ment shows a sale of the land in such terms as to pass the trees. No reservation is made, and to permit the vendor now to show that there was a verbal agreement for their reservation, would be to permit him to prove a verbal contract, inconsistent with the legal import of that executed by the parties under their hands and seals. This the law forbids. We find nothing in the case to make it an exception to this familiar principle, and it is therefore unnecessary to advert to the evidence in detail. As the record shows that Price had actually removed a part of the shrubbery, and claimed the right to move much more, it was a proper case for an injunction, and the decree will be reversed and the cause remanded, with instructions to the court to proceed in conformity with this opinion. Decree reversed.1

ASSUMPSIT on account annexed, for $60, for money paid by the plaintiff to the defendant, for logs and down timber, the title to which, the plaintiff alleged, was not in the defendant at the time of sale. The writ also contained a count for money had and received for same amount.

It appeared from the report that the defendant owned, in the summer of 1863, a timber lot in Hermon; that he cut down a large number of hemlock trees thereon, peeled the bark therefrom and removed it from the lot, intending to prepare the trees by cutting off the tops and haul them off as logs to be sawed during the ensuing winter. The trees were severed from the stumps, and they lay as they fell, with the tops In the felling the choppers endeavored, so far as practicable, to have them lie in a good position for peeling and afterwards hauling them off.

on.

In the fore part of the fall of the same year, the defendant conveyed the lot by deed of warranty, without any reservations, to one Works. On the 20th of the following November, after Works had entered into possession of the lot under his deed, the defendant sold the hemlocks thus cut, to the plaintiff, by a bill of sale. To recover back the money

paid for the bill of sale, this action was brought.

Previous to the commencement of this suit, the plaintiff demanded the hemlocks of Works, who refused to deliver them or permit the plaintiff to take them. Thereupon the plaintiff sued Works in trover therefor, and entered his action in court, which action was continued from term to term for several terms, when that action was by agree

1 See Noble v. Bosworth, 19 Pick. 314, post; Strong v. Doyle, 110 Mass. 92.

ment of parties entered "neither party." At a certain term of the court, during the pendency of that action, the plaintiff wrote to the defendant, then residing at Manchester, N. H., asking him to come to Bangor as a witness. The defendant went to Bangor at the time requested. For his travel and attendance as a witness, he filed an account in set-off in this action.

The court were to render such judgment as the legal rights of the parties entitled them to.

D. D. Stewart, for the plaintiff.

A. W. Paine, for the defendant.

APPLETON, C. J. This is an action brought to recover the price of certain logs sold by the defendant to the plaintiff. The claim is based upon an alleged failure of the defendant's title.

The defendant, while owning a lot of land in Hermon, cut down a quantity of hemlock trees thereon. After peeling the bark therefrom and hauling it off the land, he conveyed the lot to one Works, by deed of warranty, without any reservation whatever. At the date of this deed, the hemlock trees in controversy were lying on the lot where they had been cut, with the tops remaining thereon.

The defendant, after his deed of the land to Works, conveyed the hemlocks cut by him to the plaintiff. Works, the grantee of the defendant, claimed the same by virtue of his deed. The question presented is whether the title to the logs is in the plaintiff or in Works.

Manure made upon a farm is personal property, and may be seised and sold on execution. Staples v. Emery, 7 Greenl. 201. So, wheat or corn growing is a chattel, and may be sold on execution. Whipple v. Tool, 2 Johns. 419. Yet it is held that growing crops and manure, lying upon the land, pass to the vendee of the land, if not excepted in the deed (2 Kent, 346), or by Statute, as in this State by R. S. c. 81, § 6, clause 6. Fencing materials on a farm, which have been used as a part of the fences, but are temporarily detached, without any intent of diverting them from their use, as such, are a part of the freehold, and pass by a conveyance of the farm to a purchaser. Goodrich v. Jones, 2 Hill, 142. Hop-poles, used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop and piled in the yard, with the intention of being replaced in the season of hopraising, are part of the real estate. Bishop v. Bishop, 1 Kenan, 123.

Timber trees, if blown down, or severed by a stranger, pass by a deed of the land. "We think that it cannot admit of a doubt," remarks Richardson, C. J., in Kittredge v. Wood, 3 N. H. 503, "that trees felled and left upon the land, fruit upon trees, or fallen and left under the trees where it grew, and stones lying upon the earth, go with the land, if there be no reservation." The hemlock trees were lying upon the ground. The tops and branches were remaining upon them. They were not excepted from the defendant's deed, and, being in an unmanufactured state, they must, from analogy to the instances already cited, pass with the land. Such, too, is the Statute of 1867, c. 88, defining

the ownership of down timber. It would have been otherwise, had they been cut into logs or hewed into timber. Cook v. Whitney, 16 Ill. 481.

The defendant, at the plaintiff's request, travelled from another State, as a witness, to testify for him in his suit against Works. He claims to have his fees allowed in set-off in this suit. His account in set-off was regularly filed. He is entitled to compensation therefor, which, as claimed, will be travel from his then place of residence, and attendance, in accordance with the fees established by Statute.

CUTTING, KENT, WALTON, DICKERSON, and BARROWS, JJ., concurred. TAPLEY, J., did not concur.

THIS was an action of trespass vi et armis, commenced in the year 1860, and tried before his Honor, Judge Russell, at the Spring Term, 1870, of the Superior Court of Bladen county, upon the issue joined on the plea of not guilty.

The plaintiff declared for the loss of certain turpentine, some in barrels and some on the trees, and for an injury to his slaves, caused by the defendant in going upon a tract of land which the plaintiff held under a lease, and driving off his slaves and seizing the turpentine. The testimony disclosed the fact that the plaintiff was engaged in making turpentine with another person, and that they were partners, that the turpentine which had been lost was the property of the partnership, and that the slaves alleged to have been injured were the property of the plaintiff alone, and the injury to them was his individual loss, and not that of the partnership. The defendant contended that the plaintiff could not recover because of the non-joinder, but the court held that the defendant could not take advantage of the non-joinder under the general issue, and that the plaintiff could recover his proportional share of the loss, and to this ruling the defendant excepted.

The defendant also contended that the plaintiff could not recover both for the injury to his slaves, and for the damage sustained as a partner for the loss of the turpentine, but the court held otherwise, and the defendant again excepted.

There was evidence that a large part of the turpentine consisted of what is called "scrape," being that portion which does not run into the box but remains on the face of the tree, and which is removed after it

1 See Noble v. Sylvester, 42 Vt. 146, post.

has formed in sufficient quantity, by scraping it from the tree. It was proved that the lease under which the plaintiff held, had expired before the trespass was committed, and the defendant contended that the plaintiff could not recover for the scrape turpentine remaining on the trees.

His Honor charged the jury that if the plaintiff had cultivated the trees and manufactured the scrape it was his property, and was not a part of the tree going with the realty, and that the plaintiff had a right to remove it, although his lease might have expired, and if the defendant drove away his slaves and prevented them from removing it the plaintiff could recover for the loss of it.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

W. McL. McKay, for the defendants.

Bragg and Strong, for the plaintiff.

DICK, J. Crude turpentine which has formed on the body of the tree, and is usually known as "scrape," is personal property, and belongs to the person who has lawfully produced it by cultivation. State v. Moore, 11 Ire. 70. It is an annual product of labor and industry, and although it adheres to the body of the tree it is not a part of the realty. The turpentine crop may be properly classed with fructus industriales, for it is not the spontaneous product of the trees, but requires annual labor and cultivation. Upon a similar principle, hops which spring from old roots have long been regarded as emblements.

A lessee of turpentine trees, even after the expiration of his lease, has the right of "entry, egress and regress to remove the "awaygoing crops" which he has produced by his labor, provided he does so within reasonable time. He has a right to the occupation of the premises for that purpose, and if this right is refused by the owner of the land, the lessee is entitled to recover the value of the property detained. Brittain v. McKay, 1 Ire. 265.

The "scrape" must be removed before the sap begins to flow in the subsequent spring, for then the new turpentine mingles with the old scrape," which cannot be taken away without interfering with the rights of the owner of the trees.

66

In this case, it appeared, that the lease of the plaintiff had terminated, but there was no evidence as to the time when he entered for the purpose of removing the "scrape."

The charge of his Honor was, therefore, too general in its terms, as the plaintiff had no right of entry after the new turpentine had begun to flow, and for this error there must be a venire de novo.

The question of pleading raised on the trial by the defendant's counsel is attended with some difficulty on account of the change in our system of procedure. At common law in actions in form ex delicto, and which are not for the breach of a contract, if a party who ought to join, be omitted, the objection can only be taken by a plea in abatement, or by way of apportionment of damages on the trial; and the

defendant cannot, as in actions in form ex contractu, give in evidence the non-joinder as a ground of nonsuit on the plea of the general issue. 1 Chitty, P. 76.

Under the C. C. P. § 8, par. 1, all civil actions pending in the courts when the present Constitution was approved by Congress, and which were not founded on contract, are to be governed by the C. C. P., "as far as may be according to the state of the progress of the action, and having regard to its subject, and not to its form." A different provision is make as to actions founded upon contracts made previous to the C. C. P. Merwin v. Ballard, at this term.

The C. C. P. § 62, provides that the parties who are united in interest must be joined as plaintiffs or defendants, &c. If a necessary party to an action be omitted, and the defect appears upon the face of the complaint, the non-joinder must be taken advantage of by demurrer. C. C. P. § 95. If it does not appear upon the face of the complaint, the objection may be taken by answer. C. C. P. § 98. "If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.' C. C. P. § 99. It does not appear from the transcript at what term of the court the issues were joined in this case, and the defendant might have put in a plea in abatement at any time before pleading in bar of the action. If the issues were not joined when the case was transferred to the Superior Court, he would have been entitled to have objected to the nonjoinder of a necessary party by answer, as the defect does not appear in the pleadings. As the defendant went to trial without taking any such objection, the charge of his Honor must be sustained.

Venire de novo awarded. Let this be certified.

On the sale of growing timber and crops, see Langdell, Cases on Sales.