sions to their end, that an executed settlement of great or small amounts for lesser sums is good when lagnappe is given, not on account of the payment of the money and the agreement of the parties, but because of the lagnappe being given.

It was universally held at common law that a release under seal, either with or without partial payment, was a good accord and satisfaction, and took the case out of the rule. Jaffray v. Davis, 124 N. Y. 164, 11 L. R. A. 710, 26 N. E. 351, 1 Am. & Eng. Enc. Law, 2d ed. p, 415; 1 Cyc. Law & Proc. p. 323. The seal had magic to import a consideration. Hence a release to which a piece of sealing wax was attached was good, while the same release without the piece of wax was worthless. The distinction between sealed and unsealed instruments is almost universally abolished, and yet the conservatism of the courts has seemingly restrained them from giving now the same effect to a written release of the whole debt, which such release would have had, as a sealed instrument. Connecticut and Vermont have given that effect to a

to consider it." 1 Cyc. Law & Proc. p. 321. | Am. & Eng. Enc. Law, 2d ed. pp. 414-419. Notwithstanding these criticisms, except I brief, the law is, following those deciwhen changed by statutes the courts most generally adhere to it. Id. p. 319, and cases in notes; 1 Am. & Enc. Law, 2d ed. p. 413, and notes. While adhering to the rule, the courts will not extend it "beyond its precise import," and will not inquire into the adequacy of the supporting consideration. Hastings v. Lovejoy, 140 Mass. 261, 54 Am. Rep. 462, 2 N. E. 776. The court of appeals of New York, in following the rule, said: "This rule has been criticized as unsound and unjust in cases where the lesser sum is accepted in full satisfaction of the greater. [Citing cases.]" McKenzie v. Harrison, 120 N. Y. 260, 8 L. R. A. 257, 17 Am. St. Rep. 638, 24 N. E. 458. That same distinguished court said later: "The steadfast adhesion to this doctrine by the courts, in spite of the current of condemnation by the individual judges of the court, and in the face of the demands and conveniences of a much greater business, and more extensive mercantile dealings and operations, demonstrates the force of the doctrine of stare decisis. But the doctrine of stare decisis is further illustrated by the course of judicial decisions upon this sub-receipt. "The general principle laid down ject, for while the courts still hold to the doctrine of the Pinnel Case, 5 Coke, 117a, and Cumber v. Wane, 1 Strange, 426, they have seemed to seize with avidity upon any consideration to support the agreement to accept the lesser sum in satisfaction of the larger, or, in other words, to extract, if possible, from the circumstances of each case a consideration for the new agreement, and to substitute the new agreement in place of the old, and thus to form a defense to the action brought upon the old agreement." Jaffray v. Davis, 124 N. Y. 164, 11 L. R. A. 710, 26 N. E. 351. The court in the above case reviews many decisions where the accord was supported on various grounds, and some are interesting and amusing. The payment at York of a lesser sum than was due at Westminster is good. The payment in a check for a less sum is good. The giving of a negotiable note for the lesser sum, of either the debtor or some other party, is good. If the note or evidence of the debt be surrendered, it is good. If any security, however trivial, is taken, it is good. In short, "if there be any benefit, or even any legal possibility of benefit, to the creditor, thrown in, that additional weight will turn the scale, and render the consideration sufficient to support the agreement." Ibid. Numerous other instances may be found where accepting chattels, goods, lands, or any thing else of less value than the debt, if it be other than what the article represents, money,-will be good. See notes 1

with regard to receipts in full has long been the settled law of this state, whatever it may be elsewhere. The receipt in this case, unless impeached for fraud or mistake, was valid, and discharged the whole debt, though given for a payment that was in itself but a part of the entire debt." Aborn v. Rathbone, 54 Conn. 444, 8 Atl. 677. The rule in Vermont seems to be that a receipt for a lesser sum purporting to discharge the whole sum is prima facie a discharge of it, and is subject to attack only for fraud, mistake, and the like grounds. Holbrook v. Blodget, 5 Vt. 520; Stephens v. Thompson, 28 Vt. 77; Ashley v. Hendee, 56 Vt. 209; Guyette v. Bolton, 46 Vt. 228. In Mississippi the court has gone much farther than this, and has completely cut away from the rule in Pinnel's Case; and of it, in Clayton v. Clark, 74 Miss. 499, 37 L. R. A. 771, 60 Am. St. Rep. 521, 21 So. 565, 22 So. 189, Chief Justice Woods, speaking for the court, said: "The absurdity and unreasonableness of the rule seem to be generally conceded, but there also seems to remain a wavering, shadowy belief in the fact, falsely so called, that the agreement to accept, and the actual acceptance of, a lesser sum in the full satisfaction of a larger sum is without any consideration to support it; that is, that the new agreement confers no benefit upon the creditor. However it may have seemed three hundred years ago in England, when trade and commerce had not yet burst their swad

dling bands, at this day and in this country, | In Reynolds v. Reynolds, 55 Ark. 369, 18 where almost every man is in some way or S. W. 377, a statement of the rule by Lord other engaged in trade or commerce, it is as ridiculous as it is untrue to say that the payment of a lesser part of an originally greater debt, cash in hand, without vexation, cost, and delay, or the hazards of litigation in an effort to collect all, is not often, nay, generally, greatly to the benefit of the creditor. Why shall not money, the thing sought to be secured by new notes of third parties,-notes whose payment in money is designed to be secured by mortgage, and even negotiable notes of the debtor himself why shall not the actual payment of money, cash in hand, be held to be as good consideration for a new agreementas beneficial to the creditor-as any mere promises to pay the same amount, by whom soever made and howsoever secured? And why may not men make and substitute a new contract and agreement for an old one, even if the old contract calls for a money payment? And why may one accept a horse worth $100 in full satisfaction of a promissory note for $1000, and be bound thereby, and yet not be legally bound by his agreement to accept $999, and his actual acceptance of it, in full satisfaction of the $1000 note? No reason can be assigned, except that just adverted to, and this rests upon a mistake in fact. And a rule of law which declares that under no circumstances, however favorable and beneficial to the creditor, or however hard and full of sacrifice to the debtor, can the payment of a less sum of money at the time and place stipulated in the original obligation, or afterwards, for a greater sum, though accepted by the creditor in full satisfaction of the whole debt, ever amount in law to satisfaction of the original debt, is absurd, irrational, unsupported by reason, and not founded in authority, as has been declared by courts of the highest respectability and of last resort, even when yielding reluctant assent to it. We decline to adopt or to follow it."

Ellenborough in Fitch v. Sutton, 5 East, 230, is qouted and followed. In Gordon v. Moore, 44 Ark. 349, 51 Am. Rep. 606, there was, while recognizing the old rule, a practical breaking away from it. Moore executed a release in consideration of $450 of a judgment for $2,993.20, and authorized the clerk to enter satisfaction. The release recited, "Witness my hand and seal," but bore no seal, and was executed in 1882, after the distinction between sealed and unsealed instruments was abolished. Const. 1874, § 1. Judge Eakin said: "It would be hard and unreasonable if a creditor pressed for money might not say to an embarrassed or reluctant debtor, 'Pay me a part, and I will release the balance.' He is cut off from doing that in many cases by the rule as it now stands, but the rule is a hard one, based upon purely technical reasoning. It is hedged in with numerous exceptions." The result reached was thus stated: "We conclude, therefore, that an agreement by a creditor to accept a smaller sum in satisfaction of a debt, carried into execution by receipt of the money, and the execution or a formal and positive instrument of release, with all other acts essential to an absolute relinquishment of his right, is a valid and irrevocable act." Thus it is seen Gordon v. Moore recognized and sustained a written release not under seal, and practically placed this court in line with Connecticut and Vermont, which accord such effect to a receipt in full. In Heaslet v. Spratlin, 54 Ark. 185, 15 S. W. 461, a parol release sustained alone by the evidence of the party claiming it was held not to be an accord and satisfaction; the court merely referring to Gordon v. Moore. The question then becomes important to determine what constitutes a release. Mr. Beach says: "The proper words of a release are remise, release, quitclaim, and acquit. Any expressions, however, which denote the intention of the one party to discharge the other are sufficient." 1 Beach, Modern Law of Contracts, § 460. The receipt in full of a given sum in full satisfaction of a larger one certainly conveys the intention to dis

The first appearance of the rule in Pinnel's Case in Arkansas was in Pope v. Tunstall, 2 Ark. 209. The court adhered to the doctrine, but pointed out numerous exceptions to it,-if the accord was at a differ-charge the party of the debt thus expressly ent place; the payment in a chattel; pay- stated to be discharged, as "remise, release, ment of less sum by a third person; mutual quitclaim, and aquit." The release in Gorpromises entering into the agreement, etc. don v. Moore did not use these technical The court quoted this criticism: "That terms, but “release said Childress from any there was more nicety than good sense in and all liability," on the judgment, and ausome of the cases on this subject; that ac- thorized its satisfaction. Mr. Daniels says: cords are favored in law, and therefore "A release is technically an instrument under ought not to be too rigorously expounded." seal, the seal importing a consideration. In Cavaness v. Ross, 33 Ark. 572, the rule But the release of a party to a bill or note originating in Pinnel's Case was quoted by any agreement, upon a valuable considerfrom text writers, followed, and applied.ation, is as effectual as if made under seal.”

8 Am. & Eng. Enc. Law, 2d ed. p. 303, note 5; Cobbey, Replevin, § 73; Matlock v. Fry, 15 Ind. 483; Frank v. Harrington, 36 Barb. 415; Miller v. Baker, 1 Met. 27; Hendrickson v. Ivins, 1 N. J. Eq. 562; Baker v. Jordan, 3 Ohio St. 438; Backenstoss v. Stahler, 33 Pa. 251, 75 Am. Dec. 592; 3 Parsons, Contr. 9th ed. p. 31; Dunne v. Ferguson, Hayes. Exch. 540; 1 Warvelle, Vendors, §§ 163-165; Hensley v. Brodie, 16 Ark. 511.

2 Dan. Neg. Inst. §1290. The consideration | for the purpose of seizure and sale upon atfictitiously imported to the release by the tachment or execution, and may be encumwax affixed to the name no longer exists, but | bered by chattel mortgage. The crops may this court enforced a release without it. be orally sold separate and apart from the thereby recognizing that a written release land, and the purchaser of said crops may was valid without the seal. When a receipt maintain replevin therefor. and a release in this respect amount to exactly the same thing, evidencing a discharge of one party of the other, it is useless to preserve a distinction without a difference. Business and commercial affairs adjust themselves along practical, and not technical, lines. The court might well place its decision under the facts in this case on some of the numerous exceptions to the doctrine of the Pinnel Case, but it prefers to call a halt in refining away a rule "which has been more honored in the breach than the observance." It is therefore held that when an agreement is fully executed to discharge a debt by the payment of a smaller sum, and such discharge is evidenced as it usually is, in practical business affairs, by a written recipt for the lesser sum in full satisfaction of the greater sum, it is"a valid and irrevocable act."

McCulloch, J., delivered the opinion of the court:

The question involved in this appeal is whether growing strawberry plants, attached to the soil, can be the subject of replevin. Appellant, who was plaintiff below, sued in replevin for the strawberry plants growing on the land of appellee; claiming the plants under an alleged parol contract for the purchase of same. Defendant answered, denying that he had agreed to sell the plants in controversy to appellant. At the trial below there was testimony tending to show that appellee had verbally agreed to sell to appellant all the strawberry plants on a certain tract of land, and that after appellant had removed a part of them a controversy arose between them as to the number of plants appellee had agreed to sell, and this suit was brought in consequence of the disagreement. The court held that the suit could not be maintained, and directed the jury to return a verdict in favor of the defendant, which was done.

Replevin is strictly a possessory action for the recovery of personal property, and, in order to recover, the plaintiff must be the legal owner and entitled to the possession at the time of the commencement of the action.

Cobbey, Replevin, §§ 27, 73. So the right of recovery in this case must turn upon the question whether the strawberry plants sued for are to be treated as chattels, or part of the land upon which they were growing. Many distinctions abound in the books as to the rules in determining the character of property in fruits of the soil, attached thereto,--whether they are to be considered chattel interests or as a part of the realty, the distinction most frequently referred to being that between such as are natural products of the soil, fructus naturales, and fructus industriales, though this distinction is rejected by many courts, and others adopted. The pioneer English decision on the subject

Vu

seems to have been one by Chief Justice Trê- | section of the statute of frauds, and must be by, at nisi prius, reported by Lord Ray- proved by writing; but where the thing is mond in Littlewood v. Smith, 1 Ld. Raym. sold in prospect of separation from the soil 182, in which it was said that timber grow- immediately, or within reasonable and coning upon land might be sold by parol, “be- venient time, without any stipulation for cause it is but a bare chattel;" the court the beneficial use of the soil, but with a rejecting all distinction between natural and mere license to enter and take it away, it industrial products. This statement is by is to be regarded as substantially a sale of Mr. Baron Hullock, in Scorell v. Boxall, 1 goods, only, and so not within that section Younge & J. 396, pronounced to be mere of the statute. The question thus dictum; but the doctrine is later fully ap- turning upon the intention of the parties proved by English judges. In the case of and the nature of the contract, it would Marshall v. Green, L. R. 1 C. P. Div. 35. seem to be of no importance whether the the distinction between fructus naturales thing sold is to be severed from the soil by and fructus industriales, as a test of the ap- the vendor or the vendee, whether it is to be plication of the statute of frauds, was re- paid for by particular admeasurement or in jected, and the rule announced by Treby, Ch. the gross, or whether the subject of sale conJ., fully approved. In Browne on Statute of sists of trees and other spontaneous proFrauds, 254b, the author, in discussing ducts, or of fructus industriales." 1 Greenthe above-cited case and the tests therein re- leaf's Cruise, Real Prop. p. 55, note 1. The ferred to, says: "Those tests had, it is true, doctrine announced has been declared by the sanction of previous decisions, but nei- many of the courts of this country. Cutler ther of them had proved satisfactory or been v. Pope, 13 Me. 377; Cain v. McGuire, 13 uniformly followed. The doctrine which B. Mon. 340; Smith v. Bryan, 5 Md. 151, laid down one rule for the sale of fructus 59 Am. Dec. 104; Bostwick v. Leach, 3 Day, naturales, and another for the sale of fruc- | 476; McClintock's Appeal, 71 Pa. 365: tus industriales, is objectionable, because Sterling v. Baldwin, 42 Vt. 306. Courts of founded narrowly upon consideration of the other states adhere to the distinction beownership of the crop, not at all upon con- tween natural products and fruits of indussideration of the condition of the sale." The try, and hold that an oral sale of the latter same learned author says (§ 257a): "Where is held sufficient, but of the former insufsuch an agreement [for sale of growing ficient, to pass title before severance. products of the soil] makes part of the licevich v. Skinner, 77 Cal. 239, 19 Pac. 424; transaction, it seems clear that an interest Armstrong v. Lawson, 73 Ind. 498; Smock in land is contracted for and agreed to be v. Smock, 37 Mo. App. 56; Hirth v. Gragiven. But where, as in Marshall v. Green, ham, 50 Ohio St. 57, 19 L. R. A. 721, 40 Am. there is no agreement that the goods shall St. Rep. 641, 33 N. E. 90; Slocum v. Seyremain on the vendor's land.-the vendee's mour, 36 N. J. L. 138, 13 Am. Rep. 432; right to come in and take away what he has Carson v. Browder, 2 Lea, 701; Howe v. bought not depending upon any contract or Batchelder, 49 N. H. 204; 2 Schouler, Pers. agreement, but being a mere incident of his Prop. § 452; 1 Warvelle, Vendors, § 163. purchase, arising by implication of law, and This court held, in Kendall v. J. I. Porter not subject to revocation by the owner of Lumber Co. 69 Ark. 442, 64 S. W. 220, that the land, the contract is for the sale, not a deed conveying growing trees, and authorof land, but of goods, and this independent-izing the grantee to remove them from the ly of the nature of the growth sold." Prof. Greenleaf says: "Though all that grows on the soil, whether spontaneously or by culture, ordinarily passes with the land, yet trees, grass, crops, and other things fixed to the soil, and so part of the realty, may be the subject of a separate sale, in the prospect of severance, and in that case will be regarded as personal chattels, if so treated by the parties. The cases on this muchvexed subject are extremely contradictory. but the principle now most generally recognized seems to be this: That, in contracts for the sale of things annexed to and growing upon the freehold, if the vendee is to have a right to the soil for a time for the purpose of farther growth and profit of that which is the subject of sale. it is an interest in land, within the meaning of the 4th

soil within a definite time, was a conveyance of an interest in the soil, within the purview of the registration laws.

Without undertaking to discriminate between the line of authorities herein cited. we hold that the property sued for in this case falls clearly within the classification of fruits of industry, and not natural products. According to either of the lines of authorities cited, it must be treated as personal property, and the subject of replevin. Cobbey, Replevin, § 73; Shinn, Replevin, §§ 226, 227; Wells, Replevin, §§ 74, 75; Matlock v. Fry, 15 Ind. 483; Garth v. Caldwell, 72 Mo. 622.

The court erred in directing a verdict for defendant.

Reversed and remanded for a new trial

WISCONSIN SUPREME COURT.

both inclusive, Rev. Stat. 1898, into County in favor of plaintiffs in an action