The plaintiff was in the actual possession of the hay when it was taken by the defendant. He had taken lawful possession of the farm, terminated the tenancy of Withington, *588harvested the hay and put it into the barn, as his own prop» erty. His title .to maintain the action is therefore clear, unless Lunt, under whom the defendant claims, had acquired a better title.

If the title of Lunt was a mere executory contract, the plaintiff had the same, and one earlier in date. Withington had agreed to leave all the hay cut on the farm for his use, and the consideration for this agreement had been paid. But there had been no delivery of the hay under this contract, and if there had been a sale and delivery of the grass to Lunt, his title became perfect.

The question upon which the case turns, therefore, is, whether plucking a handful of growing grass, and delivering it to a purchaser in the field, as in part execution of a contract of sale of the whole crop, is a good symbolical delivery of the whole ? We are all of opinion that it is not. The time when this act was done was the first day of June. The grass was but six inches high. It was therefore not fit to cut, and but partially grown. The agreement was that Withington should cut and cure it “ at a proper time;” and this time does not seem to have arrived until several weeks afterward, and when Withington’s estate in the land had terminated.

It is said that the symbolical delivery was all which the nature of th(e case would admit; and several cases have been cited in argument, in which such a delivery has been held to be sufficient. But these are all cases of actual chattels, as logs in a boom, or in a river, and the like; where the thing to.be delivered was capable of possession by one party as much as by the other; and where, by the intent and understanding of the parties, the delivery made was intended to transfer the immediate unqualified dominion of the property to the vendee. But in this case the grass was not fit to cut, and was not intended to be cut until it should have grown. There is nothing in the case to show that it was the product of the labor and skill of the tenant. As was said by Metcalf, J., in Stearns v. Washburn, 7 Gray, 188, “ until severed, the grass was not personalty, not goods or chattels, but was part of the realty.” And see the cases there cited-; and Empson v. Soden, 4 B. & Ad. 655.

*589There seems no difference in principle- between the effect of such a delivery as was made by Withington to Lunt, and a delivery of a handful of the roots of the grass in the autumn or winter, by a tenant for years, as a partial delivery on a sale of the successive crops for any number of years to which his tenancy might extend.

As the grass was not sowed by the tenant, it is conceded at the bar that the doctrine of emblements has no application. Graves v. Weld, 5B. & Ad. 111. And it may well be doubted whether it is ever applicable where the tenant’s estate is terminated under a notice to quit for non-payment of rent.

The verdict must be set aside, and judgment entered for the plaintiff upon the report.