alleged. Trustees very often assent to a trust without executing the deed which creates it, and they may assent at any time, and without an express allegation of dissent that will not appear. Assent is therefore to be presumed, and on that ground my judgment is founded. The case is analogous to that of executors who, when they may, must join in suing. The recital in the 21 H. 8, c. 4, shows that an opinion then prevailed, that where one of several devisees in trust to sell refused to act, no sale could take place. It does not speak of the mere absence of assent, but of an actual refusal. In this case, therefore, I think that it was not sufficient to say that the other covenantees did not seal; they might sue notwithstanding; and as they might, I think that the action cannot be maintained without them.

BAYLEY, J.

By the deed in question, James Bury, covenanted that his heirs or executors should pay the annuity to three persons. It ap*356] pears on the face of the deed to have been his intention that the money should go into the hands of the three, and that there should be the security of them all for the due application of the money. It is a general rule, confirmed by the late case of Scott v. Goodwin, 1 B. & P. 67, that all joint covenantees or obligees must sue. In this case, therefore, the plaintiff was wrong in suing alone, without showing some special title so to do. The defendants have a right to say, the contract was never made with you alone, but with you together with two others. It may be beneficial to the defendants to have the action brought by the three, for they may possibly have a defence against them all, which is not available against one of them. Here the plaintiff has done nothing more than show, that two of the covenantees did not seal, but they may still be covenantees; they may have assented to the deed, and unless the declaration shows that they have no right to be considered covenantees it is insufficient.

HOLROYD, J. The plaintiff is not entitled to sue alone on this covenant; it was made with three persons, and although two of them did not seal the deed, yet it is not in law converted into a covenant with one.

No intention that it should be so is shown, and by law the covenant does not import that. Supposing the others had executed, the present plaintiff would not by himself be entitled to receive the whole or any part of the money; and there is nothing to show an intention that he should have any such right, in the event of the neglect of the others to execute the deed. There are many *cases *357] which show that all joint covenantees may sue, although they have not sealed, and if so, I think that they must sue, and consequently, this plaintiff cannot recover alone.

LITTLEDALE J., concurred.

Judgment for the defendants.

MAYFIELD v. WADSLEY.

A. being the occupier of a farm, quitted the same on the 25th of March, 1821, and was succeeded in the possession by B. A. had sown forty acres with wheat, and it appecred that at a meeting between A. and B. in February, 1821, A. asked B. if he would take the forty acres of wheat at 2001., telling him, that if he did not, he should not have the farm. B. said that he would take it. A person present then valued the dead stock, and having so done, asked to whom he was to value it; B. said that it was to be valued to him, and then promised to pay A. for the wheat and the dead stock on a given day, and he did pay a sum of money on account. B. afterwards had possession of the farm, the growing wheat, and the dead stock: Held, that, indebitatus assumpsit, for crops bargained and sold, and goods sold and delivered, the contract for the dead stock was distinct from any contract for the sale of the growing wheat, and the possession of the farm, and therefore, that A. was entitled to recover to that amount: Held, also, by

Bayley and Holroyd, Js., Littledale, J., dissentiente, that as B. had had the growing wheat, and had made a part payment on account, A. was entitled in this action to recover the remainder of the price agreed to be paid for it.

Where a plaintiff has recovered a verdict for a sum of money, composed of several items, some of which he was not in strict law entitled to recover under the declaration in that action, but which he would be clearly entitled to recover by declaring in a different form, the court will not reduce the damages. Per Abbott, C. J.

INDEBITATUS assumpsit, for crops of wheat, hay, and corn, and for goods bargained and sold to the defendant, and goods sold and delivered. Plea, nonassumpsit. At the trial before Huilock, B., at the last Spring assizes for the county of Lincoln, it appeared, that the plaintiff being the occupier of a farm, quitted the same on the 25th of March, 1821, and was succeeded by the defendant's son-in-law, George Mayfuld. The plaintiff had sown forty acres with wheat; and it appeared by the testimony of a witness who valued the crops, that in February, 1821, a verbal agreement was made between the plaintiff and the defendant, and that *on that occasion, the plaintiff [*358 asked the defendant if he would take the forty acres of wheat at 2007., telling him, that if he did not he should not have the farm; the defendant then said that he would have the wheat. The witness then proceeded to value the dead stock, and after having ascertained its value to be 401. 8s. 6d., asked to whom it was to be valued, the defendant said to him. There was a machine on the farm, which was also valued at 41. 108., Wadsley, afterwards said to Mayfield, "Have you any objection to give me possession of the farm ;" and upon Mayfield's asking when he would pay him, udsley said, that if he would meet him on the 8th of March, he would pay him the money for the wheat and the dead stock, and the machine. It appeared further, that about a fortnight before the trial, the defendant acknowledged that he had paid 751. on account of this money, but said he would pay no more. Upon this evidence the learned Judge told the jury, that the plaintiff was entitled to a verdict for the whole sum sought to be recovered, if they were of opinion that the defendant had agreed to pay for the wheat to be taken by George Mayfield, because in that case there was a part performance of the contract, George Mayfield, having had the wheat, and the defendant having paid 75!. on account. The jury found a verdict for the plaintiff for 1697. 18s. 6d., the balance due after deducting the 757. A rule nisi was obtained in Easter term last, for entering a nonsuit, on the ground that there was no evidence to show that there had been any part performance of the contract by the defendant, because it did not appear that the possession of George Mayfield, was the possession of the defendant, or that the 751. had been paid by him on account of the wheat, and, secondly, that even if there was a part per[*359 formance, still this action was not maintainable within the fourth section of the statute of frauds, the bargain for the dead stock, &c., being subsidiary to a contract relating to the sale of an interest in land.

Denman, C. S., and Pennington, now showed cause. George Mayfield, having had possession of the farm, and his possession being that of the defendant, the latter having paid 75/. on account of the wheat and dead stock, cannot now rescind the contract. It is a contract executed and cannot be treated as a nullity, Crosby v. Wadsworth, 6 East, 602. In Parker v. Staniland, 11 East, 362, it was held, that indebitatus assumpsit, would lie for crops of potatoes bargained and sold, although they were in the ground at the time of the contract, because no interest in the land passed, but a mere right to go upon the land to gather the potatoes. So in Poulter v. Killingbeck, 1 Bos. & Pul. 397, it was held, that indebitatus assumpsit would lie for moieties of crops of wheat sold by the plaintiff to the defendant, and reaped for his use. There the plaintiff had let land to the defendant, from which he was to take two sucressive crops, and to render the plaintiff a moiety of the crops, in lieu of rent. While the crops of the second year were on the ground an appraisement was taken by both parties, and the value ascertained, and it was held, that the spe

cial agreement was executed by the appraisement. But here, at all events, the plaintiff is entitled to recover the value of the dead stock, under the count for goods sold and delivered. It was a separate contract, and Mayfield, accepted the goods, and acceptance by him is an acceptance by the defendant, and consequently, as to the dead stock, it is a case within the exception of the statute of frauds.

360] Clarke and Reader, contra. There was no evidence to show that the contract had been executed by the defendant, or that he contracted on his own account. It appeared that G. Mayfield, obtained possession of the farm, but there was nothing to identify him with the defendant, so as to make the possession of the one the possession of the other. It does not even appear that the 751. was paid by the defendant on account of the wheat. Then, if there was no part execution of the contract, the plaintiff clearly could not maintain an action upon it. But even admitting a part execution, the case is not altered, for 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 lands, unless it be in writing. This was a sale of growing wheat, and of the interest which the plaintiff then had in the farm: the contract for the dead stock was merely subsidiary to that. There is not a syllable in the fourth section of the statute of frauds making such a contract binding when partly performed. The provision to that effect relates entirely to sales of goods and chattels which would otherwise be void by the operation of the 17th section. If in this case there had been a mere sale of goods and chattels, part performance might have taken the case out of that section: but being a sale of an interest in land, it would be directly in contravention of the fourth section to allow the plaintiff to maintain this action.

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*3617 ABBOTT, C. J. It appears to me, plainly, from the evidence in this case, that the defendant contracted to have possession of the farm, and to pay 2007. for the forty acres of wheat, and specific sums of money for the dead stock, and for the machine. The bargain was clearly made by the defendant, and apparently for himself. He desires the dead stock to be valued to him, and he says to Mayfield, Have you any objection to give me possession of the farm?" It is said, that whatever may have been the treaty originally, there is no evidence to show that it was carried into execution by Wadsley; and if there were no other evidence in the case than that which I have stated, I am not prepared to say we could have inferred that the possession of George Mayfield was the possession of the defendant. But it appears further, that the defendant, a fortnight before the trial, acknowledged that he had paid 75l. on account of the money due for the wheat and the dead stock. It is clear, therefore that he either took possession himself and gave possession to Mayfield, or that Mayfield was originally put in by him; and therefore, that the possession of the one was the possession of the other. But it is contended, that as this was a verbal contract, partly for the sale of an interest in the land, and partly for goods, being void in part, it must be void in toto. Perhaps that might be so, if it had been one entire contract made at one time and for one price, but here, there were distinct contracts, and separate prices were fixed. In the first instance a bargain was made for the wheat at 2001. It may be inferred from the conversation, that some previous agreement had been made with respect to the giving up of the farm, but it does not appear what that contract was, or whether it included any stipulation about the wheat or dead stock; the only thing proved was, that a contract having first been made for the wheat at 2007., the witness pro*362] ceeded to value the dead stock, and after an interval of time, during which he had ascertained the value, he asked to whom it was to be valued, and the defendant said, "to him." That is the only evidence of any contract for the dead stock. I have no doubt therefore, that the plaintiff is, at all events, entitled to recover for the price of the dead stock which Mayfield VOL. X.-22

P

afterwards had. The defendant having paid 751. on account generally, and not having made any specific appropriation of that sum at the time of payment, the party receiving it was entitled to apply it to any just demand that he had upon him. He might, therefore, apply it the demand which he had in respect of the crops, and may fairly insist that the debt for the dead stock and the machine still remains; and that being so, the defendant can at most be entitled only to have the damages reduced. But if the court cannot order a nonsuit, then it becomes a question, whether we ought in this case to make a rule for reducing the damages. Supposing that the plaintiff cannot recover the residue on a declaration for crops bargained and sold, founded on the original contract, on the ground that it is void by the statute of frauds, yet I think he may recover on a declaration, stating that the defendant was indebted for the value of crops sown by the plaintiff on land in his possession, and which the defendant was allowed to take, and for which he promised to pay. If the plaintiff is in strict law entitled to recover part of his demand in this action, and in another form of action would be entitled to recover the residue, we ought not to reduce the damages in this case, for this would only have the effect of putting both parties to further expense, when the final result must be the same.

*BAYLEY, J. The defendant, in this case, bargained for the pos[*363 session of the farm for George Mayfield; he was identified with the defendant, and then his possession was the possession of the defendant, and the performance of the contract by him would be performance by the defendant. The jury have found, that the defendant did agree to pay for the wheat to be taken by George Mayfield. It is said that there was no evidence to justify the learned judge in leaving that question to the jury, but I think there was very strong evidence of such an agreement by the defendant. The plaintiff' asked the defendant if he would have the wheat at 2007. or not, and told him if he would not have it at that price, he should not have the farm; and then, when the witness asked to whom he was to value the dead stock, the defendant said "to me;" and afterwards, Wadsley says to Mayfield, "Have you any objection to give me possession of the farm," and then he promises that he will pay for the wheat and the dead stock on the 7th of March. He afterwards does pay 75/., on account of the wheat and the dead stock, and within a fortnight before the trial he acknowledges that he had so paid it. That circumstance shows that he contracted for the benefit of George Mayfield; for unless possession of the farm and goods had been delivered according to the contract, the defendant would no doubt have demanded to have the money back. If there was a delivery according to the contract there ought not to be a nonsuit; for then, as to the 447., the price of the dead stock, the statute of frauds is out of the question. The 751. paid on account cannot now be appropriated to that demand, inasmuch as the defendant did not so appropriate it at the time of payment. As to the residue of the demand for the crops, the defendant contracted for them as crops, and he, or May

field by his authority, received them as crops. Under these circum- [*364

stances, I am inclined to think that the statute of frauds does not apply, and that the plaintiff may recover in this action.

HOLROYD, J. I incline to think that the plaintiff is entitled to retain his verdict for the whole amount. There is abundant evidence to show that the contract has been executed, and that possession of the farm has been delivered to the defendant, or to George Mayfield, by his authority. The defendant, a fortnight before the trial, acknowledged that he had paid 751. and no more. Now if he had not had possession, he would have said that he was entitled to have that money back again, and if he had possession of the wheat, then, unless the case be within the statute of frauds, the plaintiff is entitled to recover his whole demand, In 1 Ld. Raymond, 182, Treby, C. J., said, that a sale of timber growing upon the land need not be in writing, because

it was but a bare chattel, and to that opinion Powel, J., agreed. In some cases, therefore, crops growing upon the land may be considered as goods and chattels, and crops agreed to be taken by an incoming of an outgoing tenant may be recovered under a count for goods bargained and sold. But it is said, that from what passed at the time of the appraisement, it appears that the parties bargained for an interest in the land. It seems to me that there was nothing more than a conditional agreement for the crops in the event of the defendant having the land. The taking of the land might have been by an *365] agreement with the *lessor, and if in that case a separate action had been brought against the defendant for not taking the farm, the conditional agreement for the goods would not have been avoided by the statute of frauds. But there was no evidence of any engagement that the offgoing tenant should assign his interest in the land to the defendant, and that might cease at Lady Day, when the possession was to be given up. He, therefore, had no interest in the land to part with; and that being so, the contract was not for the sale of any interest in the land, and the rule for a nonsuit must be discharged. I think also, that under the circumstances of this case, the defendant is not entitled to have the damages reduced.

LITTLEDALE, J. I think that George Mayfield and defendant are sufficiently identified, and that the case is to be considered as if the defendant had had the same benefit from the contract as George Mayfield; the verdict is, therefore, right for the price of the dead stock and for the machine, because even if there were a contract for the sale of an interest in land upon which no action would lie, still as a distinct price was to be paid for the value of the dead stock, the action would lie for the value of that, there being nothing to affect that part of the agreement. In equity and conscience it is clear that the defendant is liable to pay the full amount, but I have considerable doubt whether this or any other action can be maintained for the value of the growing crops. I think that in effect this was a contract relating to the sale of an interest in land. If the giving up of the land was any part of the consideration for the defendant's agreeing to take the wheat which was then sown in the land, the wheat must be considered as part of the land *itself. It *366] is true, that in some cases there may be a contract for the growing crops, independently of the land itself; but where the land is agreed to be sold, and the vendee takes from the vendor the growing crops, the latter are considered part of the land. It by no means follows, therefore, that because the crops formed the subject of a distinct valuation, they were the subject of a distinct contract of sale. Most of the cases where this question has arisen, were upon contracts for growing wheat, potatoes, and things of that nature, distinct from any assignment or letting of the land, and they have been held not to be within the statute. Here the agreement did not relate to the mere sale of the produce of the land. It does not distinctly appear what interest the plaintiff had, whether he was owner or tenant of the land, but I collect that he had some interest in him which would continue after Lady Day. The expressions used show that the plaintiff had a power to let the defendant have the land or not; then as the land was to be given up, I cannot help thinking that the crops were part of the land. Crops of corn may be sold under a fi. fa..but although crops are separately valued, yet, if they are transferred with the land, the party takes them as part of the land. In this case they were not made the subject of a distinct sale, but only of a distinct valuation. The consideration for paying the 2001. was not merely for the benefit of the crops, but the possession of the land for which the defendant had contracted: if the plaintiff had been the owner of the land, and this had been a parol letting, then, perhaps, he might have maintained this action. The contract for crops in that case would have been subsidiary to another parol contract, legal and binding, and not within the statute. So, if there had been an under lease; but if there is an assignment it is otherwise; then the statute

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