or forming part of the land which are agreed to be severed before sale or under the contract of sale. 3. Emblements and industrial growing crops. The term "emblements" is defined in Bouvier's Law Dictionary as "the right of the tenant to take away after his tenancy has ended such actual products of the land as have resulted from his own care and labour. The term is also applied to the crops themselves." It is in the latter sense, of course, that the term is used in this section and, in this sense, it seems exactly equivalent to the following term "industrial growing crops." The importance of the definition given in this section lies in the difficulty of determining with respect to a sale of growing crops whether they come within the fourth or the seventeenth section of the statute of frauds, whether in other words, they are "goods, wares and merchandises," or on the other hand an interest in land. Lord Denman in 1839 said it was difficult to reconcile all the cases and still more all the dicta on this subject from the case of Waddington v. Bristow to the present time. A few years later Lord Abinger in 1842 said, "it must be admitted taking the cases all together that no general rule is laid down by any one of them that is not contradicted by some other." It gradually came to be understood, however, that a distinction was to be made between the emblements or industrial growing crops on the one hand which were called the fructus industriales, and growing grass, timber or fruit on trees, on the other hand, which were called fructus naturales. Mr. Benjamin very properly said that this distinction was first clearly shown in the case of Evans v. Roberts1o in the year 1826. This case contains an exhaustive discussion which should be carefully read by any student who would understand this pregnant distinction. After the decision in this case the question was in a fair way of being settled as laid down by both Benjamin on Sales and Anson on Contracts to the effect that as to both classes alike, if the property was not to pass to the purchaser until the crops were severed from the soil, the contract was one for the sale of goods. If the property was to pass before severance fructus industriales were chattels. Whether they were goods wares and merchandises " within the seventeenth section of the Statute of Frauds was a debated point. Lord Blackburn regarded it as exceedingly questionable. Fructus naturales were, if the property in them passed before severance, an interest in land. The case of Marshall v. Green11 introduced some confusion into the matter by 2 Bos. & Pul. 452. deciding with reference to a number of trees all of which had been selected by the parties and the price agreed upon, and which were to be cut down and taken away immediately by the purchaser, that they were goods and not, as one would have supposed, an interest in land. This decision was fairly criticised by Blake V.C. in the Ontario case of Summers v. Cook12, who expressed the opinion that we had in the case of Marshall v. Green an unfortunate departure from the intelligible rule that growing trees are an interest in land and that a contract in respect of them falls within the same rule as a contract with respect to land. He regretted that the question had been left to depend on the length of time the party had to remove the trees. The mischief done to the orderly development of the rule by the case of Marshall v. Green was in the way of being cured by the decision of Chitty, J., in Lavery v. Pursell13 in which the contract was for the sale of the building materials of a house with the condition that all materials were to be taken down and cleared off the ground within two months. This was held to be a contract for the sale of an interest in land. Of course, Mr. Justice Chitty, sitting alone, could not reverse the judgment in Marshall v. Green, but it is impossible to read his judgment without coming to the conclusion that if he had been deciding that case it would have been decided differently. Compare the case of Marshall v. Green with the case of Smith v. Surman14. In the case last named the vendor was to cut the timber, in the other the vendee was to cut it. In Smith v. Surman the price was to be ascertained after it was severed. In Marshall v. Green the price was settled for the trees as they stood on the land. In Smith v. Surman the contract was an executory agreement for timber to be produced from the trees to be felled by the vendor and sold at so much a foot. In Marshall v. Green the intention evidently was to pass the property in the trees as they stood to the vendee. If they had been destroyed by fire after the making of the contract one would have said with confidence that it was the vendee's property that had been destroyed. The decision was an unlucky accident. The case was decided largely on the authority of Smith v. Surman which, as has been shown, was an entirely different case. If in the interval of twenty-four hours between the argument and the decision the court had turned their attention to Mr. Benjamin's chapter on the subject, or Lord Blackburn's, it is difficult to believe that the decision would not have been similar to that of Chitty, J., in Lavery v. Pursells, already mentioned. 12 28 Grant, 179. 13 39 Ch. D., 508. 15 39 Ch. D. 508. Should a case similar to that of Marshall v. Green arise it is difficult to say how it would be decided unless it should happen to come within the last clause of the subsection under consideration, as a thing or things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Emblements and industrial growing crops are goods whether they are to be severed before the sale or after. Fructus naturales are "goods" if they are to be severed before the sale or under the contract of sale. Unless they are to be so severed, the question as to their status must remain open until it is determined whether the disturbing decision in Marshall v. Green or the logical decision in Lavery v. Pursell is finally confirmed. If the fructus naturales, such as trees, grass and fruit on trees are agreed under the contract of sale to be severed they are goods. But what is the meaning of these words "under the contract of sale." It would be an exceedingly rare case that anyone would purchase trees or grass without the expectation that sooner or later the property will be severed. If, however, the contract of sale is silent the question remains to be determined by the light of Marshall v. Green or Lavery v. Pursell, according to which decision is eventually confirmed. 7. (1) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale in this Act called "future goods." 4. Vendor cannot sell what he does not own. Mr. Benjamin states the law to this effect citing the maxim, as if it were relevant to the question of capacity to contract, "nemo dat quod non habet." This inability does not seem to touch the question of capacity to sell any more than the fact that one who has neither money nor credit is unable to purchase goods would touch the question of contractual capacity to buy. The maxim is relevant to the question dealt with in this section, and so is Lord Bacon's maxim licet dispositio de interesse futuro sit inutilis, tamen poteat fieri declaratio praecedens quae sortiatur effectum interveniente novo actu. Freely translated, or perhaps it would be better to say freely interpreted, this means that a transfer of property to be acquired by the vendor is ineffectual, nevertheless an agreement to sell may have the effect of a transfer where, after acquiring the property, some action on the part of the vendor or purchaser or both has taken place which has the effect of completing the transaction and transferring the property. In commenting on this maxim the first thing to be said is that the effect of the novus actus interveniens is to create a legal title in the vendee. In the absence of some such actus interveniens the property does not pass at law. Thus in Lunn v. Thornton" the plaintiff, in consideration of a loan, by a deed-poll bargained sold and delivered to the defendant all and singular his goods, household furniture and plate, &c., remaining and being or which should at any time thereafter remain and be in upon or about his dwelling house at StoneyStratford. Tindal, C.J., held that the deed-poll could not pass the property which was not in existence at the time it was made. It might be otherwise if the grantor had given the defendant a right to seize the subsequently acquired goods. A seizure under such a power would presumably be the novus actus interveniens contemplated by Lord Bacon, which would have the effect of transferring the property in the goods. The editor of the 6th edition of Benjamin on Sales refers to this case of Lunn v. Thornton-to the fact that the property did not pass and that it could have passed under the agreement had the seller, after acquiring the goods, done some act clearly showing his intention to give effect to the original agreement, or if the buyer had obtained possession under an authority to seize them. This he correctly says rests on the authority of Lord Bacon's maxim "And where the goods can be sufficiently identified the property may pass by agreement without any new act intervening," for which he cites the case of Reeves v. Barlow.17 But before the case last mentioned was decided the property had to be sufficiently identified in order to give rise to an equitable interest, and, no matter how clearly and fully identified, it did not pass at law in the absence of some novus actus interveniens. The case of Reeves v. Barlow was an entirely new departure and flatly overruled, if it could do so, the authority of a long series of cases by which it had been established that the after-acquired property passes only in equity and not at law. One of these was the case of Holroyd v. Marshall decided by the House of Lords". Taylor, a manufacturer of damask goods, became embarrassed in business and plaintiff bought all his property but agreed to sell it back to him, and accordingly conveyed it to Brunt as trustee to hold until a certain money payment should be made. The essential clause bearing upon the present question was to the effect "that all machinery, implements and things which, during the continuance of this security, shall be fixed or placed in or about said 16 1 C.B. 379. mill, buildings and appurtenances, in addition to or substitution for the said premises, or any part thereof, shall, during such continuance as aforesaid, be subject to the trusts, powers, provisoes, and declarations hereinbefore declared and expressed concerning the said premises." The Sheriff seized under an execution against Taylor property that came within the terms of this covenant, and Lord Campbell decided that the property could be so seized, but this decision was held to be erroneous because it was opposed to the well settled principle that the execution creditor cannot seize goods which do not belong in equity as well as in law to his debtor. The equitable title to the goods in question here belonged to Brunt for the purposes of the trust in favour of the plaintiff. The Lord Chancellor (Westbury) in his judgment unfortunately forgot for the moment that an equity court would not ordinarily decree specific performance of a contract to transfer chattels. But that circumstance does not touch the essential doctrine of the case. The decision is to the effect that if and only if the property can be so identified that an equity court could decree specific performance of it, were the case dignus vindice nodus, then the beneficial interest in the property passes in equity; it belongs in equity to the transferee. Here the property was clearly identified by being brought upon the premises. According to the case of Reeres v. Barlow, as correctly interpreted by the Editor of Benjamin on Sales, 6th edition, the property should have passed to the trustees not only in equity but at law. Previously to the decision in Reeves v. Barlow Lopes, J., had decided in Lazarus v. Andrade1 that the after-acquired property passed not only at equity but also at law. There was a transfer by bill of sale of all and singular the stock in trade now in, upon or about the messuage or dwelling house at 62 Wilson Street, also the stock in trade, goods, chattels and effects which shall or may at any time or times during the continuance of this security be brought into the aforesaid messuage or dwelling house or be appropriated to the use thereof in addition to or substitution for stock in trade, goods, chattels and effects now being therein or any of them. Lopes, J., held that the property had been sufficiently identified and fell into the same mistake as Lord Westbury of applying the test of specific performance but he meant no more than Lord Westbury did in Holroyd v. Marshall, that is that the property, in order to pass, must be so specifically identified that an equity court could decree specific performance of its remedy extended to chattels. In Clements v. Matthews20 10 L.R. 5 C.P.D. 318. 20 47 L.T. 251. |