(Charge.) This is an action of traver for the recovery of grain, fodder and potatoes. Much has been [said] to you on both sides of this question. Defendants’ counsel have rested his case on two points: first, this grain etc. did not pass by the will of Burton Waples; second, if it did pass, the land was rented, and they are not answerable.
The Court are of opinion that when a man devises a tract of land, unless he makes an exception, the crop passes; it is expressly so laid down in Winch 52. There is an instance I remember in this state where I was a guardian to a ward whose father, William Rodney, had devised her a tract of land on which there was a crop not saved at the time of his death; I obtained the crop as guardian.
As to the lands having been rented, no construction can be given to that agreement that will make Levin Moore other than a cropper. We cannot consider him á tenant, and such a determination would be highly injurious. Mr. Blizzard was a tenant of the other place, and, so far as relates to him, if there is a misapplication of payment he is answerable. I do not say an action, will lie against him, but I say no action lies against these defendants for what they have received from him by this plaintiff.. Whatever was severed is the property of defendants as executors. When land is extended in England for payment of debts, the law says the rent belongs to him to whom it is delivered, and so whatever is growing on the ground passes to devisee.
Verdict for plaintiff for £135.
Motion for rule to show cause why a new trial should not be^ granted: first, because the jury were mistaken and gave excessive damages; second, because there was a misdirection.
Rule granted.