Smith v. Jenks
Court for the Trial of Impeachments and Correction of Errors
Error to the Madison common pleas. Smith sued Jenks in trespass, before a justice of the peace for taking a quantity of hay. The defendant pleaded the general, issue and gave notice of special matter.
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Error to the Madison common pleas. Smith sued Jenks in trespass, before a justice of the peace for taking a quantity of hay. The defendant pleaded the general, issue and gave notice of special matter. On the trial before the justice, the plaintiff proved a purchase of the hay by himself, on a sale upon execution against Arnold, in September, 1843, the hay having been cut upon land belonging to Hunt, which was occupied by Arnold as a tenant, and at the time of the sale being in a stack in the possession of Arnold; and that the defendant had subsequently taken it away and converted it to his…
1Opinion of the Court
By the Court, Jeavett, J.
The grass of Avhich the hay in question Avas made, Avhen mortgaged Avas growing on land occupied by Arnold,'the mortgagor, as a tenant to one Hunt. Both parties claimed through him, thereby assuming that he, by some agreement, made betAveen him and Hunt, had title to the property in it. This being so, I am unable to see any legal objection to his capacity to sell or mortgage the grass at the time he executed the mortgage to the defendant, so as to pass to the vendee or mortgagee his interest in it. It is true that growing grass, as a general principle, does not come…
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