interest in real estate.

3 Owens v. Lewis, 46 Ind. 488 (1874); but see Bent v. Hoxie, 90 Wis. 625; 64 N. W. 426 (1895); Burdick's Cases on Sales, 42 n.

Bostwick v. Leach, 3 Day (Conn.), 476 (1821); Purner v. Piercy, 40 Md. 212, 224, 225 (1874). See 8 Harv. L. R. 367.

Said the court, in the case last cited: "The circumstance that the produce purchased may, or probably, or certainly will, derive nourishment from the soil between the time of the contract and the time of the delivery, is not conclusive as to the operation of the statute. If the contract, when executed, is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute; but if