The verdict in this case must be taken as a finding by the jury, upon competent evidence, that the relation of landlord and tenant existed between the parties as to the pasture at the time of the conversion complained of, and that both understood the apples in controversy were included in the pasturage. This understanding of the parties is of course conclusive upon the question of the plaintiff's right to the apples; but without it, his right to them would be none the less valid, because as tenant at will of the pasture he was entitled to its annual fruits, of which the apples were one.

The case standing precisely as if the statute of frauds did not exist, its interposition at the trial as a defence was properly without avail.

Exceptions overruled.

ALLEN, J., did not sit: the others concurred.