ri (Jortt^U ICaui i>rl|ool ICihtaty KF 636.E94T905'''''"'''''-'''"^ j"| '•■eatise on the law of fixtures 3 1924 018 800 866 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018800866 A TREATISE ON THE LAW OF FIXTURES BY MARSHALL D.^^EWELL, LL. D. SECOND EDITION EDITED AND ANNOTATED BY FRANK HALL CHILDS, LL. B. CHICAGO CALLAGHAN & COMPANY 1905 Copyright 1876 BY CALLAGHAN & COMPANY Copyright 1905 BY CALLAGHAN & COMPANY C3C CENTRAL TYPESETTING CO. CHICAGO AUTHOR'S PREFACE No treatise upon the subject of Fixtures professing to give anything like exhaustive references to the numerous cases on the subject in England and the United States having been pub- lished since the publication, in the year 1855, of the American edition of Ferard on Fixtures, no apology for the presentation of this volume to the profession is deemed necessary, in the preparation of which no labor has been spared to make the references to the adjudged cases upon the subject, both in Eng- land and the United States, as complete as the defective indexes to many of the volumes of reports of adjudged cases would permit. Since the publication of the work above referred to, cases upon the subject have multiplied to a considerable extent ; and with the multiplication of the cases, the conflict of authority upon many questions (already sufficiently distressing to persons having occasion to examine the subject) has increased to such an extent that it is scarcely an exaggeration to state, as was observed by Bacon, J., in Noyes v. Terry,i that a judge might, in any given case, decide either way without much danger of having his judgment impeached, or of failing to find some authority to support it. Such being the case, the author has endeavored to deduce from the eases the principles of decision which seemed to him to be best supported by reason, as well as authority, and to present the same with references to the 1 1 Lans., 220 (1869). In referring to the same subject, Lynch, J., in Be Trevey, 14 L. T., N. S., 193 (1866), said: "Perhaps there are no subjects in law more difficult to deal with than the question raised as to fixtures and the several relationships of property that are allowed to influence decisions as to them. The cases are legion; and each new case seems only the more to disturb any fixed or certain rule that seemed deducible from former cases, and, indeed, on most questions on this subject, a court can easily give precedents that seem to uphold the doctrine it arrives at or is anxious to arrive at. ' ' See, also, chap. 1, Definitions. [See remarks of Justice Bake- well in Goodin v. EUeardsville Hall Ass'n, 5 Mo. App., 289, 293 (1878).] iii iv authoe's preface. authorities supporting them, at the same time referring in the notes to such eases in opposition thereto as came to his notice. The notes will also be found to contain quite full statements of such cases as seemed to merit the space thereby occupied; and, if the author has in some instances erred in judgment in his statement of principles (as it would be presumption for him to suppose that he has not), he has at least furnished the means of verifying his statements, and correcting any errors that may be found to exist. The scope of the work involving the presentation of the whole law upon the subject so far as deducible from the English and American reports, it has not been deemed advisable entirely to omit even those portions of the English law upon the subject which have become either partially or entirely obsolete, been changed by statute, or which are inapplicable to this country. Such topics have accordingly been presented, and will, it is be- lieved, be found of sufficient historical interest (if not, also, of some practical value) to warrant the small space thereby occu- pied. The general plan and method of classification adopted throughout the work are substantially the same as those adopted by Mr. Perard and most other authors who have treated the subject, with which the profession have become familiar, and for changing which there seemed no sufficient reason. Several supplemental chapters and sections have, however, been rendered necessary by the changes effected by later eases, which have ac- cordingly been inserted in what seemed their natural order. In submitting this volume to the judgment of the profession, the author can not do better than to adopt the language of Bel- lewe in the preface to his volume of Cases temp. Richard II. : — "Befeeching you that where you fhall finde any faultes, which either by my infufficiency, the intricatenes of the worke, or the Printer's recklefnes are committed, either friendly to pardon, or by feme meanes to admonifh me thereof." Marshall D. Ewell. Chicago, October, 1876. EDITOR'S PREFACE TO THE SECOND EDITION This edition has been prepared at the request of Dr. Ewell, with whom the editor has been associated for many years both in college and office work. About "three thousand new eases have been added, bringing the subject down to date. The pag- ing of the first edition is retained, all of the new matter appear- ing in brackets in the notes. Some of the new cases decide points which have already been settled, and such eases are merely cited in the proper place ; yet many new points have been passed upon since the publication of the first edition, and those eases have been incorporated in the proper place. Citations to the National Reporter System, Lawyers' Reports Annotated, Ameri- can Decisions, American Reports, American State Reports, etc., will be found in the Table of Cases. Although the former edition was supposed to be practically exhaustive in the citation of cases, the editor has discovered a number of eases which were inadvertently omitted, and these have been included with the new eases. The tendency of the courts is more and more towards liber- ality in regard to the right to remove fixtures, realizing as Lord Justice Lindley remarked-in Hill v. ^uUock [1897], 2 Ch., 483, that "there is such a thing as common sense" in determining whether a fixture is removable, though occasionally a court is found which laments the lack of a rigid rule to apply to every state of facts. The courts of the eastern states seek in every way to modify the hardship of their earlier decisions which were based upon the old common law decisions made when our ancestors held an exalted opinion of the importance of real property, and when the tendency was to concentrate landed in- terest in few hands ; and even in conservative England decisions are now rendered which would have appalled the Justices of T VI EDITOR S PREFACE. half a century ago. The courts of our western states, not- being so rigidly bound by the doctrine of stare decisis, are inclined to adopt a liberal rule when questions in regard to fixtures have come before them for the first time. The editor has tried to do his work thoroughly and conscien- tiously, and hopes that his efforts may be of use to the profes- sion. Frank Hall Childs. Chicago, February, 1905. PREFATORY NOTE BY THE AUTHOR. This edition has been most carefully prepared by Mr. Childs under my direction; and I feel confident that it will be found to be both accurate and exhaustive. Marshall D. Ewell. Chicago, February, 1905. CONTENTS [BBFIOIBNCES ABB TO THB BOTTOM FAQBS.] CHAPTER I. FAGB. DEPINITIOlSf AND NATUEE OF FIXTURES 1 I. — Definitions 1 II. — Tests as to whether a Fixture or not; — ^Annexa- tion 13 III. — Constructive Annexation . , 45 IV.— Intention 53 V. — Severance 62 CHAPTER II. Of the Right to Fixtures, as between the Owner of THE Freehold and a Stranger making Annexa- tions thereto 77 CHAPTER III. Of the Legal Effect of Annexation of Chattels to THE Soil of another with his Consent, or under A Contract, express or implied, as to their Re- moval 102 CHAPTER IV. Of Fixtures as between Landlord and Tenant 121 I. — Trade Fixtures and Mixed Cases 126 II. — ^Agricultural Fixtures 166 Manure 179 III. — Fixtures set up for Purposes of Ornament or Convenience, or for Domestic Use 184 IV. — ^When the right of Removing Fixtures must be Exercised 197 vii Viil CONTENTS. [REFERENCES ARE TO THE BOTTOM PAGES.] PAGE. v.— Of the Right of Eemoving Fixtures as Affected by Special Agreements in relation thereto . . . 215 Covenants to Repair, etc., and to Yield up in Repair 233 Effect of Contracts entered into subse- quently to the Original Demise 252 CHAPTER V. Op Fixtures as Between Tenants for Life or in Tail AND Their Personal Representatives, and the Remainderman or Reversioner 263 I. — ^As Between Tenants for Life or in Tail during their Lives, and the Remainderman or Re- versioner 264 , First. Tenants for Life 264 Second. Tenants in Tail 267 II. — Of Trade Fixtures and Mixed Cases, as between the Personal Representatives of Tenant for Life or in Tail, and Remainderman or Re- versioner 269 III. — Of Ornamental and Domestic Fixtures, etc., as between the Personal Representatives of Tenant for Life or in Tail, and Remainder- man or Reversioner 276 IV. — Of the Right of Ecclesiastical Persons and their Representatives to Fixtures — ^Dilapidations. . 285 y. — "Within what Time the Right of Removing Fix- tures as between the Personal Representa- tives of Tenant for Life or in Tail, and the Remainderman or Reversioner must be Exer- cised 293 CHAPTER VI. Op Fixtures as between Heir and Executor 295 CHAPTER VII. Charters, Heir-Looms, etc 314 I.— Charters 314 CONTENTS. iX [KlrEKENCES -iRB TO THE BOTTOM PAGES.] PAGE. II.— Heir-Looms 318 III. — Annexations to the Freehold of the Church 324 IV.— Deer, Fish, etc 327 CHAPTER VIII. Emblements, etc 332 CHAPTER IX. Op the Transfee of Fixtures by Conveyance, Mort- gage, Devise, in case of Bankruptcy, etc. ; Regis- tration ; Statute of Frauds, etc 378 I. — The Question as Uninfluenced by any Specific Intention 387 II. — The Question as Affected by the Words of the Grant, Contract, etc 461 III. — When Fixtures Pass by Devise or Bequest 473 IV. — Of the Relation, Sustained by Recording Acts to the Law of Fixtures 478 The Bills of Sale Act 490 V. — ^Bankruptcy, etc 502 VI. — Of the Sale of Fixtures as Affected by the Statute of Frauds 513 VII. — Stamp Acts as Relating to Fixtures. 517 VIII.— Estoppel 517 IX. — ^Agreements as to Valuation of Fixtures 523 CHAPTER X. Of the Seizure and Sale of Fixtures on Execution 537 I. — As against the Owner of the Fee 537 II. — ^As against a Tenant 544 CHAPTER XI. Of the Exemption op Fixtures, etc., prom Distress 549 CHAPTER XII. Op Rights and Liabilities Respecting Land as Increased IN Value by the Annexation of Personal Chat- tels 557 X CONTENTS. [KBFEHENCES ABB TO THE BOTTOM PAGES.] PAGE. I. — Taxation in the United States 557 II.— Poor Bates, etc 567 III. — Parochial Settlements 582 IV. — Qualiiieations of Electors as Related to Real Estate Improved by Annexations thereto .... 586 CHAPTER XIII. Legal and Equitable Remedies Respecting Fixtures .... 588 I. — Of the Action of "Waste, and Case in the Nature of "Waste 588 II. — Preventive and Equitable Remedies 598 Prohibition ; — Estrepement 598 Injunction 601 III.— Replevin 618 I"V.— Trespass 629 "V.— Trover 642 "VI. — Ejectment 657 VII. — ^Actions ex Contractu 660 CHAPTER XIV. Of the Criminal Law as Related to Fixtures; — ^Deo- DANDS 667 I. — ^Larceny 667 II. — Malicious Injuries , 673 III. — Burglary 676 IV.-J-Deodands 678 Index 681 TABLE OF CASES [BEFBKBNCES AEB TO THE BOTTOM PAGES.] Abbott V. Abbott, 75 Pae. 1040. 340. Abell V. Williains, 3 Daly 17. 254. Abraham v. Bubb, 2 Freem. Ch. 53. 606, 608. Ackerman v. Hartley, 8 N. J. Eq. 476. 613. Ackroyd v. Mitchell, 3 L. T. N. S. 236. 389, 390, 406, 411, 449, 610. Acton, Ex parte, 4 L. T. N. S. 261. 390, 448, 449, 452, 455, 504, 505. Adama v. Beadle, 47 la. 439, 29 Am. Eep. 487. 808, 338, 378. Adams v. Burton, 43 Vt. 36. 329. Adams v. Goddard, 48 Me. 212, 39 Me. 144. 208, 209, 216, 229, 650. Adams v. Greenwich I. Co., 9 Hun 45. 379. Adams v. Kauwa, 6 Ha:w. 280. 19, 94, 352, 658. Adama v. Lee, 31 Mich. 440. 69, 400. Adama v. Leip, 71 Mo. 597. 361. Adams v. McKesson, 53 Pa. St. 81. 342. Adams v. Moulton, McGloin 210. 348. Adams v. Saint L. & S. F. Ey. Co., 138 Mo. 242, 28 S. W. 496, 29 S. W. 836. 163, 217. Adams v. Smith, Breese 221. 333, 541. Adams v. Tanner, 5 Ala. 740. 364, 365. Adams M. Co. v. Interstate L. Assn., 119 AJa. 97, 24 So. 857. 483. Adamson v. Mcllvaine, 3 Man. 29. 388, 392, 443. Adamson v Rogers, 26 Can. 159, 22 Ont. App. 415. 10, 525. Advance Coal Co. v. Miller, 4 Pa. Dist. 352, 7 Luz. Leg. Eeg. B. 541. 25, 33, 217, 223, 227, 546. Agate V. Lowenbeim, 57 N. Y. 604. 70. Agnew V. Jones, 74 Miss. 347, 23 So. 25. 102. Agnew V. Whitney, 10 Phila. 77. 246, 607. Ainslie, Ee, 30 Ch. D. 485, 28 Ch. D. 89, 22 Cent. Law J. 378. 35, 63, 264, 333, 334, 474. Ainsworth v. Lakin, 180 Mass. 397, 62 N. E. 746. 82. Albany & B. Eoad, Ee, 94 App. Div. 509, 87 N. Y. Supp. 1104. 563. Alberson v. Elk Cr. Min. Co., 39 Ore. 552, 65 Pac. 978. 30, 36, 57, 111, 384. Albert v. Ulrich, 180 Pa. St. 283, 36 Atl. 745. 62, 87, 200, 388. Albiu V. Eiegel, 40 O. St. 339. 343. Albion E. E. E. Co. v. Hesser, 84 Cal. 435, 24 Pac. 288. 90. Aldine Mfg. Co. v. Barnard, 84 Mich. 632, 48 N. W. 280. 29, 663. Aldrich v. Bank of Ohiowa, 64 Neb 276, 89 N. W. 772; 97 Am. St! Eep. 643. 349. Aldrich v. Husband, 131 Mass. 480 111. Aldrich V. Parson, 6 N. H. 555. 103. Aldrich v. Eeynolds, 1 Barb. Ch. 613 344. Alexander v. Cowie, 19 N. B. (3 Pug. & B.) 599. 84, 623, 624. xi xu TABLE OF CASES. [BEFEBBNCES AEB TO Alexander v. Holt, 59 Tex. 205. 365. Alexander v. Shonyo, 20 Kan. 705. 74. Alexander v. Touhy, 13 Kan. 64. 103, 216, 227. Alexandria C. B. E. & B. Co. v. Dis- trict of Col., 12 T>. G. 217. 558. Allan V. Eowe, 1 N. B. Eq. 41. 35, 60, 61, 185, 195, 607. AUardice v. Disten, 11 TJ. C, C. P. 278. 236. Allen, Ee, 31 Ont. 335. 195. Allen V. Allen, Mosely 112. 476. Allen V. Ashburn, 27 Tex. Civ. App. 239, 65 S. W. 45. 350, 365. Allen V. Dent, 72 Tenn. 676. 203, 230, 652. Allen V. Elderkin, 62 Wis. 627, 22 N. "W. 842. 345. Allen V. Gates, 73 Vt. 222, 50 Atl. 1092. 144, 243, 482, 533. Allen V. Kennedy, 40 Ind. 142. 141, 199, 205. Allen V. Lloyd, 2 Ir. C. L. 53. 364. Allen V. Mooney, 130 Mass. 155. 30, 36, 389. Allen V. Seott, 38 Mass. 25. 67, 92, 398, 537. Allen V. Woodard, 125 Mass. 400. 33, 60, 469, 489. Allgood V. State, 95 Tenn. 471, 32 S. W. 208. 674. Alliance T. Co. v. Nettleton Co., 74 Miss. 584, 21 So. 396. 633. Allison V. MoCune, 15 O. 726, 45 Am. Dec. 605. 387, 389, 595. Alt V. Grossclose, 61 Mo. App. 409. 374. Altes V. Hinckler, 36 111. 275, 85 Am. Dec. 407. 361, 362, 658. Alvia V. State, 42 Tex. Cr. 424, 60 8. W. 551. 670. Alvord Carriage Mfg. Co. v. Glea- son, 36 Conn. 86. 31, 314, 468, 670. THE BOTTOM PAGES.] Ambs V. Hill, 10 Mo. App. 108, 13 Mo. App. 585. 35, 36, 154. Ambuehl v. Matthews, 41 Minn. 537, 43 N. W. 477. 367. Amelung v. Seekamp, 9 Gill. & John. 468. 601, 602. American Brick Co. v. Drinkhouse, 59 N. J. U 462, 36 Atl. 1034. . 35, 427. American 1. Co. v. Middleton, 80 N. Y. 408. 646, 656. Ames, Ex Parte, 1 Low. Dee. 567, 7 Nat. Bk. Eeg. 236. 110, 479, 518. Ames V. Trenton Brew. Co., 56 N. .T. Eq. 309, 38 Atl. 858, 57 N. J. Eq. 347, 45 Atl. 1090. 9, 10, 32, 247. Amiers v. Chambers, 1 Mod. 35, 2 Keb. 596. 333. Amiles v. Chambers, 1 Mod. 35, 2 Keb. 596. 333. Anderson v. Ammonett, 77 Tenn. 1. 533. Anderson v. Buckton, 1 Str. 192. 639. Anderson v. Creamery Mfg. Co., 67 Pae. 493, 56 L. E. A. 554. 420. Anderson v. Hapler, 34 111. 436. 626. Anderson v. How, 116 N. Y. 336, 22 N. E. 695. 674. Anderson v. McEwen, 9 U. C, C. P. 176. 71, 413. Anderson v. Eeid, 14 App. D. C. 54. 657. Anderson v. Strauss, 98 HI. 485. 347. Anderson v. Swift, 106 Ga. 748, 32 S. E. 542. 533. Andrew v. Neweomb, 32 N. Y. 417. 368. Andrews v. Auditor, 28 Gratt. 115, 1 Va. Law J. 92. 104, 558. Andrews v. Chandler, 27 111. App. 103. 32, 420. 437, 611. Andrews v. Costigan, 30 Mo. App. 29. 376. Andrews v. Day B. Co., 132 N. Y. 348, 3Q N, 1, 831, 55 Hun 494, 9 TABLE OP CASES. Xin [BEFEBBNCES ABE TO N. Y. Supp. 916, 29 N. Y. St. E. 548. 247. Andrews v. Powers, 66 App. Div. 216, 72 N. Y. Supp. 597. 87, 107, 382. Angter v. Agnew, 98 Pa. St. 587. 594. Angier v. Bay S. Co., 178 Mass. 163, 59 N. E. 630. 428. Anne Arundel County v. Balto. Sugar Co., 58 Atl..211. 564. Annely v. DeSaussure, 12 S. C. 488. 407, 410, 411, 414. Anthony v. Haneys, 3 Bing. 186. 21, 200. Anthony v. Eoekefeller, 102 Mo. App. 326, 76 S. "W. 491. 255. Antoni v. Belknap, 102 Mass. 193. 150, 175, 212. Antonio Brew. Assn. v. Arctic Mach. Co., 81 Tex. 99. 82. Antrim v. Boobs, 30 L. B., Ir. 42, 114, 140, 161. 544. Apolo V. Kauo, 7 Haw. 755. 35, 116, 513, 522. Appeal Tax Ct. v. Baltimore Co., 50 Md. 432. 558. Appeal Tax Ct. v. Nor. Cent. Ey. Co., 50 Md. 417. 566. Appeal Tax Ct. v. Pullman P. C. Co., 50 Md. 452. 566. Argles V. McMath, 26 Ont. 224, 23 Ont. App. 44. 6, 141, 142, 143, 202, 211, 213, 324, 251, 652. Arkwright v. Billings, Se. Fac. Dec. 443. Arlington Mill Co. v. Yates, 57 Neb. 286, 77 N. W. 677. 32, 104. Armstrong v. Kleinhouse, 82 Ky. 303, 1 Ky. L. E. 112. 13. Armstrong v. Lawson, 73 Ind. 498. 374. Armstrong v. Oppenheimer, 84 Tex. 365, 19 S. W. 520. 657. Amett V. Knney, 29 N. J. Eq. 309. 425. THE BOTTOM PAGES.] Arnold v. Broad, 15 Col. App. 389, 62 Pac. 577. 594. Arnold v. Crowder, 81 ill. 56, 25 Am. E. 260, 3 Cent. Law J. 658. 28, 32, 303, 396, 440. Arnold v. Mundy, 6 N. J. L. 1, 10 Am. Dee. 356. 329. Arques v. Wasson, 51 Calif. 620. 367. Ashby V. Ashby, 59 N. J. Eq. 536. 46 Atl. 528, 59 N. J. Eq. 547, 46 Atl. 522, 62 N. J. Eq. 618, 50 Atl. 473. 146, 236, 243, 524, 609. Asher v. Mitchell, 9 111. App. 335. 412. Asher Lumb. Co. v. Cornett, 22 Ky. L. E. 569, 58 S. W. 438, 23 Ky. L. E. 602, 63 S. W. 974. 66, 333, 376. Asher L. Co. v. French, 18 Ky. L. E. 682, 37 S. W. 149. 373. Asheville Co. v. Southwick, 119 N. C. 611, 26 S. E. 253. 138, 143, 431. Asheville Div. S. 0. T. v. Ashton, 92 N. 0. 578. 660. Ashmun v. Williams, 8 Pick 402. 105. Aspinwall v. Chicago & N. W. Ey. Co., 41 Wis. 474. 90, 410. Astbury, Ex parte L. E., 4 Ch. App. 630, 38 L. J. B. 9, 20 L. T. N. S. 997, 17 W. E. 997. 20, 25, 46, 54, 403, 434, 455, 508, 511. Aston V. Aston, 1 Ves. Sr. 264. 266, 606. Atcherley v. Vernon, 10 Mod. 529. 320. Atchison, T. & S. P. E. E. Co. v. Morgan, 42 Kan. 23, 22 Pac. 995, 4 L. E. A. 284, 16 Am. St. E. 471. 28, 90, 98. Atkins V. Chilson, 7 Met. 398. 601. Atkinson, Ex parte, 1 M. D. & D. 300. 158. Atkinson v. Baker, 4 Term. 229. 315, 625. XIV TABLE OF CASES. [KErEEENCES AEB TO THE BOTTOM PAGES.] Atkinson v. Hewitt, 63 Wis. 396, 23 N. W. 889. 630. Atkinson v. Noad, 14 L. Can. 159. 141, 390, 395, 449, 481, 484, 660. Atkison v. Dixon, 96 Mo. 588, 10 S. W. 162. 202, 217. Atlantic & P. E. E. Co. v. Lesueur, 2 Ariz. 428, 19 Pao. 157. 558. Atlantic Tr. Co. v. Atlantic Cy. L. Co., 64 N. J. Eq. 140, 53 Atl. 212. 32, 61, 388, 390, 393, 436, 437, 443, 461, 466, 483. Attorney Gen. v. Baliol, Col., 9 Mod. 411. 80. Attorney Gen'l v. Duke of Marl- borough, 3 Mad. 498. 267. Attorney G. v. Gibbs, 3 Y. & J. 333. 539. Atwood V. Beck, 21 Ala. 590. 315. Aultman Co. v. O 'Dowd, 73 Minn. 58, 75 N. W. 756. 347. Austell V. Swann, 74 Ga. 278. 523. Austin, Ex parte, 1 Dea. & Chit. 207. 505. Austin Y. Sawyer, 9 Cow. 39. 340, 370. Austin V. Stevens, 24 Me. 520. 194. Australian Bk. v. Colonial Corp., 15 N. S. W. L. E. 464, 11 N. S. W. Wkly. N. 105. 33, 403. Austral Otis Co. v. Kerr, 16 Vict. 744, 12 Austr. Law T. 108. 33, 479, 484. Avery v. Cheslyn, 3 Ad. & B. 75. 155, 187, 188. Avitt V. Farrell, 68 Mo. App. 665. 366, 373, 632. Axminster Parish Case. 678, 679. Ayers v. Hawk, 11 Atl. 744. 368. Babley v. Vyse, 48 la. 481. 633. Bacchus Com. v. Federal Soc, 22 Vict. L. E. 181. 205. Backenstoss v. Stabler, 33 Pa. St. 254, 75 Am. Dec. 592. 339, 341. Bacon V. Bowdoin, 39 Mass. 401, 43 Mass. 591. 110, 397. Bacon v. Lewis, 33- Can. L. J. 680. 64, 440, 457, 489. Bacon v. Smith, 1 Q. B. 345, 4 P. 6 D. 651. 592, 597. Badger v. Batavia P. Mfg. Co., 70 111. 302. 401, 649. Bagley v. Columbus S. Ey. Co., 98 Ga. 626, 25 S. E. 638, 34 L. E. A. 286, 58 Am. St. Eep. 325. 38, 335, 369, 380. Bagley v. Eose Hill S. Co., Ill La. 249, 35 So. 539. 396, 463, 466, 516. Bagnell v. Villar, 12 Ch. D. 812. 348. Bagnell v. Davies, 140 Mass. 76, 2 N. E. 786. 11. Bagshaw v. Farnsworth, 2 L. T. N. S. 390. 368. Bailey v. A. Siegel Co., 54 Mo. App. 50. 35, 633. Bailey v. Oliver, 9 S. W. 606. 365. Bailey v. Eichardson, 66 Calif. 416, 5 Pac. 910. 527. Bailey v. Sweeney, 64 N. Ham. 296, 9 Atl. 543. 642. Bain v. Brand, 2 Sess. Cas. 4th Ser. 258, 12 Scot. Law Eep. 124, 1 App. Cas. H. L. 762, 13 Scot. Law Eep. 744, 3 Sess. Cas. 4th Ser. H. L. 16, 18 Eng. Eepts. 44, 5 Sess. Cas. 4th Ser. 607, 15 Scot. Law Eep. 330. 6, 38, 297. Bain v. Clark, 10 John. 424. 353. Bainway v. Cobb. 99 Mass. 457. 37, 63, 64, 305, 309. Bair v. Brown, 28 La. An. 842. 340. Baird v. Jackson, 98 111. 78. 410. Baker v. Atherton, 15 Pa. Co. 471, 7 Luz. Leg. Eeg. E. 418. 462. Baker v. Central Vt. Ey., 4 Eev. de Jur. 454. 48, 489. Baker v. Davis, 19 N. Ham. 325. 391, 433, 443, 543. Baker v. Fessenden, 71 Me. 292. 426. Baker v. Howell, 6 S. & E. 476. 662. Baker v. Jordan, 3 O. St. 438. 341. TABLE OF CASES. XV [BUFEBENCES ABE TO Baker v. MeClurg, 96 111. App. 165, 198 111. 28, 64 N. E. 701, 59 L. B.' A. 131, 92 Am. St. Eep. 261. 32, 137, 138, 139, 140, 141, 149, 154, 260. Baker v. McInturfE, 49 Mo. App. 505. 363, 369. Baker v. National B. Co., 96 111. App. 228. 607. Baker v. Normal, 81 111. 108. 99. Baker v. Pratt, 15 111. 571. 208. Baker v. "Waldron, 92 Me. 17, 42 Atl. 225. 11. Bald V. Hagar, 9 TT. 0. C. P. 382. 394, 537. Baldinger v. Levine, 83 App. Div. 130, 82 N. T. Supp. 483. 489. Baldwin v. Breed, 16 Conn. 60. 21, 92, 106, 107, 109, 113, 380. Baldwin v. Merrick, 1 Mo. App. 281. 428. Baldwin v. Walker, 21 Conn. 168. 61, 462, 653. Baldwin v. Young, 47 La. A. 1466, 17 So. 883. 484. Bales V. Gilbert, 84 Mo. App. 675. 529. Ball V. Benjamin, 73 111. 39. 35. Balliett v. Humphreys, 78 Ind. 388. 623. Ballou V. Jones, 37 III. 95. 422, 521, 623. Banfill V. Twyman, 71 III. App. 253, 172 111. 123, 49 N. E. 985. 68, 69, 435, 541. Bangor & P. E. E. Co. v. Harris, 21 Me. 533. 566. Bangor Bk. v. Wallace, 87 Me. 28, 32 Atl. 710. 348. Bangor S. Co. v. Shimer, 12 Pa. Dist. 777. 601. Bank of Chenango v. Cox, 26 N. J. Eq. 452. 605. Bank of Lansingburgh v. Crary, 1 Barb. 542. 65, 67, 333, 334, 367, 375, 541, 542. THE BOTTOM PAGES.] Bank of Louisville v. Baumeister, 87 Ky. 6, 7 S. W. 170. 137, 407. Bank of Pa. v. Wise, 3 Watts 394. 340. Bank of Victoria v. Langlands Co., 24 Vict. 230. 403. Banque d'Hochelaga v. Watrous E. Co., 27 Can. 406, 5 Que. Q. B. 125. 417. Banta v. Merchant, 45 App. Div. 141, 61 N. Y. Supp. 218. 341. Banton v. Shorey, 77 Me. 48. 373. Banyer v. Albany I. Co., 85 App. Div. 122, 83 N. Y. Supp. 65. 379, 465. Barber v. Both, 19 Pa. Co. 366. 36. Barclay, Ex parte, L. E. 9 Ch. App. 576, 43 L. J. B. 137, 25 L. J. B. 1, 30 L. T. N. S. 479, 5 DeG. M. ic G. 403, 2 M. D. & DeG. 597, 35 Eng. L. & Eq.. 169, 22 W. E. 608, 1 Jur. N. S. 1145. 5, 401, 473, 493, 495, 498, 499, 500, 504, 505, 507. Barflf V. Probyn, 64 L. J. Q. B. 557, 73 L. T. E. 118. 206, 657. Barker v. Central Vt. Ey. Co., 14 Que. C. S. 467, 4 Eev. de Jur. 449. 48. Barker v. Cincinnati Brick Co., 4 Ohio Dec. 270, 3 Ohio N. P. 230. 29, 136, 141, 146, 545. Barlow v. Hudson, 5 Ky. L. E. 604. 325. Barnard v. Leigh, 1 Stark 43. 548. Barnes v. Barnes, 6 Vt. 388. 214. Barnes v. Burt, 38 Conn. 541. 634, 639. Bamett v. Lucas, 5 Ir. C. L. 140, Ir. E. 6 C. L. 247. 122, 443, 446, 555, 638. Barrett v. Bell, 82 Mo. 110, 52 Am. Eep. 361. 464. Barrett v. Choen, 119 Ind. 56, 20 N. E. 145, 12 Am. St. Eep. 363. 435. Barrington v. Justice, 4 Pa. L. J. 289. 180. XVI TABLE OF CASES. [liBrBRENCES ABB TO Barrow, Be, 98 Fed. 582. 369. Barry v. Barry, 1 Jac. & Walk. 653. 591. Bartholomew v. Hamilton, 105 Mass. 239. 420. Bartlett v. Brown, 6 K. I. 87. 669, 670. Bartlett V. Haviland, 92 Mich. 552, 52 N. W. 1008. 36, 481, 522. Bartlett v. Wood, 32 Vt. 372. 22, 437, 441, 543. Bass V. Metropolitan E. E. Co., 82 Fed. 857, 27 C. C. A. 147, 53 TJ. S. App. 542, 39 Ia E. A. 711. 533. Bass Foundry Wks. v. Gallentine, 99 Ind. 525. 408, 409, 486. Batcheldor v. Yates, 38 Ch. D. 112, 57 L. J. Ch. 697. 399, 492. Batcheller v. Commercial A. Co., 143 Mass. 495, 10 N. E. 321. Ill, 117. Bateman v. Eaymond, 15 Mont. 439, 39 Pac. 520. 422. Bates V. Johnson, 58 Hun 528, 12 N. T. Supp. 403, 126 N. Y. 681, 28 N. E. 249. 533. Batterman-v. Albright, 122 N. Y. 484, 25 N. E. 856, 11 L. E. A. 800. 65, 338, 348, 542. Bauernschmidt Co. v. MeColgan, 89 Md. 135, 42 Atl. 907. 122, 255. Baum V. Covert, 62 Miss. 113. 429, 430. Bawden v. Hunt, 123 Mich. 295, 82 N. W. 52. 397. Bayne v. Brewer Pottery Co., 90 Fed. 754. 21, 436. Beach v. Allen, 7 Hun 441. 70. Beall V. State, 68 Ga. 820. 669. Bean v. Brackett, 34 N. Ham. 102. 394, 397, 407, 411. Bean v. Toland, 1 Tex. Ct. App. Civ., sec. 1022. 103. Bear v. Hitzer, 16 Pa. St. 175. 341. Beard v. Duralde, 23 La. Ann. 284. 54, 63, 540. THE BOTTOM PAGES.] Beardsley v. Ontario Bank, 31 Barb. 619. 4, 21, 47, 50, 541. Beardsley v. Sherman, 1 Daly, 325. 651. Beatty v. Brown, 76 Ala. 267. 633. Beatty v. Brown, 141 Mass. 523, 6 N. B. 754. 431. Beaufort v. Bates, 31 L. J. Ch. 481, 3 DeG. F. & J. 381, 8 Jur. N. S. 270, 10 W. R. 200, 6 L. T. N. S. 82, 10 W. E. 149, 5 L. T. N. S. 546. 21, 240, 241. Beaupre v. Dwyer, 48 Minn. 485, 45 N. W. 1094. 32. Beavan v. Delahy, 1 H. Bl. 5. 550. Beck V. Denbigh, 8 C. B. N. S. 888, 6 Jur. N. S. 998, 29 L. J. C. P. 273, 8 W. E. 392, 2 L. T. N. S. 154. 646, 647. Beck V. Eebow, 1 P. Wms. 94. 196, 285, 301, 308, 309, 447, 470, 475, 476. Beck V. Zimmerman, 75 N. Car. 60. 639. Becker v. Witmer, 1 Pearson 524. 72, 424. Beckman v. Sikes, 85 Kan. 120, 10 Pac. 592. 348. Beckmann v. Bormann, 3 E. D. Smith 409. 660. Beckwith v. Boyce, 9 Mo. 556. 161, 199. Bedford v. Smith, Dy. 108b. 605. Bedford County Case, 2 Luder 440. 15, 586. Bedlow V. New York D. Co., 112 N. Y. 263, 19 N. E. 800, 2 L. E. A. 629. 146, 200. Bedlow V. Stillwell, 158 N. Y. 292, 53 N. E. 26, 91 Hun 384, 36 N. Y. Supp. 129. 297. Beech G. C. Co. v. Mitchell, 193 Pa. St. 112, 44 Atl. 245. 252. Beeler v. C. C. Mercantile Co., 70 Pac. 943, 60 L. E. A. 283. 67. Beers v. Saint John, 16 Conn. 322. 86, 153. TABLE OF CASES. XVll [REFEEBNCES ARE TO Begbie v. Fenwiek, L. E. 8 Ch. App. 1075, 24 L. T. N. S. 58, 25 L. T. N. S. 441. 403, 470, 493, 494, 497, 499. Beland v. Laine, 4 C. B. Que. 354, 26 Ca,n. 419. 408, 486. Belcher, Ex parte, 2 Mont. & Ayr. 166, 4 Dea. & Chit. 703, 4 L. J. N. S. B. 29. 123, 399, 405, 406, 504, 505. Belding v. Cushing, 67 Mass. 576. 432. Bell V. Parks, 18 Kan. 152. 95. Bell V. State, 51 Tenn. 426. 667. Bell V. Swallwell L. Co., 20 Wash. 602, 56 Pac. 401. 384. Bellamy v. Davey [1891], 3 Ch. 540, 60 L. J. Ch. 778, 65 L. T. B. 308, 40 W. E. 118, [1891] W. N. 192. 21, 508. Bellingham, B. & B. C. E. E. Co. V. Strand, 14 Wash. 144, 44 Pac. 140, 46 Pac. 238. 90. Bellows V. Wells, 36 Vt., 599. 367, 372. Bell T. Co., Ee, 37 Can. L. J. 851. 562, 563. Bell T. Co. V. Ascot, 16 Que. C. S. 436. 562. Bell T. Co. V. Winchester, 31 Can. L. J. 667. 562. BeMn v. Ealeigh P. Co., 123 N. Car. 138, 31 S. E. 391. 138, 151, 409, 413. Bemis v. First Nat. Bk., 63 Ark. 625, 40 S. W. 127. 31, 392, 470. Bender v. King, 111 Fed. 60. 33, 395, 437. . Benedict v. Beebee, 11 John. 145. 515. Benedict v. Benedict, 5 Day 464. 106, 107, 113. Benedict v. Marsh, 127 Pa. St. 309, 18 Atl. 26. 35, 57. Benjamin v. Elmira, &c., E. E. Co., 54 N. Y. 675. 51. THE BOTTOM PAGES.] Bennett v. Allen, 2 Clint. Dig. N. T. 1416. 73, 387, 433. Bennett v. Bagley, 22 Hun 408. 68, 399. Bennett v. Nichols, 12 Mich. 22. 617. Bentley, Ex parte, 2 M. D. & DeG. 591, 6 Jur. 719. 149, 461, 463, 473, 504. Berger v. Hoerner, 36 111. App. 360. 28, 141, 142, 479. BerUner v. Piqua Club, 66 N. Y. Supp. 791, 32 Misc. 470. 26, 388, 396, 448. Bermea L. Co. v. Adoue, 20 Tex. Civ. App. 655, 50 S. W. 131. 202, 223, 407. Bernal v. Hovious, 17 Cal. 541. 372. Bernheimer v. Adams, 70 App. Div. 114, 75 N. Y. Supp., 175 N. Y. 472, 67 N. E. 1080. 136, 142, 143, 144, 155, 256, 259, 413, 518. Berriman v. Peacock, 9 Bing. 384. 333. Berry v. Heard, Cro. Car. 242, Palm. 327, W. Jones 255, 7 Term 11, Bend. 141. 75, 333, 634, 642, 654, 655. Berry v. YanWinkle, 2 N. J. Eq. 269. 524, 529, 530, 533. Best V. Hardy, 123 N. Car. 226, 31 S. E. 391. 388, 390, 392, 411, 472. Best V. Stoneback, 39 Kan. 170, 17 Pac. 821. 482. Betham v. Gregg, 10 Bing. 352. 294, 357. Betts V. Lee, 5 John. 348. 82. Betz V. Muench, 13 Atl. 622. 72, 616, 617. Bevans v. Briscoe, 4 Har. & John. 139. 355, 363. Bewick v. Fletcher, 41 Mio^. 625, 3 N. W. 162, 32 Am. Eep. 170. 32, 520. Bickmore v. Dummer, 72 L. J. Ch. 96. 11. Bidder v. Trinidad Petroleum Co., 17 W. E. 153. 10, 140, 241, 243, 245. xvm TABLE OF CASES. [KEPEKENCES ABE TO Biddle v. McDonough, 15 Mo. App. 532. 529. Biddle v. Bamsey, 52 Mo. 153. 530. Bienvenu's Sue, 106 La. 595, 31 So. 193. 415. Biggs V. Brown, 2 S. & E. 14. 354. Bigler v. National Bk. of Newburgh, 26 Hun 520, 14 N. Y. Wkly. Dig. 410. 392. Bigler y. New Y. C. I. Co., 20 Barb. 635. 463. Billings V. Billings, 1 Pennypaeker 145. 375. Bingham Assn. v. Eogers, 7 Ida. 63, 59 Pac. 931. 92. Binkley v. Forkner, 117 Ind. 176, 19 N. E. 753, 3 L. E. A. 33. 28, 104, 420, 471, 486. Binney's Case, 2 Bland Ch. 146. 566. Birch V. Dawson, 6 C. & P. 658, 2 Ad. & E. 37. 7, 245, 309, 447, 476. Bireher v. Parker, 40 Mo. 118, 43 Mo. 443. 186, 194, 203, 207, 609. Bireh-Wolfe v. Birch, L. E. 9 Eq. 683. 608. Bird V. Bird, 15 Fla. 424. 340. Bird V. Eelph, 4 B. & Ad. 826, 2 Ad. & El. 773. 290, 298. Bishop V. Bishop, 11 N. Y. 128, 62 Am. Dec. 68, 1 Kem. 126. 48, 51, 455. Bishop V. Elliott, 11 Exeh. 113, 1 Jur. N. S. 962, 24 L. J. Exch. 229, 10 Exch. 496, 24 L. J. Exch. S3. 9, 46, 189, 248. Bishop of Winchester v. Knight, 1 P. Wms. 403. 597. Bittenger v. Baker, 29 Pa. St. 68. 340, 344, 346, 347. Blache V. Aliex, 15 La. Ann. 50. 194. Black V. Black, 30 N. J. Eq. 215. 86. Black V. Hepburne, 2 Yeates 331. 657. Blackburn v. Clarlj:, 19 Ky. L. E. 659, 41 S. W. 430. 670. Blades v. Higgs, 11 H. L. Cas. 621, THE BOTTOM PAGES.] 11 Jur. N. S. 701, 12 Ij. T. N. S. 615. 328, 329. Blagrave's Set. Est., Ee [1903], 1 Ch. 560, 72 L. J. Oh. 317, 88 L. T. E. 253, 51 W. E. 437. 11. Blair v. Murphree, 81 Ala. 454, 2 So. 18. 352. Blair v. Worley, 1 Scam. 178. 92, 93. Blake v. Clarke, 6 Me. 436. 397. Blanehard v. Bowers, 67 Vt. 403, 81 Atl. 848. 106. Blancke v. Eogers, 26 N. J. Eq. 563. 21, 29, 439, 441, 460. Blethen v. Towle, 40 Me. 310. 449, 450, 456. Blewitt V. Tregonning, 3 Ad. & E. 554.. 82. Bliss V. Misner, 4 N. Y. 633, 2 Hun 391. 46, 64, 70. Bliss V. Whitney, 9 Allen 114, 85 Am. Dee. 745. 122, 141, 199. Blitch V. Lee, 115 Ga. 112, 41 S. E. 275. 342. Blodgett V. German Sav. Bk., 69 Ind. 153. 340, 343. Bloemendal v. Albrecht, 79 Minn. 304, 82 N. W. 585. 861. Bloom V. Welsh, 27 N. J. L. 177. 341, 342. Bloomfield v. Hellyer, 22 Ont. App. 232. 348. Bludworth v. Hunter, 9 Eob. 256. 339. Board of Ed. v. Grant, 118 Cal. 39, 50 Pac. 5. 195. Board of Ed. v. State, 64 Kan. 6, 67 Pac. 559. 397. Bogey V. Shute, 4 Jones Eq. 174. 603. Bohl V. Brown, 2 Tex. Ct. App., Civ. 485. 195. Bohn V. Hatch, 133 N. Y. 64, 30 N. B. 659. 255. Boileau v. Heath [1898], 2 Ch. 301, 67 L. J. Ch. 529, 78 L. T. E. 622, 46 W. E. 602. 82. Boisaubin v. Eeed, 2 Keyes 323. 373. TABLE OF CASES. XIX [ebfekbnces abb to Bolland v. O'Neal, 81 Minn. 15, 83 N. W. 471. 376. Boiling V. Whittle, Ala. Sel. Ca. 268. 86. Bolton V. MeShane, 67 la. 207, 25 N. W. 135. 602. Bond V. Coke, 71 N. Car. 97. 391, 444, 516. Bonham v. State, 65 Ala. 456. 668. Bonebrake v. Summers, 8 Pa. Super. 55. 13. Bonnell v. Allen, 53 Ind. 130. 180, 608, 613. Bonner v. Wiggins, 52 Tex. 125. 87. Bonney v. Eoss, 62 Me. 248. 87, 144, 198. Benson v. Jones, 89 Iowa 380, 56 N. W. 515. 87, 103. Boon V. Cornforth, 2 Ves. Sr., 277. 322. Boon V. Orr, 4 G. Greene 304. 38. Booraem v. Wood, 27 N. J. Eq. 371. 89, 410. Booth V. Kapuakela, 10 Haw. 414. 102, 522. Booth V. Oliver, 67 Mich. 664, 35 N. W. 793. 216, 501. Borland v. Hahn, 25 N. Y. Supp. 131, 53 N. Y. St. E., 887. 109, 400. Boston, 0. & M. E. E. v. Gilmore, 37 N. H. 410. 50, 541. Boston E. Co. v. Dimoek, 158 Mass. 552, 33 N. E. 647. 429. Boston Tr. Co. v. Bankers' T. Co., 36 Eed. 288. 104, 417. Bostwick V. Leach, 3 Day 476. 514. Bourne v. Beck, 22 Ky. L. E. 792, 58 S. W. 690. 605. . Bours V. Webster, 6 Calif. 660. 372. Bovet V. Holzgraft, 5 Tex. Civ. App. 141, 23 S. W. 1014. 146. Powen V. Eoaeh, 78 Ind. 361. 343. Bowen V. Wood, 35 Ind. 268. 389, 390, 392, 406. Bowers v. Bowers, , 95 Pa. St. 477. 373. THE BOTTOM PAGES.] Bowles's Case, 11 Col., 81 b. 75, 268, 458, 633, 635, 644. Bowman v. Conn, 8 Ind. 58. 371. Bowman v. Milbanke, Sir T. Eaym. 97. 678. Boyd ^. Douglas, 72 Vt. 449, 48 Atl. 638. 243. Boyd V. Shorrock, L. E. 5 Eq. 72, 37 L. J. Ch. 144, 17 L. T. N. S. 197, 16 W. E. 102, 20 L. T. N. S. 1012. 45, 122, 443, 461, 492", 497. Boyd V. Wilson, 18 Eev. Leg. 65. 142. Boydell v. McMichael, 3 Tyrwh. 974, 1 Cr. M. & E. 177, 3 L. J. N. S. Ex. 264. 75, 123, 504, 506, 512, 544, 635, 643, 644. Boyer v. Williams, 5 Mo. 335. 99. Boyle V. Swanson, 6 La. Ann. 263. 34, 72, 403. Braeelin v. McLaren, 59 Mich. 327, 26 N. W. 533. 386, 522. Brackett v. Goddard, 54 Me. 309. 332. Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, 1 L. E. A. 427, 7 Am. St. E. 316. 356. Bradley v. Merrill, 91 Me. 340, 40 Atl. 132. 422. Bradley v. Eitchie, 12 Pa. Dist. 658. 25, 36, 56, 110, 539. Bradley v. Faulkner, 34 N. Y. 347. 350. Brady v. Waldron, 2 Kohn. Ch. 148. 612. Bramble v. Kingsbury, 39 Ark. 131. 518. Branch v. Morrison, 5 Jones' L. 16, 6 Jones' L. 16. 333, 628, 646. Branch T. Co. v. Yuba Co., 13 CaKf. 190. 602. Brand y. Brand, 5 Sess. Cas. 4th Ser. 607, 15 Scot. Law Eep. 330, 3 Sess. Cas. 4th Ser. H. L. 16, 13 Scot Law Eep. 744, 1 App. Cas. 762, 18 Eng. Eepts. 44, 2 Sess. Cas. 4th Ser. TABLE OP CASES. [KBFBKENCB3 ABB TO 258, 12 Scot. Law Eep. 124. 6, 38, 297. Brand v. McMahon, 15 N. Y. Supp. 39, 38 N. y. St. E. 576. 414. Brandser v. IVfjageto, 79 Minn. 457, 82 N. W. 860. 92. Brannou v. Yaughn, 66 Ark. 87, 48 S. W. 909. 19, 111, 388. Brantford P. Co., Ee., 28 Ont. 40, 24 Ont. App. 301. 526. Branton v. Griffits, L. B. 1 C. P. D. 349, 45 L. J. Ch. C. P. 588, 2 C. P. D. 212, 46 L. J. Q. B. 408, 20 Eng. Eepts. 475. 366, 492. Brattou v. Glawson, 2 Strobh. L. 478, 3 Strobh. L. 127. 55, 65, 444, 486. Bream v. Diekerson, 21 Tenn. 126. 533. Brearley v. Cox, 24 N. J. L. 287. 2, 31, 61, 621. Breese v. Bange, 2 E. D. Smith 474. 403. Brennau v. Whitaker, 15 O. St. 446. 35, 147, 387, 433, 486, 487. Bresler v. Darmstaetter, 57 Mich. 311, 23 N. "W. 825. 532. Brett V. Brett, 2 Madd. 62. 608. Bricker v. Hughes, 4 Ind. 146. 365, 370. Bridgeman's Case, 1 Eoll. R. 216. 190, 196. Bridges v. Thomas, 8 Ok. 620, 58 Pae'. 955. 36, 620, 622. Bridgewater v. Egerton, 2 Ves. Sr. 121, 3 Ves. Sr. Sup. 296. 322. Briggs V. Chicago K. & W. E. Co., 56 Kan. 526, 43 Pac. 1131. 89, 411. Bright T. Boyd, 1 Story 478. 80. Biinekerhoff v. Starkins, 11 Barb. 248. 329. BringholfE v. Munzenmaier, 20 Iowa 518. 486, 487. Brinkmeyer v. Eankin, 22 Ky. L. E. 1881, 61 S. W. 1007. 216. Bristol V. Burt, 7 John. 254. 646. Brittain v. McKay, 1 Ired. L. 265. 364, 369. THE BOTTOM PAGES.] British A. A. Co. v. Bradford, 60 Kan. 82, 55 Pae. 335. 379. British & Am. Mort. Go. v. Scott, 70 Ark. 230, 65 S. W. 936. 35. Broaddus v. Smith, 121 Ala. 335, 26 So. 34, 77 Am. St. Eep. 61. 201, 216, 219, 413, 546, 649. Broadwood, Ex parte, 1 Mont. Dea. & DeG. 631. 405, 406, 504, 505. Brock V. Leighton, 11 111. App. 361. 343, 348, 349. Brock V. Smith, 14 Ark. 431. 435. Brodrick v. Kilpatriek, 82 Fed. 138. 478. Brook, Ex parte, 10 Ch. D. 100, 48 L. J. Bankr. 22, 47 L. S. B. 101, 39 L. T. E. 58, 38 L. T. E. 888, 14 Co. Ct. & B. 27, 20 Eng. E. 543, 27 W. E. 255. 198, 206, 207. Brooke, Ee (1894), 2 Ch. 600, 64 L. S. Ch. 21, 71 L. T. E. 398, 8 E. 444. 493. Brooklyn v. Smith, 104 111. 429. 83. Brooks V. Brooks, 12 S. C. 422. 274, 355, 524. Brooks V. Galster, 51 Barb. 196. 162, 199. Brooks V. Hiatt, 13 Neb. 503, 14 N. W. 480. 95. Brooks V. Prescott, 114 Mass. 392. 36, 407, 420, 479. Brooks V. Whelock, 11 Pick. 439. 386. Brookville Co. v. Butler, 91 Ind. 134. 83. Brothers v. Hurdle, 10 Ired. I* 490. 361, 628, 646. Brown, Ex parte, 9 Ch. D. 389. 494. Brown v. Baldwin, li;l Mo. 126, 25 S. "W. 863. 1, 22, 116. Brown V. Blunden, Skin. 121. 234. Brown v. Bridges, 31 Iowa 145. 103, 592. Brown v. Brookfield, 24 N. S. 476. 71, 643. Brown v. Caldwell, 10 S. & E. 114. 626. TABLE OP CASES. XXI [BErEKENCES ARE TO Brown v. Coats, 56 Ala. 439. 367. Brown v. Corbin, 121 Ind. 455, 23 N. E. 276. 104, 117. Brown v. Crump, 1 Marsh. 567. 180, 182. Brown v. Dodge, 32 Me. 167. 376. Brown v. Pox, 38 N. Y. Supp. 57, 12 Mise. 147, 66 N. Y. St. E. 714. 68, 394. Brown v. Galagher, 5 O. Dec. 556, 7 Ohio N. P. 666. 525. Brown v. Granville, 10 Bing. 69. 577, 582. Brown v. Herroitt, 1 Kyshe 43. 4, 165, 396. Browu V. Leath, 17 Tex. Civ. App. 262, 42 S. W. 655, 44 S. W. 42. 346. Brown v. lilie, 6 Nev. 244. 21, 433. Brown v. Magorty, 156 Mass. 209, 30 N. E. 1021. 662. Brown v. Eeno Power Co., 55 Ped. 228. 26, 32, 143, 151, 205, 234. Brown v. Eoland, 92 Tex. 54, 45 S. W. 795, 11 Tex. Civ. App. 648, 33 S. W. 273. 441, 479, 482, 486, 515, 516. Brown v. Sage, 11 Gr. Ch. 239. 72, 480, 613. Brown v. Stewart, 1 Md. Ch. 87. 609. Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 440. 340. Brown v. Turner, 60 Mo. 21. 365. Brown v. WalUs, 115 Mass. 156. 625. Brown v. Ward, 119 la. 604, 93 N. W. 587. 236. Browncker v. Bagot, 19 Ves. 574. 322. Browne v. Davis, 109 N. C. 265, 13 S. B. 703. 407. Browne v. Eansden, 8 Taunt. 559, 2 B. Moore 612. 292. Brownell v. Puller, 60 Neb. 558, 83 N. W. 669. 29, 37, 57, 146. Ptttce, Be., 9 Benedict 236, Fed. Cas. No. 2045. 71. THE BOTTOM PAGES.] Bruce v. Welch, 52 Hun 524, 5 N. Y. Supp. 668. 666. Brugere v. Slidell, 27 La. A. 70. 524. Brugger v. State I. Co., 5 Sawy. 304, Ped. Cas. No. 2051, 7 Rep. 616, 8 Ins. L. J. 293. 379, 463. Brule V. Dostaler, 26 Rap. Jud. Eev. 619. 457. Bruley v. Garvin, 105 Wis.. 625, 81 N. W. 1038. 375. Brummet v. Campbell, 32 Wash. 358, 73 Pac. 403. 532. Bryan v. Lawrence, 5 Jones L. 337. 26, 389, 453. Bryant v. Crosby, 40 Me. 21. 370. Bryson v. Wylie, 1 B. & P. 83. 507, 512. Bubb V. Yelverton, L. R. 10 Eq. 465. 595. Buchanan v. Cole, 57 Mo. App. 11. 426. Buck V. Pickwell, 27 Vt. 157. 374. Buckhurst's Case, 1 Co. 1 Mo. 488. 315, 317. Buckingham v. Pembroke, 3 Keb. 74. 650. Buckland v. Butterfield, 2 Brod. & B. 54, 4 Moore 4A0. 1€4, 186, 188, 189, 190. Buckley v. Buckley, 11 Barb. 43. 312, 313. Buckout V. Swift, 27 Calif. 433, 87 Am. Dec. 90. 63, 74, 458, 611. Buck's App., 2 Pennypacker 327. 393. Budd V. Hiler, 27 N. J. L. 43. 350, 351. Budden v. Knight, 3 Que. L. E. 273. 65, 486, 542. Buffalo, Ee, 1 N. Y. St. E. 742. 152, 217. Bulkley v. Dolbeare, 7 Conn. 232. 70, 75, 633. Bull V. Griswold, 19 111. 631. 339, 370. Bull V. Jones, 9 Tex. Civ. App. 346. 523, 622, 624. XXll TABLE OF CASES. [KBFEKENCBS ABB TO Bullock V. Grinsted, 95 Ky. 261, 15 Ky. L. B. 663, 24 S. W. 867. 533. Bulwer v. Bulwer, 2 B. & Aid. 470. 292, 294, 357, 359. Bunker v. Locke, 15 Wis. 635. 609. Bunnell v. Tupper, 10 IT. G. Q. B. 414, 33, 37, 647. Burbank v. Board of Assessors, 52 La. A. 1506, 27 So. 947. 558. Burdlck v. Chesebrough, 94 App. Div. 532, 88 N. Y. Supp. 13, 7 Law- Notes 160. 83, 473. Burk V. Baxter, 3 Mo. 207. 538. Burk V. HoUis, 98 Mass. 55. 66, 67, 110, 199, 218. Burke v. Taylor, 46 TJ. C. Q. B. 371, 18 Can. L. S. 10, 2 Can. L. T. 35. 392. Burke v. Weiss, 1 Luz. Leg. Reg. E. 310. 436, 450. Burkhardt v. Hopple, 6 Ohio Dec. 127, 5 Ohio N. P. 388. 29, 56, 144, 148, 412. Burleigh v. Ford, 59 N. H. 536. 104, 640. Burleigh v. Piper, 51 Iowa 649, 2 N. W. 520. 364. Burleson v. Teeple, 2 G. Greene 542. 38, 92, 454. Burley v. Pike, 62 N. H. 495. 619, 630. Burnett v. Lynch, 5 Bl. & C. 603. 598. Burns v. Fleming, 8 Sess. Ca. 4th Ser. 226. 164, 197, 333. Burns v. School Dist., 61 Neb. 351, 85 N. W. 284. 89, 112, 421. Bumside v. Marcus, 17 TJ. C. C. P. 430. 33, 37, 112. Bumside v. Twitehell, 43 N. H. 390. 27, 46, 54, 378, 406, 411, 455, 643. Burnside v. Weightman, 2 W. & S. 268, 9 Watts 46. 340. Burrell y. Davis, 15 Jur. 155. 248. Burrill v. Wilcox L. Co., 65 Mich. 571, 32 N. W. 824. 383, 434. Burton v. Brown, Cro. Jac. 648. 403. THE BOTTOM PAGES.] Busby V. Joseph, 7 N. 8. W. Supr. Ct. 200. 223, 227, 241. Bute V. Grindall, 1 Term 343. 567. Butler V. Adler-Goldman Co., 62 Ark. 445, 35 S. W. 1110. 483. Butler V. Colwell, 89 111. App. 133. 144, 217, 231. Butler V. Cozens, 6 Vin. Abr. 357, 11 Mod. 198. 21. Butler V. Page, 7 Met. 40, 39 Am. Dec. 757. 393, 411. Butman v. Jones, 34 Minn. 547, 27 N. W. 66. 603. Buxton V. Bedell, 3 East. 303. 517. Buzzell V. Cummings, 61 Vt. 213, 18 Atl. 93. 417. Byassee v. Eeese, 34 Met. 372, 83 Am. Dec. 481. 366, 373, 376. Byrnes v. Macarthur, 2 N. S. W. L. E. 57. 9, 140, 141, 142, 525. Byrnes v. Palmer, 113 Mich. 350, 71 N. W. 331. 35, 58. Byrom v. Chapin, 113 Mass. 308. 594. Gable v. Ellis, 120 111. 136, 11 N. B. 188. 406. Cadogan v. Kennet, Cowp. 432. 322. Cady V. Sanford, 53 Vt. 632. 375. Gady Lumb. Go. v. Greater Am. Expo. Co., 93 N. W. 961. 426. Cahn V. Hewsey, 29 N. Y. Supp. 1107, 31 Abb. New Cas. 387, 8 Misc. 384, 59 N. Y. St. E. 868. 467, 610. Gain v. MeGuire, 13 B. Mon. 340. 373. Gain v. Tex. L. Assn., 21 Tex. Civ. App. 61, 51 8. W. 879. 425. Galdecott v. Brown, 2 Hare 144. 523. Caldecott v. Smythies, 7 C. & P. 808. 353, 354. Caldwell v. Custard, 7 Kan. 303. 361, 626. Caldwell v. Jacob, 16 Ky. L. E. 21, 22 S. W. 436, 27 S. W. 86. 524. Calgary v. Calgary G. Co., 2 N. W. Ter. 86, 165, 16 Can. L. T. 235. 560. TABLE OF CASES. xxm [BEFEBENCES ABE TO Calgary G. Co., Ee, 16 Can. L. T. 235, 2 N. W. Ter. 86. 560. Calgary W. Co., Ee, 31 Can. L. J. 310. 560. Calhoun v. Curtis, 45 Mass. 413. 340. California Pac. E. E. Co. v. Arm- strong, 46 Calif. 85, 1 Cent. Law J. 452. 89, 117. California S. E. E. Co. v. Southern P. E. E. Co., 67 CaUf. 59, 7 Pac. 123. 89. Calumet Iron Co. v. Lathrop, 36 111. App. 249. 28, 60, 393. Calumet E. Ey. Co. v. Brown, 136 111. 322, 26 N. B. 501. 89. Calvert, Ee, (1898) 2 I. E. 501. 22, 406, 492. Calvin v. Shimer, 15 Atl. 255. 346. Cameron v. Gibson, 17 Ont. 233. 340, 366. Cameron v. Hunter, 34 IT. C. Q. B. 121. 394. Cameron v. Tarratt, 1 TJ. C. Q. B. 312. 404, 484, 661. Camp V. Bates, > 11 Conn. 51. 610, 612, 613. Camp V. Charles Thatcher Co., 75 Conn. 165, 52 Atl. 953. 31, 487, 624. .Campbell v. Arnold, 1 John. 511. 631. Campbell v. Coonradt, 26 Kan. 67. 602. Campbell v. John W. Taylor Co., 62 N. J. Eq. 307, 64 N. J. Eq. 344. 11, 425, 426, 442. Campbell v. O'Neill, 64 Pa. St. 290. 36, 147, 652. Campbell V. Eoddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. St. Eep. 889. 420. Campbell v. Taylor Mfg. Co., 64 N. J. Eq. 344, 59 Atl. 723, 62 N. J. Eq. 307, 49 Atl. 1119. 427. Canada, The, 7 Fed. 248. 74. Canada L. Co. v. Traders Bk., 29 Ont. 479, 462. THE BOTTOM PAGES.] Canada Sav. Soe. v. Merchants' Bk., 3 Man. 285. 60, 434, 543. Canadian P. E. T. Co., Ee, 34 Can. L. J. 789. 562. Canning v. Owen, 22 E. I. 624, 48 Atl. 1033, 84 Ajn. St. Eep. 858. 61, 433, 449. Cannon v. Barry, 59 Miss. 289. 265, 606. Cannon v. Hare, 1 Tenn. Ch. 22, 1 So. Law Eev. 240. 31, 138, 148, 153, 157, 174, 192, 263, 274, 283. Capehart v. Foster, 61 Minn. 132, 63 N. W. 257, 52 Am. St. E. 582. 35, 390, 396, 448. Capen v. Peckham, 35 Conn. 88, 9 Am. L. Eeg. 136. 21, 23, 31, 60, 391, 442. Caperton v. Stege, 91 Ky. 351, 21 Ky. L. E. 947, 15 S. W. 870, 16 S. W. 84. 202, 224. Capital Cy. G. Co. v. Charter 0. L Co., 51 Iowa 31, 50 N. W. 579. 559, 560. Capner v. Fleming M. Co., 3 N. J. Eq. 467. 609. Caraher v. Eoyal I. Co., 63 Hun 82, 17 N. Y. Supp. 858, 44 N. Y. St. E. 141. 379, 437. Cardiff Corp. Bill, 1 Eick. & S. 324. 104. Cardwell v. Atwater, 15 Ky. L. B. 570. 373. Carkin v. Babbitt, 58 N. H. 579. 53. Carkins v. Anderson, 21 Neb. 364. 95. Carlin v. Gordy, 32 La. A.. 1285. 484. Carlin v. Eitter, 68 Md. 478, 16 Atl. 301, 6 Am. St. E. 467. 18, 141, 143, 197, 255. Carlisle v. Killebrew; 89 Ala. 329, 6 So. 756, 6 L. E. A. 617. 361, 658. Carlisle v. Pullman P. C. Co., 8 Colo. 320, 7 Pac 164. 566. Carlisle v. Stevenson, 3 Md. Ch. 499. 602. XXIV TABLE OP CASES. [BEFEEENCES AKB TO Carman v. Hosier, 105 Iowa 367, 75 N. W. 323. 357. Carney v. Mosher, 97 Mich. 554, 56 N. W. 935. 359, 371. Carpenter v. Allen, 150 Mass. 281, 22 N. E. 900. 420. Carpenter v. Jones, 63 111. 517. 340, 359. Carpenter v. Lewis, 6 Ala. 682. 434. Carpenter v. Ottley, 2 Lans. 451. 341. Carpenter v. Poeasset Mfg. Co., 180 Mass. 130, 61 N. E. 816. 534. Carpenter v. Walker, 140 Mass. 416, 5 N. E. 160, 1 N. E. B. 586, 32 Alb. Law J. 318, 22 Cent. Law J. 404. 441. Carper v. Eisdon, 76 Pae. 744. 211, 223, 518, 652. Carr v. Burdiss, 5 Tyr. 309. 653. Carr v. Ellison, 20 Wend. 178. 532. Carr v. ErroU, 14 Yes. 478. 322. Carr v. Fire A. Assn., 14 Ont. 487. 71, 379, 388, 390, 392. Carr v. Georgia R. E., 74 Ga. 73, 18 Eep. 489. 151, 199, 208, 299, 383. Carro v. Tucker, 2 Tex. Ct. of App. Civ. 399. 396. CaTroll V. McCullough, 63 N. H. 95. 486. Carroll v. Newton, 17 How. Pr. 189. 182. Carroll v. Shooting the Chutes Co., 85 Mo. App. 563. 431. Carseallen v. Moodie, 16 IT. C. Q. B. 304. 436, 442, 543. Carson v. Browder, 70 Tenn. 701. 366, 372. Carson v. Simpson, 25 Ont. 385. 58, 68, 522, 540. Carter v. Pratt, 23 Kan. 613. 619. Carter v. Tyler County, 45 W. Va. 806, 32 S. E. 216. 561. Carterville v. Lyon, 69 Ga. 577. 633. Cartwright v. Savage, 5 Ore. 397. 345. Cartwright v. Wideman, 9 Haw. 685. 555. THE BOTTOM PAGES.] Carver v. Gough, 153 Pa. St. 225, 25 Atl. 1124. 136, 170, 195, 236. Carver v. Pierce, Sty. 66. 179, 305. Gary Hardware Co. v. McCarty, 10 Colo. App. 200, 50 Pac. 744. 26, 427. Case V. Arnett, 26 N. J. Eq. 459. 425, 442. Case V. L'Oeble, 84 Fed. 582. 33, 442, 483. Case Mfg. Co. v. Garven, 45 Ohio St. 289, 13 N. E. 493, 14 Wkly. Cin. L. Bui. 175. 60, 62, 388, 392, 442, 484, 485, 486, 488. Case of the Swans, 7 Co. 17 b. 327, 328. Cassell V. Ashley, 92 N. W. 1035. 346. Cassell V. Collins, 23 Ala. 676. 515. Cassell V. Crothers, 193 Pa. St. 359, 44 Atl. 446. 213, 659. Cassiano v. Ursuline Acad., 64 Tex. 673.- 398. Cassilly v. Ehodes, 12 O. 88. 343, 346. Castleberry v. Atlanta, 74 Ga. 164. 99. Casto V. Kintzel, 27 W. Va. 760. 524. Catterlin v. Armstrong, 101 Ind. 514, 79 Ind. 514. 407, 409, 412. Causey v. Empire Mills, 119 N. C. 180, ,25 S. E. 863. 29. Cave V. Cave, 2 Vern. 508, 1 Eq. Ca. Ab. 275. 285, 309. Cavis V. Beckford, 62 N. H. 229, 13 Am. St. E. 554. 388, 444. Cayuga E'y Co. v. Niles, 13 Hun 170, 6 N. Y. Wkly. Dig. 307. 112. Center v. Everard, 43 N. Y. Supp. 416, 19 Misc. 156. 225, 246. Central Br. E. E. Co. v. Fritz, 20 Kan. 430, 27 Am. Eep. 175. 19, 22, 28, 60, 70, 81, 381, 383, 618, 620. Central T. Co. v. Arctic I. Co., 77 Md. 202, 26 Atl. 498. 480. TABLE OF CASES. XXV [BEFERENCES ABB TO Central Trust Co. v. Cameron Iron Co., 21 Pitts. Leg. J. 377. 26. Central Tr. Co. v. Cincinnati Hotel Co., 26 Wkly. Law Bui. 149. 29, 453. Central Tr. Co. v. Moran., 56 Miun. 188, 57 N. W. 471. 48. Central Tr. Co. v. Sheffield Coal Ry. Co., 42 Fed. 106, 9 L. E. A. 67. 48, 430. ChafCee v. Fish, 2 Ohio Dec. 89, 1 Ohio N. P. 211. 29, 259. Chalifoux v. Potter, 113 Ala. 215, 21 So. 322. 216, 652. Chalmers, 11 Sess. Ca. 3rd Ser. 983. 577. Chamberlain, Ee, 140 N. Y. 390, 35 N. E. 602. 334. Chamberlain v. McCarthy, 59 Hun 158, 13 N. Y. Supp. 217. 208. Cbamberlayne v. Collins, 9 Eepts. 311. 12. Champ S. Co. v. B. Both T. Co., 103 Mo. App. 103, 77 S. W. 344. 255. Chandler v. Hamell, 57 App. Div. 305, 67 N. Y. S. 1068. 382. Chandler v. Oldham, 55 Mo. App. 139. 533. Chandler v. Thurston, 10 Pick. 205. 359. Channon v. Patch, 5 B. & C. 897. 333, 636. Chanter v. Dickenson, 5 M. & G. 253, 6 Scott N. E. 182. 517. Chapin v. Persse & B. Wks., 30 Conn. 461. 426. Chapman v. Long, 10 Ind. 465. 340. Chapman v. Union M. L. Ins. Co., 4 111. App. 29, 10 Cent. L. J. 99. 28, 32, 38, 437, 449, 450. Chapman v. Veach, 32 Kan. 167, 4 Pae. 100. 340, 341. Chappell V. Boyd, 56 Ga. 578. 336, 352. Charles v. Davis, 59 Cal. 479. 359. Charleston & W. C. By. Co. v. Hughes, 105 Ga. 1, 30 S. E. 972. 265. THE BOTTOM PAGES.] Charleston L. Co. v. Brockmyer, 18 "W. Va. 586. 408. Charleston Ey. Co. v. Hughes, 105 Ga. 1. 89, 284. Charlotte F. Co. v. Stouffer, 127 Pa. St. 336, 17 Atl. 994. 224. Chase v. Hazelton, 7 N. H. 171. 592. Chase v. New York I. Wire Co., 57 111. App. 205. 143, 154. Chase v. Taeoma Box Co., 11 Wash. 377, 39 Pac. 639. 30, 441. Chase v. Wingate, 68 Me. 204, 28 Am. Eep. 36, 6 Eep. 749, 18 Alb. Law J. 357. 32, 399, 412, 459, 460, 642. Chase County v. Shipman, 14 Kan. 532. 558. Chatham County v. Seaboard Air Line E. Co., 133 N. C. 216, 45 S. E. 566. 563. Chatterton v. Saul, 16 111. 149. 95, 102, 622. Cheatham v. Plinke, 1 Tenn. Ch. 576. 212, 217, 230. Chellis T. Stearns, 22 N. H. 312. 630. Cherry v. Arthur, 5 Wash. 787, 32 Pac. 744. 30, 441, 442. Chesebrough v. Pingree, 72 Mich. 438, 40 N. W. 747. 398. Cheshire v. Shutesbury, 7 Met. 566. 397. Chevalier v. Beauchemin, 17 Eev. Leg. 642. 417. Chicago & A. E. E. Co. v. Goodwin, 111 111. 273, 53 Am. Eep. 622. 90, 114, 227, 284. Chicago & N. W. Ey. Co. v. Ellson, 113 Mich. 30, 71 N. W. 324. 53, 541. Chicago & N. W. Ey. Co. v. Fort Howard, 21 Wis. 44. 50, 541, 567. Chicago D. & C. Co. v. Garrity, 115 111. 155, 3 N. E. 448. 88. Chicago I. & K. E. E. Co. v. Knuffke, 36 Kan. 367, 13 Pac. 582. 380. Chicago M. & St. P. Ey. Co. v. County XXVI TABLE OF CASES. [EEFEEENCES AEB TO THE BOTTOM PAGES.] of Houston, 38 Minn. 513, 38 N. "W. 619. 561. Chidley v. Churchwardens of West Ham, 32 L. T. B. 486. 30, 43, 577. Childress v. Wright, 2 Cold. 350. _ 86, 378. Childs V. Hurd, 32 W. Va. 66, 9 S. E. 362. 200, 218, 424. Chilvers v. Eace, 196 111. 71, 63 N. E. 701. 284, 523. . Choate v. Kimball, 56 Ark. 55, 19 S. W. 108. 4, 31, 412, 466. Choteau v. Thompson, 2 0. St. 114. 408. Christian v. Dripps, 28 Pa. St. 271. 25, 297, 381, 385, 413, 443, 461, 618. Church v. Griffith, 9 Pa. St. 117, 49 Am. Dec. 548. 431. Church V. Lapham, 94 App. Div. 550, 88 N. Y. Supp. 222. 382, 501. Chusehward v. Studdy, 14 East. 249. 328. Cicalla v. Miller, 105 Tenn. 255, 58 S. W. 210. 532. Cicero & P. S. E. Co. v. Chicago, 176 111. 501, 52 N. E. 866. 563. Cincinnati N. 0. & T. P. E. E. Co. v. Commonwealth, 81 Ky. 492. 566. Citizens' Bk. v. Crooks, 21 La. A. 324. 537. Citizens' Bk. v. Knapp, 232 La. Ann. 117. 74, 399. Citizens' Bk. v. Maureau, 37 La. A. 857. 407. Citizens' Bk. v. Miller, 44 La. A. 199, 10 So. 777. 407. Citizens' Bk. v. Wiltz, 31 La. An. 244. 365. Citizens' Nat. Bk. v. Strauss, 29 Tex, Civ. App. 407, 69 S. W. 86. 408, City of Buffalo, Ee, 1 N. Y. St. E 742. 152, 217. City of Crawfordsville v. Boots, 76 Ind. 32. 397. City of Dubuque v. Illinois C. E. E., 39 Iowa 56. 566. Clafflin V. Carpenter, 4 Met. 580. 373. Clap V. Draper, 4 Mass. 266. 375. Clark V. Banks, 6 Hous. 584. 351, 353, 354, 363, 364. Clark V. Bartorf, 1 N. Y. S. C. E. 58. 351. Clark T. Bulmer, 11 M. & W. 243. 663, 665. Clark V. Burnside, 15 111. 62. 305. Clark V. Calvert, 8 Taunt. 742, 3 B. Moore 107. 365, 550, 655. Clark V. Crownshaw, 3 B. & Aid. 804. 504. Clark V. Gaskarth, 8 Taunt. 431. 365, 550. Clark V. Guest, 54 O. St. 298, 43 N. E. 862. 374. Clark V. Harvey, 54 Pa. St. 142. 354. Clark v. Hill, 117 N. C. 11, 23 S. E. 91, 53 Am. St. Eep. 574. 407. Clark V. Jones, 1 Den. 516. 211. Clark V. McKnight, 25 Tex. Civ. App. 60, 61 S. W. 349. 61, 382. Clark V. Eeyburn, 1 Can. 281. 72, 73. Clark V. Smith, 1 N. J. Eq. 121. 422. Clark V. Wheaton, 62 Ga. 173. 342. Clarke v. Earl of Ormonde, 1 Jac. 115. 322. Clarke v. Holford, 2 C. & K. 540. 549, 639, 643, 656. Clarke v. Howland, 85 N. Y. 204. 260. Clarke v. Eannie, 16 Lans. 210. 353. Clarke v. Tresider, 4 Wyatt W. & A. 164. 213. Clarke's Set., (1902) 2 Ch. 327, 71 L. J. Ch. 593, 86 L. T. E. 653, 50 W. E. 585. 11. Clary v. Owen, 15 Gray 522. 420, 647. Clayton v. Burtenshaw, 5 B. & C. 41. 517. Cleaver v. Culloden, 15 U. C. Q. B. 582. 382, 642. Clemence v. Steere, 1 E. I. 272. 265, 284. Clemens v. Murphy, 40 Mo. 121. 228. TABLE OF CASES. XXVll [ebfekences abb to Clemens' Est., Ee, 9 N. Y. Supp. 474, 2 Connoly Surr. 237. 351. Clement v. Commonwealth, 20 Ky. L. E. 688, 47 S. W. 450. 670. Clement v. Wheeler, 25 N. H. 360. 606. Cleveland "Wks. v. Lang, 67 N. H. 348, 31 Atl. 20. 480. Cleves V. Willoughby, 7 Hill. 83. 404. Clifton V. Jackson I. Co., 74 Mich. 183, 41 N. W. 891. 341, 377. Climer v. Wallace, 28 Mo. 556, 75 Am. Dec. 535. 92, 454. Climie V. Wood, L. E. 3 Exeh. 257, 37 L. J. N. S. E. 158, 18 L. T. N. S. 609, L. E. 4 Exch. 328, 38 L. J. N. S. E. 223, 20' L. T. N. S. 1012. 2, 4, 6, 77, 308, 387, 405, 443, 555. Clore V. Lambert, 78 Ky. 224. 28, 32, 60, 401, 415, 419, 438 543. Close V. Belmont 22 Gr. Ch. 317. 482. Clove S. I. Wks. V. Cone, 56 Tt. 603. 561. Coates V. Caldvcell, 71 Tex. 19, 8 S. W. 922. 365. Coatsvporth, Ee, 37 App. Div. 295, 55 N. Y. Supp. 753. 532. Cobel V. Cobel, 8 Pa. St. 346. 340. Coburn v. Ames, 52 Calif. 385, 28 Am. Eep. 634. 247. Cochran v. Elint, 57 N. H. 514. 84, 104, 417. Cochrane v. Stevenson, 18 Sess. Ca. 4th Ser. 1208, 28 Scot. Law E. 848. 452. Cock V. Weatherby, 13 Miss. 333. 329. Cockey v. Carroll, 4 Md. Ch. 344. 602. Cocking V. Ward, 1 C. B. 858. 515. Coddington v. Beebe, 29 N. J. 550, 31 N. J. 477. 4, 31, 639. Coddington v. Dry Dock Co., 31 N. J. L. 477. 44, 431. Coe V. Columbus P. & I. E. E. Co., 10 Ohio St. 372. 50, 541. Coey's Est., 1 Tuck. 125. 313. Coffin V. Cof&n, Jac. 70. 603. THE BOTTOM PAGES.] Coffin V. Talman, 8 N. Y. 465. 527. Coffmau, Ee, 93 Fed. 422. 369. Cohen v. Kyler, 27 Mo. 122. 389. Cohen v. Saint L. F. E. & W. E. E. Co., 34 Kan. 158, 8 Pac. 138. 89. Cohoou V. Simmons, 7 Ired. 189. 632. Coker v. Whitlock, 54 Ala. 180. 611. Cole V. Fitzgerald, 1 Sim. & Stu. 189, 3 Euss. 301. 475. Cole V. Forth, 1 Mod. 95, 1 Lev. 309. 127. Cole V. Greene, 1 Lev. 309, 1 Mod. 95. 127. Cole V. Eoach, 37 Tex. 413. 21, 26, 60, 394, 435, 444, 456. Cole V. Stewart, 11 Cush. 181. 393, 411, 630. Colegrave v. Dias Santos, 2 B. & C. 76, 3 D. & R. 255. 2, 310, 399, 404, 473, 647. Coleman v. Lewis, 27 Pa. St. 291. 103, 478. Coleman v. Smith, 55 Ala. 368. 611. Coleman v. Steams Mfg. Co., 38 Mich. 30, 19 Am. Law Eeg. 199. 32, 388, 392, 409, 413. Coleman v. Witherspoon, 76 Ind. 285. 422. Coles V. Coles, 37 Atl. 1025. 477. Coles V. Peck, 96 Ind. 333. 533. Collamore v. Gillis, 149 Mass. 578, 22 N. E. 46, 5 L. R. A. 150, 14 Am. St. R. 460. 146, 152. Collier v. Cunningham, 2 Ind. App. 254, 28 N. E. 341. 360, 658. Collier v. Jenks, 19 R. I. 137, 32 Atl. 208, 61 Am. St. Eep. 741. 459. Collins V. Bartlett, 44 Calif. 371. 94, 545. Collins V. Crownover, 57 S. W. 357. 357. Collins V. Mott, 45 Mo. 100. 426. Collins V. Eichart, 77 Ky. 621. 614. Colonial Bk. v. Eiley, 22 Vict. L. R. 288. 405. Colorado Fuel Co. v. Pueblo W. Co., 11 Colo. App. 352. 559. XXVIU TABLE OF CASES. [BEFEEENCES AKB TO Columbia Tr. Co. v. Kentucky Ey. Co., 60 Fed. 794, 9 C. C. A. 264, 22 U. S. App. 54. 50. Coman v. Thompson, 47 Mich. 22, 10 N. W. 62, 41 Am. Eep. 706. 340. Comfort V. Duncan, 1 Miles 229. 354. Comfort V. Everhardt, 35 W. N. C. 364. 99. Comfort V. Fulton, 39 Barb. 56, 13 Abb. Pr. 376. 668, 670. Commercial Bk. v. Pritchard, 126 Calif. 600, 59 Pac. 130. 122, 403, 404. Commercial Ins. Co. v. Allen, 80 Ala. 571, 1 So. 202. 8, 12, 379. Commissioners of Anne Arundel County V. Baltimore S. Co., 58 Atl. 211. 62, 564. Commissioners of Chase County v. Shipman, 14 Kan. 532. 558. Commissioners of Chatham County v. Seaboard A. L. By. Co., 133 N. C. 216, 45 S. E. 566. 563. Commissioners of Pitkin County v. Brown, 2 Colo. App. 473, 31 Pac. 525. 150, 221, 223. Commissioners of Rush County v. Stubbs, 25 Kan. 322. 19, 32, 104, 105, 107, 622. Commissioners of Taxes v. Kauri T. Co., 17 N. Zea. 696. 373. Commonwealth v. Brooks, 164 Mass. 397, 41 N. E. 660. 87. Commonwealth ^. Bruce, 79 Ky. 560. 36, 677. Commonwealth v. Fitzgerald, 164 Mass. 587, 42 N. E. 119. 113. Commonwealth v. 'Lowell Gas Light Co., 12 Allen 75. 559. Commonwealth v. Stephenson, 8 Pick. 354. 677. Commonwealth v. Trimmer, 1 Mass! 476. 677. Commonwealth v. Wesley, 166 Mass. 248, 44 N. E. 228. 117, 513. Compound L. Co. v. Murphy, 169 111. 343, 48 N. E. 472. 426. THE BOTTOM PAGES.] Comstock V. Scales, 7 Wis. 159. 366, 367. Conde v. Lee, 55 App. Div. 401, 67 N. Y. Supp. 157, 171 N. Y. 662, 64 N. E. 1119. 22, 33, 117, 140, 141, 208, 520. Condit V. Goodwin, 89 N. Y. Supp. 827. 417, 448. Conduitt V. Soane, 1 Colly. Ch. 285. 323. Coney's Case, Godb. 122. 328. Confiscation Ca., 1 Wood 221, Fed! Cas. No. 3097. 533. Congdon v. Sanford, Hill. & 0en. 196- 347. Conger v. Ensler, 85 App. Div. 564, 83 N. Y. Supp. 419. 529, 532. Congregational Soc. of Dub. v. Flem- ing, 11 Iowa 533, 79 Am. Dec. 511. 21, 31, 62, 540, 618. ConkUn v. Foster, 57 111. 104. 548. ConkUn v. Parsons, 1 Chand. 230, 2 Pinney 264. 53, 454. Conner v. Coffin, 22 N. H. 538. 341, 516. Conner v. Jones, 28 Calif. 59. 528. Conner v. Littlefield, 79 Tex. 76, 15 S. W. 217. 20. Conner v. Squiers, 50 Vt. 680. 70, 395, 642. Conrad v. Saginaw Min. Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Eep. 817. 32, 137, 140, 151, 153. Conrad v. Starr, 50 Iowa 470. 265. Consolidated C. Co. v. Sabits, 57 111. App. 659. 592. Consolidated Co. v. Baltimore, 62 Md 588. 560. Consolidated E. Co. v. Crowley, 105 La. 615, 30 So. 222. 426. Consumers' G. Co., Ee, 30 Can. L. J 157. 560. Consumers' G. Co. v. Toronto, 27 Can. 453, 23 Ont. App. 551. 559. Cook V. Champlain T. Co., 1 Den. 102 125, 140, 657. TABLE OF CASES. XZIX [BBFEBENCES ABQ TO Cook V. Condon, 6 Kan. App. 574, 51 Pac. 587. 28, 35, 61, 462. Cook V. Enright, 134 Calif. 1, 66 Pac. 3. 384. Cook V. Ottawa Univ. 14 Kan. 548. 422. Cook V. Sanitary Dist., 67 III. App. 286, 169 111. 184, 48 N. E. 461, 39 L. E. A. 369, 61 Am. St. Kep. 311. 255. Cook V. Scheid, 4 Wkly. Cin. L. B. 1123, 8 Am. Law Eec. 493. 255. Cook V. Steel, 42 Tex. 58. 365, 368. Cook V. Whiting, 16 111. 480. 21, 53, 435, 454. Cooke V. Cooper, 18 Ore. 142, 22 Pac. 945, 7 L. E. A. 273. 423. Cooke V. McNeil, 49 Mo. App. 81. 32, 428. Cooke V. Miller, 54 Atl. 927. 529. Cooke's Case, Moore 177. 46, 127, 132, 167, 189, 299, 300. Cooley V. Kansas City &c. E. E. Co., 149 Mo. 487, 51 S. W. 101. 375. Coombs V. Beaumont, 5 B. & Ad. 72, 2 Nev. & Man. 235, 2 L. J. N. S. K. B. 190. 123, 509, 544. Coombs V. Jordan, 3 Bland Oh., 311, 22 Am. Dec. 226. 423, 425. Cooper V. Adams, 6 Gush. 87. 118. Cooper V. Cleghom, 50 Wis. 113, 6 N. W. 491, 1 Ky. L. E. 303. 106, 107, 427. Cooper V. Davis, 15 Conn. 556. 74, 611, 612. Cooper V. Harvey, 16 N. Y. Supp. 660, 41 N. Y. St. E. 594. 29, 407, 418, 472. Cooper v. Johnson, 143 Mass. 108, 9 N. E. 33, 3 N. Eng. E. 183. 140. Cooper V. Watson, 73 Ala. 252. 618, 626, 628. Cooper V. Woolfit, 2 H. & N. 122, 3 Jur. N. S. 370, 26 L. J. Exch. 310. 350. Coor V. Smith, 101 N. C. 261, 7 S. B. 669. 340, THE BOTTOM FAQIS.] Cope V. Eomeyne, 4 McLean 384. 71, 643. Cope V. Vallette Dry Dock Co., 16 Fed. 924.- 44. •Copley V. O 'Neil, 1 Lans. 214. 94. Copp V. Swift, 26 S. W. 438. 33, 56, 57. Copper V. Wells, 1 N. J. Eq. 10. 528, 529, 533. Corbett v. Laurens, 5 Eich. 301. 524. Corcoran v. Doll, 35 Calif. 476. 362. Corcoran v. Webster, 50 Wis. 125, 6 N. W. 513. 66, 68, 521. Corder v. Drakeford, 3 Taunt. 382. 517. Core V. Bell, 20 W. Va. 169. 612. Corey v. Bishop, 48 N. H. 146. 182, 201, 214, 460. Corle V. Monkhouse, 47 N. J. Eq. 73, 20 Atl. 367. 355. Corliss V. McLagin, 29 Me. 115. 389, 390, 412. Corrigan v. Chicago, 144 111. 537, 33 N. E. 746. 196, 224. Corven's Case, 12 Co. 105. 320, 324. Corwiu V. Cowan, 12 Ohio St. 629. 117. Corwin v. Moorhead, 43 Iowa 466. 102, 104, 109, 622. Cory V. Bristow, L. E. 1 C. P. D. 54, L. E. 10 C. P. 504, 44 L. J. M. C. 153, 2 App. Cas. 262, 46 L. J. M. C. 273, 10 Cox Mag. 172, 19 Eng. Eepts. 85. 568, 570, 571. Cory V. Churchwardens of Greenwich, L. E. 7 C. P. 499. 568, 571. Cosby V. Shaw, 23 L. E. Ir. 181, 19 L. E. Ir. 307. 241. Cosgrove v. Troescher, 62 App. Div. 123, 70 N. Y. Supp. 764. 29, 56, 436, 437, 447, 448, 450. Coster V. Cowling, 7 Bing. 456. 517. Gotten v. Willoughby, 83 N. C. 75, 35 Am. Eep. 564. 367, 368. Cotter V. Metropolitan Ey. Co., 12 W. E. 1021, 10 L. T. N. S. 777. 123. Cottle V. Harrold, 72 Ga. 830. 601. XXX TABLE OF CASES. [EEFEEBNCES AKE TO Cottle V. Spitzer, 65 Calif. 456, 4 Pae. 435. 338, 559. Cotton, Ex parte, 2 Mont. Dea. & DeG. 725, 6 Jur. 1045. 413, 504. " Cottrell V. Apsey, 6 Taunt. 322. 665. Cottrell V. Griffin, 18 N. Y. Wkly. Dig. 270. 452. Couch V. Welsh, 24 Utah 36, 66 Pae. 600. 140, 151, 161. Coulter's Case, 5 Co. 30 b. 79. Countess of Lincoln v. Duke of New- castle, 3 Ves. Jr. 387, 12 Ves. Jr. 218. 822. Covenhoven v. Shuler, 2 Paige 122. 323. Covington Gas-Light Co. v. Covington, 84 Ky. 94, 7 Ky. L. E. 763. 560, 561. Cowan V. Assessor for Midlothian, 21 Sess. Ca. 4th Ser. 812. 122, 573. Cowart V. Cowart, 71 Tenn. 57. 33, 419, 543. Cowden v. Saint John, 16 Iowa 590. 412. Cowell, Ex parte, 12 Jur. 411. 405. Cowell V. Phoenix Ins. Co., 126 N. C. 68*4, 36 S. E. 184. 66, 219. Cox V. Cook, 46 Ga. 301. 365. Cox V. Douglas, 20 W. Va. 175. 602. Cox V. Godsalve, Holt's MSS., 157. 351. Cox V. Eicraft, 2 Lee Ecc, 373. 327. Craddock v. Eiddlesbarger, 2 Dana 205. 334, 364. Craig V. Dale, 1 W. & S. 509. 854. Craig V. Watson, 68 Ga. 114. 362, 658. Cramp v. Bayley, Kent Lent Ass. 1819. 825. Crane v. Brigham, 11 N. J. Eq. 29. 31, 378, 387, 390, 433, 439, 445. Crane Iron Wks. v. Wilkes, 64 N._ J. L. 193, 45 Atl. 1033. 32, 436, 442. Cranston v. Beck, 56 Atl. 121. 417. Crapo V. Seybold, 36 Mich. 444. 365. Crawford v. Findlay, 18 Gr. Ch. 51. 33, 46, 443, 455, 462, THE BOTTOM PAGES.] Crawfordsville v. Boots, 76 Ind. 32. 397. Creager v. Creager, 87 Ky. 449, 9 S. W. 380. 341. Cream Cy. M. P. Co. v. Swedish B. & L. A., 74 111. App. 362. 484: Creel v. Kirkham, 47 111. 344. 350. Crenshaw v. Crenshaw, 2 Hen. & Mun. 22. 296. Crerar v. Daniels, 109 111. App. 654, 209 111 296, 70 N. E. 569. 20, 32, 35, 137, 143, 202. Cresson v. Stout, 17 John. 116, 8 Am. Dec. 373. 74, 441, 618, 619. Crest V. Jack, 3 Watts 238. 86, 92. Crews V. Pendleton, 1 Leigh 297. 844. Crine v. Tifts, 65 Ga. 644. 368. Crippen v. Morrison, 13 Mich. 35. 73, 414, 478, 483, 488. Crocker v. Donovan, 1 Ok. 165, 30 Pae. 374. 170, 385, 558. Crocker v. Pox, 1 Eoot. 823. 591. Crockett v. Crockett, 2 Ohio St. 180. 604, 613. Crockett v. Northampton, 72 L. J. K. B. 820. 573. Cromie v. Hoover, 40 Ind. 49. 149, 150, 194, 205. Crosby v. Moses, 48 N. Y. Super. 146. 534. Crosby v. Wadsworth, 6 East. 602. 364, 371. Cross V. Barnes, 46 L. J. Q. B. 479. 388, 407, 443, 587. Cross V. Marston, 17 Vt. 533, 44 Am. Dec. 358. 22, 81, 83. Cross V. Weare Com. Co., 153 111. 499, 38 N. E. 1038, 40 Am. St. Eep. 902. 35, 398, 521. Crotty V. Collins, 13 111. 567. 361. Crouch V. Smith, 1 Md. Ch. 401. 435. Crowe V. Wilson, 65 Md. 479, 5 Atl. 427, 57 Am. Eep. 343, 3 Cent. 881. 607. Crum V. Hill, 40 Iowa 506. 55, 382. Cubbins v. Ayres, 72 Tenn. 329. 80 141, 143, 155, 251, ' TABLE OF CASES. XXXI [KEPEEENCBS ABE TO Cudworth v. Scott, 41 N. H. 456. 366, 368. Cullers V. James, 66 Tex. 494, 1 S. W. 314. 114, 152. Culleton V. Keiiiie, 18 Ky. L. R. 1065, 39 S. W. 511. 263. CulUng V. Tufenal, Bull. N. P. 34. 14, 165, 178. Cullwick V. Swindell, L. E. 3 Eq. 249, 36 L. J. Ch. 173, 15 W. E. 216. 401, 405, 406, 413, 473, 504. Cumberland B. Co. v. Maryport I. Co., (1892) 1 Ch. 415, 61 L. J. Ch. 227, 66 L. T. E. 108, 40 "W. E. 280. 406. Cumberland M. Ey. v. Portland, 37 Me. 444. 566. Cumberland Nat. Bk. v. Baker, 57 N. J. Eq. 231, 40 Atl. 850. 367. Cummings v. Tindall, 4 Stew. & Port. 357. 315. Cunningham v. Coyle, 2 Tex. Ct. App. Civ. Ca., s. 423. 365. Cunningham v. Cureton, 96 Ga. 489, 23 S. E. 420. 408, 486. Cunningham v. Seaboard E. Co., 58 Atl. 819. 407, 448. Cunningham v. Webb. 69 Me. 92. 397. Cuppy V. O 'Shaughnessy, 78 Ind. 245. 136, 223, 603, 607. Curlee v. Tex. H. I. Co., 73 S. W. 831. 408. Curnew v. Lee, 143 Mass. 105, 8 N. E. 890. 427. Curran v. Smith, 37 111. App. 69. 48, 430. Current E. L. Co. v. Cravens, 54 Mo. App. 216. 426. Currier v. Cummings, 40 N. J. Eq. 145, 3 Atl. 174, 2 Cent. 200. 427. Curry v. Schmidt, 54 Mo. 515. 457. Curtis v. Leasia, 78 Mich. 480, 44 N. W. 500. 33, 98. Curtis V. Eiddle, 7 Allen 185. 103, 108. Curtiss V. Hoyt, 19 Conn. 165, 48 Am. Dec 149. 102, 103. Cutler V. Pope, 13 Me. 377. 371. THE BOTTOM PAGES.] Cutter V. Wait, 131 Mich. 508, 91 N. W. 753. 382, 384, 620, 626. Cutting V. Pike, 21 N. H. 347. 65. Dacre's Case, 1 Lev. 58. 659. Daglish, Ex parte, L. E. 8 Ch. App. 1072, 21 W. E. 893, 42 L. J. B. 102, 29 L. T. N. S. 168, 7 Eng. B. 562. 470, 491, 494, 495, 497, 499. Bail V. I^eeman, 92 N. C. 351. 67, 343. Dakota L. Co. v. Parmalee, 5 S. D. 341, 58 N. W. 811. 616. Dalton V. Whittem, 3 Q. B. 961. 552, 643, 644. Daly V. Marshall, 4 N. Z. L. E. Supr, Ct. 28. 8, 200, 255. Dame v. Dame, 38 N. H. 429, 75 Am. Dec. 195. 103, 107, 182, 201, 214, 363, 478, 651. Dame Wiche's Case, 9 Edw. 4, 14. 320. Damery v. Ferguson, 48 111. App. 224. 341, 349. Dana v. Burke, 62 N. Ham. 627. 47. Daniels v. Bailey, 43 Wis. 566. 375. Daniels v. Bowe, 25 Iowa 403, 95 Am. Dec. 797. 411. Daniels v. C. I. & N. E. Co., 41 Iowa 52. 90. Daniels v.- Detwiler, 14 Montg. Co. 58. 33, 448. Daniels v. Pond, 21 Pick. 357, 32 Am. Dec. 269. 180, 182, 642. Darby v. Farrow, 1 McCord 517. 237. Darby v. Harris, 1 Q. B. 895. 552, 553. Darby v. Whitaker, 5 W. E. 772. 528. Darcy v. Askwith, Hob. 234. 194. Darnell v. Jones, 24 Ky. L. E. 2091, 72 S. W. 1108. 92. Darrah v. Baird, 101 Pa. St. 265, 15 Eep. 247, 22 Am. Law Eeg. 532, 40 Leg. Intel. 121, 13 Wkly. N. Cas. 332, 13 Pitts. Leg. J. 215, 12 Pitts. . Leg. J. 240, 122, 200, 207, 647, 654, xxxu TABLE OF CASES. [EEFBEENCES AEE TO THE BOTTOM PAGES.] Dascey v. Harris, 65 Calif. 357, 4 Pao. 204. 369. Daubner, Ee, 96 Fed. 805. 369. Davenport v. Magoon, 13 Ore. 3, 4 Pac. 299, 57 Am. Eep. 1. 608. Davenport v. Shajits, 43 Vt. 546. 390, 392, 415, 537, 486. Davidson v. Crump Mfg. Co., 99 Mich. 501, 58 N. W. 475. 224. Davidson v. Westchester Gas-Light Co., 99 N. Y. 558, 2 N. E. 892, 1 Cent. 238, 2 East. K. 312. 104, 410, 440. Davies v. Connop, 1 Price 53. 353, 655. Daviea v. Powell, Willes 46, 7 Mod. 249. 328, 330, 549. Davis V. Brocklebank, 9 N. H. 73. 358. Davis V. Buffum, 51 Me. 160. 198, 478, 481, 649, 651. Davis V. Callahan, 66 Mo. App. 168. 361, 520. Davis V. Danks, 3 Exeh. 435, 18 L. J. Ex. 213. 635, 637. Davis V. Easley, 13 111. 192. 620. Davis V. Eaatham, 81 Ky. 116, 4 Ky. L. E. 850. 26, 28, 62, 67, 170, 537, 540. Davis V. Elliott, 7 Ind. App. 246, 34 N. E. 591. 383. Davis V. Emery, 61 Me. 140. 65, 68, 201. Davis V. Eyton, 7 Bing. 154, 4 M. & P. 820. 210, 358. Davis V. Handy, 37 N. H. 65. 397. Davis V. Jones, 2 B. & Aid. 165. 19, 165, 648. Davis V. Leo, 6 Ves. 784. 603, 608. Davis V. McFarlane, 37 Calif. 634. 370, 372. Davis V. Moss, 38 Pa. St. 346. 140, 150, 161, 198, 207, 211. Davis V. Mugan, 56 Mo. App. 311. 4, 29, 56, 388, 393, 412, 440. Davis V. Eeamer, 105 Ind. 318, 4 N. B. 857. 44. Davis V. Stark, 30 Kan. 565, 2 Pac. 637. 229. Davis V. Taylor, 41 111. 407. 650, 652. Davison v. Poole, 65 Tex. 376. 394. Davy V. Lewis, 18 V. C. Q. B. 21. 145, 227, 236, 259, 403. Dawdy, Ee, 15 Q. B. D. 426. 535. Dawson, Ee, Ir. L. E. 2 Eq. 218, 16 W. E. 424. 433, 435. Dawson v. State, 52 Ind. 478. 674. Dawson T. & Co., Ee, Ir. E. 2 Eq. 218, 16 W. E. 492, 499, 504. Day V. Austin, Owen 70, Cro. Eliz, 374. 132, 139, 167, 196, 299, 544, 656. Day V. Bisbitch, Owen 70, Cro. Eliz. 374. 196, 544, 656. Day v. Merry, 16 Ves. 375. 266, 606. Day V. Perkins, 2 Sandf . Ch. 359. 403, 405. Dayton v. Dakin, 103 Mich. 65, 61 N. W. 349. 344, 370. Dayton v. Vandoozer, 39 Mich. 749, 360. Deal v. Pahner, 72 N. C. 582. 26, 443. Deal V. Smart, 1 Tex. Ct. App. Civ. 610. 33, 483. Dean v. AUaley, 3 Esp. 11. 149, 153, 168, 239, 254, 301. Dean v. Feely, 69 Ga. 804. 524. Dean v. Pyneheon, 3 Pinney 17, 8 Chand. 9. 397, 546, 548, 659. Deane v. Hutchinson, 40 N. J. Eq. 83, 2 Atl. 292, 2 East. E. 542. 135, 236. Dearden v. Evans, 5 M. & W. 11. 83. Deardorff v. Everhartt, 74 Mo. 37. 426. Debow V. Colfax, 10 N. J. L. 128. 357, 359. Decell V. McEee, 35 So. 940. 104, 615. Decker v. Fisher, 4 Barb. 592. 329. Deeble v. McMullen, 8 Ir. C. L. 355. 142, 206, 234, 254. Deering v. Ladd, 22 Fed. 575. 104. TABLE OP CASES. XXXUl [BEFEBENCES ABE TO DeFalbe, Be [1901], 1 Ch. 523, [1902] A. 0. 157, 70 L. J. Ch. 286. 4, 33, 265, 277, 278, 308, 474. Defiance M. Wks. v. Trisler, 21 Mo. App. 69. 417. DeGraffenreid v. Scruggs, 4 Humph. 451, 40 Am. Dec. 658. 378, 391, 437. Deiahler v. Golbaugh, 2 Ky. L. E. 231; 251, 525. DeLacy v. Tillman, 83 Ala. 155, 3 So. 294. 28, 71, 388. DeLaine v. Alderman, 31 S. C. 267, 9 8. E. 950. 114. Delaware L. & W. E. E. Co. v. Ox- ford Iron Co., 36 N. J. Eq. 452. 46, 390, 391, 392, 407, 462, 464. Demby v. Parse, 53 Ark. 526, 14 S. W. 899, 12 L. E. A. 87. 284. Demi v. Bossier, 1 Penn. 224. 354. DeMott V. Hagerman, 8 Cow. 220. 361, 628. Den V. Craig, 15 N. J..L. 191. 657. Denham v. Sankey, 38 Iowa 269. 115, 110. Dennett v. Dennett, 43 N. H. 499. 608, 613. Dennett v. Hopkinson, 63 Me. 350, 18 Am. Eep. 227, 13 Am. L. Eeg. N. S. 359. 350. Denver T. & W. Co. v. Swem, 8 Colo. Ill, 5 Pac. 836. 216, 664. D'Eresby, Ex parte, 43 L. T. E. 638, 22 Alb. L. J. 382, 44 L. T. E. 781, 29 W. E. 527, 15 Co. Ct. & B. 39, 163. 4, 75, 251, 259, 508, 510. Desloge v. Pearce, 38 Mo. 600. 117. Des Moines W. Co., Be, 48 Iowa 324. 564. Despatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205, 37 Am. Dee. 203. 21, 27, 378," 388, 389, 391, 397, 433, 543, 559, 560. Detroit v. Wayne Circ. Judge, 127 Mich. 604, 86 N. "W. 1032. 566. Detroit & B. C. E. E. Co. v. Busch, THE BOTTOM PAGES.] 43 Mich. 571, 6 N. W. 90. 84, 647, Detroit &c. E. E. Co. v. Forbes, 30 Mich. 166. 516. Detroit U. Ey. v. Board of Commis- sioners, 98 N. "W. 997. 58, 564. Devin v. Dougherty, 27 How. Pr. 455. 143, 256. Dewar v. Mallory, 26 Gr. Ch. 618. 471. Dewey v. Brownell, 54 Vt. 441. 422. Dewey v. Walton, 31 Neb. 819, 48 N. W. 960. 425. Dewitt V. Mathey, 18 Ky. L. E. 257, 35 S. W. 1113. 13. Dewitz V. Shoeneman, 82 111. App. 378. 647. D'Eyncourt v. Gregory, L. E. 3 Eq. 382, 36 L. J. N. S. Ch. 107, 15 W. E. 186. 21, 31, 38, 44, 82, 277, 278, 309, 450. Dickey v. WilMns, 17 So. 374. 355. Dickinson, Ex parte, 29 S. C. 453, 7 S. E. 593. 543. Dickinson v. Baltimore, 48 Md. 583. 591, 592. Dickinson v. Jones, 36 Geo. 97. 606. Dickson v. Hunter, 29 Gr. Ch. 73. 26, 388, 407. Dietrich v. Murdock, 42 Mo. 279. 117. Dietrichs v. Lincoln & N. W. E. E. Co., 13 Neb. 43, 13 N. W. 13. 19, 478. Dietz V. Mission Co., 95 Calif. 92, 30 Pac. 380. 398. Diffedorfer v. Jones. 354. Dimmock v. Cook Co., 115 Pa. St. 573, 8 Atl. 627. 428. Dingley v. Buffum, 57 Me. 381. 142, 198, 213. Direks v. Brant, 56 Md. 500. 353, 354. District Twp. of Corwin v. Moore- head, 43 Iowa 466. 102, 104, 109, 622. Dixon V. Mackay, 38 Can. Law J. XXXIV TABLE OP CASES. [EEFEEENCES AKH TO 653, 22 Can. L. T. 0. N. 374. 19, 95, 537, 546. Doak V. Wiswell, 38 Me. 569. 94, 194, 284. Dobbins v. Lusch, 53 Iowa 304, 5 N. W. 205. 345, 358, 363. Dobschuetz v. Holliday, 82 111. 371. 122, 209, 427, 430, 432. Docking \. Frazell, 34 Kan. 29, 7 Pac. 618, 38 Kan. 420, 17 Pac. 160. 32, 61, 144, 195. Dodder v. Snyder, 110 Mich. 69, 67 N. W. 1101. 375. Dodge V. Beattie, 61 N. H. 101. 114, 546. Dodge V. Berry, 26 Hun 246. 83. Dodge V. Hall, 168 Mass. 435, 47 N. E. 110. 429. Dodge Cy. Wat. Co. v. Alfalfa Land Co., 64 Kan. 247, 67 Pac. 462. 28, 402. Doe V. Burt, 1 Term. 704. 259. Doe V. Davis, 15 Jur. 155. 248. Doe V. Witheriek, 3 Bing. 11, 10 Moore 267. 361. Dollar V. Eoddenbery, 97 Ga. 148, 25 S. E. 410. 342. DoUiver v. Ela, 128 Mass. 557. 104, 651, 652. Dominick v. Parr, 22 S. Car. 585. 479, 623. Don V. Warner, 28 Nova S. 202, 26 Can. 388. 499. Donkin v. Crombie, 11 TJ. C. C. P. 601. 63, 76, 200, 211, 236. Donnelly v. Friek & L. Co., 207 Pa. St. 597, 57 Atl. 60. 205. Donnelly v. Thieben, 9 III. App. 495. 124, 199, 649, 662, 663. Donnewald v. Turner Co., 44 Mo. App. 350. 29, 208, 210, 545. Donovan v. Consolidated C. Co., 88 111. App. 589. 641. Donworth v. Sawyer, 94 Me. 242, 47 Atl. 527. 333. Dooley v. Crist, 25 111. 551. 31, 102, 381. THE BOTTOM PAGES.] Doran v. Willard, 14 N. B. 358. 19, 33, 382, 394, 647. Doremus v. Howard, 23 N. J. L. 390. 366. Doren v. Lupton, 154 Ind. 396, 56 N. E. 849. 657. Dorr v. Dudderar, 88 111. 107. 619, 620. Dorsett v. Gray, 98 Ind. 273. 355. Dorsey v. Eagle, 7 Gill & J. 331. 353. Doscher v. Blaekiston, 7 Ore. 143. 19, 30, 87. Dostal V. MeCadden, 35 Iowa 318. 143, 150, 199, 486. Doty V. Gorham, 5 Pick. 487. 103, 112, 153. Dougherty v. McCalgan, 6 Gill & J. 275. 422. Dougherty v. Spencer, 23 111. App. 357. 167, 195, 603. Doughty V. Owen, 19 Atl. 540. 29, 388, 390. Douglas V. Shumway, 79 Mass. 498. 373. Douglass V. Anderson, 28 Kan. 262. 205, 523, 535. Douglass V. Bunn, 110 Ga. 159, 35 S. E. 339. 374. Douglass y. Wiggins, 1 John. Ch. 435. 601. Dover v. Maine W. Co., 90 Me. 180, 38 Atl. 101. 560. Dowall V. Miln, 1 Sess. Ca. 4th Ser. 1180. 30, 60, 296, 303, 437, 442. Dowd V. Pawcett, 4 Dev. 95. 80. Downard v. Groff, 40 Iowa 597. 345. Downes v. Craig, 9 M. & W. 166. 292. . Downing v. Marshall, 1 Abb. Ct. App. Dec. 525. 303, 473. Downshire v. Sandys, 6 Ves. 107. 266, 606. Dows V. Congdon, 16 How. Pr. 571. 90, 410. Drake v. Howell, 133 N. C. 162, 45 S. E. 539. 374. Draper v. Barnes, 12 E. I. 156. 339. TABLE OP CASES. XXXV [BEFEBBNCES ABE TO Dreiske v. People's L. Co., 107 111. App. 285. 206, 218. Driesbach v. Boss, 195 Pa. St. 278, 45 Atl. 722. 397. Dryden v. Kellogg, 2 Mo. App. 87. 217, 228, 660. Dubois V. Beaver, 25 N. Y. 123, 82 Am. Dec. 326. 100. Dubois V. Bowles, 30 Colo. 44, 69 Pae. 1067. 337. Dubois V. Kelly, 10 Barb. 496. 22, 150, 157, 170, 193, 194, 203, 218, 219, 221, 481. Dubuque v. Illinois Cent. B. E., 39 Iowa 56. 566. Duek V. Braddyl, 1 MeClel. 217, 13 Price 455. 517, 552, 556. Dudley v. Eoote, 63 N. H. 57, 56 Am. Eep. 489, 18 Eep. 631. 67, 303. Dudley v. Hurst, 67 Md. 44, 8 Atl. 901, 1 Am. St. Eep. 368. 28, 38, 47, 388, 389. Dudley v. Jamaica P. Corp., 100 Mass. 183. 560. Dudley v. Warde, 1 Ambl. 113. 3, 134, 138, 140, 148, 150, 155, 159, 160, 176, 189, 198, 212, 272, 273, 301, 302, 303, 607, 615. Duff V. Bindley, 16 Fed. 178. 457. Duff V. Snider, 54 Miss. 245. 217. Duffield V. Whitlock, 26 "Wend. 55, 1 Hoff. Ch. 110. 533. Duffus V. Bangs, 122 N. Y. 423, 25 N. E. 980, 34 N. Y. St. E. 222, 43 Hun 52, 6 N. Y. St. E. 553. 144, 162, 199, 208, 223. Duffus V. Howard F. Co.. 8 App. Div. 567, 40 N. Y. Supp. 925, 75 N. Y. St. B. 320, 37 N. Y. Supp. 19, 15 Misc. 169, 72 N. Y. St. E. 172. 450, 483. Duke V. Shackleford, 56 Miss. 552. 104, 479, 622. Duke of Beaufort v. Bates, 31 L. S. Ch. 481, 3 DeG. P. & J. 381, 8 Jur. N. S. 270, 10 W. E. 200, 6 L. THE BOTTOM PAGES.] T. N. S. 82, 10 W. E. 149, 5 L. T. N. S. 546. 21, 240, 241. Duke of Buckingham v. Lord Pem- broke, 3 Keb. 74. 650. Dumergue v. Eumsey, 2 H. & C. 777, 12 W. E. 205, 33 L. J. Exoh. 88, 10 Jur. N. S. 155, 9 L. T. N. S. 775. 122, 242, 251, 545. Dundee v. Carmichael, 4 Sess. Cas. 5th Ser. 525. 9, 573. Dundee Assessor v. Carmichael, 39 Sc. L. Eep. 573. 564. Dunford v. Jackson, 22 S. E. 863. 350. Dunkart v. Binehart, 87 N. C. 224. 602. Dunman v. Gulf &c. By. Co., 26 S. W. 304, 24 S. W. 701. 36, 265. Dunn V. Bagby, 88 N. C. 91. 192. Dunn V. Garrett, 7 N. B. 218. 141, 204, 224, 598, 665. Dunne v. Ferguson, Hayes 540. 337, 369, 370, 371. Dunnell v. Henderson, 23 N. J. Eq. • 174. 10. Dunsmuir v. Port Angeles W. Co., 24 Wash. 104, 63 Pae. 1095. 104. Dunstedter v. Dunstedter, 77 111. 580. 87. Duntz V. Granger B. Co., 83 N. Y. Supp. 957, 41 Misc. 177. 417, 483, 485. Duperrouzel, Be, 9 Leg. News, Montr. 380. 8, 225. Dureu v. Strait, 16 S. C. 465. 662. Durkee v. Powell, 75 App. Div. 176, 77 N. Y. Supp. 368. 447. Dustin V. Crosby, 75 Me. 75. 382, 383, 386. Dutro V. Kennedy, 9 Mont. 101, 22 Pae. 761 388, 395, 407, 436. Dutton V. Ensley, 21 Ind. App. 46, 51 N. E. 380, 69 Am. St. E. 340. 26, 92. Dyer Company's App., 21 Pa. Co. 442. 217, 561. XXXVl TABLE OF CASES. [KEFESENCES ARE TO Eaglehawk v. Lady Barkly Co., 7 Aust. L. T. 72. 558. Earley v. Withers, 1 Pearson 248. 69, 519. Earl of Bedford v. Smith, Dy. 108b. 605, 652. Earl of Macclesfield v. Davis, 3 Ves. & Bea. 16. 324. Earl of Mansfield v. Blaekburne, 6 Bing. N. C. 426, 8 Scott 720. 140, 254, 258. Earl of Northumberland's Case, Owen 124. 321. Earl Talbot v. Scott, 4 Kay & John. 96. 603. Early v. Burtis, 40 N. J. Eq. 501, 4 Atl. 765, 2 Cent. 745. 434. East V. Ealer, 24 La. A. 129. 436. Eastern Ark. Fence Co. v. Tanner, 67 Ark. 156, 53 S. "W. 886. 13. East London W. Co. v. Mile End, 17 Q. B. 512, 21 L. J. M. C. 49. 569. Eastman v. Foster, 8 Met. 19. 381, 488. East Sugar-Loaf Co. v. Wilbur, 5 Pa. Dist. 202. 224, 533. East Tenn. V. & G. Ey. Co. v. Mor- ristown, 35 S. W. 771. 217, 561. Eastwood V. Brown, 1 Ey. & M. 312. 512. Eaton V. Southby, Willes 131. 358, 363. Eaves v. Estes, 10 Kan. 314, 15 Am. Eep. 345. 21, 28, 107, 414, 418. Estabrook v. Hughes, 8 Neb. 496. 230. Eberts v. Fisher, 54 Mich. 294, 20 N. W. 80. 534. Ecke V. Fetzer, 65 Wis. 55, 26 N. W. 266. 527, 532. Eddy V. Hall, 5 Colo. 576. 66, 623. Edge V. Pemberton, 12 M. & W. 187. 661. Edinburgh W. Co. v. Hay, Peterson 304. 568. Edler v. Hasche, 67 Wis. 653, 31 N. W. 57. 73, 594, 617. THE BOTTOM PAGES.] Edmundson v. Brie, 136 Mass. 189. 652. Edwards v. Berrickson, 28 N. J. L. 39, 56, 29 N. J. L. 468. 6, 28, 430. Edwards v. Eveler, 84 Mo. App. 405. 628. Edwards v. Harben, 2 Term. 587. 512. Edwards v. Perkins, 7 Ore. 149. 340. Edwards v. Thompson, 85 Tenn. 720, 4 S. W. 913. 364. Edwards v. Van Patten, 46 Kan. 509, 26 Pac. 958. 530. Edwards Co. v. Eank, 57 Neb. 323, 77 N. W. 765, 73 Am. St. E. 574. 66, 425. EflSnger v. Hall, 81 Va. 94. 524, 657. Ege V. Kille, 84 Pa. St. 333. 25, 80, 657. E. H. Ogden L. Co. v. Busse, 92 App. . Div. 143, 86 N. Y. Supp. 1098. 594, 595. Ekstrom v. Hall, 90 Me. 186, 38 Atl. 106. 413, 651. Eldridge, Ee, 2 Bissell 362, 4 Nat. Bk. Eeg. 498. 465. Electric T. Co. v. Salford, 11 Exch. 181. 569. Elevator Co. v. Brown, 36 Ohio St. 660. 533. Elizabethtown & P. E. E. Co. v. Elizabethtown, 75 Ky. 233. 541. Elizabethtown Coal Co. v. Elizabeth- town, 13 Ky. L. E. 96. 32, 466. EUett V. Tyler, 41 111. 449. 432. ElUott V. Wright, 30 Mo. App. 217. 472. ElUs V. Eock I. & M. C. E. K. Co., 125 HI. 82, 17 N. E. 62. 89. Ellis V. Wren, 84 Ky. 254, 1 S. W. 440. 55, 397. Ellison V. Dolbey, 3 Penneweill 45, 49 Atl. 178. 346, 354. Ellison V. Salem Min. Co., 43 111. App. 120. 32, 416, 421. TABLE OF CASES XXXVll [BErEBENCES ABB TO Ellithorpe v. Eeidesil, 71 Iowa 315, 32 N. W. 238. 340, 365. Ellsworth V. McDowell, .44 Neb. 707, 62 N. W. 1082. 619, 626. Elston V. Jury, 9 Mont. Co. 92. 429, 450. Elting V. Palen, 14 N, T. Supp. 607. 380, 459. Elwes V. Brigg Gas Co., 33 Ch. D. 562, 55 L. T. E. 831. 83. Elwes V. Maw, 3 East 38, 2 Smith's Lead. Cas. 239. 3, 14, 15, 126, 130, 133, 134, 138, 148, 149, 158, 160, 164, 166, 167, 168, 170, 172, 174, 176, 177, 178, 189, 190, 273, 301, 302, 303, 305. Emerson v. Shores, 95 Me. 237, 49 Atl. 1051. 333, 377. Emerson v. Western IT. E. E. Co., 75 111. 176. 89. Emery v. Fugina, 68 Wis. 505, 32 N. W. 236. 340, 404. Emmerson v. Annison, 1 Mod. 89, 2 Keb. 874. 668, 669. Empire L. Co. v. Kiser, 91 Ga. 643, 17 S. E. 972. 464. Empson v. Soden, 4 B. & Ad. 655, 1 N. & M. 720. 163, 197. Emrich v. Ireland, 55 Miss. 390. 38. Endsley v. State, 76 Ind. 467. 659. English V. Foote, 16 Miss. 444. 381. Ensign v. Colburn, 11 Paige 503. 609. Equitable Tr. Co. v. Christ, 47 Fed. 756, 1 Flippin 599, 21 Myers Fed. Dec. § 2720. 26, 456. Erdman v. Moore, 58 N. J. L. 445, 33 Atl. 958. 29, 32, 33. Eriekson v. Jones, 37 Minn. 459, 35 N. W. 267. 199, 210, 213. Eriekson v. Paterson, 47 Minn. 525, 50 N. W. 699. • 362. Erskine v. Pltimmer, 7 Me. 447. 373. Eslick, Ee, 4 Ch. D. 503, 46 L. J. Q. B. 30, 80 Co. Ct. & B. 72, 20 Eng. Eepts. 723. 494. THE BOTTOM PAGES.] Estabrook v. Hughes, 8 Neb. 496, 7 Eep. 786. 259. Estate of Hinds, 5 Whart. 138. 94, 95, 273. Esterley's App., 54 Pa. St. 192. 10, 432. Esty V. Currier, 98 Mass. 5O0. 897. Etowah M. Co. v. Wills Mfg. Co., 121 Alt. 672, 25 So. 720. 527. Euraka Mower Co., Ee, 86 Hun 309, 33 N. y. Supp. 486, 67 N. Y. St. E. 200. 30, 466. Eureka M. Co. v. Ferry County, 28 Wash. 250, 68 Pac. 727. 562. Evans v. Davis, 10 Ch. D. 747, 27 Eng. Eepts. 252. 9. Evans v. Evans, 2 Camp. 491. 635. Evans v. Hardy, 76 Ind. 527. 334. Evans v. Inglehart, 6 Md. 171. 334. Evans v. Kister, 92 Fed. 828, 35 C. C. A. 28. 408. Evans v. Lamar, 21 Ala. 333. 365. Evans v. McLueas, 15 S. C. 67, 13 Eep. 126. 33, 102, 109, 151. Evans v. Miller, 58 Miss. 120. 662. Evans v. Roberts, ' 5 B. & C. 829. 337, 370, 371, 374. Evans v. Williamson, 17 Ch. D. 696. 351. Everingham v. Braden, 58 Iowa 133, 12 N. W. 142. 345, 350. Ewing V. Eourke, 14 Ore. 514, 13 Pac. 483. 613. Exchange B. Co. v. Schuchman B. Co., 103 Mo. App. 24, 78 S. W. 75. 205, 223, 518. Exmouth, Ee, 23 Ch. D. 158. 322. Fahnestock v. Gilham, 77 111. 637. 523, 621. Fairburn v. Eastwood, 6 M. & W. 679. 210, 531. Fairis v. Walker, 1 Bail. 540. 21, 44, 302. Farant v. Farant, 2 Wash. L. E. 137. 19, 192. Farley v. Craig, 15 N. J. L. 191. 657. XXXVlll TABLE OF CASES. [EEFEEENCES ABE TO Farley v. Sanson, 5 Ont. L. 105, 40 Can. L. J. 506, 24 Can. Law T. Occ. N. 303. 528. Farmers & M. Bk. of Georgetown v. Cover, 1 Hay & Haz. 177. 411. Farmers' Bk. v. Morris, 79 Ky. 157. 365. Farmers' L. & Tr. Co. v. Hendrick- Bon, 25 Barb. 484. 48, 52, 541. Farmers' L. & T. Co. v. Minneapolis Wks., 35 Minn. 543, 29 N. W. 349. 21, 433. Farmers ' L. & T. Co. v. Saint J. By. Co., 3 Dill. C. C. 412. 48, 53, 489, 541. Farnsworth v. Western U. Co., 6 N. Y. Supp. 735. 414. Farnsworth v. Western IT. T. Co., 3 Silvernail 30. 104, 109, 417. Farrant v. Lee, Amb. 105, 3 Ark. 723. 608. Farrant v. Lovel, 3 Atk. 723, Amb. 105. 608. Farrant v. Thompson, 5 B. & Aid. 826, 2 D. & E. 1. 70, 75, 547; 642, 656. Farrar v. Chaufetete, 5 Den. 527. 31, 313, 390, 402, 406, 416, 439, 445. Farrar v. Smith, 64 Me. 74. 460. Farrar v. Staekpole, 6 Me. 154, 19 Am. Dec. 201. 17, 18, 23, 50, 444, 462, 464, 565. Farris v. State, 69 S. W. 140. 669. Favorite v. DeardorfE, 84 Ind. 555. 335, 348, 349, 364. Favro v. State, 39 Tex. Cr. 452, 46 S. W. 932. 11. Fay V. Muzzey, 13 Gray 53. 305. Fay V. Eeddick, 31 Ind. 414. 95. Fechet v. Drake, 2 Ariz. 239, 12 Pac. 694. 28, 36, 397. Feder v. Van Winkle, 53 N. J. Eq. ■ 370, 33 Atl. 399, 51 Am. St. R. 628. 29, 35, 60, 393. Feimster v. Johnson, 64 N. C. 259. 103. Felcher v. McMillan, 103 Mich. 494, THE BOTTOM PAGES.] 61 N. W. 791. 141, 146, 649, 650. Fells V. Read, 3 Ves. Jr. 70. 324. Ferguson v. Miller, 1 Cow. 243. 329. Ferguson v. Paul, 22 Sc. L. E. 809. 187, 223, 248. Ferguson v. Eay, 77 Pac. 600. 83. Ferguson v. Spear, 65 Me. 277. 114. Fernandez v. Soulie, 28 La. An. 31. 262. Ferris v. Quimby, 41 Mich. 202, 2 N. W. 9. 32, 418. Field V. Jackson, Dick. 599. 603. Fifield V. Farmers' Bk., 47 111. App. 118. 32, 408. Fifield V. Farmers' Nat. Bk., 148 111. 163, 35 N. E. 802, 39 Am. St. Eep. 166. 32, 393, 486, 490, 521, 620. Fifield V. Maine C. E. E. Co., 62 Me. 77. 546. Fifty Associates v. Howland, 11 Met. 99. 211. Finkelmeier v. Bates, 92 N. Y. 172, 48 N. Y. Super. 433. 530, 533. Finn v. Providence W. Co., 99 Pa. St. 631. 380. Finney v. Grice, 10 Ch. D. 13, 48 L. J. Ch. 247. 476. Finney v. Saint Louis, 39 Mo. 177. 207, 260. Finney v. Watkins, 13 Mo. 291. 123, 142, 648. Firebaugh v. Divan, 207 111. 287, 69 N. E. 924, 111 111. App. 137. 349. First Nat. Bk. v. Adam, 138 111. 482, 28 N. E. 955. 122, 487, 501, 549. First Nat. Bk. v. Elmore, 52 Iowa 541, 3 N. W. 547. 418, 432. First Nat. Bk. of Austin v. Jackson, 40 S. W. 833. 382. First Nat. Bk. of Braddock v. Hyer, 46 W. Va. 13, 32 S. E. 1000. 66, 399, 414. First Nat. Bk. of Clay Center v. Beegle, 52 Kan. 709, 35 Pac. 814, 39 Am. St. E. 365. 66, 350. TABLE OF CASES. XXXIX [EEFBEBNCES ABE TO First Nat. Bk. of Joliet v. Adam, 34 111. App. 159. 216. First Parish of Sudbury v. Jones, 8 Gush. 184. 86, 103, 111. First Pres. Soc. v. Bass, 68 N. H. 333, 44 Atl. 485. 326. Firth V. Eowe, 53 N. J. Eq. 520, 32 Atl. 1064. 153. Firth Co. v. South C. L. Co., 122 Fed. 569, 118 Fed. 892. 489, 493. Fischer v. Johnson, 106 Iowa 181, 76 N. W. 658. 87, 97, 112, 346, 478. Fish V. New York P. Co., 29 N. J. Eq. 16. 388, 392, 438, 439, 472. Fish V. Capwell, 18 E. I. 667, 29 Atl. 840. 335, 373, 376. Fisher v. Dixon, 12 CI. & Fin. 312, 9 Jur. 883. 20, 26, 46, 160, 271, 302, 306, 310, 455. Fisher v. Fisher, 1 Bradf. Sur. 335. 524. Fisher v. Forbes, 9 Vin. Abr. 373. 356. Fisher v. Patterson, 197 111. 414, 64 N. E. 353, 99 111. App. 70, 34 Chi. Leg. N. 153. 84, 486, 617, 621. Fisher v. Saffer, 1 B. D. Smith 611. 102, 195, 545. Fisher v. Steward, Smith 60. 82, 329. Fisk V. Brayman, 21 R. I. 195, 42 Atl. 878. 397. Fisk V. People's Bk., 14 Colo. App. 21, 59 Pac. 63. 28, 56, 57, 387, 393, 409, 521, 630. Fitch V. Burk, 38 Vt. 683. 372, 374. Fitch V. Howitt, 32 Ore. 396, 52 Pac. 192. 426. Fitzgerald v. Anderson, 81 Wis. 341, 51 N. W. 554. 195, 200, 223, 622. Fitzgerald v. Atlanta I. Co., 61 App. Div. 350, 70 N. Y. Supp. 552. 29, 434. Fitzgerald v. Marshall, 1 Mod. 90. 659. Fitzherbert v. Shaw, 1 H. Bl. 258. 253, 254. THE BOTTOM PAGES.] Fitzpatrick v. Hoffman, 104 Mich. 228, 62 N. W. 349. 435. Flanary v. Kane, 46 S. E. 312. 424. Flanders v. Cross, 10 Cush. 514. 567. Flanders v. Wood, 24 Wis. 572. 10. Flax P. W. Co. V. Lynn, 147 Mass. 31, 16 N. E. 742. 561. Fleet V. Hegeman, 14 Wend. 42. 329. Fletcher v. Commowealth, 80 S. W. 1089. 686. Fletcher v. Evans, 140 Mass. 241, 2 N. E. 837, 1 N. Eng. 198. 105. Fletcher v. Herring, 112 Mass. 382. 182. Fletcher v. Kelly, 83 Iowa 475, 55 N. W. 474, 21 L. K. A. 347. 32, 403, 408, 486, 488. Fletcher v. Manning, 1 C. & K. 350. 504. Floyd V. Kicks, 14 Ark. 286, 58 Am. Dec. 374. 99. Flud V. Flud, Freem. Ch. 210. 334, 337. Fluharty v. Mills^ 49 W. Va. 446, 38 S. B. 521. 375. Flynu V. Wilkinson, 56 111. App. 239, 403. Flynt V. Conrad, Phill. L. 190, 93 Am. Dee. 588. 341. Fobes V. Shattuck, 22 Barb. 568. 180. Foley V. Addenbrooke, 13 M. & W. 174, 14 L. J. N. S. Exeh. 169. 155, 251. Foley V. Burnell, 1 Bro. C. C. 274, 4 Bro. C. C. 319, Cowp. 435. 319, 322, 323. Folger V. Kenna, 24 La. Ann. 436. 34, 625. Folsom V. Moore, 19 Me. 252. 201, 449, 470, 472. Foot V. Dickinson, 2 Met. 611. 590, 592. Foote V. Gooch, 96 N. C. 265, 1 S. E. 529, 60 Am. Eep. 411. 29, 407, 412, 434. xl TABLE OF CASE8. [EEFERENCES ARE TO THE BOTTOM PAGES.] Forbes v. Mosquito Club, 175 Mass. 432, 56 N. E. 615. 221, 432. Forbes v. Willianis, 1 Jones's L. 393. 592. Forbush v. Lombard, 13 Met. 109. 397. Ford T. Burleigh, 62 N. H. 388. 112, 513, 638. Ford V. Cobb, 20 N. Y. 344. 31, 34, 67, 103, 107, 313, 416, 483, 488. Fore V. Hibbard, 63 Ala. 410. 125, 465. Forest v. Greenwich, 8 Ell. & Bl. 890. 570, 572. Forsythe v. Price, 8 Watts 282. 354, 363. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S. E. 485. 366. Fortescue v. Bowler, 55 N. J. Eq. 741, 38 Atl. 445. 29, 87, 136, 154, 603. Fortman v. Goepper, 14 Ohio St. 558. 27, 28, 31, 36, 60, 107, 147, 470, 471, 486. Foas V. Marr, 40 Neb. 559, 59 N. W. 122. 350. Foster, Ex parte, 13 Co. Ct. & B. Ca. 467. 207. Foster v. Mabe, 4 Ala.. 402, 37 Am. Dec. 749. Ill, 514, 546. Foster v. Prentiss, 75 Me. 279. 400, 401. Foster v. Eobinson, 6 Ohio St. 90. 353. Fowler v. Carr, 63 Mo. App. 118. 346. Fowler v. Fowler, 15 N. Bruns. 488. 33, 57, 118. Fowler v. Mutual L. I. Co., 28 Hun 195. 533. Fox V. Brissac, 15 Calif. 223. 162, 337. Foxcraft v. Straw, 86 Me. 76, 29 Atl. 950. 561. Foy V. Eeddiek, 31 Ind. 414. 115, 622. Fraer v. Washington, 125 Fed. 280, 60 C. C. A. 194. 532. Frances v. Ley, Cro. Jac. 367. 320, 324. Frank v. Brunnemann, 8 W. Va. 462. 607. Frank v. Harrington, 36 Barb. 415. 371. Frank v. Magee, 49 La. A. 1250, 22 So. 739, 50 La. A. 1066, 23 So. 939. 435, 457. Frankland v. Moulton, 5 Wis. 1. 411, 412, 415, 418, 485. Franks v. Cravens, 6 W. "Va. 185. 615, 617. Fratt V. Whittier, 58 Cal. 126, 41 Am. E. 251, 21 Am. Law Eeg. 49, 24 Alb. Law J. 314, 8 Pac. -C. L. J. 149. 28, 379, 389, 433, 440, 448, , 466. Freake's Set., [1902] 1 Ch. 97, 71 L. J. Ch. 20, 85 L. T. E. 454, 50 W. E. 237. 11. Frear v. Hardenbergh, 5 Johns. 272. 79, 219, 515. Frederick v. Devol, 15 Ind. 357. 516. Free v. Stuart, 39 Neb. 220, 57 N. W. 991. 200, 207, 209. Freeland v. Southworth, 24 Wend. 191. 450. Freeman v. Dawson, 110 U. S. 264, 4 S. Ct. 94. 122, 544. Freeman v. Leonard, 99 N. C. 274, 6 S. E. 259. 112. Freeman v. Lynch, 8 Neb. 192. 5, 29, 32, 63, 537. Freeman v. McLennaai, 26 Kan. 151. 99. Freeman v. Eosher, 18 L. J. Q. B. 340. 549. Freeman v. Underwood, 66 Me. 229. 642. French v. Freeman, 43 Vt. 93. 70, 460. French v. Mayor, 16 How. Prac. 220, 29 Barb. 363. 9, 244. French v. Preseott, 61 N. H. 27. 398. Fresno Bk. v. Husted, 49 Pac. 195. 104, 426, 646. TABLE OF CASES. xli [BDFEBDNCES ABE TO Frey-Sheckler Co. v. Iowa Br. Co., 104 Iowa 494, 73 N. W. 1051. 105. Friedlander v. Eyder, 30 Neb. 783, 47 N. W. 83, 9 L. E. A. 700. 22, 195, 200, 210, 482, 518, 545. Freidly v. Giddings, 119 Fed. 438. 537. Frink v. Stewart, 94 N. 0. 484. 602. Frost V. Bender, 65 Ga. 15. 341, 342. Fry V. Ford, 38 Ark. 246. 359. Fry V. Miller, 45 Pa. St. 441. 372. Fryatt v. Sullivan Co., 5 Hill 116, 7 Hill 529. 415, 485, 486. Fulkerson v. Taylor, 46 S. E. 309. 424. FuUam v. Stearns, 30 Vt. 443. 22, 36, 437, 438, 441, 543. Fuller vr. Brownell, 48 Neb. 145, 67 N. W. 6. 145. Fuller V. Tabor, 39 Me. 519. 95, 110. Fuller- Warren Co. v. Harter, 110 Wis. 80, 85 N. W. 698, 53 L. B. A. 603, 84 Am. St. B. 867. 33, 408. FulUngton v. Goodwin, 57 Vt. 641. 63, 458. Fulton V. Norton, 64 Me. 410. 64, 458. Funk V. Brigaldi, 4 Daly 359. 28, 31, 452. Furbush v. Chappell, 105 Pa. St. 187, 17 Bep. 726, 14 Wkly. N. Gas. 347. 555. Purrh V. Winston, 66 Tex. 521, 1 S. W. 527. 62, 118. Gaddie v. Commonwealth, 25 Ky. L. B. 1585, 78 S. W. 162. 677. Gaffield v. Hapgood, 17 Pick. 192, 28 Am. Dee. 290. 189, 198, 199. Gafford v. Stearns, 51 Ala. 434. 371. Gage V. Eogers, 1 Strobh. Eq. 376. 350. Galbreath v. Davidson, 25 Ark. 490. 44, 431. Gale V. Ward, 14 Mass. 352, 7 Am. Dec. 223. 22, 435, 442, 543. THB BOTTOM PAGES.] Gallagher v. Shipley, 24 Md. 427. 180, 182, 183. Galveston E. Co. v. Perkins, 80 Tex. 62, 15 S. W. 633. 383. Galveston B. B. v. Cowdrey, 78 V. S. 459. 406. Gam V. Cordrey, 53 Atl. 334. 341. Gannon v. Peterson, 198 111. 372, 62 N. E. 210. 606. Garanflo v. Cooley, 33 Kan. 137, 5 Pac. 766. 341. Garbutt v. Watson, 5 B. & Aid. 613. 517. * Gardiner v. Parker, 18 Gr. Ch. 26. 169, 187, 188, 213. Gardiner M. Co. v. Heald, 5 Me. 381. 376. Gardner v. Finley, 19 Barb. 317. 70, 391, 406, 412, 629. Gardner v. Heartt, 3 Den. 234. 74, 596. Gardner v. Lanford, 86 Ala. 508, 5 So. 879. 345. Gardner v. Peckham, 13 B. I. 102. 646. Gardner v. Perry, 39 Can. L. J. 670, 23 Can. Law T., Occ. N. 295. 184, 305, 357. Gardner v. Samuels, 116 Calif. 84, 47 Pae. 935. 527. Gardner v. Watson, 18 111. App. 386. 533. Garing v. Hunt, 27 Ont. 149. 429. Gamer v. Mahoney, 115 Iowa 856, 88 N. W. 828. 374. Garrison v. Webb, 107 Ala. 499, 18 So. 297. 142. Garth v. Caldwell, 72 Mo. 622. 870. Garth v. Cotton, 1 Ves. Sr. 528, 3 Ark. 751, 1 Dick. 183. 608, 613, 614. Garven v. Hogue, 14 Wkly. Cin. L. B. 175, 45 Ohio St. 289. 29, 62, 419, 442, 484, 485, 486, 488. Gary v. Burguieres, 12 La. An. 227. 388, 439. xlii TABLE OP CASES. [EErBEBNCES AKB TO Gaseo v. Marshall, 7 TJ. C. Q. B. 193. 64, 70, 382, 632. Gaskell's Set. Est., Ee, [1894] 1 Ch. 485, 63 L. J. Ch. 243, 70 L. T. K. 554, 51 W. R. 219, 8 Eepts. 67. 10, 524. Gaston v. Marengo I. Co., 36 So. 738. 365. Gates I. Wks. v. Cohen, 7 Colo. App. 341, 43 Pae. 667. 480. Gaty V. Casey, 15 111. 189. 432. Gauggel V. Ainley, 83 111. App. 582. 146, 147, 216, 255. Gaule V. Bilyeau, 25 Pa. St. 521. 432. Gay V. Warren, 115 Ga. 733, 42 S. E. 86. 314, 316. Gaylor v. Harding, 37 Conn. 508. 441. Gear v. Bamum, 37 Conn. 229. 397. Geirke v. Schwartz, 45 N. Y. Supp. 928, 20 Misc. 361. 46, 84, 647. General Electric Co. v. Transit Co., 57 N. J. Eq. 460, 42 Atl. 101. 29, 32, 82, 417. Gentry v. Bowser, 2 Tex. Civ. App. 388, 21 S. W. 569. 67, 539. Georges C. Co. v. Detmold, 1 Md. Ch. 371. 601. Georgetown W. Co. v. Fidelity T. Co., 78 S. W. 113. 411. George Weber Brew. Co., Ee, Ohio Prob. 193. 29. Gerbert v. Trustees, 59 N. J. L. 160, 35 Atl. 1121. 255. Gerke v. Purcell, 25 Ohio St. 229. 398, 559. German Sav. Soc. v. Weber, 16 Wash. 95, 47 Pae. 224, 38 L. E. A. 267. 33, -36, 105, 107. Getohell v. Allen, 34 Iowa 559. 408. Gett V. McManus, 47 Calif. 56. 245. Gibbons v. Dillingham, 10 Ark. 9. 339, 340, 631. Gibbon's Case, Poster's C. L. 107. 676, 677. Gibbs V. Esty, 15 Gray 587. 110. THE BOTTOM PAGES.] Gibson v. Brockway, 8 N. H. 465. 397. Gibson v. Hammersmith &e. Ey. Co., 2 Drew & Sm. 603, 32 L. J. Ch. 337, 9 Jur. N. S. 221, 11 W. E. 299, 8 L. T. N. S. 43. 4, 123, 126, 134, 185, 199. Gibson v. Smith, 2 Atk. 182, Barnard Ch. 497. 603, 604. Gibson v. Vaughn, 2 Bail. 389. 630. Giddings v. Preedley, 128 Fed. 355. 47, 539. Gifford V. Yarborough, 5 Bing. 163, K. B. 3 B. & C. 91. 82. Gilbert v. Smith, 18 N. B. 211. 528. Gilchrist v. Assessor for Lanarkshire, 25 Sess. Ca. 4th Ser. 589, 35 Scot. L. Eep. 663. 561, 573. Giles V. Simonds, 15 Gray 441. 374. Giles V. Stevens, 13 Gray 146. 332. Gilkerson v. Brown, 61 111. 486. 557. Gill V. DeArmant, 90 Mich. 425, 51 N. W. 527. 81, 620. Gill V. Weston, 110 Pa. St. 305, 1 Atl. 917, 110 Pa. St. 312, 1 Atl. 921. 71, 391, 403, 502, 643. Gillet V. Mason, 7 John. 16. 327, 329. Gillett V. Balcom, 6 Barb. 370. 344, 347. Gilliam v. Bird, 30 N. C. 280, 49 Am. Dec. 379. 394, 659. Gillitt V. Truax, 27 Minn. 528, 8 N. W. 767. 368. Gillock V. People, 171 111. 307, 49 N. B. 712. 677. Gilman v. Wills, 66 Me. 273. 348. Glasdir Copper Mines, [1904] 1 Ch. 819, 73 L. S. Ch. 461, 11 Manson Bankr. 224. 210. Glass V. Blazer, 91 Mo. App. 564. 365. Glass V. Coleman, 14 Wash. 855, 45 Pae. 310. 259. Glegg, Ex parte, 19 Ch. D. 7, 15 Co. Ct. & B. Ca. 240, 51 L. J. Ch. 367, 50 L. S. Ch. 711. 207, 226. TABLE OF CASES. xliii [BEFEBENCBS ABE TO Glidden v. Bennett, 43 N. H. 306. 274, 284, 454. Globe Marble Co. v. Quinn, 76 N. Y. 23, 22 Am. Rep. 259. 60, 402. Gocio V. Day, 51 Ark. 46, 9 S. W. 433. 191, 523. Godard v. Gould, 14 Barb. 662. 483. Goddard v. Bolster, 6 Me. 427, 20 Am. Dec. 320. 31, 63, 86, 458, 629. Goddard v. Chase, 7 Mass. 432. 305, 449. Goddard v. "Winchell, 86 Iowa 71. 83. Godfrey v. Brown, 86 111. 454. 364. Goedeke v. Baker, 28 S. W. 1039. 191. Goepper v. Kinsinger, 39 Ohio St. 429. 96. GofE V. Harris, 5 Man. & G. 573. 404. Goff V. Kitts, 15 Wend. 550. 329. GofE V. O'Connor, 16 111. 421. 31, 72, 102, 423. Goldie V. Hewson, 35 N. B. 349. 486. Goldschmid v. Starring, 5 Mackey 582. 396. Goldville Mfg. Co., Ee, 118 Fed. 892, 122 Fed. 569. 33, 492. Gooderham v. Denholm, 18 TJ. C. Q. B. 203. 390, 393, 413, 436, 442, 455. Goodeson v. Gallatin, Dick. 455. 599. Goodin v. EUeardsville Hall Ass'n, 5 Mo. App. 289. iii, 1, 29, 35, 425, 429. Gooding v. Eiley, 50 N. H. 400. 67, 488. Gooding v. Shea, 103 Mass. 360. 594, 597, 630. Goodman v. Hannibal & St. Jo. E. E. Co., 45 Mo. 33, 100 Am. Dec. 336. 103, 203, 660. Goodrich V. Jones, 2 Hill 142, 62, 454, 457, 459. Goodwin v. Perkins, 134 Calif. 564, 66 Pac. 793. 213, 386. Goodwin V. Smith, 49 Kan. 351, 31 THE BOTTOM PAGES.] Pac. 153, 17 L. E. A. 284, 33 Am. St. E. 373. 346. Goodyear v. Vosburg, 57 Barb. 243, 39 How. Pr. 377. 373, 376. Gordon v. Harper, 7 Term. 11. 547. Gordon v. Lowther, 75 N. C. 193. 606, 613. Gordon v. Miller, 28 Ind. App. 612. 136, 140, 141, 142, 144, 151, 217, 422, 521. Gore V. Jenness, 19 Me. 53. 71. Gorley, Ex parte, 13 W. E. 60, 11 L. T. N. S. 319, 10 Jur. N. S. 1085, 34 L. J. N. S. Bank. 1. 124, 236. Gorman v. Bellamy, 82 N. C. 496. 526. Gorton v. Falkner, 4 Term 565. 549, - 551. Goss V. Helbing, 77 Cal. 190, 19 Pac. 277. 429. Gossett V. Drydale, 48 Mo. App. 430. 353. Gough V. "Wood, [1894] 1 Q. B. 713, 63 L. J. Q. B. 564, 70 L. T. E. 297, 42 W. E. 469, 9 E. 509. 77, 111, 420, 421. Gould, Ex parte, 13 Q. B. D. 454, 51 L. T. E. 368, 16 Co. Ct. & B. 549, 1 Morrill B. 168. 211, 226. Gower v. Grosvenor, Barnard Ch. 54, 5 Mad. 337. 322. Gower v. Levison, Barnard Ch. 54, 5 Mad. 387. 322. Graeme v. Cullen, 23 Gratt. 266. 407. Grai v. Friedlander, 33 La. A. 188. 532. Graff V. Fitch, 58 111. 373. 365, 366, 372. Graham v. Connersville &c. E. E. Co., 36 Ind. 463, 10 Am. Eep. 56. 88. Graham v. Ewart, 11 Exch. 326, 1 H. & N. 550. 328. Graham v. Eoark, 23 Ark. 19. 92, 99, 340, 396. xliv TABLE OF CASES. [EEFEBBNCES ABB TO Grand I. Bk. v. KoeUer, 57 Neb. 649, 78 N. W. 265. 395. Grand Island Co. v. Frey, 25 Neb. 66, 40 N. W. 599. 85. Grand Lodge v. Knox, 27 Mo. 315. 36, 147, 645. Grandona v. Lovdal, 78 Gal. 611, 21 Pac. 366. 101. Grand T. Ey. Co. v. Eastern T. Bk., 16 L. Can. 173. 48, 541. Grant v. Oxford Loc. Bd., L. E. 4 Q. B. 9. 568, 571. Grant v. Wilson, 17 TJ. C. Q. B. 144. 63, 539. Grantham v. Hawley, Hob. 132. 351, 357. Grass v. Austin, 7 TJ. C. App. 511. 367. Graton & K. Co. v. Woodworth- Mason Co., 69 N. H. 177, 38 Atl. 790. 30, 36, 426. Graves v. Pierce, 53 Mo. 423. 426, 437, 441, 442. Graves v. Weld, 5 B. & Ad. 105. 334, 338. Gray v. Baldwin, 8 Blackf. 164. 609. Gray v. Cornwall, 16 Ky. L. E. 228, 26 S. W. 1018. 532. Gray v. Holdship, 17 S. & E. 413, 17 Am. Dec. 680. 25, 63, 72, 425, 426. Gray v. McLennan, 3 Man. 337. 147, 157, 195, 205, 224, 227, 233, 492, 018, 528, 534, 549, 607. Gray v. Oyler, 2 Bush. 256. 220, 221, 223. Gray v. Worst, 129 Mo. 122, 31 S. W. 585. 346, 347, 359. Great W. Mfg. Co. v. Hunter, 15 Neb. 32, 16 N. W. 759. 426. Great W. Ey. Co. v. Bain, 15 U. C. C. P. 207. 462, 467. Green v. Armstrong, 1 Den. 550. 374. Green v. Biddle, 8 Wheat. 81. 79, 80. THE BOTTOM PAGES. 1 Green v. Chicago, E. I. & P. E. B. Co., 8 Kan. App. 611, 56 Pac. 136. 26, 63, 424, 618. Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382. 108, 117. Green v. Hammock, 13 Ky. L. E. 145, 16 S. W.'357. 116. Green v. Keen, 4 Md. 98. 601, 602. Green v. Phillips, 26 Gratt. 752, 21 Am. Eep. 323. 28, 387, 392, 537. Green Bay C. Co. v. Hewitt, 66 Wis. 461, 29 N. W. 237. 398. Green B. Lumb. Co. v. Ireland, 77 Iowa 636, 42 N. W. 461. 116, 479. Greene v. Cole, 2 Saund. 252. 127, 591, 592. Greene v. Maiden, 10 Pick. 500. 286. Greenebaum v. Taylor, 102 Calif. 624, 36 Pac. 957. 95, 646, 657. Greenly v. Hall, 3 Harring. 9. 591. Greenwood v. Murdoek, 9 Gray 20. 397. Gregg V. Boyd, 69 Hun. 588, 23 N. Y. Supp. 918, 53 N. Y. St. E. 386. 359. Gregg V. State, 55 Ala. 116. 669. Gregg V. Union Pac. E. Co., 48 Mo. App. 494. 116. Gregg V. Wells, 2 Per. & D. 296, 10 Ad. & E. 90. 518. Gregory v. Eosenkrans, 72 Wis. 220, 39 N. W. 378. 345. Gresham v. Taylor, 51 Ala. 505. 36, 434. Greve v. First D. St. P. & P. E. E. Co., 26 Minn. 66,^1 N. W. 816. 90. Grewar v. AUoway, 3 Tenn. Ch. 584. 10, 30. Grey v. Cuthbertson, 2 Chitty's E. 482, 4 Dougl. 351. 533. Greye's Case, Owen 20, Cro. Eliz. 372. 329. Grier v. Queen, 4 Can. Exch. 168. 526. GriflSn v. Allen, 2 CUnt. N. Y. Dig. 1415. 67, 479. TABLE OF CASES. xlv [BEFEEENCES AEB TO Griffin V. Bixby, 12 N. H. 454. 99, 100. Uriffin V. Jansen, 19 Ky. 1m R. 19, 39 S. W. 43. 436. Griffin V. Marine Co., 52 111. 130. 532. Griffin V. Eansdell, 71 Ind. 440. 144, 145, 195, 198, 518, 651. Griffiths V. Puleston, 13 M. & W. 358. 353. Griggs V. Stone, 51 N. J. Law 549, 18 Atl. 1094. 11, 427. Grimes v. State, 77 Ga. 762. 677. Grimshawe v. Burnham, 25 TJ. C. Q. B. 147. 46, 63, 520, 540. GrofE V. Levan, 16 Pa. St. 179. 346. Grosvenor v. Bethell, 93 Tenn. 577, 26 S. W. 1096. 464. Grosz V. Jackson, 6 Daly 463. 29, 429. Grove v. Barclay, 12 Phila. 315. 400. Grover v. Howard, 31 Me. 546. 63, 65. Grymes v. Bowerin, 6 Bing. 437, 4 M. & P. 143, 8 L. J. C. P. 140. 194, 196. Gudgell V. Duvall, 27 Ky. 229. 191," 523. Guernsey v. Phinizy, 113 Ga. 898, 39 S. E. 402, 84 Am. St. Eep. 270. 62, 439. Guernsey v. Wilson, 134 Mass. 482. 87, 393, 601. Guest V. East Dean, L. E. 7 Q. B. 334. 582. Gulf, C. & S. Ey. Co. v. Dunman, 35 S. W. 947, 33 S. W. 1024, 85 Tex. 176, 19 S. W. 1073. 35, 36, 57, 59, 145, 383. GuUman v. Sharp, 81 Hun. 462, 30 N. Y. Supp. 1036. 82. Gunderson v. Kenndy, 104 111. App. 117. 33, 381. Gunderson v. Swartout, 104 Wis. 186, 80 N. W. 465, 76 Am. St. Eep. 860. 30, 55, 407. THE BOTTOM PAGES.] Guthrie v. Guthrie, 78 S. W. 474. 191, 523. Guthrie v. Jones, 108 Mass. 191. 122, 125, 141, 142, 201, 647, 650. Guthrie v. Weaver, 1 Mo. App. 136. 325, 625. Hacker v. Munroe, 176 111. 384, 52 N. E. 12, 61 111. App. 420, 56 111. App. 532. 28, 60, 401, 434, 620, 624. Hackett v. Amsden, 57 Vt. 432, 1 East. E. 747. 30, 54, 540. Hackett v. Bennett, 12 N. S. W. Supr. Ct. 327. 140, 145. Haussler v. Missouri G. Co., 52 Mo. 452. 426. Haflick V. Stober, 11 Ohio St. 482. 148, 170, 175, 193, 212, 227, 261, 274, 284. Hagaman v. Neitzel, 15 Ean. 383. 662. Hagan v. Varney, 147 111. 281, 35 N. E. 219. 523. Haggert v. Brampton, 28 Can. 174. 46, 436, 443, 453, 455, 456. Haggerty v. MeCanna, 25 N. J. Eq. 48. 94. Haggin v. Clark, 51 Calif. 112. 657. Haigh V. Jagger, 3 Colly. Ch. 231. 603. Haines v. Welch, L. E, 4 C. P. 91. 332. Haley v. Hammersley, 3 DeG. ¥. & J. 587, 30 L. J. Ch. 771, 4 L. T. N. S. 269, 7 Jur. N. S. 765, 9 W. E. 562. 252, 465. Hall V. Benton, 69 Me. 346. 559. Hall V. Carney, 140 Mass. 131, 3 N. E. 14. 50, 541. Hall V. Durham, 117 Ind. 429, 20 N. E. 282. 346. Hall V. Law T. Soc, i2 Wash. 305, 60 Pac. 643, 79 Am. St. Eep. 935. 447, 448. Hall V. White, 6 C. & P. 136. 315. xlvi TABLE OF CASES. [BDFEBENCES ABE TO THE BOTTOM PAGES.] Halleck v. Mixer, 16 Calif. 574. 625, 627. Hallen v. Bunder, 3 Tyrwh. 959, 1 Cr. M. & E. 266, 3 L. J. N. S. Ex. 260. 4, 122, 124, 513, 517, 544, 638, 663. Halley v. AUoway, 78 Tenn. 523. 429. Hall Mfg. Co. V. Hazlett, 11 Ont. App. 749, 8 Ont. 465. 209. Halstead v. American G. Co., 17 Pa. Super. 605. 214. Ham V. Kendall, 111 Mass. 297. 103. Hamblett v. Bliss, 55 Vt. 535. 348. Hambly v. Trott, 1 Cowp. 376. 597. Hamilton v. Austin, 36 Hun. 138. 74, 162, 520. Hamilton v. Delhi M. Co., 118 Calif. 148, 50 Pac. 378. 425. Hamilton v. Ely, 4 Gill. 34. 601, 602. Hamilton v. Huntley, 78 Ind. 521, 41 Am. B. 593. 22, 32, 208, 407, 408. Hamilton v. Johnston, 14 Scot. Law Eep. 298. 87. Hamilton v. State, 94 6a. 770, 21 S. E. 995. 366. Hamilton v. Stewart, 59 111. 330. 625. Hamilton G. Co., Ee, 32 Can. L. J. 366. 560. Hamilton L. Co. v. Campbell, 5 Ont. 371. 658. Hamilton Mfg. Co. v. Lowell, 69 N. E. 1080. 564. Hamlin v. Parsons, 12 Minn. 108, 90 Am. Dec. 284. 74, 617. Hammer v. Johnson, 44 111. 192. 432. Hammond v. Ireland, Sty. 215. 659. Hammond v. Martin, 15 Tex. Civ. App. 570, 40 S. W. 347. 147, 545. Hampstead's Case, 1 Salk. 220. 679. Hancock v. Caskey, 8 S. C. 282. 346, Hancock v. Jordan, 7 Ala. 448, 42 Am. Dec. 600. 444, 462. Handforth v. Jackson, 150 Mass. 149, 22 N. E. 634. 117, 150, 218, 478. Handy v. Aldrich, 168 Mass. 34, 46 N. B. 429. 533. Handy v. Carruthers, 25 Ont. 279. 373. Haney v. Milliken, 2 Tex. Ct. of App. Civ. 170. 546. Hangsterfer v. Shafer, 130 Mich. 223, 89 N. W. 735. 533. Hannibal & St. Jo. E. E. Co. v. Crawford, 68 Mo. 80. 38, 62, 381. Hanrahan v. O'Eeilly, 102 Mass. 201. 142, 145. Hansen v. Dennison, 7 HI. App. 73. 368. Hansen v. Meyer, 81 111. 321. 533. Hanson "v. Gardiner, 7 Ves. 308. 272. Hanson v. News Pub. Co., 97 Me. 99, 53 Atl. 990. 142, 431. Harberger v. State, 4 Tex. App. 26, 30 Am. Eep. 157. 670. Harbold v. Kuster, 44 Pa. St. 394. 341. Hardeman v. State, 16 Tex. App. 1. 366. Harder v. Plass, 57 Hun 540, 11 N. Y. Supp. 226. 366. Hardesty v. Pyle, 15 Fed. 778. 50. Hare v. Horton, 5 B. & Ad. 715. 154, 157, 466, 468. Harkey v. Cain, 69 Tex. 146, 6 S. W. 637. 4, 57, 472. Harkuess v. Sears, 26 Ala. 496, 62 Am. Dec. 742. 138, 170, 389, 405. Harlan v. Harlan, 15 Pa. St. 507, 20 Pa. St. 303, 53 Am. Dec. 612. 68, 444, 520, 618, 626, 627, 628. Harman v. Cummings, 43 Pa. St. 322. 11. Harmon v. Eisher, 9 111. App. 22. 344. Harmon v. Kline, 52 Ark. 251, 12 S. W. 496. 103, 478. Harmony Bldg. Assn. v. Berger, 99 Pa. St. 320, 14 Eep. 250, 39 Leg. Intel. 286, 12 Wkly. Notes Cas. TABLE OP CASES. xlvii [BBFEEENCBS ABE TO 181, 43 Pitts. Leg. J. 17, 26 Alb. Law J. 203. 35, 435, 447, 450. Harms v. Jacobs, 158 111. 505, 41 N. E. 1071. 601. Harndon v. Stultz, 100 N. W. 329. 99. Harper v. Gaynor, 19 Vict. 675. 256. Harper v. Harper, 20 N. Zea. 317. 87. Harrell v. Miller, 35 Miss. 700. 374. Harriman v. Eockaway B, Co., 5 Fed. 461. 538. Harris v. Barmen, 78 Ky. 568. 74, 617. Harris v. Carson, 7 Leigh 632. 353, 354. Harris v. Prink, 49 N. Y. 24, 10 Am. Eep. 318. 120. Harris v. Gillingham, 6 N. H. 9. 103. Harris v. Gregg, 17 App. Div. 210, 45 N. Y. Supp. 364. 354. Harris v. Hackley, 127 Mich. 46, 86 S. "W. 389. 32, 36, 85, 414. Harris v. Haynes, 34 Vt. 220. 22, 31, 387, 389, 437, 438, 630. Harris v. Hitt, 58 Mo. App. 459. 382. Harris v. Jones, 83 N. C. 317. 367. Harris V. Kelly, 13 Atl. 523. 37, 225, 545.- Harris v. Malloch, 21 U. C. Q. B. 82. 71. Harris v. Powers, 57 Ala. 139, 68 Ala. 409. 102, 103, 116, 651. Harris v. Schultz, 64 Iowa 539, 21 N. "W. 22. 429. Harris v. Scovel, 85 Mich. 32, 48 N. W. 173. 435. Harris v. State, 73 Ga. 41. 674. Harris v. Yoringstown B. Co., 90 Ped. 322, 33 C. C. A. 69, 62 U. S. App. 112. 407. Harrisbnrgh v. Hope Fire Co., 2 Pearson 269. 46, 87. Harrisburg Light Co. v. Goodman, THE BOTTOM PAGES.] 129 Pa. St. 206, 19 Atl. 844. 26, 57. Harrison v. Chomeley, Gary 72. 358. Harrison v. Hoff, 102 N. C. 126, 9 S. E. 638. 646. Harrison v. Homeopathic Assn., 136 Pa. St. 558, 19 Atl. 804. 429. Harrison v. Parker, 6 East 154. 113, 635. Harrison v. Smith, 19 Nova S. 516. 188, 195, 200. Harrison's Trusts, 28 Ch. D. 220. 265. Harrow School v. Alderton, 2 B. & P. 86. 590. Hart V. Benton-Bellefontaine Ey. Co., 7 Mo. App. 446. 546. Hart V. Globe I. "Wks., 37 Ohio St. 75. 432. Hart V. Hart, 117 Wis. 639, 94 N. W. 890. 523. Hart V. Sheldon, 34 Hun 38. 22, 32, 38, 62, 388, 407, 442. Hart L. Co. v. Everett L. Co., 20 Wash. 71, 54 Pae. 767. 531. Harter v. Salford, 34 L. J. M. C. 206, 6 B. & S. 591. 577. Hartman v. Cummings, 43 Pa. St. 322. 426. Hartwell v. Kelly, 117 Mass. 235. 103, 216. Harvey v. Harvey, 2 Str. 1141. 301, 308, 309. Harvey v. Million, 67 Ind. 90. 341. Haskin Wood Co. v. Cleveland Co., 94 Va. 439, 26 S. E. 878. 30, 430. Haslem v. Lockwood, 37 Conn. 500. 179. Haslett V. Burt, 18 C. B. 893, 36 Eng. L. & Q. 276, 2 Jur. N. S. 974, 25 L. J. C. P. 295, 18 C. B. 162, 25 L. J. C. P. 201. 9, 245. Haslett V. Gillespie, 95 Pa. St. 371. 10, 427, 463. Haslett V. Glenn, 7 Harr. & John. 17. 352, 355. xlviii TABLE OF CASES. [KBFEKENCES ABE TO Hasty V. Wheeler, 12 Me. 434. 9, 525. Hatch V. Briar, 71 Me. 542. 397. Hathaway v. Davis, 3? Kan. 693, 5 Pac. 29. 432. Hathaway v. Orien I. Co., 11 N. Y. Supp. 413. 470. Hathorn v. Eaton, 70 Me. 219. 350. Haven v. Adams, 90 Mass. 363. 412. Haven v. Emery, 33 N. H. 66. 478, 486. Havens v. Germania I. Co., 123 Mo. 403, 27 S. W. 718, 45 Am. St. Eep. 570. 37, 379, 472. Havens v. West Side L. Co., 17 N. Y. Supp. 580, 44 N. Y. St. E. 589. 544. Hawes v. Favor, 161 111. 440, 43 N. E. 1076. 11, 233, 248. Hawes v. Lathrop, 38 Calif. 493. 398. Hawkins v. Hersey, 86 Me. 394, 30 Atl. 14. 421. Hawkins v. Skeggs, 10 Humph. 31. 358. Haworth v. Wallace, 14 Pa. St. 118. 426. Hawtry v. Butlin, L. E. 8 Q. B. 290, 21 W. E. 633, 42 U J. Q. B. 163, 28 L. T. N. S. 532, 5 Eng. E. 241. 404, 470, 491, 493, 494, 497, 499. Hay V. Tillyer, 14 Atl. 18. 146, 225. Hayden v. Burkemper, 101 Mo. 644, 14 S. W. 767, 40 Mo. App. 346. 344. Hayden v. Goppinger, 67 Iowa 106, 24 N. W. 743, 21 Eep. 44. 404. Hayes v. N. Y. Min. Co., 2 Colo. 273. 406. Hayes v. Schultz, 68 N. Y. Supp. 340, 33 Misc. 137. 255. Hayford v. Wentworth, 97 Me. 347, 54 Atl. 940. 32, 60, 144, 185, 188, 197. Hayles v. Pease, 68 L. J. Ch. 222. 404. Hayne's Case, 12 Co. 113. 325. THE BOTTOM PAGES.] Hays V. Doane, 11 N. J. Eq. 84. 197, 449. HazlehuTSt L. Co. v. Fay, 18 So. 485. 486. Hazlewood v. Pennybacker, 50 S. W. 199. 526. Head, Ee, 12 W. E. 215, 9 L. T. N. S. 613. 509. Headrick v. Brattain, 63 Ind. 438. 367. Heap V. Barton, 12 C. B. 274, 16 Jur. 891, 21 L. J. N. S. C. P. 153, 10 Eng. L. & Eq. 499. 205, 253. Heard v. Fairbanks, 46 Mass. 111. 364. Heath v. HaUe, 45 S. C. 642, 24 S. E. 300. 73, 407. Heathcote, Ex parte, 2 Mont. Dea. & DeG. 711, 6 Jur. 1001. 504, 505. Heaton v. Findlay, 12 Pa, St. 304. 63, 72, 423, 425, 618, 626. Heavilon v. Farmers Bk. 81 Ind. 249. 342, 346, 347. Heavilon v. Heavilon, 29 Ind. 509. 341. Hecht v. Dettman, 56 Iowa 679, 10 N. W. 241, 41 Am. E. 131, 20 Am. L. Eeg. 615. 347, 350. Hecksher v. Sheaier, 1 Cent. 928. 564. Hedderich v. Smith, 103 Ind. 203, 2 N. E. 315, 20 Am. Law Eeg. 21, 20 Eep. 647. 199, 255, 260. Hedge's Case, 1 Leach Cr. 240. 21, 54. Heermance v. Vernoy, 6 John. 5. 302, 405, 439. Heflfner v. Lewis, 73 Pa. St. 302. 140, 161, 198, 544. Heflin v. Bingham, 56 Ala. 566. 374. Heidegger v. Atlantic M. Co., 16 Mo. App. 327. 430. Heidelbach v. Jacobi, 28 N. J. Eq. 544. 408. Heighes v. Dollarville Co., 113 Mich. 518, 71 N. W. 870. 650, 652. TABLE OP CASES. xlix [KBrEKENCES AEB TO Hellawell v. Eastwood, 6 Exch. 295, 20 L. J. Ex. 154. 31, 178, 442, 443, 446, 549, 550, 553, 555, 580. Helm V. Gilroy, 20 Ore. 517, 26 Pae. 851. 29, 444. Hemenway, Ex parte, 2 Lowell 496, Ted. Gas. No. 6346, 22 Meyers Fed. Dec. § 23. 146, 203, 207, 211. Hemenway v. Bassett, 13 Gray 378. 71. Hemenway v. Cutler, 51 Me. 407. 63, 65, 67, 69, 381. Henderson v. Ownby, 56 Tex. 647, 14 Eep. 46. 59, 87. Hendy v. Dinkerhoff, 57 Calif. 3, 40 Am. Eep. 107, 23 Alb. Law J. 413, 6 Pac. C. Law J. 965. 35, 105, 225. Hendy v. Trinity & S. E. Co., 24 A. & E. B. E. Ca. 286. 90. Henkle v. Dillon, 15 Ore. 610, 17 Pac. 148. 30, 112, 400, 420, 434, 484. Hennessy v. Anstock, 19 Pa. Super. 644. 9. Henry v. Brown, 99 Ky. 13, 17 Ky. L. E. 1329, 34 8. W. 710. 523. Henry v. Yon Bradenstein, 12 Daly 480. 29, 418. Henry & C. Co. v. Fisherdiek, 37 Neb. 207, 55 N. W. 643. 429. Henshaw, Ee, 75 N. Y. Supp. 1047, 37 Misc. 586. 533. Hensley v. Brodie, 16 Ark. 511. 68, 478, 483, 622. Hercules I. Wks. v. Hummer, 49 111. App. 598. 105. Hereford v. Puseh, 68 Pac. 547. 59, 92, 378, 396. Herkimer L. Co. v. Johnson, 37 App. Div. 257, 55 N. Y. Supp. 924. 560. Herlakenden 's Case, 4 Co. 62a. 75, 188, 190, 285, 300, 458. Heme v. Bembow, 4 Taunt. 764. 598. Herring v. Pollard, 4 Humph. 362. 80. Herron v. Herron, 47 Ohio St. 544, 25 N. B. 420, 9 L. E. A. 667. 360. THE BOTTOM PAGES.] Hershberger v. Johnson, 37 Ore. 109, 60 Pae. 838. 546. Hershey v. Metzgar, 90 Pa. St. 217. 66, 342, 364. Hertzberg v. Witte, 22 Tex. Civ. App. 320, 54 S. W. 921. 217, 255, 259, 479. Hewitt V. General E. Co., 164 111. 420, 45 N. E. 725, 61 111. App. 168. 136, 142, 143, 161. Hewitt V. Watertown S. E. Co., 65 111. App. 153. 136, 623. Hey V. Bruner, 61 Pa. St. 87. 140, 141, 245, 544. Heysham v. Dettre, 89 Pa. St. 506, 7 Wkly, Notes Cas. 207, 10 Pitts. Leg. J. 14. 453. Heywood v. Tillson, 75 Me. 225. 112. H. F. Cady L. Co. v. Greater A. E. Co., 93 N. W. 961. 426. Hibernia Nat. Bk. v. Sarah P. Co., 107 La 650, 31 So. 1031. 480, 518. Hiekey v. Eutledge, 98 N. W. 974, 10 Det. Leg. N. 1101. 435. Higgins V. Kusterer, 41 Mich. 318, 2 N. W. 13, 32 Am. Eep. 160. 29, 33S, 514. Higgins V. Eiddell, 12 Wis. 587. 223. Higgon V. Mortimer, 6 C. & P. 616. 633, 642. Hillborne v. Brown, 12 Me. 162. 483, 650. , Hill, Ee, [1902] 1 Ch. 537, 807, 71 L. J. Ch. 417, 86 L. T. E. 336, 50 W. E. 434. 322. Hill V. Bowers, 45 Kan. 592, 26 Pae. 13. 426. Hill V. Bullock, [1897] 2 Ch. 483, 66 L. J. Ch. 705, 77 L. T. 240, 46 W. E. 84, [1897] 2 Ch. 55, 66 L. J. Ch. 454. V. 34, 278. Hill V. DeEochemont, 48 N. H. 87. 180. Hill V. Giles, Cro. Eliz. 818. 659. Hill V. Gwin, 51 CaUf. 47. 71 73. Hill V. Hill, 43 Pa. St. 521. 659. 1 TABLE OP CASES. [EEFEEBNCES ABB TO Hill V. Mundy, 89 Ky. 36, 11 Ky. L. K. 248, 11 S. W. 956, 4 L. B. A. 674. 26, 32, 46, 47, 379, 456. Hill V. National Bk., 97 U. S. 450, 8 Bep. 577. 31, 410. Hill V. Eosenfeld, 10 Ky. L. B. 496. 28, 36. Hill V. Sewald, 53 Pa. St. 271, 91 Am. Dee. 209. 25, 31, 415. Hill V. Shoemaker, 8 D. C. 305. 65, 410. Hill V. Wentworth, 28 Tt. 428. 22, 31, 60, 389, 437, 438, 441, 543. Hillebrand v. Nelson, 95 N. W. 1068. 21, 27, 29,. 60, 436. Hilton Lumb. Co. v. Murray, 47 App. Div. 289, 62 N. Y. Supp. 35. 122, 124, 432. Hinckley v. Baxter, 13 Allen 139. 112, 650. Hinckley I. Co. v. James, 51 Vt. 240. 407, 426. Hinds Est., 5 Wiart. 138, 34 Am. Dec. 542. 94, 95, 273. Hine v. Morris, 3 Wkly. Gin. L. B. 515. 417. Hines v. Ament, 43 Mo. 298. 93, 111. Hines v. Good, 128 CaUf. 38, 60 Pac. 527. 626. Hinkle v. Hinkle, 69 Ind. 134. 53, 435. Hinkley Iron Co. v. Black, 70 Me. 473, 35 Am. Bep. 346. 28, 381, 384, 385. Hinton v. Walston, 115 N. C. 7, 20 S. E. 164. 345, 361. Hintze v. Krabbenschmidt, 44 S. W. 38. 191. Hirsch v. Graves Elevator Co., 53 N. Y. Supp. 664, 24 Misc. 472. 33, 483. Hirth V. Graham, 50 Ohio St. 57, 33 N. E. 90. 374. Hisey v. Troutman, 84 Ind. 115. 341. Hislop V. Joss, 3 Ont. L. 281. 407. Histe V. Buckley, 8 Ohio C. C. 470, THE BOTTOM PAGES.] 1 Ohio Dee. 526, 4 Ohio Circ. Dec. 490. 102, 110. Hitchcock V. Walford, 5 Scott 792. 324. Hitchings, Be, 4 Nat. B. Beg. 384. 394, 436. Hitchman v. Walton, 4 M. & W. 409, 8 L. J. N. S. Ex. 31. 504, 535, 593, 597, 635, 643, 644, 657. Hite v. Parks, 2 Tenn. Ch. 373. 533. Hoag, Be, 97 Fed. 543. 369. Hoagland v. Lowe, 39 Neb. 397, 58 N. W. 197. 408. Hobbs V. Weatherwax, 38 How. Pr. 388. 374. ' Hobson V. Gorringe, [1897] 1 Ch. 182, 66 L. J. Ch. 114, 75 L. T. E. 609, 11 B. 511. 60, 389, 487. Hodgson V. Gascoigne, 5 B. & Aid. 88. 361. Hoffman v. Armstrong, 46 Barb. 337, 48 N. Y. 201. 100. Hogan V. Manners, 23 Kan. 551. 404. Hoit V. Stratton Mills, 564 N. H. 110. 65, 68. Holbrook v. Chamberlain, 116 Mass. 155, 17 Am. B. 146. 10, 20, 140, 141, 233, 240, 241, 435. Holder v. Coates, 1 Moo. & M. 112. 100. Holderman v. Miller, 102 Ind. 356, 1 N. E. 719. 67. Holland, Be, 2 Haskell, 90, Fed. Gas. No. 6603. 407. Holland v. Hodgson, L. B. 7 C. P. 328, 26 L. T. N. S. 709, 2 Eng. B. 655. 21, 31, 43, 61, 103, 122, 405, 443, 445, 446, 492, 499, 555, 556. Holliday v. Marshall, 7 John. 211. 528. Holly V. State, 54 Ala. 238. 668. Holly Mfg. Co. V. New Chester W. Co., 48 Fed. 879, 53 Fed. 19. 33, 479, 482. Holmberg v. Johnson, 45 Kan. 197, 25 Pac. 575. 162, 338. TABLE OF CASES. [KEFKEENCES AliB TO Holmes v. Standard Pub. Co., 55 Atl. 1107. 127, 136, 146, 152, 217, 607. Holmes v. Tremper, 20 John. 29, 11 Am. Deo. 238. 152, 159, 160, 169, 172, 200, 378. Holroyd v. Marshall, 11 W. B. 171. 125. Holsman v. Abrams, 2 Duer. 485. 582_ Holt V. Holt, 57 Mo. App. 272. 37o! Holt County Bk. v. Tootle, 25 Neb. 408, 41 N. W. 291. 384, 478, 489. Holton V. Bowman, 32 Minn. 191, 19 N. W. 734. 345. Homeopathic Aasn. v. Harrison, 120 Pa. St. 28, 13 Atl. 501. 429. Homestead Land Co. v. Becker, 96 Wis. 206, 71 N. "W. 117. 30, 33, 58, 388, 390, 393, 407, 472. Honeyman v. Thomas, 25 Ore. 539, 36 Pae. 636. 29, 36, 144, 145, 431. Hook V. Eicheson, 115 111. 431, 5 N. E. 98. 424. Hooker v. Latham, 118 N. C. 179, 23 S. E. 1004. 626. Hooper v. Broderick, 9 L. J. Ch. N. S. 321. 607. Hooper v. Farnsworth, 128 Mass. 487. 398, 565. Hooper v. Payne, 94 Ala. 223, 10 So. 431. 360. Hooven v. John Featherstone 's Sons, 111 Fed. 81, 49 C. C. A. 29. 32, 427. Hope V. Gumming, 10 U. C. C. P. 118. 555. Hope L Co. V. Brolaskey, 35 Pa. St. 282. 217. Hopewell Mills v. Taunton Bk., 150 Mass. 519, 23 N. E. 327, 6 L. E. A. 249, 15 Am. St. Eep. 235. 29, 36, 61, 440, 444, 455, 647. Hopkins v. Gilman, 47 Wis. 581, 3 N. W. 382. 9, 246, 526, 529, 530, 532. Horn V. Baker, 9 East 215. 16, 506, 507, 509. THE BOTTOM PAGES.] Horn V. Indianapolis Nat. Bk., 125 Ind. 381, 25 N. E. 558, 9 L. E. A. 676, 21 Am. St. Eep. 231. 32, 399, 422, 472. Home V. Gambrell, 1 Tex. Ct. of App. Civ. 558. 364. Home y. Smith, 105 N. C. 322, 11 S. E. 373, 18 Am. St. Eep. 903. 35, 378, 388, 392. Hornelle v. Enregistr, 2 Ledru EoUin 214. 42. Horsfall v. Key, 2 Exch. 778, 17 L. J. Ex. 266. 517. Horwitz, Ee, 26 Vict. 500. 586. Hoskin v. Woodward, 45 Pa. St. 42. 72, 462. Hosking v. Phillips, 3 Exch. 168. 595. Hoskins v. Tarrance, 5 Blackf. 417. 670. Hosli V. Yokel, 57 Mo. App. 622'. 371. Hostetter v. Auman, 119 Ind. 7, 20 N. E. 506. 374. HoSun V. Hitchcock, 9 Haw. 616. 344. . Houghtaling v. Houghtaling, 5 Barb. 379. 640. Houghton V. Butler, 4 Term. 364. 646. House V. House, 10 Paige 158, 2 N. Y. Leg. Obs. 206. 312, 313. Houston, E. & W. Ey. Co. v. Adams, 63 Tex. 200. 87. Houts V. Showalter, 10 Ohio St. 126. 34. Houzik V. Delaglise, 65 Wis. 494, 27 N. W. 171. 86. Hovey v. Smith, 1 Barb. 872. 813. Howard v. Easton, 7 John. 205. 515. Howard v. Fessenden, 14 Allen 128. 94, 102, 103, 111, 112, 113, 115, 195. Howe V. Batchelder, 49 N. H. 204. 374. Hi TABLE OF CASES. [EEFEKENCBS ABB TO Howell V. Barnard, 32 111. App. 120. 36, 411, 435, 523, 624. Howell V. Listonville R. Co., 13 Ont. 476. 137, 157, 234, 550, 552. Howell v. Schenck, 24 N. J. L. 89. 354, 360. Howe's Cave Assn. v. Houck, 66 Hun 205, 21 N. Y. Supp. 40, 49 N. Y. St. E. 5. -152, 533. Hoyle V. Plattsburgh &e. E. E. Co., 54 N. Y. 314, 51 Barb. 45, 47 Barb. 104, 13 Am. Eep. 595. 21, 26, 47, 50, 53, 541. Hubbard v. Bagshaw, 4 Sim. 326, 9 L. J. Ch. 190. 504, 512. Hubbard v. Beekford, 1 Hag. Consist. 307. 293. Hubbard v. Berry, 10 Ind. App. 594, 38 N. E. 77. 362. Hubbell V. East Cambridge Bk., 132 Mass. 447, 42 Am. Eep. 446. 28, 440, 441, 442. Hubbs V. Swabaeker, 51 W. Va. 438, 41 S. E. 464. 341. Huddersfield Bkg. Co. v. lister, [1895] 2 Ch. 273, 64 L. J. Ch. 523, 72 L. T. E. 703, 43 W. E. 567, 12 E. 331. 71, 392. Hudson B. Co. v. Patterson, 74, N. Y. 365. 558. Hudson's Bay Co. v. Macdonald, 44 Man. 237. 394. Hudson Tr. Inst. v. Carr-Curran Co., 58 N. J. Eq. 59, 43 Atl. 418. 34. Huebschman v. McHenry, 29 Wis. 655. 26, 59, 63, 86, 620. Huerstal v. Muir, 64 Calif. 450, 2 Pac. 33. 360, 658. Huff V. MeCaulay, 53 Pa. St. 206. 373. Hug V. Van Burkleo, 58 Mo. 202. 528, 529. Hughes V. Breeds, 2 C. & P. 159. 517. Hughes V. Burriss, 85 Mo. 660. 607. THE BOTTOM PAGES.] Hughes V. Edisto S. Co., 51 S. C. 1, 28 S. B. 2. 138, 144, 651. Hughes V. Gordon, 1 Bligh 312. 354. Hughes V. Lambertville Light Co., 53 N. J. Eq. 435, 32 Atl. 69. 29, 431. Hughes V. State, 103 Ind. 344, 2 N. E. 956. 674. Hughes V. Towers, 16 U. C. C. P. 287. 141, 142, 143, 144, 146, 544, 545. Hughes V. Vail, 57 Vt. 41. 562. Hull V. Alexander, 26 Iowa 571. 115. Hull V. London Coun., [1901] 1 K. B. 580, 70 L. J. K. B. 364, 84 L. T. E. 160, 49 W. Ey. 396, 65 J. P. 309. 676. Humiston t. Wheeler, 175 111. 514, 51 N. E. 893. 398. Humphrey v. Merritt, 51 Ind. 197. 351. Humphreys v. Newman, 51 Me. 40. 118, 393, 407, 537. Humphries v. Humphries, 3 Ired. 362. 363. Hunt V. Bay State I. Co., 97 Mass. 279. 103, 420, 478, 486. Hunt V. Bullock, 23 111. 320. 26, 48, 53, 541. Hunt V. Missouri P. Ey. Co., 76 Mo. 115. 88. Hunt V. Mullanphy, 1 Mo. 508, 14 Am. Dec. 300. 31, 60, 389, 437. Hunt V. Potter, 47 Mich. 197, 10 N. W. 198, 13 Eep. 176. 232. Hunter v. Blanchard, 18 111. 318. 426. Hunter v. Burchett, 5 Ky. L. E. 770. 66, 373. Hunter v. Commonwealth, 7 Gratt. 641. 677. Hunter v. Jones, 3 Brewst. 370. 354, 358. Huntley v. Eussell, 13 Q. B. 572, 13 Jur. 837, 18 L. J. Q. B. 239. 288, 289, 291. Hurrey v. Bank, 1 N. Zea. L. B. C. A. 115. 393. TABLE OF CASES. liii [BEFBBENCES ARE TO Hurxthal v. Hurxthal, 45 W. Va. 584, 32 S. E. 237. 420. Hussey, Ke, 2 Haskell 244, Fed. Gas. No. 6945. 363. Hussey v. Eyan, 64 Md. 42H, 2 Atl. 729. 137, 208. Huston V. aark, 162 Pa. St. 435, 29 Atl. 868, 3 Pa. Dist. 2. 25, 26. Huston ^. Skaggs, 7 Ky. L. K. 592. 361, 658. Hutchings v. Lathrop, 8 Law Eep. 82. 406. Hutehins v. King, 1 Wall. 53. 71, 72, 73, 645. HutcMns V. Masterson, 46 Tex. 551, 26 Am. Eep. 286. 33, 391, 515. Hutehins v. Shaw, 6 Gush. 58. 385. Hutchinson v. Ford, 9 Bush. 318, 15 Am. E. 711. 367. Hutchinson v. Kay, 23 Beav. 413, 3 Jur. N. S. 652, 26 L. J. Ch. 457, 5 W. E. 341. 433, 442, 464. Hutchman's App. 27 Pa. St. 209. 72, 75. Hutton V. Warren, 1 M. & W. 466, Tyr. & Gr. 646. 353. Hyatt V. Vincennes Bk., 113 IT. S. 408, 5 S. Ct. 573. 122, 546. Hylton V. Brown, 2 Wash. 0. C. 165. 79. Hyman v. Gordon, Ohio Prob. 189. 33, 436. Ice Co. V. Lone Star Works, 15 Tex. Civ. App. 694, 41 S. W. 835. 30, 388, 488. Idal V. Jones, 2 Dev. L. 162. 329. Iddings V. Nagle, 2 W. & S. 22. 354. Iden V. Sommers, 18 N. T. Supp. 189. 448. Illinois Bk. v. Seattle Ey. Co., 82 Fed. 936, 27 C. C. A. 268, 48 V. 8. App. 744. 50. Illinois C. E. E. Co. v. Hoskins, 80 Miss. 730, 32 So. 150, 92 Am. St. E. 612. 88. THE BOTTOM PAGES.] Illinois C. E. E. Go. v. I^Blanc, 74 Miss. 650, 21 So. 760. 403, 658. Independent S. Dist. of W. Pt. v. Werner, 43 Iowa 643. 435. Indianapolis, D. & W. Ey. Co. v. First Nat. Bk., 134 Ind. 127. 102. Ingalls V. Saint Paul, M. & M. Ey. Co., 39 Minn. 479, 40 N. W. 524, 12 Am. St. Eep. 676. 114. Ingersoll v. Barnes, 47 Mich. 104, 10 N. W. 127. 480, 652. Ingram v. Gowles, 150 Mass. 155, 23 N. E. 48. 561. Insurance Go. v. Luce, 11 O. C. C. 476. 379. Insurance Co. of N. A. v. Buekstaff, 92 N. W. 755. 36, 139. Inverarity v. Stowell, 10 Ore. 261. 407. Irish B. Soe. v. Mahony, 10 Ir. E. L. 363. 392, 407, 434, 493. Irvin V. M. O., St. L. & C. E. E. Co., 94 111. 105. 564. Irrin v. Simonds, 11 N. B. (6 Allen) 190. 533. Isenhoot v. Chamberlain, 59 Calif. 630, 9 Pac. C. Law J. 14. 220, 478, 482. Isham V. Morgan, -9 Conn. 374. 35, 393. Ivey V. McQueen, 17 Ala. 408. 640. Ivins V. Ackerson, 38 N. J. L. 220. 103, 514, 515. Ivy V. Yancey, 129 Mo. 501, 31 S. W. 937. 407. Jackson v. Adams, 2 Bing. N. C. 403. 326. Jackson v. Buel, 9 John. 298. 657. Jackson v. Gator, 5 Ves. 688. 603. Jackson v. Evans, 44 Mich. 510, 7 N. W. 79. 340, 372. Jackson v. Klinger, 67 N. Y. Supp. 850, 33 Misc. 758. 199. Jackson v. Loomis, 4 Cow. 168. 80. Jackson v. Ludeling, 99 U. S. 513. 78. liv TABLE OF CASES. [REFEEENCES ABB TO Jackson v. May, 16 John. 184. 659. Jackson v. State, 11 O. St. 104. 670. Jackson ads. Turrell, 39 N. J. L. 329. 29, 388, 407, 411, 595, 596. Jacksonville, T. & K. W. Ky. Co. v. Adams, 28 Fla. 631, 10 So. 465. 90. Jacoby v. Johnson, 120 Fed. 487. 87. James v. Portman, Owen 102. 352. Janney v. Goehringer, 52 Minn. 428, 54 N. W. 481. 528. Jarechi v. Philharmonic See, 79 Pa. St. 403, 21 Am. Rep. 78, 33 Leg. Intel. 101, 6 Pitts. Leg. J. 134, 2 N. Y. Wkly. Dig. 153. 429, 448. Jared v. Vanvleet, 13 111. App. 334. 652. Jarrett v. McDaniel, 32 Ark. 598. 368. Jarvis v. Jarvis, 1 Manson's B. Ca. 199, 8 E. 361. 513. Jefferson v. Bishop of Durham, 1 B. & P. 104. 599. Jefferys v. Smith, 1 Jac. & Walk. 302. 272. Jenkins v. Gething, 2 John. & Hem. 520. 186. Jenkins v. Lykes, 19 Fla. 148. 374, 376, 435, 459, 633. Jenkins v. McCoy, 50 Mo. 348. 361. Jenkins v. McCurdy, 48 "Wis. 628, 4 N. W. 807, 33 Am. Bep. 841. 30, 37, 435. Jenks T. Colwell, 66 Mich. 420, 33 N. W. 528. 36, 84. Jencks v. Smith, 1 N. Y. 90. 67. Jenney v. Gray, 5 Ohio St. 45. 360. Jenney v. Jackson, 6 111. App. 32. 388, 521, 602. Jennings v. Vahey, 183 Mass. 47, 66 N. E. 598, 97 Am. St. Eep. 409. 450. Jerecke Mfg. Co. v. Struther, 14 O. C. 0. 400, 8 Ohio Circ. Dec. 5. 426. THE BOTTOM PAGES.] Jermyn v. Hunter, 93 App. Div. 175, 87 N. Y. Supp. 546. 29, 486. Jerome v. Boss, 7 John. Ch. 315. 601, 602, 614. Jessup V. Stone, 13 Wis. 466. 408, Jesus Col. T. Bloom, 1 Ambl. 56, 3 Atk. 264. 272, 613. Jewett V. Keenholts, 16 Barb. 193. 347. Jewett V. Patridge, 12 Me. 243. 103, 421. Jewett V. Whitney, 43 Me. 242. 63, 65. J. L. Mott I. Wks. V. Eeilly, 81 N. Y. Supp. 323, 33 Misc. 833. 486. John L. Eoper L. Co., 93 N. C. 22. 601. John O'Brien Boiler Co. v. Haydock, 59 Mo. App. 653. 36, 217, 426, 431. Johns V. Kamarad, 96 N. W. 118. 364. Johns V. Ware, [1899] 1 Ch. 359, 68 L. J. Ch. 155, 80 L. T. E. 112, 47 W. E. 202, 6 Manson's Bankr. Gas. 38. 493. Johnson v. Barber, 10 111. 431, 50 Am. Dee. 416. 332. Johnson v. Bratton, 112 Mich. 319, 70 N. W. 1021. 73. Johnson v. Camp, 51 111. 219. 344, 346. Johnson v. Cook, 96 Mo. App. 442, 70 S. W. 526. 343. Jonhsou V. Hunt, 11 Wend. 135. 9, 54. Johnson v. Mehaffey, 43 Pa. St. 308, 82 Am. Dee. 568. 54, 455. Johnson v. Moore, 28 Mich. 3. 376. Johnson v. Mosher, 82 Iowa 29, 47 N. W. 996. 32, 60, 395. Johnson v. Patterson, 81 Tenn. 626. 30. Johnson v. Eayner, 6 Gray 110. 397. Johnson v. Roberts, 102 HI. 655. 565. Johnson v. State, 61 Ala. 9, 100 Ala. TABLE OF CASES. Iv [BEFEEBNCES ABB TO 55, 14 So. 637, 114 Ga. 790, 40 S. E. 807, 68 Ind. 43. 350, 668, 671. Johnson v. Tantlinger, 31 Iowa 500. 341. Johnson v. Willinghby, 3 Tenn. Cas. 338. 87, 112, 113, 195, 640. Johnson v. Wiseman, 4 Met. 357, 83 Am. Dec. 475. 378, 439, 448. John Spry L. Co. v. Steam-barge C. H. Green, 76 Mich. 320, 43 N. W. 576. 639. Johnston v. Bates, 48 N, Y. Super. 180. 531. Johnston v. Dobie, Mor. Diet. 5443. 54, 455, 473, 477. Johnston v. Morrow, 60 Mo. 339. 407, 461. Johnston v. Phila. Mort. Co., 129 Ala. 515, 30 So. 15, 87 Am. St. Eep. 75. 61, 394, 515. Johnston v. Eoss, 22 App. Div. 631, 48 N. Y. Supp. 6. 652. Johnston v. Smith, 70 Ala. 108. 341, 342, 344. Johnstonv. Swann, 3 Mad. 457. 475. John T. Dyer Company's App., 21 Pa. Co. 442. 217, 561. John Van Eange Co. v. Allen, 7 So. 499. 383, 479. Joiner v. Adams, 114 Ga. 389, 40 S. E. 281. 53. Jollie & Broad's Case, 2 KoUe 201. 551. Jones v. Adams, 37 Ore. 473, 59 Pac. 811, 62 Pac. 116, 50 L. E. A. 388, 82 Am. St. Eep. 766. 344^ Jones V. Bull, 85 Tex. 136, 19 S. W. 1031, 90 Tex. 187, 37 S. W. 1054. 30, 33, 61, 388, 391, 392, 537, 542, 618, 623. Jones V. Cooley, 106 Iowa 165, 76 N. W. 652. 478. Jones V. Costigan, 12 "Wis. 677. 594. Jones V. Detroit 0. Co., 38 Mich. 92, 31 Am. Eep. 314. 413. THE BOTTOM PAGES.] Jones V. Flint, 10 Ad. & E. 753, 2 P. & D. 594. 370, 371. Jones V. Gooday, 8 M. & W. 146. 641. Jones V. Hill, 3 Lev. 268, Garth. 224, 1 Moore 100. 292, 598. Jones V. Hoard, 59 Ark. 42, 26 S. W. 193. 191, 530, 532. Jones V.' Jones, 2 Dev. Eq. 387. 350. Jones V. New O. & S. E. E. Co., 70 Ala. 227. 90. Jones V. Eamsey, 3 111. App. 303. 32, 619. Jones V. Shufflin, 45 "W. Va. 729, 31 S. E. 975. 284. Jones V. Thomas, 8 Blackf. 428. 345. Jones V. Timmons, 21 Ohio St. 596. 341. Jones V. Webster, 48 Ala, 109. 367. Jones V. Whitehead, 1 Pars. Eq. Ga. 304. 591, 599, 601. Jordan v. Myres, 126 Calif. 565, 58 Pac. 1061. 31, 426, 480. Joseph Hall Mfg. Co. v. Hazlett, 11 Ont. App. 749, 8 Ont. 465. 209. Josslyn V. McCabe, 46 Wis. 591, 1 N. W. 174, 18 Am. Law Eeg. 711. 141, 199, 200. Julian V. Woodsmall, 82 Ind. 572. 83. Jungerman v. Bovee, 19 Calif. 354. 219, 254, 258, 259. Justice V. Nequehoming E. E. Co., 87 Pa. St. 28, 35 Leg. Intel. 314, 6 Wkly. Notes Cas. 374. 25, 91, 659. Kaestner v. Day, 65 111. App. 623. 28, 107, 146. Kahinu v. Aea, 6 Haw. 68. 311. Kain v. Fisher, 6 N. Y. 597. 334. Kammrath v. Kidd, 95 N. W. 213. 341. Kanoii v. Kaioipahia, 11 Haw. 326. 657. Kansas Cy. v. Morse, 105 Mo. 510, 16 S. W. 893. 380.' Kansas T. Co. v. Electric P. Co., 116 Fed. 904. 143, 413. Ivi TABLE OF CASES. [BEFEBENCES ABE TO Karst V. Saint P., S. & T. F. R. B. Co., 22 Minn. 118. 641. Kash V. Huncheon, 1 Ind. App. 361, 27 N. E. 645. 532. Kausal v. Minnesota F. Ins. Assn., 31 Minn. 17, 16 N. W. 430. 106. Kay V. Hathaway, 21 Tex. Civ. App. 466, 51 8. W. 663. 218. Kearsey v. Carstairs, 2 B. & Ad. 716. 527. Keating Maeli. Co. v. Marshall Power Co., 74 Tex. 605, 12 S. W. 489. 30, 431. Keefe v. Furlong, 96 "Wis. 219, 70 N. W. 1110. 66, 144, 217, 472 . Keefer v. Merrill, 6 V. C. App. 121. 21, 30, 60, 402, 440, 442. Keeler v. Keeler, 31 N. J. Eq. 181, 9 Eep. 184, 8 Am. Law Eec. 670. 58, 388, 390, 391, 393, 441, 486. Keeney v. Whitlock, 7 Ind. App. 160, 34 N. E. 502. 69, 480. Keepers of Harrow Sch. v. Alderton, 2 B. & P. 86. 590. Kehlor v. "Wilton, 99 111. App. 228. 513. Kekewioh v. Marker, 3 Mac. & G. 311. 611. Kelley v. Border Cy. Mills, 126 Mass. 148. 427. Kelley v. Powlet, Ambl. 605, 1 Dick. 559. 475. Kelley v. Todd, 1 "W. Va. 197. 353, 354. Kellogg V. Littell & S. Co., 1 "Wash. 407, 25 Pac. 461. 432. Kelly v. Austin, 46 111. 156, 92 Am. Dec. 293. 31, 445. Kelly V. Seward, 51 Vt. 436. 638. Kelly V. Webber, 11 Ir. C. L. 57. 355, 363. Kelly V. "Webster, 12 0. B. 283, 16 Jur. 888, 21 L. J. C. P. 163, 10 Eng. L. & Eq. 517. 219, 515. Kelsey v. Durkee, 33 Barb. 410. 139, 140, 232. THE BOTTOM PAGES.} Kendall v. Hathaway, 67 Vt. 122, 30 Atl. 859. 22, 30, 418, 434, 436. Kendall v. Porter L. Co., 69 Ark. 442, -64 S. "W. 220. 376. Kendall v. Tracy, 64 Vt. 522, 24 Atl. 1118. 407. Kendall Mfg. Co. v. Bundle, 78 "Wis. 150, 47 N. "W. 364. 72, 145, 146, 424. Kenerson v. Colgan, 164 Mass. 166, 41 N. E. 122. 87, 191, 195, 385. Kennard v. Brough, 64 Ind. 23. 389, 391. Kennedy v. Clayton, 29 Ark. 270. 622. Kennedy v. Commonwealth, 182 Mass. 480, 65 N. E. 828. 430. Kennedy v. Milwaukee & St. P. By. Co., 22 "Wis. 581. 90, 410. Kenney v. Matlack, 12 Atl. 589, 11 Cent. 609. 143, 146, 220. Kent V. Brown, 59 N. H. 236. 428. Kent County Soc. v. Ide, 128 Mich. 423, 87 N. "W. 369. 639. Keogh V. Daniell, 12 "Wis. 163. 165, 166, 203, 211. Kerby v. Clapp, 15 App. Div. 37, 44 N. Y. Supp. 116. 450, 483. Kerr v. Hill, 27 "W. Va. 576. 341, 370. Kerr v. Kingsbury, 39 Mich. 150, 33 Am. Eep. 362, 17 Am. Law Beg. 638, 13 Am. Law Bev. 378. 109, 205, 257, 261, 481. Kesler v. Cornelison, 98 N. C. 383, 3 S. E. 839. 341. Keve V. Paxton, 26 N. J. Eq. 107. 30, 403, 441, 521. Key V. "Woolfolk, 6 Bob. 424. 63, 436. Keyser v. Dist. No. 8 in Sunapee, 35 N. H. 477. 663. Keystone I. Co. v. "Wilie, 6 Kan. App. 654, 49 Pac. 706. 464. Kidwell V. Kidwell, 84 Ind. 224. 339. Kiernan v. Heaton, 69 Iowa 136, 28 N. "W. 478. 99. TABLE OF CASES. Ivii [KErBKENCES ABB TO Kile V. Gieliner, 114 Pa. St. 381, 7 Atl 154. 656. Kileen v. Kennedy,- 90 Minn. 414, 97 N. W. 126. ' 374. Kimball v. Adams, 52 Wis. 554, 9 N. W. 170. 38, 92, 454. Kimball v. Darling, 32 Wis. 675. 610. Kimball v. Grand Lodge, 131 Mass. 59, 11 Eep. 704. 125, 141, 154, 404. Kimball v. Lohmas, 31 Calif. 154. 627. Kimball v. Sattley, 55 Vt. 291. 66, 67, 367. Kimpton v. Eve, 2 Ves. & B. 349. 15, 126, 127, 604, 606, 608, 652. Bang, Ex parte, 1 Mont. Dea. & DeG. 119, 4 Jur. 510. 505, 511. King V. Bangs, 120 Mass. 514. 630, 641. King V. Beauvais, 7 Can. Cr. 494. 671. King V. Bosserman, 6 Pa. Dist. 344. 341. King V. CatUn, 1 Tyler, 355. 659. King V. Foscue, 91 N. C. 116. 355. King V. Fowler, 14 Pick. 238. 361. King V. Gilson, 32 111. 348. 316, 625. King V. Johnson, 7 Gray 239. 381. King V. Smith, 2 Hare 239. 610, 611. King V. Whittle, 73 Ga. 482. 355. King V. Wilcomb, 7 Barb. 263. 120, 162, 193, 194, 205, 215, 478. King V. Wilson, 98 Va. 259, 35 S. B. 727. 533. Kingsbury v. Collins, 4 Bing. 202. 338. Kingaley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173. 370, 374, 375. Kingsley v. McFarland, 82 Me. 231, 19 Atl. 442, 17 Am. St. Eep. 473. 386. Kinkead v. United States, 150 IT. S. 483, 14 S. Ct. 172. 87. THE BOTTOM PAGES.] Kinlyside v. Thornton, 2 W. Bl. 1111. 598. Kinnear v. Moses, 32 Wash. 215, 73 Pac. 380. 396. Kinney v. Knoebel, 51 III. 112. 423. Kinsell v. Billings, 35 Iowa 154. 295, 297. Kinsey v. Bailey, 9 Hun 452, 4 N. Y. Wkly. Dig. 282. 104, 418. Kinsman v. Kinsman, 1 Eoot 180. 351. Kinver v. Stone, 1 Str. 678. 584. Kiplinger v. Green, 61 Mich. 340, 28 N. W. 121. 359. Kirch V. Davies, 55 Wis. 287, 11 N. W. 689. 66, 467, 618. Kircher v. Schalk, 39 N. J. L. 335. 74. Kirchman v. Lapp, 19 N. Y. Supp. 831, 46 N. Y. St. E. 687. 334, 395, 446, 448, 520. Kirkeby v. Erickson, 90 Minn. 299, 96 N. W. 705. 373. Kirkpatriek v. Cornwall St. Ey. Co., 2 Ont. Law 113. 26, 48, 463, 489, 541, 546. Kirtley v. Dykes, 10 Ok. 16, 62 Pac. 808. 361. Kirwan v. Latour, 1 Har. & John. 289, 2 Am. Dec. 519. 433. Kiasam v. Barclay, 17 Abb. Pr. 360. 193, 194, 196. Kisterbock v. Lanning, 7 Atl. 596, 6 Cent. 264. 393. Kisterbock v. Todd, 16 Wkly. Notes Cas. 47. 35. Kittery v. Portsmouth Bridge, 78 Me. 93, 2 Atl. 847. 558. Kittow V. Liskeard Union, 44 L. J. M. C. 23, 9 Cox Mag. 312. 582. Kittredge v. Woods, 3 N. H. 503, 14 Am. Deo. 393. 459, 543. Kloess V. Katt, 40 111. App. 99. 26, 55, 387, 395. Kluse V. Sparks, 10 Ind. App. 444, 36 N. E. 914, 37 N. E. 1047. 341. Iviii TABLE OF CASES. [REFERENCES ARE TO Knapp V. Jones, 38 111. App. 489, 143 111. 375, 32 N. E. 382. 502, 521. Knevett v. Pool, Cro. Eliz. 463, 5 Co. 85a. 361. Knickerbocker Tr. Co. v. Penn Cord- age Co., 58 Atl. 409, 62 N. J. Bq. 624, 50 Atl. 459. 29, 61, 389, 391, 393, 396, 434, 436, 439, 442, 471, 595. K-niglit V. Bank, 15 Leg. Int. 139, 3 Phila. 138. 512. Knight V. Orchard, 92 Mo. App. 466. 532. Knivet v. Poole, Cro. Eliz. 463, 5 Co. 85a. 361. Knotts V. Hydriek, 12 Eich. 314. 375. Knowles v. Michel, 13 East 249. 663, 664. Knowlton v. Johnson, 37 Mich. 47. 486. Knox V. Brotherton, 14 N. S. W. Supr. Ct. 185. 30, 167, 396. Knox V. Haralson, 2 Tenn. Ch. 232. 375. Knox V. Oswald, 21 111. App. 105. 348. Koenig v. Mueller, 39 Mo. 165. 426. Koons V. Lucas, 52 Iowa 177, 3 N. W. 84. 563. Korbe v. Barbour, 130 Mass. 255. Ill, 112, 117, 216, 651. Kribbs v. Alford, 120 N. Y. 519, 24 N. K 811, 31 N. T. St. E. 564. 217. Krounse v. Eoss, 1 Craneh C. C. 368. 192. Krueger v. Pierce, 37 Wis. 269. 539. Krug V. Davis, 101 Ind. 75. 99. Kuhlman v. Meier, 7 Mo. App. 260. 149, 217, 218, 231, 232. Kupp's Est., 2 Woodward 228. 339. Kutter V. Smith, 2 Wall. 491. 148, 149, 191, 194, 210, 226, 523. Lacey v. Giboney, 36 Mo. 320, 88 Am. Dec. 145. 22, 140, 142, 144. Lackas v. Bahl, 43 Wis. 53. 394. THE BOTTOM PAGES.] Lacrustine Fertilizer Co. v. Lake G. Co., 82 N. Y. 476, 19 Hun 47. 82, 87, 118, 486. Lady Daere's Case, 1 Lev. 58. 659. Laflin v. GriflSths, 35 Barb. 58. 21, 64, 378, 392, 618, 619. LaGrill v. Mallard, 90 CaUf. 373, 27 Pac. 294. 429. Laidlaw v. Taylor, 2 Nova S. L. E. 155. 35, 127, 141, 143, 248, 260. Laine v. Beland, 26 Can. 419, 4 Que. Q. B. 354. 408, 486. Laing v. Bishopwearmouth, 3 Q. B. D. 299, 47 L. J. M. C. 41, 28 Eng. E. 278. 577. Laing v. Ontario L. Co., 46 U. C. Q. B. 114. 349, 368. Laird v. Eailroad, 62 N. H. 254, 18 Am. St. E. 564. 217, 638. Lake Sup. I. Co. v. MeCann, 86 Mich. 106, 48 N. W. 692. 146, 216. Lake W. L. Co. v. Callvert, 73 Pac. 1128. 90. Lamb, Ee, 32 N. Y. Supp. 225, 65 N. Y. St. E. 460. 524. Lambard v. Pike, 55 Minn. 141. 429. Lambourn v. McLellan, [1903] 2 Ch. 268, 72 L. J. Ch. 617, 88 L. T. E. 748, 51 W. E. 594, [1903] 1 Ch. 806, 72 L. J. Ch. 400. 251. Lametti v. Anderson, 6 Cow. 302. 533. Lancashire T. Co. v. Overseers, 14 Q. B. D. 267, 13 Q. B. D. 700. 570. Lancaster v. Eve, 5 C. B. N. S. 717, 28 L. J. C. P. 235, 5 Jur. N. S. 683. 31, 61, 95, 97, 645. Landell v. Harrison, 16 Phila. 85. 537. Landenberger v. Berges, 15 Phila. 96, 39 Leg. Intel. 264. 146, 434. Landigan v. Mayer, 32 Ore. 245, 51 Pac. 649, 67 Am. St. E. 521. 486. Landon v. Piatt, 34 Conn. 517. 19, 481, 486, 514. Landon v. Schenectady County, 24 Hun 75. 205. TABLE OF CASES. lix [EBFEKENCES ABE TO Lane v. Dixon, 3 C. B. 776, H Jur. 89, 16 L. J. C. P. 129. 623, 637. Lane v. Hitchcock, 14 John. 213. 74, 596. Lane v. King, 8 Wend. 584. 344, 345. Langdon v. Buchanan, 62 N. H. 657. 29, 388, 390, 391, 409, 444, 471. Lange v. Baranco, 32 La. An. 697. 659. Lange v. Pisch, 30 N. Y. Supp. 220, 9 N. Y. Misc. 475, 61 N. Y. St. E. 111. 85, 210. Langston v. State, 96 Ala. 44, 11 So. 334. 28, 31, 60, 667. Lanigau v. Kille, 97 Pa. St. 120. 192, 222, 658. Lanpher v. Glenn, 37 Minn. 4, 33 N. W. 10. 398. Lanphere v. Lowe, 3 Neb. 131. 149, 153, 161, 501. Lansdowne v. Lansdowne, 1 Madd. 116. 614. Lansing I. Wks. v. Walker, 91 Mich. 409, 51 N. W. 1061, 30 Am. St. Eep. 488. 70, 484. Lansing Wks. v. Wilbur, 111 Mich. 413, 69 N. W. 667. 32, 57, 521. Lapene v. MeCan, 28 La. A. 749. 543. Lapham v. Norton, 71 Me. 83. 32, 382, 384, 386. Larquier v. White, 29 La. Ann. 156. 216. Larson v. Furlong, 63 Wis. 323, 23 N. W. 584. 86. Lassell v. Eeed, 6 Me. 222. 180, 181. Late V. McLean, 2 Nova S. Dec. 69. 541. Latham v. Atwood, Cro. Car. 515. 337. Latham v. Blakely, 70 N. 0. 368. 26, 72, 423, 444, 516. Lathrop v. Blake, 23 N. H. 46. 21, 27, 378, 462. THE BOTTOM PAGES.] Latta V. Cambridge Springs Co., 25 Pa. Co. 310. 25, 430. Lauehner v. Eex, 20 Pa. St. 464. 341. Laughlin v. Lester, 4 N. Y. St. E. 852. 105. Launton's Case, 4 Leon. 1. 341. Lavenson v. Standard Soap Co., 80 Calif. 245, 22 Pac. 184, 13 Am. St. Eep. 247. 28, 73, 389, 392, 471, 593. Lavery v. Purcell, 39 Ch. D. 508, 57 L. J. Ch. 570. 515. Lawrence v. Kemp, 1 Duer 363. 141, 200, 448. Lawrence v. Knight, 11 Calif. 298. 531. Lawson v. Patch, 5 Allen 586. 366, 374. Lawson v. S. T. Barlow Co., 21 Ky. L. E. 308, 51 S. W. 314. 106, 546. Lawtou V. Lawton, 3 Atk. 13. 134, 138, 140, 148, 149, 150, 155, 159, 160, 212, 269, 272, 273, 301, 302, 303, 305, 587, 607, 615. Lawton v. Salmon, 1 H. Bl. 259, 3 Atk. 16. 24, 31, 134, 140, 159, 189, 273, 301, 303, 310, 311, 422, 587. Lea V. Shakespeare, 10 Mont. Co. 171. 57, 436, 447, 448, 543. Leach v. Thomas, 7 C. & P. 327. 176, 188, 189. Leader v. Homewood, 5 C. B. N. S. 546, 27 L, J. N. S. C. P. 316, 4 Jur. N. S. 1062. 199, 206. Leahy v. Eeynolds, 4 Ky. L. E. 995. 533. Leary v. Hutton, 12 N. Y. Supp. 476. 532. Leavitt v. Eastman, 77 Me. 117. 630. Ledoux V. LaBee, 83 Fed. 761. 567. Ledyard v. Phillips, 47 Mich. 305, 11 N. W. 170. 344. Lee V. Gaskell, 1 Q. B. D. 700, 45 L. J. Q. B. 540. 122, 373, 513, 517. Lee V. Hubschmidt Bldg. Co., 55 N. Ix TABLE OP CASES. [KEFERENCES AKE TO THE BOTTOM PAGES.] J. Eq. 623, 37 Atl. 769. 61, 388, 390, 440. Lee V. KendaU, Manning 19. 407, 408. Lee V. King, 99 Ala. 246, 13 So. 506. 426. Lee V. New Orleans, 28 La. A. 426. 558. Lee V. Eisdon, 7 Taunt. 188. 122, 124, 138, 190, 197, 635, 647, 663, 667. Lefebvre v. Queen, 1 Can. Bxch. 121. 380. Lefevre v. Detroit, 2 Mich. 586. 559. Lefler v. Forsberg, 1 App. D. C. 36. 429. Legh V. Hewitt, 4 East 154. 180, 182. LeHgh 0. Co. v. Wilkes-Barre & E. E. E. Co., 8 Luz. Leg. Eeg. E. 540, 387 Pa. St. 145, 9 Luz. Leg. Eeg. E. 235, 41 Atl. 37. 480. Leidy v. Proctor, 97 Pa. St. 486, 10 Wkly Notes Cas. 426. 62, 63, 459. Leigh V. Taylor, [1902] A. C. 157, 71 L. J. Ch. 272, 86 L. T. E. 239, 50 W. E. 623, [1901] 1 Ch. 523. 277, 278.' Leland v. Gassett, 17 Vt. 403, 411. 106, 118, 170. Leman v. Best, 30 111. App. 323. 144, 147, 154, 199, 255, 647, 652. Lemar v. Miles, 4 Watts 330. 140, 144, 232, 245, 544. Lent V. Curtis, 14 O. Ciro. Dec. 592. 530, 532. Leonard v. Boisvert, 10 Que. S. C. 343. 486. Leonard v. Clough, 133 N. Y. 292, 31 N. E. 93, 16 L. E. A. 305, 45 N. Y. St. E. 259, 14 N. Y. Supp. 339, 37 N. Y. St. E. 814. 55, 516. Leonard v. Medford, 85 Md. 666, 37 Atl. 365. 373. Leonard v. Stiekney, 131 Mass. 541. 29, 35, 38, 75, 433, 468, 619. Leonard v. Willard, 23 Que. C. S. 482. 483. Leslie v. Smith, 32 Mich. 64. 523. Lesser v. Eayner, 47 N. Y. Supp. 1102, 21 Misc. 666. 246. Leasert v. Sieberling, 59 Neb. 309, 80 N. W. 100. 424. Letchman Chetty v. Hassan Kudus, 4 Kyshe 675. 546. Levinski v. Williamson, 15 Tex. Civ. App. 67, 38 S. W. 376. 229. Levinstein v. Bom, 18 Phila. 265. 542. Lewis V. Christian, 40 Geo. 187. 608. Lewis V. Harris, 1 H. Bl. 5. 550. Lewis V. Jones, 17 Pa. St. 262. 180, 182, 183. Lewis V. Lyman, 22 Pick. 442. 180. Lewis V. McNatt, 65 N. C. 63. 333, 336, 363. Lewis V. Ocean P. Co., 125 N. Y. 341, 26 N. E. 301, 34 N. Y. St. E. 973, 3 N. Y. Supp. 911. 152, 205, 221, 223, 230, 651. Lewis V. Perry, 149 Mo. 257, 50 S. W. 821. 202, 261. Lewis V. Eosler, 16 W. Va. 333. 8, 63, 64. Lewis V. Seabury, 74 N. Y. 409. 404. L'Hote V. Eulham, 51 La. An. 780, 25 So. 655. 197, 437, 448, 482. Liebe v. Nicolai, 30 Ore. 364, 48 Pac. 172. 143, 241. Lieferman v. Osten, 167 111. 93, 47 N. E. 203. 398. Liford's Case,' 11 Co. 46b, 1 Eolle 95. 45, 46, 75, 315, 333, 334, 374, 375, 453, 633, 644. lillie v. Dunbar, 62 Wis. 198, 22 N. W. 467. 375. Linahan v. Barr, 41 Conn. 471. 31, 135. Lincoln v. Newcastle, 3 Ves. Jr. 387, 12 Ves. Jr. 218. 322. Linden Oil Co. v. Jennings, 207 Pa. St. 524, 56 Atl. 1074. 91. TABLE OF CASES. Ixr [BBFEBBNCES AEE TO THE BOTTOM PAGES.] Lindley v. Kelley, 42 Ind. 294. 364. Lindsay v. Winona & St. P. R. E. Co., 29 Minn. 411, 13 N. W. 191, 43 Am. Eep. 228. 361. Lingham v. Biggs, 1 B. & P. 82. 508. Linscott V. Weeks, 72 Me. 506. 519, 630. Lion Ins. Co. v. Wicker, 93 Tex. 397, 55 S. W. 741. 111. Lipsky V. Borgman; 52 Wis. 256, 9 N. W. 158, 38 Am. Bep. 735. 30, 36, 537. Little V. Willford, 31 Minn. 173, 17 N. W. 282. 114. little P. W. P. Co. V. Hausdorf, 127 Fed. 442. 210, 225. Little V. Co. V. Lambert, 15 Colo. App. 445, 62 Pae. 966. 545. Liu Kong V. Keahialoa, 8 Eaw. 511. 164. Livingston v. Eeynolds, 26 Wend. 115. 604, 609, 613. Livingston v. Sulzer, 19 Hun 375. 139, 141, 256, 530, 532. Lloyd, Ex parte, 1 Mont. & Ayr. 494, 3 Dea. & Chit. 765, 3 L. J. N. S. B. 108. 109, 123, 138, 461, 505, 506. Lloyd V. Eosbee, 2 Camp. N. P. 453. 590. Loan V. Gregg, 55 Mo. App. 581. 21, 35, 447. Lockeshan v. Miller, 16 Ky. L. E. 55. 66, 376. Loekvrood v. Lockwood, 3 Eedf. 330. 473. Loeb v. Bichardson, 74 Ala. 311. 350. Loeser v. Liebman, 137 N. Y. 163, 33 N. E. 147, 50 N. Y. St. E. 382, 14 N. Y. Supp. 569. 228, 251, 601. Loftin V. Hines, 107 N. C. 360, 12 S. E. 197. 367. Lombardi v. Shero, 14 Tex. Civ. App. 549, 37 S. W. 613, 971. 66, 349. London &c. L. & D. Co. v. Drake, C C. B. N. S. 798, 5 Jur. N. S. 1407, 28 L. J. C. P. 297. 205, 208, 209, 649. London & S. A. Co. v. DeBeers Jfines, [1895] A. C. 451, 64 L. J. P. C. 123, 72 L. T. K. 609, 11 E. 511. 9, 232. London L. Co. v. Pulford, 8 Ont. Pr. 150. 198, 388, 393, 400, 406, 409, 412. London Ey. Co., Ee, 27 Ont. App. 83. 562, 563. Long V. Anderson, 62 Ind. 537. 520. Long V. Cockern, 128 111. 29, 21 N. E. 201, 29 III. App. 304. 441, 522. Long V. Finger, 74 N. C. 502. 386. Long V. Kee, 42 La. Ann. 899, 8 So. 610. 119, 168. Long V. State, 28 So. 775. 671. Long V. White, 42 Ohio St. 59. 66, 514. Longbottom v. Berry, 5 Q. B. 123, 39 L. J. N. S. Q. B. 37, 10 B. & S. 584, 22 L. T. N. S. 385. 43, 387, 389, 390, 391, 405, 435, 442, 444, 446, 555. Long I. E. E. Co., Ee, 6 N. Y. Supr. Ct. E. 298. 88. Longstaff v. Meagoe, 2 Ad. & EU. 167. 403, 647. Look V. Norton, 94 Me. 547, 48 Atl. 117. 361, 645. Loomis V. Wilbur, 2 Barring. 281. 591. Loose V. Scharff, 6 Pa. Super. 153. 341. Lord V. Detroit Sav. Bk., 93 N. W. 1063. 395. Lord V. Wardle, 3 Bing. N. C. 680. 315. Lord Buckhurst's Case, 1 Co. 1 Mo. 488. 315, 317. Lord' Bute v. Grindall, 1 Term 343. 567. Ixii TABLE or CASES. [EEFEEENCES AEB TO THE BOTTOM PAGES.] Lord of the Manor of Hamstead's Case, 1 Salk. 220. 679. Lord Petre v. Heneage, 12 Mod. 520, 1 Ld. Eaym. 728. 318, 321. Lord Tamworth v. Lord Ferrars, 6 Ves. 419. 266, 606. LotHan v. Wood, 55 CaUf . 159, 5 Pac. C. Law J. 732. 430. Loudon V. Warfield, 55 J. J. Mar. 196. 603. Lougkran v. Eoss, 45 N. T. 792, 6 Am. Bep. 173. 254, 258, 259. Louisville & N. E. E. Co. v. State, 64 Tenn. 663. 566. Louisville & N. A. E. E. Co. v. State, 25 Ind. 177. 566. Louisville B. A. v. Korb, 79 Ky. 190. 408. Louisville, N. O. & T. E. E. Co. v. Kckson, 63 Miss. 380. 90. Loveridge v. Soliultz. 188. Low V. Tandy, 70 Tex. 745, 8 S. W. 620. 539. Lowenberg v. Bernd, 47 Mo. 297. 92. Lower v. Winters, 7 Cow. 263. 219, 515. Lowndes v. Dickerson, 24 Barb. 586. 329. Lowther v. Caledonian Ey. Co., [1892] 1 Ch. 73, 61 L. J. Ch. 108, 66 L. T. E. 622, 40 W. E. 208, [1891] 8 Ch. 443. 90. Lowther v. Cavendish, 1 Eden. 99. 311. Loyd, Ex parte, 3 Dea. & Ch. 765, 1 Mont. & Ayr. 494, 3 L. J. N. S. Bank. 108. 123, 138. Lucas V. Bishop, 83 Tenn. 165. 100. Luce V. Ames, 84 Me. 133, 24 Atl. 770. 65, 70, 618, 620. Lushington v. Sewell, 1 Sim. 435. 50, 477. Lusty, Ee, 60 L. T. E. 160, 6 Morrell Bank. 18, 37 W. E. 304. 403, 493. Luttrell V. Knox County, 89 Tenn. 253, 14 S. W. 802. 559. Luzerne County v. Galland, 3 Luz. Leg. Beg. U. 566. Lyde v. Eussell, 1 B. & Ad. 394. 198, 199, 200, 649. Lyle V. Palmer, 42 Mich. 314, 3 N. W. 922. 30, 35. Lyle V. Shinnebarger, 17 Mo. App. 66. 366. Lyman v. Hale, 11 Conn. 177. 100. Lynde v. Eowe, 12 Allen 100. 412. Lyon V. Green B. & M. Ey. Co., 42 Wis. 538. 90. Lyon V. London Cy. Bk., [1903] 2 K. B. 135, 72 L. J. K. B. 465, 88 L. T. E. 392, 51 W. E. 400. 61, 447, 452, 485. Maas V. Amana Soc, July 9, '77, Chi. Trib. 2, 16 Alb. Law J. 76. 83. Mabry v. Harp, 53 Kan. 398, 36 Pac. 743. 364. Macclesfield v. Davis, 3 Ves. & Bea. 16. 324. Macdonough v. Starbird, 105 Calif. 15. 153. Mackie v. Smith, 5 La. Ann. 717, 52 Am. Dec. 615. 34. Mackintosh v. Trotter, 3 M. & W. 184. 122, 205, 259, 649. Maddox v. Goddard, 15 Me. 218. 629. Madigan v. McCarthy, 108 Mass. 376, 11 Am. Eep. 371. 86, 102, 110, 195. Madison v. Madison, 206 111. 534, 69 N. E. 625. 30, 380. Madison Av. Ch. v. Baptist Ch., 41 N. y. Super. 369. 422. Maginnis v. Union Oil Co., 47 La.. Ann. 1489, 18 So. 459. 55, 60, 66, 399, 467. Maguire v. Park, 140 Mass. 21, 1 N. E. 750. 33, 441. Main v. Schwarzwaelder, 4 B. D. Smith 273. 389. Makepeace, Ex parte, 31 N. C. 91, 122, 444, 559, 561.,* •%■ TABLE OF CASES. Ixiii [EBFERENCES AEE TO Mallory v. Maryland G. Co., 131 Eed. 111. 467. Malmsbury M. Co. v. Tucker, 3 Viet. L. E. Law 213. 513, 533. Malone v. Marriott, 64 Ala. 486. 611. Malone v. State, 79 Tenn. 701. 87. Malott V. Price, 109 Ind. 22, 9 N. E. 718, 85 Ind. 266. 69, 104, 114, 478, 480, 489. Mammoth M. Co. v. Juab County, 10 Utah 232, 37 Pac. 348. 558. Manchester Mills v. Kundlett, 23 N. H. 271. 54. Manchester, S. & L. Ey. Co. v. Kings- ton-upon-Hull, 75 L. T. K. 127. 571. Mann v. English, 38 U. C. Q. B. 240. 643. Mann v. Mann, 49 111. App. 472. 407. Manners v. Johnson, 1 Ch. D. 673. 11. Manning v. Ogden, 70 Hun 399, 24 N. Y. Supp. 70, 54 N. Y. St. R. 113. 447, 448. Mansfield v. Blackburne, 6 Bing. N. C. 426, 8 Scott 720. 134, 140, 160, 254, 258. Mant V. Collins. 31, 97. Mantooth v. Burke, 35 Ark. 540. 95, 117, 478. Manufacturers' Nat. Bk. v. Eober, 19 N. Y. Wkly. Dig. 476. 389, 393. Manwaring v. Jenisou, 61 Mich. 117, 27 N. W. 899. 32, 66, 478. Maples V. Millon, 31 Conn. 598. 162, 337. Marable v. Jordan, 5 Humph. 417. 94, 194. March v. McKoy, 56 Calif. 85. 95. Marcy v. Darling, 8 Pick. 283. 95. Marker v. Kenrick, 13 C. B. 188. 598. Marker v. Marker, 9 Hare 1. 266, 600. Markle v. Houck, 19 TJ. C. Q. B. 164. 434. THE BOTTOM PAGES.] Markle v. Stackhouse, 65 Ark. 23, 44 S. W. 808. 28, 392. Marks v. Eyan, 63 Calif. 107, 15 Eep. 528, 10 Pac. C. Law J., 779. 195, 255. Marquette, H. & O. E. E. Co. v. At- kinson, 44 Mich. 166, 6 N. W. 230. 620. Marquis of Downshire v. Lady Sandys, 6 Ves. 107. 266, 606. Marsh v. McNider, 88 Iowa 390, 55 N. W. 469. 83. Marshall v. Bacheldor, 47 Kan. 442, 28 Pac. 168. 22, 26, 104. Marshall v. Ferguson, 23 Calif. 65. 370. Marshall v. Green, L. E. 1 C. P. D. 35, 45 L. J. C. P. 153. 373, 514. Marshall v. Homer, 74 Pac. 368. 340. Marshall v. Stewart, 80 Ind. 189. 407, 423, 522. Marson v. Short, 2 Scott 243, 2 Bing. N. C. 118. 517. Marston v. Stickney, 58 N. H. 609. 397. Martin v. Cope, 28 N. Y. 180, 3 Abb. Ct. App. Dec. 182. 465. Martin v. Gillham, 7 Ad. & E. 540. 661. Martin v. Knapp, 57 Iowa 336, 10 N. W. 721. 342, 344. Martin v. Eoe, 7 Ell. & Bl. 237, 3 Jur. N. S. 465, 26 L. J. Q. B. 129, 40 Eng. L. & Bq. 68. 155, 194, 287, 290, 294. Martin v. Thompson, 62 Calif. 618, 120 U. S. 376, 7 S. Ct. 586. 361, 628. Martyr v. Bradley, 9 Bing. 24, 1 L. J. N. S. C. P. 147, 2 Mo. & Sc. 25. 166, 243. Marx V. Nelms, 95 Ala. 304, 10 So. 551. 339. Maryland v. Northern &c. Ey. Co., 18 Md. 193. 609, 610, 611. Ixiv TABLE OF CASES. [BEFEBENCES ARE TO Masefield v. Eotana, 10 N. Zea. 169. 36, 92. Masiamah v. Pachai, 4 Kyshe 444. 315. Mason v. Fenn, 13 111. 525. 12, 204, 207, 287. Mason v. Lemmon, 4 O. Dec. 322, 3 Ohio N. P. 116. 338, 343. Mason v. Moyers, 2 Bob. 606. 353, 354. Massachusetts Nat. Bk. v. Shinn, 18 App. Div. 276, 46 N. Y. Supp. 829, 163 N. Y. 360, 57 N. E. 611. 210. Master &c. of Clare Hall v. Harding, 6 Hare 273. 86. Masters v. Pollie, 2 Eolle 141, 99, 100. Mather v. Eraser, 2 Kay & J. 536, 2 Jur. N. S. 900, 25 L. J. Ch. 361, 4 W. E. 387, 27 L. T. 41. 808, 389, 390, 399, 446, 455, 470, 473, 492, 493, 498, 555. Mather v. Trinity Ch., 3 S. & E. 509. 645. Mathes v. Dobschuetz, 72 111. 438, 7 Chi. Leg. News 43. 94, 102. Mathews v. Davis, 6 Humph. 324. 80. Mathinet v. Giddings, 10 Ohio 364. 227, 228. Matson v. Calhoun, 44 Mo. 868. 93. Matthiesen v. Arata, 32 Ore. 342, 50 Pac. 1015. 29, 36, 146, 429. Mattock V. Pry, 15 Ind. 483. 369. Matzon v. Griffin, 78 111. 477. 33, 56, 95, 96, 393, 406, 410, 620. Maus T. Logansport, P. & B. E. E., 27 111. 77. 566. Maxwell L. Co. v. Santistevan, 7 N. M. 1, 32 Pac. 44. 224. May V. MeConnell, 102 Ala. 577, 14 So. 768. 427. Mayer v. Waters, 45 Kan. 78, 25 Pac. 212. 118. Mayfield v. Wadsley, 3 B. & C. 357, 5 D. & E. 224. 664. Mayhew v. Hardesty, 8 Md. 479. 11. THE BOTTOM PAGES.] Mayo V. Cartwright, 30 Ark. 407. 412. Mayo V. Foster, 2 McCord Ch. 137. 608. Mayo V. Hewhoff, 47 N. J. Eq. 31, 19 Atl. 837. 124, 217. Mayor of Carterville v. Lyon, 69 Ga. 577. 638. Mayor of Eaglehawk v. Lady Barkly Co., 7 Austr. L. T. 72. 558. Mayor of N. Y., Ee, 89 App. Div. 589, 57 N. Y. Supp. 657. 380, 899, 400. Mayor, &e., of N. Y. v. Brooklyn P. I. Co., 41 Barb. 231, 39 N. Y. 45, 3 Abb. Ct. App. Dec. 251. 125, 235. Mayor of N. Y. v. Exchange F. Ins. Co., 9 Bosw. 424, 3 Abb. Ct. App. Dec. 261. 125, 235. Mayor &c. of N. Y. v. Hamilton F. I. Co., 10 Bosvir. 537, 39 N. Y. 45, 3 Abb. Ct. App. Dec. 251. 125, 235. McAllister v. Lawler, 32 Mo. App. 91. 344. McAllister v. Eeel, 53 Mo. App. 81, 59 Mo. App. 70. 191, 528, 533. McAuliffe V. Maan, 37 Mich. 539. 518, 537, 545, 621. McCall V. State, 69 Ala. 227. 668. McCall V. Walter, 71 Ga. 287. 6, 141, 142, 143, 144, 146, 671. McCarthy v. Burnet, 84 Ind. 23. 144, 216. McCarthy v. McCarthy, 20 Can. Law T. Oec. N. 211. 54, 70, 396, 435. McCarthy v. Trumacher, 108 Iowa 284, 78 N. W. 1104. 216, 257. ^ McCaskill v. Eichmond Ind. Co., 23 Que. C. S. 381. 75. MeCasUn v. State, 99 Ind. 428. 362. McCay v. Wait, 51 Barb. 225. 601. McClintock's App., 71 Pa. St. 365. 373, 375. TABLE OF CASES. Isv [KEFEKENCES AKE TO McClintock v. Graham, 3 McCord 553. 433. McCluney v. Lemon, Hayes 154. 390, 406, 411, 462. McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12. 30, 388, 389, 390, 441. McGormiok v. McCormick, 40 Miss. 760. 336. McCormick v. Nixon, 83 N. C. 113. 602. McCormick v. Eiewe, 14 Neb. 509, 16 N. W. 832. 624. McCosh V. Barton, 2 Ont. L. 77, 1 Ont. L. 229. 469. MoCracken v. Hall, 7 Ind. 30. 196, 198, 199, 216, 221, 223, 479. McCracken v. McCracken, 88 N. C. 272. 386. McCrillis v. Cole, 55 Atl. 196. 378, 382, 406, 408, 440. MeCullough V. Irvine 's Ex., 13 Pa. St. 438. 126, 170, 175, 193, 274, 284, 595. McCumber v. Gilman, 15 111. 381. 422. McDaniel v. Lipp, 41 Neb. 713, 60 N. "W. 81. 98, 620, 622. McDaniel v. Moody, 3 Stew. 314. 444. McDavid v. Wood, 5 Heisk. 95. 31, 109. McDonald v. Shepard, 25 Kan. 112. 32, 70, 217, 262, 383, 415. McDonald v. Weeks, 8 Gr. Ch. 297. 26, 33, 406, 443, 486, 543. McDonnell v. Burns, 83 Fed* 866, 28 C. C. A. 174, 55 U. S. App. 233. 478. MeDougall v. Waddell, 28 U. C. C. P. 191. 364. McDowall V. Phippen, 1 Ont. 143. 344, 350. McElroy v. Brooke, 16 L. E. Ire. 46. 535. THE BOTTOM PAGES.] MeFadden v. Allen, 134 N. Y. 489, 32 N. E. 21, 19 L. E. A. 446, 50 Hun 361, 3 N. Y. Supp. 356. 381, 407. MoFadden v. Crawford, 36 W. Va. 671, 15 S. E. 408, 32 Am. Eep. 894. 393, 538, 621. McFarlane v. Foley, 27 Ind. App. 848, 60 N. E. 357, 87 Am. St. E. 264. 32, 36, 429, 453. McGee v. Salem, 149 Mass. 238, 21 N. E. 386. 561. McGee v. Walker, 106 Mich. 521, 64 N. W. 482. 339. McGinnis v. Fernandea, 135 111. 69, 26 N. E. 109, 25 Am. St. Eep. 347, 32 111. App. 424. 70, 361, 362, 618, 658. MoGorrisk v. Dwyer, 78 Iowa 279, 43 N. W. 215, 5 L. E. A. 594, 16 Am. St. E. 440. 33, 468, 470. McGraw v. Bookman, 3 Hill 265. 632. McGreary v. Osborne, 9 Calif. 119. 432. McGregor v. Brown, 10 N. Y. 117. 374. McGregor v. High, 21 L. T. N. S. 803. 549, 656. McGregor v. McNeil, 32 U. C. C. P. 538. 66. Mcllvaine v. Harris, 20 Mo. 457. 340. Mcintosh V. McLeod, 6 Nova S. L. E. 128. 371. Mcintosh V. Saint P. Ch., 120 N. Y. 712, 23 N. E. 984, 54 N. Y. Super. 291. 525. Mclntyre v. Barnard, 1 Sandf. Ch. 52. 374, 375. Mclver v. Estabrook, 134 Mass. 550, 16 Eep. 270. 122, 153, 255. McJunkin v. Dupree, 44 Tex. 500. 107, 419. McKay v. Pearson, 6 Pa. Super. 529. 354, 363, 369. Ixvi TABLE OF CASES. [EEFEBENCES AKE TO MoKeage v. Hanover I. Co., 81 N. Y. 38, 37 Am. Eep. 471, 16 Hun 239. 54, 447, 448, 519. McKean v. Shoyer, 37 Neb. 694, 56 N. W. 492. 353. McKeeby v. Webster, 170 Pa. St. 624, 32 Atl. 1096. 343. MeKellop v. Jackman, 50 Vt. 57. 643. MeKelvey v. Creevey, 72 Conn. 464, 15 Atl. 4, 77 Am. St. Eep. 321. 74. MeKenna v. Hammond, 3 Hill 331, 30 Am. Dec. 366. 302, 304. McKenzie v. Lampley, 31 Ala. 526. 364. McKenzie v. Lexington, 4 Dana 129. 208. McKenzie v. McDonald, 2 Nova S. Dec. 11. 19, 96, 97, 513, 517. McKiernan v. Hesse, 51 Cal. 594. 91, 436. McKim V. Kennedy, 3 Md. Ch. Dec. 186. 387, 406. McKim V. Mason, 3 Md. Ch. Dee. 186. 170, 441. McKinley v. Smith, 25 111. App. 168, 29 111. App. 106. 32, 69, 423. McKinney v. Williams, 45 S. W. 335. 349. McLaren v. Coombs, 16 Gr. Ch. 587. 266. McLaughlin v. Johnson, 46 111. 163, 92 Am. Dec. 791. 62, 454, 457, 516. McLaughlin v. Lester, 4 N. Y. St. E. 852. 32, 105. McLaughlin v. Long, 5 Har. & John. 113. 592. McLaughlin v. Nash, 14 Allen 136, 92 Am. Dec. 741. 381. McLaurin v. McCall, 3 Strobh. 21. 355. .McLean v. Bovee, 24 Wis. 295, 1 Am. Eep. 185. 361. McLean v. Palmer, 2 Luz. Leg. Eeg. E. 349. 33, 58, 395. THE BOTTOM PAGES.] McLeod v. Barnum, 131 Calif. 605, 63 Pac. 924. 502. McLeod V. Jones, 3 Mass. Dig. 353, 108 Mass. 191. 125, 201. McLey v. Howie, 40 Sc. L. E. 170. 443. McMahon v. Vickery, 4 Mo. App. 225. 431. McMath V. Levy, 74 Miss. 450, 21 So. 9, 523. 138, 178. McMillan v. Ferrell, 7 W. Va. 223. 601. McMillan v. Fish, .29 N. J. Eq. 610, 6 Eep. 661. 29, 438, 439, 472, 489. McMillen v. Pratt, 89 Wis. 612. 375. McMinn v. Mayes, 4 Calif. 209. 657. McNair v. Eoehester &c. E. E. Co., 14 N. Y. Supp. 39, 38 N. Y. St. E. 271. 112. McNally v. Connolly, 70 Calif. 3, 11 Pac. 320. 64, 70, 122, 548. McNee v. Carnie, Guthrie's Sel. Ct. 345. 334. McNeil V. Moore, 7 Tex. Civ. App. 536, 27 S. W. 163. 540. McQueen v. Whetstone, 127 Ala. 417, 30 So. 548. 422. McQuesten v. Thompson, 2 XJ. C. Er. & A. 167. 407. McEae v. Stillwell, 111 Ga. 65, 36 S. E. 604. 375. McEea v. Central Nat. Bk., 50 How. Pr. 51, 66 N. Y. 489. 26, 29, 31, 32, 471. McWilliajns v. Bridges, 7 Neb. 419. 99. Mead v. Thompson, 78 111. 62. 647. Meader v. Brown, 5 N. Y. St. E. 839. 152, 210, 213. Meagher v. Hayes, 152 Mass. 228, 25 N. E. 105, 23 Am. St. Eep. 819. 411, Mears v. Callender, [1901] 2 Ch. 388, 70 L. J. Ch. 621, 84 L. T. E. 618, 49 W. E. 584, 65 J. P. 615. 163, 164, 252. TABLE OF CASES. Ixvii [BEFEEENCES ABB TO Mechelen v. Wallace, 7 Ad. & B. 49. 513. Medicke v. Sauer, 61 Minn. 15, 63 N. W. 110. 209. Medley v. People, 49 111. App. 213. 68, 112. Meek v. Parker, 63 Ark. 367, 38 S. W. 900. 48, 430. Meeks v. Willard, 57 N. J. L. 22, 29 Atl. 318. 398. Meerschaf v. State, 57 S. W. 955. 667. Meffert v. Dyer, 81 S. W. 643. 350, 353, 479. Meig's App., 62 Pa. St. 28, 1 Am. Eep. 372. 25, 31, 98, 520. Meinke v. Nelson, 56 111. App. 169. 66, 632, 636. Meistrell v. Eeach, 56 Mo. App. 243. 426. Melhop V. Meinhart, 70 Iowa 685, 28 N. W. 545. 104. Mellon V. Allegheny County, 3 Pa. Dist. 422. 564. Memphis Gas-Light Co. v. State, 6 Cold. 310. 104, 559. Menger v. Ward, 28 S. W. 821. 2, 33, 144, 146. Mercantile T. Co. v. Chicago, P. & St. L. Ey. Co., 123 Fed. 393. Merchant, Ee, 39 N. J. Eq. 506, 41 N. J. Eq. 349, 7 Atl. 633. 352. Merchant v. Comback, 41 N. J. Eq. 349, 39 N. J. Eq. 506. 352. Merchants Bk. v. Stanton, 62 Minn. 204, 64 N. W. 390, 59 Minn. 532, 61 N. W. 680, 55 Minn. 211, 56 N. W. 821, 43 Am. St. Eep. 491. 112, 113, 407, 417. Merchants' Nat. Bk. v. Stanton, 59 Minn. 532. 56, 102, 400, 414. Mercil v. Broulette, 66 Minn. 416. 99. Meriam v. Brown, 128 Mass. 391. 88, 410. Merrell v. Legrand, 2 Miss. 150. 95. THE BOTTOM FA.GES.] Merriara v. Eidp'ath, 16 Wash. 104, 47 Pao. 416. 202. Merrill v. Dixon, 15 Nev. 401. 618. Merrill v. Wyman, 80 Me. 491, 15 Atl. 58. 66. Merritt v. Judd, 14 Calif. 59. 9, 21, 94, 96, 140, 160, 199, 200, 205, 216, 245, 254, 262. Merritt v. Scott, 81 N. 0. 385. 263. Metcalf V. Fosdick, 23 Ohio St. 114. 501. Metropolitan Concert Co. v. Sperry, 9 N. Y. St. E. 342, 120 N. Y. 620, 23 N. E. 1152. 144, 241, 251. Metropolitan Counties &c. Soc. v. Brown, 26 Beav. 454, 5 Jur. N. S. 378, 28 L. J. Ch. 581, 7 W. E. 303. 25, 46, 455, 468. Meux V. Allen, 23 W. E. 526, L. E. 7 Eng. & Ir. App. 481, 44 L. J. Ch. 481, 22 W. E. 609. 404, 491, 499. Meux V. Jacobs, L. E. 7 Eng. & Ir. App. 481, 44 L. J. Ch. 481, 23 W. E. 526, 22 W. E. 609. 405, 406, 499. Meyer v. Betz, 3 Eobt. 172. 399. Meyer v. O'Dell, 18 Tex. Civ. App. 210. 192. Meyer v. Ornski, 25 S. W. 655. 38. Meyers v. Marsh, 2 TJ. C. Q. B. 148, 185. 632, 653. Meyers v. Schemp, 67 111. 469. 102, 514. Mhoon V. Greenfield, 52 Miss. 434. 662. Michael v. Beeves, 14 Colo. App. 460, 60 Pac. 577. 426. Michigan Cent. E. E. Co. v. Chi. & M. L. S. E. E. Co., 1 111. App. 399. 48. Michigan M. I. Co. v. Cronk, 93 Mich. 49, 52 N. W. 1035. 95, 381, 620. Mickel v. York, 175 111. 62, 51 N. B. 848. 106. Ixviii TABLE OF CASES. [REFERENCES ARE TO Miekle v. Douglas, 75 Iowa 78, 39 N. W. 198. 225. Middlebrook v. CoTwin, 15 Wend. 169. 180, 184. Miles V. Ankatell, 25 Ont. App. 458, 29 Ont. 21. 38, 394, 411, 440. Miles V. McNaughton, 111 Mich. 350, 69 N. W. 481. 55, 58, 394, 472, 522, 657. Miller v. Baker, 1 Met. 27, 3 Law Eep. 148. 162,- 215, 635, 637, 648. Miller v. Cheney, 88 Ind. 466. 340, 353. Miller v. County of Kern, 137 Calif. 516, 70 Pae. 549. 334, 559. Miller v. Gray, 29 Tex. Civ. App. 183, 68 S. W. 517. 225, 607. Miller v. Green, 8 Bing. 92, 2 Tyr. 1. 365. Miller v. Griffin, 102 Ala. 610, 15 So. 238. 420. Miller v. Havens, 51 Mich. 482, 16 N. W. 865. 359. Miller v. Holland, 13 Pa. Co. 622, 3 Pa. Dist. 449. 99. Miller v. MeCormick M. Co., 35 Minn. 399, 29 N. W. 52. 367. Miller v. Michoud, 11 Bob. 225. 78. Miller v. Muirhead, 21 Sess. Cas. 4th Ser. 658. 122, 144. Miller v. Plumb, 6 Cow. 665, 16 Am. Dec. 456. 378, 389. Miller v. Shields, 55 Ind. 71. 524. Miller v. Waddingham, 91 Calif. 377, 25 Pae. 688, 11 L. E. A. 510,' 27 Pac. 750, 13 L. E. A. 680. 19, 21, 35, 381, 384, 414, 612. Miller v. Wilson, 71 Iowa 610, 33 N. W. 128. 54, 419. Miller v. Wohlford, 119 Ind. 305, 21 N. E. 894. 356. Miller v. Zufall, 113 Pa. St. 317, 6 Atl. 350. 374. Milligan v. Drury, 130 Mass. 428. 19, 228, 561. THE BOTTOM FACES.] Milliken v. Armstrong, 17 Ind. 456. 405. Milliman v. Neher, 20 Barb. 37. 367. Mills V. Mead, 7 Hun 36. 315. Mills V. Pierce, 2 N. H. 9. 659. Mills V. Eeddick, 1 Neb. 437. 19, 82, 620. Milton y. Colby, 5 Met. 78. 381. Mine LaMotte Co. v. White, 80 S. W. 356. 618. Minhinniek v. Jolly, 29 Ont. 238, 26 Ont. App. 42. 55, 388. Minister for Lands v. Watt, 20 N. S. W. 229, 16 N. S. W. Wkly. Notes 10. 167. Minneapolis & N. Elev. Co. v. Clay County, 60 Minn. 522, 63 N. W. 101. 558. Minneapolis T. Co. v. Berhulst, 74 111. App, 350. 610. Minnesota Co. v. St. Paul Co., 2 Wall. 646. 48. Minnesota L. O. Co. v. Maginnis, 32 Minn. 193, 20 N. W. 85. 367. Minshall v. Lloyd, 2 M. & W. 450. 20, 122, 123, 140, 197, 198, 204, 210, 400, 473, 504, 505, 544, 547, 648, 649. Minter v. State, 71 Ark. 178, 71 S. W. 944. 677. Mississippi & T. B. R. Co. v. De- vaney, 42 Miss. 555. 89. Mississippi L. Co. v. Miller, 109 Wis. 77, 85 N. W. 193. 375. Mississippi E. Co. v. Eing, 58 Mo. 491. 380. Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. 594, 991. 429. Missouri &c. Ey. Co. v. Lycan, 57 Kan. 635, 47 Pae. 526. 640. Missouri, K. & T. Co. v. Miami County, 73 Pae. 103. 563. Missouri Pae. Ey. Co. v. Bradbury, 79 S..W. 966. 117, 215. Missouri P. Ey. Co. v. Cullers, 81 Tex. 382, 17 S. W. 19. 86, 87, 96. TABLE OF CASES. Ixiz [EBFEKENCES AKE TO Missouri T. Co. v. Cumiingham, 81 Mo. App. 262. 346. Missouri V. Co. v. Barwick, 50 Kan. 57, 31 Pac. 685. 345. Missouri V. I. Co. v. Kiehl, 25 Kan. 390. 344. Mitcham v. Moore, 73 Ala. 542. 339. Mitchell V. Billingsley, 17 Ala.. 391. 38, 86, 99, 454, 640. Mitchell V. Freedley, 10 Pa. St. 198. 478, 542. Mitchell V. IlUnois & St. L. E. E. & C. Co., 85 111. 566. 90. Mitchell V. Smith, 67 Me. 338. 393. Mitchell V. Township of Lake, 126 Mich. 367, 85 N. "W. 865. 563. Mitchell V. Tsohida, 71 Minn. 133, 73 N. W. 625. 340, 361. Moffett V. Armstrong, 40 Iowa 484. 341. Monday v. O'Neil, 44 Neb. 724, 63 N. W. 32, 48 Am. St. Eep. 760. 347, 358. Monroe W. Co. v. Frenchtown, 98 Mich. 431, 57 N. W. 268. 560. Montague v. Dent, 10 Kich. L. 135, 67 Am. Dec. 572. 22, 448. Montgomery, Ex parte, 4 Ir. Ch. 520, 7 Ir. Jur. 342. 387, 390, 504, 505. Montgomery County v. Bean, 82 S. W. 240. 383. Monti V. Barnes [1901], 1 K. B. 205, 70 L. J. K. B. 225, 83 L. T. E. 619, 49 W. E. 147. 33, 36, 38, 407, 412, 456. Monticello Bk. v. Sweet, 64 Ark. 502, 43 S. W. 500. 408. Montooth V. Gamble, 123 Pa. St. 240, 16 Atl. 594. 111. Mooers v. Wait, 3 Wend. 104. 75, 642. Moody V. Aiken, 50 Tex. 65. 33, 437, 514. Moody V. Whitney, 34 Me. 563. 642. Moore v. Combs, 24 Ind. App. 464, 56 N. E. 85. 618. THE BOTTOM PAGES.] Moore v. Cunningham, 23 111. 328. 85. Moore v. Drinkwater, 1 Post. & Fin. 134. 549, 639. Moore v. Moran, 64 Neb. 84, 89 N. W. 629. 37, 74, 394, 478, 486. Moore v. New O. W. Co., 114 Fed. 380. 113. Moore v. Simonson, 27 Ore. 117, 39 Pac. 1105. 524. Moore v. Smith, 24 III. 512, 26 111. 392. 140, 198, 385, 402, 405, 432. Moore v. Valentine, 77 N. Car. 188. 64, 382, 384. Moore v. Vaughn, 42 Neb. 696, 60 N. W. 914. 188. Moore v. West, 8 East 339. 351. Moore v. Wood, 12 Abb. Pr. 393. 140, 141, 150, 202, 648, 656. Moore & E. B. Co., Ex parte, 14 Ch. D. 379, 49 L. J. Bankr. 60, 14 Co. Ct. & Bankr. Cas. 485. 390, 492, 493. Mootyah Chetty v. Tacob, 4 Kysche 568. 546. Moreland v. Myall, 77 Ky. 474. 364, 365. Moreland v. Strong, 115 Mich. 211, 73 N. W. 140. 340, 348. Morey v. Hoyt, 62 Conn. 542, 26 Atl. 127, 19 L. E. A. 611. 31, 35, 60, 135, 210, 544, 545, 546. Morgan's App., 39 Mich. 675. 89. Morgan v. Arthurs, 3 Watts 140. 425, 426. Morgan v. Earl of Abergavenny, 8 C. B. 768. 330. Morgan v. Perkins, 94 Ga. 353, 21 S. E. 574. 374. Morgan v. United States, 14 Ct. CI. 319. 213. Morgan v. Varick, 8 Wend. 587. 70, 634. Morgan E. E. Co., Be, 32 La. A. 371. 534. Ixx TABLE OF CASES. [KEFEBENCES AEB TO Morotock Ins. Co. v. Rodefer, 92 Va. 747, 24 S. E. 393, 53 Am. St. Rep. 746. 35, 61, 462, 468. Morris's App., 88 Pa. St. 368. 25, 68, 407. Morris v. French, 106 Mass. 326. 115, 478. Morris v. Grinnell, 51 Conn. 481. 502. Morris v. Morris, 3 DeG. & J. 323. 614. Morris v. Tinker, 60 Ga. 466. 658. Morrison v. Berry, 42 Mich. 389, 4 N. W. 731, 36 Am. R. 446. 87, 647. Morrison v. Sohn, 90 Mo. App. 76. 144, 208, 5l8. Morrow, Ex parte, 1 Lowell's Dec. 386, 2 N. B. R. 665. 141, 228, 240, 242, 448, 451, 510. Morrow v. Burney, 2 Ind. Ter. 440, 51 S. W. 1078. 216, 650. Morse v. Arnfield, 15 Pa. Super. 140. 452. Morton v. Weir, 5 Hun 177. 533. Mosely v. Allen, 138 Mass. 81. 533. Moser, Re, 13 Q. B. D. 738, 1 Mor- rell 244. 207. Moss V. James, 47 L. J. Q. B. 160, 37 L. T. R. 715, 38 L. T. B. 595, 6 Rep. 223. 207, 213. Mott V. Palmer, 1 N. Y. 564. 416, 483, 484. Mott L Wks. V. Middle S. Co., 17 App. D. C. 584. 414, 450. Mott Iron Works v. Reilly, 81 N. Y. Supp. 323, 39 Misc. 833. 486. Mound Cy. C. Co. v. Macgurn, 97 Mo. App. 403, 71 S. W. 460. 564. Mount Carmel v. Shaw, 155 III. 37, 38 N. E. 584, 52 111. App. 429. 99. Muehling v. Muehling, 181 Pa. St. 483, 37 Atl. 527, 59 Am. St. Rep. 674. 58, 407. THE BOTTOM PAGES.] Mueller v. Chicago, M. & St. P. By. Co., Ill Wis. 300, 87 N. W. 239. 33, 119, 195. Mueller v. Olson, 90 Minn. 416, 97 N. W. 115. 340, 369, 642. Muir V. Jones, 23 Ore. 332, 31 Pac. 646, 19 L. R. A. 441. 392, 486^ Mull V. Graham, 7 Ind. App. 561, 35 N. E. 134. 191. Mullen V. Pugh, 16 Ind. App. 337, 45 N. E. 347. 191, 525, 532, 533. Mulrooney v. Obear, 171 Mo. 613, 71 S. W. 1019. 395. Mundine v. Pauls, 28 Tex. Civ. App. 46, 66 S. W. 254. 83, 36, 414, 484. Municipal Coun. of Sydney v. Aus- tralian G. Co., 3 N. S. W. St. R. 66, 20 N. S. W. Wkly. N. 59. 568, 577. Municipal Coun. of Sydney v. Syd- ney P. Co., 3 N. S. W. St. R. 87, 20 N. S. W. Wkly. N. 64. 568, 577. Munro v. Taylor, 8 Hare 60. 86. Munroe v. Armstrong, 179 Mass. 165, 60 N. E. 475. 119. Murdock v. Gifford, 18 N. Y. 28. 31, 308, 313, 378, 387, 441, 543. Murley v. McDermott, 3 N. & P. 356. 629, 630. Murphey v. Illinois T. & S. Bk., 57 Neb. 519, 77 N. W. 1102. 523. Murphy v. Fleetford, 30 Tex. Civ. App. 487, 70 S. W. 989. 426. Murphy v. Marland, 8 Cush. 575. 86, 381. Murphy v. Smith, 61 App. Div. 574, 70 N. Y. Supp. 786. 390, 395. Murphy v. Stafford, 4 Ir. Jur. 231. 633. Murray v. Bender, 125 Fed. 705, 60 C. C. A. 473, 63 L. R. A. 783. 55, 87, 111, 395. Murray v. Gouveneur, 2 Johns. Cas. 442. 79. TABLE OF CASES. Ixxi [BBFEBENCES ABEJ TO Murray v. Moruss, 27 Mich. 203. 236. Murray v. Van Derlyn, 24 Wis. 67. 639. Musch V. Burkhart, 83 la. 301, 48 N. W. 1025, 12 L. E. A. 484, 32 Am. St. E. 305. 99. Muskett V. Hill, 7 Scott 855, 5 Bing. N. C. 694. 598. Mutual B. I. Co. V. Huntington, 57 Kan. 744, 48 Pae. 19. 407. Mutual L. I. Co. v. Bigler, 79 N. Y. 568, 18 Hun 371. 610. Mutual L. I. Co. V. Dowden, 3 Atl. 351. 407. Mutual L. I. Co. V. National Bk. of Newburgh, 18 Hun 371, 79 N. Y. 568. 35, 610. Mutual L. Co. V. Gashe, 18 O. C. C. 681, 3 Ohio Dec. 647. 428. Muzzey v. Davis, 54 Me. 361. 636. Myer v. Whitaker, 55 How. Pr. 376, 5 Abb. New Cas. 172. 83. Myers v. White, 1 Eawle 353. 349. Myriek v. Bill, 3 Dak. 284, 17 N. W. 268. 36, 95, 102, 103, 105, 110, 522, 621. Naftzinger v. Eoth, 93 Pa. St. 443. 386, 665. Nairn v. Majoribanks, 3 Euss. 582. 523. Nanz V. Park Co., 103 Tenn. 299, 52 S. W. 999. 13. Nashville, C. & St. L. Ey. v. Heikens, 79 S. W. 1039. 398. Nason v. Tobey, 182 Mass. 314, 65 N. E. 389, 94 Am. St. Eep. 659. 182. Nason Mach. Co. v. Upham, 26 App. Div. 420, 50 N. Y. Supp. 197. 427. National Bk. v. North, 160 Pa. St. 303, 28 Atl. 694. 36, 54, 390, 450, 538. National Bk. of Sturgis v. Lavan- seler, 115 Mich. 372, 73 N. W. 399. 407. THE BOTTOM PAGES.] National P. Wks. v. Oconto W. Co., 52 Fed. 43, 59 Fed. 19, 7 C. C. A. 603, 18 TJ. S. App. 380. 431. National W. Co. v. Kansas Cy., 62 Fed. 853, 10 C. C. A. 653. 533. Nawahi v. Hakalau P. Co., 14 Haw. 460. 337, 358. Naye v. Noezel, 50 N. J. L. 523, 14 Atl. 750. 237. Naylor v. Collinge, 1 Taunt. 19. 21, 238, 240, 242. Neal V. Viney, 1 Camp. N. P. 471. 665. Needham v. Allison, 24 N. Ham. 355. 182. Neib v. Hinderer, 42 Mich. 451, 4 N. W. 159. 462. Neiderstein v. Cusick, 178 N. Y. 543, 83 App. Div. 36, 81 N. Y. Supp. 1058. 533. Neilson v. Iowa E. E. Co., 51 la. 184, 715, 1 N. W. 434. 32, 50. Neiswanger v. Squier, 73 Mo. 192. 207, 217, 219, 223, 260, 652, 657. Nelson v. Burt, 15 Mass. 204. 642. Nelson v. Graff, 12 Fed. 389. 64, 70, 618. Nelson v. Howison, 122 Ala. 573, 25 So. 211. 31, 36, 116, 486. Nelson v. Lawson, 71 Miss. 819. 374. Nelson v. Nelson, 6 Gray 385. 65. Nelson v. Pinegar, 30 111. 473. 610, 611, 612. Nesmith v. Martin, 75 Pac. 590. 516. Nethery v. Payne, 71 Ga. 374. 603. Nettleton v. Sikes, 8 Met. 34. 373. Neufelder v. Third St. Ey., 23 Wash. 470, 63 Pac. 197, 53 L. E. A. 600, 83 Am. St. Eep. 831. 441. Nevitt V. Gillespie, 2 Miss. 108. 603. Newark & H. Co. v. North Arlington, 65 N. J. L. 150, 46 Atl. 568. 562. Newbery, Ex parte, 1 Lowell's Dec. 386, 10 L. T. N. S. 661. 508, 509. New Chester Water Co. v. Holly Mfg. Co., 53 Fed. 19, 3 C. 0. A. 399, 3 Ixxii TABLE OF CASES. [BBFEEENCES ARE TO XT. S. App. 264, 48 Fed. 879. 26, 33, 479, 482. Newcomb v. Bamer, 2 John. 421. 370. Newgass v. Kailway Co., 54 Ark. 140, 15 S. W. 188. 90. Newhall V. Kinney, 56 Vt. 591. 403, 438, 465. New Haven v. Fair Haven, 38 Conn. 422. 562. Newhoff V. Mayo, 48 N. J. Eq. 619, 23 Atl. 265, 47 N. J. Eq. 31. 124, 533. Newland v. Baker, 26 Kan. 341. 382, 399, 564. New Mexico v. United S. T. Co., 172 XT. S. 171, 174 U. S. 545. 558, 563. New Orleans v. Euss, 27 La. A. 413. 136, 558. New O. Bkg. Co. v. Leeds, 49 La. Ann. 123, 21 So. 168. 34, 388, 389, 462. N. O. Nat. Bk. v. Eaymond, 29 La. A. 355. 407. Newport Co. v. Assessors, 19 E. I. 632, 36 Atl. 426. 22, 562, 564. Newson v. State, 107 Ala. 133, 18 So. 206. 671. New S. W. C. S. Co., Ee, 12. N. S. W. L. E. Eq. 87, 7 N. S. W. AVkly. N. 122. 408. Newton v. Odom, 45 S. E. 105. 355. New Westminster T. Co., Ee, 32 Can. L. J. 490. 562. New York, Ee, 39 App. Div. 589, 57 N. Y. Supp. 657. 380, 399, 406. New York v. Brooklyn F. Ins. Co., 39 N. Y. 45, 41 Barb. 231, 3 Abb. Ct. App. Dee. 251. 125, 235. New York v. Exchange F. Ins. Co., 3 Abb. Ct. App. Dec. 261, 9 Bosw. 424. 125. New York v. Hamilton F. Ins. Co., 39 N. Y. 45, 8 Abb.-Ct. App. Dee. 251, 10 Bosw. 537. 125, 235. THE BOTTOM PAGES.] New Y. D. Est. v. DeWestenberg, 46 Hun 281, 11 N. Y. St. E. 358. 534. New Y. G. Co. v. Tacoma Ey. Co., 93 Fed. 51, 35 C. C. A. 192. 562. New York I. Co. v. Cosgrove, 47 App. Div. 35, 62 N. Y. Supp. 372, 167 N. Y. 601, 60 N. E. 1117. 414. New Y. L. Ins. Co. v. Allison, 107 Fed. 179, 46 C. C. A. 229. 33, 37, 56, 394, 395, 437, 448, 449. New Y. S. Co. V. Saratoga L. Co., 88 Hun 569, 34 N. Y. Supp. 890. 32, 396, 407, 538. New Y. Tr. Co. v. Capital Ey. Co., 77 Fed. 529. 408. Niagara I. Co. v. Heenan, 181 111. 575, 54 N. E. 1052. 379. Niblet V. Smith, 4 Term 504. 549, 623, 652. Nichols V. Dewey, 4 Allen 386. 628. Nichols V. Lappin, 79 S. W. 995. 346. Nichols v. Potts, 71 N. Y. Supp. 765, 35 Misc. 273. 414. Nicholson v. New Z. Bk., 12 N. Z. L. E. 427. 84, 486. Nicholstone Cy. Co. v. Smalley, 21 Tex. Civ. App. 210, 51 S. W. 527. 87. Nickerson v. Wells-Stone Co., 71 Minn. 230, 73 N. W. 959, 74 N. W. 891. 478. Nieland v. Mahnken, 89 App. Div. 463, 85 N. Y. Supp. 809. 255. Nigro V. Hatch, 2 Ariz. 144, 11 Pac. 177. 19, 192. Nimmo v. Allen, 2 La. Ann. 451. 63, 436. Nimmons v. Moye. 302, 304. Nineteenth P. Ch. v. Fithian, 16 Ky. L. E. 581, 29 S. W. 143. 523. Nisbet V. Mitchell-Innes, 17 So. L. Eep. 438. 396, 435, 447, 448, 450, 452, 462, 468. Nixon V. Stillwell, 5 N. Y. Supp. 248, I 23 N. Y. St. E. 474. 99. TABLE OF CASES. Ixziii [BEITEBENCES ABB TO Noble V. Bosworth, 19 Pick. 314. 389, 516. Noble V. Sylvester, 42 Vt. 146. 56, 435, 454. Noble V. Tyler, 61 O. St. 432, 56 N. E. 191, 48 L. E. A. 735. 355. Nolan V. Rotaler, 135 Cal. 264, 67 Pac. 127. 200, 208, 607. Noon V. Einnegan, 32 Minn. 81, 10 N. W. 391. 633. N.ordyke v. Hawkeye W. Co., 53 la. 521, 5 N. W. 693. 122, 432. NorfE V. Caudray, Dyer 78. 678. Northam v. Bowden, 11 Exch. 70, 24 L. J. Ex. 237. 645. North British E 'y Go. v, Assessor, 25 Scot. Law Eep. 4. 11. Northern v. State, 1 Ind. 113. 365, 370. Northern C. Ey. Co. v. Canton Co., 30 Md. 347, 8 Am. Law Eep. N. S. 540. 112, 142, 198, 212, 214. Northern I. E. E. Co. v. Connelly, 10 0. St, 159. 563. Northern P. E. E. v. Garland, 5 Mont. 146, 3 Pac. 134. 558. North H. E. Co. v. Booraem, 28 N. J. Eq. 450. 89, 410. Northrup v. Trask, 39 Wis. 515. 96, 385, 647. Northumberland's Case, Owen 124. 321. Northwestern I. Go. v. George, 77 Minn. 319, 79 N. W. 1028, 1064. Ill, 414. Norton v. Craig, 68 Me. 275. 459, 461. Norton v. Dashwood [1896], 2 Ch. 497, 65 L. J. Gh. 737, 75 L. T. E. 205, 44 "W. E. 680. 33, 295, 474. Noyes v. Terry, 1 Lans. 219, 220. iii, 21, 454, 455. Nudell V. WilKams, 15 U. 0. C. P. 348. 533. Nuemberger v. Von Der Heidt, 39 111. App. 404. 370. THU BOTTOM FAQES.] Nutley, Ee, 96 L. T. 585. 12, 536. Nutt V. Butler, 5 Esp. 176. 663. Nye V. Patterson, 35 Mich. 413. 359, 365. Oakland Gem. Go. v. Bancroft, 161 Pa. St. 197, 28 Atl. 1021. 396, 407, 538. Oakley v. Monck, L. E. 1 Exch. 159, 14 W. E. 406, 12 Jur. N. S. 213, 14 L. T. N. S. 20, 34 L. J. Exch. 137, 13 W. E. 721. 162, 227, 261. Oakman v. Dorchester Ins. Co., 98 Mass. 57. 88, 381. Gates V. Cameron, 7 U. G. Q. B. 228. 388, 408, 647. O'Brien v. Hansen, 9 Mo. App. 545. 35, 427. O'Brien v. Kusterer, 27 Mich. 289. 142, 144, 145. O'Brien v. Mueller, 96 Md. 134, 53 Atl. 663. 66, 216, 223, 256. O'Brien v. O'Brien, Ambl. 107. 266, 606. O'Brien Boiler Co. v. Haydock, 59 Mo. App. 653. 217, 426, 431. O'Connell v. O'Callaghan, 3 Ir. Eq. 199. 358. Oconto Water Co. v. National Pipe Works, 59 Fed. 19, 7 C. G. A. 603, 18 U. S. App. 380, 52 Fed. 43. 431. 'Donnell v. Burroughs, 55 Minn. 91, 56 N. W. 579. 401. O 'Donnell v. Hitchcock, 118 Mass. 401. 19, 544. O 'Dougherty v. Felt, 65 Barb. 220. 457. on V. Finkelstein, 200 111. 40, 65 N. E. 439, 35 Chi. Leg. N. 163, 100 111. App. 14. 393, 537, 542. Official Assignee v. Maxwell, 11 N. Zea. 312. 210, 213, 225, 230. Ogden V. Jennings, 62 N. T. 526. 397. Ogden V. Stock, 34 111. 522, 85 Am. Ixxiv TABLE OF CASES. [BEFEBENCES ABE TO Dee. 332. 31, 37, 59, 61, 63, 97, 381, 618, 620. Ogden Lumb. Co. v. Busse, 92 App. Div. 143, 86 N. T. Supp. 1098. 594, 595. Ogontz Land Co. v. Johnson, 168 Pa. St. 178, 31 Atl. 1003, 14 Pa. Co. 86, 3 Pa. Dist. 642. 11. O'Hanlon v. Denvir, 81 Cal. 60, 22 Pae. 407. 95. O'Hanlon v. Murdock [1901], 1 L E. 122. 376. Ohio & M. E. E. Co. v. "Weber, 96 111. 443. 563, 567. Ohio O. Co. V. Griest, 30 Ind. App. 84, 65 N. E. 534. 641. Oland V. Burdwick, 5 Co. 116a, Mo. 394. 358. Oland 's Case, 5 Co. 116b. 360. Oliver v. Brown, 80 Me. 542, 15 Atl. 599. 393. Oliver v. Lansing, 59 Neb. 219, 80 N. W. 829. 381, 395, 437, 447. Oliver v. Vernon, 6 Mod. 170, Holt 332. 120, 478, 642. Olmatead v. McNall, 7 Blackf. 387. 44, 431. Olmstead v. Niles, 7 N. Ham. 522. 374. Olympic Theater, Ee, 2 Browne 275. 50, 302, 425. Oma,ha B. & T. Ey. Co. v. Whitney, 99 N. "W. 525, 94 N. W. 513. 112, 117, 397, 399, 478. Ombony v. Jones, 19 N. Y. 234, 21 Barb. 520. 153, 157, 167, 175, 193, 198, 203, 207, 209, 212. Onslow V. , 16 Ves. 173. 608. Ontario Car Co. v. Farwell, 18 Can. 1. 48, 408. Oppenheimer v. Morrell, 118 Pa. St. 189, 12 Atl. 307. 430. Orange & A. E. E. Co. v. Alexandria, 17 Gratt. 176. 566. Oregon E. & N. Co. v. Mosier, 14 Ore. 519. 89. THE BOTTOM PAGES.] Orgell v. Smith, 6 M. & S. 182. 675, 676. Orient Ins. Co. v. Parlin-Orendorff Co., 14 Tex. Civ. App. 512, 38 S. W. 60. 33, 122, 223, 379. Orphan Soe. v. Waterbury, 8 Daly 35. 532. Orr V. Davis, 17 N. Zea. 106. 141, 142, 144, 255. Osbom V. Potter, 101 Mich. 300, 56 N. W. 606. 137, 216. Osborne v. Humphrey, 7 Conn. 335. 558. Oseamp v. Crites, 37 Neb. 837, 56 N. W. 394. 624. Osgood v. Howard, 6 Me. 452. 103, 650. Oskaloosa W. Co. v. Board of Equl., 84 la. 407, 51 N. W. 18. 560. Ostrander v. Livingston, 3 Barb. Ch. 416. 524. Oswald V. Whitman, 22 Nova S. 13. 217, 513. Otis V. May, 30 111. App. 581. 26, 388, 391. Ott V. Specht, 8 Hous. 61, 21 Atl. 721. 36, 103, 622. Ottumwa Mill Co. v. Hawley, 44 la. 57, 24 Am. Eep. 719, 3 Cent. Law J. 657, 10 W. Jur. 668. 28, 32, 62, 388, 437, 439, 440, 441, 444, 464. Overman v. Sasser, 107 N. Car. 432, 12 S. E. 64, 10 L. E. A. 722. 273. Overton v. Williston, 31 Pa. St. 155. 198, 218, 647. Oves V. Ogelsby, 7 Watts 106. 387, 402, 405. Owens V. Lewis, 46 Ind. 488. 374. Oyster v. Oyster, 32 Mo. App. 270. 362, 658. Paeheeo v. Hunsacker, 14 Cal. 120. 372. Paoifie M. Co. v. James C. Co., 68 Ped. 966, 16 C. C. A. 68, 29 TJ. S, App. 698. 431. TABLE OF CASES. Ixxv [BEFEIIENCBS ARE TO Pacific E. B. Co. v. Cass Co., 53 Mo. 17. 566. Packington's Case, 3 Atk. 215. 266, 606. Padgett V. Cleveland, S3 S. Car. 339, 11 S. E. 1069. 30, 36, 417, 471, 519. Page V. Davidson, 22 111. 112. 592, 597. Page V. Edwards, 64 Vt. 124, 23 Atl. 917. 415. Page V. Fowler, 28 Cal. 605, 37 Cal. 100, 39 Cal. 412, 2 Am. Eep. 462. 626, 627, 628. Page V. TJrick, 31 Wash. 601, 72 Pac. 454, 96 Am. St. Eep. 924. 19, 95, 104, 622. Paget 's Case, 5 Co. 76b. 75, 458. Paige V. Peters, 70 Wis. 178, 35 N. W. 328. 95. Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042. 406, 420, 421. Paine v. Sector, 7 Hun 89. 532. Palmateer v. Eobinson, 60 N. J. L. 433, 38 Atl. 957. 32, 85. Palmer v. Episcopum Exon., 1 Stra. 576. 325. Palmer v. Forbes, 23 111. 301. 26, 48, 53, 541. Palmer v. Young, 108 111. App. 252. 127, 187, 190. Pangborn v. Continental I. Co., 62 Mich. 638, 29 N. W. 475. 398. Parham v. Thompson, 2 J. J. Marsh 159. 364. Paris V. Norway W. Co., 85 Me. 330, 27 Atl. 143. 559. Park V. Baker, 7 Allen 78, 83 Am. Dee. 668. 388. Parker v. Goddard, 39 Me. 144, 48 Me. 212. 228, 229, 651. Parker v. Hale, 78 S. W. 555. 365. Parker v. Page, 41 Ore. 579, 69 Pac. 822. 533. Parker v. Parker, 1 Gray 409, 386, THE BOTTOM PAGES.] Parker v. Eedfield, 10 Conn. 490. 216, 558. Parker, v. Shackelford, 61 Mo. 68. 633. Parker v. Staniland, 11 East 362. 370. Parker v. Storts, 15 0. St. 351. 345. Parker v. Wulstein, 48 N. J. Eq. 94, 21 Atl. 623. 9, 246. Parker Com. v. Eeddick, 18 Ind. App. 616. 36. Parrott v. Palmer, 3 Myl. & K. 632. 613, 614. Parsons v. Camp, 11 Conn. 525. 459. Parsons v. Clark, 76 Me. 476. 113, 636. Parsons v. Copeland, 38 Me. 537. 23, 27, 31, 380, 443. Parsons v. Hind, 14 W. E. 860, 2 Can. L. J. 217, 2 Loe. Cts. & M. G. 122. 31, 442, 443, 447, 510. Partridge v. Hemenway, 89 Mich. 454, 50 N. W. 1084. 74, 617. Pasterfield v. Sawyer, 43 S. E. 799, 45 S. B. 524. 625. Patent Peat Co., 27 L. T. N. S. 69. 22, 390, 443, 492, 499, 504. Paterson v. Pyper, 20 TJ. C. C. P. 278. 403. Patou V. Sheppard, 10 Sim. 186. 475, 476. Patridge v. Bere, 5 Barn. & Aid. 604. 593. Patterson v. Cunliffe, 11 Phila. 564. . 593. Patterson v. Delaware Co., 70 Pa. St. 381. 25, 561, 565. Patterson v. Gallagher, 25 Ore. 227, 35 Pac. 454, 42 Am. St. Eep. 794^ 143, 431. Patterson v. Hausbeck, 8 Pa. Super 36. 211. Patterson v. Johnson, 10 Gr. Ch. 583 1 Can. Law J. 105, 1 Loe. Cts. & M. G. 60. 436. Patterson v. Yeaton, 47 Me. 308. 386. Ixxvi TABLE OF CASES, [EEFEHENCES AHB TO Pattison's App., 61 Pa. St. 294, 100 Am. Dec. 637. 373, 374. Patton V. Moore, 16 W. Va. 428, 37 Am. E. 789. 54, 63, 70, 382, 440, 462, 538, 540. Paul V. Dowling, 1 M. & M. 267. 158. Paulin v. Porde, March 211. 668. Paull V. Eldred, 29 Pa. St. 415. 659. Pawly V. Wiseman, 3 Keb. 614. 293. Pawtucket Inst. v. Almy, 13 E. I. 68. 535. Paxton Cattle Co. v. First Nat. Bk., 21 Neb. 621, 22 N. W. 155, 33 N. W. 271. 95. Payne v. Anderson, 35 La. A. 977. 407, 411. Payne v. Farmers' & C. Bk., 29 Conn. 415. 403. Pea V. Pea, 35 Ind. 387. 31, 341, 393, 516. Peaks V. Hutchinson, 96 Me. 530. 94, 104, 483. Pearce v. Colden, 8 Barb. 522. 532. Pearson v. Sanderson, 128 111. 88, 21 N. E. 200, 28 111. App. 571. 533. Peek V. Batchelder, 40 Vt. 233, 94 Am. Dec. 329. 54, 455. Peek V. Brown, 5 Nev. 81. 434. Peck T. Knox, 1 Sweeney 311. 648. Peckham t. Group, 3 Kan. App. 369, 42 Pac. 944. 345. Pecoul V. Auge, 18 La. A. 615. 194, 518. Pedroni v. Eppstein, 17 Colo. App. 424, 68 Pac. 794. 102. Peet V. Dakota Ins. Co., 7 S. Dak. 410, 64 N. W. 206. 11. Peirce v. Goddard, 22 Pick. 559. 83. Peiree v. Grice, 92 Va. 763, 24 S. E. 392. 534, 535. Pellenz v. BuUerdieok, 13 La. Ann. 274. 194. Pemberton v. King, 2 Dev. 376. 200, 542, 544. Pender v. Bathgate Oil Co., 24 Scot. Law Eep. 519. 145, 535. THE BOTTOM PAGES.] Pendill v. Maas, 97 Mich. 215, 56 N. W. 597. 229. Penhallow v. Dwight, 7 Mass. 34. 364. Penn v. Citizens' Bk., 32 La. Ann. 195. 109, 168, 349, 413. Penn I. Co. v. Thackara, 15 Phila. 264, 38 Leg. Intel. 139, 10 Wkly. Notes Cas. 104, 13 Eep. 731, 11 Wkly. Notes Cas. 391. 449. Penn M. I. Co. v. Semple, 38 N. J. Eq. 575. 440, 441, 543. Penn M. L.' I. Co. v. Semple, 38 N. J. Eq. 314. 610. Pennock v. Coe, 23 How. 117. 48. Pennsylvania G. Co. v. Gill, 1 Pa. Dist., 28 Wkly. N. Ca. 36. 429. Pennsylvania, P. & B. E. E. Co. v. Trimmer, 31 Atl. 310. 89. Pennybacker v. McDougal, 48 Cal. 160. 19, 21, 91, 92, 94, 446, 454, 629. Penry v. Brown, 2 Stark. 403. 244. Penryn F. Co. v. Sherman- Worrell F. Co., 76 Pac. 484. 348. Penton v. Eobart, 2 East 22, 4 Esp. 33. 134, 148, 149, 150, 162, 164, 198, 200, 203, 273. People V. Board of Assessors, 93 N. Y. 308, 39 N. Y. 81. 558, 560. People V. Cassity, 46 N. Y. 46. 561. People V. Commissioners of Taxes, 101 N. Y. 322, 4 N. E. 127, 23 Hun 687, 80 N. Y. 573, 10 Hun 207, 82 N. Y. 459, 19 Hun 460. 9, 559, 561, 562. People V. DeWitt, 59 App. Div. 493, 69 N. W. Supp. 366, 167 N. Y. 575, 60 N. E. 1118. 559. People V. Jones, 120 Mich. 283, 79 N. W. 177. 55, 674. People V. Martin, 48 Hun 193. 559. People V. Nolan, 22 Mich. 229. 677. People V. Waldron, 26 App. Div. 527, 50 N. Y, Supp. 523. 29, 564. TABUS OF CASES. Ixxvii [BEFEBENCES ABE TO THE BOTTOil PAOES.] People V. Wanzer, 88 N. Supp. 281, 43 Misc. 136. 668. People's Sav. Bk. v. Jones, 114 Cal. 422, 46 Pae. 278. 619. Peoria, D. & E. Ey. Co. v. Gear, 118 111. 134, 8 N. E. 682. 563. Peoria P. I. Co. v. Lewis, 18 111. 553. 463. Percival v. Thurston County, 14 Wash. 586, 45 Pac. 159. 559. Perkins v. Bailey, 99 Mass. -61. 82. Perkins v. Swank, 43 Miss. 349. 31, 170, 381, 418. Perkins' Est., Ee, 26 Atl. 637. 94, 111, 399, 516. Perrine v. Marsden, 34 Cal. 14. 608, 611. Perrot v. Perrot, 3 Atk. 94. 608. Perry v. Carr, 44 N. Ham. 118. 180. Perry v. Hamilton, 138 Ind. 271, 35 N. E. 836. 335, 608. Perry v. Terrel, 1 Dev. & Bat. Eq. 441. 355. Perry v. White, 111 N. Car. 197, 16 S. B. 172. 144. Peter v. Heneage, 12 Mod. 520, 1 Ld. Eaym. 728. 318, 321. Peterson v. Clark, 15 John. 205. 74, 592, 594, 643. Petre v. Ferrers [1891], Wkly. Notes 171. 75, 278, 477. Petre v. Heneage, 12 Mod. 520, 1 Ld. Eaym. 728. 318, 321. Petrie v. Dawson, 2 C. & K. 138. 513. Pettengill v. Evans, 5 N. Ham. 54. 394, 411, 453. Pfluger V. Carmichael, 54 App. Div. 153. 10,. 30, 57, 435. Phelan v. Boyd, 14 S. W. 290. 30, 383, 539. Phelps V. Edwards, 52 Tex. 371. 417. Phelps & B. Co. V. Baker, 49 Kan. 434, 30 Pac. 472. 429. Phelps & B. Co. v. Shay, 32 Neb. 19, 48 N. W. 896. 429. Philadelphia Mort. Co. v. Miller, 20 Wash. 607, 56 Pac. 382, 44 L. E. A. 559, 72 Am. St. E. 138. 36, 58, 451. Philadelphia, E. & N. E. R. E. Co. V. Bowman, 23 App. Div. 170, 48 N. y. Supp. 901, 163 N. Y. 572, 57 N. E. 1122. 90, 410. Philadelphia, W. & B. E. E. Co. v. Appeal Tax Ct., 50 Md. 397. 558, 566. Philbrick v. Swing, 97 Mass. 133. 395. PhiMon V. Bisson, 23 L. Can. Jur. 32. 388, 390, 391, 407, 537. Philipson v. Mullanphy, 1 Mo. 620. 255, 437, 439. Phillips V. Bowers, 7 Gray 21. 642. PhilHps V. Grand E. I. Co., 46 U. C. Q. B. 334. 410. Phillips V. Keysaw, 7 Ok. 674, 56 Pac. 695. 361. Phillips V. Myers, 55 la. 265, 7 N. W. 580. 72. Phillips V. Eeynolds, 20 Wash. 374, 55 Pac. 316. 534. Phillips V. Warner, 4 Ct. App. Civ. Ca. s. 147. 365. Phinney v. Day, 76 Me. 83. 407. Phoenix I. Co. v. New Y. T. Co., 83 .Fed. 757, 28 C. C. A. 76, 54 IT. S. App. 408. 408. Phoenix Mills .v. Miller, 17 N. Y. Supp. 158, 4 N. Y. St. E. 787. 29, 56, 57, 388, 390, 396, 407. Pickens v. Webster, 31 La. Ann. 870. 364. Pickerell v. Carson, 8 Iowa 544. 4, 8. Pickering v. Moore, 67 N. Ham. 533, 32 Atl. 828, 68 Am. St Eep. 695. 183. Pickett V. Pope, 74 Ala. 122. 284 523. Pidgeley v. Eawling, 2 Colly Ch. 275 264. Ixxviii TABLE OF CASES. [BBFEBBNCES ABE TO Pierce v. Emery, 32 N. Ham. 484. 48, 420, 478. Pierce v. George, 108 Mass. 78, 11 Am. Eep. 310. 399, 418, 433, 439, 444, 486. Pierce v. Goddard, 22 Pick. 559. 647. Pierce v. Hill, 35 Mich. 194. 362. Pierrepont v, Barnard, 5 Barb. 364. 374. Pigott V. Stratton, 29 L. J. N. S. Ch. 1, 6 Jur. N. S. 1290, 1 L. T. N. S. 111. 208. Pike V. Butler, 4 N. T. 360, 4 Barb. 650. 524. Pillow V. Love, 5 Hayw. 109. 544. Pillsworth V. Hotpon, 6 Ves. 51. 603. Pirn V. Grazebrook, 4 Scott N. E. 565. 504, 638. PimUco T. Co. v. Greenwich, L. K. 9 Q. B. 9, 43 L. J. M. C. 29. 570. Pinckard v. State, 62 Ala. 167. 668. Pinder v. Pinder, 18 W. R. 309. 475, 477. Pinkham v. Geer, 3 2Sr. Ham. 484. 179. Pinner v. Arnold, 2 Cr. M. & E. 613, Tyrwh. & Gr. 1. 517, 665. Pioneer Co. v. Fuller, 57 Minn. .60, 58 N. W. 831. 217, 413. Piper V. Martin, 8 Pa. St. 206. 542. Pitkin County v. Brown, 2 Colo. App. 473, 31 Pac. 525. 150, 221, 223. Pitt V. Shew, 4 B. & Aid. 206. 550, 636, 637. Pitts V. Hendrix, 6 Geo. 452. 341. Place V. Fagg, 4 Man. & Ey. 277, 7 L. J. K. B. 195. 391, 453, 537, 539, 551. Plamondon v. Lefebvre, 3 Que. L. E. 288. 239. Piatt V. Oneonta, 84 N. T. Supp. 699. 88. Platto T. Gettleman, 85 Wis. 105, 55 N. W. 167. 521. Plumer v. Plumer, 30 N. Ham. 558. 180, 182, 380, 459, 460, 642. THE BOTTOM PAGES.} Poche V. Theriot, 23 La, Ann. 137. 78. Podlech V. Phelan, 13 Utah 333, 44 Pac. 838. 139, 142, 143, 202, 219, 223. Poertner v. Eussel, 33 Wis. 193. 246, 603, 607, 609. Pohlman v. DeBouchel, 32 La. Ann. 1158. 424. Poindexter v. Blackburn, 36 N. Car. 286. 355. Poindexter v. Henderson, 1 Miss. 176. 601, 603. Polle V. Eouse, 73 Miss. 713, 19 So. 481. 138, 482. Polley V. Johnson, 52 Kan. 478, 35 Pac. 8, 23 L. E. A. 258. 364. Poison V. Degear, 12 Ont. 275. 84, 484, 652. Pomeroy v. Bell, 118 Cal. 635, 50 Pac. 683. 87, 384. Pomeroy v. Schwender, 2 Kan. App. 305, 43 Pac. 94. 418. Pond Co. V. O 'Conner, 70 Minn. 266, 73 N. W. 159, 248. 29, 146. Pond M. Co. V. Eobinson, 38 Minn. 272, 37 N. W. 99. 428. Poole V. Johnson, 62 la. 611, 17 N. W. 900. 423. Poole's Case, 1 Salk. 368, Holt 65. 123, 133, 134, 139, 144, 148, 189, 198, 266, 544, 547. Poor V. Oakman, 104 Mass. 309. 381. Pope V. Garrard, 39 Ga. 471. 76. Pope V. Jackson, 65 Me. 162. 26, 28, 30, 417, 436. Pope V. Skinkle, 45 N. J. L. 39, 10 Eep. 308. 32, 36, 112, 113, 651. Porch V. Fries, 18 N. J. Eq. 204. 613. Porche v. Bodin, 28 La. Ann. 761. 346, 350. Porter v. Drew, 5 C. P. D. 143, 49 L. J. C. P. 482, 42 L. T. E. 151, 14 Co. Ct. & B. 397, 30 Eng. E. 733, 28 "W. E. 672. 243. TABLE OF CASES. Ixxi-ic [befebences Abe to Porter v. Hubbard, 134 Mass. 233. 344. Porter v. Osmun, 98 N. W. 859. 523. Porter v. Pittsburg S. Co., 122 V. S. 267, 120 U. S. 649, 7 S. Ct. 1206. 408. Portland B. Assn. v. Creamer, 34 N. J. Bq. 107. 613. Post V. Kreisher, 103 N. Y. 110, 8 N. E. 365, 32 Hun 49. 329. Post V. Miles, 7 N. M. 317, 34 Pac. 586. 33. Potter V. Cromwell, 40 N. T. 287, 100 Am. Dec. 485. 21, 28, 31, 61, 391, 440. Potter V. Everett, 40 Mo. App. 152. 375. Potter V. Lambie, 142 Pa. St. 535, 21 Atl. 888. 342. Potter V. Eend, 201 Pa. St. 318, 50 Atl. 821. 98. Pottkamp V. Buss, 31 Pac. 1121. 397. Potts V. New Jersey Arms Co., 17 N. J. Eq. 395. 21, 28, 462, 492. Poughkeepsie Gas Co. v. Citizens' Gas Co., 20 Hun 214. 104. Powell V. Bergner, 47 111. App. 33. 145. Powell V. Cheshire, 70 Ga. 357. 613. Powell V. McAsham, 28 Mo. 70. 149, 187, 219, 231. Powell V. Munson Mfg. Co., 3 Mason C. C. 459. 134, 297, 298, 299. Powell V. Eeese, 7 Ad. & B. 426. 597. Powell V. Eich, 41 111. 466. 339, 340, 350, 371. Powell V. Eogers, 11 111. App. 98. 407, 408, 423. Powell V. Smith, 2 Watts 126. 626, 628. Powell V. Striker, 12 Law Eep. 366. 387, 405. Powers V. Clarkson, 17 Kan. 218. 374. Powers V. Dennison, 30 Vt. 752. 481, 486. THE BOTTOM PAGES.] Powers V. Harris, 68 Ala. 409, 57 Ala. 139. 87, 103, 116. Pratt V. Baker, 92 Hun 331, 36 N. Y. Supp. 928, 72 N. Y. S. & E. 301. 389, 439. Pratt V. Douglas, 38 N. J. Eq. 516. 523. Pratt V. Keith, 5 Mont. Co. 113. 141, 413, 544. Pratte v. Coffman, 27 Mo. 424. 350. Prescott V. Wells, 3 Nev. 82. 4, 122, 647, 651. Prescott & A. C. Ey. Co. v. Eees, 3 Ariz. 317, 28 Pac. 1134. 88. President of Albany & B. Eoad, Ee, 94 App. Div. 509, 87 N. Y. Supp. 1104. 563. Preston v. Briggs, 16 Vt. 129. 122, 198, 214, 378, 412, 649. Preston v. Eyan, 45 Mich. 174, 7 N. W. 819. 364. Preston v. Sabine &e. Ey. Co., 70 Tex. 375, 7 S. W. 825. 90. Price, Ex parte, 2 Mont. Dea. & DeG. 518, 11 L. J. N. S. B. 27, 6 Jur. 327. 387, 399, 405, 406. Price V. Brayton, 19 la. 309. 308, 337. Price V. Jenks, 14 Phila. 228, 37 Leg. Intel. 398. 33, 400, 442. Price V. Malott, 85 Ind. 266. 69, 96, 97, 102, 103, 111, 144, 216, 489. Price V. Pickett, 21 Ala. 741. 357. Price V. Tawhao, 3 N. Zea. L. E. Supr. Ct. 145. 674. Price V. Weehawken Co., 31 N. J. Eq 31. 410. Priestly v. Johnson, 67 Mo. 632. 104 478. ' Prince v. Case, 10 Conn. 375. 106, 107, 113, 481, 486. Pritchard v. Walker, 22 111. App. 286 352. Proctor V. Gilson, 49 N. Ham 62 460. Progress Mach. Co. v. Gratiot Brick Ixxx TABLE OF CASES. [EErEKENCES AKB TO Co., 151 Mo. 501, 52 S. W. 401. 32, 426. Pronguey v. Gumey, 37 XT. C. Q. B. 347, 36 U. C. Q. B. 53. 2, 26, 35, 140, 141, 144, 147, 155, 205, 256, 259. Providence & W. E. E. Co. v. Wright, 2 E. I. 459. 563. Providence Gas Co. v. Thurber, 2 E. I. 15, 55 Am. Dec. 621. 22, 559, 568. Pugh V. Arton, L. E. 8 Eq. 626, 38 L. J. N. S. Ch. 619, 20 L. T. N. S. 865, 17 W. E. 984. 198, 210, 607. PuUen V. Bell, 40 Me. 314. 386, 650. Pulsifer v. Douglass, 94 Me. 556, 48 Atl. 118. 119. Pultenay v. Warren, 6 Ves. 73. 614. Pultney v. Shelton, 5 Ves. 147. 608. Punnett, Ex parte, 16 Ch. D. 226, 50 L. J. Ch. 212. 406, 409. Purner v. Piercy, 40 Md. 212, 17 Am. Eep. 591. 333, 373. Pusey V. Pusey, 1 Vern. 273. 321, 324. Putnam v. White, 76 Me. 551. 375. Putney v. Day, 6 N. Ham. 430, 25 Am. Dec. 470. 374. Pyle V. Pennock, 2 W. & S. 390, 37 Am. Dee. 517. 25, 46, 455. Pyne v. Dor, 1 Term 56. 266. Pyot V. Saint John, Cro. Jac. 329. 234, 652. Quillen v. Betts, 1 Pennewill 53, 39 Atl. 595. 99. Quinby v. Manhattan Cloth Co., 24 N. J. Bq. 260. 21, 28, 387, 389, 390, 391, 470. Quincy, Ex parte, 1 Atk. 477. 189, 190, 198, 399, 512, 607, 647. Eadeliffe v. D 'Oyly, 2 Term 630. 293. Eaddin v. Arnold, 116 Mass. 270. 122, 647, 651. Eaddin v. Kidder, 111 Mass. 44. 106, 124. THE BOTTOM PAGES.] Eadebaugh v. Taooma & P. E. E. Co., 8 Wash. 570, 36 Pac. 460. 50. Eadey v. McCurdy, 58 Atl. 558. 257. Eaht V. Attrill, 106 N. Y. 423, 13 N. E. 282. 409. Eahway S. Inst. v. Irving B. Ch., 36 N. J. Eq. 61, 15 Eep. 632, 27 Alb. Law J. 252, 17 W. Jur. 286. 450. Eailroad Co. v. James, 73 U. S. 750. 48. Ealston v. Ealston, 3 G. Greene 533. SSL Eandall v. Elwell, 52 N. Y. 521, 11 Am. E. 747. 50, 541, 566. Eandolph v. Gwynne, 7 N. J. Eq. 88, 51 Am. Dec. 265. 388, 445, 446. Eankin v. Kinsey, 7 ID. App. 215. 348. EanvTick v. Eenwick, 1 Bradf. 234. 527. Eardin v. Baldwin, 9 Kan. App. 516. 346. Easor v. Quails, 4 Blackf. 286. 353. Eathbone v. Boyd, 30 Kan. 485, 2 Pae. 664. 361. Eaventas v. Green, 57 Cal. 254. 364. Eawlings v. Hunt, 90 N. Car. 270. 367. Eayman v. Henderson Nat. Bk., 98 Ky. 748. 409. Eaymond v. Andrews, 6 Cush. 265. 628. Eaymond v. White, 7 Cow. 319. 20, 296, 384, 481. Eead v. Horner, 90 Mich. 152, 51 N. W. 207. 478. Eead v. Saint Ambrose Co., 137 Pa. St. 320, 20 Atl. 1002. 87. Eeadfield Tel. Co. v. Cyr, 95 Me. 287, 49 Atl. 1047. 32, 113, 547. Eeardon v. Murphy, 163 Mass. 501, 40 N. E. 854. 11. Eedfern v. Smith, 2 Bing. 262. 590. Eedlon v. Barker, 4 Kan. 445, 96 Am. Dec. 180. 28, 394. Eeed v. Johnson, 14 111. 257. 369. TABLE OF CASES. Ixxxi [BBFEBBNCES ABB TO Eeed v. Eeed, 68 Me. 568. 92, 265. Eeed v. Swan, 133 Mo. 100, 34 S. W. 483. 340, 346, 520. Eeeder v. Sayre, 70 N. Y. 180. 353. Eeese v. Jared, 15 Ind. 142. 620. Eeformed D. Ch. of N. Y. v. Park- hurst, 4 Bosw. 491. 529. Eegina v. Bainbridge Union, 7 Ir. Jur. 332. 574. Eegina v. Brownlow, 11 Ad. & E. 119. 680. Eegina v. Brumby, 3 C. & K. 315. 673. Eegina v. Brummitt, 8 Cox C. C. 413, L. & 0. 9, 3 L. T. N. S. 679, 9 W. E. 257. 673. Eegina v. Cambridge G. L. Co., 8 A. & E. 73, 3 N. & P. 262. 569. Eegina v. Clinton, Ir. E. 4 C. L. 6. 668. Eegina v. Downing, 23 L. T. N. S. 398. 668. Eegina v. Eastern C. Ey. Co., 2 Dowl. Pr. 0. N. S. 293. 680. Eegina v. East L. W. Co., 18 Q. B. 705, 21 L. J. M. C. 174, 17 Q. B. 512, 21 L. J. M. C. 49. 568, 569, 570'. Eegina v. Edwards, 10 Cox Mag. 452, 13 Cox Crim. 384. 670. Eegina v. Fisher, 10 Cox C. C. 146. 675. Eegina v. Foley, 17 Cox Cr. 142. 669. Eegina v. Gooch, 8 C. & P. 293. 672. Eegina v. Gray, 9 Cox C. C. 417. 675. Eegina v. Guest, 7 Ad. & E. 951, 2 N. & P. 663, W. W. & D. 651. 572, 573. Eegina v. Harris, 11 Mod. 113, Holt 353. 668. Eegina v. Haslam, 17 Q. B. 224. 574, 578. Eegina v. Howell, 9 C. & P. 437. 676, 677. Eegina v. Jones, 7 Cox C. C. 498, THE BOTTOM PAGES.] Dears. & B. C. C. 555, 4 Jur. N. S. 394, 27 L. J. M. C. 171. 673. Eegina v. Lee, L. E. 1 Q. B. 241, 7 B. & 8. 188, 12 Jur. N. S. 225, 35 L. J. M. C. 105. 446, 555, 577, 579. Eegina v. Leith, 1 Ell. & Bl. 121. 570, 572. Eegina v. Metropolitan Bd. of Wks., L. K. 4 Q. B. 26. 582. Eegina v. Midland Ey. Co., L. E. 10 Q. B. 389, 9 Cox Mag. 474. 569, 570. Eegina v. Morrish, 32 L. J. M. C. 245, 10 Jur. N. S. 71. 568. Eegina v. Morrison, 1 Ell. & Bl. 150. 571. Eegina v. Norris, 9 C. & P. 241. 675. Eegina v. North Staffordshire Ey. Co., 30 L. J. M. C. 68, 7 Jur. N. S. 363, 3 Ell. & Ell. 392. 570, 572, 574, 576, 577, 578, 580. Eegina v. Pembleton, 43 L. J. M. C. 91, 12 Cox C. C. 607, 2 L. E. 0. C. 119. 674, 675. Eegina v. Eice, 28 L. J. M. C. 64, Bell's C. C. 87, 5 Jur. N. S. 273, 7 W. E. 232, 32 L. T. 323, 8 Cox C. C. 119. 667, 672. Eegina v. Smith, 6 Cox 0. C. 198. 674. Eegina v. Southampton D. Co., 14 Q. B. 587. 574, 579, 580. Eegina v. Southwark & V. W. Co., 6 E. & B. 1008. 569. Eegina v. "West Middlesex Water- works, 1 Ell. & Ell. 716. 568, 569. Eegina v. "Wheeler, 6 Mod. 187. 46, 678, 679. Eegina v. "Whittingham, 9 C. & P. 234. 675. Eeid V. Blades, 5 Taunt. 212. 512. Eeid V. Kirk, 12 Eich. L. 54. 118, 148, 193. EeifE V. Eeiff, 64 Pa. St. 134. 334. Ixxxii TABLE OF CASES. [KEFEBENCBS ABE TO Eeilly v. Hudson, 62 Mo. 383. 36, 428. Eeilly v. Eingland, 39 la. 106, Pat- tee's lUus. Ca. 88, 44 Iowa 422. 358, 363. Eeily v. Carter, 75 Mich. 798, 23 So. 435. 346. Eelyea v. Beaver, 34 Barb. 547. 100. Eeniek v. Boyd, 99 Pa. St. 555. 626. Eenwick v. Eenwick, 1 Bradf. 234. 531. Eex V. Bartlett, Deac. C. L. 1517. 675. Eex V. Bath, 14 East 609. 568. Eex V. Bell, 7 Term 598. 567, 568, 570. Eex V. Bilston, 5 B. & C. 851, 8 D. & E. 734. 576, 577, 581. Eex V. Birmington & S. G. L. Co., 6 A. & E. 634, 1 N. & P. 691. 569, 573, 576. ■ Eex V. Birminghain G. L. Co., 1 B. & C. 506, 2 D. & E. 735. 569. Eex V. Bliek, 4 C. & P. 377. 673. Eex V. Brighton Gas L. Co., 5 B. & C. 466, 8 D. & E. 308. 568. Eex V. Brooks, 4 C. & P. 131. 328, 330. Eex V. Chelsea W. Co., 5 B. & Ad. 156. 568, 569. Eex V. Chubb, Deac. C. L. 1518. 675. Eex V. Crosse, 1 Sid. 207, 1 Lev. 136. 46, 678. Eex V. Crutchley, 5 C. & P. 133. 675. . Eex V. Davis, 2 East's P. C. 593. 671. Eex V. Dodderhill, 8 Term 449. 583. Eex V. Dowsey, 29 Vict. L. E. 453. 667. Eex V. Fidler, 4 C. & P. 449. 675. Eex V. Kneh, 1 Mood. 0. C. 418. 673. Eex V. Granville, 9 B. & C. 188. 570, 577, 582. Eex v. Hammersmith, 8 Term 450. 583. THE BOTTOM PAGES. ] Eex V. Hedges, 1 Leach C. G. 240. 671, 672. Eex V. Hickman, 1 Leach C. C. 358, 2 East's P. C. 593. 671. Eex V. Hill, E. & E. C. C. 483. 674. Eex V. Hodges, M. & M. 341. 673. Eex V. Hogg, 1 Term 721, Cald. 662. 575, 577. Eex V. Hungerford M. Co., 4 B. & Ad. 596. 243. Eex V. Hutchins, Deac. C. L. 1517. 675. Eex V. Inhabitants of St. Dunstan, 4 B. & C. 586. 310. Eex V. Isley, 1 Leach C. C. 360. 671. Eex V. Jones. 673. Eex V. Londonthorpe, 6 Term 377. 15, 583, 585. Eex V. Mackerel, 4 C. & P. 448.. 675. Eex V. Manchester & S. W. Co., 1 B. & C. 630. 569. Eex V. Mellor, 2 East 189. 583. Eex V. Mersey & I. Nav. Co., 9 B. & C. 95. 568. Eex V. Millar, 7 C. & P. 665. 667. Eex V. Minworth, 2 East 198. 583. Eex V. Mosley, 2 B. & C. 226. 569. Eex V. Munday, 2 Leach C. C. 991. 672. Eex V. Norris, Euss. & E. C. CI. 69. 671. Eex V. North Bedburn, Conset's Bott. 155. 584. Eex V. Otley, 1 B. & Ad. 161. 16, 585. Eex V. Paine, 7 C. & P. 135. 677. Eex V. Parker, 2 East's P. C. 592. 671. Eex V. Piddletrenthide, 3 Term 772. 584. Eex V. Eeece, Monmouth Leut. Assn. 672. Eex V. Eichards, Euss. & E. C. C. 28. 672. Eex V. Eochdale Co., 1 M. & 8. 634. 568. TABLE OF CASES. Ixxxiii [EEFEHBNCES ABB TO Eex V. Saint Dunstan, 4 B. & C. 686. 197, 585. Eex V. St. Nicholas Gloucester, 1 Term 723, Cald. 262, 3 Dane's Abr. 157. 50, 575, 576. Eex V. Senior, 2 Leach C. C. 559, 2 East's P. C. 593. 671. Eex V. Shrewsbury, 3 B. & Ad. 216. 569. Eex V. Tardebigg, 1 East 528. 583. Eex V. Taylor, Euss. & Ey. 373. 673, 675. Eex V. Topping, MeClell. & Y. 544. 235, 545. Eex V. Traeey, E. & E. C. C. 452. 674. Eex V. Trent & M. Nav. Co., 4 B. & C. 57. 568, 570. Eex V. Walker, E. & M. 155. 316. Eex V. Webb, 1 Mood. C. C. 431. 673. Eex V. Webster, 1 Leach C. C. 14. 668, 670. Eex V. West, Deac. 0. L. 1518. 675. Eex V. Whateley, 4 M. & E. 431. 675. Eex V. Worrall, 7 C. & P. 516. 672. Eeyman v. Henderson Nat. Bk., 98 Ky. 748, 17 Ky. L. E. 1291, 34 S. W. 697. 26, 388, 407, 436, 462. Eeyman v. Mosher, 71 Ind. 596. 435. Eeynal, Ex parte, 2 Mont. Dea. & DeG. 443. 4, 198, 297, 473, 504, 505, 511, 537, 649, 667. Eeynolds v. Ashby [1903], 1 K. B. 87, 72 L. J. K. B. 51, 87 L. T. E. 640, 51 W. E. 405. 37, 61, 403, 408, 443. Eeynolds v. Canal & B. Co. of N. 0., 30 Ark. 520. 310. Eeynolds v. Dechman, 2 Nova S. L. E. 459. 35, 382, 642, 643. Eeynolds v. Deckman, 2 Can. Law T. 261. ,74, 643. Eeynolds v. Eeynolds, 48 Hun 142, 15 N. Y. St. E. 464. 358, 372. Eeynolds v. Shuler, 5 Cow. 323. 140, 551. THE BOTTOM PAGES.] Eeynolds v. Williams, 1 Tex. Eepts. 311. 631. Eeysen v. Eoate, 92 Wis. 543, 66 N. W. 599. 83. Ehoda V. Alameda County, 58 Cal. 357, 8 Pac. C. Law J. 137. 639. Eice V. Adams, 4 Barring. 332. 537. Eice V. Dewey, 54 Barb. 455. 407. Eice T. Looney, 81 111. App. 537. 602. Eich V. Donovan, 81 Mo. App. 184. 66. Eich V. Zeilsdorff, 22 Wis. 544. 375. Eichards v. Gilbert, 116 Ga. 382, 42 S. B. 715. 399, 470, 483. Eichards v. Knight, 78 la. 69, 42 N. W. 584, 4 L. E. A. 453. 350. Eichards v. Morey, 133 Cal. 437, 65 Pac. 886. 87, 620. Eichards v. Wapello County, 48 la. 507. 563. Eiehardsou v. Ardley, 38 L. J. Ch, 508. 602, 605, 606, 608, 638. Eichardson v. Borden, 42 Miss. 71, 2 Am. Eep. 595. 444. Eichardson v. Copeland, 6 Gray 536, 66 Am. Dec. 423. 420, 647. Eichardson v. Koch, 81 Mo. 264. 427. Eichardson v. Eanney, 2 TJ. C. C. C. P. 460. 146. Eichardson v. York, 14 Me. 74. 618. Eichmond v. Freemans Nat. Bk., 86 App. Div. 152, 83 N. Y. Supp. 832. 29, 425, 440. Eichmond v. State, 5 Ind. 334. 397, 473. Eichmond & D. E. R. Co. v. Ala- mance, 84 N. Car. 504. 558, Eiehmyer v. Morss, 3 Keys 349, 4 Abb. Ct. App. Dec. 55, 5 Abb. Pr. N. S. 44, 37 How. Pr. 388. 86, 393. Eichtmyer v. Morss, 3 Keyes 349, 4 Abb. Ct. App. Dee. 55, 5 Abb. Pr. N. S. 44, 37 How. Pr. 388. 86, 393. Ixxxiv TABLE OF CASES. [BBFERENCES ABE TO Bicker v. American L. & T. Co., 140 Mass. 346, 5 N. B. 284. 566. Eicketts v. Dorrel, 55 Ind. 470. 620. Eidgeway Stove Co. v. Way, 141 Mass. 557, 6 N- E. 714, 25 Am. Law Reg. 660, 5 East 307, 2 N. Eng. 363. 32, 389, 486, 487. Eiewe v. McCormick, 11 Neb. 261, 9 N. W. 88. 67, 626. Eigg V. Lonsdale, 1 H. & N. 923, 11 Exch. 654. 328. Eiley v. Boston Wat. P. Co., 11 Cush. 11. 64, 642, 656. Eing V. BiiUngs, 51 111. 475. 341, 650. Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36. 33, 429, 430. Bipley v. Page, 12 Vt. 353. 53, 454, 516. Eitchie v. Kansas, N. & D. Ey. Co., 55 Kan. 36, 39 Pac. 718. 89. Eitcliie V. McAllister, 14 Pa. Co. 267. 1, 25, 30, 538. Eitchmyer v. Morss, 3 Keyes 349, 4 Abb. Ct. App. Dee. 55, 5 Abb. Pr. N. S. 44, 37 How. Pr. 388. 86, 393. Eitter v. Cost, 99 Ind. 80. 424. Bobbins v. Parwell, 193 Pa. St. 37, 44 Atl. 260. 373, 375. Bobbins v. Oldham, 1 Duvall 28. 372. Bobbins v. Sackett, 23 Kan. 301. 643. Bobens v. Barrett, 66 Hun 189, 21 N. Y. Supp. 124. 331. Boberts v. Barker, 1 Cr. & M. 808, 3 Tyrwh. 945. 184. Boberts v. Dauphin Dep. Bk., 19 Pa. St. 71. 387, 406, 411, 595, 624. Boberts v. Kain, 6 Eobt. 354. 203. Bobertson v. Corsett, 39 Mich. 777. 109, 390, 400, 440. Bobertson v. Meadofs, 73 Ind. 43. 607. Bobertson v. Phillips, 3 G. Greene 220. 434. THE BOTTOM PAGES.] Bobinson v. Clapp, 65 Conn. 365, 32 Atl. 939, 67 Conn. 538, 35 Atl. 504. lOL Bobinson v. Cook, 6 Ont. 590. 393, 466, 472, 610. Bobinson v. Ezzell, 72 N. Car. 231. 370. Bobinson v. Fee, 42 XT. C. Q. B. 448. 346. Bobinson v. Learoyd, 7 M. & W. 48. 12, 13, 583. Robinson v. Litton, 3 Atk. 209. 608, 611. Bobinson v. Mauldin, 11 Ala. 977. 365. Robinson v. Preswiek, 3 Edw. Oh. 246. 378, 609, 614. Bobinson v. Bussell, 24 Cal. 467. 594, 602, 609, 611. Bobinson v. Wright, 9 D. C. 54. 19, 192. Roby V. University, 36 Vt. 564. 397, 425. Roddy y. Brick, 42 N. J. Eq. 218, 6 Atl. 807, 4 Cent. 850. 29, 54, 388, 390, 398, 408, 434, 436, 438, 439. Eodwell V. Phillips, 9 M. & W. 501. 375. Roffey V. Henderson, 17 Q. B. 574, 16 Jur. 84, 21 L. J. Q. B. 49. 205, 222, 647, 649. Rogers v. Brokaw, 25 N. J. Eq. 496. 28, 31, 55, 56, 435, 442, 445. Rogers v. Cox, 96 Ind. 157. 66, 214, 514. Rogers v. Crow, 40 Mo. 96, 93 Am. Dec. 299. 28, 38, 277, 399, 439, 448, 450. Rogers v. Elliott, 59 N. Ham. 201, 47 Am. R. 192. 334, 542. Rogers v. GiUnger, 30 Pa. St. 185, 72 Am. Dee. 694. 4, 62, 64, 70, 458. Rogers v. Kerr, 42 Ark. 100. 626. TABLE OF CASES. IXXXT [BEFEBENCES ABffl TO Kogers v. Ontario Bk., 21 Ont. 416. 407, 538. Bogers v. Prattville Mfg. Co., 81 Ala. 483, 1 So. 643, 60 Am. Rep. 171. 28. Kogers v. Randall, 29 Mich. 41. 88. Bogers v. Smith, 4 Pa. St. 93. 397, 473. Rogers v. Snow, 118 Mass. 118. 75. Rogers v. Woodbury, 15 Pick. 156. 103, 638. BoUeston v. New, 4 Kay & J. 640. 533. Eooney v. Crary, 8 111. App. 329. 230, 260. Eooney v. Stearns, 17 N. Y. Wkly. Dig. 322. 144, 187. Eoops V. Barker, 4 Pick. 239. 454. Roper Lumb. Co. v. Wallace, 93 N. Car. 22. 601. Rose V. Baltimore, 51 Md. 256. 326. Rose V. Hays. 591. Rose V. Hope, 22 U. C. C. P. 482. 66, 486. Rosenau v. Syring, 25 Ore. 386, 35 Pac. 844. 140, 649. Eoseville Min. Co. v. Iowa Gulch Co., 15 Colo. 29, 24 Pac. 920, 22 Am. St. Rep. 373. 28, 94, 538. Ross V. Campbell, 9 Colo. App. 38, 47 Pac. 465. 143, 260. Ross V. Zuntz, 36 La. Ann. 888. 221. Ross's App., 9 Pa. St. 491. 384, 513. Rotan G. Co. v. Dowlin, 77 S. W. 430. 30, 92, 394. Roth V. ColUns, 109 la. 501, 80 N. W. 543. 137, 141, 142, 145. Rothe V. Bellingrath, 71 Ala. 55. 107. Rounsaville v. Hazen, 39 Kan. 610, 18 Pac. 689. 424. Rountree v. Britt, 94 N. Car. 104. 367. Rowand v. Anderson, 33 Kan. 264, 6 Pac. 255, 52 Am. Rep. 529. 103, 486. THE BOTTOM PAGES.] Eowell V. Klein, 44 Ind. 290, 15 Am. E. 285. 360, 361, 628. Rowland v. Morgan, 2 Phill. Ch. 764, 6 Hare 463. 322. Rowland v. Sworta, 17 N. Y. Supp. 399, 43 N. Y. St. R. 951. 119. Rowland v. West, 62 Hun 583, 17 N. Y. Supp. 330. 33, 421, 489. Rowls V. Cells, Cowp. 453. 567. Eowney's Case, 2 Vern. 323, Eq. Ca. Ab. 69. 352. Roxburghe v. Roberton, 2 Bligh 156. 166. Boyce v. Latshaw, 15 Colo. App. 420, 62 Pac. 627. 10, 19, 36, 109, 136, 164, 219, 260, 434, 482. Boyaton v. Eccleston, Cro. Jac. 654. 659. Euekman v. Cutwater, 28 N. J. L. 581. 179, 181, 184, 460. Eudd V. Anderson, 12 Ky. L. E. 489, 14 S. W. 340. 143. Rudd V. Littell, 20 Ky. L. R. 158, 45 S. W. 451, 46 S. W. 3. 524. Rudge V. Winnall, 12 Beav. 357. 350, 351. Euffey V. Henderson, 17 Q. B. 574, 16 Jur. 84, 21 L. J. Q. B. 49. 222, 647, 649. Rufford V. Bishop, 5 Buss. 346, 7 L. J.Ch. 108. 456, 504, 509, 512. Buggies v. First Nat. Bk., 43 Mich. 192, 5 N. W. 257. 346. Rush County v. Stubbs, 25 Kan. 322. 104, 105, 107, 622. Russell V. Grant, 122 Mo. 161, 26 S. W. 958. 408. Russell V. Moore, 8 L. E. Ire. 318. 67, 359. Russell V. Myers, 32 Mich. 522. 376. Eussell V. New Haven, 51 Conn. 259 558, 561. Russell V. Richards, 10 Me. 429, 11 Me. 371, 25 Am. Dec. 254. 386 483, 650. Lxxxvi TABLE OF CASES. [HErEEENCES ABE TO THE BOTTOM PAGES.] Bussell V. Stevens, 70 Miss. 685, 12 So. 830. 367. Eutgers v. Hunter, 6 John. Ch. 215. 532. Eyall V. Eolle, 1 Atk. 165, 1 Ves. Sr. 348. 399, 504, 507, 512. Eyder v. Faxon, 171 Mass. 206, 50 N. E. 631, 68 Am. St. Eep. 417. 136, 219, 221. Sabin v. Harkness, 4 N. Ham. 415. 324. Sachs V. Henderson [1902], 1 K. B. 612, 71 L. J. K. B. 392, 86 L. T. E. 437, 50 W. E. 418. 404. Sackett v. Sackett, 8 Pick. 309. 591. SafEord v. Annis, 7 Me. 168. 376. Sagar v. Eekert, 3 111. App. 412. 153, 202, 204, 214, 540. Sainsbnry v. Matthews, 4 M. & W. 343. 370, 371. Saint V. Pilley, L. E. 10 Exeh. 137. 208. St. Botolph, Aldersgate Without v. Parishioners [1900], P. 69. 11. Saint Catherines L. Co., Ee, 30 Can. L. J. 205. 560. Saint Croix W. Co. v. Milltown, 31 N. B. 452. 560. Saint John v. Sears, 28 N. B. 1, 18 Can. 702. 533. Saint John v. Swain, 14 N. Y. Supp. 743. 346. Saint Johnsbury & L. C. E. E. Co. v. WiUard, 61 Tt. 134, 17 Atl. 38. 89, 410. St. Joseph Co. V. Wilson, 133 Ind. 465, 33 N. B. 113. 12, 69, 502. Saint L., K. & S. W. E. E. Co. v. Nyee, 61 Kan. 394, 59 Pae. 1040, 48 L. E. A. 241. 89. Saint Louis E. Co. v. Carroll, 72 Mo. App. 315. 6, 32, 36, 425, 428. Salem Nat. Bk. v. White, 159 111. 136, 42 N. E. 312. 410. Salimonie M. Co. v. Wagner, 2 Ind. App. 81, 28 N. E. 158. 387, 369. Sallade v. James, 6 Pa. St. 144. 342. Salley v. Eobinson, 96 Me. 474, 52 Atl. 930, 59 L. E. A. 279, 90 Am. St. Eep. 410. 113, 214. Salmon v. Clagett, 3 Bland. Ch. 180. 610. Salmon v. Fewell, 17 Mo. App. 118. 346, 369. Salmon v. Watson, 4 Moore 73. 663. Salter v. Sample, 71 111. 430. 32, 55, 621. Salt Lake County v. Board of Equal- ization, 18 Utah 172, 55 Pac. 378. 50, 566. Salt L. H. Co. v. Chainman M. Co., 128 Fed. 509. 426. Sample v. Broadwell, 87 111. 617. 624. Sampson v. Camperdown Mills, 64 Fed. 939. 13, 122, 149, 200, 207, 434. Samson v. Eose, 65 N. T. 411. 360, 363. San Antonio B. Assn. v. Arctic M. Co., 81 Tex. 99, 16 S. W. 797. 480. Sanborn v. Hoyt, 24 Me. 118. 66, 398. Sanders v. Davis, 15 Q. B. D. 218, 54 L. J. Q. B. 576, 38 Eng. Eepts. 97, 33 W. E. 655. 413. Sanders v. Ellington, 77 N. Car. 255. 353. Sanders v. Wilson, 34 Vt. 318. 422. Sands v. PfeifCer, 10 Cal. 258. 378, 387, 406, 618, 619. Sanford v. Eastabutchie L. Co., 36 So. 10. 376. San Francisco v. McGinn, 67 Cal. 110, 7 Pac. 187. 558. San Francisco & N. P. E. E. Co. v. Taylor, 86 Cal. 246, 24 Pac. 1027. 89. San Francisco Brew. v. Schurtz, 104 Cal. 420, 38 Pac. 92. 122, 403. Sangamon &c. E. E. Co. v. Morgan, 14 111. 163, 56 Am. Dec. 497. 48, 50, 566. TABLE OF CASES. Ixxxvii [KEFEBBNCES ARE TO Sanitary D. of Chi. v. Cook, 169 111. 184, 48 N. E. 461, 39 L. E. A. 369, 61 Am. St. Eep. 161, 67 111. App. 286. 255, 520. Sattler v. Opperman, 30 Pitts. Leg. J. 205. 217, 649. Saunders v. Stallings, 5 Heisk. 65. 109. Sawyer v. Long, 86 Me. 541, 30 Atl. 111. 8, 13, 95. Sawyer v. Middleborough Co., 13 Ky. L. E. 550, 17 S. W. 444. 618. Sawyer v. Twiss, 26 N. Ham. 348. 179, 180, 181, 454. Sayles v. National W. Co., 16 N. Y. Supp. 555, 41 N. Y. St. R. 856. 104, 452. Scales V. Wiley, 68 Vt. 39, 33 Atl. 771. 515. Scanland v. Musgrove, 91 111. App. 184. 641. Scannell v. Beauvais, 38 La. A. 217. 427. Scannell v. Hub. Brew. Co., 178 Mass. 282, 59 N. E. 628. 427. Scanuevin v. Consolidated W. Co., 55 Atl. 754. 429. Scarth, Ex parte, 9 L. J. N. S. B. 35, 1 Mont. Dea. & DeG. 240. 413, 481, 504. Scarth v. Ontario P. Co., 24 Ont. 446. 211, 421, 622. Sehaefer-Meyer B. Co. v. Meyer, 19 Ky. L. E. 411, 40 8. W. 685. 154, 155. Schalk V. Kingsley, 42 N. J. L. 32. 73. Schamberger v. State, 68 Ala. 543. 671. Schaper v. Bibb, 71 Md. 145, 17 Atl. 935. 28, 428. Scheifele v. Schmitz, 42 N. J. Eq. 700, 11 Atl. 257, 1 Atl. 698, 1 Cent. 676. 388, 389, 393, 433, 436, 543. Schellenberg v. Detroit H. Co., 130 Mich. 439, 90 N. W. 47, 57 L. K. THE BOTTOM PAGES.] A. 632, 97 Am. St. E. 489. 70, 85, 104. Schenek v. Uber, 81 Pa. St. 31. 429. Schergens v. Wetzel, 12 Mo. App. 596. 641. Schermerhorn v. Buell, 4 Den. 422. 631, 633. Sehimpf v. Ehodewald, 62 Neb. 105, 86 N. W. 908. 284, 474. Schlemmer v. North, 32 Mo. 206. 193, 195, 196. Schmaltz v. York Mfg. Co., 204 Pa. St. 1, 53 Atl. 522, 59 L. E. A. 907. 393, 486, 487. Schmidt v. Vogt, 8 Ore. 344. 435. Schmidt v. Williams, 72 la. 317, 33 N. W. 693. 360. Schneider v. Schneider, 6 Ohio Dec. 106, 4 Ohio N. P. 144. 29, 60. Schoelkopf v. Coatsworth, 166 N. Y. 77, 59 N. E. 710, 55 App. Div. 331, 66 N. Y. Supp. 979. 533. Schofield V. Stout, 59 Ga. 537. 426. School D. V. Milligan, 88 Pa. St. 96. 513. Schoonover v. Bright, 24 W. Va. 698. 602. Schoonover v. Irwin, 58 Ind. 287. 214. Schreiber v. Chicago & E. E. E. Co., 115 111. 340, 3 N. B. 427. 481. Schreiber v. Malcolm, 8 Gr. Ch. 433. 30, 434, 441. Schreyer v. Jordan, 58 N. Y. Supp. 206, 27 Misc. 643. 33, 452. Schroeder v. DeGraff, 28 Minn. 299, 9 N. W. 857. 91. Schuchardt v. Mayor of N. Y., 53 N. Y. 202. 61, 66, 380. Schulenberg v. Harriman, 88 IT. S. 44. 70. Schulenberg v. Hayden, 146 Mo. 583, 48 S. W. 472. 408. Schulenberg v. Prairie Inst., 65 Mo. 295. Ixxxviii TABLE OP CASES. [REFERENCES ARE TO Schumacher v. Edward P. Allis Co., 70 111. App. 556. 422. Sehumpert, Be, 8 Nat. Bank Reg. 415. 369. Schweinber v. Great W. E. Co., 9 N. Dak. 113, 81 N. W. 35. 366. Scobell V. Block, 82 Hun 223, 31 N. Y. Supp. 975. 29, 36, 434. Scoggin V. Slater, 22 Ala. 687. 514, 515. Scolley V. Pollock, 65 Ga. 339. 365. Scorell V. Boxall, 1 YT & J. 396. 374. Scott V. Haverstraw B. Co., 16 N. Y. Supp. 670, 135 N. Y. 141, 31 N. E. 1102. 243, 666. Scott V. Legg, 46 L. J. M. C. 267, 46 L. J. M. C. 117. 11. Scott V. Russell, 72 Ga. 35. 365. Scott V. Webster, 50 Wis. 53. 610. Scott V. Wharton, 2 Hen. & Mun. 25. 612. Scottish A. Co. V. Sexton, 26 Ont. 77. 71, 389, 619, 620. Scriven v. Moote, 36 Mich. 64. 344. Scudder v. Anderson, 54 Mich. 122, 19 N. W. 775. 30, 35, 70, 437, 646. Seale v. Hayne, 9 L. T. N. S. 571, 12 W. R. 239, 9 Jur. N. S. — . 324. Sear! v. School D., 133 U. S. 553, 10 S. Ct. 374. 89. Searle v. Sawyer, 127 Mass. 491. 643. Sears v. Saint John, 18 Can. 702, 28 N. B. 1, N. B. Eq. Cas. 555. 533. Seatoff V. Anderson, 28 Wis. 212. 72, 382. Seattle & M. R. R. Co. v. Corbett, 22 Wash. 189, 60 Pac. 127. 90. Second Nat. Bk. v. Hatch, 24 Wash. 421, 64 Pac. 727. 72, 425. Second Nat. Bk. v. 0. E. Merrill Co., 69 Wis. 501, 34 N. W. 514. 257, 259. Security Co. v. Security Co. of Potts- town, 13 Montg. Co. 126. 25. THE BOTTOM PAGES.] Security Loan Co. v. Williamette Co., 99 Cal. 636, 34 Pac. 321. 19, 144, 152, 262, 481, 482. Security Tr. Co. v. Temple Co., 58 Atl. 865. 48, 388, 396, 437, 448. Seedhouse v. Broward, 34 Pla. 509, 16 So. 425. 57, 60, 406, 516. Seeger v. Pettit, 77 Pa. St. 437, 18 Am. Rep. 452, 1 Wkly. Notes Cas. 226, 11 Alb. L. J. 151. 25, 31, 36, 56, 136, 141, 143, 154, 185. Seiberling v. Miller, 106 111. App. 190, 207 III. 443, 69 N. E. 800. 262, 383, 387, 390, 391, 396, 397, 538. Seibel v. Bath, 5 Wyo. 409, 40 Pac. 756. 482. Seibel v. Siemon, 72 Mo. 526, 5 Mo. App. 303, 52 Mo. 368. 617, 657. Seidel v. Cornwell, 166 Mo. 51, 65 S. W. 971. 622, 651. Seitzinger v. Marsden, 2 Penny- packer 463, 39 Leg. Intel. 431. 535, 546. Senter v. Mitchell, 16 Fed. 206. 368. Seton-Smith, Be [1902], 1 Ch. 717, 71 L. J. Ch. 386, 86 L; T. R. 322, 50 W. B. 237. 477. Sever v. Lyons, 170 111. 395, 48 N. E. 926. 539. Sewall V. Duplessis, 2 Rob. 66. 194. Sewell V. Ahgerstein, 18 L. T. N. S. 300. 448. Sexton V. Breese, 135 N. Y. 387, 32 N. E. 133, 48 N. Y. St. B. 525, 57 Hun 1, 10 N. Y. Supp. 510, 32 N. Y. St. R. 262. 348, 363, 366. Seymour v. Cushway, 100 Wis. 580, 76 N. W. 769. 375. Seymour v. Watson, 5 Blackf. 555, 36 Am. Dec. 556. 38, 92, 454. Shaffer v. Stevens, 143 Ind. 295, 42 N. E. 620. 355. Shahan v. Herzberg, 73 Ala. 59. 359. Shakspeare v. Ware, 38 La. A. 570. 426. TABLE OF CASES. Ixxxix [EBFEEENCES ABE TO Shannon v. Gore I. Co., 2 U. G. App. 396. 463. Shannon v. Jones, 12 Ired. 206. 364. Shapira v. Barney, 30 Minn. 59, 14 N. "W. 270, 22 Am. Law Eeg. 538. 143, 649. Sharp V. Kinsman, 18 S. Car. 108. 353. Sharp V. Miffigan, 23 Beav. 419, 5 W. R. 336. 255. Shaw V. Bowman, 91 Pa. St. 414. 354, 360, 363, 366. Shaw V. Carboy, 13 Allen 462. 65. Shaw V. Lenke, 1 Daly 487. 447, 448. Shaw V. Shaw, 59 111. App. 264. 192. Sheen, Ex parte, 43 L. T. R. 638, 15 Co. Ct. & B. Ca. 39, 163, 44 L. T. R. 781, 22 Alb. L. J. 211. 143, 251, 259, 508. Sheen y. Rickie, 5 M. & W. 175, 7 Dowl. Pr. 335. 2, 4, 127, 653. Sheffield v. Griffin, 21 Kan. 417. . 91. Sheffield B. Soe. v. Harrison, 15 Q. B. D. 358, 54 L. J. Q. B. 15, 51 L. T. R. 649, 33 W. R. 144, 19 Rep. 192. 391. Sheffield United G. L. Co. v. Shef- field, 4 B. & S. 135, 9 Jur. N. S. 623. 569. Shelbyville W. Co. v. People, 140 111. 545, 30 N. E. 678. 560. Sheldon v. Cook, 11 Chi. Leg. News 76. 20, 28, 437. Sheldon v. Edwards, 35 N. T. 279. 107, 115, 420, 483. Sheldon v. Wickham, 50 N. T. Supp. 314. 493. Shell V. Haywood, 16 Pa. St. 523. 9, 111, 115. Shellar v. Shivers, 171 Pa. St. 569, 33 Atl. 95. 140, 161, 224. Shelton v. Meklin, 32 Gratt. 727. 399, 440, 463, 482, 486. Shelton v. Willis, 23 Tex. Civ. App. 547, 58 S. W. 176. 103, 382. Shepard v. Blossom, 66 Minn. 421, THE BOTTOM PAGES.] 69 N. W. 221, 61 Am. St. R. 431. 21, 436, 440. Shepard v. Pettit, 30 Minn. 119, 14 N. W. 511. 642. Shepard v. Philbrick, 2 Den. 174. 347. Shepard v. Spaulding, 4 Met. 416. 194, 207, 255. Sherboneau v. Beaver L Co., 33 U. C. Q. B. 1, 30 U. C. Q. B. 472. 520. Sherbrooke G. Co. v. Sherbrooke, 15 Leg. News 22. 559. Sherred v. Cisco, 6 N. Y. Super. 480. 396. Sherman v. Willett, 42 N. T. 150. 347, 348. Sherman v. Williams, 113 Mass. 481. 397. Sherriok v. Cotter, 28 Wash. 25, 68 Pae. 172, 92 Am. St. R. 821. 145, 434, 481. Sherry v. Pieken, 10 Ind. 375. 370,, 371. Shields v. Delo, 145 Pa. St. 393, 22 Atl. 701. 214, 393. Shine v. Heimburger, 60 Mo. App. 174. 426. Shinner v. Harman, 3 Ir. C. L. 243. 15, 177. Shirk V. Board of Commr's, 106 Ind. 573, 7 N. E. 251. 113, 402. Shockey v. Johntz, 2 Kan. App. 483, 43 Pae. 993. 346. Shoemaker v. Simpson, 16 Kan. 43, 3 Cent. L. J. 132. ~ 28, 31, 32, 34, 84. Shofner v. Shofner, 37 Tenn. 94. 350. Shows V. Brantley, 127 Ala. 352, 28 So. 716. 368. Shuart v. Taylor, 7 How. Pr. 251. 367. Shubrick v. Guerard, 2 Desaus. Eq. 616. 603. Shuttleworth v. Hernaman, 26 L..J. xc TABLE or CASES. [EEFEItENCES ARE TO B. 61, 3 Jur. N. S. 1313, 1 DeG. & J. 322. 507. Siefert v. Campbell, 24 Ky. L. E. 1050, 70 S. W. 630. 344. Siemers v. Hunt, 28 Tex. Civ. App. 44, 65, S. W. 62, 66 S. W. 115. 396. Sievers v. Brown, 34 Ore. 454, 56 Pae. 170, 45 L. B. A. 642. 344. Sigur V. Lloyd, 1 La. Ann. 421. 194. Siler V. Globe Glass Co., 21 Ohio C. C. 284, 11 Ohio Circ. Dec. 784. 33, 140, 157, 161. Silliman v. Whitmer, 11 Pa. Super. 243, 196 Pa. St. 363, 46 Atl. 489. 33, 36, 57, 166, 519. Silva V. Barr, 141 Cal. 599, 75 Pac. 162. 359. Silverton v. Coe M. Co., 80 Cal. 510. 426. Simanek r. Nemetz, 97 N. W. 508. 482. Simmons v. Carrier, 60 Mo. 581. 426. Simons v. Pierce, 16 0. St. 215. 478. Simonton v. Cornelius, 98 N. Car. 433, 4 S. E. 38. 332. Simpkins v. Rogers, 15 111. 397. 99, 358. Simpson v. Ferguson, 112 Cal. 180, 40 Pae. 104, 44 Pac. 484, 53 Am. St. Eep. 201. 366, 502. Simpson v. Hartopp, Willes 515. 550. Simpson v. Masterson, 31 S. W. 419. 408. Simpson B. P. Co. v. Wormley, 61 111. App. 460. 486, 487. Sims V. Jones, 54 Neb. 769, 75 N. W. 150, 69 Am. St. R. 749. 364. Sims V. Kelsay, 75 Mo. 68. 523. Sims V. State, 136 Ind. 358, 36 N. E. 278. 677. Sinker v. Comparet, 62 Tex. 470. 440, 486. Sisson V. Hubbard, 75 N. Y. 542, 10 Hun. 420. 401. THE BOTTOM PAGES.] Skidnes v. Huson, Noy 125. 634, 655. Skillin V. Moore, 79 Me. 554, 11 Atl. 603. 381. Skilton V. Harrel, 5 Kan. App. 753, 47 Pac. 177. 346. Skinner v. Bowen, 13 Vict. 481. 396. Skinner v. Port W., T. H. & S. W. E. E. Co., 99 Fed. 465. 89, 415. Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645. 100. Slack V. Gay, 22 la. A. 387. 481. Slack V. Gray, 22 La. Ann. 387. 78. Slanning v. Style, 3 P. Wms. 334. 476. Sleddon v. Cruikshank, 16 M. & W. 72. 663, 665. Sleeper v. Emery, 59 N. Ham. 374. 119. Slingerland v. International C. Co., 43 App. Div. 215, 60 N. Y. Supp. 12. 83. Slocum V. Caldwell, 12 Ky. L. E. 514; 13 S. W., 1069. 432. Sloeum V. Seymour, 36 IST. J. L. 138. 374. Small V. National P. Bk., [1894] 1 Ch. 686, 63 L. J. Ch. 270, 70 L. T. E. 492, 42 W. R. 378, S. R. 168. 493. Smart v. Hart, 75 Wis. 471, 44 N. W. 514. 11. Smith, Ee, 119 Fed. 1004. 104, 107. Smith V. Altick, 24 O. St. 369. 381, 595, 616. Smith V. Barham, 2 Dev. Eq. 423. 350, 351, 357. Smith V. Benson, 1 Hill 176. 102, 103, 416, 650. Smith V. Blake, 96 Mich. 542. 26. Smith V. Bryan, 5 Md. 141. 371, 373. Smith V. Carroll, 4 G. Greene 146. 38. Smith V. Champney, 50 lo. 174. 366, 372. Smith V. Colby, 67 Me. 169. 646. TABLE OF CASES. XCI [EEFEKBNCBS ABE TO Smith V. Commonwealth, 77 Ky. 31, 29 Am. Bep. 402. 309, 670. Smith V. Coolej, 5 Daly 401. 525, 532. Smith V. Cunningham, 67 Cal. 262, 7 Pac. 679. 626. Smith V. Detroit Min. Co., 97 N. W. 17. 9, 382. Smith V. Felt, 50 Barb. 612. 164, 200, 633. Smith V. FoUanshee, 13 Me. 273. 591. Smith V. Gilbert, 18 N. B. (2 Pug. & B.) 211. 533. Smith V. Goodwin, 2 Me. 173. 71, 406, 411, 630. Smith V. Hague, 25 Kan. 246. 342. Smith V. Heiskell, 1 Cranoh C. C. 99. 449. Smith V. Jenks, 1 Den. 580, 1 N. Y. 90. 120. Smith T. Johnson, 76 Pa. St. 191. 87. Smith V. Johnston, 1 Pa. 471, 3 Pa. 496. 340. Smith V. Leighton, 38 Kan. 544, 17 Pae. 52, 5 Am. St. Eep. 778. 374. Smith V. Maclure, 32 W. B. 459, 9 Cox Mag. 415. 447, 448, 449, 452, 453. Smith V. Martin, 4 Ky. L. B. 442. 396. Smith V. Mattingly, 96 Ky. 228, 16 Ky. L. E. 418, 28 S. W. 503. 592. Smith V. Mayor, 68 N. Y. 552. 559. Smith V. Moore, 26 111. 392. 31, 59, 62. Smith V. Odom, 63 6a. 499. 32, 36, 392, 434, 516. Smith V. Park, 31 Minn. 70, 16 N. W. 490. 144, 224. Smith V. People, 99 111. 445. 658. Smith V. Peters, L. E. 20 Eq. 511. 529. Smith V. Price, 39 111. 28, 89 Am. Dec. 284. 337, 340, 612. THE BOTTOM PAGES.] Smith V. Eender, 27 L. J. Ex. 83. 153, 167. Smith V. Saint P. Ch., 107 N. Y. 610, 14 N. E. 825. 533. Smith V. Sprague, 119 Mich. 148, 77 N. W. 689, 75 Am. St. Bep. 384. 353, 359, 520. Smith V. Stanford, 62 Ind. 392. 621. Smith V. Surnam, 9 B. & C. 561. 373. Smith V. Tritt, 18 N. C. 241. 364. Smith V. Waggoner, 50 Wis. 155, 6 N. W. 568. 66, 521. Smith V. Whitney, 147 Mass. 479, 18 N. E. 229. 140, 141, 248. Smitherman v. State, 63 Ala. 24. 668. Smith Paper Co. v. Servin, 130 Mass. 511. 29, 38, 381, 407, 486. Smithwiek v. Ellison, 2 Ired. L. 326. 181, 182. Smock V. Smock, 37 Mo. App. 56. 370. Smusch V. Kohn, 49 N. Y. Supp. 176, 22 Misc. 344. 9, 141, 142, 143, 202, 247, 256, 649, 650. Smyth V. Stoddard, 203 111. 424, 67 N. E. 980, 96 Am. St. B. 314, 105 111. App. 510. 19, 170, 255, 393, 481, 482, 486, 525, 533. Smyth V. Sturges, 108 N. Y. 495, 15 N. E. -544, 13 Abb. N. C. 75. 399, 660. Snedeker v. Warring, 12 N. Y. 170. 31, 37, 38, 50, 56, 277, 378, 406, 450, 456. Snodgrass v. Posey, 30 Tex. Civ. App. 584, 70 S. W. 984. . 382. Snow V. Perkins, 60 N. H. 493, 49 Am. Eep. 333. 183, 460, 652. Snowden v. Memphis Pk. A., 75 Tenn. 225. 229. Snyder v. Vaux, 2 Eawle 423. 618, 626. Soborne v. Babe, 67 111. 108. 541. xeii TABLE OF CASES. [RBFEKBNCES AKE TO Solomon v. Staiger, 65 N. J. L. 617, 48 Atl. 996. 69, 472. Sornberger v. Bergren, 20 Neb. 399, 30 N. W. 418. 361. Sosman v. Conlon, 57 Mo. App. 25. 36, 425. Southard v. Morris Canal, 1 N. J. Eq. 518. 604. South Balto. Co. v. Muhlbach, 69 Md. 395, 16 Atl. 117, 1 L. E. A. 507. 219. Southbridge Bk. t. Mason, 147 Mass. 500, 18 N. E. 406, 1 L. E. A. 350. 21, 27, 37, 399, 436. Southbridge Sav. Bk. v. Exeter Maeh. Wks., 127 Mass. 542. 30, 107, 388, 486. Southbridge Sav. Bk. v. Stevens Tool Co., 130 Mass. 547, 24 Atl. Law J. 123. 30, 395, 486. Southern S. Co. v. EoUa L. Co., 75 Mo. App. 622. 431. Southport V. Ormskirk Com., [1894] 1 Q. B. 196, 63 L. J. Q. B. 250, 69 L. T. E. 852, 42 W. E. 153, 9 E. 46, 58 J. P. 212, [1893] 2 Q. B. 468. 569. Southport B. Co. v. Thompson, 37 Ch. D. 64, 57 L. J. Ch. 114, 36 W. E. 113. 404, 406, 468. South Staf. W. V. Sharman, 65 L. J. Q. B. 460. 83. Sowden v. Craig, 26 la. 156, 96 Am. Deo. 125. 425, 478, 488. Sowerby v. Fryer, L. E. 8 Eq. 417. 613. Sowles T. Eaymer, 110 Mich. 189, 68 N. W. 121. 135, 392, 481. Sparks v. Bell, 91 Ky. 502, 13 Ky. L. E. 63, 16 S. W. 272. 523. Sparks v. Spieer, 1 Ld. Eaym. 738, Salk. 648. 86. Sparks v. Leavy, 19 Abb. Pr. 364, 1 Eobt. 530. 222, 629. Sparks v. State Bk., 7 Blackf. 469. 387. THE BOTTOM PAGES.] Sparrow v. Pond, 49 Minn. 412, 52 N. W. 36, 32 Am. St. Eep. 571. 334, 336, 338, 365, 541. Speers \r. Flack, 34 Mich. 101. 532. Speiden v. Parker, 46 N. J. Eq. 292, 19 Atl. 21. 29, 50, 388, 389, 390, 395. Speneer v. Commercial Co., 30 Wash. 520, 71 Pac. 53. 255. Spencer v. Lewis, 1 Houst. 223. 355. Spencer's Case, Winch. 51. 350, 351, 357. Spinney v. Barbe, 43 111. App. 585. 28, 447. Spooner v. Brewster, 2 C. & P. 34, 3 Bing. 136, 10 Moore 494. 324, 634. Sprague v. Lisbon, 30 Conn. 18. 565. Sprague Nat. Bk. v. Erie E. E. Co., 22 App. Div. 526, 48 N. Y. Supp. 65. 414. Springfield Co. v. Cole, 130 Mo. 1, 31 S. W. 922. 138, 157, 432. Sproule V. Hopkins, 4 Ky. L. E. 533. 373. Spruhen v. Stout, 52 Wis. 517, 9 N. W. 277. 54, 427. Spry V. Lumb. Co. v. C. H. Green, 76 Mich. 320, 43 N. W. 576. 639. Squier v. Mayer, Freem. Ch. 249, 2 Eq. Ca. Abr. 430. 196, 300, 301, 308, 309. Stack V. Eaton, 4 Ont. L. 335. 56, 61, 390, 395, 448. Stackpole v. Eastern E. E., 62 N. H. 493. 66, 68, 652. StafEord v. Adair, 57 Vt. 63. 106, 502. Stagg V. Piland, 31 Tex. Civ. App. 245, 71 S. W. 762. 64, 365. Staley v. Castleton, 33 L. J. M. C. 178, 5 B. & S. 505. 573, 577. Stall V. Wilbur, 77 N. Y. 158. 351. Stambaugh v. Yates, 2 Eawle 161. 340. Stamps V. Cooley, 91 N. C. 316. 228. TABLE OF CASES. XCUl [REFEBENCES ARE TO Stanbrough v. Cook. 83 la. 705, 49 N. W. 1010. 345. Standard Oil Co. v. Lane, 75 Wis. 636, 44 N. W. 644. 53, 427. Stansfield v. Hambergham, 10 Ves. 278. 606. Stansfield v. Mayor of Portsmouth, 4 C. B. N. S. 120, 27 L. J. N. S. C. P. 124, 4 Jur. N. S. 440. 212, 218, 242. Staples V. Emery, 7 Me. 201. 181. Stark V. Hight, 3 Pa. Super. 516. 217. Starks v. Eedfield, 52 Wis. 349, 9 N. W. 168. 610. State V. Anderson, 90 Wis. 550, 63 N. W. 746. 562. State V. Berry, 52 N. J. L. 308, 19 Atl. 665. 560. State V. Bonham, 18 Ind. 231. 546, 547. State V. Boysen, 30 Wash. 338, 70 Pac. 740. 677. State V. Brinkerhoff, 44 Mo. App. 169. 674. State V. Butler County, 10 Ohio Ciro. Dec. 118. 10. State V. Casteel, 51 Mo. App. 143. 366. State V. Cherry, 72 N. C. 123. 668, 670. State V. Crawford County, 17 Ohio C. C. 370. 10. State V. Davis, 22 La. A. 77. 667. State V. District Ct. of Eamsey Coun- ty, 31 Minn. 354, 17 N. W. 954. 563. State V. Doepke, 68 Mo. 208. 325. State V. Durant, 53 Mo. App. 493, 60 Mo. App. 390. 366, 372. State V. ElUott, 11 N. H. 540. 188, 189, 199, 453, 618. State V. Fowler, 88 Md. 601, 42 Atl. 201, 42 L. B. A. 849, 71 Am. St. E. 452. 542. State V. Foy, 82 N. C. 679. 668. THE BOTTOM PAGES.] State V. Gemmill, 1 Hous. 9. 541. State V. Goodnow, 80 Mo. 271. 63, 69, 424. State V. Graves, 74 N. C. 396. 634, 667. State V. Green, 106 La. 440, 30 So. 898. 670. State V. Gulf Ey. Co., 3 Bob. 513. 89. State V. Hall, 5 Harr. 492. 667. State V. Haney, 32 Kan. 428, 4 Pao. 831. 674. State V. Hannibal &c. E. E. Co., 135 Mo. 618, 37 S. W. 532. 397, 563, 565. State V. Hughes, 80 Miss. 609, 31 So. 963. 316. State V. Jones, 129 N. C. 508, 39 S. E. 795. 674. State V. King, 98 N. C. 648, 4 S. E. 44. 669. State V. Marshall, 4 Mo. App. 29. 4, 122, 544. State V. McCall, 4 Ala. 643. 677. State V. McCracken, 118 N. C. 1240, 24 S. E. 530. 674. State V. Mission Free School, 162 Mo. 332, 62 S. W. 998. 558. State V. Moore, 11 Ired. 70. 669. State V. Newkirk, 49 Mo. 84. 674, 675. State V. Northern &c. Ey. Co., 18 Md. 193. 609, 610, 611. State V. O'Neil Lumb. Co., 77 Mo. App. 538. 104, 480. State V. Parker, 34 Ark. 158. 669. State V. Pottmeyer, 33 Ind. 402. 83. State V. Prince, 42 La. A. 817, 8 So. 591. 669, 671. State V. Eed. E. Co., 69 Minn. 131, 72 N. W. 60. 557. State V. Eepp, 104 la. 305, 73 N. W. 829. 329. State V. Eising, 10 Nev. 97. 674. State V. Eoseman, 66 N. Q, 634. ^74, XCIV TABLE OF CASES. [BEFEEENCES ABE TO State V. SaUsberry, 49 Kan. 160, 30 Pae. 192. 99, 361, 671. State V. Severance, 55 Mo. 378. 566. State V. Stephenson, 2 Bail. 334. 668, 670. State V. Taylor, 27 N. J. L. 117, 72 Am. Dec. 347. 329, 668. State V. Thompson, 93 N. C. 537. 668. State V. Wharton, 115 Wis. 457, 91 N. W. 976. 560. State V. Whitener, 93 N. C. 590, 92 N. C. 798. 188, 674. State V. Williams, 32 Minn. 537, 21 N. W. 746. 365, 368. State V. Wilson, Coxe 439. 677. State Sav. Bk. v. Kercheval, 65 Mo. 682, 27 Am. Eep. 310. 19, 29, 55, 407, 411, 610. State Treas. v. Somerville •& E. E. E. Co., 28 N. J. L. 21. 50, 567. StaufEer v. Cincinnati, E. & M. E. E. Co., 70 N. E. 543. 380. Stead V. Gamble, 7 East. 325. 21. Stead V. Knowles, 79 Ala. 446. 399. Stearns v. Gafford, 56 Ala. 544. 868, 371. Stearns v. Hubbard, 8 Me. 320. 386. Steams v. Washburn, 7 Gray 188. 374, 663, 664. Stebbins v. Culbreth, 86 Md. 656, 39 Atl. 321. 30, 428. Steed V. Knowles, 79 Ala. 446. 62, 71. Steele v. Farber, 37 Mo. 71. 340. Steele v. Osboldstone, 16 Austr. Law T. 152. 12. Steers v. Daniel, 4 Fed. 587. 122, 545, 548. Steger v. Arctic E. Co., 89 Tenn. 453, 14 S. W. 1087. 431. Stell T. Paschal, 41 Tex. 640. 36, 415. Stenberg v. Liennemann, 20 Mont. 457, 52 Pac. 84. 145, 432. Stephens, Ex parte, 7 Ch. D. 127^ 47 THE BOTTOM PAGES.] L. J. B. 22, 37 L. T. E. 613, 13 Co. Ct. & B. 285, 23 Eng. Eepts. 458, 26 W. E. 136, 5 Eep. 284. 207. Stephens v. Ely, 162 N. Y. 79, 56 N. E. 499, 14 App. Div. 202, 43 N. Y. Supp. 762. 220, 255. Stephens v. Tucker, 55 Ga. 543. 368. Sterling v. Baldwin, 42 Vt. 311. 65, 372, 374. Stettauer v. Hamlin, 97 111. 312. 7. Steuart v. Douglas, Brown Fixt. Ap- pend A. 277, 283, 448, 452. Stevens v. Barfoot, 13 TJ. C. App. 366. 86, 388, 472, 489, 521. Stevens v. Briggs, 5 Pick. 177. 82. Stevens v. Buffalo & N. Y. C. R. E. Co., 31 Barb. 590. 2, 9, 21, 50, 51, 541. Stevens v. Burnham, 62 Neb. 672, 87 N. W. 546. 195, 200. Stevens v. Hollingsworth, 74 111. 202. 539. Stevens v. Eose, 69 Mich. 259, 37 N. W. 205. 57, 266, 394, 591. Stevens Mfg. Co. v. Barfoot, 9 Ont. 692. 85, 521. Stevenson v. Bachrach, 170 111. 253, 48 N. E. 327. 394. Steward v. Lombe, 1 B. & B. 506, 4 Moore 281. 35, 36, 147, 512, 537, 546. Stewart v. Doughty, 9 John. 108. 357, 358, 363, 364. Stewart v. Earl of Bute, 3 Ves. 212, 11 Ves. 657. 476. Stewart v. Muuford, 91 111. 58. 207, 223, 518. Stewart v. Pier, 58 la. 15, 11 N. W. 711. 533. Stillman v. Flenniken, 58 la. 450, 10 N. W. 842, 43 Am. Eep. 120, 13 Eep. 462, 25 Alb. Law J. 417. 403. 444, 486. Stillman v. Hamer, 8 Miss. 424. 86, 91. TABLE OF CASES. xcv [KEFEEBNCES ABB TO Stimson v. Smith, 1 N. W. Ter. 109, 1 Terr. L. R.183. 621, 624. Stimson M. Co. v. Los Angeles T. Co., 141 Cal. 30, 74 Pae. 357. 430. Stinchfield v. Milliken, 71 Me. 567. 393. Stirman v. Cravens, 83 Ark. 376. 112, 398. StockweU V. Campbell, 39 Conn. 362, 12 Am.' Eep. 393. 21, 31, 426, 428. StockweU V. Marks, 17 Me. 455,- 35 Am. Dee. 266. 187, 198, 231, 649. StockweU V. Phelps, 34 N. Y. 363. 626, 628. Stokoe V. Upton, 40 Mich. 581, 29 Am. Eep. 560. 142, 201. Stomfil V. Hicks, Holt 414. 358. Stone V. Proctor, 2 D. Chip. 108. 459, 642. Stone V. Thaden, 10 N. Y. Supp. 236, 32 N. Y. St. E. 296. 397, 513. Stoner v. Hunsicker, 47 Pa. St. 514. 87. Storer v. Hunter, 3 B. & C. 368. 210, 509, 510, 531. Storm V. Mann, 4 John. Ct. 21. 603. Story V. Windsor, 2 Atk. 630. 614. Stout V. Sawyer, 37 Mich. 313. 426. Stout V. Stoppel, 30 Minn. 56, 14 N. W. 268, 22 Am. Law Eeg. 536. 104, 213, 651. Stoutfil's Case, 2 Mod. 77. 333. Straight v. Mahoney, 16 Pa. Super. 155. 136, 147. Strang" v. Pray, 89 Tex. 525, 35 S. W. 1054. 398, 425. Strathmore v. Bowes, 2 Bro. C. C. 88, 2 Dick. 673. 266, 606. Strauss v. Davy, 15 Leg. Int. 139, 3- Phila 137. Straw V. Straw, 70 Vt. 240, 30 Atl. 1095. 66, 647, 651. Strickland v. Parker, 54 Me. 263. 23, 27, 31, 37, 64, 402, 642. Strode v. Swim, 1 A. K. Marsh 366. 361. THE BOTTOM PAGES.] Strong V. Doyle, 110 Mass. 92. 514, 516. Strubbee v. Cincinnati Ey., 78 Ky. 481. 83, 618. Studley v. Ann Arbor Bk., 112 Mich. 181, 70 N. "W. 426. 57, 472. Stukeley v. Butler, Hob. 173. 334. Stultz v. Dickey, 5 Binn. 285. 354. Sturges V. Warren, 11 Vt. 433. 441. Sturgis v. Warren, 11 Vt. 433. 22, 543. Stuyvesant v. Davis, 9 Paige 427. 211. Styles V. Newport, 56 Atl. 662. 559. Succession of Bienveuu, 106 La. 595, 31 So. 193. 415. Sudbury 7. Jones, 8 Gush. 184. 86, 103, 111. Sugdeu V. Beasley, 9 111. App. 71. 346, 349. SuUins V. State, 53 Ala. 474. 350, 610. SuUivau V. Carberry, 67 Me. 531. 96, 213. Sullivan v. Davis, 29 Kan. 28. 634. Sullivan v. Jones, 14 S. C. 362. 104, 116, 522. Sullivan v. LaPayette County, 58 Miss. 790. 89. Sullivan v. Toole, 26 Hun 203. 72, 407. Summers v. Cook, 28 Gr. Ch. 179. 373. Summers v. Cooper, 4 Aust. L. T. 57. 213. Sumner v. Bromilow, 34 L. J. Q. B. 130, 11 Jur. N. S. 481. 12, 212, 218, 250. Sun A. Co. V. Taylor, 9 Man. 89. 389, 436, 441, 443, 472, 520, 521. Sunderland v. Nevrton, 3 Sim. 450. 236, 608. Sutton V. Moody, 1 Ld. Eaym. 250, Comyns. 34. 328. Sutton V. Sears, 10 Ind. 223. 219. xevi TABLE OF CASES. [BEFEKENCES ABE TO Swafford v. Spratt, 93 Mo. App. 631, 67 S. W. 701. 365, 366. Swain v. Bartlow, 62 Ind. 546. 351. Swan V. Gofe, 39 App. Div. 95, 56 N. Y. Supp. 690. 83. Swans, Case of the, 7 Co. 17b. 327, 328. Sweet V. Henry, 175 N. Y. 268, 67 N. E. 574, 66 App. Div. 383, 72 N. Y. Supp. 868. 394, 481, 482. Sweet V. Myers, 3 S. D. 324, 53 N. W. 187. 145, 198, 200. Sweetzer v. Jones^ 35 Vt. 317, 82 Am. Dee. 639. 22, 31, 387, 437, 438, 441. Swift, The, [1901] P. 168, 70 L. J. P. 47, 85 L. T. E. 346. 329. Swift V. Sheehy, 88 Fed. 924. 523, 533. Swift V. Thompson, 9 Conn. 63, 21 Am. Dec. 718. 22, 433, 441. Switzer v. Allen, 11 Mont. 160, 27 Pae. 408. 243, 531. Swoop V. Saint Martin, 110 La. 237, 34 So. 426. 486. Sword V. Low, 122 111. 487, 13 N. E. 826. 28, 61, 399, 478, 488. Sydney v. Australian Gaslight Co., 3 N. S. W. St. E. 66. 568, 577. Sydney v. Sydney Power Co., 3 N. S. W. St. E. 87. 568, 577. Sykes, Ex parte, 18 L. J. N. S. B. 16, 13 Jur. 486. 507. Syme v. Harvey, 24 Sc. Sess. Sa. 202. 164. Symonds v. Harris, 51 Me. 14, 81 Am. Dec. 553. 403, 443, 629. Tabor v. Eobinson, 36 Barb. 483. 381, 394, 632, 644. TafEe v. Wamiek, 3 Blackf. Ill, 23 Am. Dec. 383. 20, 435, 539, 543. Taft V. Stetson, 117 Mass. 471. 103, 104. Tagart, Ex parte, DeG. 531. 405. Talargoch M. Co. v. Saint Asaph THE BOTTOM PAGES.] Union, L. E. 3 Q. B. 478. 568, 582. Talbot V. Cruger, 81 Hun 504, 30 N. Y. Supp. 1011, 63 N. Y. St. E. 205, 151 N. Y. 117, 45 N. E. 364. 102, 255, 520. Talbot V. Hill, 68 111. 106. 339, 356, 360. Talbott V. Scott, 4 Kay & John. 96. 603. Talbot V. Whipple, 14 AUen 180. 146, 151, 152, 199, 207, 208, 209. Talley v. Alexander, 10 La. Ann. 627. 194. Tallman v. CofBn, 4 N. Y. 134. 532. Tamworth v. Ferrars, 6 Ves. 419. 266, 606. Tanjong Co. v. Commr's, 4 Kyshe 103, 2 Straits L. J. 54. 12. Tapley v. Smith, 18 Me. 12. 483. Tarabino v. Nicoli, 5 Colo. App. 545, 39 Pao. 362. 95. Tarbell v. Page, 155 Mass. 256, 29 N. E. 585. 411. Tate v. Blackburne, 48 Miss. 1. 31, 55, 56, 378, 444. Tate V. Field, 56 N. J. Eq. 35, 37 Atl. 440, 57 N. J. Eq. 53, 40 Atl. 206, 57 N. J. Eq. 632, 42 Atl. 742. 73, 407, 594, 616. Tayloe v. Bush, 75 Ala. 432. 339. Taylor v. Bond, Bush. Eq. 5. 350. Taylor v. Collins, 51 Wis. 123, 8 N. W. 22. 26, 33, 58, 382, 610. Taylor v. Maule, 2 Walker 539. 532. Taylor v. McConnell, 53 Mich. 587, 19 N. W. 196. 631. Taylor v. Morgan, 86 Ind. 295. 424. Taylor v. Newcomb, 123 Mich. 637, 82 N. W. 519. 183. Taylor v. Plunkett, 56 Atl. 384. 395, 436. Taylor v. Prendergast, 29 S. W. 87. 95. Taylor v. Townsend, 8 Mass. 416, 5 Am, Dec, 107. 194, 422, 631. TABLE OF CASES. xevii [EBrEEENCES AKE TO Taylor v. Watkins, 62 Ind. 511. 441. Taylor v. Wright, 51 App. Div. 97, 64 N. Y. Supp. 344. 631. Teaff V. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634, 1 Am. Law Eeg. 0. S. 723. 2, 6, 21, 26, 28, 60, 151, 165, 170, 302, 387, 406, 439, 441, 445, 462, 464, 543. Teal V. Auty, 2 B. & B. 99. 374. Tebb V. Hodge, L. E. 5 0. P. 73, 39 L. J. C. P. 56, 38 L. J. C. P. 217. 505 Temple Co. v. Penn. M. Ins. Co., 69 N. J. L. 36, 54 Atl. 295. 30, 395, 396, 440, 453. Templeman v. Biddle, 1 Harring. 522. 353. Tench v. Eothermel, 4 Luz. Leg. Eeg. E. 110. 11. Tennessee & C. E. E. Co. v. East Ala. Ey. Co., 75 Ala. 516. 660. Terhune v. Elberson, 3 N. J. L. 726. 339. Terrell v. Frazier, 79 Ind. 473. 374. Territory v. Delinquent Tax List, 3 Ariz. 117, 21 Pac. 768. 558. Terry v. Eobins, 13 Miss. 291. 77, 140. Texas & P. Ey. Co. v. Hays, 3 Tex. Ct. App. av., sec. 56. 90. Tharp v. Allen, 46 Mich. 389, 9 N. W. 443. 96, 394. Thatcher v. Humble, 67 Ind. 444. 603. Thayer v. Wright, 4 Den. 180. 86. Theurer v. Nautre, 23 La. A. 749. 399. Thielman v. Carr, 75 111. 385. 32, 428. Thomas v. Grout, 5 Bush. 37. 199, 205. Thomas v. Davis, 76 Mo. 72, 43 Am. E. 756, 15 Cent. Law J. 489. 29, 378, 388, 393, 462. Thomas v. Inglis, 7 Ont. 588. 417. THE BOTTOM PAGES.] Thomas v. Jennings, 66 L. J. Q. B. 5. 223. Thomas v. Morasco, 5 Pa. Dist. 133. 546. Thomas v. Noel, 81 Ind. 382. 342, 353. Thomas v. Wagner, 131 Mich. 601, 92 N. W. 106. 36, 147. Thompson, Ex parte, 8 Jur. 633, 13 L. J. Ch. 354. 506. Thompson v. Craigmyle, 4 B. Mon. 391. 364. Thompson v. Moiles, 46 Mich. 42, 8 N. W. 577. 641. Thompson v. Pettitt, 10 Q. B. 101, 11 Jur. 748, 16 L. J. Q. B. 163. 640. Thompson v. Eose, 8 Cowen 266. 533. Thompson v. Thompson, 6 Munf. 518. 357. Thompson v. Union Co., 110 Ala. 499, 18 So. 105. 348. Thompson v. Vinton, 121 Mass. 139. 390, 412, 413. Thompson v. White W. V. E. E. Co., 132 U. S. 68, 10 S. Ct. 29. 411. Thompson v. Wilhite, 81 111. 356. 366. Thompson Mfg. Co. v. Smith, 67 N. H. 409, 29 Atl. 405. 427. Thompson S. Co. v. Young, 90 Md. 278, 44 Atl. 1024. 142. Thompson v. Smith, 111 la. 718, 83 N. W. 789, 50 L. E. A. 718, 82 Am. St. Eep. 541. 28, 396, 403, 486. Thorn v. Sutherland, 123 N. Y. 236, 25 N. E. 362. 209, 221, 226, 649. Thornton v. Burch, 20 Geo. 791. 355. Thorpe v. Milligan, 5 W. E. 336, 23 Beav. 419. 255. Thrall v. Hill, 110 Mass. 328. 224. Thrash v. Bennett, 57 Ala. 156. 367. Thresher v. East L. W. W., 2 B. & C. 608, 4 D. & E. 62. 159, 238, 258, 259. xeviii TABLE or CASES. [EBFEEENCES AUG TO Thropp 's App., 70 Pa. St. 395. 210, 486, 544. Thurston v. Union Ins. Co., 17 Fed. 127, 28 Alb. Law J. 490. 8, 13, 379, 449. Thweat ^. Stamps, 67 Ala. 96. 85, 341, 435, 647, 651. Tibbetts v. Home, 65 N. H. 242, 23 Atl. 145, 15 L. E. A. 56, 23 Am. St. Eep. 31. 388, 392, 488. Tibbetts v. Moore, 23 Calif. 208. 418, 419. Ticknor v. McClelland, 84 111. 471. 366. Tide Water Pipe Line Co. v. Berry, 53 N. J. L. 212, 21 Atl. 490, 52 N. J. L. 308. 560. Tifft V. Thornton, 53 N. T. 377, 13 Am. Eep. 537. 30, 81, 35, 61, 103, 107, 414, 415, 418, 440, 485, 650. Tightmeyer v. Mongold, 20 Kan. 90. 662. Tilford V. Dotson, 21 Ky. L. E. 333, 51 S. W. 533. 66, 373. Tillman v. DeLaey, 80 Ala. 103. 21, 28, 35, 56, 60, 409. Tipton V. Martzell, 21 "Wash. 273, 57 Pac. 896, 75 Am. St. E. 838. 364. Tison V. Taniehill, 28 La. A. 793. 537. Titus V. Ginheimer, 27 111. 462. 541, 605, 606, 611. Titus V. Mabee, 25 111. 257. 20, 48, 53, 541, 605, 606, 611. Tobey v. Webster, 3 John. 468. 631. Tobias v. Francis, 3 Vt. 425, 23 Am. Dec. 217. 435, 441, 543. Todd V. Kirby, 4 Ky. L. E. 887. 530. Toledo, A. A. & G. T. E. E. Co. v. Dunlap, 47 Mich. 456, 11 N. W. 271. 90. ToUes V. Winton, 63 Conn. 440, 28 Atl. 542. 28, 387, 457. Tomlinsou v. Ayres, 117 Calif. 568, 49 Pae. 717. 479. THE BOTTOM PAGES.] Tomlinson v. Greenfield, 31 Ark. 558. 368. Tomlinson v. Thompson, 27 Kan. 70. 73. Tomlinson v. White, Baj-nes 93. 46. Toms V. Williams, 41 Mich. 552, 2 N. W. 814. 473. Topham v. Greenside Fire-Briek Co., 37 Ch. D. 281, 57 L. J. Ch. 583, 58 L. T. E. 274, 36 W. E. 464. 492. Toronto Hosp. v. Denham, 31 TJ. C. C. P. 203. 66. Toronto Ey. Co., Ee, 25 Ont. App. 135, 33 Can. L. J. 75. 562. Toronto St. Ey. Co. v. Fleming, 37 IT. C. Q. B. 116, 35 U. C. Q. B. 264. 562. Toronto T. Corp. v. White, 3 Ont. L. 519. 533. Torrey v. Burnett, 38 N. J. L. 457, 20 Am. Eep. 421. 140, 219, 223, 546, 592. Tottell V. Howell, Noy 54, 374. Tottenham v. Swansea O. Co., 52 L. T. E. 738. 399, 406. Towle V. Lovet, 6 Mass. 394. 315. Towne v. Bowers, 81 Mo. 491. 358, 363. Towne v. Fiske, 127 Mass. 125, 34 Am. Eep. 353. 30, 383, 448, 450, 537. Towner v. Ticknor, 112 111. 217. 96. Townsand v. Ford, 72 App. Div. 621, 76 N. Y. Supp. 501. 75. Townsend v. Jarman, [1900] 2 Ch. 698, 69 L. J. Ch. 823, 83 L. T. E. 866, 49 W. E. 158. 13. Townsend v. Payne, 42 La. Ann. 909, 8 So. 626. 64, 342. Townsend V. XTnderhill, 6 Pa. Co. 544, 19 Phila. 412. 139, 144. Township of Corwin v. Moorehead, 43 la. 466. 622. Towson V. Smith, 13 App. D. C. 48. 28, 55, 60, 394, 396, 403, 516. Traders' Bk. v. First Nat. Bk., 6 TABLE OP CASES. XCIX [BEFEBENCES ABE TO THE BOTTOM PAGES.] Kan. App. 400, 50 Pac. 1098. 32, 56. Trappes v. Harter, 3 Tyrwh. 603, 2 Cr. & M. 153, 3 L. J. N. S. Ex. 241. 69, 109, 123, 301, 302, 306, 311, 400, 413, 472, 473, 481, 507. Trask v. Little, 182 Mass. 8, 64 N. E. 206. 223. Travellers I. Co. v. Patten, 98 Ind. 209. 407. Treadway v. Sharon, 7 Nev. 37. 31, 56, 86. Treat v. Dorman, 100 Calif. 623, 35 Pae. 86. 349. Treece v. Treeee, 73 Tenn. 221. 386. Tremont Mills v. Lowell, 163 Mass. 283, 39 N. E. 1028. 564. Trethowan, Be, 5 Ch. D. 559, 46 L. J. B. 43, 13 Co. Ct. & B. 79, 22 Eng. E. 307. 399, 493-, 494. Trevey, Ee, 14 L. T. N. S. 193. iii, 435, 505, 507. Trimmier v. Barden, 61 S. Car. 220, 39 S. E. 378. 524. Triplett v. Mays, 13 Ky. L. E. 874. 22, 28, 459. Triplett v. Parmlee, 16 Neb. 649, 21 N. W. 403. 618. Tripp '. Grand Lodge of Masons, 131 Mass., 59, 63 (1881).] [Where holes are made in brick walls twenty inches thick to receive the ends of a structure erected by a tenant, the court is not bound to con- sider nicely whether the walls remain "as strong as ever," where it appears that the removal of the structures would not leave the building in as good condition aa it was before it was constructed. Chase v. New York Insulated Wire Co., 57 111. App., 205, 210 (1894).] 12 Jur. (N. S.), 213; 14 L. T. (N. S.), 20, afBrming s. C, in Court of Ex- chequer, 34 L. J., Exch., 137; 13 W. R., 721. See, also. White v. Arndt, 1 Whart, 91 (1836); Haflick v. Stober, 11 Ohio St., 482 (1860). 261 *178 THE LAW OP PIXTUEES. [CHAP. IV. the termination of his lease contracted by title-bond to pur- chase the premises, there being no exception or reservation in such bond.2 sMerritt v. Judd, 14 Cal., 59 (1859). [See, also, Seiberling x. Miller, 207 111., 443, 448 (1904) ; Fernandez v. Soulie, 28 La. Ann., 31, 35 (1876) ; but see McDonald v. Shepard, 25 Kan., 112, 116 (1881).] [Where lessee takes a conveyance of the premises merely for security, paying rent during his entire term, and subsequently reconveying to his landlord, there was never such a unity of interest in the tenant as to merge trade fixtures in the realty. Security Loan Co. v. Williamette Mills Co., 99 Cal., 636, 641 (1893).] [An agreement by a tenant to go out of possession of land for a sum named is not an assignment of his fixtures. Weathersdane Park Co. v. Watson, 16 Vict., 758, 761 (1890).] 262 CHAPTER V. [*179] OF FIXTURES AS BETWEEN TENANTS FOR LIFE OR IN TAIL AND THEIR PERSONAL REPRESENTATIVES, AND THE REMAINDERMAN OR REVERSIONER. The adjudicated cases upon the topics to be considered in this chapter are as compared with those concerning the rela- tion of landlord and tenant, comparatively few in number. As has already been stated,^ the right of removing fixtures has not been so liberally extended in this relation as in the relation of landlord and tenant. But on the other hand it is more liberally allowed here than in that of executor and heir, where there is the least relaxation; and hence the cases in the latter relation where the right has been conceded to the personal representa- tive, have been generally considered as authorities for the right of removal in this relation, and in that of landlord and tenant. The exact limits in this respect of the distinction between these different relations, seems never to have been clearly defined. The reason of the distinction, however, seems clear enough, and herein, perhaps, may be found all the practical utility there is in the rule itself. Tenants for life are usually widows as dow- resses, or husbands as tenants by curtesy, or devisees -under wills with remainder to children or other blood relations. The persons entitled in reversion or remainder, in such cases, are ordinarily those nearest in ties of affection and blood to the tenants of the life estate. It may well be presumed, as between such parties, that improvements put upon the property by the life tenants, are not designed for the temporary use of such tenant, but as permanent ameliorations.^ And where no such 1 Ante, p. *90. 2 Per Cooper, Ch., in Cannon v. Hare, 1 Tenn. Ch., 22, 33 (1872). See, also, Ferard Fixt., 131, 321. [See Culleton v. Keune, 18 Ky. Law Eep., 1065, 1067 (1897).] [Buildings and fencing put upon land by a life tenant pass to remainder- men, for the obvious reason that the former is improving his own prop- erty for his own present benefit. Merritt v. Scott, 81 N. C, 385, 387 (1879).] 263 *180 THE LAW OP FIXTURES. [CHAP. V. [*180] *relations as above stated exist between the tenant for life and the remainderman or reversioner, the presumption arising from the nature and probable duration of the estate of the tenant for life seems much stronger that annexations to the estate are intended to be permanent accessions to the realty, than that which arises from the simple relation of landlord and tenant for years, whose interest is temporary only and not usually so long in duration as that of a tenant for life. And such being the case the rule would not naturally be so liberally applied as in the relation of landlord and tenant for years, where sruch presumption is not so strong and would require less to overcome it. The subjects of this chapter may conveniently be considered further, (1) with reference to Fixtures as between the Tenants for Life or in Tail during their lives, and the Remainderman or Reversioner; (2) Trade Fixtures and Mixed Cases as between •the Personal Representatives of Tenants for Life or in Tail, and Remainderman or Reversioner; (3) Ornamental or Domestic Fixtures as between the parties last named; (4) Of the Rights of Ecclesiastical Persons and their Representatives to Fixtures, etc.; and (5) "When the Right of Removing Fixtures as be- tween the Personal Representative of Tenant for Life or in Tail, and the Remainderman or Reversioner, etc., must be ex- ercised. I. Of Fixtures as between Tenants for Life or in Tail DURING their LiVES, AND THE REMAINDERMAN OR Reversioner. First. Tenants for Life. — Although tenants for life are enti- tled to reasonable estovers, yet they are prohibited from destroying those things which are not included in the tem- porary profits of the land ; because that would tend to the per- manent and lasting loss of the person entitled to the inheritance. This destruction is called waste.^ Thus, if glass windows, 8 1 Cru. Dig., tit. 3, chap. 2, § 1; 1 Wash. Real Prop., *107, et seq. As between the tenant for life and remainderman, the thinnings of fir trees under 20 years of age belong to the tenant for life. Pidgeley v. Bawling, 2 Colly. Ch., 275 (1845). [See Be AinsUe (1884), 28 Ch. D., 89, 92.] 264 CHAP, v.] TENANT FOB LIFE AND BEMAINDEBMAN, ETC. *181 *though put in by the tenant himself, be broken or ear- [*181] ried away, it is waste. So, also, as it is said, of wainscot, benches, doors, furnaces, and the like, annexed or fixed to the house by the tenant.* But the removal of articles placed on the premises by the tenant, but not annexed to the freehold, is not waste.^ It is believed, however, that the right of a tenant for life as to the removal during his lifetime of articles annexed by him to the estate, is equally extensive with that allowed to his executor after his death by the law of fixtures. This power of removal during his lifetime is not a power incident to his estate, but is an exception to the general rule in relation thereto accruing to him by virtue of the law of fixtures.^ By a parity of reasoning, a tenant pur autre vie, should after the death of the cestui que vie, have all the rights of removal that would be possessed by his executor if he were a tenant for his own life simply.^ [The proceeds from the sale of larch trees blown down by gales of unprecedented severity, do not go to the equitable tenant for life. Be Harrison's Trusts (1884), 28 Ch. D., 220.] *1 Cru. Dig., tit. 3, ch. 2, § 13; Co. Lit., 53a; 1 Wash. Eeal Prop., *113; Grady Fixt., 36. [Keed v. Eeed, 68 Me., 568, 571 (1878).] [Detaching and selling the running gear of a gin-house is waste. Cannon V. Barry, 59 Miss., 289, 303 (1881).] [A brick building three stories high and resting upon stone founda- tions, erected by a life tenant, can not be removed by mechanics' lienors as against the remainderman. Conrad v. Starr, 50 Iowa, 470, 482 (1879).] [Where a conveyance is made subject to certain conditions, upon a viola- tion of which the land is to revert to the grantor, until it is shown that re-entry was made or suit instituted by the grantor before he brings an action against the grantee for the value of fixtures removed by the latter, he can not recover. Dunman v. Gulf, &c., K'y Co., 24 S. W., 701, 702 (Tex. Civ. App., 1894).] BClemence v. Steere, 1 E. I., 272 (1850). 6 See Ferard Fixt., 141. [See dictum of Eigby, L. J., in Be DeFalbe [1901], 1 Ch., 528, 530.] '! Ferard Fixt., 141. [A tenant pur autre vie in possession after the death of the life tenant, does not lose the right to improvements which he could have removed during the existence of the life estate. Charleston & W. C. E'y Co. V. Hughes, 105 Ga., 1, 25 (1898).] [The purchaser of a distillery from a Hfe tenant, thinking he was acquiring the fee, replaced the old still with a new one, which he removed after discovering his error. The remainderman having made application 265 *182 THE LAW OF PIXTUKES. [CHAP. V. Where, however, a tenant for life holds without impeach- ment of waste, the case is otherwise. In such case his powers are much more extensive; and like those of a tenant in tail, arise merely out of his estate.® Although the exercise of the right of severance in such a ease is not conferred by, and is independent of, the law of fixtures, the opinion has been ex- pressed by Mr. Perard that the interest of the tenant for life without impeachment of waste is so far different from that of a tenant in tail, that if a case were supposed where the removal of an erection put up by the tenant for life himself, would from its circumstances, amount to an act of malicious waste or destruction, he would not be allowed to take it away f and upon the authorities such opinion seems well founded.^" It seems, [*182] *however, that the rights belonging to a tenant for life from his not being impeachable for waste are personal, or a power not coupled with an interest, and hence, at least as to those articles not removable by the law of fixtures, are not subject to be exercised by his execution creditor; and these rights are in this respect to be distinguished from the right of removal derived from the law of fixtures. This distinction was pointed out by Lord Holt with reference to the taking in execu- tion of the fixtures of a tenant for years, in Poole's Case,i^ for a mandatory injunction to compel the restoration of the new still, it was held that he was not entitled to the new still, but was entitled to the value of the old one. McLaren v. Coombs, 16 Gr. Ch., 587 (Ont., 1869).] sFerard Fixt., 141. = Ferard Fixt., 142. 10 It is well settled that a tenant for life without impeachment of waste, may be restrained by injunction from the commission of willful and malicious waste; and he may even be compelled to repair the waste, if actually committed, where it can be done. See, generally, the following authorities: Vane v. Lord Barnard, 2 Vern., 738 (1716); s. c, 1 Eq. Ca. Abr., 399, pi. 3; Free. Ch., 454; 1 Salk., 161; Strathmore v. Bowes, 2 Bro. Ch., 88 (1786) ; Marquis of Downshire v. Lady Sandys, 6 Ves., 107 (1801) ; Marker v. Marker, 9 Hare, 1 (1851) ; Lord Tamworth v. Lord Ferrars, 6 Ves., 419 (1801); Packington's Case, 3 Atk., 215 (1744); Aston v. Aston, 1 Ves. Sr., 264 (1749); O'Brien v. O'Brien, Ambl., 107 (1751); Day v. Merry, 16 Ves., 375 (1810) ; Pyne v. Dor, 1 Term, 56 (1785) ; 1 Bro. Ch., 166; 2 Atk., 383; 16 Ves., 185; 1 Wash. Real Prop., 120. [See Stevens v. Rose, 69 Mich., 259, 270 (1888).] " 1 Salt., 368 (1703) ; s. c, Holt, 65. See, also, Ferard Fixt., 142. 266 CHAP, v.] TENANT FOE LIFE AND EEMAINDEEMAN, ETC. *183 where he observed that "this was not like tenant for years without impeachment of waste; in that case he allowed the sheriff could not cut down and sell, though the tenant might; and the reason is, because in that case the tenant hath only a bare power without an interest; but here the under-lessee hath an interest as well as a power, as tenant for years hath in standing corn, in which case the sheriff can cut down and sell. ' ' Tenants in dower and by the curtesy may not commit waste -^"^ and their rights as to fixtures do not seem to have been distin- guished from those of ordinary tenants for life.^^ It may be suggested, however, that there may be cases where by reason of the relations" of blood and affection existing between such tenants for life and those entitled in reversion, a stronger pre- sumption may arise that improvements put upon the property by such life tenants are designed as permanent ameliorations, than in cases of life tenancy where no such relation exists.** *Second. Tenants in Tail. — Estates tail, like estates [*183] in fee simple, have certain incidents inseparably annexed to them, among which is this: that as a tenant in tail has an estate of inheritance, he has a right to commit every kind of waste, as by felling timber, pulling down houses, opening and working mines, etc. ; and he may undoubtedly, as an incident to his estate, and independently of the law of fixtures, sever and remove whatever he has annexed to the realty, irrespective of the mode or the purpose of its annexation.*^ It seems, also, that if a tenant in tail grant all his estate, the grantee is dis- punishable of waste; and also if the grantee grant it over, his grantee is also dispunishable.*® A court of chancery will not in any ease whatever restrain a tenant in tail from committing waste.*'' But this power to commit waste must be exercised during the life of the tenant in tail, for at the instant of his 12 1 Wash. Eeal Prop., *107; 1 Cru. Dig., tit. 5, ch. 2, § 34; Co. Lit.,^ 53 a. isFerard Fixt., 143. 14 See, ante, p. *179. 15 1 Cru. Dig., tit. 2, ch. 1, §§ 31, 32. 16 Per Clark, J., in 3 Leon., 121 (1585). 17 1 Cru. Dig., tit. 2, ch. 1, § 34; Cas. temp. Talb., 16; Mos., 224; Atty. General v. Duke of Marlborough, 3 Mad., 498 (1818). 267 *184 THE LAW OF FIXTURES. [CHAP. V. death it ceases ;i8 and as will be seen in a subsequent section the right of his personal representatives in relation to remov- ing fixtures is quite limited. The estate of a tenant in tail after possibility of issue extinct, though strictly speaking not more than an estate for life, re- tains some of the attributes of an estate tail, and, among other privileges, he is dispunishable for waste, because he continues in by virtue of the livery upon the estate tail; and having once had the power of committing waste he shall not be de- prived of it by the act of God.i^ But such a tenant, like a tenant for life without impeachment of waste, may be restrained by injunction from the commission of wilful and malicious waste.20 The privileges which a tenant in tail after possibility of issue extinct enjoys, arise from the privity of estate and [*184] because *the inheritance was once in him; but if he grants over his estate to another, his grantee will be bare tenant for life.21 This section can not be better concluded than by quoting from the valuable work of Mr. Ferard on the Law of Fixtures,^^ to which we acknowledge our obligation for much that appears in this chapter; referring to the rights of tenants for life, etc., and of their executors, he says: "From comparing the rights enjoyed by the owners of these several interests and by their per- sonal representations, it may be seen that the privilege of remov- ing fixtures after the determination of the particular estate, does not arise out of the principle that whatever a testator might have removed in his lifetime, his executor is entitled to remove after his death. For it has been shown that the rights of tenants in tail and tenants for life, differ both in nature and degree; whereas the rights of their executors are in all respects similar. The distinction seems to be, that in the case of tenant in tail or tenant without impeachment of waste, the testator removes articles affixed to the freehold simply by reason of a 18 1 Cni. Dig., tit. 2, ch. 1, § 32. "1 Cru. Dig., tit. 4, see. 8; Ferard Fixt., 143; Bowles' Case, 11 Co., 79 (1615); Williams v. Williams, 15 Ves., 419 (1808); 2 Freem. 53. 278; Doct. & Stud. Dial., 2, ch. 1. 20 1 Cru. Dig., tit. 4, sec. 12, et seq., and eases cited. 21 Co. Lit., 28 a; 1 Cru. Dig., tit. 4, sec. 16; 3 Leon., 241. 22 p. 143. 268 CHAP, v.] TEADE FIXTURES AND MIXED CASES. *185 power incident to an estate in land; whereas the right of the executor is communicated to him by the law, with a view to public benefit and convenience. The analogy of the doctrine of emblements, which is frequently of use in explaining the law of fixtures, seems, in this instance, calculated to mislead. Many legal inferences of a curious nature appear to result from the comparison here suggested. Thus, in respect of the rights of the executor of a tenant in tail: it is apprehended, that if his testator leaves issue in tail, the executor will not be entitled to greater privileges as to fixtures against the heir in tail, than the executor of tenant in fee simple may be found to have against the heir in fee;^* although the heir in tail takes per formam doni. Consequently, the right of the executor of a tenant in tail may vary according as it is opposed to that of the heir in tail, or to that of the remainderman and rever- sioner. That is to say, if there be any difference between the right of an executor against the *heir in fee simple, and [*185] the right of an executor of tenant in tail against the remainder- man and reversioner, the same difference will be found between the right of the executor of tenant in tail against the issue in tail, and that of the executor of tenant in tail against the remainderman and reversioner. It would not, however, be proper to enter further into questions of this nature, since the legal authorities appear to be wholly silent upon them." II. Op Trade Fixtures and Mixed Cases, as between the Personal Representatives op Tenant for Life or IN Tail, and Remainderman or Reversioner. The first case in which the subject here under consideration was directly considered and passed upon, seems to have been the leading case of Lawton v. Lawton,** decided by Lord Chan- cellor Hardwicke in 1743. The material question in this case was whether a fire-engine set up for the benefit of a colliery by a tenant for life, should be considered as personal estate, and go to his executor, or fixed to the freehold and go to the remain- derman. The engine in question had a shed over it (erected 23 To the same effect, see Gibb. Fixt., 13. 2* 3 Atk., 13. 269 *186 THE LAW OF FIXTUEES. [CHAP. V. merely for the use of the engine) in which holes were left for the ends of the timbers, to make it more commodious for re- moval. The evidence for the plaintiff stated that such engines were capable of being carried from one place to another; but on the part of the defendant evidence was produced to show that the engine could not be removed without tearing up the soil and destroying the brick-work. Lord Hardwicke, in deliv- ering his judgment, inter alia, said: "This brings on the question of the fire-engine, whether it shall be considered as personal estate, and consequently applied to the increase of as- sets for payment of debts. Now it does appear in evidence, that in its own nature it is a personal movable chattel, taken either in part or in gross before it is put up. But then it has been insisted that fixing it in order to make it work, is prop- [*186] *erly an annexation to the freehold. To be sure, in the old cases they go a great way upon the annexation to the free- hold, and so long ago as Henry the Seventh's time, the courts of law construed even a copper and furnaces to be part of the freehold. Since that time the general ground the courts have gone upon of relaxing this strict construction of law is, that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during their term." After stating some instances of the relaxation of the old rule as between landlord and tenant, he proceeded as follows: "It is said, there are two maxims which are strong for the remain- derman: First, that you shall not destroy the principal thing by taking away the accessary to it. This is very true in gen- eral, but does not hold in the present case, for the walls are not the principal thing, as they are only sheds to prevent any injury that might otherwise happen to it.^ "Secondly. It has been said that it must be deemed part of the estate, because it cannot subsist without it. Now, collieries formerly might be enjoyed before the invention of engines, and therefore this is only a question of majus and minus, whether it is more or less convenient for the colliery. There is no doubt but the case would be very clear as between landlord and ten- iln another part of the opinion it is said that "it does jot differ whether a shed over such an engine he made of brick or wood, for it is only intended to cover it from the weather and other inconveniences." [See Ward V. Dudley (1887), 57 L. T. E., 20.] 270 CHAP, v.] TRADE FIXTUEES AND MIXED CASES. *187 ant. It is true, the old rules of law have indeed been relaxed chiefly between landlord and tenant, and not so frequently be- tween an ancestor and heir, or tenant for life and remainder- man. But even in these eases it does adm'it the consideration of public convenieney for determining the question. I think, even between ancestor and heir, it would be very hard that such things should go in every instance to the heir.^ One reason that weighs with me is its being a mixed case between enjoying the profits of land, and carrying on a species of trade ; and considering it in this light, it comes very near the instances in brew-houses, etc., of furnaces and coppers." * * * * "This *is not the ease between an ancestor and an heir, but [*187] an intermediate case, as Lord Hobart calls it, between a tenant for life and remainderman. Which way does the reason of the thing weigh most, between a tenant for life and a remainder- man, and the personal representative of tenant for life, or be- tween an ancestor and his heir, and the personal representative of the ancestor? Why,- no doubt in favor of the former, and comes near the case of a common tenant, where the good of the public is the material consideration, which determines the court to construe these things personal estate; and is like the case of emblements, which shall go to the executor, and not to the heir or remainderman, it being for the benefit of the king- dom, which is interested in the produce of corn and other grain, and will not suffer them to go to the heir. It is very well known that little profit can be made of coal mines without this engine; and tenants for lives would be discouraged in erecting them if they must go from their representative to a reraote remainderman, when the tenant for life might possibly die the next day after the engine is set up. These reasons of public benefit and convenience weigh greatly with me, and are a principal ingredient in my present opinion." The engine was accordingly decreed to go to the executor for the increase of assets.^ 2 See, however, as to this dictum, Fisher v. Dixon, cited post under the head Executor and Heir; 1 Wms. Exrs. (6th London ed.), 691. 3 Eeg. Lib. B. (1743), fol. 151. There were certain other engines fixed upon salt-works by the father of the tenant for life. These engines were decreed not to be the personal estate of the testator. [See Ward v. Dud- ley (1887), 57 L. T. E., 20, 24.] 271 *188 THE LAW OF FIXTURES. [CHAP. V. Dudley v. Warde* was very similar in its facts to the case last cited. This case was a bill filed by the plaintiff as an executor of William Lord Dudley against the defendant, who was remainderman of the estate, to have four fire-engines deliv- ered up as part of the personal estate of Earl William, who had died seized of the colliery on which they were erected. Three of the engines had been erected by Earl Edward, his father, who was tenant in tail of the estate (which came to Earl William under a settlement), and the fourth was erected by Earl William ; but it did not appear whether Earl William was tenant for life or in tail of the estate. Lawton v. Lawton was [*188] *cited and followed, and the one engine erected by Earl William was decreed to the plaintiff, and the bill dismissed as to the other three. In rendering his judgment Lord Hard- wicke said: "The case being between executor of tenant for life or in tail and a remainderman, is not quite so strong as between landlord and tenant, yet the same reason governs it if tenant for life erects such an engine. In the case of Lawton v. Lawton, it was determined it should go to executors, partly on reasons there mentioned, and partly on the authority of the case of a cider-mill,^ there cited to have been so adjudged by Lord C. B. Comyns ; that of Lawton v. Lawton was the case of creditors, but that makes no difference, because the question is whether part of the real or personal estate. If it is so in the case of tenant for life, query, how it would be in case of tenant in tail? Tenant in tail has but a particular estate, though somewhat higher than tenant for life. In the reason of the thing there is no material difference; the determinations have been from consideration of the benefit of trade. A col- liery is not only an enjoyment of the estate, but in part carry- ing on a trade.® The reason of emblements going to the executor of a particular tenant holds here, to encourage agriculture; suppose a man of indifferent health, he would not erect such an engine at a vast expense, unless it would go to his family." 4 1 Ambl., 113 (1751). 5 This case will be found referred to (post) under the head Executor and Heir. eSee Jesus College v. Bloom, 1 Ambl., 56 (1745); s. c, 3 Atk., 264; Hanson v. Gardiner, 7 Ves., 308 (1802) ; Jefferys v. Smith, 1 Jae. & Walk., 302 (1820). [See, ante, p. *103.] 272 CHAP, v.] TRADE FIXTURES AND MIXED CASES. *189 The principle of these two cases has been since recognized and followed in other cases, and may be regarded as well settled.'' *It is of course applicable also to the case of fixtures [*189] erected solely for trade purposes, and not in part as a means of enjoying the profits of land, the consideration of public policy and convenience applying to the latter case even more strongly than to the former.* The decided cases on the subject relate only to steam-engines; but there 'can be no reasonable doubt that should the question arise, the exception would be extend- ed so as to include all utensils, machines, and other articles of a similar nature which are themselves of a chattel nature and capable of being detached without material injury to the free- hold or to themselves and of being set up and used elsewhere, to which the principle of said cases is as applicable as to the case of engines. It seems that the exception extends also to 7 See Lawton v. Salmon, 1 H. Bl., 259, note (1782) ; s. c, 3 Atk., 16 note, per Lord Mansfield; Penton v. Eobart, 2 East, 88, 91 (1801), per Lord Kenyon; Elwes v. Maw, 3 East, 38, 54 (1802), per Lord Ellen- borough; Estate of Hinds, 5 Whart., 138 (1840), where a woman having real estate married, and her husband during the coyerture put up a steam- engine on a stone and brick foundation, for the purpose of carrying on the carding and spinning business, and it was held, that his representatives after his death were, as against the wife, entitled to remove it from the premises, or to the proceeds thereof if sold by the wife. There were, in the oases of Lawton v. Lawton and Dudley v. Warde, other engines erected by the ancestors of the tenants, which were decreed not to be personalty. See the note to Lawton v. Lawton; and Dudley v. Warde, at the end of the case. [An engine set on cross timbers in the ground, a gin held by cleats, a condenser nailed to the gin and to the joists, an anvil nailed to a block extending into the ground, a vise nailed to a bench nailed to the house, and a bellows supported by posts in the ground and braced by pieces nailed to the house, attached by a tenant by the courtesy for the mixed purpose of trade and agriculture, belong to the executor as against the remainderman, and can be removed within a reasonable time. Overman v. Sasser, 107 N. C, 432 (1890).] [An exefcutor of a tenant for life of mines is entitled to blast furnaces, steam-engines and sheds protecting them, boilers, gas-pipes, machinery, a railway, weighing-machines, all removable without material injury; but not to a shaft, nor to brick buildings used as workshops. Ward v. Dudley (1887), 57 L. T. E., 20.] 8 See Estate of Hinds (supra). 18 273 •190 THE LAW OF FIXTURES. [CHAP. V. trade buildings.^ The principle above stated should however be taken with the limitation that such fixtures are not so annexed as to show a design to make them a permanent acces- sion to the realty, in which case they would of course be irre- movable. The general grounds of the exception are stated in the ease quoted from to be those of public benefit and convenience. While these may be regarded as the original grounds of the excep- tion, as has already been intimated, the intention of the tenant for life or in tail, in making the annexation it is believed will now often have a controlling influence in determining the ques- [*190] *tion of removability; and though by reason of the relation of the parties and the duration of the estate of the tenant, the presumption that an annexation made by him was intended as a permanent accession to .the realty is stronger here than in the case of landlord and tenant for years, and hence more evidence is in general required to overthrow it, yet it is believed that in other respects the observations made in a previous chapter in relation to the question of intention are in general equally applicable to this section and chapter; and the reader is accordingly referred to that chapter for the further consideration of the subject.^" [*191] * The cases before quoted from seem also to lay down the 9 See White v. Arndt, 1 Whart., 91 (1835) ; Cannon v. Hare, 1 Tenn. Ch., 22, 34 (1872), where it is said: "It is probable, also, that the excep- tion in favor of buildings erected for purposes of trade, will be limited in the case of tenant for life to such as are erected exclusively for purposes of trade proper, and will not be extended to occupations having an affinity or resemblance to trade. In the absence of authority, however, this can. only be considered as a suggestion." The exception does not, as it seems, extend to buildings, or otter an- nexations for farming purposes, though there seems no good reason for any distinction. Haflick v. Stober, 11 Ohio St., 482 (1860) ; McCuUough V. Irvine, 13 Penn. St., 438 (1850). See, also, Glidden v. Bennett, 43 N. H., 306 (1861), where fences were erected by the husband of a dovreess on the dower estate. [See, ante, p. *110.] [Cabins and barns, "permanent improvements put by the life-tenant upon the land," go to the remainderman as part of the estate. Brooks v. Brooks, 12 S. C, 422, 464 (1879).] 10 Ante, p. *39. No reason is perceived why, except as above stated, the rules heretofore given in considering the relation of landlord and tenant are not in general equally applicable to this relation also; though in the 274 CHAP, v.] TEADK FIXTURES AND MIXED CASES. *191 rule that if the removal of fixtures annexed by the tenant for life or in tail occasions substantial damage to the realty, or if they are so essential to the enjoyment of the realty, that it can- not be enjoyed without them, they cannot be removed as against the remainderman; but that where the damage caused by the removal is only to that which is accessory to the thing removed as to the engine-house in the cases cited, or to the walls in the case of coppers, etc., such damage is no ground for denying absence of direct decisions to that effect such can not be affirmed to be the case. With reference to this subject Mr. Ferard (page 135) says: "The prac- tical inference to be deduced from the observations in the foregoing pages is, that in ascertaining whether a particular article set up in relation to trade, forms part of the personal estate of tenant for life or in tail, the first inquiry will be whether it is governed by the case of the fire-engines, or that of the cider-mill, decided between the executor and the heir of the deceased owner in fee. The analogy of the different cases between land- lord and tenant may next be resorted to; with that caution, however, which it has been seen, is necessary on such occasions." [i. e., "that although everything which belongs to the representatives of a tenant for life or in tail, on the ground of its relation to trade, may be considered a fortiori removable by a tenant against his landlord, a decision between these latter parties must not be relied upon as forming a conclusive ground of determi- nation, where the claims of the former individuals are in question. Never- theless from the analogy which prevails between the two classes, it will always be found useful in determining the rights of tenant for life or in tail, to consult any corresponding cases that have been decided between a common tenant and his landlord."] "In every instance, the general principles of trade fixtures, as they apply to each class of individuals, must be borne in mind. And lastly, regard must be paid to all those circumstances arising out of each particular case, which have been par- ticularly alluded to in the concluding part of the first section of the pre- ceding chapter. For from Lord Hardwieke's observations upon the sub- ject, it will appear that besides other considerations, the question whether part of the real or the personal assets may be materially affected by the nature and construction of the article, its value to the inheritance, and the injury its removal will cause to the estate. "It is indeed not unreasonable to expect that at the present day, a de- cision of the courts would carry the relaxation in favor of the personal estate further than to the removal of mere machinery, like fire-engines before Lord HardvTicke. For in the time of Lord Hardwicke, Poole 's case was the only reported authority which expressly recognized the exception in respect of trade fixtures. Whereas, since that period, the general principle of the exertion has been gradually extended and has been acted upon by the courts with increasing liberality." 275 *192 THE LAW OP FIXTURES. [CHAP. V. the exercise of the right.^ Where, also, the articles in question were not in themselves of the nature of movable chattels in gross or in part before they were put up, or are incapable of removal without substantial injury to themselves, these con- siderations afford strong evidence of an intention to devote them to the realty so as to render them irremovable by the representa- tive. The question, however, in each case, is believed to be a mixed one of law and fact for which no invariable rule can be laid down, but in the solution of which the intention of the party making the annexation is a controlling factor.^ III. Of Ornamental and Domestic Fixtures, etc., as be- tween THE Personal Eepeesbntatives of Tenant for Life or in Tail, and Remainderman or Reversioner. "With respect to the right of the executor of tenant for life, as against the remainderman or reversioner, to fixtures set up for ornament or domestic convenience, it is stated in Williams [*192] *on Executors,* that though "not a single ease is to be found in the books relating expressly to this subject, neverthe- less, upon the ground that the law is more favorable in this re- spect to the executor of tenant for life than to the executor of tenant in fee, it is clear, a fortiori, that all the cases which sup- port the right of the latter to hangings, pier-glasses, tapestry, pictures, iron backs to chimneys, furnaces, grates, etc., are ex- press authorities in favor of the right of the former ; and further that the strong expressions of judges in favor of the heir, which in the recent cases heretofore mentioned, somewhat weaken the effect of the determinations in favor of the claims of the ex- ecutor of tenant in fee, do not affect them with relation to those of tenant for life or in tail." The same views are also ad- vanced by Mr. Ferard and other writers on the subject.* Since the date of the edition of Williams on Executors above quoted 1 See, also, Ferard Fixt., 131 ; Grady Fixt., 47. 2 See (ante), pp. *24, *39. 3 6th London ed., I., p. 701. * Ferard Fixt., 137, et seq.; Grady Fixt., 49; Gibb. Fixt., 12. See, also {post), chapter on Executor and Heir. 276 CHAP, v.] ORNAMENTAL AND DOMESTIC FIXTURES. *192 from, the subject therein referred to has been considered to some extent by Lord Romilly in the case of D'Eyneourt v. Gregory .8 As this is a well considered case and one of con- siderable importance, in the absence of other authorities on the subjects therein considered, it will be herein quoted at some length: In this case a testator, who was tenant for life of set- tled estates upon which he had erected, fitted up and furnished a mansion (the old one on another site having fallen into de- cay), demised his fee simple estates in strict settlement to the same persons to whom the settled property would pass, and gave to his trustees all the tapestry, marbles, statues, bronzes, pictures, prints and drawings, with their frames and glasses, which should be in or about the said mansion house at the time of his death and of which he had power to dispose, to be enjoyed and to go as heir-looms with the property as far as the rules of law and equity would permit, with a shifting clause providing that in case of the non-fulfillment of a speci- 5L. E., 3 Eq., 382 (Dec. 7, 1866); s. c, 36 L. J. (N. S.), Chanc, 107; 15 W. E., 186. See, also, Snedeker v. Warring, 12 N. Y., 170 (1854), ante, p. *25; Sogers v. Crow, 40 Mo., 91 (1867); Steuart y. Douglas (1870), reported in Brown Fixt., Append. A. [In Se DeFalbe [1901], 1 Ch., 523, seven pieces of tapestry were held not to pass to the remainderman. They were affixed to the walls by the life tenant as follows: Small slips of wood were nailed and screwed to the original wooden casing or walls, and over these slips canvas was stretched and nailed, and the tapestries were tacked to this framework. Mouldings were fixed round the tapestries, and pillars were set up with panels between them, to fill up the space not occupied by the tapestries, and to set them off. Per Vaughan Williams, L. J.: "The quantum of fixture is important. * * You might have to employ a mode of fixing which in many oases would be conclusive of the incorporation of the chattel with the freehold. But the moment you come to the conclusion that the mode of fixing which was employed was absolutely necessary for the enjoy- ment of the chattel, that inference does not arise. * * I wish to say a word about D'Eyneourt v. Gregory and Norton v. Dashwood. I cannot find that either Lord Eomilly, M. B., or Chitty, J., said anything which is inconsistent with the principle I have sought to imply. * * Lord Eomilly inferred from all the facts of that case that the tapestries were affixed as they were to the walls for the purpose of the improvement of the freehold, and not for the purpose of their enjoyment as chattels." Per Eigby, L. J.: "There is another equally important and well established exception from the rule, in the case of articles which have been affixed to the freehold, not vrith the object of enhancing its value, but for the pur- 277 *193 THE LAW OF FIXTURES. [cHAP. V. [*193] *fied condition then the demised estates and all the ar- ticles thereby made heir-looms were to go in the same manner as if the limitations in favor of the person not performing such condition had not been inserted in the will. After the testa- tor's death A. became tenant for life of both the settled and demised estates, and on his death the settled estates devolved on B., who did not fulfill the specified condition, upon which the shifting clause took effect in favor of C; and therefore the question arose as between B. and C, what were the articles which the testator could dispose of. The articles upon which the principal questions arose were described substantially as follows : The portrait in oil in the great hall, on canvas and stretcher, was screwed by nails or screws to blocks or plugs of wood in- serted in the brick-work; a wooden moulding was placed upon the front of the picture, one portion of such wooden moulding being next the picture and the other flush with the wainscoting of the room, such moulding being attached by screws or nails to wooden plugs in the wall; a wooden frame was placed over pose of ornamentation. * * In all such oases the object (whatever it may be) which is af&xed for the purposes of ornamentation, is afSxed to the freehold, but the exception allows it to be removed. * * At any rate, I think that the decision in D'Eyncourt v. Gregory is not right if it would apply to such a case as the present. * * In taking down the tapestries some trifling damage may have been done to the walls, * * * the damage ought to be allowed or made good by the executor. I do not agree that the respondent should have consequential damages for redecorat- ing the room." Aff'd Leigh v. Taylor [1902], A. C, 157.] [In a contest between a trustee in bankruptcy of a deceased tenant for life, and the remainderman, it was held that a collection of stuffed birds attached by glue or wire to cases which were a part of the house, was not a part of the freehold. Hill v. Bullock [1897], 2 Ch., 483, aff'g [1897] 2 Ch., 55.] [A "trophy" consisting of the uniform and accoutrements of King George III. in a case afSxed to the wall, pass to the trustee of a deceased tenant for life as against the remainderman. Hill v. Bullock [1897], 2 Ch., 55.] [An altar stone, not physically attached, and a case of relics placed in a cavity under the altar, all forming part of a chapel as used for religious purposes, seem to belong to the remainderman as against the personal representative of the tenant for life. Petre v. Ferrers (1891), Weekly Notes, 171.] 278 CHAP, v.] ORNAMENTAL AND DOMESTIC FIXTURES. *194 such moulding and attached thereto and to the wainscoting of the room by screws or nails, the heads of which were afterwards stopped and gilded with the frame. This painting and gilt frame could be easily removed without damage, and if the paint- ing were removed and the framework filled in with figured satin in the same manner as were all the other panels in this room, it would be a counterpart of them, the moulding round the painting being exactly similar to those which were round the satin-lined panels. The tapestries were each on wooden stretchers attached to the wall in a similar manner to that described with regard to the portrait, that being the usual method where the walls are recessed. Painted wooden mouldings were then placed round the face of such tapestries substantially in the same manner as above described with reference to the portrait, and the tapes- tries could be very easily removed and the mouldings replaced if required without material damage to the walls or paneling of the room. The room had enriched panels, and if the panels from which it was desired to remove the tapestries were *ornamented in the same style, it would make a per- [*194J fectly complete apartment as far as these walls were concerned. The chimney-glass in an ornamental frame and an oil paint- ing surmounting it were placed against the flush face of the wall and attached with nails or screws only, as an ordinary looking-glass would be fixed, and could be easily taken down. The carved and gilt frames filled with white satin occupied the side of a room and were placed and attached in the same manner as the chimney-glass, and could easily be removed with- out damage. The carved kneeling figures in the great hall Avere placed upon pedestals forming parts of the cedar stair-case. They were formed of cedar, and were hollow; and the figures where attached, to them were hollow, and were so attached by a few screws only. The figures were evidently not designed to rest upon the particular pedestals which they then occupied, as the plynths of the figures and the tops of the pedestals did not accord in their proportions. The figures could easily be lifted off the pedestals without damage. The sculptured marble vases in the hall had the appearance of resting upon massive cedar pedestals, but the cedar-work 279 «195 THE LAW OF FIXTURES. [CHAP. V. was merely a easing built round the real supports or piers upon which the vases stood, which being of great weight rested upon piers probably of brick-work, the cedar easing being cut and fitted round the bases of the vases. The great weight of these vases rendered the use of mortar, cement or other ma- terial, wholly unnecessary for the purpose of attaching them to the pedestals, and they were not fixed or fastened in any manner save by a beading of cedar wood, and could be lifted off the pedestals without damage to the freehold, and the ped- estals would only require new tops to render them fit to receive any other objects that might be placed on them. The pair of lions three feet high at the head of the flight of steps in the garden were of sculptured marble, and of very great weight, and simply rested on stone pieces or pillars, and had no appearance of being attached except by their own weight, [*195] *and could easily have been lifted off without damage to the said stone piers. The stone garden seats were marble slabs of great weight, each resting on three stone supports or uprights sunk a short distance in the earth, and retained in their proper position solely by their great weight, and could easily be lifted off with- out damage to them or the supports. In delivering his judgment, Ijord Romilly, M. R., referring to these articles, said : ' ' The first of these which I think proper to mention is the tapestry which was put up by the testator, Gregory Gregory, himself. It is clear that the testator could not have disposed of paper affixed to the walls, nor, if he had used silk instead of paper for lining the walls, he could not, in my opinion, have removed the silk. So, if the testator had covered the walls of the house with paneling, he could not, in my opinion, have removed the paneling and have left the walls bare. If he caused them to be painted in fresco, he could not have removed the paintings, and I think if he had caused the panels to be painted he could not have removed the painting any more than if he had put in panels already painted, and fixed them close to the wall. In all these cases I think they must be considered to be fixtures not removable by the tenant for life. Upon considering the case of the tapestries already fixed at the death of Gregory Gregory, I have come to the con- clusion that these fall within the description of such matters 280 CHAP, v.] ORNAMENTAL AND DOMESTIC FIXTURES. *196 as those I have just enumerated, and that they could not be removed; in other words that the testator himself could not have been allowed to remove them. [His Lordship then read * * the description of the mode in which the tapestries were fastened.] Although this is not as complete as if the tapestries were actually affixed to and inseparable from the walls them- selves, which, I apprehend, is never done, still I think they must be treated as part of the wall itself, and by so placing them Mr. Gregory Gregory deprived himself of the power of removing them. "In the same class with these tapestries is the portrait of Lady Williams. [His Lordship then read the description.] The observation that 'the painting and gilt frame may be *removed easily and without damage, and if the paint- [*196] ing were removed, and the framework were filled in with figured satin in the same manner as all the other panels in the room' is, in my opinion, very pregnant. Both the painting and the tapestries could be removed unquestionably in this sense, that they could be taken down, and the space left or filled with satin, and so likewise the satin in the frames could be taken down, and the gaps replaced by paper in the same manner as the tapestry might be replaced with satin; whereas this paper, being stuck close to the wall, could not be removed; but in my opinion, in all these cases, whether it is the paper or the satin, or the panels or the tapestry, they are all part of the wall itself, and they are fixtures not to be removed. In all these cases the question is not whether the thing itself is easily removable, but whether it is essentially a part of the l3uilding itself from which it is proposed to remove it, as in the familiar instance of the grind- ing-stone of a flour-mill, which is easily removable, but which is nevertheless a part of the mill itself, and goes to the heir and not to the legal personal i-epresentative. "The chitnney-glass and the ornamental frame, and the oil- painting surmounting it, appear to me to be no part of the house itself, or of the wall itself, but to be merely ornaments attached to it, which the testator might have removed. "The carved and gilt frames filled with blue and white satin, as I understand the evidence, fall exactly in the same category as the tapestry, and are in fact, instead of what is usually 281 *197 THE LAW OF FIXTURES. [CHAP. V. paper, a covering of the walls and form part of the walls them- selves. "With respect to the carved kneeling figures on the staircase in the great hall, and the sculptured marble vases in the hall, they appear to me to come within the category of articles that cannot be removed. I think it does not depend on whether any cement is used for fixing these articles, or whether they rest by their own weight, but upon this: whether they are strictly and properly part of the architectural design for the hall and staircase itself, and put in there as such, as distin- guished from mere ornaments to be afterwards added. There [*197] *may be mansions in England on which statues may be placed in order to complete the architectural design as dis- tinguished from mere ornament; and when they are so placed, as, for instance, they are in the cathedral of Milan, I should consider that they could not properly be removed, al though they were fixed without cement or without brackets, and stand by their weight alone. In such a case they resemble the stone of a mill which is part of the mill itself and goes to the heir-at-law. I admit that the distinction between such statues as are added by way of ornament, and such as belong to an architectural design, and form part of the design itself, is extremely thin, and that in many cases it would be difficult to distinguish them, unless it were done in an arbitrary manner, so closely might one run into the other. But I am unable to suggest any other mode by which the true construction can be defined more accu- rately than that which I have already stated. Accordingly evidence must in every ease determine whether the article falls within or without the line. In the present case I have thought the articles which I have mentioned are not removable, relying u^on the evidence given and the drawings laid before me. "The same rule will apply to the lions at the head of the flight of steps in the garden, and the sixteen stone garden seats in the garden itself. These, in my opinion, must go with the estate, and are not separable as mere loose personal chattels." The grounds of this decision, it will be observed, are that the tapestries, the portraits fixed in a panel, and the frames filled with satin put up by the testator and which were held to be in law irremovable were, though physically capable of being easily removed, essentially a part of the building itself from 282 CHAP, v.] ORNAMENTAL AND DOMESl'IC FIXTURES. *198 which it was proposed to remove them, and the fact that these annexations were in themselves ornamental and capable of being easily removed was deemed immaterial in determining the ques- tion.i The carved figures on the staircase, the marble vases in the hall, the lions at the head of the flight of steps in the garden, *and the stone garden-seats, were also held irremovable [*198] in law (though in fact easily removable) on the ground that they were strictly and properly part of the architectural design, and were placed there as such, as distinguished from mere orna- ments, and so constituted an integral part of the estate. This ease well exemplifies the doctrine already stated, that the tendency and weight of modern authority is to give a eon- trolling influence to the intention of the party making the an- nexation; and it is fairly inferable from the case that had the above articles not been designed to be an integral part of and a permanent accession to the estate, but annexed merely by way of ornatnent, they might have been disposed of by the testator, as was allowed in the case of the chimney-glass, and the ornamental frame and painting surmounting it, though at- tached to the wall in the same manner as the frames filled with satin which were held to be irremovable. The ease is believed to be an authority to establish the right of removal of articles annexed by the tenant for life merely by way of ornament, and which are not intended as an integral part of, or as a permanent accession to, the realty, when such removal can be effected without material injury to the realty or to the articles so annexed. Further than this the authorities at present do not warrant us in going. On the other hand a tenant for life or his representatives is not entitled to remove buildings of a permanent character; and that permanency may be predicated of all buildings which ap^ pear either by the intention of the party erecting them, the man- ner of attachment to the soil or the uses to which they are put, to have been designed as additions to the freehold or to enhance its income or convenience.^ 1 See, also, Steuart v. Douglas (1870), Appendix A. Brown, Fixt., p. 217 (3d ed.). aPer'Cooper Ch.^ in Cannon v. Hare, 1 Tenn. Ch., 22 (1872), where it was held, that buildings erected on a dower estate by the dowress or 283 *198 THE LAW OP FIXTURES. [CHAP. V. tenants claiming under her "not for the furtherance of the trade or busi- ness of the lessee, but merely with a, view to the yearly value or income from the land by being leased or used for dwellings," pass on the death of the tenant for life to the remainderman. In this case the lessee of the dowress erected on a city lot a row of buildings framed in the shop, each part marked for its particular position, and raised, and finished without further framing, on a brick foundation, with brick chimneys and composi- tion roof entire, and rented the lower rooms for stores and the upper for bedrooms. On the death of the dowress these buildings passed to the remainderman with the land. See, also, Doak v. Wiswell, 38 Me., 569 (1854); Haflick v. Stober, 11 Ohio St., 482 (1860); McCullough v. Irvine, 13 Penn. St., 438 (1850); Glidden v. Bennett, 43 N. H., 306 (1861). [See Schimpf v. Ehodewald, 62 Neb., 105, 113 (1901).] [A lessee of a life tenant erected a large frame building upon a good, firm foundation, and connected the same with the street sewerage. Eeld, that such building could not be removed by the lessee as against the remainderman, upon the death of the life tenant terminating the lease. Jones v. Shuffin, 45 W. Va., 729 (1898).] [Where a purchaser, by warranty deed, from a life tenant, erects build- ings and other valuable improvements under the impression that he has title in fee-simple, such improvements, upon the death of the cestui que vie, pass with the land to the remainderman. Pickett v. Pope, 74 Ala., 122 (1883).] [Where a life tenant agrees to purchase, at the expiration of a lease made by him, buildings erected by his lessee, the remainderman, upon the death of the life tenant, takes them without any liability to recompense. Chilvers v. Eace, 196 111., 71, 82 (1902).] [Buildings were erected under an agreement between the builder and a tenant by the curtesy that the builder might remove them, which he did after the death of the life tenant. Eeld, that the heir could recover the value of the buildings removed. Demby v. Parse, 53 Ark., 526 (1890).] In Clemence v. Steere, 1 E. I., 272 (1850), it was held, that the removal of a crib placed by a life tenant upon a rock and not afiixed to the free- hold, was not waste. See, also, 6 Law Mag. (London), 95 (1831). [Where a railroad company purchases land from a life tenant, and con- structs a track thereon, upon the death of the life tenant such structures do not pass to the remainderman. Charleston E'y Co. v. Hughes, 105 Ga., 1, 25 (1898).] [Structures erected by permission of the tenant for life which remain the property of the builder, do not pass to the remainderman. Chicago & Alton E. E. Co. v. Goodvpin, 111 111., 273, 281 (1884).] 284 CHAP, v.] ECCLESIASTICAL PERSONS — DILAPIDATIONS. *199 *IV. Of the Eight op Ecclesiastical Persons and [*199] THEIR Representatives to Fixtures. — Dilapidations. The cases of fixtures put up by ecclesiastical persons, and the subject of dilapidations, though in some respects distin- guishable from the case of annexations by tenants for life or in tail, may be conveniently considered in this connection. This subject (except in one case hereinafter cited) does not seem to have been at all considered by the courts in the United States; and under the prevailing policy adopted in relation thereto it can never be a subject of any practical importance in this country. But, as this work might be deemed incomplete were the subject entirely passed over, the author cannot, per- haps, do better than to present in this connection the observa- tions of Mr. Ferard^ on the subject, with such remarks in rela- tion thereto as seem warranted by cases since decided in Eng- land : ' ' The claims arising between these persons and their successors in respect of annexations made by them to the free- hold, seem very nearly to resemble those which have been the subject of the preceding sections.^ And, accordingly. Bishop Gibson in his Codex,* in treating of dilapidations, refers to the cases of Beck v. Rebow, Cave v. Cave, and Herlakenden's Case, which have frequently been cited in this treatise-.* And he says that, 'he sets them down as parallel to the disputes which sometimes happen between succeeding incumbents and execu- tors of their predecessors,, as to what may or may not be *taken away, and how far the taking of them away [*200] shall be accounted dilapidation.' "The questions generally in dispute between ecclesiastical persons, relate to matters of ornament or convenience erected in the parsonage-house, etc., by the resident incumbent. And with respect to things of this description, it is laid down by the author of the Ecclesiastical Law,^ that 'if an incumbent enter upon a parsonage-house, in which there are hangings, 1 Ferard Mxt., 145, et seq. 2 Eelating to tenants for life and in tail and their representatives. » Gibson's Cod. Jur. Eccl., p. 752. * See post, Heir and Executor. 6 4 Burn's Eccl. Law (9th Lond. Ed.), 413. 285 *201 THE LAW OF FIXTURES. ' [CHAP. V. grates, iron backs to chimneys, and such like, not put there by the last incumbent, but which have gone from successor to successor, the executor of the last incumbent shall not have them, but it seemeth they shall continue in the nature of heir- looms; but if the last incumbent fixed them there only for his own convenience, it seemeth they shall be deemed as furniture, or household goods, and shall go to his executor.'® "It may, therefore, it is conceived, be laid down that an in- cumbent or his executor will in general be entitled to fixtures of the same description as those which form part of the per- sonal estate of a deceased tenant for life, and which have been described in the second section of this chapter."^ The principle last above stated was questioned in an article upon the subject in volume VI. of the (London) Law Magazine for 1831, on pages 98 et seq., where the opinion was expressed that the duty of an incumbent to maintain, repair and restore his parsonage, extended not only to the main walls and tim- bers, but to all fixtures for domestic use and convenience, which contribute to render it a suitable residence for the incumbent; and that, although he were to annex fixtures de novo, which had no place before, yet, if they were for convenience and do- mestic use, and suitable to the parsonage, it was questionable whether a court would allow them to be removed.® There [*201] *seems, however, to be no question (and it is so stated in said article), but that an incumbent may remove fixtures serving for mere ornament or luxury, for he is "not bound to supply or maintain anything in the nature of ornament. ' '* And there seems to be no good reason for any such distinction as is suggested in the article referred to with reference to articles of convenience and domestic use; nor has any authority been dis- e It seems that window-blinds and a stove put into a parsonage by the incumbent who was seized thereof in fee in right of the parish, are not necessarily a part of the freehold, and may be removed by the incumbent on the termination of his pastoral relation. Greene v. Maiden, 10 Pick., 500, 504 (1830). 7 Part I., chap. 3. 8 See Gibb. Fixt., 13; Grady Fixt., 178. See, however, Greene v. Maiden (supra). oSee Gibb. Fixt., 13; Wise v. Metcalfe, 10 B. & C, 299 (1829), cited (post). 286 CHAP, v.] ECCLESIASTICAL PERSONS — DILAPIDATIONS. *202 covered in opposition to the statement above quoted from the work of Mr. Ferard, and supporting the distinction above stated. But the ornaments of the chapel of a preceding bishop being considered as in a manner fixed to the realty and in the nature of heir-looms, belong to the succeeding bishop, and are merely in succession; although other chattels in the case of a sole cor- poration belong to the executors of the deceased party.^' The rule allowing an incumbent or his personal representa- tives to remove fixtures erected for purposes of ornament or luxury merely, has also been extended to allow the removal of hot-houses, pineries, conservatories, and similar buildings erected for said purposes, where they are capable of being re- moved without injury to the freehold. In the case of Martin v. Roe,^i the subject was quite exten- sively considered. In this ease an incumbent erected in the garden of the rectory apart from the rectory house, two hot- houses respectively about twenty-three and forty-seven feet in length by fifteen and seventeen in width, consisting of a frame and glass-work about ten feet high (the glass-work sliding up and down by pullies), resting on brick walls about two feet high and bedded in mortar thereon. After the death of the incumbent his executors claimed the frame-work and glass- work and removed it from the mortar in which it was bedded on the brick wall, doing no damage except what was necessa- *rily done to the mortar in the removal. The defendant [*202] took the same out of their possession, claiming that it belonged to him as rector; and it was held that the incumbent or his executors might remove such annexations within a reasonable time after his death without incurring liability for either waste or dilapidation. In delivering the opinion of the court. Lord Campbell, C. J., after quoting approvingly the rule last above quoted from the work of Mr. Ferard, said: "It may be worth observing that there is this distinction between an incumbent and an ordinary tenant for life : that the former has at no time any reversioner with any present interests or rights, whereas, 10 Bishop of Carlisle's Case, 21 Edw. 3, 48b (1346), cited in Corven's Case, 12 Co., 105. See, also, Fulwood's Case, 4 Co., 65 a (1591). [See Petre v. Ferrers (1891), Weekly Notes, 171.] 11 7 Ell. & Bl., 237, 247 (1857) ; s. c, 3 Jur. (N. S.), 465; 26 L. J., Q. B., 129; 40 Eng. L. & Eq., 68. See, also, 6 Law Mag., 102. 287 *203 THE LAW OF PIXTUEES. [CHAP. V. when the latter annexes anything to the freehold or in any- way meddles with it, he annexes to or meddles with that in which some other person or persons has or have at the moment an existing interest which may be increased or decreased in value by what he does, and which the law will protect.^^ But neither the patron of the benefice nor the future unknown suc- cessor has any such interest in the parsonage or glebe; if any 'one can interfere it is the ordinary; and he not in respect of any interest vested in him, but to advance the general public object of endowments to the clergy. This seems a reason for enlarging the rule as between the executor and successor, where the subject-matter in dispute is not of a kind that can be con- sidered as inalienably attached to the benefice, as in such case there would be no ground even for the interference of the ordi- nary. Suppose the case of an observatory, which an incumbent having built should take down again; it would be absurd to talk of the ordinary interfering to prevent him. "When, how- ever, the eases between the executor of tenant for life and remainderman are looked into, they will be found to turn each on its peculiar circumstances; the character, the use, the mode of attachment, the facility of severance, the injury to the free- hold by severance. In regard to an ecclesiastical benefice, the character and object of the building to which the chattel is attached, and for which it has been so attached, seem of very [*203] *great consequence in determining whether there was any intention to separate it permanently and irrevocably from the personal estate. Here then is an erection, in itself purely matter of luxury and ornament, which the testator might have pulled down, but which he probably wished to enjoy so long as he lived in the benefice, and therefore did not remove. To this, and for the purpose of completing that luxurious and ornamental creation, a chattel is so attached that it may be de- tached without injury to the freehold. We think the inference is that it never ceased to be a chattel during the testator's life, that it continued to be so at the moment of his death, and therefore passed as part of the personal estate to the executors. Had this chattel been merely screwed, or had it been, as a tel- 12 The fee simple is said to be in abeyance, and the incumbent in truth to be but a tenant for life, in Huntley v. Eussell, 13 Q. B., 572 588 (1849) ; s. C, 13 Jur., 837; 18 L. J., Q. B., S38s 288 CHAP, v.] ECCLESIASTICAL PERSONS — ^DILAPIDATIONS. *204 escope in an observatory, strongly secured, as such instruments commonly are, to what is part of the building itself, we think no question would have been made. And this seems to us to present no substantial difference in principle." In the fore- going remarks the court were considering the subject with reference to the law of fixtures. The subject of dilapidation was also considerably discussed in said case, and the case will be found again referred to below in that connection. Buildings erected by an incumbent for purposes other than ornament or luxury, where they are not fixed to the freehold, are held to be removable without incurring liability for waste or dilapidation.! * It is said, however, that the incumbent of a benefice, or his executor, can have no right to trade fixtures, because it would be unlawful for him to set them up}* With reference to the subject of dilapidation we quote from the work of Mr. Ferard,i^ as follows: "Dilapidation is a *kind of ecclesiastical waste, and is thus defined by [*204] Degge in the Parson's Counselor, p. 134: 'A dilapidation is the pulling down or destroying in any manner any of the houses or buildings belonging to a spiritual living, or the chancel; or suffering them to run into ruin or decay; or wasting and de- stroying the woods of the church, or committing or suffering any willful waste in or upon the inheritance of the church.' The species of waste that constitutes dilapidation is such as is committed to the rectory-house, barns, out-buildings, etc., be- longing thereto, and to the woods, hedges and fences of the same;!® as also to the chancel of the church. These the in- cumbent for the time being is bound to keep in good and sub- stantial repair. But it is confined to these things, and to fix- 13 Huntley v. Eussell, 13 Q. B., 572 (1849) ; s. c, 13 Jur., 837; 18 L. J. (N. S.), Q. B., 239. The buildings in this case were a lean-to, a cottage, and barn, of the kind known in that part of the country as "tenant- right" buildings; and were not fixed to the freehold, but rested on the ground or rook, or on bay stones. One of them (as appears by a note) stood partly upon posts which had sunk not quite a foot into the ground, the intention of the party in using posts being merely to prop up the building and not to let them into the ground. "Gibb. Fixt., 13. IB p. *147, et seq. 16 4 M. & S., 188 ; 2 Ad. & El., 773. 19 289 *205 THE LAW OF FIXTURES. [CHAP. V. tures and other annexations which became part and parcel of the freehold ; and, therefore, a neglect to cultivate . the glebe land in a husband-like manner does not amount to dilapida- tion, "i^ The subject of dilapidation was also considerably discussed in Martin v. Roe, the facts of which have already been stated in this section; and as this is a case of considerable importance in this connection, we quote from the opinion of the court, which was delivered by Campbell, C. J., so much as pertains to this subject: "We have found no decision nor authority of any text-book precisely governing this case; and we consider it therefore on principle. "In the first place, it seems clear that had the testator in his lifetime done what the plaintiffs have done since his death, the defendant could not have sued them for dilapidations. The character of the building would have justified the incumbent in the removal of the whole of it, only he must have restored the garden to its former condition if in the removal he had occasioned any injury to it amounting to waste. For the duty of a present and the right of a succeeding incumbent, as such, are correlative. Any matter of needless expense, or luxury, or ornament, in which the present incumbent, to gratify his own taste, has indulged himself (blamably or not is im- [*205] "material), he is not only not bound, but he ought not, to transmit to his successor. If the successor may recover damages from the executor because such things have been removed by their testator, there can be no doubt he, in his turn, must maintain them; and what he must maintain he must also re- store and rebuild when decayed by his fault; and so the bene- fice will become permanently saddled with a useless burthen, and an indefinite, it may be ruinous expense. Hot-houses, pineries, and conservatories do not in this respect differ from observatories, menageries or aviaries; they are equally what in a provincial constitution of 1236, 21 H. 3, cited in Wise V. Metcalfe, 10 B. & C, 314,i* are called impensoe voluptuosoe, as distinguished from necessariae. The parsonage and the glebe "Bird V. Eelph, 4 B. & Ad., 826 (1833). 18 The words appear to be taken from Lyndwood 's Commentary on the Constitution, Provinciale, lib. III., tit. 27, p. 250 (ed. 1679), not. s. 290 CHAP, v.] ECCLESIASTICAL PERSONS — DILAPIDATIONS. *206 are for the decent and suitable residence and sustenance of the incumbent, and are to be maintained, according to the inten- tion of the law, out of the revenues of the benefice. This par- sonage and glebe the succeeding incumbent is entitled to receive from his predecessor; the former of such convenience and char- acter as he found it, and in good condition, properly repaired, or even rebuilt, if by his neglect that has become necessary ; the latter in good repair and order, with its buildings and fences. Whatever he is so entitled to receive he must transmit ; and the extent to which, in any particular case, this reciprocal right and duty will go, must be determined by a liberal and sensible con- sideration of the circumstances. It is impossible, from the na- ture of the thing, to lay down a more precise rule. Therefore cases may occur which are near the dividing line, and so pre- sent a practical difficulty. But what we have now to deal with, namely, hot-houses nearly seventy feet in length, present none. The testator did an unnecessary, probably a very unwise and unsuitable act, in erecting them; and, when he had done so, there was a locus poenitentiae. Nothing prevented him from removing at once aU that was mere fixture ; and this is all that we need decide now; though, as we have already intimated our opinion, we should have no difficulty in deciding, if *necessary, that he might have removed the whole erec- [*206] tion."i9 The principle upon which compensation for dilapida- tions is to be estimated was stated in Wise v. Metcalfe^" to be that "the incumbent was bound to maintain the parsonage, and also the chancel, and to keep them in good substantial repair, restoring and rebuilding, when necessary, according to the origi- nal form, without addition or modern improvement ; and that he was not bound to supply or maintain anything in the nature of ornament, to which painting (unless necessary to preserve ex-, posed timbers from decay) and white-washing and papering belong." 18 The learned judge remarks, in concluding this branch of the case, that it is only with reference to the strict law of dilapidations that the above remarks must be considered as made. The subject of fixtures as discussed in said case, has already been presented (ante) in this section. 20 10 B. & C, 299 (1829). See, however, dictum of Krle, J., in Huntley v. Eussell, 13 Q. B., 572, 585 (1849). 291 *207 THE LAW OP PIXTUEES. [CHAP. V. "The remedy for dilapidation is in its nature similar to that provided against the owners of particular estates. For bishops, rectors, parsons, vicars and other ecclesiastical persons, are con- sidered in questions respecting the waste of lands which they hold jure ecclesiae, as tenants for life.^i An action lies at the common law for dilapidation, upon the custom of the realm ;22 though the right to sue in the temporal courts was not settled till the case of Jones v. Hill (3 Lev., 268; s. c, Carth., 224 [1690] ) . It lies also in the spiritual courts by the canon law,^^ and remedies have moreover been provided by particular statutes, 13 Eliz., c. 10 ; 14 Eliz., o. 11 ; 17 Geo. III., c. 53 ; 57 Geo. III., c. 99.24 The action may be brought by the successor against the predecessor if living, or if dead, then against his executor, etc. The action against the executor of the tort feasor was in this respect an anomaly, and an exception to [*207] *the general rule that actio personalis morihir cum per- sona. But if the successor have not the legal estate in the parsonage-housfe, lands, etc., he cannot bring an action for dilap- idations. ^^ If, however, the successor, being entitled to the legal estate, is put into possession of a part of the glebe, it is equivalent to an induction into the whole.^® Upon an exchange of livings by agreement after mutual institution and induction, one incumbent may sue the other for dilapidation; and this al- though neither party at the time may have contemplated- any such claim. For they have the same rights as in a common case of presentation ; and it cannot be implied in such an agree- ment that either -party was not to be liable for dilapidations.^'^ 21 Ferard Pixt., 148, citing 2 Eoll. Ab., 813 ; Eoll. Eep., 86 ; Amb., 176 ; 2 Atk., 217. See (ante) pp. *199, *200 in this section. 32 Lil. Ent., 21, 67, 68 ; 2 Term, 630 ; 3 Bl. Com., 91. 23 Eespecting the proceedings in the ecclesiastical court, see Gibson 's Codex, 751, et seq.; 1499, et seq.; and 3 Bl. Com., 91. 2* It is said also to be good cause of deprivation, if an ecclesiastical person dilapidates the patrimony of the church. 3 Bl. Com., 91; Degge, part 1, ch. 8, p. 92; Wood's Case, cited 12 Mod., 237; 3 Inst., 204; God- bolt, 259. 25 Wright V. Smythies, 10 East, 409 (1809) ; Browne v. Eamsden, 8 Taunt, 559 (1818) ; s. C, 2 B. Moore, 612. 20Bulwer v. Bulwer, 2 B. & Aid., 470 (1819). 27 Downes V. Craig, 9 M. & W., 166 (1841). And see this case as to the validity of an agreement to waive a claim for dilapidations under such cir- cumstances. 292 CHAP, v.] WHEN TO BE EEMOVED. *208 A prebendary or his personal representative, is liable to the successor for the waste of a prebendal house.^* So, also, a sequestrator may be sued for dilapidations.^^ An action for dilapidations lies by the succeeding vicar against his predeces- sor, who by taking a benefice, has lost his vicarage.^" But it has been held, that a curate appointed by the impropriator, and licensed by the archbishop, but not instituted or inducted, is not liable to be sued for dilapidations. "^^ *V. "Within what Time the Right op Removing [*208] Fixtures as between the Personal Representatives OF Tenant for Life or in Tail and the Re- mainderman OR Reversioner, etc., must be Exercised. There do not seem to be any adjudications bearing directly upon this subject. As has been already stated in a prior chap- ter,32 tiie general rule that the right of removal of fixtures must be exercised before the expiration of the tenancy, is neces- sarily subject to exception in those cases where the tenancy is of uncertain duration and liable to be determined by the happening of some contingent or uncertain event on which it depends, as in the ease of a tenancy at will. And in analogy to the case of a tenancy at will, it seems that, to say the least, the right of the personal representatives of a deceased tenant 28EadclifEe v. D'Oyly, 2 Term, 630 (1788). 29 Hubbard v. Beekford, 1 Hag. Consist., 307 (1798) ; WHnfield v. Wat- Idns, 2 Phimm., 1 (1812). soVin. Abr., Dilapidations. siPawly V. Wiseman, 3 Keb., 614 (1687). For further information Mr. Ferard refers to Vin. Abr. Dilapidations, with Serg. Hill's notes in Lin- coln's Inn Library; Stillingfleet 's Eccl. Cases, part 1, p. 60, et seq.; Degge's Parson's Counsellor, by Ellis, p. 134, et seq.; Godolphin Eep., 173, et seq.; Watson's Complete Incumbent, p. 399; Gibson's Codex, 751, et seq.; Burns' Bccl. Law, Dilapidations; Woodeson's Vin. Lect., Vol. III., 205; Cripp's Treatise, 276, et seq.; Bird v. Kelph, 2 Ad. & El., 773 (1835). And see Stat. 13 EUz., ch. 10; 14 EUz., ch. 11; 17 Geo. 3, ch. 53; 57 Geo. 3, ch. 99; 1 & 2 Vict., ch. 106, sec. 41. See, also, as to proceed- ings for waste, by action, and by prohibition and injunction, in the second part of this [Mr. Ferard'B]'work; also EoU. Eep., 335; 11 Eep., 49 a. 32 Ante, p. *147. 293 *208 THE LAW OF FIXTURES. [CHAP. V. for life or in tail to remove the fixtures to which they are en- titled, is not terminated until after the expiration of a reason- able time after the death of the person whom they represent.** Whether the right of removal shall be considered to extend further than this, the authorities do not declare. With reference also to the analogous case of erections made by the incumbent of an ecclesiastical benefice, which he is en- titled to remove, they may be removed by his executors within a reasonable time after his death.** If, however, he voluntarily determines his own interest, as by a resignation, or by accepting a benefice, he cannot, it seems, afterwards remove anything affixed to the freehold. ^^ Such has been held to be the case with reference to the emblements where a parson resigns his living.*^ ■ 33 See ante, p. *147, and cases there cited; Gibb. Tixt., 12, 13; Terard Fixt., 136, note (citing 22 Edw. IV., 27, and Cro. Jac, 204) ; Martin v. Boe, 7 Ell. & Bl., 237 (1857); 1 Wms. Exrs. (6th London ed.), 705. 3* Martin v. Eoe (supra) ; Grady Eixt., 178. 36Perard Pixt., 146; Grady Fixt., 178. seBulwer v. Bulwer, 2 B. & Aid., 470 (1819); see, also, Betham v. Gregg, 10 Bing., 352 (1833). 294 CHAPTBE VI. [*209] OF FIXTURES AS BETWEEN HEIR AND EXECUTOR. The authorities all agree in stating that the rule quicquid plantatur solo, solo cedit, is applied with more rigor in favor of the inheritance as between executor and heir, than in the relations of landlord and tenant, and tenant for life or in tail and remainderman or reversioner.^ The reason of this stricter application of the ancient rule of law may be found in a variety of circumstances. In addition to the known regard of the law for the interests of the heir, it may be stated that there exist here no such grounds of public policy for making an exception to the old rule of law as in the relations above mentioned. There being no community of interest respecting fixtures be- tween landlord and tenant, the tenant would rarely erect valu- able improvements for trade purposes, if he were not allowed to remove them at the termination of his estate. In the case of tenant for life or in tail, as we have seen in the preceding chapter, the interest of the tenant being usually more inti- mately connected with that of the remainderman or reversioner, and his estate being more lasting, there arises a stronger pre- sumption that annexations are intended as permanent amelio- rations of the estate. And in the case of tenant in fee, the question is merely one of real or personal assets; and, especially in this country where in cases of intestacy as a general rule real and personal property ultimately vest in the same per- sons, whether the property after the death of the owner passes to his real or his personal representatives is a considera- tion which ordinarily would have no influence whatever upon *him in making annexations to the realty. Moreover [*210] in the case of a tenant in fee there arises from the nature of his 1 See, generally, the authorities cited in this chapter and the chapters treating the subjects above mentioned; also, Kinsell v. Billings, 35 Iowa, 154 (1872); 2 Kent Com., 345. [See Norton v. Dashwood [1896], 2 Ch., 497, 500. For the rule as to vegetable products, see, post, *246.] 295 *211 THE LAW OF FIXTUEES. [CHAP. VI. interest a presumption, very much stronger than in any of the other relations above referred to, that such annexations were intended as permanent accessions to the realty; and where such intention exists, it has, as has been already stated in a pre- ceding chapter, a controlling influence in determining the question whether the article has become a part of the realty.^ With regard to the requisite degree of annexation by the owner- of the soil to convert a chattel into a fixture possessing the attributes of realty, and whether actual annexation is in all cases necessary, what has been said in a previous chapter with regard to the subject of annexation real and constructive, is believed to be equally applicable in this.^ In determining questions arising between the heir and the personal representatives of the tenant in fee, as to whether articles annexed to the realty by the owner of the soil go with the land to the heir or to the executor as a part of the personal estate, though there are some authorities to the contrary, the rule is believed to be that in all cases, without exception, where an article of a chattel nature has been so annexed to the realty by the owner both of such chattel and the realty as to have lost its chattel nature and to have become to any extent pos- sessed of the attributes of the realty, it passes as res acces- [*211] *soria with the realty, which is the res principalis, to the 1 See (ante) pp. *22, *39, et seq. 2 See (ante) pp. *8, *33, et seq.; also post, chapter 9. [Dowall v. Miln (1874), 1 Sess.Cas., 4th Ser., 1180.] The degree of annexation may be so slight as, taken in connection with the purpose for which it was made, to show there was no intention to make the article annexed an accession to the realty, even though such annexation is made by the owner of the freehold; and in such case the article will remain a chattel. Thus a heater placed in a vat in a tannery, the vat being detached from the building except that a small piece of board was tacked with nails to the vat and the side of the building, such fastening being unnecessary and of no use except to keep the side standing while the vat was put together, is not, it seems, so annexed to the freehold as to make it a fixture, even if annexed by the owner of the freehold. Eay- mond V. White, 7 Cow., 319 (1827). In Crenshaw v. Crenshaw, 2 Hen. & Mun., 22 (1808), it was held, that a common still not fixed to the freehold, in a house which would not be. injured by its removal, was personalty, and went to the executor and not to the heir. 296 CHAP. VI.] HEIB AND EXECUTOR. *211 heir.3 The so-called exceptions of fixtures which are held to pass to the executor, are believed not to be fixtures in any true sense of the word, but mere chattels which pass to the executor by virtue of their nature as such, and not as being exceptions to the general rule in relation to articles which are parcel of the realty.* It seems clear that in determining the question above stated, it is immaterial that the articles fixed are of such a nature as, if fixed by a tenant, would be removable by him during his term.^ Nor is it necessary in order to make annex- ations by the owner of real estate a parcel of the realty, that he be owner of the realty by an indefeasible title.® It is be- 3 Where, however, the res principalis passes to the executor, as per- sonalty, the res accessoria passes with it, as in the ease of the tenant's interest in a leasehold house which passes with the fixtures to the executor. See Brown Fixt., §§ 26, 208; Off. Ex. (14th ed.), 153. [In Scotland a lease descends to the heir, and the question arose whether mining machinery removable as between the lessor and lessee, passed to the heir or to the executor of the lessee. Beld, that fixtures passed to the heir. Bain v. Brand (1876), 1 App. Cas., 762, reversing (1874) 2 Sess. Cas., 4th Ser., 258, 267, and followed in (1878) 5 Sess. Cas., 4th Ser., 607.] The water-wheel and gearing of a mill attached thereto and necessary to its operation, the wheel movable and being on gudgeons, and having a head-stock not fixed, the ends of the shafts of the wheel resting on perma- nent fixtures in the building, and the wheel being incapable of being taken out without removing a part of the building and being separated into pieces, are fixtures and real estate such as would have passed to the heir by descent and to which the right of dower attaches. Powell v. Munson Man'f 'g Co., 3 Mason C. C, 459 (1824). [A pier erected for the use of a wharf attached to the fee of a street is real property in which the widow is entitled to dower. Bedlow v. Still- well, 158 N. Y., 292 (1899), aff'g 98 Supr. Ct. (91 Hun), 384, 385 (1895).] [Compensation allowed for a house and fences placed upon the land of another by one since deceased, belongs to the heirs and not to the adminis- trator. Worth V. Worth, 84 111., 442, 445 (1877).] 1 There are some cases (referred to post) where articles which might properly be considered to be fixtures have been held to pass to the executor instead of to the heir. These cases, however, are believed to be incorrect statements of the law. 5 See Ex parte Eeynal, 2 M. D. & DeG., 443, 461 (1841). 8 Christian v. Dripps, 28 Penn. St., 271 (1857). See, also, Kinsell v. Billings, 35 Iowa, 154 (1872), where the structure (a mill) was built by one claiming to be the owner of the land. 297 *212 THE LAW OF FIXTURES. [CHAP. VI. lieved also that where a tenant in tail leaves issue in tail, his executor will not be entitled to greater privileges as to fixtures against the heir in tail, than the executor of a tenant in fee simple against the heir in f ee.'^ Although, as above stated, fixtures as distinguished from mere chattels, as between executor and heir descend with the land to the heir, and do not pass to the executor as personalty, this view, as will be shown hereafter, has not always been adopted by the courts. The early authorities, however, seem [*212] *to lay down the rule without exception; and this with- out reference to whether the erections were made for the pur- pose of trade or otherwise. In the Tear Book, 20 H. 7, 13 b, pi. 24 (1504), the action was trespass brought by the heir against the executor for the removal of a furnace which was fixed and annexed to the frank-tenement with mortar, and the court held the removal to be tortious: "For those things which can neither be for- feited by outlawry in personal actions, nor attached in assize, nor distrained by the lord for the rent, such things the exec- utors shall not have; but a furnace, or a table fixed in the earth with posts, or a paling, or a covering of a bed, or a wain- scot or border fixed to the frank-tenement, or doors and win- dows and other like things which are annexed to the frank-tene- ment and are made pur un profit del' enheritance, can neither be forfeited by outlawry nor taken in distress, therefore ex consequente it follows that the executors shall not have such things, etc." * In 21 H. 7, 26 b (1506), which is probably another report of the same case,® a man seized of a house in fee simple,, made a furnace of lead in the middle of the house, which was not fixed to the walls of the house, and having appointed his execu- tors, died. The heir entered, and the executors took the furnace, whereupon the heir brought trespass; and it was held by the entire court that the action lay, because the furnace was fixed to the frank-tenement; "for as well is the land the frank-tene- ' See the preceding chapter, p. *184. 8 See, also, the case next cited. oSee Powell v. Monson Man'g Co., 3 Mason C. C, 465 (1824), per Story, J. 298 CHAP. VI.] HEIB AND EXECUTOB. *213 ment as the house; and therefore it shall go with the frank- tenement, "i* Pollard, J., in this ease observed that "such things as are affixed and annexed to the frank-tenement, will descend to the heir with the inheritance ; and moreover they will pass by feoffment with the frank-tenement; as where vats are fixed in the earth, either in a brew-house or in a dye-house, they are appurtenances to the frank-tenement and are altered from the *nature of a chattel."!^ In the same case Kings- [*213] mil, J., observed that "after it is fixed to the frank-tenement, it is incident to, if it is not parcel of, the frank-tenement ; and it will always go and pass with the frank-tenement." * * * "And where a person fixes vats in a brew-house or a dye-house, and dies, the heir shall have them [the vats] : for when they are fixed, they are for the continual profit of the house ; and on this account it is more reasonable that the heir should have them, who has the frank-tenement to which they are annexed, than that the executors should have them, who have nothing to do with the frank-tenement. " Rede, C. J., also said: "The execu- tors shall have all kinds of chattels which were their testator's; but this is where they are properly in the nature of chattels; therefore, here when this furnace is annexed and fixed to the earth, it is, as it were, a thing of a higher nature, and in a man- ner is made incident to this. As in the ease which has been put of tables dormant, the heir shall have them after the death of the ancestor, and not the executors; and for the following rea- son, that when they are joined to the inheritance, it is agreeable to reason that they should pass with the inheritance until they are severed by him who has authority to sever them, and this is he in whom the inheritance is."^^ The early text-books and 10 See, also, 11 Vin. Abr., 167; Bro. Abr. Chattels, pi. 7; id. Executors, pi. 95; id. Trespass, pi. 212; Bac. Abr. Executors, H. 3. 11 See, also, 11 Vin. Abr., 167 ; Bro. Abr. Executors, pi. 95 ; id. Trespass, 212; Powell v. Monson Manf'g Co., 3 Mason C. C, 465 (1824), per Story, J. 12 See, also, Keilw., 88; 8 H. 7, 12; Day v. Austin, Owen, 71 (1595); Cooke's Case, Moore, 177 (1582); 4 Co., 63b, 64; Cro. Jac, 129; Swinb. pt. 6, sec. 7; Godolph. Orp. Leg., pt. 2, ch. 14; Shep. Touch., 469, 470; Off. Ex., 149, et seq.; Com. Dig. Biens, B.; Bro. Abr. Chattels, pi. 7; id. Executors, pi. 95; 4 Burns' Eccl. Law (9 Lend, ed.), 410; Bac. Abr. Executors, H. 3; 11 Vin. Abr., 167; Tost. C. L., 109. [See Carr v. Georgia E. E., 74 Ga., 73, 82 (1884).] 299 *214 THE LAW OF FIXTUEES. [CHAP. VI. digests also state the rule with equal strictness, and quite gen- erally state that rule to be that glass^^ annexed to the windows of a house, wainscot however affixed, tables dormant, coppers, leads, bayes, mangers, doors, pales, walls, staulks, cupboards, [*214] *presses, lockers, etc., affixed to the freehold, furnaces of lead and brass, vats in a brew and dye-house, whether fas- tened to the walls, or not fastened to a wall, but standing in or fastened to the ground in the middle of the house, mill-stones, anvils, doors, keys, window-shutters, etc., pass to the heir as parcel of the freehold, and not to the executor. i* The rule as thus laid down and supported by numerous early authorities, has also, as we shall see hereafter, been followed and confirmed by the weight of modern authority. As has been above stated there are, however, cases where a more liberal rule in favor of the executor and the personal estate seems to have been adopted by the courts ; and this with reference, not only to fixtures put up for the purposes of trade, but also to fixtures erected for other purposes. In Squier v. Mayer,i^ it was held that a furnace though fixed to the freehold and purchased with the house, and also hang- ings nailed to the walls, should go to the executor and not to the heir, contrary (as is therein stated) to Herlakenden 's Case,i® which was denied to be law as to the premises. .13 In 21 H. 7, 26 b, above referred to, it was said, per Pollard, J., quod non fuit negatumr "The contrary of glass, for the executor shall have this ; for the house is perfect vrithout the glass. ' ' But this is clearly not the law. See 4 Co., 63 b, 64; Co. Lit., 53 a; Off. Ex., 151; Swinb., pt. 6, see. 7; Shep. Touch., 469, 470; 4 Burns' Eecl. Law (9 Lond. ed.), 410. See, also, Cooke's Case, Moore, 177 (1582). "See note (12), p. *213. 15 Freem. Ch., 249 (1701) ; s. C, 2 Eq. Ca. Abr., 430. 16 4 Co., 64 (1589). The case referred to above as Herlakenden 's Case, seems to have been Warner v. Fleetwood therein cited. The case of Squier V. Mayer is thus commented upon by Mr. Brown, in his work on Fixtures, § 209: "Of this case two possible explanations may be given, either (1) that the purchase of the house and the purchase of the furnace, although the two purchases were made at one and the same time, were essentially distinct transactions, and had been treated as such by the deceased, who had therefore by his treatment of them, both at the time of the purchase and afterwards up to the date of his death, prevented that coalescence of the fixture with the freehold which would otherwise have naturally fol- lowed; or (2) that the fixtures in question in the case were of a peculiarly 300 CHAP. VI.] HEIR AND EXECUTOR. *215 *In Harvey v. Harvey ,1'^ it was held that hangings,' [*215] tapestry, and iron backs to chimnies belong to the executor and not to the heir; but it does not appear from the report how the articles in question were put up ; nor whether they were in fact at all annexed to the realty ; nor finally, whether the building to which they raay have been annexed was a leasehold or held in fee simple. The case of the cider-mill referred to by the court and coun- sel in Lawton v. Lawton,!^ as having been decided by Lord Chief Baron Comyns, may also be referred to in this connection. This cider-mill was said to have been let very deep into the ground, and yet upon an action of trover brought by the executor against the heir, it was held to be personal estate' and to go to the executor. This ease was cited approvingly by Lord Hardwicke in Lawton v. Lawton,!^ who also remarked that while it was true that the old rules of law had been relaxed chiefly between landlord and tenant, and not so frequently be- tween an ancestor and heir at law, or tenant for life and re- mainderman, yet even in these cases it did admit the considera- tion of public convenience for determining the question, and that even between ancestor and heir it would be very hard that such things should go in every instance to the heir. With refer- ence however to this cider-mill ease, Lord Mansfield observed in Lawton v. Salmon^" that he could not find any case except that expensive and unnecessary sort, and .had exhausted the personal estate in an excessive degree, so that there was a strong equity of creditors or of other persons calling for a mitigation of the rule. The case, unless ex- plainable on one of these two suppositions, or on some other supposition, can not be considered as an authority binding in cases between heirs and executors; as neither can the ease of Harvey v. Harvey," 2 Str., 1141. The case of Squier v. Mayer, as reported, contains no further statement of the facts than is herein stated, and it seems preferable to regard it (so far at least as concerns the furnace) simply as overruled. See the hangings referred to, post. 17 2 Str., 1141 (1740). See, also, 4 Burns' Eecl.' Law (9th Lond. ed.), 411; Beck v. Eebow, 1 P. Wms., 94 (1706). 18 3 Atk., 13 (1743). 19 Also in Dudley v. Warde, 1 Ambl., 114 (1751). See, also, Elwes v. Maw, 3 East, 38 (1802) ; Dean v. Allalley, 3 Esp., 11 (1799) ; Bull. N. P., 34; Trappes v. Harter, 2 Cr. & M., 153, 181 (1833). ■ 20 1 H. Bl., 259, note (1782) ; s. C, 3 Atk., 16 note. 301 *216 THE LAW OF FIXTURES. [CHAP. VI. about the eider-mill (which was not printed at large) where there had been any relaxation between the heir and executor; and that that case most probably turned upon a custom. And the case itself is now doubtless overruled. ^^ There are also some other authorities tending to support the more liberal doctrine [*216] above *stated, that will be found referred to in the note below and in a subsequent chapter where the relation of vendor and vendee, etc., is considered.^^ On the other hand, besides the early eases already referred to, there are several modern cases upon the subject which seem to settle the question in accordance with the views already stated. The subject will perhaps be relieved of some of its difficulty by bearing in mind the tests of a fixture as stated in the first chapter of this work. The early cases and many more modern .seem to make annexation the principal characteristic and test, though the influence upon the question of the pur- pose to make the articles a permanent accession to the realty seems hinted at in some of them by the use of the words "pur un profit del' enheritance," and other similar expressions.^^ A number of very respectable modern authorities lay down the rule that, as between executor and heir, the decisions seem to rest mainly on the ground that where the fixed instru- ment, engine, or utensil, etc., is an accessory to a matter of a personal nature (as a trade), it should be itself considered as personalty; but where an accessory to the enjoyment and use of the freehold, then it should be regarded as a fixture and go to the heir.2* This distinction was suggested by Lord Ellen- 21 See Fisher v. Dixon, 12 CI. & Fin., 312, 325, 329, 331 (1845) ; s. C, 9 Jur., 883; Wadleigh v. Janvrin, 41 N. H., 503, 515 (1860). See, also, cases referred to in the following pages. 22 See Ferard Fixt., 160, 188; Grady Fixt., 17, ei seq., 30. 23 See the cases from the Tear Books referred to at the beginning of this chapter. 21 See Lawton v. Lawton, 3 Atk., 13 (1743), and Dudley v. "Warde, 1 Ambl., 113 (1751), per Lord Hardwicke; Elwes v. Maw, 3 East, 38 (1802), per Lord Ellenborough ; McKenna v. Hammond, 3 Hill (S. C), 331 (1837) ; Fairis v. Walker, 1 Bail., 540 (1830) ; Nimmons v. Moye (1829), not re- ported, but cited in the two preceding cases; Heermance v. Vernoy, 6 John., 5 (1810) ; the case of the Olympic Thea;ter, 2 Browne (Pa.), 275 (1813); Tuttle v. Eobinson, 33 N. H., 104, 120 (1856), per Fowler, J. See, also, Teaff v. Hewitt, 1 Ohio St., 511, 535 (1853) ; Trappes v. Harter, 302 CHAP. VI.] HEIR AND EXECUTOR. *217 borough in Elwes v. Maw, in commenting upon the cases of Lawton v. Lawton, Dudley v. "Warde, Lawton v. Salmon, and *the eider-mill case; and the latter branch of the propo- [*217] sition is unquestionably true. This latter principle was made the ground of decision in the case of Lawton v. Salmon,^^ which was an action of trover by the executor against the tenant of the heir of the testator, to recover certain vessels called salt- pans, used in salt-works. These salt-pans were placed in the works by the testator some years before his death, and were made of hammered iron riveted together; they were brought in pieces and might be removed in pieces ; they were not joined to the walls, but were fixed with mortar to a brick floor with furnaces under them, and a space for workmen to go round them, and might be removed without injuring the buildings, though the salt-works would be of no value without them, while with them they were let for £8 per week. Lord Mansfield in delivering his opinion said: "I cannot find that between heir and executor there has been any relaxation of this sort" [re- 2 Cr. & M., 153, 181 (1833). In the cases of Lawton v. Lawton and Dud- ley V. Warde, it appears that certain other engines erected by the ancestors were considered not to be personalty. This subject is sometimes regulated by statute. See 2 E. S. (N. Y.), 83, § 6; post, p. *225; Downing v. Marshall, 1 Abb. Ct. App. Dec, 525 (1863), cited post in chap. 9, under head Devises of Fixtures. [Hay-scales, in an excavation made and stoned for the purpose, are part of the real estate descending to the heirs. Dudley v. Foote, 63 N. H., 57, 58 (1884); see, also, Arnold v. Crowder, 81 111., 56, 59 (1876).] [Articles so aflSxed to the building as not to be separable without injury to themselves or to the tenement are clearly heritable. Machines only at- tached for the purpose of their more convenient use, and having no special adaptation to the building, are not. In regard to such articles the part which the building bears is that of shelter and support, and is truly itself an accessory to the manufacture. Articles placed in a tenement, not with a view of increasing its value, but entirely for the objects of a separate trade, never lose their character as movable property. Eeld, that beam engines and boilers built in, and a steam pump and force pump bolted to wooden or stone blocks, lathes, etc., permanently fixed, circular saWs fixed upon benches, the feet of which were placed a little into the ground, but easily removable, and a hydraulic packing press built into stone founda- tions, go to the eldest son; but spinning machines, etc., are to be divided among the young children. Dowall v. Miln (1874), 1 Sess. Cas., 4th Ser., 1180.] 25 1 H. Bl., 259, note (1782); s. c, 3 Atk., 16, note. 303 *218 THE LAW OF FIXTURES. [CHAP. VI. f erring to the relaxation between landlord and tenant, etc.], "except in the case of the cider-mills, which is not printed at large.^s The present case is very strong. The salt spring is a valuable inheritance, but no profit arises from it unless there is a salt-work; which consists of a building, etc., for the pur- pose of containing the pans, which are fixed to the ground. The inheritance cannot be enjoyed without them. They are accessories necessary to the enjoyment and use of the principal. The owner erected them for the benefit of the inheritance; he could never mean to give them to the executor, and put him to the expense of taking them away, without any advantage to him, who could only have the old materials, or a contribution from the heir in lieu of them. But the heir gains £8 per week by them. On the reason of the thing therefore and the inten- tion of the testator, they must go to the heir. ' ' So, in MeKenna v. Hammond, already cited, when the in- testate died a cotton-gin house and running-gear were on his premises; and his administrator supposing the running-gear to form part of the personal estate, sold it to the plaintiff. The [*218] *question in the case arose between the plaintiff, as ven- dee of the administrator, and the vendee of the land at a sale by a commissioner under the order of the court of equity. The gearing was annexed as follows: The post of the large wheel was let into a block morticed in the joists of the house, which block was confined by pins on each side of it, but not driven through. The floor was laid down over the block, loose, not nailed. The court upon the authority of the case of Nimmons V. Moye, decided in 1829, but not reported, held that this gear- ing was a fixture attached to the freehold and that the admin- istrator had no right to sell it. In delivering the opinion of the court, Evans, J., observed that the principle upon which the ease of Nimmons v. Moye was decided, was that whatsoever is erected upon land as a means of enjoying it, is a fixture ; but whatever is intended for the piirpose of carrying on a trade, which has no necessary connection with the use of the land, is a mere chattel and belongs to the administrator. So, in Tuttle v. Robinson, already cited, a Franklin stove 28 In the report in 3 Atk., it is also said that this case most probably turned upon a custom. 304 CHAP. VI.] HEIR AND EXECUTOR. *219 weighing about 300 lbs., set in the bar-room of the house of the intestate in his life time, on brick-work, without legs and with a very short funnel bricked round, it being doubtful whether it could be removed without disturbing the brick-work, was (as being accessory to the realty), held as between the heir and administrator to be a fixture and to go to the heir.i The same principle has also been applied in other cases and may be re- garded as well settled.^ With regard, however, to the first *branch of the proposition there is great doubt, and the [*219] better opinion is believed to be that as between executor and heir the distinction is not well founded. The origin of the no- tion seems to have been the dictum of Lord Hardwicke in Law- ton V. Lawton, and that of Lord EUenborough in Elwes v. Maw, in explaining that and the other cases referred to, ante. So far as regards the so-called mixed cases there seems no doubt but that the doctrine is overruled; and the principle of the cases to be hereafter referred to is believed to extend to and include other erections for trade purposes, if intended as permanent and habitual annexations, which it seems will in this relation ordinarily be presumed. It will be observed that the author- ities referred to (ante) as supporting that distinction, are either dicta, or else refer to articles accessory to the realty, or are so- called mixed cases; and so far no case has been found where the point above stated has been directly raised and decided in iSee, also, Goddard v. Chase, 7 Mass., 432 (1811). It seems, however, that a stove similar to the one above described, weigh- ing about 150 lbs., standing in the dining-room on legs, and which had a short funnel passing into the chimney, but which might be removed with- out disturbing the brick-work, is personal property as between administrator and heir. Tuttle v. Robinson (supra). 2 See Bainway v. Cobb, 99 Mass., 457 (1868) ; Clark v. Burnside, 15 111., 62 (1853), where it was held, that rails in stacks are personal property, but that rails in a fence are parcel of the realty and pass therewith to the heirs; and that if a guardian severs and converts them to his own use, his estate is answerable directly to the heirs for their value. It is held, that manure taken from the barn-yard of a homestead and piled upon the land, though not broken up, nor rotten, nor in a fit state for incorporation with the soil, is a part of the realty and does not go to the administrators of the owner. Fay v. Muzzey, 13 Gray, 53 (1859). See, also. Carver v. Pierce, Sty., 66, 73 (1647) ; Aleyn, 32. [But see Gardner v. Perry, 39 Can. Law J., 670, 671 (Ont., 1903).] 20 305 *220 THE LAW OP FIXTURES. [CHAP. VI. accordance with said distinction in a case between executor and heir where the articles in question were erected for trade purposes solely as distinguished from mixed cases. The ques- tion was quite extensively considered in the House of Lords in the case of Fisher v. Dixon.^ In this case .the owner of land, for the purpose of better using and enjoying it, erected and affixed thereto certain machinery, consisting of engines, etc., to be used in working a coal and iron mine and works. This machinery was capable of being removed, but its removal would have been attended with a heavy expense and with more or less damage thereto. Some parts of it, as the engines for pumping the mines, were necessary in working the mines, and if removed very serious damage would have arisen to the mines unless immediately replaced. Upon, this state of facts it was held that such machinery would go to the heir as a part of the realty; and that, if the corpus of the machinery be- longed to the heir, all that belonged to such machinery, although more or less capable of being used in a detached state from it, [*220] *must necessarily follow the same principle and be con- sidered as passing with the realty to the heir. In rendering their opinions the cider-mill case was criticised and treated as of no authority by every member of the court whose opinion is re- ported.* It was insisted in behalf of the appellant that it was 3 12 Cl. & Fin., 312 (1845) ; s. C, 9 Jur., 883. * Lord Brougham said : ' ' Great reliance was of course placed upon the case before Lord Hardwicke, in our Court of Chancery here, and a similar ease which occurred more recently in the Court of Exchequer, ' ' [Trappes V. Harter, 2 Cr. & M., 150 (1833) ; s. c, 3 Tyrwh., 603]. "But there was an attempt made to distinguish this ease in principle from that, and to show that there was another inconsistent decision in the cider-mill case. Now it is a remarkable circumstance that of that ease we have only a very indistinct and unsatisfactory report. We have really nothing that can be called a record of that case. It was cited in the ease before Lord Hard- wicke; and I must also say, that if the cider-mill case is to be taken as it is represented to us, as regards the substance of the case, and in its result, my mind goes not at all with that decision. It is contrary, undeniably, to the general principles of our law upon the subject; and if the same ques- tions were to arise to-morrow, with the circumstances which are represented to have attended that case, it would not, in my opinion, lead to the same result. Therefore I lay it out of view. We have a most imperfect account of the circumstances, and, above all, of the most material circumstances, of how the mill was aflSxed to the soil. For if a cider-mill be fixed to the 306 CHAP. VI.] HEIR AND EXECUTOR. *221 *iiecessary for the encouragement of trade that the erec- [*221] tions in question should be considered as not belonging to the real, but to the personal estate. But the court were unanimously of the opinion that the principle uopn which a departure had been made from the old rule of law in favor of trade, had no application whatever to questions arising between heir and exe- cutor in a ease like this, where the individual who erected the machinery was the owner of the land and of the personal prop- erty which he erected and employed in carrying on the works. soil, though it is a manufactory, and erected for the purpose of a manu- factory, if it is really solo infixum, it is perfectly immaterial whether it is for the purpose of a manufactory, or a granary, or a barn, or anything else. It is a fixture on the soil, and it becomes part of the soil. Can any man say that one of the great brew-houses would belong to the executor because it is erected for the purpose of manufacture and wholly uncon- nected with the land? For a brew-house is as much unconnected with any crops upon the land upon which it is situated as a cider-mill can be said to be; it is for tho purpose of brewing beer out of malt which need not have been raised on that land, but may have been grown in Russia or in Africa. It has nothing to do with the land, as may be seen by those who wiU take the trouble of looking at any of the brew-houses in London, which are established in places where it would be very difficult to find a blade of grass, much less a crop of barley of which to make malt. But although it is a manufactory, nobody says it belongs to the executor, nor constitutes what the Scotch generally call an executry fund; it would go unquestionably to the heir. The Scotch law appears -to me only to differ from the English law in carrying the principles of our law, as laid down in the cases, a little further rather than falling short of them." Lord Campbell also said: "The only ease the other way which has been re- ferred to is that of the cider-mill, where the essential circumstance is left entirely in doubt, whether, in fact, the mill was fixed to the freehold or not. We know that a cider-mill is not necessarily affixed to the freehold, a familiar instance of which is given in the Vicar of Wakefield, where, when a match was proposed between one of the Misses Primrose and young Farmer Flamstead, Moses said: 'I hope that, if my sister marries young Farmer Flamstead, he will lend us his cider-mill.' I take it that the cider-mill there was movable, and was not affixed to the freehold, but might have been carried from the farm of Farmer Flamstead to the vicarage of the Primroses." Mr. Wilbraham, however, in his citation of the case ^escribes this mill as "let in very deep into the ground," and as being "certainly fixed to the freehold ; ' ' and the above explanation seems hardly satisfactory. See Ferard Fixt., 177, note; also Wadleigh v. Janvrin, 41 N. H., 503, 515 (1860). 307 *222 THE LAW OF FIXTURES. [CHAP. VI, He might have disposed of the land or machinery, or have separated them again. It was, therefore, not at all necessary in order to encourage him to erect these new works which were supposed to be beneficial to the public, that any rule of that kind should be established, because he was master of his own land.i The cases of heir and executor, vendor and vendee and mortgagor and mortgagee, in the absence of evidence of spe- cific intention contained in the deed affecting the question, which would of course prevail, have always been deemed iden- tical in respect to their rights in a chattel claimed to be a part of the realty .2 And according to the weight of authority, it seems well settled that, no intention to the contrary appearing, [*222] *trade fixtures pass to the vendee or mortgagee of the realty as parcel thereof, though as between landlord and tenant they might be removed by the tenant during his term.* With reference to articles affixed to the freehold by the own- er thereof for purposes of ornament or domestic convenience, though a contrary opinion has been maintained by some au- thorities,* the rule already laid down^ is believed to be equally applicable ; and the so-called exceptions are believed to be those articles of mere ornament or furniture movable in their na- ture, which in all respects are mere chattels and in no proper sense of the term fixtures; e. g., carpets, which are temporarily tacked to the floor to keep them in place and with no intention of making them an accession to the realty, pictures, curtains etc., which are clearly mere chattels.® The reports give no 1 See Climie v. Wood, L. E., 4 Exch., 328, 330 (1869) ; s. c, 38 L. J., Exch., 223, 225; 20 L. T. (N. S.), 1012, 1013; Mather v. Fraser, 2. Kay & J., 536 (1856) ; Walmsley v. Milne, 7 C. B. (N. S.), 115, 133, 136 (1859) ; and the eases therein cited. See, also, the early authorities cited at the beginning of this chapter (ante, p. *213). [See Walter Est., 10 Luz. Leg. Beg. Eep., 221 (1899).] 2 See 21 H. 7, 26 b (1506), cited ante, p. *212; Price v. Brayton, 19 Iowa, 309 (1865) ; Murdock v. Gifford, 18 N. Y., 31 (1858). See, also, the cases cited in the preceding note and in the chapter discussing the relations of vendor and vendee, etc. [Adams v. Beadle, 47 Iowa, 439, 441 (1877).] 3 See note next preceding. *See Eerard Fixt., 178, note, 182, et seq.; Squier v. Mayer, and Harvey V. Harvey, referred to, ante. [See Be Be Falbe [1901], 1 Gh., 523, 535.] s See the early authorities cited at the beginning of this chapter. 8 See Gibb. Fixt., 21; Swinb., part 7, sec. 10; Beck v. Eebow, 1 P. Wms., 308 CHAP. VI.] HEIB AKD EXECUTOR. *223 description of the hangings, tapestries, etc., mentioned in the cases of Squier v. Mayer, and Harvey v. Harvey, which possi- bly may likewise have been mere articles of furniture only temporarily fastened to keep them in place;'' but if they were so attached as to show a design to make them a part of the house, as in the case of the tapestries, etc., in D'Byneourt v. Gregory,* referred to in the preceding chapter, then unquestion- ably they would go to the heir. Each case must necessarily to a great extent be determined upon its own facts and the infer- ences as to intention to be drawn from them, in accordance with the principles stated in the first chapter of this work. Thus, in Cave v. Cave,® it was held that although pictures and glasses, generally speaking, are part of the personal estate, yet if put up instead of wainscot, or where otherwise wainscot *would have been, they shall go to the heir, to whom the [*223] house ought not to come maimed and disfigured. In the late case of Bainway v. Cobb,^'' the facts were as fol- lows: A stone sink weighing about 200 or 250 lbs. was set by the owner of a dwelling in the corner of a room over a cistern, and under the spout of a wooden pump connecting therewith. The sink rested upon a wooden frame next the sides of the room (there being an unpainted strip on the walls back of the sink and frame), and was not nailed or fastened to the house, except that a lead pipe ran from a hole at one end under the sink through the side of the house into a drain. The pump not working well was soon removed, but the lead pipe remained till it wore out and was then taken away and a stopple used in the sink and the waste water drawn or dipped out. The sink remained in the same place and was used for washing dishes and in doing other necessary and appropriate domestic work for some twenty-five or thirty years, and till after the death of 94 (1706). See, also, Birch v. Dawson, cited ante, p. *7. [That chande- liers will go to the heir, see Smith v. Commonwealth, 77 Ky., 31, 33 (1878).] 7 See Swinb., part 7, sec. 10, where hangings and carpets are mentioned as included in the term "household stuff." sAnte, p. *192. 9 2 Vern., 508 (1705) ; s. c, 1 Eq. Ca. Ab., 275. See, however, Beck v. Eebow, 1 P. Wms., 94 (1706). 10 99 Mass., 457 (1868). 309 «224 THE LAW OF FIXTURES. [CHAP. VI, the owner of the house. Upon this state of facts it was held, that the removal of the pump and the decay of the pipe, no change being made otherwise in its position or use, did not amount to a severance of the sink from the freehold so as to convert it into personal property again, and therefore, that it descended to the heir as real estate, and did not devolve upon the administrator and next of kin as personal property. The ground upon which the case was decided seems to have been that, as shown by the purpose and mode of placing it upon the premises, as well as by its adaptation for daily use in ordinary domestic work, if not by its necessity to the completeness of the dwelling, it was intended by the owner to be a part of the realty. In several other instances the courts in alluding to this sub- ject have expressed opinions that there were no exceptions to the general rule that fixtures pass with the freehold to the heir, and that certain specified domestic fixtures, though re- movable as between landlord and tenant, passed to the heir and not to the executor ;^i and where the articles are really fixtures [*224] *partaking to some extent of the attributes of the realty, such seems to be in accordance with the weight of authority. The rule that fixtures descend with the land to the heir, ap- plies also to those articles which, though not in fact annexed and fixed to the realty, are yet an incident of and constructively annexed thereto, such as mill-stones, keys, and other articles of a like nature.^^ The question whether an article which is attached to the realty descends therewith to the heir, or passes to the executor as a chattel, may also be influenced by custom. Thus, in refer- 11 See Lawton v. Salmon, per Lord Mansfield, quoted ante; Winn (or Wynne) v. Ingilby (or Ingleby), 5 B. & Aid., 625 (1822) ; s. C, 1 D. & E., 247, where it is said that set pots, ovens, and ranges, affixed by the owner of the freehold, go to the heir and not to the executor. See, also, Colegrave v. Bias Santos, 2 B. & C, 76 (1823) ; Eex v. Inhabitants of St. Dunstan, 4 B. & C, 686 (1825), per Bailey, J. [It is waste for an administrator to remove frame cabins, although ruinous, as they are a part of the realty; but he can not be charged with their value in his accounts. Eeynolds v. Canal and Banking Co. of N. O., 30 Ark., 520, 525 (1875).] 12 See the authorities cited in chapter I. (ante, p. *33). See, also, Pisher v. Dixon, referred to {ante) • 1 Cru. Dig., chap. 3, tit. 1, § 7. 310 CHAP. VI.] HEIR AND EXECUTOR. *225 ring to the cider-mill case hereinbefore cited, Lord Mansfield in Lawton v. Salmon, gave it as his opinion that the decision was probably founded upon a custom. It was also held in a case tried before lEyre, C. B., at the Winchester summer assizes, in the year 1724, that according to the custom of the country, a granary built on pillars in Hampshire was a chattel, which went to the executors, and might be recovered in trover. ^^ In Lowther v. Cavendish,^* also, which was a case concerning the construction of a devise of lands and mines, a reference was or- dered to inquire whether the timber and other materials laid down for making wagon-ways more commodious for carrying coal or other minerals from coal or other mines; and also fire- engines placed for the better working of such mines, were deemed and reputed in the county of Cumberland, and other counties in the north, fixed to the freehold, and passed therewith to the heir or remainderman, or went to the executor or administrator of the party erecting the same.^^ *The common law rule as to the right to fixtures as be- [*225] tween the executor and heir of a tenant in fee, is also of course subject to change by legislative enactment. This has been at- tempted in the State of New York, where it has been enacted that "things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house, so as to be essential to its support," shall be deemed assets and shall go to the executor or administrator to be applied and distributed as part of the personal estate of their testator or intestate ;i* and that "things annexed to 13 11 Vin, Abr., 154, pi. 74. See, also, as to effect of custom as between landlord and tenant, grantor and grantee, etc., the chapters where those relations are respectively con- sidered. [But a two-story wooden building can not be regarded as personal prop- erty because natives in former times frequently removed their house frame to another locality. Kahinu v. Aea, 6 Hawaii, 68, 69 (1872).] Ill Eden, 99, 118 (1758). 15 See, also, Trappes v. Harter, 2 Cr. & M., 153, 181 (1833), the decision of which seems to have been somewhat influenced by custom. 18 2 E. S., p. 82, § 6, subdiv. 4. "It [the statute] cannot, however, alter the law as to the relation of vendor and vendee, whatever may be its effect as between heir and executor." Hunt, C, in Voorhees v. McGinnis, 48 N. T., 284 (1872). 311 *226 THE LAW OF FIXTURES. [CHAP. VI. the freehold, or to any building, shall not go to the executor, but shall descend with the freehold to the heirs or devisees, except such fixtures as are mentioned in the fourth subdivision of the last section, "i^ By section 8 it was provided that "the right of an heir to any property not enumerated in the prece- ding sixth section, which by the common law would descend to him, shall not be impaired by the general terms of that sec- tion." In the construction of the 4th subdivision of section 6 above quoted it was held in House v. House,i* that the water-wheels, mill-stones, bolting-apparatus and running-gear of a grist and flouring-mill and other fixtures of the same character were parts of the freehold and descend to the heirs-at- law as real property. In delivering his opinion, Walworth, Ch., said: "Previous to the adoption of the revised statutes there was a distinction supposed to exist in relation to what was to be considered a part of the realty, as between landlord and tenant, and as between the heir-at-law and the personal representatives. It was also supposed that an outgoing tenant might be permitted to remove fixtures of a particular descrip- tion placed by him upon the premises for a special purpose, which as between the heirs-at-law and the personal representa- tives of the owner of the freehold would have descended to the [*226] *heirs. But the legislature, whether wisely or other- wise it is not for me to decide, in adopting the provision here referred to, probably intended to put the executor or adminis- trator upon the same footing with a tenant as to the right to fix- tures. Such at least was the recommendation of the revisers, as appears from their note to the 6th section in which this provision is found. (3 R. S., 639, 2d. ed.)i9 "It was impossible, however, to define in a short sentence of three lines, what was to be considered a part of the freehold itself, and what were mere fixtures or things annexed to the freehold for the purposes of trade or manufacture, and I think, in this case, it may be safely assumed that it could not have been the intention of the legislature to authorize the personal representatives of the decedent who owned this grist-mill in fee at the time of his death, to strip it of its water-wheels, " Id., p. 83, § 7. 18 10 Paige, 158 (1843) ; s. C, 2 N. Y. Leg. Obs., 206. 18 See Buckley v. Buckley, 11 Barb., 43, 53 (1850). 312 CHAP. VI.] HEIR AND EXECUTOR. *227 mill-stones, bolting apparatus, and running-gear; leaving to the heirs-at-law the mere sides or walls of the building, with its floors, partitions and roof. Such, however, as I understand it, is the claim made by the defendants in this ease. For it is not stated in the answer that there were any other fixtures in this grist-mill and flouring-mill, except machinery and other apparatus of that character and description. Fixtures of the character here claimed are hot only convenient, but essential to the proper enjoyment of the inheritance; and are therefore as much a part of the freehold as the building and water- power, which with them constitute the mill. The claim of the defendants to the fixtures must therefore be rejected." This construction of the statute was approved and followed in Buckley v. Buckley,^'' Hand, J., in a well-considered opinion there observing that it was difficult to see how any other con- struction could be given without doing incalculable mischief; and that language should be very explicit and imperative be- fore it receives an interpretation so disastrous in its conse- quences. This construction was also approved in Murdock v. Gifford,^! though not necessary to the decision of the case ; and, •although Denio, J., in Ford v. Cobb,^^ expressed him- [*227] self as not being entirely satisfied with the reasoning of the chancellor in House v. House, it may doubtless be regarded as the settled construction of the statute; and, notwithstanding said statute, it seems still necessary in that State to resort to the principles of the common law and to the decisions of the courts, in order to ascertain what is parcel of the freehold and passes as such to the heir.^s 20 11 Bark, 43, 62 (1850). 2118 N. Y., 28, 32 (1858). 22 20 N. Y., 344, 348 (1859). 23 See, ?ilso, Coey's Estate, 1 Tuck., 125 (1865). See, however, Farrar v. ChaufEetete, 5 Den., 531 (1848) ; Hovey v. Smith, 1 Barb., 372 (1847), where it was held, that a pump and pipe, bal- ances and scales, and a beer-pump were prima facie personal property, which, as it was said, could only descend to the heir as against the admin- istrator in consequence of being annexed to the freehold in such a manner and under such circumstances as to come within the provisions of said statute. In this case, however, it did not appear from the transcript whether the articles in question were annexed to the freehold at all, or, if so, whether for purposes of manufacture or not. 313 [*228] CHAPTER VII. CHARTERS, HEIR-LOOMS, ETC. There are some things, in themselves chattels, which are con- sidered as so annexed, and necessary to the enjoyment of the inheritance, as to be deemed in law an incident or part of it, and so descend with it to the heir.i Such are charters, heir-looms, etc., which as the questions concerning them usually arise be tween heir and executor, may be conveniently considered in this place. I. Chaetbes. In the United States, the registration in public offices of deeds of conveyance being universally provided for by statute, the grantor usually retains his own muniments of title; and, the grantee being ordinarily permitted to give in evidence certified copies from the record of all deeds under which he claims or deduces title, to which he was not himself a party, and of which he is, therefore, supposed not to have the con- trol,2 the subject of this section has lost much of the importance that it would otherwise possess and still possesses where there are no such statutes. This and the kindred subject of heir- looms, etc., being, however, usually treated of in professed works upon the law of fixtures, and there being (with only two or three exceptions) no cases to be ■ found in the [*229] *reports of this country upon these subjects, it is thought not inexpedient to present them here in the words of the Eng- lish author, Mr. Ferard,* with such additional matter as may be found in the books published since the publication of his work: "Charters or deeds relating to the inheritance, are the 1 See 1 Cm. Dig., Chap. 3, tit. 1, § 5. 2 See 1 Greenl. Cru. Dig. (2d, ed), tit. 2, eh. 1, § 39, note 1; 2 id., tit. 32, ch. 11, § 19, note 1. [Gay v. Warren, 115 Ga., 733, 734 (1902).] 3 Ferard Fixt., 189, ei seq. 314 CHAP. Vn.] CHAETERS. *230 evidential muninients of the estate. They are, as Lord Coke expresses it, the sinews of the land. On this account, the law provides that they shall always follow the land to which they relate, and shall vest in the heir, and pass to the alienee, as incident to the estate, et ratione terrm."^ So land-war- rants authorizing the selection and location of certain amounts of land out of the unappropriated lands of the United States are regarded as real estate and pass to the heir-at-law unless specifically devised.* But, although in general the heir is en- titled to the possession of the muniments of title to real estate, yet, as against a stranger, the executor or administra- tor, where there are statutes making land assets in his hands *for the payment of debts on a deficiency of personal [*230] estate, is entitled to the possession of such muniments of title.* "If the land is forfeited (as for treason or felony) the char- 2 20 H.. 7, 13 b (1504); 21 H. 7, 27 (1506); Co. Lit., 6 a; 11 Co., 50, Liford's Case (1614); Titz. Nat. Brev., Detinue; Com. Dig., tit. Charters, A; Wilson v. Eybolt, 17 Ind., 391 (1861). See, also, 1 Co., 1; Mo., 488, pi. 687; Lord v. Wardle, 3 Bing. N. C, 680 (1887); Atkinson v. Baker, 4 Term, 229 (1791). [Masiamah v. Pachak, 4 Kyshe, 444, 445 (Straits Set., 1889).] If a man seised of lands in fee simple and having divers evidences and charters, some containing warranty and some not, conveys the land over to another without warranty, the purchaser shall have all the charters and evidences as incidents to the land though not granted to him by express words. Lord Buckhurst's Case, 1 Co., 1 (1598); s. c, Mo., 488; 2 Anders., 118. But where a man conveys with a warranty, he has a right (unless the deeds are expressly granted) to retain all evidences which contain war- ranty, or serve to deraign the warranty paramount, or which are material to maintain the title of the land; but the feoffee shall have such evidences as concern the possession and not the title. Lord Buckhurst 's Case (supra) ; Co. Lit., 6 a, and authorities there cited. As to the rule in cases where a man sells only part of his estate, retaining the residue him- self; and where lands held under one title are sold to two or more per- sons in separate parcels, see Yea, Bart. v. Field, 2 Term, 708 (1788) ; 2 Sugd. Vend. (8th Am., 14th Lond. ed.), 433, *452; notes to Lord Buck- hurst's Case, 1 Co., 1, et seq. (Lond. ed., 1826). sAtwood V. Beck, 21 Ala., 590 (1852). *Cummings v. Tindall, 4 Stew. & Port., 357 (1833); Towie v. Lovet, 6 Mass., 394 (1810). See, also, Hall v. White, 6 C. & P., 136 (1827). [See Mills v. Mead, 14 Supr. Ct. (7 Hun)", 36, 38 (N. Y., 1876).] 315 *231 THE LAW OF FIXTUBES. [CHAP. VII. ters or evidences which belong to the land are also forfeited.^ From this, their strict relation to land, they have even been accounted for some purposes not to be chattels.® And, there- fore, it is said, that if a man gives and grants omnia bona et catalla, his charters concerning his land shall not pass by these wordsJ They are, nevertheless, so far in the nature of person- alty, that an action of trover, detinue or trespass de bonis aspor- tatis, will lie for them.* "There seems formerly to have been some difference of opiu- ion with regard to the box or chest in which charters are preserved, whether this also should pass to the heir; and dis- tinctions have even been taken as to the box being sealed or locked, or otherwise. In Rolle's Abridgment^ it is said, that if charters are in a chest, the executors shall have the chest, and the heir the charters; and if the chest is shut, the heir shall have the chest also; but if it is not shut, the executors shall have the chest. And Swinburne lays it down,!" that the box ensealed, though the same be not affixed to the freehold, yet [*231] *because it contains those things which belong to the heir, it also belongs to the heir, and not to the executors. But oStaun. PI. Cor., Hb. 3, ch. 26. eNoy's Maxims, p. 359 (9th ed.). Vide, 2 EoU. Ab., 108, Ley Gager, E, F; 11 Vin. Ab., 178. '"Perkins, § 115; Shep. Touch., ch. 5, p. 97; Bro. Ab., Chattels, pi. 9; Eoll. Ab., Grant, X. The law considers them as partaking so much of the nature of land that larceny at common law cannot be committed of them. 1 Hale, P. C, 510; Leach's C. L., 13. But see 1 Hawk., 142, and 10 E. 4, 14, where a different reason is suggested for this rule. See now the Stat., 7 & 8 Geo. 4, ch. 29, § 21, et seq.; Bex v. Walker, E. & M., 155. "Charters are not distrainable as chattels." [See, post, p. *360.] See, however, as to the subject of larceny (post, p. *449) under the head of crimes relating to fixtures. [By statute a deed to land is the subject of larceny in Mississippi. State v. Hughes, 80 Miss., 609 (1902).] sCru. Dig., Charters, D; Action upon the Case, Trover, C; Trespass, A 1; vide, 3 B. & C, 225; 2 Br. & B., 650; Wilson v. Eybolt, 17 Ind., 391 (1861). [See Gay v. Warren, 115 Ga., 733, 734 (1902); King v. Gilson, 32 111., 348, 354 (1863); and, post, p. *417, under "Eeplevin."] 9 Eoll. Ab., tit. Ex'rs, U; Id. tit.. Ley Gager, F. 10 Treat, on Wills, p. 759. See, also, 11 Vin. Abr., 166 and authorities cited; Plowd., 323, per Wray, J.; Cowell's Inst., 62, 63. 316 CHAP. VII.] CHARTERS. *231 of these distinctions, the author of the Law of Testaments ob- serves, that they seem not to be well taken. For, he says, if it be a box prepared for the keeping of the deeds, the heir ought to have it, whether locked or open; on the other hand, if it be a box designed for other use, as for the keeping of linen, it can- not be said to be appurtenant to evidences, although some be in it, for so be many other things also; or, perhaps, it may be a chest or cabinet of great value ; surely this shall not go to the heir, when perhaps there is not personal estate sufficient to pay the testator's debts.^^ In like manner in Wentworth's Office of Executors it is said, that the distinctions taken in the old cases are not grounded in good reason; and in Comyn's Digest it is laid down, in general terms, that the chest passes to the heir .12 "But it is to be observed that those deeds and writings only are here intended which concern land, and relate to the free- hold and inheritance. For such as relate to personalty, as terms of years, goods, etc., will belong to the personal repre- sentative, together with the chattel interest to which they ref er.i ^ So, also, if the .writings of an estate are pawned or pledged for money lent, they are considered as chattels in the hands of the creditor, and in the ease of his decease, they will go to his per- sonal representative, as the party entitled to the benefit accru- ing from the land."^* "Law Test., 381; vide, 4 Burn's Ecc. Law, 304. 12 ' ' Com. Dig. Biens, B, Charters, A. See upon this subject 36 H. 6, p. 27; Einch, book 1, p. 16; Plowd., 323; Bro. Abr., Chattels, 18; EoU. Abr., Grant, X, pi. 5; Godolph. Orph. Leg., part 2, ch. 13; Shep. Touch., 470; Noy's Max., 239 (9th. ed.). It is said that larceny cannot be com- mitted of the box in which charters are kept. 1 Hale, 510; 3 lust., 109." See (^post) Larceny, p. *417. 13 Off. Ex., 63; 3 Bac. Abr., 65. 14 "Shep. Touch., 469; Tollers' Executors, 231. To whom the pos- session of deeds appertains in different cases, see upon a warranty of title. Lord Buckhurst's Case (ciied ante); Harg. Co. Lit., 6 a, N, 4; in case of estates for life or in tail. Finch, B. 1, ch. 3, p. 23; Id. B. 2, ch. 2, p. 88; 2 P. Wms., 471; in case of a purchase not completed, 3 B. & C, 225; and for other cases upon this subject, see Fitz. N. B., Detinue; 1 Dick., 650; 1 Eden, 8; 2 Term, 708; 2 Taunt., 268; 6 Taunt., 12; 4 Bing., 106." 317 •232 THE LAW OF FIXTURES. [CHAP. VH. [*232] *II. Heie-Looms, etc. "Another instance in which property may pass to the heir, although it is in itself of a personal nature, is in the case of heir-looms.i^ "Heir-looms, chiefs or principals, are those things which have continually gone with the capital messuage,^ ^ and which upon the death of the owner descend to the heir along with and as a member of the inheritance, according to the custom of some countries.!^ An heir-loom, in its strict and proper sense, is always some loose personal chattel, such as would ordinarily, and but for the particular custom, go to the personal represen- tatives of the deceased proprietor.^ ^ Lord Holt, indeed, is reported to have said, that goods in gross cannot be heir-looms, but that they must be things fixed to the freehold, as old benches, tables, ete.,^^ and it is observable that Spelman thus defines an heir-loom: 'Omne ut ensile roiustius quod db cedibus non facUe revellitur, ideoque ex more quorundam loco- rum ad hceredem transit tanquam memirum Jimreditatis. ' ^* But the instances met with in the different authorities are always things of a mere personal chattel kind not affixed to the house or land, such as the best bed, table, pot, pan, cart, or other dead chattel movable. These are the only kind of heir-looms mentioned by Lord Gdkef^ and he illustrates his [*233] *remarks upon them by this citation from the old en- tries: ' Consuetudo hundredi de Stretford in Com' Oxom' est, 15 No instance has been found where the law of heir-looms has been recognized as a part of the jurisprudence of the Umted States. Hence the subject is presented in the words of Mr. Ferard (p. 192, et seq.). 16 14 Vin. Abr., 290. IT ' ' But the heir-looms is due by custom and not by the common law." Co. Lit., 18 b. 18 Co. Lit., 18 b, 185 b; 1 Wms. Exrs. (6th Lond. ed.), 681. The cus- tom which entitles the heir must be strictly proved. 1 "Wms. Exrs., 681; 2 Bl. Com., 428. i»Lord Petre (or Peter) v. Heneage, 12 Mod., 520 (1701), at mm prius. But see, s. c, 1 Ld. Eaym., 728: "A jewel can not be an heir-loom, but only things ponderous, as carts, tables," etc. See, however, Co. Lit., 18 b, that the ancient jewels of the crown are heir-looms. 20 Spelman 's Gloss, voce Heir-loome. 21 Co. Lit., 18 b. 318 CHAP. VII.] HEIR-LOOMS, ETC. *234 quod hwredes tenementorum infra hundredum prcedictum exis- tentium post mortem antecessorum suorum hahehunt, etc., principalium, Anglice, an heire-loome, viz.; de quodam genere catallorum, utensilium, Sc, optimum plaustrum, optimum carucam, optimum ciphum, Sc' "So in Les Term'es de la Ley an heir-loom is said to be 'any piece of household stuff {ascun parcel des utensils d'un mease) , which by the custom of some countries, having belonged to a house for certain descents, goes with the house (after the death of the owner), unto the heir, and not to the executors.' ' ' Sir William Blackstone, in the Commentaries, describes heir- looms as ' goods and chattels, ' 22 and always treats them as per- sonalty; though (with some degree of inconsistency, perhaps), he says, they are generally such things as cannot be taken away without damaging or dismembering the freehold. And in one part of the Commentaries^* he says expressly, 'an heir-loom, or implement of furniture, which by custom descends to the heir, together with an house, is neither land nor tenement, but a mere movable. '2* "And indeed, if by heir-looms were to be understood only matters affixed to the freehold, it would follow that there are some articles attached to the realty which require the aid of custom to make them descendible with the inheritance, and which, but for such custom, would legally belong to the execu- tor. Such a principle, however, is altogether inconsistent with the general rule respecting annexations to the freehold; unless, indeed, it be thought that in these cases, the chief operation of custom upon a matter which would, of itself, necessarily pass to the heir as parcel of the freehold, is by imparting it to a fur- ther incident (which will presently be noticed) , viz. : that of *making it inseparable and inalienable from the inheri- [*234] tance by devise. "But, besides heir-looms, properly so called, there are certain species of chattels which may be considered in the nature of heir-looms, and which are also held to pass to the heir with the 22 2 Com., 427, 428. 23 2 Com., 17. 2* And see to the same effect, Eoll. Abr., Descent, E. ; Doct. & Stud., dial. 2, eh. 40, p. 228. So the heir may recover an heir-loom in detinue. Bro. Abr. Detinue, pi. 30. 319 *235 THE LAW OF FIXTURES. [CHAP. VH. inheritance. The things referred to, seem, however, to differ from those that are strictly heir-looms, because the title of the heir in these cases does not depend upon any local custom. And an attention to this distinction would remove the con- fusion which has sometimes arisen from classing under the general name of heir-looms all those personal chattels which the law gives to the heir as part of, or incident to, his inheri- tance." Thus the coat-armor, pennons, and arms of a deceased ancestor hung in a chapel, where such ancestor is buried, in honor of the deceased, do not belong to the parson ; and the wife who set them up, and after her death the heir of the deceased may have an action for their removal, because they were hung there for the honor of the ancestor and are in the nature of heir-looms, which belong to the heir as being the principal of the family.^B And the law is the same respecting grave-stones, tombs, and the like.^^ In Atcherley v. Vemon,^'^ the point was raised and strongly insisted upon that MSS. reports of cases in chancery should go to the heir-at-law, as guardian of the reputation -of his ancestor, after the analogy of the action which lies to the heir, if the tomb or monument of an ancestor be defaced or destroyed. The point was not, however, decided, because all parties con- sented to have them printed under the direction of the court. ^^ It is said also that, "in like manner, ancient portraits and family pictures, though not fastened to the walls of the house, accompany the inheritance; and the executor is not allowed to [*235] *remove them, although they are mere personal chat- tels. "^9 "So, also, the collar of S. S. and garter of gold, de- scend as ensigns of honor and state, in the way of heir-looms; and this, even although there may be a special bequest of all 25 See Dame Wiche's Case, 9 Edw. 4, 14, pi. 8 (1469), cited in Corven's Case, 12 Co., 105 (1687) ; Frances v. Ley, Cro. Jac, 367 (1615) ; Godb., 199, 200; 1 Brownl., 45; Noy, 104; 2 Bulst., 151; Vin. Abr., Descent, E; Com. Dig!, Cemetery, C; Co. Lit. 18 b. 26 See next note (supra) ; also the following pages. 27 10 Mod., 529 (1723). See, also, Upton v. Lord Ferrers, 5 Ves., 801 (1801); 1 Wms. Exrs. (6th Lond. ed.), 683. 28 See The Eeporters, 308; 2 Morgan's Law of Literature, § 436. 2!>Ferard Fixt., 195, citing the authorities in note (1), supra, p. *234. 320 CHAP. VII.] HEIB-LOOMS, ETC. *236 jewels.^" And so the ancient jewels of the crown are accounted heir-looms,^^ because they are necessary to maintain the state, and support the dignity of the sovereign for the time being. ^^ Again, as was noticed in a former page, the ornaments of a bishop 's chapel are considered to be of the nature of heir-looms, and as such pass to the successor in the see.^* And in like man- ner, things belonging to ecclesiastical houses, and which have continually passed from successor to successor, have sometimes been esteemed as heir-looms. "Moreover, the heir may sometimes claim a right to a per- sonal chattel, from the peculiar manner under which the estate is holden. Thus, an ancient horn, where the tenure of the land is by eornage, shall always descend to the heir.** But things of this description seem rather to resemble charters of inheri- tance; or they might perhaps more properly be ranked among *some of the species of possession which are treated of [*236] in the ensuing pages. "But further, a testator may by his will constitute what has been called a quasi heir-loom. That is to say, he may demise soil Vin. Abr., 167, citing the Earl of Northumberland's Case, Owen, 124 (1584). See, also, Swinb., part 3, sec. 6; Lord Petre (or Peter) V. Heneage, 12 Mod., 520 (1701); s. C, 1 Ld. Baym., 728. For an ex- planation of the collar of S. S., see Selden's Titles of Honor. Mr. D 'Israeli, from an article among the Sloane MSS., and also Lord Camp- bell in his Lives of the Chief Justices, relate that after Lord Coke's dis- missal, the new Chief Justice sent to him to purchase his collar of S. S. But Lord Coke replied that "he would not part with it, but leave it to his posterity, that they might one day know that they had a Chief Jus- tice to their ancestor. ' ' J) 'Israeli 's Curiosities of Literature, 2d series, Vol. 1, p. 298. 1 Camp. Lives of the Chief Justices, p. 301, citing Nichols' Progresses of James, Vol. 3, 228. 31 2 Bl. Com., 14 Vin. Abr., 290; Swinb., part 3, sec. 6, p. 251; Co. Lit., 18 b. 32 See the note of Mr. Ferard (page 195), respecting certain disposi- tions made of the crown jewels of England by Kings James I. and Charles I.; Eymer's Eoed., Vol. XVI., p. 641, and Vol. XVIII., p. 236. MAnte, p. *201. 3*Pusey V. Pusey, 1 Vern., 273 (1684). As to tenure by eornage, vide Co. Lit., 107 a. Of the Pusey and other horns, as a charter or instru- ment of conveyance, see several curious particulars in the Archseologia, vol. 3, p. 1, et seq. And see Id., vol. 1, p. 168; vol. 5, p. 340; vol. 6, p. 42. 21 321 *236 THE LAW OF FIXTURES. [CHAP. VII. or limit in strict settlement, an estate and capital mansion, together with personal property, as the plate, pictures, library, furniture, etc., therein, such plate, etc., to be enjoyed, together with the house and estate, unalienable by the devisees in suc?- cession, so far as the law will allow. ^^ Limitations of this sort depend upon the principles of executory devises, and the doc- trines of equity; for a remainder, in the strict sense of the term, can only be limited of a freehold estate. This subject has given rise to many questions of considerable nicety; and it will be sufficient, on the present occasion, to observe gener- ally, that upon such a devise or settlement, the absolute inter- est in the chattels, subject to the interest for life which may be created in them, will vest in the person who is entitled to the first estate of inheritance, whether in tail or in fee; and upon his death the property will devolve upon his personal rep- resentative.^® 35 Wood. Vin. Lee, vol. 2, 380. See Cadogan v. Kennet, Cowp., 432 (1776); Foley v. Burnell, Cowp., 435 in netis (1783); 1 Br. Ch., 279; 4 Bro. P. C, 319; 2 Atk., 82, 321; 3 P. Wms., 336. And see Teame's Exec. Dev. (6tli ed. by Butler), 407; Harg. Co. Lit., 18 b, N. 109. 38 The several decisions upon this subject, are collected in Eoberts' Treatise on Wills, Vol. 2, p. 295, et seq. See, also, Bridgewater v. Eger- ton, 2 Ves. Sr., 121 (1750); s. C, 3 Id., Suppl't, 296; Carr v. Lord Erroll, 14 Ves., 478 (1808) ; Vaughan v. Burslem, 3 Bro. C. C, 101 (1790) ; Gower V. Grosvener (or Levison), Barnard. Ch., 54 (1740); s. c, 5 Mad., 337; Browneker v. Bagot, 19 Ves., 574 (1816) ; Foley v. Burnell, 1 Bro. C. C, 274 (1783); s. C, 4 Bro. P. C, 319; Rowland v. Morgan, 2 Phill. Ch., 764 (1848) ; s. c, 6 Hare, 463; Countess of Lincoln v. Duke of Newcastle, 3 Ves. Jr., 387 (1806); s. c, 12 Id., 218; 2 Eoper on Leg., ch. 22, sec. 4; 2 Jar. on Wills, *507. [Be Hill [1902], 1 Ch., 537, 807; see, also, Re Viscount Exmouth (1883), 23 Ch. D., 158.] Things consumable in the use, as provisions, liquors, com, hay, etc., cannot be limited as heir-looms. See Boon v. Cornforth, 2 Ves. Sr., 277, 280 (1751). In Clarke v. The Earl of Ormonde, 1 Jac, 115 (1821), Lord Eldon observed "that heir-looms are a kind of property that are rather favorites of the Court," and "that the Court in its ordinary decrees directs at first only an account of the testator 's personal estate not specifically bequeathed. ' ' It is the duty of the executors as far as possible to preserve articles specifically bequeathed as heir-looms, according to the testator's intention; and unless compelled, they ought not to apply them to the payment of debts, but to devote to that purpose that part of the property given for that purpose. 322 CHAP. VII.] HEIR-LOOMS, ETC. *237 *"With respect to heir-looms, properly so called, viz., [*237] those depending on custom, it appears that they cannot be de- vised away from the heir; that is to say, when the inheritance to which they belong descends to him. For Lord Coke lays it down, that 'if a man be seized of a house, and possessed of divers heir-looms that by custom have gone with the house from heir to heir, and by his will deviseth away the heir-looms, this devise is void.'^'^ Upon this it has been observed by Pro- fessor Woodeson in his Vinerian Lectures,** that the opinion of Lord Coke is founded upon a decision in 1 Hen. V., 108, which, he thinks, being prior to the Statute of Wills, could only amount to a determination against such a devise of heir-looms separately from the house by way of personalty; and he supposes that at present they might be devised as realty distinct from the estate. Upon reference, however, to the passage in Co. Lit., it appears that Lord Coke grounds his opinion upon a principle which applies as well to a devise of realty as of personalty, viz. : that the custom vests the property in the heir instantly upon the death of the testator, and takes place of the devise, which has effect only after the death of the testator. And although this reasoning has not been universally assented to, yet the doctrine appears to have been recognized by many subsequent authori- ties.39 *"The owner of the inheritance, however, may during [*238] his life, sell or dispose of these customary heir-looms, as he may By the modern practice in the Court of Chancery, all that is required of the tenant for life on delivery to him of chattels limited as heir-looms, is an inventory signed by Mm, specifying that they belong to the first taker for the particular period only, and afterwards to the person in re- mainder, and an undertaking to take proper care of the heir-looms, except in case where danger is apprehended, when security may be required. Con- duitt V. Soane, 1 Colly. Ch., 285 (1844) ; Foley v. Burnell, 1 Bro. C. C, 279 (1783); s. C, 4 Bro. P. C, 319; Covenhoven v. Shuler, 2 Paige, 122, 131 (1830) ; I Story's Eq. Jur., § 604, and cases there cited. 37 Co. Lit., 185 b. So, per Lord Coke, the crown jewels are not de- visable by testament. Co. Lit., 18 b. 38 "Vol. 2, p. 380. 39 Com. Dig. Biens, B, H; Harg. Co. Lit., 18 b; per Lord Macclesfield Chanc, 1 P. Wms., 730. And see Mr. Serj. Hill's MS. note, 14 Vin. Ab., 290, in Line. Inn Lib.; Shep. Touch., 432. 323 *239 THE LAW OF FIXTUBES. [CHAP'. VH. of the timber of Ms estate.*" And if he devise the house away from the heir, it is presumed that in this case the heir-looms would pass with the house to the devisee. "^^ It may be observed in concluding this subject, that the Court of Chancery has jurisdiction of a bill for the specific delivery of an heir-loom or a chattel in the nature of an heir-loom.*^ III. Annexations to the Freehold of the Chuech. It has already been stated in the preceding section, that the coat-armor, pennons, arms, etc., of a deceased ancestor, hung in a chapel in honor of the deceased, do not belong to the par- son, but to the heir. In like manner he who has erected on the freehold of the church a grave-stone, tomb or the like, to the memory of another, may maintain an action for any injury done thereto in his life time by the parson or other person; but after the death of him who erected it, if any injury is done thereto, the action belongs not to his executor or administrator, but to the heir of him to whose memory it was erected; and this though the article in question be annexed to the freehold of the parson.** [*239] *These remarks do not apply, however, where the thing in question was set up without the consent of the ordinary or 40 2 Bl. Com., 429. *i That, if an estate be devised in tail with remainders, the devise over is good as to the heir-looms as well as to the estate. See Mr. Serj. Hill's MS. note, 14 Vin. Ab., 291. *2 Earl of Macclesfield v. Davis, 3 Ves. & Bea., 16 (1814) ; Pusey v. Pusey, 1 Vern., 273 (1684); Pells v. Eead, 3 Ves. Jr., 70 (1796). See, also, Scale v. Hayne, 9 L. T. (N. S.), 571 (1864); s. c, 12 W. E., 239; 9 Jur. (N. S.) (1338). «See Corven's Case, 12 Co., 105 (1687); Prances v. Ley, Cro. Jac, 367 (1615); Godb., 200; Sabin v. Harkness, 4 N. H., 415 (1828); Spooner V. Brewster, 2 C. & P., 34 (1825); s. c, 10 Moore, 494; 3 Bing., 136; Co. Lit., 18 b; Moore, 878; 3 Inst., 110, 202; 1 Eoll. Ab., Descent, E; Sid., 206; Cro. Eliz., 366; 2 Eoll. Eep., 140; Doct. & Stud., pages 305, 309; Com. Dig., Cemetery C. See, also, Hitchcock v. Walford, 5 Scott, 792 (1838). As to the right to erect monuments in a church, see Degge, (7th ed.), 217; 3 Inst., 202. See, also, 1 B. & Aid., 508; 1 Stra., 576; 2 Stra., 1080; 1 Hagg., 14, 205; 3 Add., 15; 1 Lee, 640; 1 Curt., 880; 8 B. & C, 288; Eogers' Bccl. Law, 187. 324 CHAP. VII.] ANNEXATIONS TO LAND OF THE CHURCH. *239 other proper authority, who, it seems, in such ease may order their removal without incurring liability to the heir.** So, the property of a winding sheet and coffin remains in the executor or other person who was at the charge of the funeral, and who had property therein when the dead body was wrapped there- with and enclosed therein, for the dead body being but a lump of earth hath no capacity and is not capable of it ; and a steal- ing of such articles is a felony.*^ "But things that are fixed up in a church not in honor of individuals, but for other purposes, as when a church is hung in mourning, or when ornaments or erections, as scaffoldings, etc., are put up on public occasions, these become the property of the parson, in consequence of his possession of the freehold, and on the ground of their being a tacit gift to him.*^ "With respect to pews and seats erected in a church, these become by annexation parcel of the freehold of the incumbent, though the use of them is in those who have the use of the church,*^ and, therefore, if seats have been annexed to the church without legal authority, it is said that the property of the 44 Palmer v. Episeopum Exon, 1 Stra., 576 (1723). See, Gib. Cod., 454. isHayne's Case, 12 Co., 113 (1614-5"); Wms. Exrs., (2d Ed.), 505. [A coffin is the property of the person who buried the deceased, and the stealing thereof is larceny. State v. Doepke, 68 Mo., 208 (1878).] ["There can be no property in a corpse, and there is none in the ehroud which surrounds it, when that corpse has been once committed to the tomb." The casket is in the possession of the owners of the fee, and replevin therefor will not lie. Guthrie v. Weaver, 1 Mo. App., 136 (1876).] [A grantee acquires no right to bodies of the dead. Barlow v. Hud- son, 5 Ky. Law Bep., 604 (1884).] 46Ferard Fixt., 204, citing Cases and Opinions, Vol. 1, p. 273; also. Cramp v. Bayley, Clk., Kent Lent Ass., 1819, cited in the notes to the edition of Degge's Parson's Counselor, by Ellis, p. 218; Prideaux's Directions, p. 87, and the authorities there referred to. In this note he says: "It is certainly true that the soil and freehold of the church and churchyard is in the parson; but the freehold is in him not for his own emolument, but for public purposes only, as for supplying places for sepulture," etc. No reason is seen why the rules laid down in Chapters 2 and 3 should not be applied to this relation so far as applicable. 47 8 H. 1, 12; Bro. Abr. Chattels, pi. 11; 1 Term, 430; 5 B. & Aid., 361. And see 1 Phill., 322; 3 Id., 11. 325 *240 THE LAW OP FIXTURES. [CHAP. VII. materials when pulled down is in the parson, who may sue the wrong-doer in trespass. But as to seats put up by the par- ishioners by good authority, it seems, according to the ecclesias- tical writers, that the property of the materials upon removal [*240] *will be in the parishioners, and that the church wardens and not the parson may maintain an action for taking them away.*® With respect, however, to movable seats in a church, the party that set them up may remove them at his pleasure. "^^ This subject is in the United States to some extent regulated by statutes, which in some of the States declare pews in churches to be real and in others personal property. In -the absence of statutes affecting the question, they are considered to be in the nature of realty. The interest of the pew-holder in such case is an exclusive easement in for special purposes, and not a title to a freehold, the general property in the house and land usu- ally being in the corporation that erected it.®" "If a man hang up bells in the steeple, they become church goods, although they may not be expressly given to the church ; he cannot therefore afterwards remove them; and if he does, he may be sued by the church-wardens, to whom the custody and possession of the goods of the church belong, though the property of them is in the parishioners.^^ . The property of the bell-ropes is in the church-wardens.^^ gg^ if a man take the organ out of a church, the church-wardens may have an action 48Degge (7th ed.), p. 213; Burn's Eccl. Law., Vol. 1, tit. Church. Noy, 108; vide, Shaw's Par. Law, ch. 25, sec. 9; Prideaux, 73. 49Degge, 211. This, however, seems to be questionable. Wats., eh. 39; Burn's Just., tit. Churchwardens, sec. 3. And see Shaw, ch. 25, sec. 7; Prideaux, 32. 50 See, generally, 3 Kent Com., 402; 1 Wash. Eeal Prop., *9; Wash. Easem., *515, and notes, and the authorities there cited. [Union Mtg. Hs. V. Eowell, 66 Maine, 400, 402 (1877); First Presbyterian Soc. v. Bass, 68 N. H., 333, 337 (1893); see, also, Eose v. Baltimore, 51 Md., 256, 270 (1878).] 5111 H. 4, 12; Degge, 217; Burn's Eccl. Law, ub. sup.; Com. Dig., Esglise, F 3; Cro. Eliz., 145; 2 Salk., 547; 1 Sid., 281; 2 Keb., 22. That bells are parcel of the freehold of the church, see 11 H. 4 12- Sid., 206; 1 Lev., 136, S. C. As to the origin of bells and chimes, and some curious observations upon them, see Lutw. Nelson, 327; 1 Salk., 164; Eoll. Ab., Prohibition, K; Sid., 206. See, also, Hook's Church Dic- tionary, tit. Bells. 62 Jackson v. Adams, 2 Bing. N. C, 403 (1835). 326 CHAP. Vn.] DEER, FISH, ETC. ' *241 of trespass against him ; because the organ belongs to the parish- ioners and not to the parson, and the parson cannot sue the taker in the Ecclesiastical Court.^* And the succeeding church- wardens may sue, although the trespass was done in the time of their predecessors.^* *"The trees growing in a church-yard belong to the[*241] incumbent, and he may bring his action, if they be cut down. ' ' ®^ IV. Deer, Fish, etc. The qualified or special right of property said to exist as to game, that is as to animals ferce, naturce which are fit for the food of man, whilst they continue in their wild state, seems to be no more than the exclusive right to catch, kill, and appro- priate such animals; or in other words to reduce them intq possession, for no man hath an absolute property in anything which is fercB naturm.^^ This right as to animals ferce na- turce is said to exist ratione impotentice, ratione soli, or ratione privilegii. Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferce natures as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil. Proper- ty ratione privilegii is the right which by a peculiar franchise 03 1 Eoll. Abr., 393. BiCro. BUz., 145, 179; 1 Leon., 177. ■ii6"Bro. Abr., Tresp., 210; Lindw., 267; 2 Atk., 217. The preamble of the ancient stat., 35 Ed. 1, § 2, entitled ' Statutum ne Bector prosternat Arbores m Caemitario,' recites that 'Forasmuch as a church-yard that is dedicated, is the soil of the church, and whatsoever is planted belongeth to the soil, it must needs follow that those trees which be growing in the church-yard, are to be reckoned amongst the goods of the church, the which laymen have no authority to dispose; but as the Holy Scriptures doth testify, the charge of them is committed only to the priest to be disposed of,' etc. The statute then directs that the timber shall be applied to the repair of the chancel, etc. Of this statute. Lord Coke observes, that it is but a declaration of the common law, 11 Co., 49." The herbage of a chapel-yard and the loppings of the trees therein by law belong to the incumbent. Cox v. Eicraft, 2 Lee Ecc, 373 (1757). 66 See the Case of the Swans, 7 Co., 17 b (1592); Gillet v. Mason, 7 John., 16 (1810); 2 Bl. Com., 390. 327 *242 THE LAW OB" PIXTUEES. [CHAP. VII. anciently granted by the crown in virtue of its prerogative, one man had of killing and taking animals ferce naturae, on the land of another; and in like manner the game, when killed or taken by virtue of the privilege, became the absolute prop- [*242] *erty of the owner of the franchise, just as in the other case it becomes the absolute property of the owner of the soil.^^ Lord Coke states the rule thus: "But when a man hath savage beasts ratione privilegii, as by reason of a park, warren, etc., he hath not any property in the deer, or conies, or pheas- ants, or partridges; and therefore in an action, quare parcum warrennum, etc., f regit et intrav'. 3. damas, lepores, cuniculos, phasianos, perdices, cepit et asportavit, he shall not say 'suos,'^^ for he hath no property in them, but they do belong to him ratione privil' for his game and pleasure, so long as they re- main in the privileged place ; for if the owner of the park dies, his heir shall have them, and not his executors or administra- tors, because without them the park, which is an inheritance, is not complete. "^^ It is also laid down by Lord Coke,^'' that "if a man buy divers fishes, as carps, breames, tenches, etc., and put them in 57 Per Lord Westbury in Blades v. Higgs, 11 H. L. Gas., 621, 631 (1865) ; s. c, 11 Jur. (N. S.), 701; 12 L. T. (N. S.), 615, in which case it was held, that game found, killed and taken upon the land of A. by a trespasser, becomes the property of A. as much as if taken by A. or his servant by his authority. See, also, Sutton v. Moody, 1 Ld. Eaym., 250 (1697) • s. c, Comyns, 34; 12 Mod., 144; Coney's Case, Godb., 122 (1587); Church- ward V. Studdy, 14 East, 249 (1811) ; Graham v. Ewart, 11 Exch., 326, 346 (1855); s. C, 1 H. & N., 550; 7 H. L. Gas., 331, 344; Eigg v. Lons- dale, 1 H. & N., 923 (1857) ; s. c, 11 Exch., 654; 2 Bl. Com., 392, et seq.; 2 Broom & Had. Com., *586, et seq. [Under the civil law a poacher, though liable to punishment, was not required to restore his game. Hadley's Eoman Law, 166.] 58 See, however, Davies v. Powell, Willes, 48 (1737), per Willes, J. 59 Per Lord Coke in the case of the Swans {supra) ; approved by Lord Chelmsford in Blades v. Higgs {supra), p. 638. "Nor can felony be committed of them; but of those which are made tame, in which a man by his industry hath any property, felony may be committed." Case of the Swans {supra), Eex v. Brooks, 4 C. & P., 131 (1829). See, also, 2 Bl. Com., 343; 1 Hale, 511; East's P. C, 16, § 41; Hawk., b. 1, c. 33, §§ 26, 39; 2 B. & C, 944; T. Eaym., 33; Dalton, ch. 156. eoCo. Lit., 8 a. 328 CHAP. VII.] DEER, PISH, ETC. *243 his pond, and dyeth, in this case the heire shall have them, and not the executors, but they shall goe with the inheritance; because they were at libertie, and could not be gotton without Industrie, or by nets and other engines. Otherwise it is, if they were in a trunke or the like. Likewise deere in a parke, conies in a warren, and doves in a dove-house, young and old, *shall goe to the heire. "«i So, it is held, that the owner [*243] of the land upon which the tree stands, has a qualified property ratione soli in wild and unreclaimed bees in a bee-tree there- on.«2 But although by the general law deer in a park, not tame and reclaimed, go to the heir-at-law of the owner of the park, yet when tame and reclaimed they become personal property and go by law to the personal representatives of the oAvner of them, and not to the heir of the owner of the park in which 61 See Greye's Case, Owen, 20 (1594-5); s. C, Cro. Eliz., 372; Gouldsb., 29, pi. 24, where trespass by the heir against the executors for taking the fish with a net was held maintainable; 11 Tin. Abr., 166; Went. OflP. Ex,, 52, 53, chap. 5 (or p. 143, Am. reprint, 1832, of 14th Lond. ed.) ; 7 Co., 17 b; 11 Co., 50 b; Swinb., 759; Keilw., 118; 4 Leon., 240; 1 Eoll.' Abr., 916; Com. Dig., Biens, B, E; Bac, Executors, H 3; Shep. Touch., 469. See, also, 18 Ed. 4, p. 14; Godolph. Orph. Leg., 126; Noy's Max. (9th ed.), 230, 239; and the cases cited in the preceding notes. 62 Gillet V. Mason, 7 John., 16 (1810) ; Ferguson v. Miller, 1 Cow., 243 (1823) ; Goff v. Kitts, 15 Wend., 550 (1836) ; Idal v. Jones, 2 Dev. Law, 162 (1829). See, also. Cock v. Weatherby, 13 Miss., 333 (1845) ; Adams V. Burton, 43 Vt., 36 (1870). [State v. Eepp, 104 Iowa, 305, 306 (1898).] [Bees and honey in a tree belong to the owner of the tree, as against a finder; nor will a local usage affect the rule. Ksher v. Steward, Smith, 60 (N. H., 1804).] It seems more proper to say the "exclusive right of appropriation," unless the words "qualified property" are used in the same sense as at the beginning of this section. See Blades v. Higgs, there cited. Oysters planted by an individual in a bed clearly designated and marked out in navigable waters which are common to all the inhabitants of the State, at which place no oysters were growing at the time, are the prop- erty of him who planted them, and he may maintain an action for their unlawful removal by another. Pleet v. Hegeman, 14 Wend., 42 (1835), Decker v. Fisher, 4 Barb., 592 (1848) ; Lowndes v. Dickerson, 34 Barb., 586 (1861). See, also, Brinekerhoff v. Starkins, 11 Barb., 248 (1851); Arnold v. Mundy, 6 N. J. Law, 1 (1821) ; State v. Taylor, 27 N. J. Law, 117 (1858). [See Post v. Kreischer, 108 N. Y., 110 (1886), reversing 39 Supr. Ct. (32 Hun), 49 (1884) ; The Swift [1901] P., 168.] 329 *244 THE LAW OF FIXTURES. [CHAP. VU. they are kept.^s And deer in a park, though it be an ancient and legal park, may be so tame and reclaimed as to pass to the personal representatives as personal property. The question is whether they are tame and reclaimed or not, which must be determined with reference to the state and condition, nature and habits of the animals, the nature and dimensions of the place where they are kept, and the mode in which they are treated.®* [*244] *And in like manner if the testator had any tame pigeons, conies, pheasants, partridges, etc., they shall go to the executors; and so, though not tame, if they were taken and kept alive in any room, cage or like receptacle. So, also, it is said, as to young pigeons, though not tame, being in the dove- house and not able to fly out; yet their dams, the old ones, shall go to the heir with the dove-house.®^ Hawks reclaimed and hounds, though there are some old authorities to the con- trary,*® have also been considered to go to the executor instead of the heir.®^ Perhaps it may properly be said that the reason of the rule that deer in a park not tame and reclaimed, fish in a pond, and other animals ferm naturm, do not go to the personal repre- sentatives of the owner of the land, is, that they are not the subjects of absolute property so as to pass to the personal rep- resentatives; and they pass to the heir not by reason of his succeeding to a right of property of his ancestor in them, but by reason of his succession to the land, and the exclusive right 83 Morgan v. Earl of Abergavenny, 8 C. B., 768 (1849). See, also, Davies v. Powell, Willes, 46 (1737); Off. Exrs. (Am. ed., 1832), 143; Law of Test., 379. 6* Morgan v. Earl of Abergavenny {supra). See, also, 3 Eeeve's Hist., 378. 85 Off. Ex. (Am. ed., 1832), 143; Law of Test., 379; Bac. Abr., Execu- tors, H 3. See, also, 2 Bl. Com., 392. The statement that young pigeons go to the executor has, however, been questioned. See Ferard Eixt., 202 note. Larceny may be committed of pigeons so tame as to come home every night to roost in wooden boxes hung on the outside of the owner's house. Eex v. Brooks, 4 C. & P., 131 (1829). esSwinb., part 7, § 10; Noy's Max. (9th ed.), 144, 230, 239. 87 Ferard Fixt., 200; Off. Ex. (Am. ed., 1832), 143; Godolph. Orph. Leg., part 2, ch. 13, and part 3, eh. 21; Bac. Abr., Executors, H 3; 1 Wms. Exrs. (6th Lend, ed.), 664. 330 CHAP. Vn.] DEEB, PISH, ETC. *245 of taking or reducing them to possession ratione soli.^^ But, however this may be, they are so far a part of the inheritance that waste may be committed in respect of them. Thus, if a tenant for life of a park, vivary, warren, or dove-house, kills so many of the deer, fish, game or doves, that there is not suffi- cient left for the stores, it is waste.^^ It is to be remarked that the cases above referred to, where game, fish, etc., are said to go to the heir instead of to the per- sonal representative, are eases where the ancestor had an estate of inheritance, and the question arose between the heir sue- *ceeding to the estate of his ancestor and the personal [*245] representative taking no interest in the land. But where the interest of the ancestor in the land is only a chattel interest, which passes to the personal representative on his decease, the case is different; for, in such a case, the res principalis passing to the personal representative would carry with it the res acces- soria, the heir having no interest in either.'^" 68 See Ferard Kxt, 199, note (d). 69 1 Cru. Dig., tit. 3, eh. 2, § 20; Vin. Abr., Waste, E; Co. Lit., 53 a. [See Eobens v. Barrett, 73 Supr. Ct. (66 Hun), 189 (N. Y., 1892).] 70 See Ferard Fixt., 201; Off. Ex., 153; Godolph. Orph. Leg., part 2, eh. 13; Harg. Co. Lit., 8 a, N. 41; 11 Vin. Abr., 166; 1 Wms. Bxra. (6th Lend, ed.), 666. 331 [*246] CHAPTER VIH. EMBLEMENTS,! ETC. The species of property forming the subject of this chapter, and which is often compared with fixtures, might properly have been considered in connection with the preceding chap- ters discussing the law of fixtures as between the same parties; but in order to avoid as far as possible scattering the subject- matter of this chapter throughout the body of the work, it has been thought advisable to present a summary view of the sub- ject in its different relations in a distinct chapter. Vegetable productions, as the fruit or other parts of a plant, when severed from the body of it, or the whole plant itself, when severed from the ground, are evidently personal property passing to the personal representatives.^ And so is peat dry [*247] *or in process of curing upon a meadow.* But turf, 1 The law of Emblements, etc., has been considerably changed in Eng- land by the statute of 14 & 15 Viet., ch. 25 (1851), entitled "An Act to improve the Law of Landlord and Tenant in relation to Emblements, to Growing Crops seized in Execution, and to Agricultural Fixtures," which see. See, also, Haines v. "Welch, L. E. 4 C. P., 91 (1868). 2 1 Wms. Exrs. (6th London ed.), 668; 2 BI. Com., 389; Johnson t. Barber, 10 111., 431 (1849), grass. [See, ante, p. *44; also Simonton v. CorneUus, 98 N. C, 433, 437 (1887).] The rule is the same when severed by construction of law, as by a deed of the trees, grass, etc., to a third person. See post in this chapter, p. *270. However, in Brackett v. Goddard, 54 Me., 309 (1866), it was held, that hemlock timber trees cut down by the owner of the land for the purpose of removing the bark therefrom, and left with the tops on, the owner of the land intending to cut off the tops, and haul the trees off as logs to be sawed during the ensuing winter, passed by a conveyance of the land, though, as it was said in the opinion of the court, it would have been othervpise had they been cut into logs or hewed into timber. So held ap- parently after the analogy to the case of timber trees blown down or severed by a stranger. [See post, p. *305.] 3 Giles V. Stevens, 13 Gray, 146 (1859). 332 CHAP. VIII.] EMBLEMENTS, ETC. *247 gravel and chalk unsevered are part of the freehold.* And so are fruit or other trees standing and growing on the land,^ and the fruit or produce of them, while unsevered; and hence on the death of the owner of the land they go with the land to the heir and not to the executor or administrator.® Among the fruits, etc., that if hanging on the trees at the time of the death of the ancestor, will go to the heir and not to the personal rep- resentative, may be mentioned apples, pears, nuts, etc., and other natural fruits, or fructus naturales as distinguished from * Amiles (or Amiers) v. Chambers, 1 Mod., 35 (1681) ; s. c, 2 Keb., 596. [Burns v. Fleming (1880), 8 Sess. Gas., 4th Ser., 226.] See, also, Stoutfil's Case, 2 Mod., 77 (1688); March, 58, pi. 89. [The rules as to emblements are not applicable to ice. Higgina v. Kusterer, 41 Mich., 318 (1879).] 5 Adams v. Smith, Breese, 221 (1828) ; Bank of Lansingburg v. Crary, 1 Barb., 542 (1847); Liford's Case, 11 Co., 48 a (1614); 2 Bl. Com., 123; Com. Dig., Biens, H; Bae. Abr., Exrs., H 3. [Asher Lumber Co. v. Cornett, 23 Ky. Law E., 602, 603 (1901) ; Emerson v. Shores, 95 Me., 237, 239 (1901); Donworth v. Sawyer, 94 Me., 242 (1900); Ee Ainslie (1885), 30 Ch. D., 485.] 6 Liford's Case, 11 Co., 48 a (1614); Com. Dig., Biens, H; Swinb., pt. 7, § 10, pi. 8; Bac. Abr., Exrs., H 3. As to the particular interest of a lessee in the trees on the demised prem- ises, see Liford's Case (supra) ; Channon v. Patch, 5 B. & C, 897 (1826) ; Berry v. Heard, Cro. Car., 242 (1622). As to his interest in the hedges and bushes cut upon the premises, see Berriman v. Peacock, 9 Bing., 384 (1832). Crude turpentine which has formed on the body of the tree and is usu- ally known as "scrape," being that portion which does not run into the box and which is removed after it has formed in suflBcient quantities, by scraping it from the tree, is personal property and belongs to the person who has lawfully produced it by cultivation. It is an annual product of labor and industry, and although it adheres to the body of the tree, it is not a part of the realty. The turpentine crop may be properly classed with fructus industriales, for it is not the spontaneous product of trees, but requires annual labor and cultivation. Lewis v. McNatt, 65 N. C, 63 (1871). So, also, as to turpentine in boxes,, in a state to be dipped up. Branch v. Morrison, 5 Jones' Law, 16 (1857); s. c, 6 Id., 16. In Purner v. Piercy, 40 Md., 212 (1874), the opinion is expressed (obiter), "that a growing crop of peaches or other fruit requiring period- ical expense, industry and attention in its yield and production, may well be classed as fructus industriales, and not subject to the 4th section of the Statute" of Frauds. 333 *248 THE LAW OP FIXTURES. [CHAP. VHI. fructus industrialesJ So as to grass growing upon the land at [*248] the time of *the death of the ancestor, even if sown from the seed and though fit to be mowed down for hay.® And so as to hedges, bushes, etc., for these are said to be the natural or permanent profit of the earth, and are reputed parcel of the ground whereon they grow.' Where, however, growing timber trees, etc., are severed from the soil either actually or by construction of law, as where a tenant in fee simple legally grants away the trees without the land, or sells the land reserving the trees from the sale, the trees being legally separated from the land are, though in fact united to it, personal property and go to the personal repre- sentative.i" 7Bac. Abr., H 3; Off. Ex. (Am. ed., 1832), 145; Craddock v. Eiddles- barger, 2 Dana, 205 (1834); Swinb., pt. 7, § 10; Godolph., 122; Flud v. Flud, Freem. Ch., 210 (1696) ; Kain v. Fisher, 6 N. Y., 597 (1852). [See Sparrow v. Pond, 49 Minn., 412 (1892).] It seems that not only natural fruits, but all growing fruits, though produced by skill and culture, go to the heir. See Ferard Fixt., 207, note. Swinb., pt. 7, § 10. sBac. Abr., Exrs. H 3; Godolph., 122; Off. Ex., 145; Kain v. Fisher {supra) ; Bank of Lansingburg v. Crary {supra) ; 1 Wms. Exrs. (6th Lond. ed.), 672. [Evans v. Hardy, 76 Ind., 527, 532 (1881) ; Evans v. Iglehart, 6 Md., 171, 188 (1834) ; Keife v. KeifE, 64 Pa. St., 184 (1870) ; see, also, Eogers v. Elliott, 59 N. H., 201, 202 (1879).] [Growing grass belongs to the devisee of the land. Se Chamberlain, 140 N. Y., 390, 392 (1893).] An opinion has been expressed, however, that the artificial grasses, such as clover, saint-foin, and the like, by reason of the greater care and labor necessary for their production, are within the rule of emblements. See 1 Wms. Exrs. (6th Lond. ed.), 672; 4 Burn's Eccl. Law (9th ed.), 410; Graves v. Weld, 5 B. & Ad., 105 (1883). [See, also, McNee v. Carnie (1866), Guthrie's Sel. Cas., 345, 346.] [Alfalfa is a perennial plant which, when properly cared for, produces annual crops of hay or pasturage for a indefinite number of years, and can not be regarded as a "growing crop." Miller v. County of Kern, 137 Cal., 516 (1902).] 9 1 Wms. Exrs. (6th Lond. ed.), 668. [Kirchman v. Lapp, 19 N. Y. Supp., 831, 832 (1892); Be Ainslie (1884), 28 Ch. D., 89, 92; (1885) 30 Ch. D., 485.] loStukeley v. Butler, Hob., 173 (1615); Off. Ex. (14th ed.), 148; Com. Dig., Biens, H; 1 Wms. Ex'rs. (6th Lond. ed.), 668, and cases cited. See, also, Liford's Case, 11 Co., 50 a (1614). [See, post, p. *270.] 334 CHAP. VIII.] EMBLEMENTS, ETC. *249 There are, however, certain other vegetable products of the earth, which although they are annexed to and growing upon the land at the time of the occupier's death, or at the time of the termination of his estate in the land, yet, as between the personal representatives of the person seized of the inheritance and the heir, and between the personal representatives of the tenant for life and the remainderman or reversioner, and be- tween an ordinary landlord and tenant, are in some cases con- sidered as chattels and pass or are removable as such.^i These are usually called emblements,!^ and consist of those vegetable •products of the earth, as corn, etc., which are produced [*249] annually by labor, industry, and manurance, and are called fructus industriales, as distinguished from those spontaneous or natural products which are called fructus naturales. Crops of the former nature (viz. fructus industriales) , sown or planted by the owner of the inheritance, on his death before the same are harvested, go to the executor and not to the heir, as a com- pensation, as it is said, for the labor and expense of tilling, 11 Emblements seem in most respects to be considered as chattels, and are in this respect to be distinguished from fixtures which during annexa- tion are in many, if not most, respects to be considered as realty. See this subject more fully considered post, in this chapter. [Until actual severance, crops, like fixtures, are real property, as has been held whenever the point is directly raised. See Bagley v. Columbus R'y Co., 98 Ga., 626 (1896), where the opinion of the court, written by Simmons, C. J., is excellent and exhaustive. However, they very fre- quently have the incidents of personal property. As Chief Justice Sim- mons, at p. 632, says: "A growing crop is a sort of legal chameleon constantly changing color to meet the emergency of each particular class of cases in which the question arises whether it is to be considered as personalty or as realty." In this opinion, p. 639, the distinction between growing crops and emblements is pointed out. It is to be regretted that courts frequently speak of growing crops as personal property when it is simply meant that the rules which govern personal property are to be ap- plied in that particular case. See Pish v. Capwell, 18 E. I., 667, 672 (1894).] [Growing crops are often considered personal property. Favorite v. Deardorff, 84 Ind., 555, 557 (1881).] [As between landlord and tenant, the annual crop constitutes no part of the freehold. Perry v. Hamilton, 138 Ind., 271, 273 (1894).] 12 1 Wms. Exrs. (6th Lond. ed.), 670. 335 #250 THE LAW OF FIXTURES. [CHAP. Vm. manuring and sowing the land.i^ It seems, however, that the better reason of the rule, as between executor and heir of the tenant in fee, is, as expressed by Swinburne,^* that the seed has been "sowne in the ground by man's industry in hope not to continue there still, but to be separated and reaped with in- crease ere long;" and "that these industrial fruits were, in the purpose and intention of the deceased, separable and mova- ble, even when the will was first made, albeit they were not actu- ally separated or removed from the ground ; which purpose and intention or destination is sufficient in a testament to mafee them movable," reasons which seem to make this branch of the law harmonize with what has hereinbefore been attempted to be shown to be the controlling element in determining the question of the removability of ordinary fixtures. However, the reason first above stated, to which may be added the ground of encouragement of husbandry and the public benefit, seems applicable to relations other than that of executor and heir of tenant in fee.^^ And in the case of tenancies for life, the estate being determined by the act of God, the maxim "Actus Dei nemini facit injuriam" furnishes an additional and strong ground for the adoption of the rule in question. The doctrine of emblements extends not only to corn and grain of all kinds, though growing, but also to everything else of that kind which is produced annually by labor, cultivation and manurance;i^ as saffron, flax, hemp, and the [*250] *like;^^ and melons of all Mnds.^* The doctrine is con- sidered also to include hops, though not sown, and though 13 See McCormick v. McCormick, 40 Miss., 760 (1866) ; 1 Wms. Exrs., 671 and authorities cited. [See, post, p. *252; and Sparrow v. Pond, 49 Minn., 412, 417 (1892).] "Part 7, § 10. 15 2 Bl. Com., 122. [Chappell v. Boyd, 56 Ga., 578, 582 (1876).] isBae. Abr., Executors, H 3; Ofe. Ex., 147; Co. Lit., 55 b; 1 Wms. Exrs. (6th Lond. ed.), 671; Lewis v. McNatt, 65 N. C, 63 (1871). See this case, stated ante, p. *247 note. i7Bae. Abr., Exrs., H 3; Off. Ex. (14th ed.), 147; 1 Wms. Exrs. (6th Lond. ed.), 671; Co. Lit., 55 b. 18 Off. Ex. (14th ed.), 153. The opinion is here expressed that arti- chokes go to the heir, as not having such yearly setting and manurance as to sever them from the soil. Sed quaere. See 1 Wms. Exrs. (6th Lond. ed.), 671 n. 336 CHAP. Vm.] EMBLEMENTS, ETC. *250 springing from ancient roots, as they are grown by manurance and industry of the owner.i® So also it includes potatoes.^" But, if a man sows acorns, or plants young fruit or other trees, these would not be considered emblements, because they yield no present annual profit. ^^ The doctrine of emblements i»Co. Lit., 55 b, note (1); Off. Ex. (14th ed.), 147; 1 Wms. Exrs. (6th Lond. ed.), 671; Latham v. Atwood, Cro. Car., 515 (1636); Flud v. Plu(J, Freem. Ch., 210 (1696). In Fox v. Brissac, 15 Cal., 223 (1860), grape vines planted by a tenant for sale, and growing in a nursery, were con- sidered as sustaining the same relation to the freehold as crops of grain, and a recovery was had therefor in trespass by the tenant against the landlord, who had entered and forcibly ejected the tenant (there being no clause of re-entry in the lease), and refused the tenant permission to gather and remove his crops and grape vines. See, also, Wintermute v. Light, 46 Barb., 278 (1866), relating to wine plants. [Sugar-cane is subject to the law of emblements, although it is not sown and may require more than a year to mature, as it is the result of annual care and labor. Nawahi v. Hakalau Plantation Co., 14 Hawaii, 460, 461 (1902).] 20 Per Bailey, J., in Evans v. Eoberts, 5 B. & C, 832 (1826). [Sali- monie Mining Co. v. Wagner, 2 Ind. App., 81, 83 (1891).] The opinion is expressed in Wentworth's Office of an Executor (14th ed., p. 152), that the roots of carrots, parsnips, turnips, skerrets, and such like, arising from yearly sowing, go to the heir and not to the executor, for the reason that the executor cannot get them without breaking the soil. The same opinion is expressed in Godolphin, pt. 2, ch. 14, sec. 1. But no good reason is seen for the distinction, and it probably is not now the law. See 1 Wms. Exrs. (6th Lond. ed.), 671, note; Co. Lit., 55 b; 2 Bl. Com., 123; Dunne v. Ferguson, Hayes, 540 (1832). 21 See Co. Lit., 55 b; Com. Dig. Biens, G 1, H; 2 Bl. Com., 123. These authorities relate to lessor and lessee, but on familiar principles must be applicable also to the relations of executor and heir, tenant for life and remainderman, etc. Whether trees, shrubs, etc., set out by nurserymen, and gardeners (the owners of the land), for the purposes of sale, may, as between the heir and executor of tenant in fee, be removed by the latter, appears not to have been decided; though, as has been already stated {ante p. *107), as between landlord and tenant, they are removable by the latter during his term, but rather as being analogous to trade fixtures than emblements. On principle and analogy to the doctrine of fixtures proper, they would probably be held to go to the heir with the inheritance. They have been held to pass by a conveyance or mortgage of the land, in which cases the rule (when not affected by the particular terms of the instrument) is the same as between executor and heir. Smith V. Price, 39 111., 28 (1865); Priee'v. Brayton, 19 Iowa, 309 (1865); Maples V. Millon, 31 Conn., 298 (1863). [Dubois v. Bowles, 30 Colo., 44, 22 337 *251 THE LAW OF FIXTURES. [CHAP. VHI. [*251] extends *to a crop of that species only which ordinarily repays the labor by which it is produced, within the year in which that labor is bestowed, though the crop may in extraor- dinary seasons be delayed beyond that period ;22 and the doc- trine extends to no more than a single crop, though the effect of the labor and manurance may continue for several crops.^* The eases do not seem to lay down any different degrees- of 61 (1902); see, also, Wallace v. Dodd, 136 Cal., 210 (1902); Holmberg V. Johnson, 45 Kan., 197 (1891). But see Batterman v. Albright, 122 N. Y., 484 (1890).] [Nursery stock passes to the mortgagee of the land as against a sub- sequent chattel mortgagee. While the owner might sell, at the proper season, in the ordinary course of trade, such of the stock as was suitable for transplanting, and the mortgagee of the land could not reclaim it, it is otherwise as to a sale of or giving a, chattel mortgage on the entire stock without actual severance, and without regard to its being in proper condition for transplanting. Adams v. Beadle, 47 Iowa, 439 (1877).] [The word "crop," taken in its most comprehensive sense, includes fruits grown upon trees, but the trees themselves are not included in that term, and, as such, are not exempt from taxation. Cottle v. Spitzer, 65 Cal., 456, 458 (1884.) See, as to blackberries, Sparrow v. Pond, 49 Minn., 412 (1892).] [In Mason v. Lemmon, 4 Ohio Dec, 322, 323 (1895), it is said that grape crops, requiring cultivation, are emblements.] 22 Graves v. Weld, 5 B. & Ad., 105, 118 (1833). In this case the tenant for a term determinable upon a life sowed the land in the spring first with barley and soon after with clover. The life expired in the following summer. In the autumn the tenant mowed the barley, together with a little of the clover plant which had sprung up. The clover so taken made the barley straw more valuable by being mixed with it; but the increase of the value did not compensate for the expense of cultivating the clover and a farmer would not be repaid such expense in the autumn of the year in which it was sown. The reversioner came into possession in the winter and took two crops of the same clover after more than a year had elapsed from the sowing. Held, that the tenant was not entitled to emblements of either of these two crops; first, because emblements can be claimed in a crop of that species only, etc. (as above stated) ; and secondly, because, even if the plaintiff were entitled to one crop of the vegetable growing at the time of the cesser of his interest, this had been already taken by him at the time of cutting the- .barley. The case of Kingsbury v. Collins, 4 Bing., 202 (1827), holding teazles to be emble- ments, was in Graves v. Weld (supra), commented upon and explained; and that case was not considered an, authority to show that things taking more than a year to arrive at maturity could be emblements. 23 Graves v. Weld (^supra). 338 CHAP. VIII.] . EMBLEMENTS, ETC. *252 liberalty in the application of the law of emblements (prop- erly so called) , to the different relations of landlord and tenant, tenant for life and remainderman or reversioner, etc., such as have been shown to exist with reference to fixtures. The reason seems to be that the doctrine of emblements in these different relations is founded upon substantially the same grounds; it being from the nature of the subject-matter absurd and con- tradictory to suppose that crops which are in all the relations "sown in the ground by man's industry in hope not to con- tinue there still, but to be separated and reaped with increase ere long," are intended to be a permanent accession to the *realty. Accordingly, as will be seen hereafter, emble- [*252] ments are for most purposes considered as chattels. There are, however, some rules of the law of emblements, to be referred to presently, which, though seemingly well settled, seem anomalous and difficult of explanation. Where the de- ceased was seized in fee simple of the land, his personal rep- resentatives are entitled to emblements as against the heir,^* and the same rule applies to tenant in tail.^^ It is, how- ever, well settled that, if a man seized in fee sows the land, and then without reservation conveys it away before the crop is severed, the crop passes with the land as appertaining to it, and does not belong either to the grantor, or to his executor in case he dies before the severance.^® And the same rule is ap- 24 Co. Lit., 55 b, note (2); Com. Dig., Biens, 6 2; 1 Wms. Bxrs. (6th Lend, ed.), 673. Bac. Abr., Executors, H 3. [See, ante, p. *249. Mit- cham V. Moore, 73 Ala., 542, 547 (1883) ; MoGee v. Walker, 106 Mich., 521, 522 (1895); Kupp's Est., 2 Woodward, 228, 230 (Pa., 1868); see, also. Walker v. State, 111 Ala., 29, 31 (1895) ; Marx v. Nelms, 95 Ala., 304 (1891); Kidwell v. Kidwell, 84 Ind., 224, 227 (1882). By §§ 2439-41 of the Alabama Code it i« the duty of an administrator to cultiTate and market the crop. Tayloe v. Bush, 75 Ala., 432, 437 (1883) ; but such crop will go to the heir if the personal representative does not exercise his option. Wright v. Watson, 96 Ala., 536, 539 (1892). This matter is also regulated by statute in Ehode Island. See Draper v. Barnes, 12 E. I., 156, 158 (1878).] 25 Com. Dig., Biens, G 2; Off. Ex. (14th ed.), 145. 26 Powell V. Eich, 41 111., 466 (1866); Tripp v. Hasceig, 20 Mich., 254 (1870) ; Baekenstoss v. Stabler, 33 Penn. St., 254 (1859) ; Terhune v. Elberson, 3 N. J. Law (2 Penning.), 3d. ed., p. 297; 2d. ed., 553; 1st. ed., p. 726 (1810) ; Gibbons v. Dillingham, 10 Ark., 9 (1849) ; Bull v. Gris- wold, 19 111., 631 (1858) ; Talbot v. Hill, 68 111., 106 (1873) ; Bludworth v. 339 *252 THE LAW OF FIXTURES. [CHAP. VUI. Hunter, 9 Bob. (La.), 256 (1844) ; Civil Code, La., Art. 456. See, also, Burnside v. Weightman, 2 W. & S., 268 (1841). [Miller v. Cheney, 88 Ind., 466, 470 (1882); Blodgett v. German Sav. Bank, 69 Ind., 153, 156 (1879); Ellithorpe v. Eeidesil, 71 Iowa, 315, 318 (1887); Chapman v. Veach, 32 Kan., 167, 170 (1884) ; Baird v. Brown, 28 La. Ann.", 842, 843 (1876) ; Coman v. Thompson, 47 Mich., 22 (1881) ; Eeed v. Swan, 133 Mo., 100, 106 (1895); Steele v. Farber, 37 Mo., 71, 79 (1865); Coor v. Smith, 101 N. C, 261, 262 (1888) ; see, also, Graham v. Eoark, 23 Ark., 19, 23 (1861); Abbott v. Abbott, 75 Pac, 1040 (Kan., 1904); Mueller V. Olson, 90 Minn., 416, 417 (1903) ; Mitchell v. Tsehida, 71 Minn., 133, 135 (1898); Marshall v. Homer, 74 Pac, 368, 370 (Okla., 1903).] [The rule is the same upon partition of land owned in common, the crops planted by one co-tenant, growing upon each portion assigned in severalty to the co-tenants, going with the land as a part thereof. Cal- houn V. Curtis, 45 Mass., 413, 415 (1842); see Bird v. Bird, 15 Pla., 424, 443 (1875) ; and where the crops have been planted by one tenant in common in exclusive possession, his co-tenant, after filing a bill for partition, may be permitted to share the proceeds. Moreland v. Strong, 115 Mich., 211, 217 (1897).] [Where a transfer of land is void for want of writing, the crop there- on does not pass. Jackson v. Evans, 44 Mich., 510, 513 (1880).] [In Toils V. Battin, 6 Kan. App., 742 (1897), it was held that a crop, previously sold on execution, did not pass on a sale of the land.] [Where an owner of land mortgages it, and afterwards makes a chattel mortgage on the crops, the mortgagee of the land, by purchasing the land, merges his mortgage so that the chattel mortgage becomes prior to the' claim of the grantee and of his tenant. Cameron v. Gibson, 17 Ont., 233 (1889).] [A lessee, on taking possession under his lease, is entitled to the crops growing upon the leased premises. Edwards v. Perkins, 7 Oregon, 149, 156 (1879); Emery v. Fugina, 68 Wis., 505, 507 (1887).] The cases of Stambaugh v. Yates, 2 Eawle, 161 (1828) ; Smith v. Johnston, 1 Penn., 471 (1830) ; s. C, 3 Penn., 496, so far as they decide that growing grain does not pass by a conveyance of the fee, where not specially reserved, are now overruled. See Bank of Penn. v. Wise, 3 Watts, 394, 406 (1834); Wilkins v. Vashbinder, 7 Watts, 378 (1838); Cobel V. Cobel, 8 Penn. St., 346 (1848) ; Burnside v. Weightman, 9 Watts, 46 (1839); Bittenger v. Baker, 29 Penn. St., 68 (1857). As to whether such reservation of the crops may be made by parol or not there is a conflict among the authorities. If the rule in the text be conceded to be settled, the weight of authority seems to be that such a parol reservation is void. Gibbons v. Dillingham, 10 Ark., 9 (1849) ; Vanderkarr v. Thompson, 19 Mich., 82 (1869) ; Austin v. Sawyer, 9 Cow. 39 (1828); Powell v. Eich, 41 111., 466 (1866); Brown v. Thurston, 56 Me., 126 (1868) ; Mcllvaine v. Harris, 20 Mo., 457 (1855) ; Chapman v. Long, 10 Ind., 465 (1858). See, also, Wintermute v. Light, 46 Barb., 278 (1866); Carpenter v. Jones, 63 111., 517 (1872); Smith v. Price, 89 340 CHAP. VIII.] EMBLEMENTS, ETC. *253 *plicable when the land on which such crop is growing [*253] is sold and conveyed on execution against its owner.i So, the purchaser of mortgaged premises upon a foreclosure and sale thereof is entitled to the growing crops or emblements thereon 111., 28 (1865) ; Johnson v. Tantlinger, 31 Iowa, 500, 502 (1871) ; Con- ner V. Coffin, 22 N. H., 538 (1851); Eing v. BilUngs, 51 111., 475 (1869). [Johnston v. Smith, 70 Ala., 108, 120 (1881); Gam v. Cordrey, 53 Atl., 334, 335 (Del., 1902) ; Damery v. Ferguson, 48 111. App., 224, 228 (1898) ; Garanflo v. Cooley, 33 Kan., 137, 139 (1885); Chapman v. Veaoh, 32 Kan., 167, 170 (1884) ; Kammrath v. Kidd, 95 N. W., 213 (Minn., 1903) ; Bloom V. Welsh, 27 N. J. Law, 177 (1858). A growing crop is a part of the realty as between the mortgagor and the mortgagee, and the mort- gagor can not assert the rights of third persons. Williamson v. Eiohard- son, 31 La. Ann., 686, 687 (1879). Notice by the sheriff at an execution sale of land can not affect the right of the purchaser as to crops grow- ing thereon. Frost v. Bender, 65 Ga., 15, 19 (1880). A written agree- ment reserving a growing crop to the grantor, is merged into a subse- quent, unconditional deed, and the grantee is entitled to such crop. Turner V. Cool, 23 Ind., 56 (1864). See, also, Clifton v. Jackson Iron Co., 74 Mich., 183 (1889), for the same rule as to trees.] See, contra, Flynt v. Conrad, Phill. Law, 190 (1867); Heavilon v. Heavilon, 29 Ind., 509 (1868); Baker v. Jordan, 3 Ohio St., 438 (1854); Youmans v. Caldwell, 4 Ohio St., 71 (1854) ; Backenstoss v. Stahler, 33 Penn. St., 251 (1859). See, also, Harbold v. Kuster, 44 Penn. St., 394 (1863) ; Lauehner v. Eex, 20 Penn. St., 464 (1853) ; Pea v. Pea, 35 Ind., 387 (1871); Jones v. Timmous, 21 Ohio St., 596 (1871), where a distinc- tion is taken between crops and trees. See, however. Carpenter v. Ottley, 2 Lans., 451 (1870). [A parol reservation is held valid in Harvey v. Million, 67 Ind., 90 (1879), overruling earlier eases; Kluse v. Sparks, 10 Ind. App., 444, 446 (1894) ; Hubbs v. Swabacker, 51 W. Va., 438 (1902) ; and such parol reservation is valid though a sale of a growing crop is within the statute of frauds. Kerr v. Hill, 27 W. Ta., 576 (1886). See, also, Moffett v. Armstrong, 40 Iowa, 484 (1875) ; Creager v. Creager, 87 Ky., 449, 453 (1888); Weldon v. Lytle, 53 Mich., 1 (1884); Banta v. Merchant, 45 App. Div., 141 (N. T., 1899). A lessor can, by parol, re- serve a growing crop. Hisey v. Troutman, 84 Ind., 115 (1882).] But where "A. is bound in an obligation that B. shall enjoy a lease of black acre immediately after his death [and], the land being sown, the executors of A. take the corn, it was holden the obligation was not for- feited, for that, by the law, the corn did belong to the executors. ' ' Laun- ton's Case, 4 Leon., 1 (1578). [See, post, p. *258.] 1 Bear v. Bitzer, 16 Penn. St., 175 (1851) ; Pitts v. Hendrix, 6 Geo., 452 (1849). [Thweat v. Stamps, 67 Ala., 96, 98 (1880) ; see, also, King v. Bosserman, 8 Pa. Dist., 344 (1899) ; Loose v. Scharff, 6 Pa. Super., 153 (1897). But see Kesler v. Cornelison, 98 N. C, 383, 385 (1887).] [For the same rule as to fixtures, see, post, p. *276. The rule stated 341 #253 THE LAW OF FIXTURES. [CHAP. VIII. in the text appUes as against a buyer of the crops, who has not removed them, although the grantee had notice. Bloom v. Welsh, 27 N. J. Law, 177 (1858) ; and as against a cropper. Adams v. McKesson, 53 Pa. St., 81 (1866); also a, lessee. Sallade v. James, 6 Pa. St., 144, 145 (1847).] [One whose land has been sold on execution and whose right must ex- pire at the end of a year from the sale, unless he redeems, is not entitled to emblements. "It may be said that he intended to redeem, and was prevented by unforeseen and uncontrollable causes; but the law can not enquire into the good faith of such a pretense. The party in such situa- tion must know, or at least make his own estimate, of his ability to re- deem, and if he chooses to put out crops which he may not reap within the year given him to redeem, without securing by agreement with the purchaser of the land the rights of a tenant after the expiration of the year, he must suffer the consequences." Thomas v. Noel, 81 Ind., 382. 383 (1882).] [The purchaser at an execution sale who takes possession of the land is entitled to a crop afterwards planted by the defendant with the knowl- edge and consent of such purchaser. Smith v. Hague, 25 Kan., 246 (1881).] [A levy upon land includes a crop growing thereon. Frost v. Eender 65 Ga., 15, 19 (1880).] [Where land upon which crops are growing is seized, and such crops are gathered by the seizing creditor through the sheriff, and stored, and a subsequent seizure by the same creditor, upon a second installment of the same debt, is made, such crops remain subject to the second seizure. Townsend v. Payne, 42 La. Ann., 909, 914.] [An officer selling land under a decree has no authority to reserve growing crops. Johnston v. Smith, 70 Ala., 108, 120 (1881).] [The purchaser of land at an execution sale has no right to the crops growing thereon until he obtains possession. Potter v. Lambie, 142 Pa. St., 535, 538 (1891).] [Where the purchaser at an execution sale leaves the judgment-debtor in possession as tenant at will, such tenant is entitled to the crops growing at the time the sheriff's deed is given. Martin v. Knapp, 57 Iowa, 336, 341 (1881).] [Where there has been a constructive severance by the purchaser's apparently acquiescing in an exemption of the growing crops as personal property by the defendant, and an appraisement thereof as such, the pur- chaser of the land is not entitled to them. Hershey v. Metzger, 90 Pa. St., 217 (1879).] [Where a judgment is a lien upon land, a crop grown thereon can be sold, when matured, under the f,. fa. issued upon the judgment, as against junior liens. And the lien attaches to the crop as against a chattel mortgagee. Clark v. Wheaton, 62 6a., 173, 174 (1878). But where a lease is made subsequent to a judgment against the lessor, a purchaser of the land at an execution sale afterwards made, acquires only the in- terest of the lessor as to the growing crop. Blitch v. Lee, 115 Ga., 112 (1902) ; Dollar v. Eoddenbery, 97 Ga., 148 (1895) ; Heavilon v. Farmers 342 CHAP. VIII.] EMBLEMENTS, ETC. *253 Bank, 81 Ind., 249 (1881). In the latter case it is said that the tenant's right grows out of the uncertainty when, if ever, a sale of the land will be made, it not having been ordered nor advertised at the time he hires the land, and where the tenancy is uncertain, he who sows shall reap. See, to the same effect, Johnson v. Cook, 96 Mo. App., 442 (1902). In MeKeeby v. Webster, 170 Pa. St., 624 (1895), where the tenant paid rent in full at the time of making the lease, a purchaser of the land at a subsequent execution sale could not deprive him of his right to the crop.] [Where one. having a sheriff's deed allows the tenant to remain until the latter harvests the crop, he is estopped to claim the grain. Bowen v. Eoach, 78 Ind., 361 (1881).] [That lien does not cover tenant's fixtures, see, post, p. *288.] [Where delinquent taxes are a lien upon land, they are a lien upon crops growing upon the land. Blodgett v. German Sav. Bank, 69 Ind., 153, 156 (1879). But the holder of a tax-deed, not in possession, is not entitled to growing crops, but has a right, after recovery in ejectment, to damages for the profits. Brock v. L^ighton, 11 111. App. 361, 364 (1882).] [A purchaser of land takes subject to an agricultural Hen on crops, given by a tenant. Bail v. Freeman, 92 N. C, 351 (1885).] Under the system of appraisement of land for judicial sales in Ohio, by which the land is appraised and not sold except at a price bearing a fixed proportion to the appraised value, the value of the annual crops is not included in the estimate, and the debtor's rights can only be pro- tected by regarding such crops as personalty requiring a separate levy; and hence growing crops do not there pass to the purchaser at a judicial sale of the land. Cassilly v. Ehodes, 12 Ohio, 88 (1843), a sale under a de- cree of foreclosure; Houts v. Showalter, 10 Ohio St., 126 (1859), holding the same rule applicable to a sale by a sheriff under proceedings in parti- tion. The rule last stated is founded on reasons peculiar to the policy of this State as to judicial sales which can only be made for two-thirds of the appraised value in which the crops are not included; and the rule itself is conceded in the case last cited to be opposed to the current of authority elsewhere where real estate is sold without appraisement and for whatever it will bring. [This rule applies to the landlord's share of a crop put in by a tenant, the purchaser at a judicial sale acquiring no title thereto, this being an exception to the general rule that a purchaser is entitled to rent which becomes due after title vests in him. Albin v. Eiegel, 40 Ohio St., 339, 340 (1883). Grape crops, requiring annual cultivation, are emblements, which do not pass to the purchaser of the land at judicial sale. Mason v. Lemmon, 4 Ohio Dec, 322, 324 (1895).] In Walton v. Jones, 65 N. C, 170 (1871), where an execution was levied upon lanS in 1861, the lien of which was continued by successive writs ef venditioni exponas until the fall of 1867, when the land was sold by the sheriff, it was held, that the legal presumption that the crops of 1867 passed with the land was fully rebutted; "for they were not in- cluded in the levy of 1861 and of course did not pass by the sale." This conclusion seems very like begging the question. 343 *253 THE LAW OP PIXTUEES. [CHAP. VIII. at the time of the sale as against the mortgagor or his assignee in bankruptcy.2 Also, as against his lessee subsequent to the 2Aldrich v. EeyBolds, 1 Barb. Ch., 613 (1840); Lane v. King, 8 Wend., 584 (1832) ; Crews v. Pendleton, 1 Leigh, 297 (1829) ; Gillett v. Balcom, 6 Barb., 370 (1849); Bittenger v. Baker, 29 Penn. St., 68 (1857). [Ho Sun V. Hitchcock, 9 Hawau, 616, 619 (1894); Harmon v. Fisher, 9 111. App., 22, 24 (1881) ; Martin v. Knapp, 57 Iowa, 336, 344 (1881) ; Mis- souri Val. Ins. Co. v. Kiehl, 25 Kan., 390 (1881) ; Porter v. Hubbard, 134 Mass., 233, 236 (1883) ; Dayton v. Dakin, 103 Mich., 65, 73 (1894) ; Scriven v. Moote, 36 Mich., 64, 66 (1877) ; Hayden v. Burkemper, 101 Mo., 644, 647 (1890), aff'g 40 Mo. App., 346 (1890); Wallace v. Cherry, 32 Mo. App., 436, 438 (1888) ; Jones v. Adams, 37 Oregon, 473, 476 (1900) ; MeDowall v. Phippen, 1 Ont., 143, 145 (1881). But see Mc- Allister V. Lawler, 32 Mo. App., 91 (1888).] [The rule stated in the text also applies to vendor's Kens. Johnston v. Smith, 70 Ala., 108, 120, (1881); Siefert v. Campbell, 24 Ky. Law B., 1050 (1902).] [A person in possession of land under a bond for a deed, who fails to perform his contract, is not entitled to crops sown after commencement of a suit to foreclose the bond. Sievers v. Brown, 34 Ore., 454, 461 (1899).] [A mortgagee, purchasing at the foreclosure sale, is entitled to the growing crops, although, by a previous written agreement with the mort- gagor, he has bought such crops with the understanding that he is to re- duce debts of the mortgagor to him. Otherwise, no reservation having been made at the sale, there would be no equality between the mortgagee, who has the right to bid, and other bidders. Ledyard v. Phillips, 47 Mich., 305 (1882).] But where the owner of the land executed a mortgage thereon which was foreclosed in equity, and a sale had thereunder, and pending the suit for foreclosure, the mortgagor demised the land to a third person, who raised a crop of wheat and oats thereon which he harvested and placed in shock before the agent of the purchaser was put in possession of the land, and after he had harvested the crop and before the time of re- demption from the sale had expired and the master's deed been executed an agent of the purchaser under the foreclosure was put in possession under a writ issued for the purpose, and threshed and hauled away the grain, it was held, that the crop so grown and harvested did not pass to the purchaser but belonged to the tenant. Johnson v. Camp, 51 111., 219 (1869). The report of this case does not state whether the grain was harvested before or after the sale. Walker, J., in delivering the opinion of the court, observed that defendant knew, "that he [Jhe tenant] had leased the ground from the owner, and that he [the defendant] himself had no title to the premises until he purchased and acquired his deed. He knew that he was not entitled to the land or its possession until after the redemption had expired, and he acquired the master's deed; and he knew that he could only acquire possession by a writ which the decree 344 CHAP. Vm.] EMBLEMENTS, ETC. *254 •giving of the mortgage.^ So, also, as against one who [*254] had prior to the foreclosure purchased such growing crops at a directed to be issued; and he should have known that he only thus acquired the possession of the land and fixtures, but no right to personal property on the land. ' ' [As to ice cut and removed, see Gregory v. Eosen- krans, 72 Wis., 220 (1888).] [A court may order a sale of the grovping crops apart from the land, and can set aside a sale of such crops. Peekham v. Group, 3 Kan. App., 369 (1895).] [Where the purchaser at a foreclosure sale leaves the mortgagor in pos- session awaiting a decision of the supreme court on an appeal, and the mortgagor sows a crop, he is entitled to emblements. Dobbins v. Lusch, 53 Iowa, 304, 309 (1880).] [A mortgagee can not recover crops raised by the mortgagor which are severed before entry by the mortgagee. Hinton v. Walston, 115 N. C, 7, 8 (1894).] [In Wisconsin the mortgagor is entitled to cut mature crops after a sale of the land at foreclosure sale and before confirmation of such sale. Allen V. Elderkin, 62 Wis., 627 (1885).] [The. right of a purchaser at a foreclosure sale to growing crops does not begin until the execution of the sheriff 's deed after the expiration of the time for redemption. Everingham v. Braden, 58 Iowa, 133, 134 (1882); White v. Griggs, 54 Iowa, 650, 651 (1880).] [Where a mortgagee enters under an ineffectual foreclosure, and, in good faith, sows and harvests a crop with the knowledge of and without ob- jection from the mortgagor, he at least would be entitled to it as a mort- gagee in possession, and would not be a trespasser though accountable for the profits. Holton v. Bowman, 32 Klinn., 191, 192 (1884).] [Upon redemption from an execution-sale, the purchaser is entitled to emblements. Gardner v..Lanford, 86 Ala., 508 (1888).] [If the mortgagor redeems he is entitled to the crops growing upon the land at the time of - the foreclosure sale. Cartwright v. Savage, 5 Ore., 397 (1875).] However, the mortgagor cannot prolong his possession by sowing on his own account crops which may not mature till after the confirmation of the sale and conveyance of the legal title. Thus, where a mortgagor after the sale of the mortgaged premises by the sheriff but before the confirmation of such sale by the court, without authority or consent of the purchaser sows wheat on the premises, such crop cannot after confirma- tion be harvested by him. Parker v. Storts, 15 Ohio St., 351 (1864). The rule on the subject of judicial sales of land in Ohio as relating to crops thereon, has already been shown to be peculiar. See ante, p. *253, note. 1 Lane v. King, 8 Wend., 584 (1832) ; Jones v. Thomas, 8 Blackf ., 428 (1847). [Stanbrough v. Cook, 83 Iowa, 705 (1891); Downard v. Groff, 40 Iowa, 597, 598 (1875) ; Missouri Valley Co. v. Barwick, 50 Kan., 57, 60 345 *254 THE LAW OF FIXTURES. [CHAP. VUI. (1892); Goodwin v. Smith, 49 Kan., 351, 355 (1892); Eardin v. Baldwin, 9 Kan. App., 516, 518 (1900) ; Skilton v. Barrel, 5 Kan. App., 753 (1897) ; Shockey v. Johontz, 2 Kan. App., 483 (1896) ; Kuggles v. First Nat. Bank, 43 Micli., 192, 197 (1880) ; Fisolier v. Johnson, 51 Mo. App., 157 (1892) ; Salmon v. FeweU, 17 Mo. App., 118, 126 (1885) ; Fowler v. Carr, 63 Mo. App., 486, 491 (1895) ; Watson v. Menteer, 59 Mo. App., 387, 390 (1894) ; Nichols V. Lappin, 79 S. W., 995 (Mo. App., 1904) ; Missouri Trust Co. v. Cunningham, 81 Mo. App., 262 (1899) ; Missouri Trust Co. v. Wachter, 81 Mo. App., 263 (1899); Vogt v. Cunningham, 50 Mo. App., 136, 138 (1892); GroflE v. Leyan, 16 Pa. St., 179, 182 (1851); see, also. Hall v. Durham, 117 Ind., 429 (1888) ; Calvin v. Shimer, 15 Atl., 255, 256 (N. J. Ch., 1888).] See, -however, Johnson v. Camp, 51 111., 219 (1869), supra; Cassilly v. Rhodes, 12 Ohio St., 88 (1843) ; Bittenger v. Baker, 29 Penn. St., 66 (1857), and cases there cited. [Ellison v. Dolbey, 3 Pennewill, 45 (Del., 1900) ; Cassell v. Ashley, 92 N. W., 1035, 1036 (Neb., 1902) ; Porche V. Bodin, 28 La. Ann., 761, 763 (1876) ; Brown v. Death, 17 Tex. Civ. App., 262, 264 (1897).] [A sale under a mortgage conveys to the purchaser all the growing crops of the tenant with notice, after condition broken. Eeed v. Swan, 133 Mo., 100, 106 (1895). But the lessee is entitled to the crops gathered before he yields possession. Gray v. Worst, 129 Mo., 122, 135 (1895). However, if possession is wrongfully withheld until crops are gathered the purchaser's title thereto is not affected. Sugden v. Beasley, 9 111. App., 71, 77 ( 1881). A statute changing the rule laid down in the text does not apply to an existing mortgage, although the crop was not in existence when the mort- gage was made. Walton v. Fudge, 63 Mo. App., 52, 57 (1895).] [The rule is the same in the case of a vendor's Ueu. Yates v. Smith, 11 111. App., 459, 461 (1882). Likewise, a purchaser of land under an order of sale for partition is entitled to the growing crops as against one claiming to be a tenant who was a party to the suit, but gave no notice of his rights. Hancock v. Caskey, 8 S. C, 282, 285 <1876).] [A licensee is not entitled to crops which were growing at the time of service of writ of assistance although severed before possession obtained. See Eobinson v. Fee, 42 Up. Can. Q. B., 448 (1878).] [After a foreclosure sale has been made, or perhaps advertised, it would seem that, as against the purchaser the tenant who would sow must do it at his peril. Heavilon v. Farmers Bank, 81 Ind., 249, 254 (1881).] [In Eeily v. Carter, 75 Miss., 798 (1898), it is said that growing crops pass to the purchaser of land at foreclosure sale from the date of the con- firmation of the sale; and it is immaterial that tenants in possession were not parties to the foreclosure suit. But in Wheat v. Brown, 3 Kan. App. 431, 434 (1896), it is said that where a tenant is not made a party to foreclosure proceedings, he is entitled to immature crops as against the purchaser of the land at foreclosure sale. See, also, St. John v. Swain 14 N. Y. Supp., 743, 744 (1891). Where a tenant, having been made a party defendant to a foreclosure suit, is permitted by the purchaser to 346 CHAP. Vm.] EMBLEMENTS, ETC. *254 sale on execution against the mortgagor, the crops being still growing on the land at the time of the foreclosure sale.^ Such retain possession until the crop is harvested, the title to the crop does not pass to the purchaser. Monday v. O'Neil, 44 Neb., 724, 728 (1895).] [Where a trust deed provides that after a sale thereunder, the mort- gagor in possession vpill hold as a tenant of the purchaser, it gives the mortgagor a right to ungathered crops nearly matured. Willis v. Moore, 59 Tex., 628, 637 (1883). A deed of trust, given by the owner of land, contained a clause providing that the owner should be permitted to occupy the land as tenant of the trustee, until a sale for default. The owner leased the land, and the lessee remained in possession after sale for de- fault, and harvested crops sown by him. Held, that he was entitled to the crops as against the purchaser at the trustee 's sale, his right being anal- ogous to the right of an innocent under-lessee to emblements upon for- feiture of the lease by the first lessee. Gray v. Worst, 129 Mo., 122, 135 (1895).] [As a mortgage creates no estate in the mortgagee, but confers upon him only a lien upon the estate of the mortgagor, which estate can be transferred only by foreclosure and sale, and as it can not be anticipated when such foreclosure and sale will be accomplished, and the right of possession under the statute extends one year beyond the sale, the tenancy is uncertain, and the general rule allowing emblements applies. Heavilon V. Farmers Bank, 81 Ind., 249, 253 (1881).] [After a foreclosure sale, and prior to the expiration of the period of redemption, crops planted by a tenant of the mortgagor in possession be- long to him, although harvested after the period for redemption has expired. Aultman Co. v. O'Dowd, 73 Minn., 58 (1898).] [Of course the rule stated in the text does not apply where the mort- gagee has assented to the agreement between the mortgagor and the tenant. Congden v. Sanford, Hill & Den., 196, 197 (N. Y., 1843).] [In Heeht v. Dettman, 56 Iowa, 679, 680 (1881), it is held that a pur- chaser at a foreclosure sale has no right to growing crops which are ma- tured, and which would have been severed before but for unfavorable weather.] So a tenant occupying land under an heir or devisee where such land is incumbered by the statutory lien of the ancestor's debts (all the real estate of which the ancestor died seized descending to the heir or passing to the devisee chargeable with the ancestor's debts), within the statutory period during which such debts are a lien, sows crops at the risk of losing them in case of a sale to pay such debts, the case being analogous to that of a mortgage. Jewett v. Keenholts, 16 Barb., 193 (1853). 2 Shepard v. Philbrick, 2 Den., 174 (1846) ; Sherman v. Willett, 42 N. T., 150 (1870). See, also, Jewett v. Keenholts, 16 Barb., 193, 196 (1853); Bittenger v. Baker, 29 Penn. St., 68 (1857) ; Gillett v. Balcom, 6 Barb., 370 (1849), the case of a subsequent purchaser of the crops from the assignee in bankruptcy of the mortgagor. [Anderson v. Strauss, 98 111., 347 *254 THE LAW OP FIXTURES. [CHAP. VHI. 485, 490 (1881) ; Eankin v. Kinsey, 7 111. App., 215, 219 (1880) ; Batter- man V. Albright, 122 N. Y., 484 (1890).] In Sherman v. Willett, the sale of the rye was at an administrator 's sale ; but in other respects the question was similar to that in Shepard v. Phil- briek. In Sherman v. Willett, the court say: "The plaintiff took his title to the rye subject to the contingency that it might be wiped out by a fore- closure of the mortgage given by the intestate upon the land before the crop of rye was sown. ' ' [As between a mortgagee in possession after default and execution creditors of the mortgagor, growing crops belong to the former. Hamblet V. Bliss, 55 Vt., 535 (1883).] [Anyone purchasing growing crops from a mortgagor, where the mort- gage is recorded and a foreclosure decree has been rendered, takes them subject to the contingency of his title being divested by a sale of the land before the crops ripen. Beckman v. Sikes, 35 Kan., 120, 122 (1886). See, also, Wootton v. White, 90 Md., 64 (1899).] [As between a mortgagee of lands to whom, after default, the mortgagor has surrendered possession, and a chattel mortgagee of the growing crops whose rights have arisen since the giving of the mortgage upon the realty, such crops belong to the mortgagee of the land. Thompson v. Union Co., 110 Ala., 499 (1895). That the rights of a chattel mortgagee of crops are subordinate to those of a purchaser of the land at a foreclosure sale, see Penryn Fruit Co. v. Sherman-Worrell Fruit Co., 76 Pac, 484 (Cal., 1904); Brock v. Leighton, 11 111. App., 361, 364 (1882); Moreland v. Strong, 115 Mich., 211, 217 (1897) ; Bloomfield v. Hellyer, 22 Ont. App., 232 (1895). Likewise as to one holding a lien on the crop. Adams v. Moulton, McGloin (La.), 210, 212.] [A mortgagee, taking peaceable possession of the land, has a right to any crops standing thereon. Bangor Bank v. Wallace, 87 Me., 28, 30 (1894). Grow- ing crops pass under a deed or a mortgage of the land, and a mortgagee can enter and take them. Oilman v. Wills, 66 Me., 273, 275 (1877). But where a mortgagor, before the mortgage was due, yields possession of his farm to the mortgagee authorizing him "to rent same * * * and * * * apply net income upon my indebtedness," such mortgagee is not technically "in possession," and is not entitled to a growing crop planted by the mortgagor and previously sold by him. Sexton v. Breese, 135 N. Y., 387 (1892), aff'g 64 Supr. Ct. (57 Hun), 1 (1890).] [A mortgagee demanding possession is entitled to crops as against a receiver. Bagnall v. Villar (1879), 12 Ch. D., 812, 813. Where growing crops are levied upon by a creditor of the mortgagor, before a receiver is appointed for the land at the instance of a mortgagee of the land, one who purchases the crops at the execution sale after the appointment of the receiver, can hold them as against the receiver. Favorite v. Deardorff, 84 Ind., 555, 557 (1882). Where a mortgagor remaining in possession after foreclosure sale, plants a crop, a purchaser in good faith of such crop is entitled to it as against a receiver subsequently appointed to take charge of and sell the crop for the purpose of paying a deficiency left after a sale of the land. Knox v Oswald, 21 111. App., 105 (1886).] 348 CHAP. VIII.] EMBLEMENTS, ETC. *255 *crops, if unsevered, will pass, though over ripe and no [*255] longer drawing nourishment from the ground, the term "grow- ing crops" usually used in such cases, meaning crops still an- nexed rather than ripe or unripe.^ [Stubble cane is a part of the realty, and covered by a mortgage as against third persons claiming interest. Penn v. Citizens' Bank, 32 La. Ann., 195, 199 (1880).] [White V. Pulley, 27 Fed., 436 (U. S. G. C, Ala., 1886), holds a contrary rule to that stated in the text. Annual growing crops are to be treated as personal estate for the purpose of levy and sale on execution; hence, as between the grantee of land, and a prior purchaser of the growing crop thereon at a constable's sale, the latter is entitled to the crop. Veils v. Battin, 6 Kan. App., 742 (1897). A mortgage in Texas is but security, and the title to the property remains in the mortgagor; hence, if the mortgagor sells a growing crop prior to a sale of the land under a deed in trust, the buyer of the crop can hold it as against the purchaser of the land. Willis v. Moore, 59 Tex., 628 (1883) ; McKinney v. Williams, 45 S. W., 335 (Tex. Civ. App., 1898) ; Lombard! ^. Shero, 14 Tex. Civ. App., 594, 597 (1896). One -who buys crops from a mortgagor or at a sheriff's sale before the mortgagee takes possession or his right to enter has accrued, acquires title thereto. Favorite v. Deardorff, 84 Ind., 555, 557 (1882). Under a levari facias a sheriff can not sell the growing grain upon mortgaged premises as against the assignee thereof. Myers v. White, 1 Eawle, 353, 355 (Pa., 1829). As between a mortgagee of the land with the ' ' rents, issues and profits thereof, ' ' and a subsequent chattel mort- gagee of the crops, it is proper to sell the land separately from the crops in order that the surplus, if any, after satisfying the former mortgage, may be applied to the extinguishment of the latter. Treat v. Dorman, 100 Cal., 623 (1893). Nebraska adheres to the Ohio rule; and a purchaser of land at a foreclosure sale has no right to growing crops thereon, they being personalty, and a prior chattel mortgagee is entitled to them. Aid- rich V. Bank of Ohiowa, 64 Neb., 276 (1902). Where a mortgagor does not release his homestead, the purchaser upon foreclosure acquires no right to growing crops thereon as against the holder of a chattel mortgage thereof given before the premises are surrendered. Brock v. Leighton, 11 III. App., 361, 364 (1882). A chattel mortgagee of crops is entitled to them if severed before the mortgagee of the land takes possession of the premises. Laing v. Ontario Loan Co., 46 Up. Can. Q. B., 114 (1881). A purchaser of land at a foreclosure sale takes the growing crop thereon subject to a privilege for supplies furnished to cultivate such crop. Weil v. Kent, 52 La. Ann., 2139 (1900).] 1 Tripp V. Haseeig, 20 Mich., 254 (1870), in which case the crop in ques- tion was corn standing unharvested on the premises Dec. 13th, the date of the deed. [Damery v. Ferguson, 48 111. App., 224, 229 (1892) ; Sugden v. Beasley, 9 111. App., 71, 77 (1881); Firebaugh v. Divan, 207 111., 287, 290 349 *255 THE LAW OF FIXTUBES. [CHAP. VHI. It is also well settled that, unless otherwise disposed of ex- pressly or by implication, crops growing upon land at the time of the death of the devisor, being a tenant in fee, go with the land to the devisee and not to the executor.^ And the rule is so strong that if the devise be for life with remainder over, and (1904), aff'g 111 111. App., 137 (1903); Vogt v. Cunningham, 50 Mo App., 136, 139 (1892) ; MeDowall v. Phippen, 1 Ont., 143, 145 (1881) ; see, also, SulUns v. State, 53 Ala., 474, 476 (1875) ; Allen v. Ashburn, 65 S. "W. 45, 47 (Tex. Civ. App., 1901). In determining the rights of an adminis- trator the courts take judicial notice that at certain dates crops are imma- ture. Loeb V. Eichardson, 74 Ala., 311, 314 (1883).] See, however, Powell V. Eich, 41 111., 466, 469 (1866). [Everingham v. Braden, 58 Iowa, 133, 134 (1882) ; Eichards v. Knight, 78 Iowa, 69 (1889) ; Krst Nat. Bank of Clay Centre v. Beegle, 52 Kan., 709, 711 (1894) ; Porche v. Bodin, 28 La. Ann., 761 (1876) ; Meffert v. Dyer, 81 S. W., 643 (Mo. App., 1904). Grain which has matured and ready for harvest, does not pass to the pur- chaser of land at foreclosure sale. It possesses the character of personal chattels, and is not to be regarded as part of the realty. The course of vegetation has ceased and the soil is no longer necessary for its existence. The ground performs no other office than affording a resting-place for the grain, the same as a warehouse. Hecht v. Dettman, 56 Iowa, 679, 680 (1881). See, also, Foss v. Marr, 40 Neb., 559 (1894), where the crop was not considered by the appraisers in valuing the farm for the purposes of the sale.] . [Where a statute made it an offense to carry away "corn growing on the stalk," an indictment charging the defendant with carrying away corn attached to the realty is not sufficient, as the provision does not apply to ripe corn. Johnson v. State, 68 Ind., 43, 45 (1879).] 2 Jones V. Jones, 2 Dev. Eq., 387 (1833) ; Creel v. Kirkham, 47 111., 344 (1868) ; Bradner v. Faulkner, 34 N. Y., 347 (1866) ; Smith v. Barham, 2 Dev. Eq., 423 (1833) ; Taylor v. Bond, Busb. Eq., 5, 24 (1852) ; Budd v. Hiler, 27 N. J. Law, 43 (1858); Dennett v. Hopkinson, 63 Me., 350 (1873); s. c, 13 Am. Law Eeg. (N. S.), 359; Cooper v. Woolfit, 2 H. & N., 122 (1857); s. c, 3 Jur., N. S., 870; 26 L. J., Exch., 310; West v. Moore, 8 East, 339 (1807), per Ld. Ellenborough. Spencer's Case, Winch., 51 (1622); Bull. N. P., 34; Com. Dig., Biens, G 2. See, also. Gage v. Eogers, 1 Strobh. Eq., 376 (1847). [Hathorn v. Eaton, 70 Me., 219, 221 (1879); Pratte v. Coffman, 27 Mo., 424, 426 (1858); Shofner v. Shofner, 37 Tenn., 94 (1857) ; Dunford v. Jackson, 22 S. E., 853, 854 (Va., 1895). For similar rule as to fixtures, see, post, p. *312.] If such appear to be the intention of the testator as shown by the will, the emblements may of course go to the executor, or to any other person designated therein. See Taylor v. Bond (supra) ; Eudge v. Winnall, 12 Beav., 357 (1849). [Crops upon land at the time of the testator's death belong to the 350 CHAP. VIII.] EMBLEMENTS, ETC. *256 the first taker die before severance of the crop growing at the death of the testator, it goes over with the land to the remain- derman.3 The distinction between heir and devisee, as to *emblenients, though well settled, is anomalous and [*256] difficult of explanation.* So, a widow is entitled to crops growing on the land as- signed to her by the heir for dower.^ So, as it seems, where executors under 2 Gavin & Hord Statutes of Indiana, 494, § xxxiv. Hum- phrey V. Merritt, 51 Ind., 197, 200 (1875).] [Where a statute provides that growing crops shall be distributed as personal estate, a devisee of land which is so devised as to include a crop growing thereon, takes the crop as a specific legacy. Stall v. Wilbur, 77 N. Y., 158 (1879) ; Be Clemens' Est., 9 N. Y. Supp., 474, 475 (1890).] As to what words in a will are sufficient to pass emblements, see West v. Moore, 8 East, 339 (1807) ; Eudge v. Winnall (supra) ; Kinsman v. Kins- man, 1 Boot, 180 (1790) ; Cox v. Godsalve (1691), Holt's MSS., 157; s. c, cited in 6 East, 604, note; 1 Wms. Exrs. (6th Lend, ed., 675); Bull. N. P., 34. [A legatee of "farming stock" takes growing crops. Evans v. Wil- liamson (1880), 17 Ch. D., 696, 697, disapproving Vaisey v. Eeynolds, 5 Euss., 12.] 3 Per Eufan, C. J., in Smith v. Barham, 2 Dev. Eq., 423 (1833); Spen- cer's Case, Winch., 51 (1622), per Harris, J.; Co. Lit., 55b, note (2). See, also, Grantham v. Hawley, Hob., 132 (1615). The reason of this rule will appear further on, p. *259. 4 See Co. Lit., 55 b, note (2); Moore v. West, 8 East, 339, 343 (1807). B Clark V. Battorf, 1 N. Y. Sup 'me Ct. E., 58 (1873) ; Dyer, 316; 2 Inst., 81; 1 Greenl. Cru. Dig., tit. 6, ch. 2, § 29. [See Clark v. Banks, 6 Hous. (Del.), 584.] She is said to be in de optima possessione viri, above the title of the executor. 2 Inst., 81. See, also, Ealston v. Ealstou, 3 G. Greene, 533 (1852); Budd v. Hiler, 27 N. J. Law, 43 (1858); Whaley v. Whaley, 51 Mo., 36 (1872), where it is said that she is not entitled to the crops under her quarantine, and held, that she does not take the crops under the Mis- souri statute in substitution for quarantine. [In Vaughn v. Vaughn, 88 Tenn., 742 (1890), the court followed the rule as to dower, and held that an allotment of a homestead to the widow carried growing crops.] [Under See. 28 of the descent law, 1 E. S. (1876), p. 418, giving the widow and minor children the dwelling-house and fields adjacent for one year, the right to crops growing upon such fields at the death of the husband belong to the widow and children as against the administrator. Swain v. Bartlow, 62 Ind., 546, 548 (1878).] [Where, by statute, the widow is entitled to a plantation without rent until her dower is assigned, and her dower is never assigned, she is entitled 351 *256 THE LAW OF FIXTURES. [CHAP. Vm. the deceased was seized as a joint tenant, ' the crops sown go with the land to the survivor, and no moiety thereof passes to the personal representatives of the deceased.® Besides the cases of tenants in fee simple and in fee tail already alluded to, the privilege of removing emblements is extended to a variety of other cases ; and it may be stated as a general rule, that every person having an uncertain interest or estate in land, and whose estate is determined by the act of God, or by the happening of some uncertain event other than his own act, before the severance of the crops planted or sown by him thereon, shall have the right to remove the emble- ments; or, if the estate has been determined by reason of his death, they shall pass to his personal representatives.'' The interest of the tenant in the land must however, be uncertain to the crops. Ee Merchant, 39 N. J. Eq., 506, 508 (1885), aff'd Merchant V. Comback, 41 N. J. Eq., 349 (1886).] [Where a statute provides that "the executor or administrator may complete and gather a crop commenced by the decedent;" and also pro- vides that the widow may retain possession of the dwelling house and the plantation connected therewith, the word "may" does not make it the absolute duty of the personal representatives to complete and gather the crop ; and if the widow, in undisturbed possession of the plantation, gathers the crop, she is entitled to it. Blair v. Murphree, 81 Ala., 454 (1886).] <5 Dyer, 316 a, pi. 2 ; 8 L. Ass., pi. 21 ; per Popham, J., in James v. Port- man, Owen, 102 (1593); Eowney's Case, 2 Vern., 323 (1694); s. c, Eq. Ca. Abr., 69, pi. 11; Com. Dig. Biens, 9, 2, and cases cited; Co. Lit., 52b. See, also, Haslett v. Glenn, 7 Harr. & John., 17 (1825). [See Pritchard v. Walker, 22 111. App., 286, 290 (1886).] But where one joint tenant agrees that his co-tenant shall occupy all the land alone and sow it with his own corn, and he sows and dies before sever- ance, his executors shall have the crop. James v. Portman {supra). 7 See Com. Dig. Biens, G 2, and cases cited. [Adams v. Kauwa, 6 Hawaii, 280, 281 (1881).] [Where a receiver is appointed for a tract of land pending the settle- ment of conflicting claims thereto, a party in possession who had planted crops prior to the decision of his claim thereto and before the application for a receiver, should be allowed a reasonable time to collect his crop, the situation being analogous to that of a tenant whose term is uncertain. Chappell V. Boyd, 56 Ga., 578, 582 (1876).] [Where two persons claim, in good faith, to be tenants of the same land, and the one in possession plants a crop before the other institutes a forcible detainer suit, which is, on appeal, dQQi.ded. against the tenant in 352 CHAP. VIII.] EMBLEMENTS, ETC. *257 as to its duration; and where it is certain, there exists no right to emblements.^ *Every demise between landlord and tenant in respect [*257] to matters in which the contract is silent may, however, fairly be open to explanation by the general usage and custom of the country or district where the land lies;^ and a custom that a tenant whether by parol or by deed shall have the way going crop after the expiration of his term is good, if such custom is not repugnant to the lease under which he holds,^** and the possession, the latter is entitled to the mature ungathered crop. MeKean V. Smoyer, 37 Neb., 694 (1893).] [But a tenant at sufferance is not entitled to emblements. Miller v. Cheney, 88 Ind., 466, 470 (1882).] 8 Co. Lit., 55 a; Litt., § 68; Davies v. Connop, 1 Price, 53 (1814) ; Clarke V. Eannie, 16 Lans., 210 (1871); Harris v. Carson, 7 Leigh, 632 (1836); Mason v. Moyers, 2 Kob. (Va.), 606 (1844); Kelley v. Todd, 1 W. Va., 197 (1866) ; Whitmarsh v. Cutting, 10 John., 360 (1813) ; Bain v. Clark, 10 John., 424 (1813), where it was also held, that the fact that the lessor agreed to renew the lease at the end of the term (one year), provided he did not want the farm for his own use, did not alter the case, as the period of the lease was fixed and the tenant had no interest beyond that period. See, also, Caldecott v. Smythies, 7 C. & P., 808 (1837). [Thomas V. Noel, 81 Ind., 382, 383 (1882); Wheeler v. Kirkendall, 67 Iowa, 612 (1885); Dircks v. Brant, 56 Md., 500, 502 (1881); Sanders v. Ellington, 77 N. C, 255, 258 (1877) ; Sharp v. Kinsman, 18 S. C, 108, 114 (1882) ; see, also. Smith v. Sprague, 119 Mich., 148 (1899) ; JJeeder v. Sayre, 70 N. Y., 180 (1877). Nor can a sub-lessee acquire any greater right. Gos- sett V. Drydale, 48 Mo. App., 430, 433 (1892). But see Meffert v. Dyer, 81 S. W., 643 (Mo. App., 1904).] [Where one having a pre-emption right to land of the United States, sows crops which are immature when his right expires, such crop's belong to a subsequent purchaser of the land. Easor v. Quails, 4 Blackf., 286 (Ind., 1837).] [The crop growing upon land at the termination of the particular estate [until twenty-one] is the property of the remainderman. Miller v. Cheney, 88 Ind., 466, 470 (1882).] 9 Van Ness v. Pacard, 2 Pet., 137 (1829). [See Clark v. Banks, 6 Hous. (Del.), 584.] i» See Wigglesworth v. Dallison, Doug., 201 (1779) ; Hutton v. Warren, 1 M. & W., 466 (1836); s. c, Tyr. & Gr., 646; Griffiths v. Puleston, 13 M. & W., 358 (1844); Dorsey v. Eagle, 7 Gill & J., 331 (1835); Foster v. Eobinson, 6 Ohio St., 90 (1856) ; Templeman v. Biddle, 1 Harring., 522 (1835), holding, that in Delaware the way going tenant is by general cus- tom entitled to the wheat crop, though it is otherwise as to the oat crop. 23 353 *258 THE LAW OF FIXTURES. [CHAP. Vm. proof of the custom lies with the tenant.^^ In general, how- [*258] *ever, the rule is as above stated. Thus, emblements growing on the land at the death of the tenant for life go to his [Ellison V. Dolbey, 3 Pennewill, 45, 54 (Del., 1900) ; Harris v. Gregg, 17 App. Div., 210, 211 (N. Y., 1897); see, also, Clark v. Banks, 6 Hous. (Del.), 584.] The custom stated in the text is said to he a part of the common law of Pennsylvania and New Jersey, where a tenant for a term certain is entitled to his way going crop unless there is an exception in the lease. Van Dorens v. Everitt, 2 South., 460 (1819) ; Iddings v. Nagle, 2 W. & S., 22 (1841) ; Biggs v. Brown, 2 S. & B., 14 (1815) ; Demi v. Bossier, 1 Penn., 224 (1829) ; Clark v. Harvey, 54 Penn. St., 142 (1867) ; Comfort v. Duncan, 1 Miles, 229 (1836) ; Stultz v. Dickey, 5 Binn., 285 (1812) ; Craig v. Dale, 1 W. & S., 509 (1841); Forsythe v. Price, 8 Watts, 282 (1839); Diffe- dorfer v. Jones (1782), cited in 5 Binn., 289, and 2 Binn., 487. [Shaw v. Bowman, 91 Pa. St., 414, 418 (1879) ; see, also, McKay v. Pearson, 6 Pa. Super., 529, 534 (1898); Whorley v. Karper, 20 Pa. Super., 347, 349 (1902).] But this custom in Pennsylvania is confined grain sowed in autumn before the expiration of the lease, to be reaped in the summer after it determines. Demi v. Bossier (supra). See, also, Howell v. Schenk, 24 N. J. Law, 89 (1853) ; Hunter v. Jones, 3 Brewst., 370 (1866). However, in Harris v. Carson, 7 Leigh, 632 (1836), evidence of a local custom for the outgoing tenant of land leased for a fixed and determinate period to have the way going crop, was held inadmissible, it being in dero- gation of the common law and not immemorial. See, also. Mason v. Mey- ers, 2 Rob. (Va.), 606 (1844); Kelley v. Todd, 1 "W. Va., 197 (1866). As to the requisites of a valid custom, see notes to Wigglesworth v. Dallison, 1 Smith's Lead. Cas., *675, et seq. See, also, Hughes v. Gordon, 1 Bligh, 312 (1819), where Lord Eedesdale in referring to Wigglesworth v. Dallison, said: "The court held that a general custom applicable to lands gave a construction to the deed. The real state of the case is that where custom warrants a way going crop, unless the tenant has the way going crop, he has not in effect the land for 21 years." See, also, Iddings v. Nagle (supra). 11 Caldecott v. Smythies, 7 C. & P., 808 (1837). [See Dircks v. Brant, 56 Md., 500, 503 (1881).] ["Whatever is matter of general custom, as the tenant's right to sow an away-going crop, to have possession of the part of the premises sown for the purpose of manuring, protecting and saving the same, and to exclude others from it, and his duty to cultivate and manage the farm rented by him in a good and husbandlike manner, need not be proved to the jury, but may be taken notice of as if proved, because it is part of the contract proved, being aflBxed by law." Clark v. Banks, 6 Hous. (Del.), 584.] 354 CHAP. Vm.] EMBLEMENTS, ETC. *258 executors or administrators as his goods and chattels.^* In like manner a tenant pur autre vie on the termination of his estate by the death of the cestui que vie is entitled to his emble- ments.i* So, if a man be seized of land in the right of his wife, and sows the ground and then dies, his executors shall have the crop; and if his wife die before him he shall have the crop.^* So, where the husband of a tenant for life only, is in possession and tills and plants the land, and the wife dies be- fore severance.i^ So, where a tenant for years, si tamdiu vixerit, sows and dies before severance, his personal representatives shall have the crop on account of the uncertainty of the deter- mination of his estate.^* So, where a tenant for life makes a lease for years and dies before the expiration of the term, the under-tenant is entitled to emblements.!^ 12 Com. Dig. Biens, G 2; Thornton v. Bureh, 20 Geo., 791 (1856); Mc- Laurin v. MeCall, 3 Strobh., 21 (1848) ; Perry v. Terrel, 1 Dev. & Bat. Eq., 441 (1836). [Corle v. Monkhouse, 47 N. J. Eq., 73, 75 (1890) ; Poindexter V. Blackburn, 36 N. C, 286, 289 (1840) ; Brooks v. Brooks, 12 S. C, 422, 454 (1879).] [Nor is the rule changed because the land is exempt as a homestead. Dickey v. Wilkins, 17 So., 374 (Miss., 1895).] [The life-tenant is the owner of a crop planted during his life, and may dispose of the same as against the remainderman. Shaffer v. Stevens, 143 Ind., 295, 297 (1895).] [This matter is regulated by statute in South Carolina. See Newton v. Odom, 45 S. E., 105, 107 (S. C, 1903).] 13 Dyer, 316 a, pi. 2; Weems t. Bryan, 21 Ala., 302 (1852); Kelly v. Webber, 11 Ir. Com. Law, 57 (1860). But not to crops sown after the termination of the estate, Kelly v. Webber. [See, post, p. *262.] "Dyer, 316a, pi. 2; Co. Lit., 55b. But it is said that if the land was sown before the marriage, the wife shall have the corn. 1 EoUe Abr., 727, pi. 17. See, also, Haslett v. Glenn, 7 Harr. & John., 17 (1825), and the authorities cited supra in note (12). 15 Spencer v. Lewis, 1 Houst., 223 (1856); Co. Lit., 55 b. [King v. Whittle, 73 Ga., 482, 483 (1884).] 16 1 EoU. Abr., Emblements, A, pi. 12, p. 727. "Co. Lit., 55b; Bevans v. Briscoe, 4 Har. & John., 139 (1816). [Dor- sett V. Gray, 98 Ind., 273, 275 (1884) ; see, also, King v. Foscue, 91 N. C, 116, 118 (1884); Noble v. Tyler, 61 Ohio St., 432, 438 (1899).] [And it makes no difference that the under-tenant knows that the life- tenant is dying, and sows the crop the day before his death. To hold otherwise, where the health of the tenant for life was failing, would sub- vert an important object of the rule — the encouragement of husbandry — and open a fruitful source of unseemly litigation, as the tenant would 355 *259 THE LAW OF FIXTURES. [CHAP. VHI. Before the making of the Statute of Merton, 20 H. 3, ch. 2 {anno, 1235), it was a question whether the personal represen- tatives of a tenant in dower should have the growing crops sown by her, or whether they should go to him in reversion ;i* but since that statute her personal representatives are entitled to emblements, the same as those of any other tenant for life.^' If a dowress sows the land, and then takes husband, who dies before severance, the dowress shall have the crop, and not the [*259] *personal representatives of the husband. But if the husband of a dowress sows the land, and dies before severance, then his personal representatives shall have the crop.^** The personal representatives of a tenant by the courtesy are entitled to emblements like those of any other tenant for life.^i As has been already stated, one ground of the rule that the personal representatives of a tenant for life shall have the em- blements, is to compensate him for the labor and expense of the tilling, manuring and sowing the land, performed and incurred by his testator or intestate; and there are cases where this rea- son of the rule failing, the rule itself is not applicable. Thus, if A. seized of land sows it with corn and then conveys it away to B. for life, remainder to C. for life, and then B. dies before severance, C. shall have the crop and not the personal repre- sentative of B., though his estate was uncertain, for the reason naturally hesitate to put in crops which might be successfully claimed by his successor. Nor is the right to emblements affected by the fact that such sowing is hurriedly and imperfectly done, as that would be wholly the loss of the sower; though the fact of a hurried and imperfect mode of sowing might have been of pertinence to the question if raised, whether the tenant was in reality sowing or only pretending to do so. Bradley v. Bailey, 56 Conn., 374 (1888).] 18 See 2 Inst., 80, 81; Bract., Lib. 2, fol. 96. "Corn. Dig. Biens, G 2; 1 Wms. Exrs. (6th Lond. ed.), 677. See, also, Talbot V. Hill, 68 111., 106 (1873). [The doctrine of emblements does not apply to crops growing upon land Rt the death of a widow to whom, by will, one-third part of all the grain raised upon certain land had been given during her life, to be delivered as soon as harvested. Miller v. Wohlford, 119 Ind., 305 (1889).] 20Bro. Abr., tit. Emblts., pi. 26; 1 Wms. Exrs. (6th Lond. ed.), 678. As to emblements of an estate settled in jointure, see Eisher v. Eorbes ,(1734), 9 Vin. Abr., tit. Emblts., p. 373, pi. 82. 21 1 Roper Husb. and Wife, *35, 1 Wms. Exrs. (6th Lond. ed.), 679. 356 CHAP, vra.] EMBLEMENTS, ETC. *260 of industry and charge in B. has failed.^^ And in such case, if both B. and C. die before severance, the crop shall not go to the personal representatives of either of them, but shall re- vert to A.23 The right to emblements, however, does not obtain till the seed is sown, the common law having drawn a distinction be- tween the right to emblements and the cost of the preparation of the ground for the reception of the seed. Thus, where a tenant at will is ousted after ploughing and manuring the land, or the term of the lessee for years of a tenant for life is deter- mined by the death of the tenant for life, after the ground is prepared, but before the seed is actually sown, he wholly loses his costs and labor, though had he planted, he would have been entitled to emblements.^* *The personal representatives of the incumbent of an [*260] ecclesiastical benefice would probably at common law also be entitled to the emblements of the glebe lands; for the interest of the deceased incumbent in the land was uncertain and deter- mined by the act of God.^^ However that may be, the right was fully established by the statute 28 Hen. 8, c. 11, § 6, which enacted, that in case any incumbent happened to die, and be- fore his death had caused any of his glebe lands to be manured and sown at his proper costs and charges with any corn or grain, then in that case such incumbent might make and de- clare his testament of all the profits of the corn growing upon the said glebe lands so manured and sown. The estate of a tenant at will, also, being uncertain, if it is 22 Grantham T. Hawley, Hob., 132 (1615); Cro. Eliz., 61, 464; Smith v. Barham, 2 Dev. Eq., 423 (1833), per Euffin, 0. J.; Spencer's Case, Winch., 51 (1622), per Harris, J.; Co. Lit., 55b, note (2). [See Gardner v. Perry, 39 Can. Law J., 670 (Ont., 1903).] 23Gilb. Ev., 215; Hob., 132, in margin. 2TCY, ETC. *333 *"XI. Be it enacted, that if at any time hereafter [*333] any person or persons shall become bankrupt, and at such time as they shall so become bankrupt shall by the consent and per- mission of the owner and proprietary have in their possession, order and disposition, any goods or chattels, whereof they shall be reputed owners, and take upon them the sale, alteration or dis- position as owners, that in every such ease the said commissioners or the greater part of them shall have power to sell and dispose the same, to and for the benefit of the creditors which shall seek relief by the said commission, as fully as any other part of the estate of the bankrupt." This section was substantially re-enacted in the statute, 6 Geo. IV., c. 16, s. 72 {anno, 1825), which is as follows: "And be it enacted that if any bankrupt at the time he becomes bankrupt, shall, by the consent and permission of the true owner thereof, have in his possession, order or disposition any goods or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, alteration or disposition as owner, the commissioners shall have power to sell and dispose of the same for the benefit of the creditors under the commission. ' ' This section of 6 Geo. IV., c. 16, was in turn in 1836, in 6 W. IV., c. 14, s. 86, and this in turn in 1849, in sec. 125 of the Consolidation Act, 12 & 13 Vict., c. 106,i re-enacted in almost the same terms last above quoted; and these several sections are so similar in terms, that the decisions under the earlier acts may be regarded as authorities in the construction of the later. In the construction of these acts it has very generally been held, and may be regarded as well settled, that fixtures are not goods and chattels within the meaning of said acts. The ques- tion in the majority of cases has arisen on the bankruptcy of the mortgagor of premises and fixtures who had been suffered to remain in possession of both the premises and fixtures after the execution of the mortgage. And the question in such cases has been whether the fixtures passed to the assignees as *a part of the goods and chattels of the bankrupt, or [*334] as being in his reputed ownership at the time of the bankruptcy ; iSee, however, the Bills of Sale Act, ante, p. *321 note; particularly the interpretation clause (sec. 7), which changes the rule to some extent. 503 *335 THE LAW OP FIXTURES. [CHAP, IX. or whether they passed to the mortgagee as parcel of the mort- gaged estate. And on this question there is no doubt whatever that fixtures, such as would otherwise pass to the mortgagee with the land as a part of his security, are not goods and chattels within said acts.^ And the rule is the same whether the mort- gage is of a freehold interest in the land,^ or only of a lease- hold.* So, also, though the fixtures in question are removable trade or other tenant's fixtures.^ A distinction has, however, been taken by some of the judges [*335] of the English courts of bankruptcy between trade *fix- tures erected by a tenant and removable by him without dam- age to the freehold, and similar annexations made by the owner 2 Eyall V. Eolle, 1 Atk., 165 (1749) ,- s. C, 1 Ves. Sr., 348, 375, on further directions; the articles in this case were described as coppers and utensils fixt, which, together with his house, etc., were demised by a brewer by way of mortgage, he remaining in possession till his bankruptcy; .Fletcher v. Manning, 1 C. & K., .350 (1844), mill-machinery; Eufford v. Bishop, 5 Buss., 346 (1829); s. C, 7 L. J., Ch. 108; Pim v. Grazebrook, 4 Scott's N. E., 565 (1842). See, also. Ex parte Acton, 4 Li T. (N. S.), 261 (1861) ; Hitchman v. Walton, 4 M. & "W., 409, 414 (1838). 3 Ex parte Cotton, 2 Mont. Dea. & DeG., 725 (1842); s. C, 6 Jur., 1045; CuUwick V. Swindell, L. E., 3 Eq., 249 (1866); s. c, 36 L. J., Ch., 173; 15 W. E., 216; Ex parte Searth, 1 Mont. Dea. & DeG., 240 (1840); s. c, 9 L. J. (N. S.), Bank., 35; Hubbard v. Bagshaw, 4 Sim., 326 (1831); 9 L. J. Chanc, 190. * Ex parte Belcter, 2 Mont. & Ayr., 160 (1835) ; s. c, 4 Dea. & Chit., 703; 4 L. J. (N. S.), Bank, where the owner in fee mortgaged for a term of years, but remained in possession, annexed fixtures removable as be- tween landlord and tenant, but which were held to pass to mortgagee; Clark V. Crownshaw, 3 B. & Ad., 804 (1832) ; Boydell v. McMichael, 1 Cr. M. & E., 177 (1834); s. C, 3 Tyrwh., 974; 3 L. J. (N. S.), Bxch., 264; Ex parte Wilson, 2 Mont. & Ayr., 61 (1835); s. c, 4 Dea. & Chit., 143; Ex parte Acton, 4 L. T. (N. S.), 261 (1861) ; Ex parte Barclay, 5 DeG. M. & G., 403 (1855); s. C, 1 Jur. (N. S.), 1145; 25 L. J., Bank., 1; 35 Eng. L. & Eq., 169. 5 See, Minshall v. Lloyd, 2 M. & W., 450 (1837) ; Boydell v. McMichael, 1 Cr. M. & E., 177 (1834). Ex parte Broadwood, 1 Mont. Dea. & DeG., 631 (1841) ; The Patent Peat Co., 17 L. T. (N. S.), 69 (1867) ; Ex parte Montgomery, 4 Ir. Ch., 520 (1855) ; Ex parte Bentley, 2 Mont. Dea. & DeG., 591 (1842); s. c, 6 Jur., 719; Ex parte Eeynal, 2 Mont. Dea & DeG., 443, 461 (1841); Ex parte Heathcote, 2 Mont. Dea. & DeG., 711 (1842); Ex parte Barclay, 5 DeG. M. & G., 403 (1855) ; see, also, Ex parte Cotton, 2 Mont. Dea. & DeG., 729 (1842) ; In re Dawson, Tate & Co., Ir., E., 2 Eq., 218 (1868) ; s. C, 16 W. E., 424. 504 CHAP. IX.] BANKRUPTCY, ETC. *335 of the freehold to his own estate.* This distinction, however, does not seem to have received the support of the weight of authority either American or English. The rule is the same, also, though the mortgage is an equit- able one by deposit of title deeds or lease.'' The reason of ein Ex parte Austin, 1 Dea. & CMt., 207 (1832), Sir G. Eose expressed the opinion that "where fixtures are capable of removal as between land- lord and tenant without injury to the freehold, they are within the order and disposition of the bankrupt." The rest of the court, however, de- clined to express an opinion on the point. So, in In re Trevey, 14 L. T. (N. S.), 193 (1866), (Irish Court of Bankruptcy), Lynch, J., said: "But I am of opinion that this distinction" [in Minshall v. Lloyd, that trade fixtures are not goods and chattels within the bankrupt law, though such, when made so by the tenant's severance or for the benefit of execution creditors] "is not to bo accepted as settled on a due consideration of the cases, and that the exception made for the benefit of trade and for the benefit of creditors, whereby removable fixtures which become changeable into the condition of chattels by the tenant him- self, are held to be chattels for his creditors will be held to apply for the benefit of his general creditors, as well as for the benefit of a particular creditor who has sued him to execution. If for the benefit of creditors they are chattels, surely they ought then to be sold within this section ; ' ' citing Walmsley v. Milne, 7 C. B. (N. S.), 132 (1859). This dictum was not, however, necessary to the decision of the case, as the articles in question (machines kept in place only by their own weight and worked by belts) ■were held to be mere chattels, and hence passed to the assignee. See, also, Hx parte Belcher, 2 Mont. & Ayr., 167 (1835) ; Ex parte Wilson, 2 Mont. & Ayr., 70 (1835) ; Ex parte Lloyd, 1 Mont. & Ayr., 494, 506 (1834) ; s. c, 3 Dea. & Chit., 765; 3 L. J. (N. S.), Bank., 108; Ex parte King, 1 Mont. Dea. & DeG., 119 (1840) ; S. C, 4 Jur., 510. This was a case of a vendor's lien sought to be enforced on a house and fixtures sold with the lease. The fixtures were common tenant's fixtures. The court was equally divided as to whether the fixtures passed to the assignee. 7 See Ex parte Lloyd (supra) ; Ex parte "Wilson, 2 Mont. *& Ayr., 61 (1835); s. C, 4 Dea. & Chit., 143; Ex parte Heathcote, 2 Mont. Dea. & DeG., 711 (1842); S. C, 6 Jur., 1001; Ex parte Acton, 4 L. T. (N. S.), 261 (1861) ; Ex parte Eeynal, 2 Mont. Dea. & DeG., 443 (1841) ; Ex parte Barclay, 5 DeG. M. & G., 403 (1855); s. c, 1 Jur. (N. S.), 1145; 25 L. J., Bank., 1 ; 35 Eng. Law & Eq., 169 ; Ex parte Broadwood, 1 Mont. Dea. & DeG., 631 (1841). In Tebb v. Hodge, L. E., 5 C. P., 73 (1869) ; s. c, 39 L. J., C. P., 56; 38 L. J., C. P., 217, the plaintiff agreed to let to B. certain premises which B. was to fit up forthwith as a first class luncheon-bar and restaurant, such fittings to be of the value of £500 at least, and to be completed to the satisfaction of plaintiff on a certain day (time in this respect to be of 505 *336 THE LAW OF FIXTURES. [CHAP. K. [*336] *tlie rule in each of the above cases obviously is that fixtures during the time of their annexation are parcel of the realty, and hence cannot be goods and chattels.* It has also been held that trade fixtures actually annexed to the land, do not pass to the assignee as being chattels within [*337] *the order and disposition of the bankrupt at the time of the bankruptcy with the consent of the true owner, though the essence of the contract). B. was to pay £1,000 as a premium for the lease, upon payment of which, said premises being so fitted up, the plaintiff was to grant said lease and to lend or obtain for B. upon security of the premises so fitted up £1,000. It was also mutually agreed that if B. should fail to carry out any of the stipulations or conditions therein, etc., or should the premises not be fitted up in the manner and within the time specified, etc., plaintiff might re-enter. Before the lease was granted or the money paid, B. became bankrupt and his assignee seized and sold the fittings and fixtures under order of the Court of Bankruptcy: Held, that until the lease was executed the agreement was to be a security to the plaintiff for all that he was entitled under it, that plaintiff became the equitable mortgagee of the premises with the fittings and fixtures, that de- fendants had no right to sell them under the adjudication in bankruptcy, and that the fixtures were not goods and chattels in the order and dispo- sition of the bankrupt with the consent of the true owner thereof within sec. 125 of Bankrupt Consolidation Act of 1849. So, in Ex parte Thompson, 8 Jur., 633 (1844) ; s. c, 13 L. J., Ch., 354, A., by a written memorandum, made an equitable mortgage to B. of prem- ises held by A. under a lease for a term of years (to secure the renewal of which the lessor had executed a penal bond to the lessees), including cer- tain fixtures belonging to A. The term having expired, A. occupied for a time as tenant from year to year, and then, a negotiation taking place for a renewal of the lease, the old lease was delivered over to the agent of the lessor under the agreement that any new lease to be executed should be deposited with B. as a continuing security, and a counterpart of such new lease executed by A. was delivered to B. upon an undertaking that the new lease when delivered by the lessor should be deposited with him, B. But before such new lease was delivered over by the lessor, A. became bankrupt, and the lease became forfeited. A. was in possession of the fixtures which were sold by his assignees: Seld, that whatever interest the lessee had during his tenancy from year to year was in equity the in- terest of B., and was sufficient to maintain his lien upon the fixtures, which were a part of that interest, and that the assignees had no right to the fixtures. 8 Boydell v. McMichael (supra) ; Ex parte Montgomery (supra) ; Horn V. Baker, 9 East, 215 (1808). See, however, another ground stated in Ex parte Lloyd, 3 Dea. & Chit., 765 (1834) ; s. c, 1 Mont, and Ayr., 494; 3 L. J. (N. S.), Bank., 108, per Erskine, C. J. 506 CHAP. IX.] BANKRUPTCY, ETC. *338 they have been mortgaged separately from the leasehold interest of the mortgagor in the land, and thereby constructively severed and converted into personalty.* However in Ex parte SykeSj^" the petition of the mortgagee to have the benefit of his security in sueh a case, was dismissed with costs by Sir Knight Bruce, v. C, upon the mortgagee's declining to file a bill to try the question, the V. C. observing that he was unwilling in the juris- diction in bankruptcy to extend the rule relating to order and disposition ; and the question does not seem to be settled. The rule is the same also where the question arises between other parties than the mortgagee and the assignee in bankruptcy of the mortgagor. Thus, in the case of Horn v. Baker,ii which is a leading case in this branch of the law of fixtures, the ques- tion arose between the lessor of the bankrupts and their as- signees in bankruptcy. In that case certain stills and vats which had formerly belonged to the firm of which the lessor and one of the bankrupts were members, were leased together with a distill-house to the bankrupts (successors of the firm above mentioned) , for a term, with liberty to the lessees to pur- chase on the death of the lessor and his wife; the lessees after- wards became bankrupt while yet in possession of the stills and vats, and upon an action being brought against the *as- [*338] signees who had seized and sold the articles in question as part of the estate of the bankrupts it was held that the stills, which were fixed to the freehold, being set in brick-work and let into »Whitmore v. Empson, 23 Beav., 313 (1856); s. c, 3 Jur. (N. S.), 230; 26 L. J., Chanc, 364; 5 W. E., 217; 28 L. T., 300. See, also, Ex parte Spicer, 2 Deae., 335 (1837). 10 18 L. J. (N. S.), Bank., 16 (1849) ; s. c, 13 Jur., 486. See, also, Trappes v. Barter, 2 Or. & M., 153 (1833) ; s. c, 3 Tyrwh., 603; 3 L. J. (N. S.), Exch., 24, where it was held that by the terms of the mortgage deed it was not intended that the fixtures should pass with the land, and having been treated by all the parties as personalty they passed to the assignee as part of the personal estate of the bankrupt. See, also, Trappes v. Barter, explained in Ex parte Barclay, 5 DeG. M. & G., 403, 413, 414 (1855), where it is stated that the order and disposition clause of the statute does not apply to the case of a bankrupt in posses- sion of his own goods, but is confined to the case of a person in posses- sion of the goods of another. "9 Bast, 215 (1808). See, ante, p. *12. This case was decided upon the authority of Eyall v. Eolle, 1 Atk., 165 (1749). 507 •338 THE LAW OP FIXTURES. [CHAP. IX. the ground, were not goods and chattels in the reputed owner- ship of the bankrupts within the Statute, 21 Jac. I, c. 19, sec. 10 & 11; but that movable articles not fixed passed to the as- signees. In delivering the judgment Lord EUenborough observed that, "the true object of the Statute 21 Jac. I, c. 19, s. 10 & 11, was to make the reputed ownership of goods and chattels in the possession of bankrupts at the time of their bank- ruptcy, the real ownership of such goods and chattels, and to subject them to all the debts of the bankrupt; considering that such reputed ownership would draw after it the real sale, order, alteration and disposition of the goods; that the stills, as it appeared, were fixed to the freehold, and as such would not pass to the bankrupt's assignees under the description of goods and chattels in the Statute. But, that as to the vats and uten- sils [which were in no way annexed to the freehold] ,^2 there was 12 To the point that movable machinery and other articles not annexed to the realty pass to the assignees, see, also. Be Trevey, 14 L. T. (N. S.), 193 (1866); Shuttleworth v. Hernaman, 1 DeG. & J., 322 (1857); s. c, 3 Jur. (N. S.), 1313; 26 L. J., Bank., 61; Lingham v. Biggs, 1 B. & P., 82 (1797) ; Bryson v. Wylie, Id., 83 (note) ; Mx parte Newbery, 1 Lowell's Dec., 386 (1869) ; Exjsarte_ Astbury, L. E., 4 Ch. App., 630 (1869) ; Whit- more V. Empson, 23 Beav.7 313 ~(i857). See, however, the case of con- structive annexation referred to, post, in this chapter. [A builder entered into an agreement with a freeholder to erect houses, which provided that the builder was to be deemed a tenant at will; that all materials and plant brought upon the premises were to be deemed an- nexed to the freehold. Held, as between the freeholder and the trustee in bankruptcy of the builder, the latter was entitled to any plant and materials which had not become a part of the houses at the date of the bankruptcy. Be Weibking [1902], 1 K. B., 713, 718.] [A signboard of an inn, fastened by a screw to the wall, being valuable because painted by a celebrated artist, and which had been moved to dif- ferent parts of the premises, was held not to pass to the assignee as against the freeholder. :Ex parte D'Eresby (1881), 44 L. T. E., 781, reversing Ex parte Sheen (1881), 43 L. T. E., 638, and afarming Ex parte D'Eresby (1880), 22 Alb. Law J., 382.] [A contract was made to erect two petroleum tanks, twenty-six feet deep and forty feet in diameter, upon a wharf. They were built of steel plates upon a concrete foundation, though not attached thereto, but could not be moved without taking them to pieces. Before the tanks were completed, the buyer became insolvent, and a receiver was appointed. Held, that the tanks were not fixtures; and, while incomplete, the property therein remained in the seller. Bellamy v. Davey [1891], 3 Ch., 540.] 508 CHAP. IX.] BANKRUPTCY, ETC. *339 nothing in the case to rebut the reputed ownership following the possession of the bankrupts after the dissolution of the old firm, when the business was continued to be carried on by the bankrupts alone in the same manner as it followed the pos- session of the antecedent partnership when the trade was carried on by John, Eobert and Wm. Horn.^* *The case of Horn v. Baker has been generally regarded [*339] as the leading authority for the rule, that fixtures during their annexation are not goods and chattels within the meaning of the bankrupt law, not only in questions arising between parties sustaining the same relations as the parties in that case, but also in eases where the parties sustained different relations.^* It has been held in subsequent cases that the law of reputed ownership is not applicable to fixtures, the property of the landlord, let with the premises to a tenant who becomes bank- rupt while in possession thereof. ^^ So, where the lease contains 13 With reference to this subject of reputed ownership, Lord Ellen- borough in the same case observed: "If as in some manufactories, where the engines necessary for carrying on the business are known to be let out to the several manufacturers employed upon them, there had been a known usage in this trade for distillers to rent or hire the vats and other articles used by them for the purpose of distilling, the possession and use of such articles would not in such case have carried the reputed ownership. But in the absence of such usage, there is nothing stated in the case which qualifies the reputed ownership arising out of the possession and use of the things in their trade. The world would naturally give credit to the traders on their reputed property, and the person who permitted them to hold out to the world the appearance of their being the real owners, ought to be answerable for the consequences, and was so intended to be by the Statute." See, also, Eufford v. Bishop, 5 Euss., 346, 359 (1829); s. c, 7 L. J., Ch., 108, 114; Storer v. Hunter, 3 B. & C, 368 (1824), explained by Parke, J., in Coombs v. Beaumont, 5 B. & Ad., 72, 76 (1833). In some of the cases last above cited, the existence of a custom as to de- mising fixtures together with the premises, is referred to by the judges in terms indicating that some reliance was placed thereon iu forming their judgments. Independently, however, of that question, the rule in the absence of legislation specially affecting the question, seems to be well founded upon the nature of the things themselves during their annexa- tion as being parcel, or in the nature of, the realty, and hence not goods and chattels within the meaning of the statute. 1* See, generally, the cases cited in this section. 15 Be Head, 12 W. E., 215 (1864) ; s. c, 9 L. T. (N. S.), 613; Ex parte Newbery, 10 L T. (N. S.), 661 (1864); Coombs v. Beaumont, 5 B. & Ad., 509 •340 THE LAW OF FIXTUKES. [CHAP. IX. a stipulation giving the tenant the right to remove trade fixtures at the end of the term, provided the lessee should have kept all his covenants, but otherwise not, and that none of them should be removed during the term without the consent of the lessor, such trade fixtures can be removed by the assignee in bankruptcy of the tenant only upon payment of arrears of rent. Such a lien is valid, the act of affixing the articles in ques- [*340] tion to the freehold taking them out of the *category of chattels and being notice to creditors and to all the world that the right of removal will depend on the contract between landlord and tenant.^® Between the vendor of land by executory contract and the assignee in bankruptcy of the vendee, few cases seem to have arisen. No reason is perceived, however, why the rule as applied between the mortgagee and the assignee, is not equally applicable to this relation. In the case of Parsons v. Hind,^'^ the plaintiff, who was the owner of a factory, contracted to sell it to K., who entered into possession of the premises. There was, how- ever, no conveyance made, nor payment of the purchase money; and K. afterwards becoming bankrupt, his assignee elected not to adopt the contract to purchase the factory. The assignee, however, sold the hydraulic press in question to defendants, who upon the plaintiff's refusing to allow its removal, broke into the factory and removed it. The press was mortared to 12 (1833) ; s. c, 2 Nev. & Man., 235; 2 L. J. (N. S.), K. B., 190, where a steam engine erected for the purpose of working a colliery, to be used by the lessee of the colliery during his term, but to be held as the prop- erty of the landlord subject to such use, was held not to pass to the as- signee of the tenant upon his bankruptcy. [Ex parte D'Eresby (1881), 44 L. T. E., 781, reversing Ex parte Sheen (1881), 43 L. T. E., 638, and affirming Ex parte D'Eresby (1880), 22 Alb. Law J., 382.] isJBa; parte Morrow, 1 Lowell's Dec, 386 (1869); s. C, 2 N. B. E. (2d ed.), 665. See, also, Storer v. Hunter, 3 B. & C, 368 (1824), where the tenant had only a qualified right of user during the term, the lease containing a cove- nant to deliver up the machinery^ etc., used with the colliery, and a pro- vision for a valuation before the determination of the term, and that the difference between such valuation and the inventory and valuation at the commencement of the term, should be paid by the landlord or tenant to the other according as it was greater or less than the value at the time of the letting. 1T14W. E., 860 (1866). 510 CHAP. IX.] BANKRUPTCY, ETC. *341 the floor of the factory, but was not essential to the carrying on of the factory, nor annexed to improve the premises, but was merely an additional convenience brought into the factory for temporary uses and was so fixed in order to render it steady and for its more convenient use. Upon an action brought against the defendants to recover damages for the conversion of said press, it was held by the Court of Queen's Bench that said press never was a part of the freehold, but was always a mere chattel, and therefore belonged to the assignee. Had the annexation been made perpetui usus causa, and not for a mere temporary purpose, the decision must evidently have been otherwise.^* *The rule applies also to fixtures not actually, but only [*341] constructively annexed to the realty. Thus, it is held that an upper mill-stone af&xed in the usual way by the owner of the inheritance after the execution of a mortgage, though not actu- ally annexed to the freehold, is yet essentially parcel of the mill and passes to the mortgagee as against the assignee in bank- ruptcy of the mortgagor.!* The same rule is applicable to the case of keys, doors, and other recognized instances of construct- ive annexation. So, articles which, though loose, have been disconnected with- out leave or the knowledge of the mortgagee, follow, as it seems, the rule applicable to fixtures in a state of annexation ; for they cannot be considered in the order and disposition of the bank- rupts with the consent of the true owner.^" Independently of the construction put upon the words "goods 18 See, also) Ex parte Watkins, 1 Deac, 296 (1835), a case between ven- dor and the assignee of the vendee, which, however, was decided without reference to the question whether the fixtures were or were not goods and chattels, the bankrupt not being in possession thereof at the time of his committing the act of bankruptcy; Ex parte King, 1 Mont. Dea. & DeG., 119 (1840) ; s. C, 4 Jur., 510. 19 Walmsley v. Milne, 7 C. B. (N. S.), 115 (1859) ; s. C, 6 Jur. (N. S.), 125; 29 L. J., C. P., 97; 1 L. T. (N. S.), 62; 8 Am. Law Eeg., 373. [See, ante, p. *301.] See, also, Ex parte Astbury, L. E., 4 Ch. App., 630 (1869) ; s. c, 38 L. J., Bank., 9; 20 L. T. (N. S.), 997; 17 W. E. 997, where the same rule was applied as to the iron rolls (including duplicates) of a rolling mill; also as to straightening plates laid on brickwork and bedded in earth. 20 Per Holroyd, Com'r in Ex parte Eeynal, 2 Mont. Dea. & DeG., 443, 448 (1841). 511 *342 THE LAW OF FIXTUBBS. [CHAP. IX, and chattels" in the statutes relating to bankruptcy, property- affixed to the freehold is said not to be within the intent of the acts; because the possession of such property does not create a visible ownership in the bankrupt, so as to procure him un- merited credit. For creditors are not deceived by the possession of property of this description; and it differs from the case of personal goods, where the possession and power of disposal are the only evidence of ownership to which a creditor can look. 21 [*342] *Questions have also been raised respecting the legality of the mortgagor's retaining possession of the fixtures after the execution of a mortgage upon the land to which they are an- nexed, on the ground that the fixtures are to be regarded as in the nature of personal chattels, and hence keeping posses- sion of them after a conveyance, is to be deemed inconsistent with the deed, and evidence of fraud.^^ It seems, however, to be settled, that fixtures so far partake of the nature of realty, that the keeping possession of them with the land after an as- signment will not avoid the conveyance on the ground of fraud; and that in this respect a mortgage or sale of property annexed to the realty, is to be distinguished from one of mere chattels in a state of severance therefrom.^* *i Ferard on Fixt., 239, et seq., citing Steward t. Lombe, 1 Brod. & B., 511 (1820), per Dallas, C. J.; Eufford v. Bishop, 5 Euss., 346 (1829) ; Hub- bard V. Bagshaw, 4 Sim., 326 (1831). See, also, Boydell v. McMiehael, 1 Cr. M. & E., 179 (1834), per Parke, B.; Eyall v. EoUe, 1 Atk., 165, 168 (1749). 22 See, generally. Statute 13 Eliz., ch. 5 {anno, 1570); Twjoie's Case., 3 Co., 80 (1602) ; Edwards v. Harben, 2 Term, 587 (1788) ; Eeid v. Blades, 5 Taunt., 212 (1813) ; Bryson v. WyUe, 1 B. & P., 83, note (1784) ; East- wood V. Brown, 1 Ey. & M., 312 (1825); 1 Smith's Lead. Cas., 33, 39, et seq., where the eases are fully collected; also. Ex parte Quincy, 1 Atk., 477 (1750), where Lord Hardwicke stated that there would have been a difficulty in the possession of the mortgagor, had it not otherwise have been cleared up by an express agreement between the parties that the mortgagor should not be prevented from coming in the brew-house. 23 See Eyall v. EoUe, 1 Atk., 165 (1749) ; s. c, 1 Ves., 348, 375; Steward V. Lombe, 1 Brod. & B., 506 (1820) ; s. c, 4 Moore, 281; Ferard on Fixt., 230; Strauss v. Davy, 15 Leg. Int., 139 (1858) ; s. C, 3 Phila. Eep., 137; Knight v. The Bank, 15 Leg. Int., 139 (1858) ; s. C, 3 Phila. Eep., 138. 512 CHAP. IX.] STATUTE OF FRAUDS. *343 VI. Of the Sale of Pixtubes as Affected by the Statute OP Feauds.2* It has already been seen from the various eases already cited, that fixtures, whether erected by the owner of the fee or by the owner of a less interest in the land, may be sold or mortgaged either in connection with or separately from the land. It remains to be considered whether contracts relating to " *the sale of fixtures are embraced within the provisions [*343] of the Statute of Frauds. Where the contract relates to the transfer of fixtures together with the land, the contract being an entire one, it clearly comes within the 4th section of the Statute; and in such a case any agreement for the sale, valuation, etc., of the fixtures, though it may be of a chattel interest only, must be in writing and executed according to the formalities required by the Statute. ^^ It appears, however, to be settled, that a sale of removable trade or other tenant's fixtures, separately from the land, does not come within the 4th section of the Statute as being a sale of an interest in land.^® And some cases even go so far as to 24 The statute of Frauds will also be found further considered in the chapter upon Emblements (chap. 8). 25Ferard Fixt., 253; Vaughn v. Hancock, 3 C. B., 766 (1846); s. c, 10 Jur., 926; 16 L. J., C. P., 1. [See Stone v. Thaden, 10 N. Y. Supp., 236, 237 (1890); Jarvis v. Jarvis (1893), 1 Hanson's Bankr. Gas., 199, 201.] See, also, Meehelen v. Wallace, 7 Ad. & B., 49 (1837), holding an agree- ment for a house and furniture, the breach being assigned as to the furni- ture, to be an entire and inseparable contract and within the Statute of Frauds; Kelly v. Webster, post in this section. 26Hallen v. Eunder, 3 Tyrwh., 959 (1834); s. c, 1 Or. M. & E., 266; 3 L. J. (N. S.), Exch., 260; Petrie v. Dawson, 2 C. & K., 138 (1845) ; Lee v. Gaskell, 45 L. J., Q. B. D., 540 (1876). See, also. Boss's Appeal, 9 Penn. St., 491 (1848). [Webster v. Nichols, 104 111., 160, 174 (1882); Oswald V. Whitman, 22 Nova S., 13, 16 (1889); Malmsbury Min. Co. v. Tucker, 3 Vict. L. E. (Law), 213, 221 (1877) ; see, also, Apolo v. Kauo, 7 Hawaii, 755, 756 (1889); Kehlor v. Wilton, 99 111. App., 228, 230 (1901).] [The rule is the same as to buildings owned by licensees upon the land of others. Commonwealth v. Wesley, 166 Mass., 248, 252 (1896) ; Ford V. Burleigh, 62 N. H., 388, 392 (1882); School District v. MilUgan, 88 Pa. St., 96 (1878) ; although in McKenzie v. McDonald, 2 Nova S., Dec, 11, 12 (1869), it is said that a building is prima facie a part of the realty 33 513 *344 THE LAW OF FIXTURES. [CHAP. EX. hold that a sale of fixtures by the owner of the freehold, with a view to their severance from the soil, may be made by parol. ^^ It is well settled that a parol promise to pay for the improve- ments made upon land in the possession of another, the agree- [*344] *ment being substantially to pay for labor bestowed upon land under the denomination of improvements, if founded upon a sufficient consideration, is valid; and is not within the and within the Statute of Frauds, although neither the vendor nor the vendee claim title to the land.] [In Washband v. "Waahband, 24' Conn., 500 (1856), a son built a plaster mill upon his father's land at his own expense under a verbal agreement that he might own and use it. The father, upon a division of his estate among his children, deeded the land, upon which the mill stood, to another son, at which time the latter bought the mill from the builder, giving his promissory note therefor. When sued upon the note, the maker claimed want of consideration, insisting that the mill was a part of the freehold, and the sale was not in writing. Meld, that the miU belonged to the builder, and his sale to his brother was valid.] a^Bostwick v. Leach, 3 Day, 476 (1809); Foster v. Mabe, 4 Ala., 402 (1842); Strong v. Doyle, 110 Mass., 92 (1872), per Colt, J. See also Scoggin V. Slater, 22 Ala., 687 (1853); Marshall v. Green and other cases cited ante, chap. 8, p. *268. [Rogers v. Cox, 96 Ind., 157, 159 (1884) ; Tyson v." Post, 108 N. Y., 217, 221 (1888), afarming 22 N. Y. Wkly. Dig., 492 (Supr. Ct., 1885) ; Moody v. Aiken, 50 Tex., 65 (1878).] [Where a frame building is sold by the owner of the land upon which it is situated, and the manner of annexation is not shown, the fair infer- ence is that it is not permanently annexed. Eogers v. Cox, 96 Ind., 157, 160 (1884). And in Long v. White, 42 Ohio St., 59, 61 (1884), it is said: "In applying the statute of frauds, buildings are not classed with forest trees, but with growing crops, nursery trees, and fixtures attached to the realty.^ '] [An unwritten partition of a line fence by the owners of the contiguous lands, is valid. Ivins v. Ackerson, 38 N. J. Law, 220, 222 (1876).] [A sale of ice is not realty within the Statute of Frauds. It gains no nourishment nor support from the soil. It has no value tecept as taken away and kept in a solid state. Higgins v. Kusterer, 41 Mich., 318 (1879).] If fixtures annexed by the owner of the freehold, during annexation par- take of the nature of realty and pass with the land to the. heir or to the vendee of the land, as it is well settled they do, a sale of them by parol whether with a view of immediate severance or not, seems the sale of 'an interest in or concerning land within the Statute. See the subject con- sidered with reference to growing trees, etc., in chap. 8, p. *268. See also Landon v. Piatt, 34 Conn., 517, 523 (1868). In Meyers v. Sehemp, 67 111., 469 (1873), where the owner of a brick building which had been destroyed 514 CHAP. IX.] STATUTE OF FRAUDS. *344 Statute of Frauds.28 But a contract for the sale and delivery of the possession of land, as well as the improvements thereon, is within the Statute, possession being prima facie evidence of title and an interest in land within the Statute.^^ As to whether fixtures, while annexed to the land, may be by parol excepted from the operation of a deed conveying the land upon which they are situated, there is a conflict of authority. If fixtures, while annexed, are to be considered as partaking of the nature of the realty, which clearly is the case where an- nexed by the owner of the freehold, the better opinion seems by fire verbally sold the brick, some of which had been severed by the fire, but the main portion of which remained in the walls as it was before the fire, it was held, that the brick in the walls being realty and the sale being an entirety, it was within the Statute of Frauds. [A contract of sale of shelving and drawers in a store by the owner of the realty, must be in writing and executed with the same formality as the conveyance of any other realty. Johnston v. Phila. Mort. Co., 129 Ala., 515, 521 (1900). A sale of permanent fixtures by the owner of the land to which they are annexed, can not be made by parol. Brown v. Roland, 92 Tex., 54, 57 (1898), overruling 11 Tex. Civ. App., 648, 650 (1895). A parol sale of a sugar mill by the owner is void. Hutchins v. Masterson, 46 Tex., 551, 555 (1877).] asFrear v. Hardenbergh, 5 John., 272 (1810); Benedict v. Beebee, 11 John., 145 (1814); Lower v. Winters, 7 Cow., 263 (1827); Scoggin v. Slater, 22 Ala., 687 (1853) ; Cassell v. Collins, 28 Ala., 676 (1853). [A contract by which the owner of land, upon which stood a barn, was to take down the barn, and another party was to draw the timber to his land where the barn was to be erected, is not within the Statute of Frauds, although the barn as it stood was a part of the realty, as it was to be changed to personalty before anything was to be done by the other party. Scales v. Wiley, 68 Vt., 39, 41 (1895).] [An oral partition of a line fence, in order to assign to each landowner his share thereof for the purpose of maintainance, is not within the Statute. Ivins v. Ackerson, 38 N. J. Law, 220, 222 (1876).] 29 Howard v. Baston, 7 John., 205 (1810); Kelly v. Webster, 12 C. B., 283 (1852) ; s. c, 16 Jur., 838; 21 L. J., C. P., 163; 10 Eng. L. & Eq., 517, which was a contract by a tenant to give immediate possession to a third party who was to pay him a certain sum for such possession and as com- pensation for improvements, fixtures, etc. See, also. Cocking v. Ward, 1 C. B., 858 (1845). [A contract of sale of the "building materials" of a standing house, under a condition that the purchaser is to take possession of the premises for the purpose of removing such materials, is within the fourth section of the Statute of Frauds. Lavery v. Purcell (1888), 39 Ch. D., 508, 517.] 515 *345 THE LAW OF FIXTURES. [CHAP. IX. clearly to be, that a sale and conveyance of the real estate will (there being no exception in the deed of conveyance) pass the fixtures thereto annexed, notwithstanding a parol exception thereof at the time of such sale, not only because such parol exception is within the Statute of Frauds, but also because to admit parol evidence thereof, would contravene the rule that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.*^ For the same [*345] reason parol testimony is inadmis*sible to annex to, and include in, a sale of land any subject-matter not legally apper- taining thereto or a parcel thereof.*^ A sale of a tenant's fixtures while annexed, is considered not 30 Bond V. Coke, 71 N. C, 97 (1874), a cotton-gin and press-fixtures; Noble V. Bosworth, 19 Pick., 314 (1837) ; Detroit, etc., E. K. Co. v. Forbesi, 30 Mich., 166 (1874); Conner v. Coffin, 22 N. H., 538 (1851), parol reser- vation of manure on a farm, void. See, also, Latham v. Blakely, 70 N. C, 368 (1874). Contra, Pea v. Pea, 35 Ind., 387 (1871); Frederick v. Devol, 15 Ind., 357 (1860); Strong v. Doyle, 110 Mass., 92 (1872), where the separate agreement related to manure on the farm sold. See the subject considered with reference to growing crops, etc., ante, chap. 8, p. *252. [The following cases sustain the text: Towson v. Smith, 13 App., D. C, 48, 58 (1898); VanHusen v. Omaha B. & T. E'y Co., 118 Iowa, 366, 379 (1902); Leonard v. Clough, 133 N. Y., 292, 296 (1892); Brown v. Roland, 92 Tex., 54, 57 (1898) ; de Perkins' Est., 26 Atl., 637 (Vt., 1893).] [Where there is a conveyance of land by deed, containing no reserva- tions as to the buildings, an 'understanding that the vendor retains the ownership of the houses thereon, with the right to remove them, can not be shown by parol ; but ^ parol agreement as to a gin may be shown. Smith V. Odom, 63 Ga., 499, 502 (1879).] [Where, at the time of the execution of a mortgage upon land, both parties agreed that a third person, advancing money for part payment, should have a marine railway thereon, this agreement, although oral, can be shown by such third person, even though it contradicts tbe mortgage, as the third person is not a party to the written instrument. Tyson v. Post, 108 N. Y., 217, 221 (1888), affirming 22 N. Y. Wkly. Dig., 492 (Supr. Ct, 1885).] 31 McLaughlin v. Johnson, 46 111., 163 (1867) ; Eipley v. Page, 12 Vt., 353 (1839), both of which cases related to rails lying on the ground. [Seedhouse v. Broward, 34 Pla., 509, 524 (1894) ; see, also, Nesmith v. Martin, 75 Pac, 590, 592 (Colo., 1904). But parol evidence is proper to show what articles are covered by an expression used in a deed. Bagley V. Eoae Eill Sugar Co., Ill La., 249 (1903).] 516 CHAP. IX.] STAMP ACTS. *346 to be a sale of goods, wares, and merchandise within the 17th section of the Statute of Frauds, though the point does not seem to have been very extensively discussed. ^^ VII. Stamp Acts as Relating to Fixtuebs. No decisions upon this particular subject appear ever to have been made in this country; but the subject has been considered by the English courts in a number of instances. Thus it has .been held in an action on an agreement for the sale of fixtures by an outgoing to an incoming tenant, that fixtures are not "goods, wares, or merchandise," within the exception of the Stamp Act, 55 Geo. III., c. 184.^3 "Where an instrument con- taining a present demise of a house, contains also a contract for the purchase of fixtures, it cannot be given in evidence to prove the sale of the fixtures unless it has a lease stamp, notwithstand- ing it is stamped as an agreement, the one contract being auxil- iary to the other. 34 Any further consideration of the subject of Stamp Acts would be foreign to the purpose of this treatise, and, for further information on the subject, the reader is re- ferred to the authorities cited in the notes.^^ *VIII. Estoppel. [*346] The doctrine of estoppel applies to sales of fixtures. Thus, a landlord who stands by and sees a former tenant sell as his own to an incoming tenant, articles which are fixtures, without 32 See, Hallen v. Runder, 3 Tyrwh., 959 (1834) ; s. c, 1 Cr. M. & E., 266; Lee v. Gaskell, 45 L. J.(Q. B. D.), 540 (1876); Ferard Fixt., 255! See, also, the cases cited in next section. [But see McKenzie v. McDonald 2 Nova S., Dec, 11, 12 (1869).] 33 See, generally, Wick v. Hodgson, 12 Moore, 213 (1827) ; Marson v. Short, 2 Scott, 243 (1835); s. c, 2 Bing., N. C, 118, per Park, J.; Chan- ter v. Dickenson, 5 M. & G., 253 (1843) ; s. c, 6 Scott, N. E., 182; Hors- fall V. Key (or Hey), 2 Exch., 778 (1848) ; s. c, 17 L. J., Exch., 266. See, also. Pinner v. Arnold, 2 Cr. M. & E., 613 (1835) ; s. c, Tyrwh. & Gr., 1. 34Corder v. Drakeford, 3 Taunt., 382 (1811). See, also, Clayton v. Burtenshaw, 5 B. & C, 41 (1826) ; 1 Camp. N. P., 387 ; 3 Stark., 128. 35 Duck V. Braddyl, 1 M'Clel., 217 (1824) ; s. c, 13 Price, 455; Coster v. Cowling, 7 Bing., 456 (1831); Wilks v. Atkinson, 6 Taunt., 11 (1815); Hughes V. Breeds, 2 C. & P., 159 (1825) ; Garbutt v. Watson, 5 B. & Aid., 613 (1822) ; Buxton v. Bedell, 3 East, 303 (1803) ; Ferard Fixt., 255, 357. 517 • 346 THE LAW OF FIXTURES. [CHAP. IX. asserting his own title or giving such incoming tenant any notice of his claim, is estopped as against such purchaser from asserting it afterwards ; ^^ and the converse is equally true. But declarations or admissions of want of title to fixtures made by 36 Villas V. Mason, 25 Wis., 310 (1870). See, also, Gregg v. "Wells, 2 Per. & D., 296 (1839); s. c, 10 Ad. & E., 90; Ex parte Ames, 1 Lowell's Dec, 567 (1871); Pecoul v. Auge. 18 La. Ann., 615 (1866). [Exchange Bldg. Co. V. Schuchman Eealty Co., 103 Mo. App., 24 (1903); Whitney V. Shippen, 89 Pa. St., 22, 26 (1879); Gray v. McLennan, 3 Man., 337, 345 (1886) ; see, also, Bramble v. Kingsbury, 39 Ark., 131, 134 (1882) ; Hibernia Nat. Bank v. Sarah Planting Co., 107 La., 650, 656 (1902); Morrison v. Sohn, 90 Mo. App., 76, 81 (1901).] [Where a landlord permits a chattel mortgagee to remove certain fix- tures, and buys some himself, but refuses to allow the removal of others on the ground that such removal would injure the building, he can not, after the mortgagee has brought an action of replevin for such fixtures, claim them as having been forfeited by the tenant's having taken a new lease without reserving them. Bernheimer v. Adams, 70 App. Div., 114, 120 (1902), afSrmed 175 N. Y., 472 (1903).] [Where a landowner leases, from a former lessee, machinery left by the latter upon the premises, and, when the lease expires, requests the former lessee not to remove it, he is estopped from saying that the former lessee did not own it. Carper v. Eisdon, 76 Pac, 744, 746 (Colo. App., 1904).] [Where a former lessee urges another to take a lease of the premises which contains a clause: "Also the shaft already dug upon said prem- ises with the coal ears and everything else situated upon the following described premises," he is estopped to assert a claim for his improve- ments against the incoming lessee. Stewart v. Munford, 91 111., 58 (1878).] [In Friedlander v. Eyder, 30 Neb., 783, 789 (1890), in which it was held that a frame addition erected by a tenant was not removable, the court referred to the fact that the landlord had allowed a deduction from the rent for repairs afterwards made upon the structure, but no comment was made by the court as to the effect of such action.] [Where a wife claiming a house standing upon the land of another as her personal property, allows her husband to hold himself out as the owner, and the land-owner, in ignorance of the wife's claim, buys from the hus- band, she will be estopped to recover the value of the house from the land-owner. Griffen v. Kansdell, 71 Ind., 440, 445 (1880).] [Where a partition is levied upon as the property of the tenant, the landlord is not estopped to claim it either because he bid therefor at the execution-sale, nor because of his failure to notify the sheriff nor the purchaser that it was not removable. The character of the property was open to observation, and the landlord was under no legal duty to expound his opinion. McAuliffe v. Mann, 37 Mich., 539, 542 (1877).] 518 CHAP. IX.] ESTOPPEL. *346 [Where, at a foreclosure sale of a house and lot, no announcement was made that gas-fixtures and mirrors were to be included, the failure of the owner, being present, to give any notice of his claim to the chattels does not estop him from asserting title. McKeage v. Hanover Ins. Co., 81 N. Y., 38, 43 (1880).] [Where a person is made defendant to a foreclosure action and makes no defense, and is present at the foreclosure sale, and makes no claim to the property sold thereunder, he is estopped from claiming that fixtures were not a part of the realty. Trowbridge v. Hayes, 45 N. Y. Supp., 635, 637 (1896).] [Where the owner of land, upon which there is a steam-engine and boiler, sells them, in fraud of creditors, as personal property, and, after they have been levied upon as the property of the seller, the buyer removes and claims them, the buyer is estopped from averring that they were a part of the realty at the time the levy was made. Earley v. Withers, 1 Pearson, 248, 250 (Pa., 1864).] [Where, after a sheriff has levied upon an engine and boiler annexed to the freehold, the landowner sells them as chattels, the buyer who re- moves them is disabled from contending that they were not chattels at the time of the levy. Walton v. Jarvis, 14 Up. Can., Q. B., 640.] [Where machinery, after a fire, is moved to another place without objec- tion from the mortgagee of the land upon which it stood, and is mort- gaged as personal property, the mortgagee of the land, in foreclosing his mortgage nearly two years later, can not follow such machinery and make it liable under his real estate mortgage. Padgett v. Cleveland, 33 S. C, 339, 349 (1889).] [Where a tramroad is located upon more than one tract of land, one of which is owned in common, a levy upon the tramroad by one tenant in common does not estop him from claiming that the tramroad is a part of the realty, when there is nothing to show that such levy was not made upon that part of the tramroad located upon other tracts, and notice was given by some of the co-tenants at the sale that the tramroad upon their land was realty. Silliman v. Whitmer, 11 Pa. Super., 243, 265 (1899), affirmed 196 Pa. St., 363, 365 (1900).] [A mortgagee knew of the sale of a barn upon the mortgaged premises by the mortgagor, but did not assent thereto. Then the mortgagor con- veyed the premises, reserving the barn. Later the mortgage was assigned to the grantee, who knew of the sale of the barn. Held, that the grantee was not estopped from asserting title to the barn through the assignment of the mortgage, as the mortgagee's title thereto was never impaired, and was superior to all others. Linscott v. Weeks, 72 Me., 506 (1881).] [Where, at a meeting of the creditors of an insolvent firm, the landlord of the partners being present, the landlord is given security for his claim, and another creditor is secured by a chattel mortgage upon an engine, boiler and attachments, the landlord, after receiving the full benefit of his security, can not assert that the engine, boiler and attachments are a part 519 *346 THE LAW OF FIXTXJRES. [CHAP. IX. one without consideration, in ignorance of and without the intention of relinquishing his rights, work no estoppel.^^ A person and those claiming under him may also be estopped of the realty. Conde v. Lee, 55 App. Div., 401, 404 (1900), affirmed 171 N. Y., 662 (1902).] [Where the owner of machinery, which is claimed by land-owners as a fixture, agrees to return the property after using it elsewhere, he is not estopped to assert title to it, as the agreement is no more than a promise to put it back, and he does not thereby recognize the title of the land- owners. Bewick v. Fletcher, 41 Mich., 625, 626 (1879).] [That a mortgagee of the land told the owner that foreclosure would be waived upon certain conditions, does not estop him from claiming the crops of a tenant, the conditions never having been accepted nor performed. Eeed v. Swan, 133 Mo., 100, 110 (1895).] [A statement by the plaintiff to the defendant, while an action for ejectment was pending, that the latter could "go ahead with that crop and put it in the same as you have been doing, ' ' does not estop the plain- tiff, upon being placed in possession of the land, from claiming a crop growing thereon. Davis v. Callahan, 66 Mo. App., 168, 171 (1896).] [Where a barn has been insured by one who represented it as being part of his freehold, he can not, after failing to prove title to the land, be heard to claim that he insured the barn as a chattel. Sherboneau v. Beaver Ins. Co., 33 Up. Can., Q. B., 1 (1872), affirming 30 Up. Can., Q. B., 472 (1870).] 37 Harlan v. Harlan, 15 Penn. St., 507 (1850); s. C, 20 Id.,. 303. Sea further on the subject of estoppel, Meigs's Appeal, 62 Penn. St., 28 (1869). [Long V. Anderson, 62 Ind., 537 (1878) ; Smith v. Sprague, 119 Mich., 148, 150 (1899) ; Kirchman v. Lapp, 19 N. Y. Supp., 831, 832 (1892) ; Hamil- ton V. Austin, 43 Supr. Ct. (36 Hun), 138, 144 (N. Y., 1885) ; see, also, Sun Assurance Co. v. Taylor, 9 Man., 89, 100 (1893).] [Where an attorney of a landowner misstated to one negotiating for his tenant 's interests, that the landowner had no claim to buildings erected by the tenant, but corrected the statement before it was acted upon, no ground for estoppel arises. Sanitary District of Chicago v. Cook, 169 111., 184, 195 (1897).] [Failure of a tenant to object to a sale of fixtures in his possession, but belonging to his landlord, does not affect the landlord's rights. Grim- shawe v. Burnham, 25 Up. Can., Q. B., 147 (1865).] [A statement by a tenant that he owned the house, and that the land- lord knew that he was the owner and acquiesced in his statement, does not prevent the landlord from denying that he was such owner. Talbot v. Cruger, 88 Supr. Ct. (81 Hun), 504 (1894), affirmed 151 N. Y., 117, 121 (1896).] [A beneficiary in a deed of trust can not be estopped by assurances made by the trustee that the beneficiary would make no claim to articles 520 CHAP, rx.] ESTOPPEL. *346 from denying that a building or other fixture is a chattel by describing it as "goods and chattels" in a chattel mortgage given by him thereon.^* as fixtures; and especially is this the case where the trustee merely offers this as his opinion. Tisk t. People's Bank, 14 Colo. App., 21, 31 (1899).] [Where a conditional seller of machinery takes a second mortgage upon the land to which the machinery is attached, and for security for the price thereof, such second mortgage reciting that such machinery is a part of the freehold, the second mortgagee is not estopped from claiming the machinery as chattels when the recital in the second mortgage was in- serted by mistake resulting from an unintentional misrepresentation of the mortgagor. Waterous Engine Co. v. Henry, 2 Man., 169 (1884).] ssBailou V. Jones, 37 111., 95 (1865). [Gordon v. Miller, 28 Ind. App., 612, 619 (1901); Corcoran v. Webster, 50 Wis., 125, 180 (1880). Or, con- versely, by taking a chattel mortgage. Lansing Works v. Wilbur, 111 Mich., 413, 420 (1897); Platto v. ' Gettleman, 85 Wis., 105, 109 (1893); Bmith V. Waggoner, 50 Wis., 155, 161 (1880) ; see, also, Stevens Mfg. Co. V. Barfoot, 9 Ont., 692, 696 (1885). But see Fifield v. Farmers Nat. Bank, 148 111., 163, 173 (1893); Stevens v. Barfoot, 13 Up. Can. App., 366 (1886); Sun Assurance Co. v. Taylor, 9 Man., 89, 98 (1893), where a mortgagee of the realty takes a chattel mortgage of machinery thereon as a precaution.] [In order that a mortgagor may be estopped by his chattel mortgage it must appear that he had the intention, at the time he made the improve- ment, that it should not become a part of the realty. Where a lessee of a strip of land erects a steam elevator thereon, which the lease does not give him authority to remove, and which is actually real estate, and which can not be removed without injury to itself and to the realty, a subse- quent mortgage thereof in which it is referred to as "goods and chat- tels ' ' will not estop the mortgagor from claiming that the elevator^ is realty as against his judgment creditors, who also claim that it is realty. Cross V. Weare Commission Co., 153 111., 499, 512 (1894).] [A person is not estopped to deny that a building is personalty by ae-, cepting a deed describing, it as a chattel, and having it acknowledged and entered as a chattel mortgage, where the party claiming an estoppel had the same means of knowledge as to which class of property the building belonged, and has not changed his conduct in consequence of the acts of the other. Knapp v. Jones, 143 111., 375 (1892).] [The parties benefited by a deed of trust of realty which designates a steam-engine and boilers thereon as personalty, are not estopped from claiming that the engine and boiler are realty, as no one can be misled. Jenney v. Jackson, 6 111. App., 32, 36 (1880).] [The fact tha*- a purchaser at an execution sale of land, holds a second mortgage upon machinery thereon as chattels, does not estop him from claiming such machinery as fixtures as against the party holding the first chattel mortgage thereon. Keve v. Paxton, 26 N. J. Eq., 107, 109 (1875).] '521 *346 THE IjAW op fixtures. [chap. IX. [A person, by taking a bill of sale of a house, is estopped from asserting it to be realty. Apolo v. Kauo, 7 Hawaii, 755, 757 (1889).] [Where a builder of a house upon land for which he has a contract of purchase, rents it, he necessarily rents it to stand where it is, and he can not, at the same time, treat- it as personalty. Braoelin v. McLaren, 59 Mich., 327, 328 (1886).] [One who has placed mill-stones in a mill under an agreement that they are to remain his separate property, is not estopped to claim them by the mere fact that he afterwards leases the mill, where the mill-stones are not mentioned in the agreement. Sullivan 7. Jones, 14 S. 0., 362, 365 (1880).] [Where a tenant took the acknowledgment of his wife to a mortgage of the land, there being nothing in the mortgage to indicate that it covered a portable sawmill thereon, and the mortgagee knowing that the husband claimed it, he is not estopped to assert his title to the mill as a chattel. Bartlett v. Haviland, 92 Mich., 552, 556 (1892).] [Where a subsequent incumbrancer, in compelling a prior mortgagee to account, treats all the trade fixtures as part of the realty, he can not afterwards levy upon these fixtures as chattels. Carson v. Simpson, 25 Ont., 385 (1894).] [Where the owner of buildings, who has no interest in the land upon which they are located, sells them, and afterwards obtains title to the land before the buildings are removed, the rights of the purchaser of the buildings are not prejudiced; for if the former landowner had no legal interest in the buildings, the conveyance did not affect them, and if he had an interest in the buildings, the conveyance ought, in equity and good conscience to operate in effectuation of the former sale. . Myrick v. Bill, 3 Dak., 284, 290 (1883).] [Where a partition suit is brought by the purchaser of a mill under a decree adjudging it to be realty, the defendants can not allege it to be personal property, as the decree, to which they were parties, is conclu- sive until reversed, and can not be attacked collaterally. Marshall v. Stewart, 80 Ind., 189 (1881).] [Where a mortgagee, in foreclosing his mortgage, calls it a real-estate mortgage, and refers in his bill to the building on the land as a part thereof and as being covered by a prior real estate mortgage, he is estopped, as against a purchaser at the sale, from asserting the building to be per- sonal property. Miles v. McNaughton, 111 Mich., 350, 355 (1896).] [Where in ejectment for land, the defendant claimed no exclusive prop- erty in a house thereon, and a verdict was rendered for a moiety of the land, the defendant is estopped, in a subsequent partition suit, from claim- ing such improvement as being his exclusively. Booth v. Kapuakela, 10 Hawaii, 414, 415 (1896).] [A mortgagee of land instituting replevin suit for an engine and saw- mill, can not afterwards claim that they are covered by his mortgage ag realty. Long v. Cockern, 128 111., 29, 36 (1889), affirming 29 111. App., 304, 312 (1888). When a party brings an action of replevin for rails in a 522 CHAP. IX.] VALUATION OF FLXTUEES. »347 IX. Ageeements as to Valuation of Fixtures and Improve- ments. Upon the demise of a house or other premises, the lease is often made in one form or another to contain a covenant on the part of the landlord at the end of the term to pay for fixtures or improvements put upon the premises by the tenant at a valuation, or to grant a renewal of the lease or allow the tenant to remove the same; and especially is this the case with reference to buildings or other permanent and substantial im- provements which by the general rules of law would not be *allowed to be removed by the tenant at the termination [*347] of his term, but in the absence of a contract regulating the rights of the parties would go to the landlord as a part of the estate without his making any compensation therefor.* But in fence, he is estopped, when sued upon the replevin bond, from insisting that the justice had no jurisdiction. Fahnestoek v. Gilham, 77 111., 637, 639 (1875).] [A party, who proves his title to property on the ground that it was realty, can not treat it as personalty for the purpose of entering judgment upon a claim bond. Bull v. Jones, 9 Tex. Civ. App., 346, 349 (1895).] [That a mortgagee has called articles personal property in his affidavit for a writ of replevin, should not estop him, when sued on his bond, from showing that they are fixtures. Howell v. Barnard, 32 111. App., 120, 121 (1889).] iKutter v. Smith, 2 Wall., 491 (1864). [See, ante, p. *133. Gocio v. Day, 51 Ark., 46, 48 (1888) ; Chilvers v. Race, 196 111., 71, 82 (1902) ; Douglass V. Anderson, 28 Kan., 262, 264 (1882) ; Guthrie v. Guthrie, 78 S. W., 474 (Ky., 1904) ; Gudgell v. Duvall, 27 Ky., 229, 230 (1830) ; Sparks V. Ball, 13 Ky. Law E., 63 (1891); Tyler v. Jacob, 4 Ky. L. E., 717 (1883) ; Leslie v. Smith, 32 Mich., 64, 68 (1875) ; Sims v. Kelsay, 75 Mo., 68, 71 (1881) ; McAllister v. Eeel, 59 Mo. App., 70, 74 (1894) ; Swift v. Sheehy, 88 Fed., 924, 927 (U. S. C. C, Mo., 1898); Murphey v. Illinois Tr. & Sav. Bank, 57 Neb., 519, 522 (1899); Hart v. Hart, 117 Wis., 639, 657 (1903).] A tenant for life cannot lay out moneys in improvements on the estate, though lasting and substantial, and charge them on the in- heritance. Caldecott v. Brown, 2 Hare, 144 (1842) ; Nairn v. Majoribanks, 3 Euss., 582 (1827). [Pickett v. Pope, 74 Ala., 122, 132 (1883); Austell v. Swann, 74 Ga., 278, 282 (1884) ; Hagan v. Varney, 147 111., 281, 292 (1893); Henry v. Brown, 99 Ky., 13, 15 (1896); Nineteenth Pres. Ch. V. Fithian, 16 Ky. L. E., 581, 582 (1895); Sparks v. Ball, 91 Ky., 502 (1891) ; Porter v. Osmun, 98 N. W., 859, 860 (Mich., 1904) ; Weber v. Lanman, 91 Md., 90, 99 (1900); Pratt v. Douglas, 38 N. J. Eq., 516, 523 *347 THE LAW OP FIXTURES. [ CHAP. IX. order to entitle the lessee to the benefit of any such covenant in his favor, the erections and improvements made by him must be of the character authorized in the lease to be erected by him and for which the lessor has promised to pay; and, if they do not correspond with the erections authorized by the lease, both as to the place and character of the erections, the lessor is not liable to pay therefor.^ So, where the lessor covenanted on the 542 (1884) ; 2Je Lamb, 65 N. Y. St. E., 460 (1894) ; VanBibber v. Wil- Hamson, 37 Fed., 756, 759 (U. S. C. C, Ohio, 1889).; Moore v. Simonson, 27 Ore.^ 117, 126 (1895) ; Trimmier v. Darden, 61 S. C, 220, 235 (1901); Corbett v. Laurens, 5 Rich., 301 (S. C. Eq., 1853); Brooks v. Brooks, 12 S. C, 422, 464 (1879) ; Casto v. Kintzel, 27 W. Va., 750, 756 (1886); see, also. Dean t. Peely, 69 Ga., 804, 817 (1883); Effinger v. Hall, 81 Va., 94, 109 (1885).] [Improvements made by a tenant pur autre vie go the heirs of cestui qui vie. Brugers y. Slidell, 27 La. Ann., 70 (1875).] [Where a tenant for life is appointed by court as agent for the devisees in remainder to rebuild a hotel destroyed by fire, he can not bind them personally for expenses incurred. Eudd v. Littell, 20 Ky. L. E., 158 (1898).] [A tenant under the owner of a life estate, who is also tenant in com- mon in the remainder, can not recover for improvements made during the life estate against the wishes of his co-tenants. Ashby v. Ashby, 59 N. J. Eq., 547, 560 (1900).] [A tenant for life can not charge the inheritance with the expense of a new heating apparatus, consisting of a boiler and pipes, although there was no proper method of heating the house, and it was essential, in order to bring the conveniences to the modern standard of comfort. JJe Gas- kell's Set. Est. (1894), 8 Eepts., 67.] [Where a building has been destroyed by the act of God, the tenant for life has no right to take timber from the estate, to its injury, to re- ,build. Miller v. Shields, 55 Ind., 71, 77 (1876).] [Where the life tenant is an infant, and his guardian, by authority of court, expends his funds in improvements, the life tenant is entitled to relief if the parties can be placed in statu quo, and the remainderman realize his original estate with the natural increase. Caldwell v. Jacob, 16 Ky. L. E., 21, 24 (1894).] sOstrander v. Livingston, 3 Barb. Ch., 416 (1848); Fisher v. Fisher, 1 Bradf. Sur., 335 (1850) ; Pike v. Butler, 4 N. Y., 360 (1850) ; reversing s. C, 4 Barb., 650; Berry v. Van Winkle, 2 N. J. Eq., 390 (1841), s. C, Id., 269. In this case the landlord agreed that the lessee might erect a "carding and fulling mill or any other machinery," and that at the ex- piration of the lease all improvements made upon the lot should be the property of the lessor, he paying for the same, at a valuation. The tenant erected buildings, put machinery into them, and among the rest built a 524 CHAP. IX.] VALUATION OF FIXTURES. *347 saw-mill and its appendages, the mill being originally only a cover to the water-wheel, in which machinery was afterwards placed for sawing lum- ber. Held, that the agreement to pay for improvements referred only to such as he had previously authorized to be made; that the words "all improvements," which the landlord agreed to pay for, referred to all such only as by the previous part of the lease it had been agreed might be placed upon the lot; that the machinery contemplated could have been nothing beyond such as was permanent and essential to the building as a carding or fulling-mill, with liberty to change it if necessary or desirable to change the course of business; and that nothing but the buildings and their permanent fixtures (excluding everything movable) should be valued. See, also, Woodward v. Payne, 16 Cal., 444 (1860) ; also, Hasty v. Wheeler, 12 Me., 434 (1835), where the meaning of the word "improve- ments" is considered. [Mullen v. Pugh, 16 Ind. App., 337, 340 (1896); Mcintosh V. St. Philip's Church, 120 N. T., 7, 12 (1890), afC'g 54 N. T. Super., 291 (1887); Brown v. Galagher, 5 Ohio Dec, 556, 557 (1897).] [Where, by the terms of a lease, the tenant is to "take down and re- move * » * * and erect upon said land in place thereof" a build- ing, which is to be valued, he can not claim payment for alteration or im- provements in the original structure. Smith v. Cooley, 5 Daly, 401, 410 (N. Y. C. P., 1874).] [A lease of vacant land for forty years contained a covenant that the lessee was to yield up the premises "with all erections, buildings and im- provements" subject to a covenant that the lessor was to purchase "all and every the said buildings, erections, and fixtures." The lease was silent as to the purpose for which the buildings were to be erected. Held, that as to what articles the lessor was required to pay depended upon the intention of the parties. Where the words "erections," "buildings," "improvements," and "fixtures" are intended as convertible terms, and belong to the same category, ' ' fixtures ' ' relates back to such as belong to the soil; and the lessor could not be required to pay for trade-fixtures. It is no argument against a construction of a covenant that such construction does not change common law rights. Byrnes v. Macarthur, 2 N. S. W. L. E., 57 (1881).] [Under a covenant to pay for "erections and buildings" the lessor is not liable for crib-work and earth-filling done to convert a lot covered with water into dry land level with adjoining land. Adamson v. Eogers, 26 Can., 159 (1896), afarming 22 Ont. App., 415 (1895). A lessor was to pay for all "permanent improvements, such as cistern, privy, cellar and fencing." Held, not to include grading of lot, shrubbery nor fruit trees planted for lessee's own comfort. Deishler v. Golbaugh, 2 Ky. L. E., 231 (1881).] [An undertaking to render a fair' consideration for a barn can not be construed to include the cost of a pump. Smyth v. Stoddard, 203 111., 424, 431, (1903)0 [Where the lease provided that the lessee should keep the premises in good repair and under good fence, and there was also a provision that 525 •348 THE LAW OP PIXTUBBS. [CHAP. IX. expiration or sooner determination of the term to re-purchase of the lessee certain fixtures on the premises at a valuation by appraisers, one to be appointed by each party, the agreement on this point being mutual, and subsequently by the bankruptcy of the tenant and his assignee's declining the lease (which was [*348] delivered up according to 6 Geo. IV., c. 16, s. 75), *the the lessor should pay for improvements made by the lessee, the lessee can recover for fences around land not enclosed at the time the lease was exe- cuted, but not for repairs upon fences existing at that time. Hazlewood v. Pennybacker, 50 S. W., 199, 202 (Tex. Civ. App., 1899).] [Under an agreement by the lessor to pay for ' ' buildings and erections, ' ' he should pay for fixtures and mill machinery which are a part of the realty, although, under the statute, the lessee would have a right to re- move them. Be Brantford Power Co., 28 Ont., 40, 44 (1896), affirmed 24 Ont. App., 301 (1897).] [Where a lease was made for the purpose of building a dock and ship- yard, and contained a provision for payment, by the lessor, for "build- ings and fixtures" erected by the lessees, held, that the provision covered the dock, water-wheels, shafting, machinery, a floating-bridge and a wire sign-board. Grier v. Queen, 4 Exch., 168 (Can., 1894).] [Erections or additions to the premises calculated to enhance their value and render them desirable as residence property are improvements within the covenants of the lease. Hopkins v. Oilman, 47 Wis., 581 (1879).] [Where the south wall of the building did not stand upon the lessor's land, but he had full opportunity for knowledge of the facts, he will not be permitte'd to repudiate the valuation when he finds that it is not ac- ceptable to him. Yeatman v. Clevens, 6 Mo. App., 210 (1878).] [Where the covenant was that the lessees in making additions and im- provements, should "preserve unimpaired, the entrance and right of way," etc., and their complaint averred that the improvements made were "in pursuance of the liberty and privilege granted to them," the defendant demurred for that the complaint did not show the performance of the condition precedent that the alley entrance was undisturbed. The court held that, if the proviso was a condition precedent, if the buildings were erected by the lessees ' ' in pursuance of the liberty ' ' given in the covenant, none of the directions could have been disregarded, and the avenue into the rear must have been left open, and the defendant is required to deny the allegation. "The inclination of the courts is to relax the stringent rules of the common law which allows no recovery upon a special unper- formed contract itself, nor for the value of the work done because the special excludes an implied contract. In such case if the party has de- rived any benefit from the labor done, it would be unjust to allow him to retain that without paying anything." The law implies a promise to pay such remuneration as the benefit conferred is really worth. Gorman V. Bellamy, 82 N. C, 496 (1880).] 526 CHAP. IX.] VALUATION OF FIXTURES. *348 bankrupt was discharged from obligation under this covenant, it was held that performance of the covenant could not be en- forced by the assignee against the lessor.^ Where a lease contains a covenant that at the expiration of the term the lessors, their successors or assigns, shall purchase at an appraisal the improvements made by the lessee, which at the expiration of the term the lessor refuses to do, the cove- nant is broken. Of this covenant, however, there can be but one breach, upon which the whole damage becomes recoverable, so that the covenant becomes extinguished; and the breach not being a continuous one, one who after such breach becomes the assignee of the lessor with knowledge of it, does not take the land chargeable with the covenant.^ While it is a general rule that the heir cannot be prejudiced by the admission or act of the administrators or executors, it is held that a covenant in a lease to pay for improvements a valuation to be appraised at the end of the term by appraisers to be appointed by the parties, their heirs, executors, adminis- trators or assigns, authorizes the administrators to appoint in the absence of any other nomination by other parties in inter- est; and the appraisement made by the person so appointed will bind the heir.* iKearsey v. Carstairs, 2 B. & Ad., 716 (1831). 2 Coffin V. Talman, 8 N. Y., 465 (1854). [Gardner v. Samuels, 116 Cal., 84, 88 (1897).] [One to whom the land is conveyed after the expiration of the lease, while not personally bound for improvements as an assignee of the lease would be, yet he has notice, by the tenant 's possession, of the latter 's equit- able lien, and can not recover possession until the lien is discharged. Ecke V. Fetzer, 65 Wis., 55 (1886).] [The agreement does not bind the assignee of the lessors if the subject- matter is personal property; and not in any case unless the covenantor has expressly bound his assigns. Etowah Min. Co. v. Wills Mfg. Co., 121 Ala., 672, 676 (1898).] [An assignee of a lease made a sub-lease agreeing to take, at a valua- tion, buildings to be placed thereon by the sub-lessee. Later, the original lessor took an assignment of the reversionary interest of his lessee and of the rights of the assignee, and claimed the benefits of the underlease. Held, that the assignment to the original lessor was not a surrender nor a merger, and that he should pay for the improvements. Bailey v. Eichard- Bon, 66 Cal., 416 (1885).] sEenwick v. Eenwiek, 1 Bradf., 234 (1850). 527 *349 THE LAW OF FIXTUBES. [CHAP. IX. Where a lease contains a covenant that at the expiration of the term the buildings and improvements shall be valued by indifferent persons to be chosen by the lessor and lessee, and that the appraised value shall be paid to the lessee, an ex parte appraisement by appraisers appointed solely by one of the parties upon the refusal of the other to appoint, will not, in the absence of a provision in the lease authorizing such ex parte proceeding, be binding upon the party not joining in the nomi- nation of the appraisers; and in an action upon the covenant the value of the improvements will be considered as un- liquidated.* And a court of chancery cannot compel the [*349] *party refusing to appoint an appraiser, to make such choice.^ Neither wiU. a court of chancery grant specific per- formance of a contract to purchase tenant's fixtures, furniture, etc., at a valuation to be made, it being impossible for the court to decree specific performance of a sale or purchase' at a valua- tion, unless already made, on account of the impossibility of working out such a decree.® But upon a bill for the specific per- 4 See Holliday v. Marshall, 7 John., 211 (1810); Copper v. Wells, 1 N. J. Eq., 10 (1830). See, however, Conner v. Jones, 28 Cal., 59 (1865). [Where the lessor ignores the nominee of the lessee, and appoints a sole arbitrator, proceedings by the latter will be restrained. Parley v. San- son, 5 Ont. Law E., 105, 112 (1902), affirmed in 40 Can. Law J., 506 (Ont. App., 1904).] [Where the appraisers are to construe the contract as well as to de- termine the value of the building, an appraisal made without opportunity for the parties to be heard, is invalid. Janney v. Goehringer, 52 Minn., 428 (1893).] [Where the lessor covenants to pay the valuation of buildings upon the demised premises, such valuation to be made by "disinterested persons," but no provision is made for the manner in which the appraisers are to be appointed, if the appraisers are appointed by the lessor, he has per- formed his covenant, there being no evidence that the appraisers were in- competent or interested. Gilbert v. Smith, 18 N. Brunsw., 211 (1878).] [Where the proviso gives the lessor an option to purchase any build- ing erected on the demised lands "at a price to be fixed by the said lessee," the lessee can effectually prevent the lessor from retaining the building by simply placing the price as far beyond its value as he thinks proper. Gray v. McLennan, 8 Man., 337, 348 (1886).] 6 Copper V. Wells (supra). See, also, Darby v. Whitaker (infra). [Hug V. Van Burkleo, 58 Mo., 202, 203 (1874).] 6 Darby v. Whitaker, 5 W. E., 772 (1857). See, also. Copper y. Wells (supra). 528 CHAP. IX.] VAIjUATION OF FIXTURES. *350 formance of an agreement, at the expiration of the term to take buildings and improvements at a valuation to be made by indifferent persons to be chosen by lessor and lessee, where a specific performance has become impossible, as where the de- fendant has placed it out of his power to fulfil his part of the contract, or where from the nature of the contract it cannot be decreed, and the complainant can have no adequate relief except in equity, though the alternative prayer of the bill be purely for compensation, the court will relieve and grant com- pensation in damages for permanent and valuable improvements put by the lessee upon the demised premises under such agree- ment.'^ So, where in such a case the lessor and lessee severally nominated an appraiser who could neither agree as to the valua- tion nor upon an umpire, and thereupon two more were appoint- ed with like result, whereupon the lessor selected a third and the lessee insisted upon the one he had nominated secondly and declined to nominate another, and the parties themselves could not agree as to the value, the *lessor was held entitled [*350] in equity to have the extent of his liability ascertained and ex- tinguished upon payment of such sum as should be ascertained to be the just value of the buildings.* But it is held that where the person named by both parties to make the valuation is refused by the vendor permission to enter the premises for that purpose, the court will make a mandatory order to compel the vendor to allow the entry to enable the valuation to proceed. Smith v. Peters, L. E., 20 Eq., 511 (1875). 7 Copper V. Wells (supra) ; Berry v. Van Winkle, 2 N. J. Eq., 269 (1839) ; s. C, Id., 390. But jurisdiction will not be extended beyond the claim of the lessee for permanent and valuable improvements put on the premises by the lessee and which pass to the lessor at the end of the term, so as to include a claim for alleged infringements on the rights of the lessee during the whole term, as to which he must seek a remedy at law. Berry V. Van Winkle (supra). [See White Stone Quarry Co. v. Belknap Stone Co., 13 Ky. L. E., 244, 247 (1891) ; Hug v. Van Burkleo, 58 Mo., 202, 203 (1874) ; Biddle v. McDonough, 15 Mo. App., 532 (1884) ; Hopkins v. Gil- man, 22 Wis., 476 (1868-).] sEeformed Protestant Dutch Church of New York v. Parkhurst, 4 Bosw., 491 (1859). [Cooke v. Miller, 54 Atl., 927 (R. I., 1903); see, also. Conger v. Ensler, 85 App. Div., 564 (N. Y., 1903).] [If the arbitration fails through no substantial fault of the tenant, the court wiU fix the value. Bales v. Gilbert, 84 Mo. App., 675, 679 (1900).] 34 529 *350 THE LAW OF FIXTURES. [CHAP. IX. Where it is provided in the lease that improvements, con- sisting of buildings, machinery, etc., to be erected by the lessee at his own expense, shall at the expiration of the term belong to the lessor, he paying therefor at a valuation, such improve- ments are to be valued as they are at the expiration of the term.® [See Biddle v. Eamsey, 52 Mo., 153, 158 (1873), as to fraud in pre- venting a valuation.] 8 Berry v. Van Winkle, 2 N. J, Eq., 269, 277 (1839); s. c. Id., 390. [Tuttle V. Leiter, 82 Fed., 947, 950 (U. S. G. C, 111., 1897) ; Edwards v. Van Patten, 46 Kan., 509 (1891) ; see, also, Jones v. Hoard, 59 Ark., 42, 47 (1894); Finkelmeier v. Bates, 92 N. T., 172, 179 (1883).] [Where a lease provides for the recovery, by the lessee, of the value of a building "at the expiration of said term," it refers to the time provided by the lease for the term to expire in the event that there was any default; and if the lessor forfeits the lease on account of the default of the lessee, the latter can not take advantage of his own act, but must wait until the expiration of the full period named in the lease. Lent v. Curtis, 14 Ohio Giro., Dec., 592, 604 (1902).] [Where a son was, in return for taking care of his parents for life, to have the use of a farm, and to be paid for improvements out of the effects of said parents after their decease, the value of such improvements is to be determined by their reasonable cost at the time they were made, and not by their value at the time of the expiration of the tenancy; other- wise, by lapse of time, the improvements might become valueless, and de- feat the provision. Wisehart v. Grose, 71 Ind., 260 (1880).] [Under eminent domain proceedings instituted before the completion of the term, it is proper to award to the tenant the value of his buildings. Livingston v. Sulzer, 26 Supr. Ct. (19 Hun), 375, 382 (N. Y., 1879).] [Where a contract provides that if the lessor should reimburse the lessee for payments made upon the purchase price of the land, and also pay for the value of improvements placed upon the land by the lessee, the property is to be restored to the lessor, otherwise to belong to the lessee, the lessor can maintain an equitable action before the expiration of the lease to determine the value of the improvements so that he can redeem. Todd v. Barby, 4 Ky. L. E., 887 (1883).] [Where improvements are to be appraised "without regard to the situa- tion or value of the premises leased, ' ' whatever was built or placed thereon which was a substantial benefit to the premises, or rendered them more fit for use as residence property, or more capable of producing an income, should be paid for at its present cost or actual value, and not what the improvements are worth to the tenant irrespective of their connection with the land. Hopkins v. Gilman, 47 Wis., 581 (1879).] [Where a lease provided that the lessor should pay the "value" of an improvement, and later stipulated that the lessor was not to pay for any- 530 CHAP. IX.] VALUATION OF FIXTURES. *351 Where the lease provides that the appraisement shall be made a specified number of days before the expiration of the term, though it is not done within that time, yet where there has been a fair effort on the part of the lessee to have the improve- ments appraised, and they have been in fact appraised before the expiration of the term and their value has also been ascer- tained and proved to the court, and the heirs of the lessor have received the benefit of such improvements in the enhanced value of the property, the specified time will not in equity be con- sidered as of the essence of the contract, and the lessee has in equity a lien upon the premises for the value of such improve- ments.10 But where the lease provides for the payment to the lessee at the end of the term of the appraised value of buildings to be erected on the demised premises, and before that time the lessor re-enters to enforce a forfeiture for non-payment of rent in accordance with the terms of the lease, the lessee cannot maintain a bill for the value of his improvements. If he has any remedy in such a case he must wait until the time fixed by the contract has expired ; and he cannot, by his own default, change in his own favor the terms of the contract, and fix upon the lessor a contract he never made.i^ •For a further consideration of the subject of covenants [*351] to pay for improvements at a valuation or to grant a renewal of the lease, etc., and other similar covenants, reference is made to the authorities cited in the note below.^^ thing except the actual "cost" of the impTovement, and then provided for appraisers in case of disagreement, held, that the lessor could only be compelled to pay the value, not exceeding the cost, as it is reasonable to suppose that the appraisers were to pass upon the value and not arbitrate as to the cost. Hart Lumber Co. v. Everett Land Co., 20 Wash., 71, 73 (1898).] wEenwick v. Eenwick, 1 Bradf., 234 (1850). "Lawrence v. Knight, 11 Cal., 298 (1858). [Johnston v. Bates, 48 N. Y. Super., 180 (1882).] In like manner a provision for a valuation three months previous to the determination of the term, refers to its expiration by efauxion of time; and in case of forfeiture, no valuation need be made. Storer v. Hunter, 3 B. & C, 368 (1824). See, also, Fairburn v. Eastwood, 6 M. & W., 679 (1840). [Wilcoxen v. Hybarger, 1 Ind. Ter., 138, 144 (1897); Switzer v. Allen, 11 Mont., 160 (1891).] 12 As to tenant's right to the possession of the premises till paid the value of his improvements, see Van Rensselaer v. Penniman, 6 Wend. 569 531 *351 THE LAW OF FIXTURES. [CHAP. IX. (1831) ; Holsman v. Abrams, 2 Duer, 435 (1853) ; Tallman v. Coffin, 4 N. T., 134 (1850); Pearce v. Golden, 8 Barb., 522 (1850). [Mullen v. Pugh, 16 Ind. App., 337, 340 (1896); Bresler v. Darmstaetter, 57 Mich., 311 (1885) ; VanBeuren v. Wotherspoon, 164 N. Y., 368, 379 (1900) ; 74 App. Div., 123 (1902); Conger v. Ensler, 85 App. Div., 564 (N. Y., 1903); Paine v. Eector, 14 Supr. Ct. (7 Hun), 89 (N. Y., 1876); Lent v. Curtis, 14 Ohio Giro. Dec, 592, 597 (1902) ; Taylor v. Maule, 2 Walker, 539, 544 (Pa., 1864) ; see, also, Jones v. Hoard, 59 Ark., 42, 47 (1894) ; Griffin v. Marine Co., 52 111., 130, 148 (1869) ; Fraer v. Washington, 125 Fed., 280, 283 (U. S. C. C. A., Ind. Ter., 1903); Knight v. Orchard, 92 Mo. App., 466 (1901) ; Be Coatsworth, 37 App. Div., 295, 307 (N. Y., 1899) ; Cicalla V. Miller, 105 Tenn., 255 (1900); Brummet v. Campbell, 32 Wash., 358, 368 (1903); Wilkes v. Hunt, 4 Wash., 100, 102 (1892).] [The plaintiff has the right, by virtue of the conditions in the lease, to renaain in possession until the improvements are ascertained and paid for, with interest, inasmuch as the landlord refused to renew; but this does not excuse him from continuing to pay rent or taxes as provided in the lease. Hopkins v. Oilman, 47 Wis., 581, 590 (1879).] [The lessee has an equitable lien for the value of the improvements at the termination of the lease, and can hold possession until paid. Where there is a provision that, if the lessor shall not be able to purchase, the lease shall be continued until he is able, will not give the lessor unlimited, but reasonable time to make payment. Where the property is ordered sold to satisfy the lien, it is not improper to postpone ascertainment of the value of the improvements until after the sale. Gray v. Cornwall, 16 Ky. L. E., 228 (1894).] [See Eeke v. Fetzer, 65 Wis., 55, 65 (1886), as to the method of comput- ing the amount payable where the tenant retains possession some time after the expiration of the lease.] [In Speers v. Flack, 34 Mo., 101, 103 (1863), it is held that, unless there is a reservation of the right to retain possession, the time being definite, no such right exists.] As to the nature of an appraisal, and the setting it aside for the mis- conduct of the appraisers, etc., see Van Cortland v. Underhill, 17 John., 405 (1819). [Smith v. Cooley, 5 Daly, 401, 409 (N. Y. C. P., 1874). In Graf v. Friedlander, 33 La. Ann., 188, 189 (1881), the agreement was held binding. Where there is no charge of fraud, the finding of the arbitrators wiU not be disturbed.] That the covenant to renew does not necessarily imply a renewal with the same covenants as in the original lease, see Rutgers v. Ilunter, 6 John. Ch., 215 (1822), applied to a covenant to pay for improvements. [Carr v. ElUson, 20 Wend., 178 (N. Y., 1838) ; Leary v. Hutton, 12 N. Y. Supp., 476 (1890); see, also, Kash v. Huncheon, 1 Ind. App., 361 (1890); Orphan Soc. V. Waterbury, 8 Daly, 35 (N. Y., 1878). Where a lease provides for renewing the lease upon the same conditions, a renewal does not afiPect the lessee's rights. Livingston v. Sulzer, 26 Supr. Ct. (19 Hun), 375, 381 (N. Y., 1879).] 532 CHAP. IX.] VALtfAMOK OS' PlXl'tJBfiS. *351 For the construction of several special agreements to pay the appraised value of buildings, etc., see Lametti v. Anderson, 6 Cow., 302 (1826) ; Woodward v. Payne, 16 Cal., 444 (1860) ; Wray v. Ehinelander, 52 Barb., 553 (1868) ; s. c, 39 How. Pr., 299. See, also, DufaeM v. Whitlock, 26 Wend., 55 (1841) ; s. c, 1 HofC. Ch., 110, where the covenant for renewal was considered void for uncertainty. [Anderson v. Swift, 106 Ga., 748 (1899); Bass v. Metropolitan E. R. Co., 82 Fed., 857, 862 (TJ. S. C. C, 111., 1897) ; Tuttle v. Leiter, 82 Fed., 947 (TJ. S. C. C, 111., 1897) ; Smyth v. Stoddard, 203 111., 424 (1903), afC'g 105 lU. App., 510 (1903); Pearson v. Sanderson, 128 111., 88 (1889), aff'g 28 111. App., 571 (1887); Gardner V. Watson, 18 III. App., 386 (1885); Hansen v. Meyer, 81 III., 321 (1876); Coles V. Peck, 96 Ind., 333 (1884) ; Stewart v. Pier, 58 Iowa, 15 (1882) ; Vorse V. Des Moines Marble Co., 104 Iowa, 541 (1898) ; Bullock v. Grinsted, 95 Ky., 261 (1894) ; Handy v. Aldrich, 168 Mass., 34 (1897) ; Mosely v. Allen, 138 Mass., 81 (1884); Hangsterfer v. Shafer, 130 Mich., 223 (1902); McAlhster v. Eeel, 53 Mo. App., 81 (1892); 59 Mo. App., 70 (1894) ; Chandler v. Oldham, 55 Mo. App., 139 (1893) ; NewhofC v. Mayo, 48 N. J. Eq., 619 (1891) ; Schoellkopf v. Coatsworth, 166 N. Y., 77 (1901), aff'g 55 App. Div., 331 (1900); Smith v. St. Philip's Church, 107 N. Y., 610 (1888); Finkelmeier v. Bates, 92 N. Y., 172 (1883), aff'g 48 N. Y. Super., 433 (1882) ; Neiderstein v. Cusick, 178 N. Y., 543 (1904), revers- ing 83 App. Div., 36 (1903); Howe's Cave Ass'n v. Houok, 73 Supr. Ct. (66 Hun), 205 (N. Y., 1892) ; Bates v. Johnston, 65 Supr. Ct. (58 Hun), 528 (1890), aff'd 126 N. Y., 681 (1891); Morton v. Weir, 12 Supr. Ct. (5 Hun), 177 (N. Y., 1875); Be Henshaw, 75 N. Y. Supp., 1047 (1902); Thompson v. Eose, 8 Cowen, 266 (N. Y., 1828); Elevator Co. v. Brown, 36 Ohio St., 660 (1881); Parker v. Page, 41 Ore., 579 (1902); East Sugar- Loaf Co. V. Wilbur, 5 Pa. Dist., 202 (1895) ; Bream v. Diekerson, 21 Tenn., 126 (1840) ; Allen v. Gates, 73 Vt., 222, 227 (1900) ; King v. Wilson, 98 Va., 259 (1900) ; Ward v. Toronto, 29 Ont., 729 (1898) ; Toronto Trusts Corp. V. White, 3 Ont. Law, 519 (1902) ; Nudell v. Williams, 15 Up. Can. C. P., 348 (1865); Sears v. Saint John, 18 Can., 702 (1890), aff'g Saint John V. Sears, 28 N. Brunsw., 1 (1889) ; Smith v. Gilbert, 18 N. Brunsw., 211 (1878); Irvin v. Simonds, 11 N. Brunsw., 190 (1864); EoUeston v. New (1858), 4 Kay & J., 640; Grey v. Guthbertson (1785), 2 Chitty's R., 482; Malmsbury Min. Co. v. Tucker, 3 Viet. L. R. (Law), 213 (1877); see, also, National Waterworks Co. v. Kansas City, 62 Fed., 853 (U. S. C. C. A., Mo., 1894).] As to when the appraised value of buildings, etc., is a lien upon the de- mised property, see Copper v. Wells, 1 N. J. Eq., 10, 18 (1830) ; Berry v. Van Winkle, 2 Id., 269, 390 (1839) ; Whitlock v. Duffield, 2 Edw. Ch., 466 (1834). [Mullen v. Pugh, 16 Ind. App., 337, 339 (1896); Leahy v. Reynolds, 4 Ky. L. E., 995 (Super., 1883) ; The Confiscation Cases, 1 Wood, 221, 227 (U. S. C. C, La., 1872) ; Swift v. Sheehy, 88 Fed., 924 (XJ. S. 0. C, Mo., 1898) ; Fowler v. Mutual Life Ins. Co., 35 Supr. Ct. (28 Hun), 195 (N. Y., 1882) ; Anderson v. Ammonett, 77 Tenn., 1 .(1882) ; Hite v. Parks, 2 Tenn. Ch., 373 (1875) ; see, also, White Stone Quarry Co. v. Belknap 533 *351 THE LAW OF FIXTURES. [CHAP, IX. Stone Co., 13 Ky. L. B., 244, 247 (1891); New York Dyeing Est. t. DeWeatenberg, 53 Supr. Ct. (46 Hun), 281, 282 (N. Y., 1887). Where a lease provides that structures erected by the lessee might be removed at his option, and that they should not be considered as attached to the land, he does not acquire any equitable lien upon the land for their value which would entitle him to require a sale of the property. Phillips v. Eeynolds, 20 Wash., 374, 377 (1898).] [See Ward v. Hall, 34 N. Brunsw., 600 (1899), in regard to an option by the lessor to pay for improvements or renew.] [A lease contained the following clause: "Provided that the said lessee shall have the privilege at the expiration of the term hereby granted of removing any building erected on the said lands hereby demised, unless the same are purchased by the lessor at a price to be fixed by the said lessee." Held, that the lessor must signify his intention to buy before the lessee is bound to fix the price; and he must make his election to purchase before the expiration of the term. Gray v. McLennan, 3 Man., 337, 348 (1886).] [Where the lessor fails to give notice of his option to terminate the lease, and pay the appraised value of improvements, it is unnecessary to appraise their value. Eberts v. Pisher, 54 Mich., 294, 298 (1884).] [A lease provided for a right of renewal by the lessee, with a covenant that if the lessor and lessee failed to agree as to the rental, the lessor should purchase the improvements, etc. Meld, that the provision embraced a failure by the lessee to renew the lease, as the lessee could have demanded a renewal and at the same time refused to agree to any fair rental. Car- penter v. Pocasset Mfg. Co., 180 Mass., 130 (1901).] [Where a lease for twelve years provides that the lessor will buy struc- ture erected by the lessee, or extend the lease, an extension for one day by the lessor will not defeat the lessee's rights. Phillips v. Eeynolds, 20 Wash., 374, 377 (1898).] [Where the lessor has a right of election to grant a renewal, or pay the value of the house, he has made his election when an appraisement is had iinder the covenant of renewal, and has no right afterwards to claim the building in Ueu of renewing. Crosby v. Moses, 48 N. Y. Super., 146, 148 (1882).] [Where a lease provided for the erection of a building by the lessee, and made it optional with 4;he landlord to buy the building at the expira- tion of the term or continue the lease for another term upon the same conditions, the building became the property of the landlord upon the expiration of the second term. Peirce v. Grice, 92 Va., 763, 767 (1896).] [Where a lessee has a right to remove buildings upon the termination of the lease unless the lessor elects to retain them at their fair value, a rail- road company, seeking to condemn, is given the same right of election. Be Morgan E. E. Co., 32 La. Ann., 371, 378 (1880).] [As against execution creditors of the lessee, the lessors' option to buy the tenant's fixtures at the end of the term gave them no title to such 534 CHAP. IX.] VALUATION OP PIXTUEES. *352 As to what particular articles, for which the purchaser or tenant may be called upon to pay, are to be included in the stipulation (sometimes occurring in agreements of sale, and in demises of premises) that "the fixtures are to be taken at a valuation," there seems to have been no decisions. On this subject Mr. Ferard ^^ makes the following observations: "With respect to the precise import of these terms in different cases, there is very little assistance to be derived from the authorities ; and the practice of the individuals who are usually referred to on these occasions, seems to be governed by no uniform or very definite rule. It would seem, however, that when a stipulation of this kind occurs on the sale of a house, those things only are, in strictness, to be comprehended in the valuation, which would be deemed personal assets as between *heir and executor, [*352] and which would not pass with the inheritance as part of the freehold of the house.^* fixtures until they were appraised and accepted. Seitziuger v. Marsden, 2 Pennypaeker, 463, 473 (Pa. Supr., 1882).] [A liquidator has no greater right against the landlord than the tenant would have. Pender v. Bathgate Oil Co. (1887), 24 Scot. Law Kep., 519, 520 (1887).] [In the absence of proof, the right to compensation will be held to have been waived or satisfied after thirteen years. Unz v. Price, 22 Ky. L. E., 791, 792 (1900).] [A stipulation in the lease "that in case of failure of the lessor's title to the lot, payment was to be made for all the lessee's permanent and valuable improvements thereon," does not figure where there is no failure of title. Douglass v. Anderson, 28 Kan., 262, 264 (1882).] [Where a lease requires the lessee to erect buildings, and there is no agreement for their removal, he has no right to remove them. Peirce v. Grice, 92 Va., 763, 767 (1896).] [In Be Dawdy (1885), 15 Q. B. D., 426, the agreement was held to be for the appointment of valuers, not arbitrators.] [See M'Elroy v. Brooke (1885), 16 L. E., Ire., 46, as to usage.] [In an action of trover, after the expiration of a lease, for machinery placed upon the premises by the tenant, it is no defense that there is an agreement in regard to valuation, where the plea does not allege that the lessors are ready and willing to perform the agreement. Pawtueket Inst. V. Almy, 13 E. I., 68, 70 (1880). But actual tender is unnecessary. "White Stone Quarry Co. v. Belknap Stone Co., 13 Ky. L. E., 244, 246 (1891).] 13 Ferard Pixt., *221. "See Hitchman v. Walton, 4 M. & W., 409 (1838). [A grantee of a brewery agreed to pay for the "fixed plant" according 535 *352 THE LAW OP FIXTURES. [CHAP. IX, "When the like stipulation occurs upon a demise of premises, it must, it is conceived, be interpreted to mean, that all those articles are to be valued to the incoming tenant which would be fixtures as between a landlord and tenant, and which the tenant would be at liberty to remove if he had himself put them up during the term. It is apprehended, therefore, that the tenant will not be bound to pay for anything but what properly falls within the rule here suggested. "So, where a tenant by assignment of his lease pending the term, or at his outgoing, disposes of his fixtures under a similar agreement, he may be considered as transferring to the pur- chaser all those articles which he would have been entitled to remove from the premises, either by reason of having taken them as fixtures, or as having himself erected them during the term. "But in all these cases the intention of the parties is the true criterion to be consulted; and this intention is to be col- lected from the general nature of the contract, and from the description of the premises, and the purposes for which they are usually occupied. It may also be inferred from a custom pre- vailing in the particular district, and with reference to which the parties may be supposed to have contracted." to a valuation to be made. The question arose whether a chimney-shaft, a partition and staging ought to be included in the valuation. Beld, that they should not, as "plant" was dead stock which assisted in production, but did not act, being that through, and by means of, and in which, action took place, and included pipes, vats, and the like. Be Nutley (1894), 96 Law Times, 585.] 536 CHAPTER X. [*353] OF THE SEIZURE AND SALE OF FIXTURES ON EXECU- TION. I. As Against the Ownbb op the Fee. Although, as will be seen in the next section, whatever may be removed by the tenant as between landlord and tenant, may be taken in execution as against the tenant, yet as against one who is the owner of the estate in fee as well as of the fixtures, they are part of the freehold and cease to be goods and chattels, and therefore may not be seized as goods and chattels by the sheriff under a fl. fa. as against the owner of the fee.i And the 1 See Year Books, 21 Hen. VII., 27 (1506) ; 20 Hen. VII., 13 b (1504) ; Cro. Eliz., 374; Owen, 70; Place v. Fagg, 4 Man. & Ky., 277 (1829); s. c, 7 L. J., K. B., 195, machinery in a grist mill; Winn (or Wynne) v. Ingleby (or Ingilby), 5 B. & Aid., 625 (1822) ; s. c, 1 D. & E., 247, set-pots, ovens and ranges; Eice v. Adams, 4 Harring., 332 (1845), a steam-engine, boiler, cranes, cupola and fan erected in an establishment for manufacturing steam-engines; Ex parte Eeynal, 2 M. D. & DeG., 443, 461 (1841); Green V. Phillips, 26 Gratt., 752 (1875), machinery in a sash, door and blind factory. See, also. Steward v. Lombe, 1 B. & B., 506 (1820) ; s. c, 4 Moore, 281. [Off v. Finkelstein, 200 111., 40, 46 (1902) ; Citizens' Bank v. Crooks, 21 La. Ann., 324 (1869) ; Humphreys v. Newman, 51 Me., 40 (1863) ; Towne v. Fiske, 127 Mass., 125, 132 (1879) ; McAuliffe v. Mann, 37 Mich., 539, 542 (1877) ; Jones v. Bull, 85 Tex., 136 (1892) ; PMlion v. Bisson, 23 Low. Can. Jur., 32 (187S) ; Dixon v. Mackay, 24 Can. Law T., Occ. N., 28 (Man., 1903); see, also, Allen v. Scott, 38 Mass., 25, 28 (1838); Landell v. Harrison, 16 Phila., 85 (1882).] [The following are not subject to levy and sale as chattels: Buildings. Davis V. Eastham, 81 Ky., 116 (1883) ; Whiteman v. LeBlanc, 28 La. Ann., 430 (1876) ; Freeman v. Lynch, 8 Neb., 192 (1879) ; Lipsky v. Bergman, 52 Wis., 256 (1881) ; Bald v. Hagar, 9 Up. Can. C. P., 382, although rest- ing upon blocks. Saw-mill, grist-mill, and boiler. Tison v. Taniehill, 28 La. Ann., 793, 794; Davis v. Eastham, 81 Ky., 116 (1883). A portable engine affixed to keep it steady, although it is the intention of the land- owner to substitute another. Cross v. Barnes (1877), 46 L. J., Q. B., 479. Main driving belt. Friedly v. Giddings, 119 Fed., 438, 446 (TJ. S. C. C, 537 ♦353 THE LAW OF FIXTURES. [CHAP. X. Vt., 1902). Engines, boilers, heaters, iron smoke-stacks, electric dynamo, electric wiring, shafting and belting. Seiberling v. Miller, 106 111. App., 190 (1902), aff'd in 207 III., 443 (1904); New York Security Co. v. Sara- toga Light Co., 95 Supr. Gt. (88 Hun), 569 (N. Y., 1895). Machinery permanently attached. Willis v. Moore, 66 Tex., 628 (1886). Mining machinery, although moved from place to place over the lot as the mineral is exhausted. Eogers v. Ontario Bank, 21 Ont., 416 (1891). Steam-pipes are not subject to levy, although the radiators, with their valves, standing upon the floor, and to which the pipes are screwed, are subject to levy. National Bank v. North, 160 Pa. St., 303 (1894). An iron pier. Harriman V. Eockaway Beach Co., 5 Fed., 461 (TJ. S. Dist. Ct., N. Y., 1880). A fence. Watterson v. Bonner Co., 19 Mont., 554, 556 (1897). A statue resting upon a base placed upon a stone foundation, all cemented together constituting a solid mass, with stone coping intended by the landowner to be permanent. Oakland Cem. Co. v. Bancroft, 161 Pa. St., 197 (1894).] [Where title by occupation of public land is an interest in real estate, fixtures thereon can not be levied upon. Eoseville Min. Co. v. Iowa Gulch Co., 15 Colo., 29 (1890).] [The fact that the owner of the fee is also lessee of two-thirds of the minerals therein, does not make fixtures subject to execution. Eitchie v. McAllister, 14 Pa. Co., 267, 270 (1894).] [A creditor of the community can not seize the buildings placed by the community upon the wife's plantation separate and apart from the land of the wife. Whiteman v. LeBlanc, 28 La. Ann., 430 (1876).] [Where two railroad spike-machines were, after being attached, annexed to the realty, a subsequent levy and sale was invalid; and even if regarded as personal property, the creditor by leaving them in the possession of the debtor for two years releases his lien. McPadden v. Crawford, 36 W. Va., 671 (1892). Where articles levied upon are, with the consent of the execu- tion-creditor, attached to the freehold so as to become a part of the realty, the lien of the execution is thereby released. Patton v. Moore, 16 W. Va., 428, 439 (1880).] See, however, Burk v. Baxter, 3 Mo., 207 (1833), where, however, the stills were considered personal property. Fixtures demised with a paper-mill and used by the tenant in the manu- facture of paper, are not liable to be seized under an extent for duties upon paper owed by the tenant to the crown, as utensils for the making of paper, etc., in the custody of the maker thereof, within the statute, 34 Geo. III., c. 20, a. 27. It seems that even if the fixtures belonged to the tenant instead of the landlord, and were removable as against the landlord, they would not be ' ' utensils ' ' within the act. The articles in question were presses fixed to the ground, heaters and pipes, copper and furnace fixed in brick-work, stuff -chests moving in a groove in sleepers put in the ground from which they could not be removed without removing the sleepers and unscrewing the groove, pumps and engines, the former fixed to the latter which were fastened to the ground by beams, a wooden shoot and trunk fixed to ma- chinery attached to the ground, water-wheels, fly-wheel and pit-wheel, and 538 CHAP. X.] SALE OP FIXTURES ON EXECUTION. *354 rule is the same whether there is an actual *annexatioii, [*354] or only a constructive annexation of the article to the realty, as in the case of mill-stones, movable articles which are usually valued as between out-going and in-coming tenants.^ three engines, all which the court considered to be fixtures. Att'y Gen. v. Gibbs, 3 Y. & J., 333 (1829). In TaflEe v. Warnick, 3 Blaekf., Ill (1832), the opinion is expressed that the same rule should be applied between debtor and creditor that is applied between landlord and tenant, and this irrespective of the question whether the debtor is the owner of the real estate to which the fixture is annexed, or only a tenant; but the point does not appear to have been necessary to the decision of that case, the article in question being a carding-maehine "in no manner fastened or fixed to the building, except as it stood upon the floor in its usual place of operation ; ' ' and the dictum itself seems clearly contrary to the general current of authority, and does not appear to have been approved by any subsequent cases. See, also, Krueger v. Pierce, 37 Wis., 269 (1875), where without deter- mining whether the property in question had become a part of the realty, it was held that lath, shingles and lumber obtained by a debtor for the pur- pose of repairing the dwelling-house occupied by him as a homestead, and actually deposited upon the lot on which such dwelling was situated, were exempt from seizure on attachment. [Buildings, whether used for business or rented, upon a homestead, are exempt. Sever v. Lyons, 170 111., 395, 398 (1897) ; Stevens v. Hollings- worth, 74 111., 202, 208 (1874). Likewise, a fence. Watterson v. Bonner Co., 19 Mont, 554, 556 (1897).] [A chattel mortgage upon fixtures attached to a homestead, was at- tempted to be foreclosed in a court which had no jurisdiction in foreclosures of real estate mortgages. Held, that, the fixtures being realty, the court had no jurisdiction; and the fixtures being a part of the homestead, were not subject to conveyance except in the manner provided by statute for homesteads. Gentry v. Bowser, 2 Tex. Civ. App., 388 (1893).] [Machinery mortgaged as chattels and attached to a, homestead by the mortgagor, becomes exempt as against the mortgagee until foreclosure. Low v. Tandy, 70 Tex., 745, 749 (1888).] [A landowner can not, by a chattel mortgage of machinery attached to his homestead, give the mortgagee any rights as against the wife of the mortgagor. Phelan v. Boyd, 14 S. W., 290, 294 (Tex., 1890).] [Machinery, which is a part of the realty, can not be claimed by the judgment debtor as exempt personal property. Bradley v. Ritchie, 12 Pa. Dist., 658 (1903).] 1 Place v. Fagg {supra). [See Grant v. "Wilson, 17 Up. Can. Q. B., 144, 147.] [The following articles can not be attached or levied upon as personal property: A leather belt for transmitting power from a steam engine, the latter being real estate. Gidding v. Freedley, 128 Fed., 355 (U. S. C. C. 539 *354 THE LAW OF FIXTtmES. [CHAP. X. A., Vt., 1904). Boards in use as a permanent floor in a corn barn. Hackett v. Amsden, 57 Vt., 432, 436 (1885). See, also, Grimshawe v. Burnham, 25 Up. Can., Q. B., 147 (1865), as to mill stones seized for taxes while taken from their place for the purpose of being levelled.] In the case of the Congregational Society of Dubuque v. Fleming, 11 Iowa, 533 (1861), a bell had been used in the belfry of an old church edifice. A new building was erected with a tower for the bell, and the old building sold, the bell being reserved from the sale. The bell with the framework was removed from the old building and placed upon the lot belonging to the society where the new church was erected and immediately in front, where it remained for about a year, being used at all times when required for church purposes. Defendant having an execution against the society, made a memorandum of levy and notified one of the trustees, but did not take actual possession of the bell. About two weeks afterwards when it was advertised for sale, the church authorities raised it into the tower, but before it was fully fastened defendant took actual possession thereof and was about to remove it when replevied. Held, that the bell never ceased to be a fixture, and was not subject to levy as personal prop- erty. "The placing it in this position and this use indicate unmistakably the intention of the society to affix it to the realty, to render it a perma- nent accession to the land; to appropriate it to the purpose designed, and to divest it of its original chattel character. And though it be admitted that the mere intent to thus convert it without some act, would not be sufficient, yet the act and use indicate the intention and have the effect of changing the character. ' ' See, also. Art. 468, Civil Code La.; Beard v. Duralde, 23 La. Ann., 284 (1871). [An engine and boiler hauled into a mill-yard by the owner with the hona fide intention of attaching them to the mill, and they are necessary for the motive power, are not liable to the levy of an execution as personal property. Patton v. Moore, 16 "W. Va., 428, 439 (1880) ; likewise as to suitable materials deposited upon a, farm for the purpose and with the intention of building necessary fences thereon. Hackett v. Amsden, 57 Vt., 432, 436 (1885).] [A granary, removed by a trespasser from a homestead, does not cease to be exempt, and a judgment obtained against the trespasser may be treated as a judgment for exempt personal property. Wylie v. Grundysen, 51 Minn., 360, 362 (1892).] [A constructive severance is insufficient to render an article subject to levy as personalty. Davis v. Eastham, 81 Ky., 116, 117 (1883) ; McNeil V. Moore, 7 Tex. Civ. App., 536, 539 (1894) ; Carson v. Simpson, 25 Ont., 385 (1894).] [Where a factory was destroyed by fire, but certain machinery was saved, which, with building material upon the land, was sold by the sheriff as chattels, and were treated by all of the creditors as severed, and, later, the land being sold under decree, the vendee thereof did not interfere with the buyers at the execution sale, but recognized its validity, and an 540 CHAP. X.] SALE OF FIXTURES ON EXECUTION. *355 *What constitutes a constructive annexation has been [*355] already considered ^ and need not here be repeated. With reference to locomotive-engines, cars, and other rolling stock of railroad companies, the better opinion is, as has been already observed, that they are mere personal chattels and hence subject to sale on fi. fa. as such.^ Growing grass, trees and fruit, not being the annual produc- tion of labor and of the cultivation of the earth, are also parcel of the land and connot be seized under an execution as chat- tels until severed from the land,^ though, as has been seen in assignee of the purchaser of the land also sought to purchase such prop- erty previously sold as chattels,' such assignee, after receiving a deed, will not be permitted to claim such chattels as fixtures. BanfiU v. Twyman, 71 111. App., 253 (1896), aff'd 172 111., 123 (1898). See "Walton v. Jarvis, 14 XJp. Can. Q. B., 640; 13 Up. Can. Q. B., 616, as to the engine and boiler of a burned saw-mill.] 1 Ante, p. *33. 2 See Beardsley v. Ontario Bank, 31 Barb., 619 (1859) ; Stevens 7. Buf- falo & New York City E. E. Co., 31 Barb., 590 (1858) ; Hoyle v. Platts- burgh & Montreal E. E. Co., 54 N. Y., •14 (1873) ; s. c, 51 Barb., 45; 47 Barb., 104; Eandall v. Elwell, 52 N. Y., 521 (1873); s. c, 11 Am. Eep., 747; Chicago & N. W. Eailway Co. v. Ft. Howard, 21 Wis., 44 (1866). [Boston, C. & M. E. E. v. Gilmore, 37 N. H., 410, 421 (1858) ; Williamson V. New Jersey S. E. E. Co., 29 N. J. Eq., 311 (1878); see, also, Coe v. Columbus, P. & I. E. E. Co., 10 Ohio St., 372, 379 (1859). Eailroad cars are, for the purpose of attachment, personal property. Pub. Sts., c. 161, §§ 38, 39. Hall v. Carney, 140 Mass., 131, 132 (1885). Coal, stored in sheds, for the use of a railroad, can be levied upon as personal property. Chicago & N. W. E'y Co. v. BUson, 113 Mich., 30 (1897).] See contra, Farijiers' Loan and Trust Co. v. Hendrickson, 25 Barb., 484 (1857) ; Id. V. St. Jo., etc., E'w'y Co., 3 Dill. C. C, 412 (1875) ; Palmer v. Forbes, 23 111., 312 (1860) ; Hunt v. Bullock, 23 III., 320 (1860) ; Titus v. Mabee, 25 111., 257 (1861); Titus v. Ginheimer, 27 111., 462 (1861); see ante, p. *34, et seq. [Elizabethtown & P. E. E. Co. v. Elizabethtown, 75 Ky., 233, 238 (1876) ; Grand Trunk E'y Co. v. Eastern Townships' Bank, 16 Low. Can., 173, 175 (1865).] [A distinction is made between rolling-stock of an ordinary steam rail- way, which may be hauled to any part of the country, and a trolley-car of an electric railway, which is part of one vast machine. Kirkpatrick v. Cornwall Street E'y Co., 2 Ont. Law, 113 (App., 1901).] 3 See Bank of Lansingburgh v. Crary, 1 Barb., 542 (1847) ; Adams v. Smith, Breese, 221 (1828) ; Osborne v. Eabe, 67 111., 108 (1873), where the f,. fa. was attempted to be levied on nursery trees. [State v. Gemmill, 1 Houston, 9, 16 (Del., 1855) ; Sparrow v. Pond, 49 Minn., 412 (1892) ; Late 541 *356 THE LAW OF FIXTURES. [CHAP. X. the chapter on Emblements, it is otherwise with fructus indus- triales. As has been already stated, a creditor cannot by simply levy- ing his execution on a fixture, or by levying on the land and excepting as personal property a building or other fixture there- on belonging to the owner of the land on which it is situated, there being no actual severance, change the character of his debtor's estate and convert a part of it into personalty.* Nor can the execution debtor by parol turn out as chattels for pur- pose of levy growing grass, fruit or trees, or fixtures annexed to his land, nor without a severance, authorize the levy of exeeu- [*356] tion thereon *as chattels; and, if attempted to be done, the levy is void.^ V. McLean, 2 Nova S. Dec, 69 (1870). But see, as to nursery trees, Bat- terman v. Albright, 122 N. Y., 484 (1890).] [Grass is not open to attachment although fit for harvest. Eogers v. ElUott, 59 N. H., 201, 202 (1879).] [A growing crop of peaches requiring periodical expense, industry and attention in its yield and production, are fructus industriales, and can be levied upon. The trees are fructus naturales. State v. Fowler, 88 Md., 601, 609 (1898).] * See ante, p. *44, and notes. See, also, Pemberton v. King, 2 Dev., 376 (1830). [Off V. Finkelstein, 200 111., 40 (1902).] [When an execution creditor levies upon a fixture and takes steps to regain possession thereof as personal property, he is estopped to deny that it was personal property. Jones v. Bull, 90 Tex., 187, 194 (1896).] See Bank of Lansingburgh v. Crary, 1 Barb., 542 (1847) ; and the cases on the subject of the Statute of Frauds in the chapter on Emblements (ante, p. *268). [See Levinstein v. Born, 18 Phila., 265, 266 (1886); but see Budden & Knight, 3 Que. L. E., 273, 282 (1877).] The doctrine of the text is believed to be the better opinion, though it seems opposed to those cases collected in that chapter holding the sale by parol of trees, grass, etc., under certain circumstances not to be within the Statute. See, however, Wetherby v. Foster, 5 Vt., 136 (1832) ; Piper v. Martin, 8 Penn. St., 206 (1848) ; Mitchell v. Freedley, 10 Penn. St., 198 (1849). In the last named case it was held, that where the sheriff with the verbal consent of the owner of the land sold certain fixtures (consisting of machinery for spinning cotton yarn) under a f,. fa. as personalty, the fixtures remaining annexed after the sale, and the purchaser paid the price and took possession thereof, his title was good as against a subsequent vendee with notice, of the land before actual severance of such fixtures. The court in rendering their judgment seem to rely principally upon the fact that by the consent of the debtor to the sale as chattels on fi. fa., he bad estopped himself from asserting title. 542 CHAP. X.] SAIiE OP FIXTURES ON EXECUTION. *356 It should be remarked in concluding this section, that machin- ery in cotton and woolen-mills, or other similar manufactories, consisting of carding-machines, looms, etc., secured to the floor by cleats nailed around the feet, or by screws or bolts passing through the feet into the floor, or in other similar ways, so at- tached to keep them steady in their positions, and capable of removal without injury to themselves or the building, and which, as has been seen in a preceding chapter,^ are in some States held to be mere chattels; and also other articles which though more or less attached to the land are held to be mere chattels', are in those States also held to be subject to seizure and sale on ^. fa. as chattels, notwithstanding such annexation.'^ 8 Chap. 9, p. *294. 1 Teaff V. Hewitt, 1 Ohio St., 511 (1853) ; Murdock v. GifEord, 18 N. Y., 28 (1858) ; Sturgis v. Warren, 11 Vt., 433 (1839) ; Wetherby v. Foster, 5 Vt., 136 (1832), potash-kettles set in arches in the nsual way; Bartlett v. Wood, 32 Vt., 372 (1859), lathes, drills, punches, and saws fastened to the building; PuUam v. Stearns, 30 Vt., 443 (1859), machinery in a bedstead- manufactory and grist-mill; Hill v. Wentworth, 28 Vt., 429 (1856), ma- chinery in a paper-mill. See, also. Gale v. Ward, 14 Mass., 352 (1817) ; Taffe V. Warnick, 3 Blackf., Ill (1832) ; Tobias v. Frances, 3 Vt., 425 (1830). [Clore v. Lambert, 78 Ky., 224 (1879), an engine and machinery attached by bolts and screws, although a portion of the floor was torn up and a portion of the wall removed; Lapene v. McCan, 28 La. Ann., 749 (1876), boilers attached with brick and cement; Scheifele v. Schmitz, 42 N. J. Eq., 700 (1887), cumbersome articles in a brewery, held in position solely by their own i^jeight, or only slightly connected, as by belting; Penn Mut. Ins. Co. V. Semple, 38 N. J. Bq., 575 (1884) ; Vail v. Weaver, 132 Pa. St., 363 (1890), electric light machinery'; Carscallen v. Moodie, 15 Up. Can. Q. B., 304; Canada Sav. Co. v. Merchants' Bank, 3 Man., 285 (1886), heavy planer not affixed; see, also, Lea v. Shakespeare, 10 Mont. Co. (Pa.), 171 (1894); Ex parte Dickinson, 29 S. C, 453 (1888).] See, however, as to the point that articles so annexed are fixtures, the cases cited ante, chap. 9, p. *275. See, also, Kittredge v. Wood, 3 N. H., 506 (1826) ; Despatch Line v. Bellamy Manuf 'g Co., 12 N. H., 233 (1841) ; Baker v. Davis, 19 N. H., 334 (1849), where the case of Gale v. Ward is questioned. [McDonald v. Weeks, 8 Gr. Ch., 297 (Ont., I860).] [A ferry boat, buoys, chain, rope and all other fixtures thereto attached, are subject to levy as chattels, although the chain by which the boat is run is fastened to the boat and to an island. Cowart v. Cowart, 71 Tenn., 57 (1879).] 543 »357 THE LAW OF PIXTUEES. [CHAP. X. [*357] *II. As Against a Tenant. According to the early authorities it seems to have been the general rule that fixtures, whether annexed by the owner of the soil or by a tenant, were not subject to levy and sale on f,. fa. as chattels.^ But in the case of tenants, since the decision of Poole's Case,^ the rule has been well settled that during the term the tenant's trade fixtures removable by him as against his landlord may be levied upon and sold as chattels under a /?. fa. against the tenant,^" and may be removed by the pur- sSee Day v. Austin (or Bisbitch), Owen, 70 (1595); s. c, Cro. Eliz., 374; Year Books, 21 Hen. VII., 27 (1506) ; 20 Hen. VII., 13 b (1504). 9 1 Salk., 368 (1703) ; s. C, Holt, 65. 10 Pillow V. Love, 5 Hayw., 109 (1818) ; Lemar v. Miles, 4 Watts, 330 (1835), a steam-engine; Hey v. Bruner, 61 Penn. St., 87 (1869), a steam- engine and boiler; Heffner t. Lewis, 73 Penn. St., 302 (1873), iron rails laid on a track in a tunnel by the lessee of coal lands; Hallen v. Eunder, 1 Cr. M. & E., 275 (1834), per Parke B. See, also, Thropp's Appeal, 70 Penn. St., 395 (1872) (cited ante, p. *146) ; O'Donnell v. Hitchcock, 118 Mass., 401 (1875) ; ante, p. *15, note. [See, ante, p. *92. Freeman v. Dawson, 110 IT. S., 264, 270 (1883) ; Morey v. Hoyt, 62 Conn., 542, 558 (1893) ; Havens v. West Side Light Co., 17 N. Y. Supp., 580, 582 (1892) ; Pratt V. Keith, 5 Montg. Co. (Pa.), 113 (1889) ; Hughes v. Towers, 16 Up. Can. C. P., 287 (1865) ; Antrim v. Dobbs (1891), 30 L. E., Ire., 424, rails of a tramway over land to reach an iron mine by a lessee of the mining rights. But see State v. Marshall, 4 Mo. App., 29, 33 (1877).] Perhaps it may be thought that in strictness it ought to be said that the fixtures may be levied upon, severed and sold as chattels on a /!. fa., etc. In Minshall v. Lloyd, 2 M. & W., 450, 459 (1837), per Parke, B., it is said: ' ' The right of a tenant is only to remove during his term the fixtures he may have put up, and so make them cease to be any longer fixtures. That right of the tenant enables the sheriff to take them under a writ, for the benefit of the tenant's creditor. I assent to the doctrine laid down in Coombs v. Beaumont and Boydell v. McMichael, that such fixtures are not goods and chattels within the bankrupt law, though they are goods and chattels when made such by the tenant's severance, or for the benefit of execution creditors." In Pemberton v. King, 3 Dev., 376 (1830), it was held, that as between a tenant and his creditors an engine actually fixed to and in the soil and which could not be removed without tearing down the mason-work and house which covered it, were until severance a part of the realty; and that although the tenant might have a right to sever the fixture from the freehold, until that right was exercised by him or the ofScer the thing was merged in the soil, and a sale of it as personalty while so annexed, was void. It must be sold by the officer in the state and as the 544 CHAP. X.] SALE OF FIXTURES ON EXECUTION. *358 *chaser during the existence of the term. Indeed it may [*358] be regarded as a general rule, that all tenant's fixtures which are removable as against the landlord, whether erected for the purpose of trade or for other purposes, are in favor of execu- tion creditors of the tenant to be considered as goods and chattels. But where the tenant has no right to disannex fixtures, whether by reason of their nature or the manner of their an- nexation or on account of his having renounced the right of re- moval by contract with the landlord, the sheriff has no right to take them in execution on a fi. fa., his right being only com- mensurate with the right of the lessee.^ In like manner, where kind of property it is at the time of sale. The act- of levy worked no change in its nature. This distinction seems, however, to have been generally disregarded, and does not appear to be supported by any subsequent authorities. The real nature of the contract in such a case seems to be a sale of the right of removal only. See the eases cited in eh. 9, § 5, In re Statute of Frauds; and the cases cited at the beginning of this note. [Steers v. Daniel, 4 Fed., 587, 598 (U. S. C. C, Tenn., 1880), related to a cotton-compress weighing many tons, fixed to the soil in a most substantial manner, with deep foundations. Said Hammond, J., in de- livering the opinion of the court: "It is sometimes loosely said in the books that whatever the tenant can remove must be levied upon and sold as personal property. This may be so as to mere utensils of trade, or trade 'fixtures,' which are portable, and not seriously injured or rendered useless by severance. But not so as to structures like this. No doubt the press is valuable when severed, and can be placed on other land, but the mere cost of taking down and putting up is so great, that its value stand- ing and ready for work is far greater, and it cannot be that the debtor can be compelled to submit to a mode of levy and sale which so deteriorates his property. If so, it could be severed and sold on an execution for any small amount."] 1 Dumergue v. Eumsey, 2 H. & C, 777 (1863) ; s. C, 12 W. E., 205; 33 1. J., Exch., 88; 10 Jur. (N. S.), 155; 9 L. T. (N. S.), 775; Eex v. Topping, McClell. & Y., 544 (1825); Fisher v. Saffer, 1 B. D. Smith, 611 (1852). [Little Valeria Co. v. Lambert, 15 Colo. App., 445 (1900) ; McAuliffe v. Mann, 37 Mich., 539, 541 (1877) ; Donnewald v. Turner Co., 44 Mo. App., 350 (1891); Friedlander v. Eyder, 30 Neb., 783, 787 (1890); Barker v. Cincinnati Brick Co., 4 Ohio Dec, 270, 271 (1896) ; Harris v. Kelly, 13 Atl., 523, 527 (Pa. Super., 1888); Hammond v. Martin, 15 Tex. Civ. App., 570 (1897) ; Hughes v. Towers, 16 Up. Can. C. P., 287 (1865) ; see, also, Webster Lumber Co. v. Keystone Lumber Co., 51 W. Va., 545.] [The right to attach fixtures is lost after re-entry for non-payment of rent. Morey v. Hoyt, 62 Conn., 542, 547 (1893).] 35 545 *358 THE LAW OF FIXTURES. [CHAP. X, by the agreement of the parties a house or other structure erected upon the land of another is to be the personal property of the party erecting the same, who accordingly has the right of re- moval, such erection may be levied on and sold on a fl. fa. against the owner thereof as a chattel.^ And it is immaterial that the [An agreement that, in a certain event, the landlord shall have the privilege of taking the tenant's fixtures at a valuation, does not prevent their being taken in execution when that event has not occurred. Seitzinger V. Marsden, 2 Pennypacker, 463, 474 (Pa. Supr., 1882).] 2 Foster v. Mabe, 4 Ala., 402 (1842). See, also. State v. Bonham, 18 Ind., 231 (1862). See, however, dictum of Burrough, J., in Steward v. Lombe, 1 B. & B., 506 (1820) ; S. c, 4 Moore, 281. [Broaddus v. Smith, 121 Ala., 335, 339 (1898) ; Walton v. Wray, 54 Iowa, 531, 534 (1880) ; Hershberger v. Johnson, 37 Ore., 109 (1900) ; Letchman Chetty v. Hassan Kudus, 4 Kyshe, 675, 676 (Straits Set., 1890) ; see, also, Morey v. Hoyt, 62 Conn., 542, 551 (1893); Young v. Baxter, 55 Ind., 188, 194 (1876); Tuttle V. Merchant's Nat. Bank, 19 Mont., 11, 20 (1896) ; Dodge v. Beattie, 61 N. H., 101, 105 (1881); Wiek v. Bredin, 189 Pa. St., 83 (1899); Ad- vance Coal Co. V. Miller, 4 Pa. Dist., 352, 356 (1895) ; Haney v. MilUken, 2 Tex. Ct. of App., Civ., § 722 (1884) ; Dixon v. Mackey, 38 Can. Law J., 653 (Man., 1902). But see Thomas v. Morasco, 5 Pa. Dist., 133" (1895).] [Bails temporarily laid by contractors in building a railroad, and which belong to them, and which they are about to remove, are attachable as personal property. Pifield v. Maine Cent. K. E. Co., 62 Me., 77, 80 (1873).] [Where a fixture was left upon land by a tenant surrendering possession, under an agreement that the landlord was to undertake its sale to a person negotiating for the land, it can be levied upon by creditors of the tenalnt. Torrey v. Burnett, 38 N. J. Law, 457 (1875).] [A brick house, with granite and brick foundations, well built into the ground, which was sold independent of the land, is, as to an execution creditor, a "fixture" and a personal chattel under the Bills of Sale Ordi- nance. Mootyah Chetty v. Yacob, 4 Kyshe, 568, 569 (Straits Set., 1890).] [Machinery, buildings, fixtures, etc., which, by agreement, the tenant had a right to remove at the expiration of his term, were, during the term, properly sold as real estate. Hyatt v. Vincennes Nat. Bank, 113 TJ. S., 408 (1884); Dean v. Pyncheon, 3 Pinney, 17, 25 (Wis., 1850).] [A building erected, by consent, upon the land of another, partakes so much of the nature of realty, that the builder can not exempt it as personal property. Lawson v. S. T. Barlow Co., 21 Ky. L. E., 308, 309 (1899).] [The road-bed and rails of a street-railway company are not personal property. Hart v. Benton-Bellefontaine E'y Co., 7 Mo. App., 446 (1879). The poles, wires, rails and rolling-stock of an electric railway upon a city street, are not subject to execution. Kirkpatriek v. Cornwall Street E'y 546 CHAP. X.] SALE OF FIXTURES ON EXECUTION. *359 execution was jointly against both the owner of the land and the owner of the thing annexed thereto.* The rule applies, however, only to those cases where the tenant or other person who has made annexations to the land of another, has a power of removal coupled with an interest; and hence it was observed by Lord Holt in Poole's Case, here- inbefore cited, that the case of a sheriff's taking the tenant's fixtures in execution, or the removal thereof by the tenant himself, was not like the case of tenant for years without im- peachment of waste; for in that case the sheriff could not cut down and sell, though the tenant might, and the reason was •because in that case the tenant had only a bare power [*359] without an interest, while in the other cases mentioned he had an interest as well as a power.* "With reference to fixtures which are the property of the land- lord, but are demised to a tenant with the premises to which they 'are annexed, the sheriff, although he can not sell the articles as chattels separately from the freehold, may yet levy upon and convey the tenant's interest in such fixtures what- soever its nature.^ But where a tenant wrongfully severs fix- tures demised to him with the land to which they are annexed, such fixtures become by the severance the absolute property of the landlord, and the tenant has no right to their use dur- ing the remainder of the term; and hence they can not after such severance, be seized and sold on a f,. fa. against the tenant.* Where a sheriff has levied an execution upon a lease and fix- tures attached to the premises thereby demised, and is author- ized to sell the fixtures separately to satisfy the writ, it is his duty so to do, in case he can not sell them together with the Co., 2 Out. Law, 113 (App., 1901). But see Eeadfield Telephone Co. v. Cyr, 95 Me., 287 (1901), as to telephone poles erected in a public street under a revocable license, and the location of which was subject to change.] 3 State V. Bonham (supra). 4 See, also, Minshall v. Lloyd, 2 M. & W., 450, 460 (1837), per Alder- son, B. B See "Went. Off. Ex., 151; Gordon v. Harper, 7 Term, 11, 12 (1796). See ante, ch. 1, p. 49. sFarrant v. Thompson, 5 B. & Aid., 826 (1822) ; s. c, 2 D. & E., 1. See ante. Severance, p, *49. 547 *359 THE LAW OP FIXTURES. [CHAP. X. lease to one purchaser ; '' and if, eonceiving that the sale of the lease by his broker is fraudulent, he refuses to assign the lease, and returns that the property remains on his hands for want of buyers, he is liable in an action for a false return for the value of the fixtures which ought to have been sold separately; although had he applied to the court for time to make his return on account of the special and unforeseen circumstances of the case, the time therefor would probably have been enlarged.* 7 In the case of a dwelling-house erected by a tenant and forming a part of the leasehold estate, not being naturally divisible from the lot, it is irregular for the officer to levy on the house vrithout also levying on the lease; and unexplained such a levy will be presumed to be authorized. Conklin v. Foster, 57 111., 104 (1870). [See Dean v. Pyncheon, 3 Pinney, 17, 25 (Wis., 1850).] [It is the duty of the sheriff to levy upon both the leasehold and machinery, and sell both together, in precisely the condition the lessee has placed it; otherwise valuable machinery would be unnecessarily im- paired by severance, and so would the leasehold. It is immaterial whether the fixtures be real estate or chattels. Steers v. Daniel, 4 Fed., 587, 597 (U. S. C. C, Tenn., 1880).] [Flouring-mill machinery, which is so annexed to the realty as to be a part of it, passes under an execution sale of all the tenant's right, title and interest in and to the land, although the tenant had, by agreement, a right to remove it. McNally v. Connolly, 70 Cal., 3 (1886).] [Where a sheriff levies upon a lot and sells the same as real estate, the judgment being against the lessees of the lot, the purchaser acquires no right to machinery thereon which is not so attached as to be a part of the real estate; and as to such as is real estate, demand for delivery or pos- session must be made before the defendant's detention becomes wrongful. McNally v. Connolly, 9 Pac, 169 (Cal., 1885).] 8 Barnard v. Leigh, 1 Stark., 43 (1815). 548 CHAPTBE XI. [*360] OF THE EXEMPTION OP FIXTURES, ETC., FROM DIS- TRESS. The rule of law is well settled that things adhering to the freehold are not subject to be taken under a distress; and this rule applies equally to all fixtures, whether removable or irre- movable, whether actually or only constructively annexed, and whether erected for the purposes of trade or for other purposes.^ Chief Baron Gilbert ^ thus explains the reasons for this ex- emption: "A distress was anciently no more than a pledge in the hands of the lord, to compel the tenant to pay the service, or perform the duty for which it was taken ; and, therefore, at common law it could not be sold, but like all other pawns or pledges, was to be restored to the owner when the service or duty was performed. The nature of contracting by pawns or pledges 1 See generally Clarke v. Holford, 2 C. & K., 540 (1848) ; McGregor v. High, 21 L. T. (N. S.), 803 (1870); Gorton v. Palkner, 4 . Term, 565 (1792); Moore v. Drinkwater, 1 Post. & Fin., 134 (1858); Niblett v. Smith, 4 Term, 504 (1792) ; 1 Eoll. Abr., Dist. H, 45; Com. Dig., Dist. C; Tear Books, 20 Hen. VII., 13 b (1504); 21 Hen. VII., 26 b (1505), tables dormant; Co. Lit., 47b; Vausse v. Kussel, 2 McCord, 329 (1823), a house. [Gray v. McLennan, 3 Man., 337, 346 (1886) ; see, also. First Nat. Bank v. Adam, 138 111., 483 (1891).] Charters concerning land are not subject to be distrained. See Bro. Abr., Distress, 29; Eeplevin, 34; Brownlow, 168; Hellawell v. Eastwood, 6 Exch., 311 (1851). [See, ante, p. *230.] As to deer in a park, see Davies v. Powell, Willes, 46 (1737) ; s. c, 7 Mod., 249; Cooke, C. P., 221; Com. Dig., Distress, C. Where a broker under a warrant from a landlord authorizing him to dis- train the goods and chattels of the tenant for rent, seized a fixture which was afterwards sold and the proceeds paid to the landlord. Held, that the receipt of the proceeds did not make the landlord a trespasser, it not being shown that he was aware of the illegal seizure. Freeman v. Eosher, 18 L. J. (Q. B.), 340 (1849). 2Gilb. Dist., pp. 31, 38; Turner v. Cameron, L. E., 5 Q. B., 306, 312 (1870). 549 *361 THE LAW OF FIXTURES. [CHAP. XI. [*361] is, that upon payment of the money for *security where- of they were given, the pawn or pledge ought to be restored to the owner in the same plight and condition it was delivered." ****** "Whatever is part of the freehold cannot be distrained ; for what is part of the freehold cannot be severed from it without detriment to the thing itself in the removal ; ^ consequently, that cannot be a pledge which cannot be restored in statu quo to the owner. Besides what is fixed to the freehold is part of the thing demised; and the nature of the distress is not to resume part of the thing itself for the rent, but only the inducta et illata upon the soil or house. ' ' * The rule at the common law also extends to and exempts from the levy of a distress even fructus industriales, such as growing corn, etc.^ But as between landlord and tenant the rule in this respect has been changed by the Statute 11 Geo. II, c. 19, sec. 8, which authorized the levy of distress for arrears of rent upon all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever which shall be growing on any part of the demised estate. It is, however, held that the word "prod- uct" in said act does not extend to trees and shrubs growing in a nurseryman's ground, but is confined to products of a sim- ilar nature with those specified in that section to all which the process of becoming ripe, of being cut, gathered, made and laid up when ripe, is incidental.* 3 See Pitt V. Shew, 4 B. & Aid., 207 (1821), per Abbot, C. J.; Simpson V. Hartopp, "Willes, 515 (1744), per Willes, C. J.: "Things annexed to the freehold as furnaces, mill-stones, chimney-pieces and the like, cannot be distrained, because they cannot be taken away without doing damage to the freehold, which the law will not allow." [Articles are not distrainable if not restorable in the plight in which they were before, although removable without injury to the freehold. Howell V. Listonville Eink Co., 13 Ont., 476, 492 (1886).] < See Hellawell v. Eastwood, referred to, post in this chapter. = Pitt V. Shew, 4 B. & Aid., 208 (1821) ; 1 EoU. Abr., 666; 2 Mod., 61; 5 Ed. 2, pi. 135; 18 Ed. 3, 4; 2 Inst., 82. [See, ante, p. *264.] 6 Clark V. Gaskarth, 8 Taunt., 431 (1818); Clark v. Calvert, Id., 742 (1819). As to the distress of an away-going crop left in accordance with custom in the barns of the farm, such distress being made more than six months after the determination of the lease, see Beavan v. Delahay, 1 H. Bl., 5 (1788) ; Lewis v. Harris, Id., note (1778). 550 CHAP. XI.] DISTRESS OF FIXTURES, ETC. *362 As already remarked, things only constructively annexed to the freehold are exempt from being taken under a distress. Thus, the doors, windows, etc., of a house, are not distrainable, *though hung upon hooks and removable.'^ And in [*362] Wystow's Case of Gray's Inn,^ it was held that a mill-stone though severed from the mill by being raised to be picked, is, notwithstanding, still parcel of the mill, and so cannot be dis- trained. But a mill-stone, if it be not part of the mill ; * or if a man has two mill-stones, only one of which is in use and the other of which lies by, not used, is said to be distrainable.^*' It may, however, be stated as a general principle that fixtures disannexed for a temporary purpose only, as for the purpose of making repairs, do not become chattels, and hence are not subject to be taken under a distress. But although the fixtures of a tenant may not be distrained upon while annexed to the freehold, or while temporarily severed for repairs, yet when disannexed by the tenant or his agent, not temporarily for re- pairs, but permanently for the purpose of being sold, they be- come chattels and liable to distress.!^ 7 Said in Wystow's Case (infra). 8 14 Hen. 8, fo. 25 b, pi. 6 (1522), translated in a note to Place t. Fagg, 4 M. & E., 280; Finch, book 2, p. 135. See, also, Bro. Abr., Dist., pi. 23; 11 Co., 50; Gilb. Dist., 49; 6 Mod., 187. » Finch, book 2, p. 135. 10 Willes, 516, citing 14 H. 8 (supra). There seems to have been among the more early authorities some doubt as to whether a smith's anvil would be exempt from distress. In Wystow's Case (supra) the reporter adds a quaere " of a smith 's anvil, for it seems all one, if it be that which he uses in his trade (ceo sur que il oocupie), notwithstanding it may be off the stock." See, also, Bro. Abr., Distress, pi. 23; Ferard Fixt., 317. In Gorton v. Falkner, 4 Term, 567 (1792), Lord Kenyon, C. J., said that the anvil in the smith's shop, and the mill-stone were privileged, because they were af&xed to the freehold, and that a temporary removal of the one or the other, for the purpose stated in the argument, was not sufficient to destroy that privilege. See, also, Bradby on Distress, 214; Eeynolds v. Shuler, 5 Cow., 323, 328 (1826), per Sutherland, J.; Com. Dig., Distress, C. In JoUie & Broad's Case, 2 Eolle, 201, 202 (1620), the exemption of a mill-stone or an anvil of a smith is put upon the ground that being tools, to distrain them would be a hindrance to his trade. 11 Eeynolds v. Shuler, 5 Cow., 323 (1826). The articles in question in this case were the stills, steam-tub, cooler and worm used in carrying on the distilling business. 551 •363 THE LAW OF FIXTURES. [CHAP. XI. As to what particular fixtures have been decided not to be subject to distress, the cases are not numerous. Besides the instances already mentioned, furnaces, cauldrons or the like, [*363] *fixed to the freehold, cannot be distrained.i^ Neither can tenant's fixtures, such as kitchen ranges, register stoves, cop- pers, and grates, annexed to the freehold in the ordinary man- ner, and which the tenant might sever and remove during his term.^3 In Turner v. Cameron i* the facts were as follows : Three railways were connected with a coal mine, one being within the mine, one within the yard used for the purposes of the colliery, and a third extending through the yard and along the waste of a manor of the defendant and forming a jimetion with a pub- lic railway. These railways were laid down by the lessees of the colliery and were constructed as follows: The ground was brought to a dry and uniform surface by spreading ballast thereon. Sleepers were then laid thereon and the rails laid on and secured to the sleepers by dog-nails, after which ballast was packed under and about the sleepers to keep them dry and in position. In order to remove the rails, the nails were wrenched out or the heads knocked aside with a. bar or pick ; and to remove the sleepers the ballast about them was partly removed or loosened with a pick and the sleepers then pried out, leaving holes in the ballast. The rent being in arrear the lessor distrained, among other things, the three railways, remov- ing them as above stated; and it was held by the Court of Queen's Bench that the railways were fixtures and not subject to distress. In the case of Duck v. Braddyll,*^ in referring to the reason 12 Co. Lit., 47 b; Com. Dig., Distress, C. 13 Darby v. Harris, 1 Q. B., 895 (1841). See, also, Dalton v. Whittem, 3 Q. B., 961 (1842); Twigg v. Potts, 3 Tyrwh., 969 (1834). Some of these articles would now doubtless be considered mere furniture and not fixtures in any sense of the word. The case does not state the manner of the annexation. See ante, p. *298. [A temporary floor in a roller skating rink can not be distrained. Howell V. Listonville Eink Co., 13 Ont., 476, 492 (1886).] 14 L. E., 5 Q. B., 306 (1870) ; s. c, 39 L. J., Q. B., 125; 9 B. & B., 931; 22 L. T. (N. S.), 525; 18 W. E., 544; 24 L. T. (N. S.), 500, on a question as to costs. IB McClel., 217, 231 (1824) ; s. c, 13 Price, 455. 552 CHAP. XI.] DISTEESS OP PIXTUEES, ETC. *364 of the rule already stated, that at common law, a distress being no more than a pledge, nothing can be the subject of it which can not be restored in the same condition in which it was taken away, it was insisted that certain machines erected *in [*364] a factory by a tenant and fastened to the floor by bolts and screws only, were distrainable, because they might be removed and replaced by means of the bolts and screws without sustain- ing any injury whatever. On the other hand it was insisted, that the right to distrain did not extend to such machines, be- cause it was a general rule that chattels fixed to the freehold could not be distrained; and it was not to be confined to those cases only where the property could not be restored in statu quo; and the instance of the mill-stone was cited in support of this position. The point was not, however, passed upon by the court in that case. In Darby v. Harris, already referred to, the strict rule, as laid down by the early authorities seems to have been followed, though the true ground of the rule on this sub- ject was declared to be that the fixtures cannot be restored in their original plight. The subject again, came under considera- tion in the case of Hellawell v. Eastwood,^® where it was held, that cotton-spinning-machines called "mules," set up by a tenant on the demised premises, some of which were fixed by means of screws to the wooden floor, and some by screws which had been sunk into holes in the stone flooring, and secured by molten lead poured into them, the object of the annexation being not to im- prove the inheritance, but merely to render the machines steadier and more capable of convenient use as chattels, were not a part of the freehold and were distrainable for rent. In this case Parke, B., after referring to the observations of Lord Chief Baron Gilbert, already quoted, said: "We have, therefore, to decide whether these machines fall within either of those cate- gories, for otherwise they are not protected. They do not fall within the latter ; for upon being taken to the pound, they might be brought back without damage to themselves. They are not of a perishable nature, and would not suffer by a careful re- moval. If it were necessary to take some to pieces, in order to remove them, that circumstance would make no difference; for that might occur with chattels with respect to which there is no 16 6 Exch., 295 (1851) ; s. C, 20 L. J. Exch., 154. 553 *365 THE LAW OP FIXTURES. [CHAP. XI. question, as for instance, post-beds; they could not be carried [*365] *to the pound without being first taken to pieces; and the distrainee would have no reason to complain that they were restored to him in the disjointed state at the pound, where he must attend to receive them. It would save him the trouble of taking the bedsteads to pieces again, in order to replace them, if they had been restored entire. Nor does it make any differ- ence, that the distrainee would be obliged to incur the expense of refixing the machinery. Precisely the same objections might be made to the distress of any article which it required expense to carry back from the pound and to restore to its former posi- tion. The distrainee, at common law, must be at the trouble and expense of taking back his goods from the pound. This practical inconvenience is now obviated by the power of im- pounding on the premises. ' ' The only question, therefore, is, whether the machines when fixed were parcel of the freehold ; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations : first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integre, salve, et com- mode, or not, without injury to itself or the fabric of the build- ing; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causa, or in that of the Year Book, pur un profit del, enlierit- ance,^'' or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel." Applying the law thus stated the conclusion was arrived at that the articles in question never ceased to have the character of movable chattels, and were therefore liable to distress. This case, it will be observed, recognizes to its full extent the rule of the common law that things fixed to the freehold, and which have become a part of it, cannot be distrained; and also places the rule upon the two grounds assigned by Chief Baron Gilbert. The rule of law laid down in the. case as to the tests by which to determine whether the machines in question were [*366] fixtures, has with some qualifications been approved *in iJ 20 Hen. VII., 13. • 554 CHAP. XI.] DISTRESS OF FIXTURES, ETC. *366 subsequent cases, and does not, when taken with such qualifica- tions, differ essentially from that laid down in a previous chap- ter.i* But the correctness of the application of the law to the 18 In Holland v. Hodgson, L. E., 7 C. P., 328, 337 (1872), Blackburn, J., in referring to this case, said : ' ' The words ' merely for a temporary pur- pose* must be understood as applying to such a case as we have supposed, of the anchor dropped for the temporary purpose of mooring the ship, or the instance immediately afterwards given by Parke, B., of the carpet tacked to the floor for the purpose of keeping it stretched whilst it was there used, and not to a case such as that of a tenant who, for example, affixes a shop-counter for the purpose (in one sense temporary) of more efEectually enjoying the shop whilst he continues to sell his wares there. Subject to this observation we think that the passage in the judgment in Hellawell v. Eastwood does state the true principles, though it may be questioned if they were in that case correctly applied to the facts." See, also, the observations in this case as to the expression relating to the im- provement of the inheritance and more convenient use of the articles as chattels; also Turner v. Cameron {infra). The dictum in said case of Hellawell v. Eastwood, that such articles would not pass by a conveyance or demise of the mill may be considered as overruled. See Holland v. Hodgson {swpra), and the cases there cited. See the case commented upon generally in Longbottom v. Berry, L. E., 5 Q. B., 123, 137 (1869) ; Mather v. Praser, 2 Kay & John., 536, 549 (1856) ; Climie v. Wood, L. E., 3 Exch., 257, 261 (1868) ; s. c, 4 Id., 328; Eegina V. Lee, L. E., 1 Q. B., 244, 254 (1866) ; Barnett v. Lucas, 5 Ir. Com. Law, 145 (1870); Turner v. Cameron, L. E., 5 Q. B., 306, 312, 313 (1870). [A spinning-mule, eleven by ninety, having over four hundred spindles, and screwed to the floor of a mill, is subject to distress. ' ' Fixtures slightly attached, which the tenant may remove at his pleasure during the term, and which may be removed without destroying their character or injuring them, may be distrained. They can be restored in the same plight." Pur- bush V. Chappell, 105 Pa. St., 187, 190 (1884).] [Certain machines were distrained and taken from an ironworks. One was attached overhead; some were fastened by bolts through the floor, the flooring being taken up, and the bolts holding the machines in place were let through cross sleepers of wood sunk in the ground below; others were similarly fastened, screws being used instead of bolts. All the machines had belts which ran through pulleys connected with shafting, which was fastened to the framework overhead. Seld, that they were removable, and were removed without injury either to themselves or to the fabric of the building, and that the object of the annexation was to keep them steady; and that they were not fixtures. Cartwright v. Widemann, 9 Hawaii, 685, 689 (1892).] [A planing machine resting by its own weight and connected only by belting is a chattel and distrainable for unpaid taxes. Hope v. Cumming, 10 Up. Can. C. P., 118, 121.] 555 *366 THE LAW OF FIXTURES. [CHAP. XI. facts of the case seems open to considerable doubt,i' though it has been approved in a subsequent case.^" Whatever may be thought as to the correctness of the de- cision in the case above mentioned, the common law privilege of exemption of fixtures from distress may probably be waived by the contract of the parties in interest ; and it has been held that machinery, let with a manufactory (the property in such ma- chinery being transferred to the tenant in consideration of money), with a power to distrain on such machinery reserved by the lease, — is distrainable. And if taken and sold on execu- tion by the sheriff, he must pay to the landlord out of the pro- ceeds the unsatisfied arrears of rent due for one year or less according to the Statute 8 Anne., ch. 14. 21 19 See Holland v. Hodgson, supra, in note. 20 See Turner v. Cameron, L. E., 5 Q. B., 306, 312, 313 (1870), 21 Duck V. Bradd7ll, McClel., 217 (1824) ; s. c, 13 Price, 455. 556 CHAPTER XII. [•367] OF RIGHTS AND LIABILITIES RESPECTING LAND AS INCREASED IN VALUE BY THE ANNEXATION OP PERSONAL CHATTELS. I. Taxation in the United States. The subject of taxation, as relating to fixtures, depends so much, upon the character of the statutes under which the power is exercised, which vary according to the policy of the different States, that little more can be done in considering the subject than to call attention in the notes to the few cases wherein the subject has been discussed. With respect to the subject-matter of taxation as being realty or personalty, the terms of the statutes generally have a con- trolling influence ;i but where the subject is not controlled by statutory definitions of the terms "realty" and "personalty," or other express terms, no reason is perceived why the ordinary rules for determining the question already considered, should not be applicable to the solution of the question.^ 1 See Cooley on Taxation, 275. 2 Where the provisions of the charter under which the right of way ground of a railroad corporation was taxable, enacted that "an annual tax for State purposes shall be assessed by the Auditor upon all the property and assets of every name, kind and description belonging to said corpora- tion, " it was held, that grain ware-houses built by private individuals on said land for their own benefit, and confessedly belonging to and removable by them as personal property, did not come within the terms of such statute as property "belonging" to the corporation; and hence did not come within the exemption from taxation of the company's roadway upon which they were situated, and hence were taxable as the personal property of the persons to whom they belonged. Gilkerson v. Brown, 61 111., 486 (1871). [Elevators, owned by third parties, upon the right of way of a railroad company, are, under § 1510, Gr. S., 1894, personal property for the purpose of taxation. State v. Eed Eiver Co., 69 Minn., 131, 133 (1897), overruling 557 •367 THE LAW OF FIXTURES. [CHAP. XII. Minneapolis & N. Elevator Co. v. Clay County, 60 Minn., 522, 523 (1895).] [An exemption of the right of way of a railroad company covers the land and whatever is erected upon it necessary for the construction and operation of a railroad. New Mexico v. United States Trust Co., 172 U. S., 171 (1898) ; 174 U. S., 545, 547 (1899) ; Northern Pac. E. B. v. Garland, 5 Mont., 146 (1884) ; U. S. Trust Co. v. Territory, 8 N. Mex., 673, 693 (1896) ; contra, Territory v. Delinquent Tax List, 3 Ariz., 117, 121 (1889) ; Atlantic & P. E. E. Co. v. Lesueur, 2 Ariz., 428 (1888).] [In Commissioners of Chase County v. Shipman, 14 Kan., 532, 537 (1875), it was held that a grist mill and saw mill erected upon land of the United States which was occupied as a homestead, were exempt from taxation if the land was exempt; and that calling them personal property did not make them so; but in Crocker v. Donovan, 1 Okla., 165, 178 (1892), it was held that improvements made by a homestead entryman were taxable as personal property.] [An engine and boiler firmly affixed to the rock by bolts leaded down, and built in to a brick foundation, are exempt as part of a mining claim, although exemptions from taxation are strictly construed; but a pipe line conducting water to the mine is not exempt. Mammoth Mining Co. v. Juab County, 10 Utah, 232, 236 (1894). Likewise, a building erected on the surface, containing the machinery for crushing ore, is exempt, where the land was leased for mining, and "mines" are, by statute, exempt. Mayor of Eaglehawk v. Lady Barkly Co., 7 Aust. Law T., 72 (Vict., 1885).] [Where the charter of a cemetery company exempts its land from taxa- tion, such exemption extends to gate-houses and all permanent improve- ments as a part of the realty; and a statute requiring assessors to estimate the value of land, and separately value the improvements thereon, does not convert the improvements into personalty, but only points out the mode of ascertaining the aggregate value. Appeal Tax Ct. v. Bait. Co., 50 Md., 432 (1878); see Andrews v. Auditor, 28 Gratt., 115 (Va., 1877).] [A building erected by a lessee upon land which is exempt from taxation, is not exempt. San Francisco v. McGinn, 67 Cal., 110 (1885) ; Bussell y. New Haven, 51 Conn., 259, 261 (1883), practically overruling Osborne V. Humphrey, 7 Conn., 335, 340 (1829) ; Parker v. Eedfield, 10 Conn., 490 (1835); Burbank v. Board of Assessors, 52 La. Ann., 1506 (1900); New Orleans v. Euss, 27 La. Ann., 413 (1875) ; Lee v. New Orleans, 28 La. Ann., 426, 427 (1876) ; Philadelphia, W. & B. E. E. Co. v. Appeal Tax Ct., 50 Md., 397, 413 (1878); State v. Mission Free School, 162 Mo., 332 (1901); People v. Board of Assessors, 93 N. T., 308 (1883). In these cases the building was, during the term at least, the property of the lessee. If the building had been the property of the lessor, it is indicated that it would have been exempt as part of the land.] [A bridge, although resting upon a public highway or over a navigable river, is taxable as real estate. Alexandria Canal E. E. & Bridge Co. v. District of Columbia, 12 D. C, 217, 227 (1881); Kittery v. Portsmouth Bridge, 78 Me., 93, 97 (1886) ; Hudson Bridge Co. v. Patterson, 74 N. f ., 558 CHAP. XII.] TAXATION. *367 365, 370 (1878). A bridge resting upon stone piers belonging to the county, is not, while in the possession of a lessee, exempt. Luttrell v. Knox County, 89 Tenn., 253 (1890).] [A pier built upon city lands is properly taxed as real estate. Smith V. Mayor, 68 N. Y., 552 (1877); so, of a wharf upon a public street. People V. Commissioners of Taxes, 17 Supr. Ct. (10 Hun), 207 (N. Y., 1877). But in Percival v. Thurston County, 14 Wash., 586, a wharf on state land was, under the statute, considered personal property.] [A boom, consisting of permanent piers across a river, and logs fas- tened to the piers and shores by iron chains, is taxable as real estate. Hall V. Benton, 69 Me., 346, 347 (1879).] [An exemption of workshops includes all machinery and implementa necessary to their management. Bichmond & Danville E. E. Co. v. Ala- mance, 84 N. C, 504 (1881). Spinning machinery, while attached to a building, is exempt as an improvement on land, although the party attach- ing it has the right to remove it. Ex parte Makepeace, 31 N. C, 91 (1848).] [Conversely, the exemption of a building impliedly carries with it such grounds as may be reasonably necessary for its use. Gerke v. Purcell, 25 Ohio St., 229, 248 (1874); but see Lefevre v. Detroit, 2 Mich., 586 (1853), that an exemption of a house of public worship does not extend to the ground upon which it stands.] [Fruit trees are not exempt from taxation as "growing crops." Cottle v. Spitzer, 65 Cal., 456 (1884); nor is alfalfa; neither is it taxable as an ' ' improvement, ' ' nor can it be taxed as personal property until severed. Miller v. County of Kern, 137 Cal., 516 (1902).] Gas-pipes belonging to a gas company, laid in the streets of a city by permission of the corporate authorities, do not become the property of the city or a part of the realty, but remain the personal property of the com- pany, and are taxable as against the company, as a part of a "manufac- turing establishment. ' ' Memphis Gas-light Co. v. The State, 6 Cold., 310 (1869). See, however. Providence Gas Co. v. Thurber, 2 K. I., 15 (1851), where the gas-pipes were considered fixtures and taxable as real estate. See, also. Commonwealth v. Lowell Gas-light Co., 12 Allen, 75 (1866), where the term ' ' machinery ' ' was considered to include gas-pipes laid down in the streets, and the gas-meters. [Gas-pipes, water-mains, and hydrants in the public streets, are realty for the purpose of taxation. Colorado Fuel Co. v. Pueblo Water Co., 11 Colo. App., 352, 357 (1898) ; Capital City Gas Co. v. Charter Oak Ins. Co., 51 Iowa, 31, 35 (1879) ; Be Des Moines Water Co., 48 Iowa, 324, 331 (1878); Paris v. Norway Water Co., 85 Me., 330, 335 (1893); People V. DeWitt, 59 App. Div., 493, 494 (1901), afC'd 167 N. Y., 575, 576 (1901); People v. Martin, 55 Supr. Ct. (48 Hun), 193, 194 (N. Y., 1888); Styles V. Newport, 56 Atl., 662, 667 (Vt., 1904) ; Willard v. Pike, 59 Vt., 202, 223 (1886); Consumers Gas Co. v. Toronto, 27 Can., 453 (1897), aff'g 23 Ont. App., 551 (1896), and 26 Ont., 722 (1895) ; Sherbrooke Gas Co. v. Sherbrooke, 15 Leg. News (Montreal), 22, 30 (Ciro. Ct., Que., 1891); Be 559 *367 THE LAW OF FIXTURES. [CHAP. Xn. Hamilton Gas Co., 32 Can. Law J., 366 (Ass't Ct., Ont., 1895); see, also, Monroe Water Co. v. Frenchtown, 98 Mich., 431 (1894). This matter is very frequently statutory. Herkimer Light Co. v. Johnson, 37 App. Div., 257 (N. Y., 1899). The following cases hold that water-pipes, hydrants, gas-mains, and electric wires are assessable as personal property. Shelby- ville Water Co. v. People, 140 111., 545 (1892) ; People v. Board of Asses- sors, 39 N. Y., 81, 87 (1868) ; Saint Croix Water Co. v. Milltown, 31 N. Brunsw., 452 (1892) ; Se St. Catharines Light Co., 30 Can. Law J., 205 (Co. Ct., Out., 1894). These, also, are made so by legislation, including buildings. State v. Wharton, 115 Wis., 457, 462 (1902).] [Gas-meters placed on the premises of consumers, are personalty. Ee Hamilton Gas Co., 32 Can. Law J., 366 (Ass't Ct., Ont., 1895); but a reservoir becomes a part of the land. Saint Croix Water Co. v. Milltown, 31 N. Brunsw., 452 (1892).] [An underground pipe line for conveying crude petroleum from one state to another, is real estate, although the surface is owned and cultivated by others. Tide Water Pipe Line Co. v. Berry, 53 N. J. Law, 212 (1890); State V. Berry, 52 N. J. Law, 308 (1890).] [Where mains, standpipes, and hydrants are considered realty, the ques- tion arises whether they are to be assessed as a part of the main works, or should they be assessed where situated. In Iowa it is held that they are a part of the main works, although the latter are located upon leased ground, the lessees having the right to remove all of their property at the end of the term, the term being long and the buildings substantial. Oska- loosa Water Co. v. Board of Equalization, 84 Iowa, 407 (1892) ; Capital City Gas Co. v. Charter Oak Ins. Co., 51 Iowa, 31, 35 (1879); Se Des Moines Water Co., 48 Iowa, 324, 331 (1878). But the following cases hold that such property should be taxed where situated. Dover v. Maine Water Co., 90 Me., 180, 182 (1897) ; Calgary v. Calgary Gas Co., 2 N. W. Ter., 86 (1897), afC'g, in part. Be Calgary Gas Co., 16 Can. Law T., Occ. N., 235 (N. W. Ter., 1896) ; Be Calgary Waterworks Co., 31 Can. Law J., 310 (N. W. Ter., 1895), where the decision was influenced by the provisions of an ordinance. See, also, Calgary v. Calgary Gas Co., 2 N. W. Ter.; 165 (1898).] [Where pipes have been taxed as personal property, and the tax upon the lot upon which is situated the gas-works, has been paid, the assessment upon the pipes can not afterwards be treated as an assessment upon the lot, and the lot sold for non-payment of taxes. Capital City Gas Co. v. Charter Oak Ins. Co., 51 Iowa, 31, 35 (1879).] [Pipes, lamp-posts, and meters are not exempt from taxation as "ma- chinery," as they manufacture nothing. Covington Gas-Light Co. v. Cov- ington, 84 Ky., 94, 98 (1886) ; Dudley v. Jamaica Pond Corp., 100 Mass., 183, 184 (1868) ; Consolidated Co. v. Baltimore, 62 Md., 588 (1884) ; Se Calgary Waterworks Co., 31 Can. Law J., 310 (N. W. Ter., 1895). But in Be Consumers' Gas Co., 30 Can. Law J., 157 (Co. Ct., Ont., 1893), it was held that gas mains in the public highways are assessable as ' ' machinery, ' ' forming a part of the plant, or as realty, and are not exempt because the 560 CHAP. XII.] TAXATION. *367 highways are. The tanks and machinery fqr making gas are exempt as "machinery in manufactories." Covington Gas-Light Co. v. Covington, 84 Ky., 94 (1886).] [A portable saw-mill, which is moved from place to place, is not taxable as "machinery employed in any branch of manufactures" and "situated or employed" in its temporary location. Ingram v. Cowles, 150 Mass., 155 (1889).] T. owned a steam saw and grist-mill situated on and attached to the land of B. After assessment to T. for taxes, T. sold the mill to W. On a bill filed by W. to enjoin the collection of the tax on the ground that the mill was a fixture and as such its value was included in the assessment of the land, held, that the mill was personalty; and that, if assessed with the land and not as personalty, and no taxes were due, the plaintiff's remedy was in law and not in equity. Witherspoon v. Nickels, 27 Ark., 332 (1871). See, also, Patterson v. Delaware Co. (infra) ; People v. Cassity, 46 N. Y., 46, 49 (1871). [The following cases hold that buildings and other structures erected by a lessee, or by a licensee having the right of removal, are not taxable as realty. McGee v. Salem, 149 Mass., 238 (1889) ; John T. Dyer Company's App., 21 Pa. Co., 442 (1898) ; East Tenn., V. & G. E'y Co. v. Morristown, 35 S. W., 771, 774 (Tenn. Ch., 1895), where the term was ninety-nine years; Clove Spring Iron Works v. Cone, 56 Vt., 603, 608 (1884) ; Carter v. Tyler County, 45 W. Va., 806, 808 (1899) ; Wilson v. Youst, 43 W. Va., 826, 834 (1897). The last two cases related to machinery of oil-wells, which is regulated by statute.] [The following eases hold that buildings, machinery, and fixtures, owned by a lessee or by a licensee, are taxable as realty. Union Compress Co. v. State, 64 Ark., 136 (1897) ; Eussell v. New Haven, 51 Conn., 259, 262 (1883) ; Foxcroft v. Straw, 86 Me., 76 (1893) ; Flax Pond Water Co. v. Lynn, 147 Mass., 31, 33 (1888) ; Milligan v. Drury, 130 Mass., 428, 430 (1881), a building resting upon timbers laid upon the top of the ground expressly for the purpose of removal; People v. Commissioners of Taxes, 80 N. Y., 573, 575 (1880); Ex ■parte Makepeace, 31 N. C, 91 (1848); West Virginia, C. & P. B. E. Co. v. Melntire, 44 W. Va., 210, 212 (1897), governed by the Code.] [A statute providing that grain elevators upon railroad lines shall be taxed as personal property, refers to structures not owned by the railroad company. Chicago, M. & St. P. E'y Co. v. County of Houston, 38 Minn., 531 (1888).] [Greenhouses built by a tenant are "erections and structural improve- ments" in the sense of the Valuation Act, 1854. Gilchrist v. Lanarkshire Assessor (1898), 35 Scot. Law Sep., 663.] In People v. Cassity, 46 N. Y., 46 (1871), the term "land" used in the statute, was considered to include such an interest in real estate, though less than a fee, as will protect the erection or afiixing thereon, and the possession of buildings and fixtures, and that such buildings and fixtures were liable to assessment as the lands of whomsoever has that interest in 36 561 *367 THE LAW OF FIXTURES. [CHAP. XII. the real estate and owns and possesses the fixtures. The property in ques- tion was the track of a street railway company laid down in a highway where the company had not the fee, but the written consent of the owners of the adjoining lands, giving the exclusive right to use the land occupied by the company for the passage of their teams and vehicles during the chartered existence of the company. The statute in question (1 E. S., 360, §§ 1, 2) provided that "all lands * * * within this State whether owned by individuals or corporations, shall be liable tq taxation * * *. " "The term 'land' * * * shall be construed to include the land itself, and all buildings and all other articles erected upon or aflSxed to the same * * *; and the terms 'real estate' and 'real property' * * * shall be construed as having the same meaning as the term 'land' thus defined." The fixtures in this case would seem to have been properly considered as realty on the same principle that tenant's fixtures are so considered during annexation. See, also, New Haven v. Fair Haven, 38 Conn., 422 (1871), and the cases cited in the next section. [See Hughes v. Tail, 57 Vt., 41, 44 (1885); Eureka Min. Co. v. Ferry County, 28 Wash., 250, 258 (1902).] [The rails, poles, wires, bridges, power-house, and cars of an electric street railway are taxable as real estate. Newark & Hackensack Co. v. North Arlington, 65 N. J. Law, 150, 151 (1900) ; New York Guaranty Co. V. Tacoma E'y Co., 93 Fed., 51 (XJ. S. C. C. A., Wash., 1899); Be London E'y Co., 27 Ont. App., 83 (1900); Be Toronto E'y Co., 25 Ont. App., 135 (1898), reversing 33 Can. Law J., 75 (Ass't Ct., Ont., 1896); Be Bell Telephone Co., 37 Can. Law J., 851 (Ass't Ct., Ont., 1901). So, as to the tracks, stations, stairways, superstructures, viaducts, piers, foun- dations, tunnels, substructures and masonry of a railroad above or under a city street. People v. Commissioners of Taxes, 101 N. Y., 322, 325 (1886), reversing 30 Supr. Ct. (23 Hun), 687 (1881) ; People v. Com- missioners of Taxes, 82 N. Y., 459, 463 (1880), aff'g 26 Supr. Ct. (19 Hun), 460, 461 (1879). So, as to the wires, poles, switchboards, instru- ments and attachments of a telegraph or telephone line located upon the public land. Western Union T. Co. v. State, 56 Tenn., 509 (1876) ; Bell Telephone Co. v. Ascot, 16 Que., C. S., 436, 443 (1899) ; Be New West- minster Telephone Co., 32 Can. Law J., 490 (Br. Col., 1896) ; Bell Tele- phone Co. V. Winchester, 31 Can. Law J., 667, 669 (1895) ; Be Canadian Pac. E. Tel. Co., 34 Can. Law J., 789 (Ass't Ct., Ont., 1898).] [Contra. The track, poles and wires of a street railway are not asses- sable as realty. State v. Anderson, 90 Wis., 550, 567 (1895) ; Toronto Street E'y Co. v. Fleming, 37 Up. Can., Q. B., 116 (1875), reversing 35 Up. Can., Q. B., 264 (1874).] [Poles erected upon city streets and private lots under license revoc- able at any time, the owner of the poles having no easement in the high- ways, and wires thereon issuing out of a building, are personal property, and not taxable as real property, although they may remain for an indefinite period. Newport Co. v. Assessors, 19 E. I., 632, 638 (1896). A switchboard is not a fixture. Be New Westminster Telephoae Co., 33 Can. lim J., 490 (Br, Col., 1895),] 562 CHAP. XII.] TAXATION. *367 [As in the case of mains and pipes, supra, the point has arisen whether street railway track, bridges, poles, wire and ears, when treated as realty for the purpose of taxation, should be assessed as a whole, or apportioned to each ward through which the railway runs. The latter view is taken in Be London E'y Co., 27 Ont. App., 83 (1900), and Ee Bell Telephone Co., 37 Can. Law J., 851 (Ass't Ct., Ont., 1901).] [Another question which has engaged the attention of the courts is whether street railway track is liable to assessment for pubUe improve- ments. This is very largely dependent upon the wording of the statute authorizing such assessments. In Koons v. Lucas, 52 Iowa, 177, 181 (1879), it was held that a street railway line should not bear any part of the expense, the statute providing that the tax should be levied upon "parcels of land fronting on such highways." See State v. District Court of Eamsey County, 31 Minn., 354 (1884). But in Cicero & Proviso S. R. Co. V. Chicago, 176 111., 501 (1898), it was held that street railway track must bear its just proportion of the cost of the construction of a sewer, in the same manner and to the same extent as any real estate, al- though Chapter 120, Section 15 of the statutes provides that street rail- way track shall be assessed as personal property for general taxation, as that chapter has no bearing upon special assessments upon contiguous property for local improvements under another chapter. Likewise the right of way, road-bed and depots of a railroad are liable to special assessment. Commissioners of Chatham County v. Seaboard Air Line E'y Co., 133 N. C, 216 (1903). See Northern Ind. E. E. Co. v. Connelly, 10 Ohio St., 159 (1859).] [The rails, sleepers, bridges, fences, buildings, fixtures, and all struc- tures upon a railroad right of way are real estate for the purpose of taxation. New Mexico v. United States Trust Co., 174 U. S., 545, 551 (1899); State v. Hannibal, &c., E. E. Co., 135 Mo., 618, 646 (1896); Providence & W. E. E. Co. v. Wright, 2 E. I., 459, 462 (1853) ; likewise, a private railroad track. Mitchell v. Township of Lake, 126 Mich., 367 372 (1901). This is frequently a matter of statutory regulation. Union Trust Co. V. Weber, 96 111., 346, 350 (1880) ; Ohio & Miss. .E. E. Co. v. Weber, 96 111., 443, 448 (1880); Missouri, K. & T. E'y Co. v. Miami County, 73 Pac, 103, 105 (Kan., 1903).] [The bridges and other structures of a turnpike company, having an easement over the land, are assessable as real property. Be President of Albany & B. Eoad, 94 App. Div., 509 (N. Y., 1904).] [Where a statute provides that real property shall be assessed only in the odd numbered years, buildings erected by a landowner during an even numbered year, and which are real property, cannot be taxed as personal property, although it results in such property escaping taxation altogether during that year. Eichards v. Wapello County, 48 Iowa, 507, 508 (1878).] [As a general rule, houses, fixed and stationary machinery, and other structures are a part of the land for the purpose of taxation, Peoria, 563 *367 THE LAW OF FIXTURES. [CHAP. XH. D. & E. K'y Co. V. Goar, 118 111., 134, 1S8 (1886); Hecksher v. Sheafer, 1 Cent., 928 (Pa., 1886).] [Whatever is a part of the realty is taxed as such. Newland v. Baker, 26 Kan., 341, 345 (1881); Tremont Mills v. Lowell, 163 Mass., 283, 286 (1895) ; see, also, Irvin v. N. O., St. L. & Chi. E. E. Co., 94 111., 105, 113 (1879).] . ["Property" in a statute relating to special assessments for adjacent improvements, means the land and buildings thereon. Mound City Con- struction Co. V. Macgurn, 97 Mo. App., 403 (1902).] [The rule to be applied is to be decided by principles no less rigid ■ than those which would be applied to a question of fixtures arising be- tween vendor and vendee; hence, where the owner of land annexes ma- chinery essential to his business, it is taxable as realty. People v. Wal- dron, 26 App. Div., 527 (N. Y., 1898).] [Machinery in water-works is real estate for the purpose of taxation. He Des Moines Water Co., 48 Iowa, 324, 331 (1878) ; likewise, engines, boiler, dynamos and machinery in a power-house of an electric street-railway. Detroit United E'y v. Board of Commissioners, 98 N. W., 997, 999 (Mich., 1904).] [The Lands Valuation (Scotland) Act, 1854, see. 42, provides that "lands and heritages" shall extend to and include all machinery "fixed or attached." Held, under that section, that machinery attached by the proprietor of a foundry in order that it may be used permanently, and where the building has been specially adapted to its use, and would re- quire to be altered if removed, is a part of the land, although it can be separated without injury; but machinery not affixed is not part of the land. The law applicable in questions between heir and executor, and not that between landlord and tenant, seems to govern. Steam ham- mers bolted to logs are a part of the realty, where the logs are let into a specially prepared concrete foundation, although the bolts do not pass into the concrete; but cranes running upon rails are not. Dundee Assessor V. Carmichael, (1902), 39 Scot. Law Eep., 573).] [Boilers, engines, derricks, tanks, boiler-houses, store-houses and tank- houses erected for temporary use, and moved from time to time as the business of drilling for oil requires, are not taxable as real estate. Mellon V. Allegheny County, 3 Pa. Dist., 422 (1894).] [Mill machinery is taxable as personal property. Hamilton Mfg. Co. V. Lowell, 69 N. E., 1080 (Mass., 1904) ; so, as to a dynamo and svritch- board under the statute. Newport Co. v. Assessors, 19 E. I., 632, 636 (1896).] [Machinery, although so attached as to be a part of the realty be- tween grantor and grantee, lessor and lessee, is taxable as personal prop- erty at common law. The doctrine of fixtures, as between vendor and vendee, lessor and lessee, mortgagor and mortgagee, though recognized in Maryland as to these parties, has never been imported into the law of taxation. Commissioners of Anne Arundel County v. Baltimore Sugar Co., 58 Atl., 211, 212 (Md., 1904).] 564 CHAP. Xn.] TAXATION. *368 *E[owever, it has been held in Connecticut in the case [*368] of Sprague v. Lisbon/ that under a statute providing that "mills" shall be taxable, the machinery therein contained is taxable as a part of the mill whether realty or personalty, and notwithstanding the fact that the owner thereof is a non-resident of *the State. In Pennsylvania, where the criterion of [*369] physical annexation has been abandoned, where a cotton-factory was assessed as "square of ground, factory and machinery," (the whole being assessed as real estate) and a tax levied on the valuation for county purposes, it was held that both under the general terms of the statute, and as a part of a "mill," the machinery was properly assessed as real estate.^ [All permanent fixtures are a part of the land at common law; but it is competent for a legislature, unless restricted by the State or Federal Constitution, to declare every species of property personal for the pur- pose of taxation, and authorize the person purchasing at a tax-sale thereof, to detach and remove trees, crops, or even windows and doors. Where a statute makes it the duty of an assessor to list steam-engines as personal property, it will be presumed that he did not value them in assessing the real estate. Johnson v. Eoberts, 102 111., 655, 659 (1882).] ['Where the lessees of a "store" covenanted to pay all taxes levied thereon, they are bound to pay the tax upon the land under the store. Hooper f. Parnsworth, 128 Mass., 487, 488 (1880).] [Where an act in regard to assessing taxes upon the property of a rail- road company, names "side tracks" as a distinct property, without other designation or definition, it necessarily implies the land to which it is attached is to be included. "The ties and rails are attached to the land and a severance would destroy the side tracks. Moreover, side tracks are built upon a bed of earth, generally filled up even with the rails. Gen- erally speaking, the land is almost valueless without the track, and the track without the land is only valuable in the worth of the rails and ties." State v. Hannibal, &c., E. E. Co., 135 Mo., 618, 645 (1896).] [For the purpose of taxation, nursery-stock owned by the land-owner, is a part of the realty. Wilson v. Cass .County, 69 Iowa, 147 (1886).] 130 Conn., 18 (1861). See Farrar v. Stackpole, ante, p. *17. 2 Patterson v. Delaware Co., 70 Pa. St., 381 (1872). The statute re- ferred to (Act of April 29, 1844, § 32), provides that "all real estate, to wit, houses, lots of grounds, ground-rents, mills and manufactories of all kinds, furnaces, forges, bloomeries, distilleries, malt-houses, breweries, vine-yards, fisheries, ferries, wharves, and all other real estate not exempt hy law from taxation, shall be valued and assessed for all State and county purposes. ' ' [Under Act of 15th of April, 1834, § 4, providing that "manufactories of all descriptions" shall be subject to assessment as real estate, ma- 565 *369 THE LAW OF FIXTUEES. [CHAP. XII. The subject has also been somewhat considered with refer- ence to the rolling-stock, etc., of railroad corporations. As re- spects the taxation of corporations, special rules are generally prescribed by statute; but "where railroad property is taxed as other property is, the personalty should be assessed to the company at the place of its business office; that being the legal situs of its personalty. " ^ As to whether such rolling-stock is realty or personalty, there is much conflict of opinion. The subject has already been somewhat considered in a preceding chapter ; * and, as respects the taxation of that species of prop- erty, in the absence of statutory regulations on the subject either expressly or by fair implication defining its status, the better opinion seems to be that it should be taxable as personal prop- erty.^ It is, however, competent for the legislature to fix its status either as being realty or personalty.^ chinery affixed to the premises by a lessee is taxable as real estate. Lu- zerne County V. Galland, 3 Luz. Leg. Eeg. E., 11 (1884) ; but machinery used for printing and publishing a newspaper is not a "manufactory"; and if it belongs to a tenant it is not taxable as real estate. Wilkes- Barre Times v. Wilkes-Barre, 10 Pa. Dist., 691 (1901).] 3 Cooley on. Taxation, 273, and cases there cited. iAnte p. *34. 5 See Eandall v. Elwell, 52 N. Y., 521 (1873); s. c, 11 Amer. Eep., 747; Sangamon, etc. E. E. Co. v. Morgan, 14 111., 163 (1852); Pacific E. E. Co. V. Cass Co., 53 Mo., 17 (1873) ; Orange & Alexandria E. E. Co. V. Alexandria, 17 Gratt., 176 (1867) ; City of Dubuque v. Illinois Central E. E., 39 Iowa, 56, 86 (1874), and cases therein cited. See, also, ante, chap. 1, p. *34. [Philadelphia, W. & B. E. E. Co. v. Appeal Tax Ct., 50 Md., 397, 416 (1878); Appeal Tax Ct. v. Nor. Cent. R'y Co., 50 Md., 417, 420 (1878) ; Appeal Tax Ct. v. Pullman P. C. Co., 50 Md., 452, 457 (1878) ; Eicker v. American Loan & Trust Co., 140 Mass., 346, 349 (1885) ; Detroit v. Wayne Circuit Judge, 127 Mich., 604, 606 (1901) ; Salt Lake County V. Board of Equalization, 18 Utah, 172, 176 (1898). Contra. Cincinnati, N. 0. & T. P. E. E. Co. v. Commonwealth, 81 Ky., 492, 503 (1883); Louisville & N. E. E. Co. v. State, 64 Tenn., 663, 802 (1875).] [Pullman sleeping cars are personal property, and, under the statute, should be reported by the companies operating them, without regard to ownership. Carlisle v. Pullman P. C. Co., 8 Colo., 320, 324 (1885).] "See Louisville and N. A. E. E. Co. v. The State, 25 Ind., 177 (1865); Bangor & P. E. E. Co. v. Harris, 21 Me., 533 (1842) ; Cumberland Marine Railway v. Portland, 37 Me., 444 (1854) ; State v. Severance, 55 Mo., 378 (1874); Binney's Case, 2 Bland. Ch., 146 (1829); Maus v. Logansport, P. & B. E. E., 27 III., 77 (1862), where the statute in question was con- 566 CHAP. XU.J POOR RATES. *370 *Irrespective, however, of the question whether an an- [*370] nexation to the land is a parcel of the realty or personal in its nature, the election on the part of the taxing power to consider it as real estate involves the necessity of treating it as such throughout all the process of the collection of the tax.^ II. Poor Rates, etc. The Statute 43 Eliz., ch. 2, § 1 {anno 1601), entitled "An Act for the Relief of the Poor," enacts that competent sums, to be levied for the purposes in said Act specified, shall be raised by taxation of every occupier of lands, houses, tithes impropriate, etc., in the parish. In the construction of this Statute it is to be observed that this poor rate is not considered a tax upon the land, but a personal charge in respect of the land ; * and the occupier is ratable by whatever tenure he holds.^ sidered by the use of the terms "fixed and stationary personal property" with reference to the stations and track, to be intended to create a species of personal property not before known to the law, for the non-pay- ment of taxes upon which the collector might levy upon the rails and re- move them from the track for the purpose of selling them. Eolling-stock may by legislative enactment be made realty for certain specified purposes only, in which case it remains in other respects personalty. Chicago & N. W. E'w'y Co. V. Ft. Howard, 21 Wis., 44 (1866). [See Ledoux v. LaBee, 83 Fed., 761, 765 (U. S. C. C, S. Dak., 1897).] [In Illinois, rolling stock is personal property by statute. Ohio & Miss. E. E. Co. V. Weber, 96 111., 443, 448 (1880); Union Trust Co. v. Weber, 96 111., 346, 350 (1880).] [Locomotives and cars are not taxable as "appendages" to a railroad. State Treas. v. Somerville & B. E. E. Co., 28 N. J. Law, 21, 26 (1859).] ' Flanders v. Cross, 10 Gush., 514 (1852), where it was held, that a house owned by a non-resident of the State and standing upon the land of another by his permission, which house was assessed to such non-resident as real estate and advertised for sale as such, could not subsequently be sold by the collector as personal property. Such house, moreover, if personalty, would not be taxable where it was situated, but at the resi- dence of the owner. [But see Tunica County v. Tate, 78 Miss., 294, 299 (1900).] 8Eowls V. Gells, Cowp., 453 (1776). 9 Bute (Lord) v. Grindall, 1 Term, 343 (1786) ; Eex v. Bell, 7 Id., 598 (1798). 567 *371 THE LAW OF FIXTURES. [CHAP. XH. [*371] *As to what constitutes an "oeeupier of land" within the meaning of the statute, there is more difficulty. This ques- tion has arisen in relation to a variety of different annexations or quasi annexations to the soil, which will, so far as they seem relevant to the subjects treated of in this volume, be here con- sidered. It is settled by a series of cases, that reservoirs for contain- ing water, and pipes laid in the ground for conveying water or gas, from the use of which profit is derived to the proprietors, are comprehended within the legal description of land for which such proprietors are ratable as occupiers in the parish in which such articles are located; and this notwithstanding the owner- ship of the soil itself, in which they are situated, may be in other persons, the title of the land being, as we have seen, entirely immaterial ; ^^ and notwithstanding also the fact that "If a disseisor obtain possession of land, he is ratable as the oeeupier of it." Lord Kenyon, in Bex v. Bell. It seems settled, however, that in order to constitute an occupancy under the Statute, something more than a mere easement or license (the possession of the land remaining in another) is requisite. The occupation or possession should be an exclusive one. Eex v. Trent & Mersey Naviga- tion Co., 4 B. & C, 57 (1825) ; Eex v. Mersey & Irwell Navigation Co., 9 B. & C, 95 (1829) ; Eeg. v. Morrish, 32 L. J., M. C, 245 (1863) ; s. C, 10 Jur. (N. S.), 71; Watkins v. Milton-next-Gravesend, L. E., 3 Q. B., 350 (1868) ; Grant v. Oxford Local Board, L. E., 4 Q. B., 9 (1868). See, also, Cory v. Church Wardens of Greenwich, L. E., 7 C. P., 499 (1872). See, however, Cory v. Bristow, L. E., 1 C. P. D., 54 (1875), reversing s. c, L. E., 10 C. P., 504; 44 L. J., M. C, 153, [afdrmed by the House of Lords (1877), 10 Cox Mag., 572. In this case payment was made for the privilege, and was an interest, not a mere license.] 10 Eex V. Bath, 14 East 609 (1811) ; Eex v. Eochdale Co., 1 M. & S., 634 (1813) ; Eeg. v. East London Water-works Co., 18 Q. B., 705 (1852) ; s. C, 21 L. J., M. C, 174; Eex v. Chelsea Water-works Co., 5 B. & Ad., 156 (1833) ; Eeg. v. West Middlesex Water-works, 1 Ell. & Ell., 716 (1859) ; Eex V. Brighton Gas Light Co., 5 B. & C, 466 (1826) ; s. c, 8 D. & E., 308; Eegina v. East London Water-works Co., 21 L. J., M. C, 174 (1852) ; Talargoch Mining Co. v. St. Asaph Union, L. E., 3 Q. B., 478 (1868), a water-course partly open, partly tunneled, and party conducted in pipes. See, also. Providence Gas Co. v. Thurber, 2 E. I., 15 (1851). [Edin- burgh Water Co. v. Hay (1854), Paterson (Scotch App.), 304; Municipal Council of Sydney v. Australian Gaslight Co., 3 N. S. W. St. E., 66 (1903) ; Municipal Council of Sydney v. Sydney Power Co., 3 N. S. W. St. E., 87 (1903).] 568 CHAP. XII.] POOR RATES. *372 •another person is ratable for the occupancy of the sur- [*372] face of the land over the pipes.^^ In like manner an electric telegraph company is liable to be rated as an occupier of land in respect of' its wires and posts placed along the line and on the land of a railway company; and this notwithstanding the latter may require their removal to a more convenient place, which only shows that the company are strictly tenants at will of the soil occupied by them.^^ So, also, as to a tramway company in But where the act (32 Geo. 3, c. 69) authorized a rate upon the tenants and occupiers of all messuages, houses, warehouses, etc., and other build- ings, gardens or garden-grounds, and other tenements, without using the word ' ' land ' ' used in the Stat, of Eliz., it was held, that under this act, the trunks, pipes, etc., for supplying water, did not constitute a tenement. Kex V. Manchester & Salford Water-works Co., 1 B. & C, 630 (1823). See, also, Eeg. v. East London Water-works Co., 21 L. J., M. C, 49 (1851) ; s. C, nom., East London Water-works Co. v. Mile End, Old Town, 17 Q. B., 512; Eex v. Mosley, 2 B. & C, 226 (1823). But in a similar case where after the enumerated subjects of the rate the word "heredita- ments" was used, followed by an exception as to "meadow and pasture ground, ' ' the exception was regarded as showing that the word ' ' heredi- taments" was used in its larger sense, and the mains, pipes, etc., were held ratable. Eex v. Shrewsbury, 3 B. & Ad., 216 (1832). See, also, Sheffield United Gas Light Co. v. Sheffield, 4 B. & S., 135 (1863); s. c, 9 Jur. (N. S.), 623; Eex v. Birmingham Gas Light Co., 1 B. & C, 506 (1823); s. c, 2 D. & E., 735; Eex v. Birmingham & Stafleordshire Gas Light Co., 6 A. & E., 634 (1837) ; S. C, 1 N. & P., 691; Eeg. v. Cambridge Gas Light Co., 8 A. & E., 73 (1838) ; s. c, 3 N. & P., 262; Eeg. v. Midland Eailway Co., L. E., 10 Q. B., 389 (1875), and eases therein cited. The corpora- tions in these cases had the exclusive right of occupancy by act of Parlia- ment. Perhaps it would be more correct to say that the corporations in these cases were the occupiers of the land filled by the pipes, though the form of expression in the text is often used in the cases. See Eex v. Chelsea Water-works, 5 B. & Ad., 156 (1833) ; Eeg. v. West Middlesex Water- works, 1 Ell. & Ell.,. 716 (1859) ; Eeg. v. Southwark & Vauxhall Water Co., 6 E. & B., 1008, 1014 (1856), per Wightman and Erie, JJ. [Where, ^3J statute, a township board had the exclusive right to lay gas-mains within the township, which they were required to keep in re- pair, and the owner of gas works supplied gas to the public through these mains, making the connection between the mains and the premises of consumers, held, that the township board and not the owner of the gas- works were the occupiers of the gas-mains. Southport v. Ormskirk Com. [1894], 1 Q. B., 196, aff'g [1893] 2 Q. B., 468.] 11 Eex V. Chelsea Water-works, 5 B. & Ad., 156 (1833). 12 Electric Telegraph Co. v. Salford, 11 Exeh., 181 (1855); Eeg. v. 569 *373 THE LAW OF FIXTURES. [cHAP. XII. respect of its tramway or track.i^ So, moorings fixed to the bed of the river, described as being "two large fan-shaped screws secured, to the soil," and connected together by means of two chains, are, it seems, so attached to that part of the soil, that if a person is the occupier of the moorings he will be occupier of the soil and ratable therefor.^* So, where a per- son established and maintained a pier formed of two barges, [*373] *one of which always floated and was connected by a platform with another which floated at high water, but at low water rested on blocks fixed in the bed of the river for that pur- pose, the barges being kept in their places by iron cables fastened to iron anchors permanently placed in the bed of the river, and by an iron chain from the barge nearest the shore to an iron staple fixed in stone steps or stair^ abutting on a public street, the first barge being connected with said stairs by a platform not fixed but removed every night; the pier being solely eon- trolled by the person maintaining it and permanently kept and used for embarking in and landing from steamboats, it was held, that the person maintaining such pier was an occupier of land by the use made of the blocks, the stairs for holding the staples and of the iron anchors in the bed of the river.i^ North Staffordshire Ewy. Co., 3 Ell. & Ell., 392 (1860). See, also, Eeg. V. East London Water-works Co., 21 L. J., M. C, 174 (1852) ; Cory v. Bristow, L. K., 1 C. P. D., 54 (1875) ; Bex v. Trent & Mersey Naviga- tion Co., and other eases cited ante, p. *370. [So, as to telephone wires and attachments upon buildings owned by others, although the attachments were easily removed, and were occa- sionally changed from one point to another. Lancashire Telephone Co. V. Overseers (1884), 14 Q. B. D., 267, afC'g 13 Q. B. D., 700.] 13 Pimlieo Tramway Co. v. Greenwich, L. E., 9 Q. B., 9 (1873) ; s. C, 43 L. J., M. C, 29. See, also, Eex v. Bell, 7 Term, 598 (1798), rail or wagon ways; Eex v. Granville, 9 B. & C, 188 (1829), a railway in a colliery; Eeg. v. Midland Eailway Co., L. E., 10 Q. B., 389 (1875), and cases therein cited. "Watkins v. Milton-next-Gravesend, L. E., 3 Q. B., 350, 355 (1868), per Blackburn, J. The case was decided on the ground that there was not an occupancy but only a mere license. See, also, Cory v. Bristow, 44 L. J., M. C, 153 (1375); s. c, L. E., 10 C. P., 504 (1875).; L. E., 1 C. P. D., 54 [aff'd (1877) 2 App. Cas., 262.] 15 Forrest v. Greenwich, 8 Ell. & Bl., 890 (1858), following Eegina v. Leith, 1 Ell. & Bl., 121 (1852). See Eegina v. Morrison, cited post. [Where pontoons were moored in an excavated basin, shackled to piles 570 CHAP. XII.] POOR RATES. *374 On the other hand, however, it is held that the use of anchors and stones to moor a floating derrick for loading and unloading coal, which could be hauled on board by the machinery on the derrick, and were merely dropped into the river, no force being used for the purpose of fastening them, but only a small portion of ballast being removed from the bed of the river to enable the stones to lie flat to avoid injuring other vessels, does not con- stitute an occupation of lands so as to render the possessors of the derrick liable to be rated in respect of these moorings.^* All this statement amounts to is that the derrick is anchored at the spot where she floats. It is not like an immovable thing that is susceptible of occupation ; the derrick in such case is fastened to things which are accessories to herself, and which are movable things, whether silted over or not, and which constitute no more an occupation of any portion of the river than would the anchor of any other *vessel.i'^ In Regina v. Morrison,^* the [*374] tenants and occupiers of a ship-yard on the bank of a tidal river constructed a floating-dock for use in the repairing of vessels, driven into the earth, connected with the shore by gangways, and used for repairing ships, held, that the occupation of the land was enhanced by reason of such pontoons being used in connection therewith, although the pontoons could be removed without much trouble, but had only towed away once in several years, for the purpose of being repaired. Tyne Pon- toons Co. V. Tynemouth Union (1897), 76 Law T. E., 782.] 18 Cory V. Church Wardens of Greenwich, L. E., 7 C. P., 499 (1872). See, also, Cory v. Bristow, L. E., 1 G. P. D., 54 (1875) ; s. c, L. H., 10 C. P., 504; 44 L. J. M. C. 153, where the moorings were permanent. 1' Per Willes, J., in Cory v. Church "Wardens of Greenwich (supra). See, also, Grant v. Oxford Local Board, L. E., 4 Q. B., 9 (1868). In Grant V. Oxford Local Board, supra, Hayes, J., said: "I think the cases have gone quite far enough in deciding that things which are substantially chattels are ratable as real property. This boat is a chattel, and it would certainly be a strong thing to say that it could be rated as real property, such as a tenement or an hereditament, unless there is a clear case of oc- cupation, an occupation of something which is firmly and permanently aflSxed or attached to the soil itself." The boat in question was a barge possessed by the University Boat Club, moored to two posts fixed in the soil, by means of two iron rings attached to the barge and passing loosely round the posts. The case went off on the point that there was no proof of exclusive enjoyment of the posts. isl Ell. & BI., 150 (1852). [See Manchester, S. & L. E'y Co. v. Kings- ton-upon-HuU (1896), 75 Law T. Sep., 127.] 571 *375 THE LAW OF FKTUEES. [CHAP. XH. which dock floated at high water and grounded at low water upon the bed of the river, and was towed into deeper or shal- lower water as required in the course of getting vessels in course of repairs in and out of the said dock. The workmen passed to the said dock by a gangway, the ends of which rested respective- ly on the floating-dock and building-yard, such gangway being secured to the floating-dock by a rope passing through a staple in the gang-way and tied to the floating-dock. The floating- dock itself was moored to the bed of the river by chains attached to anchors or posts in the bed of the river, and also by chains passing round posts in the building-yard, each of which might easily be cast off or slackened. In order to use the floating-dock a license was necessary, and the harbor master had power to remove it when necessary for the convenience of the harbor. Upon this state of facts it was held, that the floating-dock per se was neither properly ratable under the Statute 43 Eliz., nor was it an accessory to the yard and ratable with it, as enhancing its ratable value. It was likened by Lord Campbell, C. J., to the case of a ship at anchor which occasionally grounds when the tide ebbs, and which might be approached either by a boat or a plank; and the decisions (hereinafter referred to) respect- ing machinery and other fixtures enhancing the ratable [*375] *value of realty, were considered as inapplicable. This ease is to be distinguished from Regina v. Leith and Forest v. Greenwich, already cited, in that the piers in those eases were permanently fixed to the landing-place, and the one could not be used without the other. Although the occupation of mere chattels per se does not come within the Statute,^ still it is stated that lands and houses are to be rated according to their annual value, although that value may be in part derived from the annexation of personal chattels.^ This doctrine was thus stated by Lord Denman, C. J., in Regina v. Guest: ^ "Real property ought to be rated ac- iSee Eeg. v. North StaffordsMre E'w'y Co., 3 Ell. & Ell., 392, 405 (1860), and eases cited post in this chapter. 2 See Eerard Eixt., 258. See, also, Stat. 6 & 7 Wm. 4, c. 96, §§ 1, 3. 8 7 Ad. & E., 951 (1838) ; s. c, 2 N. & P., 663; W. W. & D., 651. The articles in question in this case (which seems to have been ruled on the authority of the case next cited infra) were engines and machinery of 572 CHAP. Xn.] POOR BATES. *375 cording to its actual value, as combined with the machinery at- tached to it, without considering whether the machinery be real or personal property, so as to be liable to distress or seizure imder a fieri facias, or whether it would descend to the heir or executor, or belong, at the expiration of a lease, to landlord or tenant." "Such machinery" (as was observed by the same learned judge in Rex v. Birmingham & Staffordshire Gas Light Co., already cited) "constitutes a mode of occupying; * * * and even where the machine has not been attached, a house has been held ratable in respect of it, if the value of the house was increased by the machine. ' ' * The rule above quoted from Regina v. Guest, has been approved in a number of subs'e- tenants, wMch were attached to frames serving as foundations by means of keys and jibs so as to be tightened, slackened or removed at pleasure. In Eex V. Birmingham & Staffordshire Gas Light Co., 6 Ad. & E., 634 (1837), the steam-engines and machinery were for manufacturing purposes and were affixed to the houses or buildings. * See, also, Staley v. Castleton, 33 L. J., M. C, 178, 182 (1864) ; s. C, 5 B. & S., 505, per Blackburn, J. This statement, however is question- able. See the following pages. [Things on the premises for the purpose of making and'which do make them fit as premises for the particular purposes for which they are used, whether attached to the soil or not, are to be taken into account in ascer- taining the ratable value of such premises. Crockett v. Northampton (1902), 72 L. J., K. B., 320.] [Under 58 and 59 Vict., cap. 41, greenhouses, erected by a tenant, al- though removable as against his landlord, should be valued as land. Gil- christ V. Assessor for Lanarkshire (1898), 25 Sess. Gas., 4th Ser., 589.] [Machines attached by bolts to specially prepared foundations are "fixed and attached" within Section 42 of the Valuation (Scotland) Act of 1854; but machines resting by weight alone, and traveling cranes run- ning upon rails bolted to wooden beams fixed to the walls, are not "fixed or attached." Dundee v. Carmichael (1902), 4 Sess. Cas., 5th Ser., 525.J [See. 42 of 17 and 18 Vict., c. 91, provides that all machinery fixed or attached to lands should be considered as lands, and valued accord- ingly. Held, that while the mere fact of annexation alone would not make machinery realty for the purpose of valuation, yet the rules that apply between landlord and tenant did not apply, nor was the fact that machinery could be removed without injury conclusive; but steam engines bolted to a foundation for quasi-permanent use to a building specially adapted to their use, and whose removal would require alteration of the building unless replaced by engines of precisely the same size and shape, must be valued as land. Cowan v. Assessors for Midlothian (1894), 21 Sess. Cas., 4th Ser., 812.] 573 *376 THE LAW OF FIXTURES. [CHAP. XH. quent cases.^ From the terms made use of in some of the [*376] *cases, it might be inferred that in order to make a chat- tel subject to a rate upon land and houses it is immaterial whether or not it is actually afSxed to the premises subject to the rate, provided the value of the premises is increased by it. Some of the cases material to this question will be here re- ferred to. 5Eeg. V. The Southampton Dock Co., 14 Q. B., 587 (1850); Eeg. v. Haslam, 17 Q. B., 220 (1851). In Eeg. V. The Southampton Dock Co., cranes, steam-engines, shears, derricks, dolphins, and other like ponderous machinery, attached to the freehold and essential to the business of a dock company, but capable of being detached as easily and with as little injury to the freehold as other fixtures put up for the purpose of the tenant's trade, and usually valued between incoming and outgoing tenant, were held not to be allowable de- ductions from the amount at which the ratable value of the property was In Eeg. V. Haslam, the articles in question were chambers used in the manufacture of sulphuric acid. These chambers were made of sheet lead, were 13 feet high, 13 wide and from 40 to 60 long, and weighed several tons each. They rested on and were supported by frame-work on foun- dation walls filled with sand, were attached to the frame-work by leaden rivets, and were united with the rest of the works constituting a part of the freehold by lead pipes which might be removed at pleasure by with- drawing them from the chambers after removing the rivets which in the case of some of the pipes fastened them to the frame-work. When these pipes were withdrawn the chambers rested on the ground by their mere weight. The court without determining whether or not they were annexed to the freehold, held that being used as a part of the fixed machinery of the works, and necessarily attached to the other buildings for the pur- pose of being so used, though capable perhaps of being removed without injury to the other buildings, they were properly considered as increasing the ratable value of the buildings. See, also, Eeg. v. North Staffordshire Ewy. Co., 3 Ell. & Ell., 392 (1860). [Things which make the premises fit as premises for the particular purpose for which they are used, are to be taken into account in ascer- taining the ratable value of such premises. Machines in a boiler works, whether resting by their own weight, or attached to keep them steady, and although personal property, are to be taken into account as enhancing the value of the hereditament. Tyne Boiler Co. v. Longbenton (1886), 18 Q. B. D., 81, afE'g (1886) 17 Q. B. D., 651.] [The rule in Ireland differs from that in England under the Poor Laws Acts; and, under 15 & 16 Vict., C. 63, machinery in no way connected with the building and with the water power of the mill, ought not to be assessed, Eegina v. Bainbridge Union (1855), 7 Ir, Jur., 332,] 574 CHAP. XII.] POOR RATES. *377 In Rex. V. St. Nicholas, Gloucester,® the facts were as follows : A machine was erected in a street leading by a house, for the purpose of weighing wagons, carts, etc., the steelyard part of said machine being always situated in said house which was called the "machine-house." The house independent of the machine was worth 51. per annum, and the profits of the machine about 40J. per annum. The house was rated thus : ' ' The mayor and burgesses of Gloucester for the machine-house, 241., 11. 16s. ' ' The Sessions held that the profits of the machine were not ratable, and amended the rate to 5L only; but in the Court of King's Bench, the order of the Sessions was quashed, and the original rate held proper. Lord Mansfield observing *that [*377] though the case did not sufficiently explain whether the machine or steelyard was annexed to the freehold, yet the nature of the thing supplied the place of an explanation; it must from the very nature of, it be annexed to the freehold; it was stated to be the machine-house, and the steelyard was the most valuable part of the house ; and that the house was built for the machine, not the machine for the house. Willis and Butler, JJ., concurred, observing that the house being called the "machine-house" was evidently one entire thing. In this case the machine was clearly annexed to the realty, and the court seem to rely on that fact as furnishing a ground for their judgment The case of Rex v. Hogg,'' has been supposed to be an au- thority for the rule that things let with a house under the same demise and yielding a profit are ratable whether affixed or not.* In this ease a building called ' ' The Engine-house, ' ' consisting of a bay of building about eighteen feet long and nineteen feet wide, in which was a machine or engine for carding cotton, was rented, together with the engine, as one entire subject, and was rated to the relief of the poor as ' ' The Engine-house. ' ' The building, independent of the machine, was worth only two guineas per annum. The building and the machine together were rated at 36L The engine was generally worked by water, 6 1 Term, 723, note (1783) ; s. c, Cald., 262. 7 1 Term, 721 (1783) ; s. C, Cald., 662. s This case approaches nearer to the point than any other that has been discovered. In the other eases referred to the articles enhancing the ratable value were more or less attached to the realty, 575 *378 THE LAW OF FIXTURES. [CHAP. XII. but frequently by hand. The building was not a dwellinghouse, nor was it erected for the purpose of receiving the engine, but was formerly used for the purpose of turning bobbins and as a weaver's shop. The engine was not fixed to the floor, but the case did not state that it was not otherwise, fastened, though it did state that it could be moved at pleasure and carried out and worked in any other place, either by water or manual labor, and was not adapted to any particular building. The ease was considered not to be distinguishable from that of St. Nicholas, Gloucester, and the rating sustained. In this case BuUer, J., [*378] expressed the opinion that personal prop*erty was ratable; and both Buller and Grose, JJ., thought the rate good, as both the house and the engine were let together under one lease as an entirety. Grose, J., further observed: "Suppose the owner of a tenement, which unfurnished would let only for a trifling rent, fitted it up as a malt-house and put a malt- mill into it and then let the whole together; the whole must be estimated together as any other leasehold property accord- ing to its value." Ashurst, J., however, seems to have regarded the question of annexation as a material one, for he said: "It is only stated that it is not fixed to the floor; but it may be fixed to the walls of the building without being fixed to the floor. And considering the nature of the thing, it must be so; for it is stated that the engine is worked by water, and the force of the water would displace it if it were not fastened to the building. We cannot take any facts that do not appear on the case, as it is now returned; and it is not stated negatively that the engine is not fixed to the house. At all events part of the subject is ratable; and the rate is on the house itself; and if the thing itself be ratable, the quantum of it is not for our consideration, but for that of the justices below." The true ground of these cases seems to be that the carding-engine and weighing-machine being demised together with the house as an entirety, were each considered as part and parcel of a building and were rated as such ; 9 and the engine seems to have been fixed in some way, though it is not so stated in the ease. 9 See Eex v. Bilston, 5 B. & C, 851, 853 (1826), per Bailey, J. See. however. Hex v. Birmingham & Staffordshire Gas Light Co. (ante), per Lord Denman. 576 CHAP. XII.] POOR RATES. *379 Where the machinery is annexed to the realty in such a man- ner as to constitute a fixture, (whether removable or irremov- able) , or in other words, as to have lost to some extent its char- acter as a mere chattel, it seems clear that the premises ought to be rated in accordance with their value as enhanced by such combination.!" But the better opinion seems to be, *al- [*379] though as has been seen there are some cases and dicta which seem to support the contrary doctrine, that the profits arising from a mere movable, personal chattel not attached to the premises, ought not to be included in a rate professedly raised upon lands and houses only.ii In the eases hereinbefore cited, except perhaps the case of Rex v. Hogg, the articles in 10 See tie cases already cited ante; also, Eex v. Granville, 9 B. & C, 188 (1829), where tlie lessee of a coal mine, being the occupier, was held liable to be rated for the improved annual value caused by the erection of a steam-engine and railway for working the mine; Keg. v. North Staf- fordshire E'w'y Co., 3 Ell. & Ell., 392 (1860). [Laing v. Bishopwear- month (1878), 3 Q. B. D., 299, 306; see, also, Chalmers (1871), 11 Mae- pherson (Scot.), 983.] ■ See, also, Staley v. Castleton, 33 L. J., M. C, 178, 182 (1864), per Blackburn, J.; Brown v. Granville, 10 Bing., 69 (1833). In this case a watching and lighting act authorized a rate upon the occupiers of houses, shops, sheds, etc., and other buildings and tenements. A rate was im- posed in respect of several buildings or engine-houses with the engines affixed to them, which were used for the convenient working of a coal mine. Held, that the engine-houses and the engines affixed thereto were ratable as being included under the term "shed," or, if not within that, then within the term "other buildings." The case was distinguished from Eex v. Bilston, hereinafter referred to, in that the buildings in question were not a mere adjunct of machinery, but were made a substan- tial subject of the rate imposed by the act which differed in its terms from the Stat. 43, EUz. "See Ferard Fixt, 262; Eeg. v. Lee, L. E., 1 Q. B., 241 (1866); S. C, 7 B. & S., 188; 35 L. J., M. C, 105; 12 Jur., (N. S.), 225; Eeg. v. North Staffordshire E'w'y Co., 3 Ell. & Ell., 392 (1860); s. c, 30, L. J., M. C, 68; 7 Jur. (N. S.), 363; Harter v. Salford, 34 L. J., M. C, 206, 208 (1865) ; s. c, 6 B. & S., 591, per Crompton, J. [See Municipal Council of Sydney v. AustraUan Gaslight Co., 3 N. S. "W. St. E., 66 (1903) ; Munic- ipal Council of Sydney v. Sydney Power Co., 3 N. S. W. St. E., 87 (1903).] [In Chidley v. Churchwardens of West Ham. (1874), 32 L. T. Eep., 486, tanks forming the roofs of three houses, boiling backs, refrigerator, water-heater, mash-tuns, pumps, under-backs, wash-backs, reservoir and distilling apparatus were held not to be rated to the poor rate as part 37 577 »380 THE LAW. OF FIXTURES. [CHAP. XII. question seem to have been annexed ^^ to the realty. Some other cases on the subject will now be mentioned. In Regina v. The North Staffordshire Railway Co., where this subject was considered, the Company in addition to its stock had been obliged to provide turn-tables, cranes, weighing-machines, stationary steam-engines, lathes, electric-telegraph apparatus, qffice and station furniture and gas-works for supplying the station with gas. The turn-tables and some of the weighing- machines were affixed to the freehold by means of an iron rod inserted in a large stone sunk in the land. The lathes and steam- engines were connected by means of iron bolts with the build- [*380] ings in which they *were placed. The telegraph ap- paratus consisted (1), of posts driven into the ground; (2), of wires passing through sockets annexed to the posts, but which wires might be disconnected from the posts without injuring or displacing them; and (3), of the electrifying machines which were in no way affixed to the freehold. The gas-works consisted partly of buildings and partly of gasometers, retorts, and the other usual plant for making gas; and of the pipes for convey- ing the same from the works to the railway stations. The other weighing machines, which were all used for the purposes of traffic along the line, and the office and station furniture were unconnected with the freehold. The question to be determined was whether the railway company was entitled to a deduction in respect to the additional amount of capital invested in the articles above described, or upon any and what portion of such items. The judgment of the court was delivered by CockbTirn, C. J., who divided the said articles into three classes, and dis- posed of the same as follows: "First, things movable, such as office and station furniture; secondly, things so attached to the of the premises. The articles were not attached to the premises except by weight, by pipes or by screws, and could be easily removed, and are all known in the trade and sold both as new and as second hand.] 12 In Eegina v. Haslam, 17 Q. B., 224 (1851), the case found that the chambers were "attached" to the freehold, but not "affixed thereto." [' ' Colridge, J. — This question seems to be one of fact. Patterson, J. — I do not know what is meant by ' attached ' to the freehold, but not ' af- fixed. ' Whether they are really let into the land or not, would be a ques- tion of fact; whether they would go to the heir or executor, would be a point of law."] 578 CHAP» XII.] POOK RATES. *381 freehold as to become part of it; and, thirdly, things which, though capable of being removed, are yet so far attached as that it is intended that they shall remain permanently connected with the railway or the premises used with it, and remain perman- ent appendages to it as essential to its working. It is clear that, in respect of the first class of articles, a deduction should be allowed. It is equally clear that no deduction should be allowed as to the second. As to the third, the question is finally settled by the decision of this coiirt in the case of Regina v. Southamp- ton Dock Co., 14 Q. B., 587." ^ In the case last cited the articles in question were conceded to be fixtures; and from the forego- ing description of the articles comprised in the third class, these articles also are believed to be fixtures, and hence to partake during annexation to some extent of the character of the realty, though, if erected by a tenant, they would undoubtedly for some purposes and in favor of some persons be considered as per- sonalty. *In Eegina v. Lee, already referred to, the subject [*381] again came under consideration in the Court of Queen's Bench, and it was held that, on assessing gas-works to the poor-rate, in ascertaining the gross estimated rental a deduction ought to be allowed in respect to the cost of the meters, which belonged to the gas company, but were connected with the service-pipes by solder, and by means of those pipes with the company's mains, they being mere chattels; but that no deductions ought to be allowed in respect of (1.) Eetorts in which the coals were carbonized, and which consisted of circular pieces of clay to which the heat was ap- plied, and also the arches containing them, the pipes which permit the gas to ascend from them, the iron faces of them andl the pipes over the arches, conveying the gas from them through the purifiers to the tanks where it was received by the gas-hold- ers, notwithstanding the whole of these parts were distinct and severable from the fioor and not attached to it by mortar or cement, but only packed in fire-clay to hold them in place ; such retorts being considered not as removable fixtures, but as fixtures so connected with the freehold as to have become parcel of it. (2.) Purifiers, which were massive iron vessels standing on a lAnte p. *375. 579 *382 THE LAW OF FIXTURES. [CHAP. XU. brick base but not fixed thereto, but connected on the sides by means of screw-bolts fastened into the plates of the purifier, with pipes passing through the soil and connecting with the retorts, tanks and gas-holders. (3.) Steam-engines used for driving the machinery, fastened by screw-bolts to a stone base fixed in the soil. (4.) Boilers set in brick- work fixed in the soil. (5.) Gas-holders, which. were hollow cylindrical vessels of plate iron open at the bottom, but covered at the top, rising and falling by means of iron columns and pulleys into circular tanks sunk in the ground, into which the gas passed through purifiers from the retorts. (6.) Trade-fixtures, such as pumps and exhausters, which were fixed to the freehold, but which would be removable as tenant's fixtures. The articles specified in the last five classes were considered by Cockburn, C. J., in rendering his judg- [*382] *ment, to fall within the principle of the cases of Regina v. Southampton Dock Co., and Regina v. North Staffordshire Railway Co., hereinbefore referred to, and the classification of the articles in question in the last-mentioned case was approved and applied to this. The court in rendering their judgment in this case place their decision apparently also upon the same satisfactory grounds as are applicable to ordinary cases of fix- tures, that is, upon the existence of an intention to make the an- nexation a permanent improvement of the inheritance; and thereby place this branch of the law of fixtures upon a more satisfactory basis than it seemed to occupy theretofore. The case of Walmsley v. Milne,^ was approved and applied, as fur- nishing a principle applicable to the decision of the case. Blackburn, J., referring to this case and that of Hellawell v. Eastwood,^ said: "The idea is throughout the same — if the things are annexed, though but slightly, with a view to the enhancement of the inheritance and the permanent improvement of it, they may be considered as part of it for which a hypo- thetical tenant would be considered ratable. Now, applying that rule to the present case, though I was inclined at first to take an opposite view as to some of these articles, they are all 17 C. B. (N. S.), 115 (1859); s. c, 29 L. J. (0. P.), 97. 2 6 Exch., 295 (1851); 20 L. J. Exch., 154. 580 CHAP. XII.] POOR BATES. *383 with the exception of the meters, attached to the premises, al- though but slightly ; nevertheless I think it is clear they all are in fact attached to the premises, and equally clear they all are in fact attached to the premises with the view of enhancing the benefit of the premises, so as to come within the principle laid down in the cases I have mentioned. The meters stand on a different footing. They are chattels themselves, except so far as they are attached to the houses in which they are put up. They are attached to the houses by a pipe which comes in through the wall and is fastened to the meter. If the meter was attached to the house so as to render it part of the hoiise to improve it, then it would become fixed property. But, in fact, it is obvious that the meters are kept as the company's meters, to be used as their chattels for meas*uring the [*383] gas, and were never intended to be for the benefit of the house to which they are attached at all; they are not part of the inheritance of the company, and cannot be said to be so. Mr. White endeavored in his argument to make out that a meter occupies part of the space of a house, and therefore the com- pany did by the meter occupy part of the house. That is not so. Although the meter is firmly fixed to the house, steadied by being fixed, that does not make the company the occupier of any portion of the house; any more than a person who has hired out or let a chattel which is not fixed to the house but enjoyed as a chattel. For these reasons I think the meters are properly matters of deduction, and the rest are not." The rule hereinbefore laid down has been considered to be subject to this limitation, that where the principal subject- matter is not liable to be rated, neither is anything liable that is annexed thereto, and which is accessory to such principal subject-matter.* It was accordingly held in Rex v. Bilston* that a steam-engine erected solely for the purpose of drawing water from an iron-stone mine (which was by statute exempt from rate), and which was of no other use, was also exempt. This doctrine so far as it applies to the case of mines, is to be taken with some limitation; and the case of Rex v. Bilstbn has been criticised in subsequent eases, and its doctrine con- 3 Ferard Fixt., 264. 4 5 B. & C, 851 (1826) ; s. c, 8 D. & B., 734. 581 *384 THE LAW OF FIXTURES. [CHAP. XH. siderably restricted, if not overruled. The eases agree that if the engine in that case was actually part and parcel of the mine which was exempt, it would be exempt also; and it seems that the case, if now supportable at all, must be upon the ground that the engine was in fact a part and parcel of the mine.^ But it seems to be settled that where the surface, with that which has been erected or constructed upon it, is essential to the working of the mine, and where as such it would have a value as surface land distinguishable and distinguished from [*384] *the mine itself, such surface land and the buildings erected upon it are liable to the poor rate and ought therefore to be assessed.* And it was accordingly held in said case of Guest V. East Dean, that the appellant, who was owner of iron mines (non-ratable) and who rented two and one-half acres of surface land partly over and partly adjoining the mines, and occupied both mines and surface together using the surface for the purpose of working the mines and getting ore, and who had erected thereon buildings, engines, boilers, machinery, tram- ways, etc., which were used solely for and were necessary to the use of the mines and which without the mines would be practically valueless, was ratable in respect of such surface lands, buildings, machinery, tramways, etc., though occupied with a non-ratable subject-matter.^ III. Parochial Settlements. It was enacted by the Statute, 13 and 14 Car. II., c. 12, § 1 {anno, 1662), that within forty days after any poor person came to settle in a tenement under the yearly value of 101., two justices of the peace might remove such person or persons, if likely to become chargeable to the parish he or they should BSee Guest v. East Dean, L. E., 7 Q. B., 334 (1872;) Talargoch Mining Co. V. St. Asaph Union, L. E., 3 Q. B., 478 (1868) ; Kittow v. Liskeard TTnion, 44 L. J., M. C, 23 (1874). See, also. Brown v. Granville, 10 Bing., 69 (1833), ante p. *379, note; Eex v. Granville, 9 B. & C, 188 (1829). 6 Guest V. Bast Dean {supra), per Cockburn, C. J. 7 See, also, Talargoch Mining Co. v. St. Asaph Union {supra) ; Keg. v. Metropolitan Board of Works, L. E., 4 Q. B., 26 (1868). 582 CHAP. XII.] POOR RATES. *385 come to inhabit, to the parish where he or they were last legally settled, in default of their giving sufficient security, etc. By the statute, 3 & 4 W. & M., c. 11, § 6 {anno, 1691), persons charged with and paying their shares towards the pub- lie taxes or levies of the town or parish, gained settlements. By the Statute 35 Geo. III., e. 101, § 4 (1795), the tenement in respect of which the taxes were paid, must be of the yearly value of lOi.* *In questions respecting the right to a settlement un- [*385] der these statutes, it is sometimes the case that the value of the land taken separately from the annexations thereon will fall below the sum prescribed by statute as necessary to confer a settlement, but if taken in connection therewith it will suffice for that purpose. In such cases it obviously becomes a very material inquiry whether the value of such annexations is to be included in the calculation of the requisite sum or rejected therefrom. The eases where this subject has been considered wiU be here referred to. In Eex V. Londonthorpe,® the pauper rented a tenement at the yearly rent of 61. in which he resided nearly three years. During the greater part of that time he also rented a piece of waste ground at the yearly rent of 10s. 6d., upon which he had the privilege of building a post-wind-mill, and which he was to be at liberty to remove at pleasure. He accordingly built upon the waste ground a post-wind-mill at an expense of 1201. constructed upon cross traces laid upon brick pillars, but not 8 See, also, 59 Geo. III., c. 50; 6 Geo. IV., C. 57, § 2; 1 Will. IV., c. 18, §§ 1, 2. The various statutes on this subject will be found referred to in 4 Fisher's Com. Law Dig., p. 6767. 6 Term, 377 (1795). See Eex v. Minworth, 2 East, 198 (1802). A contract for a standing-place in another's mill for a carding-machine (the party's own property) which was fastened to the floor and roof for the purpose of being worked by the steam-engine of the mill, for which the party was to pay 201. per year, each to give the other three months' notice to quit, is not the taking of a tenement, but merely a contract for liberty to stand and work the machine in a room of the mill, and therefore confers no settlement. See Eex v. Mellor, 2 Bast, 189 (1802) ; Eex v. Dodderhill, 8 Term, 449 (1800) ; Eex v. Tardebigg, 1 East, 528 (1801) ; Eex V. Hammersmith, 8 Term, 450 (1796) ; Eobinson v. Learoyd, 7 M. & W., 48 (1840). 583 *386 THE LAW OP FIXTURES. [CHAP. XH. attached or affixed thereto, which was the usual mode of build- ing mills of that nature. He let the mill for a quarter of a year at the rate of 91. per annum and during this time resided in the tenement of the rent of 61. per annum. He afterwards sold the mill as a chattel interest, and it was removed by the purchaser without any interruption by the landlord; no rates were ever paid or demanded for the mill, or the ground on which it stood. The question was whether the pauper by liv- ing upon his tenement of 61. a year, and renting the piece of land at 10s. 6d. and afterwards building and working the mill for the time aforesaid and letting the same for a part of the [*386] *term as above stated, was to be considered as holding lOJ. a year and to have gained a settlement in respect thereof. It was argued in support of the proposition that a settlement was gained by the pauper's renting a tenement of 101. a year, that he first rented 61. per annum, then 10s. 6d., then 91. per an- num, the last being the sum for which the mill was afterwards let by the tenant himself. This, it was contended, might be con- sidered to be the taking of a tenement of 101. per annum on the same principle on which it had been held that the rent- ing of a rabbit-warren,!" or a land sale colliery,ii is the taking of a tenement, where in the one case the value of the tabbits, and in the other the value of the horses, gins, ropes, and other chattels merely for working the mines was added to make up the amount required. But Lord Kenyon in delivering the judg- ment of the court observed: "This wind-mill, as described in the case, is nothing but a chattel. And if in questions of this kind we were merely to consider the ability of the pauper, without at the same time considering whether he rented a tenement, we should abandon the statute altogether and the decisions upon it. It might as well be said that an iron malt- mill would give a settlement. This post-wind-mill was the sole property of the tenant himself; and it was not fixed in the ground, but detached from it. But in order to confer a settle- ment it should be so connected with the land as, in legal contem- plation, to fall within the description of a tenement." Grose, 10 Kinver v. Stone, 1 Str., 678 (1726) ; Eex v. Piddletrenthide, 3 Term, 772 (1790). "Eex V. North Bedburn, 2 Conset's Bott, 155. 584 CHAP. Xn.] POOR RATES. *387 J., ill the same ease observed: "It is no more a tenement than a large coffee-mill put up by the tenant in his house. "^^ The ease of Rex v. Londonthorpe, was followed in Rex v. Otley.i* In this case a pauper rented a wind-mill, a brick cot- *tage, and a small garden, at a rent of £30 per annum, [*387] for over six years, and during that time held, occupied, and actually paid for the same the said sum of £30 per annum, and was rated to and paid several rates for the relief of the poor in respect of the cottage and garden, and also of the mill, at the estimated value of 61. per annum. The cottage and garden with the mill were together of more than the annual value of 101., but the cottage and garden, exclusive of the mill, were not of that annual value. The mill was of wood, of a circu- lar form and had a brick foundation; but the wood- work was not inserted in the brick foundation, but rested on it by its weight alone. No part of the machinery touched the ground or the foundation, and the mill would work on the ground as well as on the brick foundation. Upon these facts it was held on the authority of the preceding ease, that the mill not being affixed to the freehold nor to anything connected therewith, was not parcel of a tenement, and, therefore, the pauper gained no settlement. Whatever may be thought as to the correctness of the prin- ciple of annexation applied in these two cases, they are very clearly authorities for the rule, that in order to confer a settle- ment, the property by which the value of the tenement is en- hanced and made equal to the annual value of 101., must be so annexed to the realty as to become a parcel of the tenement, or in other words it must be a fixture, as distinguished from a mere personal chattel. In Rex V. St. Dunston,i* the question arose under the Statutes 3 & 4 W. & M., c. 11, s. 6, and 35 Geo. III., c. 101, § 4, herein- before referred to. In this case a landlord demised to a tenant a house and fixtures in the parish of St. Dunstan at an annual 12 No reference is made by the court to the agreement as to the removal of the mill in this case, but the case seems to have been decided on the sole ground that there was no annexation to the land. See ante, chap 3. isi B. & Ad., 161 (1830). See, also, Wansbrough v. Maton, 4 Ad. & E., 884 (1836). "4 B & C, 686 (1825). 585 *388 THE LAW OF FIXTURES. [CHAP. XH. rent of 101. ; and the tenant occupied and paid rates in respect of the same; but the house was rated at less than lOi. per an- num. The fixtures consisted of a stove and grates fixed with brick-work in the chimney-places, but capable of removal with- out injury to the chimney-places; and two cupboards stand- ing on the ground supported by hold-fasts and also removable [*388] ^without other injury to the walls than a few marks of nails. The use of these several articles was worth about 6d. per week. The Court of Quarter Sessions confirmed the order of removal, but stated their opinion to be that if any deduction, however small in amount, was to be made in respect of the above-mentioned articles, the tenement would not be of the annual value of 101. The Court of King's Bench confirmed the order of the Court of Quarter Sessions and held that the fixtures constituting part of the tenement demised, and the whole being of the annual value of lOJ., the tenant gained a settlement by the payment of rates. IV. Qualifications of Electors as related to Real Prop- erty Improved by Annexations thereto. The subject of this section seems never to have come before the courts of this country for consideration; and under the political system prevailing in this country, it probably never will. Should it, however, ever become a material subject of inquiry, it would, it is believed, be governed by the principles already laid down in the preceding pages. Only one case on the subject has been found in the English reports, and that was the case of a vote in the case of the county of Bedford.^ In that case one Joseph Marshall had voted for a wind-mill which stood in a common field in the parish of Yielding, upon a plat of grass ground large enough to clear the sway of the wings, inclosed withiii a fence put up by the voter. It was fixed on a post, upon pattens, in a foundation of brick-work. 12 Luder, Case xii., p. 440 (1785). [Where a person to be qualified for election to the office of councillor, must be an occupier of "land," held, that the second floor of a house, under his exclusive control as tenant, was land. Ee Horwitz, 26 Viet., 500 (1901).] 586 CHAP. XII.] POOR RATES. *389 Nothing was expressly proved to show this plat of ground to belong particularly to the voter; and nothing on the other hand, to show that it did not. The counsel objecting to the vote, among other things, said, that as the voter had expressly described his freehold to be a wind-mill, he could not have availed himself of the value of any land with it, if he possessed *any; but according to the evidence there was no reason [*389] to suppose this; therefore, the question was simply, whether this wind-miU was a freehold estate ; which they contended, it . was not, but merely a chattel; that it did not follow, from the right of an heir to take property by descent, that such property was always of a freehold nature, for there are many chattels which go to an heir, e. g., a term of years in trust to attend the inheritance. Therefore such descent is not alone a proof of freehold, if in this case the voter could prove the descent as to the mill, which, however, is not the case. It was also insisted that the ease of a wind-mill was not distinguishable from the case of the fire-engine in Lawton v. Lawton, from the cider- mill in the ease before Lord Chief Baron Comyns; and that the case of the salt-pans in Lawton v. Salmon did not militate against the argument deducible from those cases. On the other hand it was insisted that according to the evi- dence of the case, the voter must be presumed to have a right to the soil on which his mill stood; and therefore no objection could arise from that quarter. It was also insisted that in the cases on which the opposite argument was founded, (if they were in point to the wind-mill) the nature of the subject was not considered intrinsically, but always with relation to the persons between whom the question had arisen; the modern determinations, founded on principles of public convenience, favoring the executors of such persons against the successor to the land. And that upon general principles, considered as a building fixed in the soil, the mill must be accounted a part of the freehold. The vote in respect of this wind-mill was held to be good by the committee, upon the principle doubtless (for no rea- sons are assigned for the decision) , that by reason of its annex- ation it was to be considered as land ; and that, if by its annex- ation the value of the land was enhanced to the prescribed amount, the right of voting was conferred. 587 [*390] CHAPTEE XIII. LEGAL AND EQUITABLE REMEDIES EESPECTING FIXTURES. I. Op the Action of Waste, and Case in the Nature of "Waste. Many of the early eases respecting the right to fixtures arose in the form of an inquiry whether their severance amounted to an act of waste ;i and, with respect to the remedy therefor, as the old form of proceeding by writ of waste (though now obsolete in most of the United States as well as in England), is the foundation of the modern form of action therefor, it is deemed advisable to refer briefly to some particulars relating thereto with references to authorities in which a more full dis- cussion of the subject may be found, if desired. At the common law there were two remedies for waste, viz: by writs of prohibition, or of estrepement (to be hereafter noticed), for the prevention of waste, and a writ of waste for waste actually done. Lord Coke^ thus states the rule at com- mon law: "At the common law waste was punishable in three persons, viz : tenant in dower, tenant by the curtesie, and the guardian,^ but not against tenant for life, or tenant for yeares f and the reason of the diversity was, for that the law created their estates and interests, and therefore the law gave against [*391] *them remedy ; but tenant for life, and for yeares came in by demise and lease of the owner of the land, etc., and there- 1 As to what constitutes waste and the different kinds of waste, see Greenl. Cru. Dig., tit. 3, ch. 2; 1 Wash. Eeal Prop., 107 et seq.; Waples v. Waples, 2 Harr., 281 (1837). 2 2 Inst., 299, 300. See, also, 12 H. 4, 3; 21 H. 6, 28; Doct. & Stud., lib. 2, cap. 1; Kegist., 72; 1 Inst., § 67; Co. Lit., 53 b, 54 a. 3 In chivalry. < See, however, 2 Eeeve 's Hist. Bng. Law, 73, 184 ; 4 Kent Com., 80. [See, ante, p. *82.] 588 CHAP. Xni.] THE ACTION OF WASTE. *392 fore he might in his demise provide against the doing of waste by his lessee, and if he did not, it was his negligence and default." For waste actually done the tenant in dower, arid likewise the tenant in curtesy were at common law subject to two pun- ishments, viz: to yield damages to the value of the waste, and a keeper or curate to be appointed over them, to prevent any future waste being done; and the guardian in chivalry as a punishment lost the custody of his ward, was obliged to pay the value of the waste, and was subject to be fined by the king for his breach of the trust reposed in him.^ The action lay against the tenant in dower, or by the cur- tesy, notwithstanding they had assigned over their estates; but it did not at common law lie against the assignee, even for waste done after the assignment.® So, if the heir granted away the reversion and the tenant attorned, the action failed at the com- mon law (though it lay under the Statute of Gloucester, infra) the new estate being created by the act of the parties.'^ The doctrine of the common law, that where lands were granted to a person for life, he was not liable to an action for waste unless restrained by express words in the conveyance from the commission thereof, being found very incqpvenient, as tenants took advantage of the ignorance of their landlords and committed waste with impunity, the defect was sought to be remedied by the Statutes of Marlebridge, 52 Hen. III., e. 23, {anno, 1267), and Gloucester, 6 Edw. I, e. 5 {anno, 1278), by which latter Statute an action of waste was given "against him that holdeth by the law of England, _ or otherwise for term of life, or for term of years, or a woman in dower, ' ' and it was also provided that "he which shall be attainted of waste shall lose the thing which he hath wasted, and moreover shall rec- *ompense thrice^ so much as the waste shall be taxed [*392] B 2 Inst., 300 ; 10 H. 3, "Waste, 138 ; 20 H. 3, ib., 139 ; 34 E. 3, ib., 146. 6 2 Inst., 300, 301; Temps. E. 1, Waste, 132; 30 E. 3, 16; 38 E. 3, 23; 40 B. 3, 33; 11 H. 4, 18; Doct. & Stud., 1. 2, ea. 1; F. N. B., 56. 7 2 Inst., 300, 301; 1 Greenl. Cru. Dig., tit. 3, eh. 2, § 31. 8 By tie Statute of Marlebridge the actual damages were recoverable, and the party committing the waste was liable to "be punished by amerciament grievously." See the Statutes ante, p. *83. See generally as to these Statutes, 2 Inst., 299, et seq.; Co. Lit., 53 b, et seq.; 3 Bl. 589 *393 THE LAW OP FIXTURES. [CHAP. XIII. at." In the construction of this Statute, tenants from year to year, and also tenants for a part of a year were held punishable for waste.^ This action depends upon the existence of privity between the parties ; i" so that if after waste done the rever- sioner grant over his reversion, though he take back the whole estate again, yet is the waste dispunishable.^^ And although, as observed by Lord Coke, the assignee of the tenant by the cur- tesy, or in dower, is within the letter of this law, for he holds in some manner for life, yet no action of waste shall be brought by the heir against the assignee, but only against the tenant by the curtesy or in dower; but if the heir grant away the reversion, and the assignee attorn, there the grantee by this Statute shall have an action of waste against the assignee, and the plaintiff must declare upon the Statute, there being in that case no action of waste at the common law.^^ No person was entitled to an action of waste, unless he had the immediate estate of inheritance, and if there was an inter- vening vested estate of freehold, during its continuance the action of waste was suspended.^* The remedy by writ of waste was in England abolished after [*393] *June 1st, 1835, by the statute 3 & 4 Will. IV., c. 27, s. 36, 37.1*, Jq the United States the subject of waste and the Com., 225; 1 Cru. Dig., tit. 3, eh. 2, § 26, et seq.; 1 Wash. Eeal Prop., 118. It is to be observed that the action of waste was in its nature a mixed action; real because on a judgment against the defendant the plain- tiff recovered the thing wasted, and personal because recovery was had of treble damages. 3 Bl. Com., 228. 9 2 Inst., 302; Co. Lit., § 67, 52 b. See, however, Lloyd v. Eosbee, 2 Camp. N. P., 453 (1810), where Lord EUenborough refused to give a similar construction to the Stat. 4, G. 2, ch. 28, which specified tenants for life, lives, or years. 10 Co. Lit., 53 b; 2 Inst., 301; Foot v. Dickinson, 2 Met., 611 (1841). 11 Co. Lit., 53 b. 12 2 Inst., 301. 13 Co. Lit., 53 b, 218 b, note 122; Com. Dig., Waste, C 2, C 3; Waples v. Waples, 2 Harr., 281 (1837). i*It had already fallen into disuse, though instances where the old form of procedure had been recognized and adopted are to be found in the modern cases of Eedfern v. Smith, 2 Bing., 262 (1824), where it was held that a verdict in a writ of waste upon the Statute of Gloucester, simply finding the plaintiff's damages and not the place wasted, would not be sustained; and The Keepers of Harrow School v. Alderton, 2 B. & P., 590 CHAP. Xffl.] THE ACTION OF WASTE. *394 remedies therefor are variously regulated by statute, the con- sideration of which in detail would be foreign to the purposes of this work.16 The ancient remedies for waste by writ of estrepement, and writ of waste at common law are declared by Chancellor Kent^^ to be essentially obsolete, though in some instances they have been adopted in practice in some of the states.i'^ The remedy now generally employed in cases where for- merly an action of waste was the appropriate action, and which has superseded the action of waste, is an action on the case in the nature of waste, which has been found to be much more convenient and better adapted for the recovery of mere dam- ages than the action of waste in the tenuit. This action, as has already been observed, has for its origin the ancient form of procedure already referred to. It is, however, applicable to many cases where an action of waste did not lie.^® It may *be brought by him in reversion or remainder for life [*394] 86 (1800), where in an action of waste the jury having given three farthings damages only, the court gave the defendant leave to enter up judgment for himself; on the principle, evidently, that de minimis non curat lex. See 3 Bl. Com., 228; Barry v. Barry, 1 Jac. & Walk., 653 (1820). [Stevens v. Rose, 69 Mich., 259, 269 (1888).] For a more full consideration of the subject of the action of waste, see, generally, Co. Lit., 53 a; 2 Inst., 145, 299, et seq.; Fitz. Nat. Brev., Writ of Waste; Com. Dig., Waste; 3 Bl. Com., 223; 2 Id., 281; Bull. N. P., 119 a; 1 Cru. Dig., tit. 3, c. 2; Greene v. Cole, 2 Saund. (Wms.' ed.), 234, 252 (1681), et seq., and notes; 2 Wms.' Notes to Saunders' Reports (Lond. ed., 1871), p. 644 et seq.; and the authorities hereinbefore cited. 15 See, generally, 1 Greenl. Cru. Dig., tit. 3, eh. 2, § 26 et seq. & notes ; 4 Kent Com., 76 et seq. & notes; 1 Wash. Eeal Prop., 118 et seq. & notes. 16 4 Kent Com., 77, 81. 17 See 4 Kent Com., 77 et seq., notes ; Greenly v. Hall, 3 Harring., 9 (1839) ; Waples v. Waples, 2 Id., 281 (1837) ; Loomis v. Wilbur, 5 Mason, 13 (1827) ; Sackett v. Sackett, 8 Pick., 309 (1829) ; Smith v. FoUansbee, 13 Me., 273 (1836); Crocker v. Fox, 1 Root, 323 (1791); Rose v. Hays (1791), cited in Crocker v. Fox (supra); Jones v. Whitehead, 1 Pars. Sel. Cas., 304 (1^47). 18 See the advantages of this form of action compared with the action of waste in Greene v. Cole, 2 Saund. (Wms.' ed.), 252 (1861), note 7; 2 Wms.' notes to Saunders' Repts. (Lond. ed., 1871), p. 644 et seq. [Dickinson v. Baltimore, 48 Md., 583, 589 (1878).] 591 *394 THE LAW OF FIXTTJBES. [CHAP. XIII. or years as well as in fee or in tail.^^ But it can only be brought for an injury done to a reversionary interest, and hence does not lie by a tenant for years.^o It may, however, be sustained by a reversioner against a stranger for an injury actually com- mitted to the reversionary estate while in the possession and occupation of a tenant,^! though waste may not. The interest of the reversioner must, however, be a vested interest at the period when the waste was committed, a contingent interest not sufficing to support the action; and therefore where, A. and his wife being seized of a messuage for their joint lives and the life of the survivor of them, all the estate and interest of A. became vested in the defendant who permitted waste during A.'s lifetime, it was held that the wife who survived her husband could not maintain an action on the case against the defendant in respect of such waste.^^ It will be perceived from what goes before that the action upon the case in the nature of waste is an appropriate form of action to be brought by one in reversion or remainder to try 18 Note 7 to Greene v. Cole {supra) ; McLaughlin v. Long, 5 Har. & John., 113 (1820); West v. Treude, Cro. Car., 187 (1630); s. C, Jones, 224. See, however, dictum in Peterson v. Clark, 15 John., 205 (1818). [See Dickinson v. Baltimore, 48 Md., 583, 589 (1878).] [Action on the case will not lie for permissive waste. Smith v. Mat- tingly, 96 Ky., 228, 284 (1894).] The plaintiff is also entitled to costs in this action, which he cannot have in an action of waste. Note 7 {swpra). 20 McLaughlin v. Long, 5 Har. & John., 113 (1820). See,, also, Page v. Davidson, 22 111., 112 (1859). . 21 Chase v. Hazelton, 7 N. H., 171 (1834) ; Forbes v. Williams, 1 Jones's Law, 393 (1854); 1 Chitty Plead., 157, 158; 1 Wash. Keal Prop., 119. See, also. Brown v. Bridges, 31 Iowa, 145 (1870). See, however, dictum of Patteson, J., in Bacon v. Smith, 1 Q. B., 345 (1841), who, citing Co. Lit., 53 b, expressed the opinion that this action also "consisted in privity"; Foot v. Dickinson, 2 Met., 611 (1841), holding the same point. [Consolidated Coal Co. v. Savitz, 57 111. App., 659 (1894) ; Torrey v. Bur- nett, 38 N. J. Law, 457, 458 (1875) ; see, also, Dickinson v. Baltimore, 48 Md., 583, 589 (1875).] 22 Bacon v. Smith, 1 Q. B., 345 (1841) ; s. c, 4 P. & D., 651. See, also, Peterson v. Clark, 15 John., 205 (1818), cited again post in this section. [Alienation of the property by the reversioner does not affect his right to recover for waste already committed. Action on the case in the nature of waste is an equitable action, and not to be discountenanced by any tech- nical consideration. Dickinson v. Baltimore, 48 Md., 583 (1878).] 592 CHAP. Xni.] THE ACTION OF WASTE. *395 the question whether the removal of articles annexed to the freehold is rightful, or whether the thing annexed has become an irremovable fixture and parcel of the reversionary estate. It may be brought in such a case by the reversioner against *a tenant in possession whether for life, for years, at [*395] will or at sufferance.^* And where a lessee for years assigned by way of mortgage his lease and all his estate and interest in the premises, and continued in the occupation of the premises till his bankruptcy, it was held that the mortgagee might declare in case as reversioner against the assignee in bankruptcy of the tenant for the removal of the fixtures from the premises where- by they were dilapidated and injured.^* But in those States 23 West V. Treude, Cro. Car., 187 (1630); s. c, Jones, 224; Hitehman V. Walton, 4 M. & W., 409 (1838). 24 Hitehman v. Walton, 4 M. & W., 409 (1888). Lord Abinger, C. B., in delivering his opinion in this ease said: "The defense set up by the first plea is, that Pett was not the tenant of ' the plaintiff. Now, if a mortgagor be not tenant to the mortgagee, in what relation does he stand? He is not a trespasser; he is not a servant, because the mortgagee is not in possession; the ordinary terms known to the law are, a mortgagee in possession and out of possession. Then look at the very terms and understanding of a mortgage. It is either made so as to vest the absolute interest in the mortgagee, without any proviso for a future defeasance on non-payment of the mortgage money; if so, the mortgagee becomes the absolute legal owner, with the right to turn out the mortgagor at once; but if he chooses to allow him to remain in possession, in what character does he stand but that of a tenant, since it is clear he is neither a trespasser nor a servant? On the other hand, if there be a stipulation that he shall be allowed to remain in possession for a time, by the very terms of the deed he is a tenant for that time, and is in possession for a term; if he continues in possession, and holds over, he continues on the same terms as during that time. Then how is the mort- gagee to declare for an injury to his ownership? He must either declare as reversioner, as it was held in Patridge v. Bere [5 Barn. & Aid., 604 (1822)] that he might, or else he must set out all the special circum- stances at length: the former is by much the more convenient mode. Mr. Piatt says, that in order to constitute a reversion there must be a por- tion of the estate carved out, on which the reversion shall be incident; the answer is that the portion of the estate carved out is the portion of time during which the mortgagor is allowed to remain in possession, and the mortgagee must determine the will before he can turn him out. No doubt he may maintain ejectment without any previous demand of pos- session; but the ejectment is maintained on the fiction that the lessor is admitted by the consent rule, to have entered into possession, and to 38 593 *396 THE LAW OF FIXTURES. [CHAP. Xffl. [*396] *where a mortgage is held to be only a security and not a conveyance of the title, a mortgagee cannot maintain an action on the case in the nature of waste against the mortgagor (at least not till after a forfeiture of the mortgage), his interest in the land being only contingent and liable to be defeated by pay- ment of the money secured by the mortgagees In such cases, however, an action on the case will lie by the mortgagee or his assignee against a purchaser of the equity of redemption for acts of waste (such as removing buildings, fences, timber, etc.) committed with a knowledge that the value of the security will be thereby impaired.^® But the action in such a case is not have been afterwards ousted. I think, therefore, that the first issue was rightly found for the plaintiff; and if so, it is clear that upon that issue he had a right to recover the amount of any damage done to the freehold by the improper removal of the fixtures in question." In an action of tort, in Massachusetts, where a mortgage is considered a conveyance of the title, the declaration alleged that plaintiff was third mortgagee of a house; that defendant forcibly entered and removed fix- tures, and that by reason thereof plaintiff's security was impaired. At the trial it appeared that at the time of the alleged tort plaintiff was out of possession, and had not the right of possession ; and, there having • been no breach of the condition of his mortgage, that since the alleged tort he had bought in the second mortgage, entered to foreclose and sold the property under the power of sale therein contained, buying it him- self; and it did not appear that the first mortgagee, in whom the legal title was, had ever made any demand on the defendant or authorized him to resist the plaintiff's suit. Held, that the plaintiff could recover the full amount of the damages caused to the estate by the removal of the fixtures, without regard to the sufficiency of his security, and although the assignee in bankruptcy of the mortgagor had sued defendant for the same acta. Gooding v. Shea, 103 Mass., 360 (1869). [Byrom v. Chapin, 113 Mass., 308, 311 (1873).] 2B Peterson v. Clark, 15 John., 205 (1818). See, also. Van Pelt v. Me- Graw, 4 N. Y., 112 (1850), per Pratt, J. [See Angier v. Agnew, 98 Pa. St., 587, 591 (1881).] 28 Van Pelt v. McGraw, 4 N. Y., 110 (1850), affirming s. C, 3 Barb., 347; Eobinson v. Eussell, 24 Cal., 467 (1864). [Arnold v. Broad, 15 Colo. App., 389 (1900), timber; see, also, Tate v. Field, 57 N. J. Bq., 53 (1898) ; 57 N. J. Eq., 632 (1899) ; E. H. Ogden Lumber Co. v. Busse, 92 App. Div., 143 (N. Y., 1904); Edler v. Hasche, 67 Wis., 653, 661 (1887).] [The action lies against trespassers. Jones v. Costigan, 12 Wis., 677 (I860).] [Case in the nature of waste can be brought by a mortgagee against 594 tJHAP. XUI.] THE ACTION OF WASTE. *397 based upon the assumption that the plaintiff's land has been injured,27 but that his mortgage security has been impaired. *And his damages, therefore, will be limited to the [*397] amount of injury to the mortgage, however great the injury to the land may be. In such a case it is of no consequence whether the injury occurred before or after the forfeiture of the mort- a stranger who has purchased from a tenant and removed machinery, etc., a portion of a mill. Patterson v. Cunlifee, 11 Phila., 564 (1875).] See, also, Smith v. Altick, 24 Ohio St., 369 (1873) ; Roberts v. Dauphin Deposite Bank, 19 Pa. St., 71 (1852), where the action was by the second mortgagee; Allison v. McCune, 15 Ohio, 726 (1846), where the action was by mortgagee against an execution creditor of mortgagor levying on and removing fixtures from the mortgaged premises. See, also, the cases cited in the succeeding notes. [The right of a mortgagee of realty to maintain an action on the case for damages done to the fealty by the removal of fixtures rests upon the principle that the mortgage is a security which has been impaired, and such action can be brought by other mortgagees than the first. Where an action is brought by a second mortgagee, the rights of the earlier mortgagee can be protected by payment of the money into court, and the defendant may obtain indemnity against any subsequent suit by the earlier mortgagee, by the action of the, court into which the money is paid; if actions be pending at the same time by the two mortgagees, the court can so control the litigation that no injustice will be done. Jackson ads. Turrell, 39 N. J. Law, 329 (1877).] 27 In an action upon the case by the remainderman for waste by tenant for life in removing buildings, part of the realty, the measure of dam- ages is: "How much was the inheritance injured by their destruction?" McCullough V. Irvine, 13 Pa. St., 438 (1850). See, also Hosking v. PhilUps, 3 Exch., 168 (1848); Bubb v. Yelverton, L. E., 10 Eq., 465, (1870). [Lavenson v. Standard Soap Co., 80 Cal., 245, 247 (1889). See,, also, E. H. Ogden Lumber Co. v. Busse, 92 App. Div., 143 (N. Y., 1904).] [The rule adopted in some states, to consider a mortgage of land as security, rather than deeming the mortgagee as the legal owner of the fee, is approved in Jackson ads. Turrell, 39 N. J. Law, 329, 334 (1877), as it obviates some technical objections as well as some practical difficul- ties, and enables courts of law to do justice by giving to each mortgagee injured by a renioval of fixtures, a' remedy in damages limited to the amount of injury received, however great the injury to the land may be.] [It is no reason to include the personalty within the lien of the mort- gage, because a possible purchaser of the works would pay more for both factory and machines if they were sold at one bid than if sold sep- arately. Knickerbocker Trust Co. v. Penn Cordage Co., 62 N. J. Eq., 624, 643 (1901).] 595 *397 THE LAW OP FIXTURES. [CHAP. Xm. gage.28 Such impairment of the security must be averred in the declaration and proved upon the trial, or the action cannot be maintained.^* The principle of these cases is that without a fraudulent intention on the part of the defendant to injure the plaintiff, the action will not lie ; ^^ and it is not enough to prove that the act done was one of negligence and inattention.^^ But it is not necessary in order to sustain the action that the plain- tiff should prove that the primary motive of the defendant was to cheat the plaintiff. If the defendant knew that by removing the timber, or other annexation, the value of the plaintiff's mortgage as a security would be impaired, he would be legally chargeable with a design to effect that object, though his leading motive may have been his own gain. The neces- sary consequence being a fraud, the actor is legally chargeable with a design to effect that result.^^ The rules above laid down apply also to the case of judgment liens and other mere secu- rities upon land.** In those states where a mortgage is considered a conveyance 28 Van Pelt v. McGraw {supra), per Pratt, J. [A mortgagee who has commenoed foreclosure proceedings, and ob- tained a decree of sale, is, until sale under the decree, as much a lien- holder as before, and entitled to maintain a suit for the impairment of his security caused by the removal of fixtures from the land between the date of the decree and of the sale. Jackson ads. Turrell, 39 N. J. Law, 329, 335 (1877).] 29 Lane v. Hitchcock, 14 John., 213- (1817). 80 Yates v. Joyce, 11 John., 136 (1814) ; Lane v. Hitchcock, 14 Id., 213 (1817); Gardner v. Heartt, 3 Den., 234 (1846); Van Pelt v. McGraw, 4 N. Y., 110 (1850). 31 Gardner v. Heartt {supra). 32 Van Pelt v. McGraw, 4 N. Y., 110 (1850). [Jackson ads. Turrell, 39 N. J. Law, 329, 331 (1877). Where the mortgage security is im- paired by the removal of fixtures from the land, it is not necessary to show the insolvency of the mortgagor. The mortgagee is not bound to exhaust his personal security before resorting to the substantial security upon the strength of which he loaned his money. Moreover, to prove the debtor insolvent may be very difficult, or impossible, and lapse of time may destroy his remedy against the spoiler before the maturity of the debt when the ability of the mortgagor is to be tested. Id.} saTates v. Joyce, 11 John., 136 (1814). 596 CHAP. Xm.] THE ACTION OP WASTE. *398 of the title to the mortgagee, the action lies irrespective of the question whether the mortgage security is impaired or not.** The action on the case in the nature of waste is inappli- cable to cases where an executor claims the right to remove articles annexed to the realty by his testator, whose interest in the land is determined by his death, such an action (as we have seen) being maintainable only by one having an interest *in reversion or remainder.^^ Nor, except where the [*398] rule has been changed by statute,*® does case in the nature of waste lie against the personal representative for waste commit- ted by his testator or intestate during his lifetime; in such a case the action being in form ex delicto the maxim is applied that, actio personalis moritur cum persona.^'^ But the executors or administrators of a tenant for years are punishable for waste done while they are in possession.** But where by the commission of the waste by the testator, property is acquired which benefits the testator, there an action for the value of the property will survive against the executor, as for instance, the executor will not be chargeable for the injury done by his testator in cutting down another man's trees, but for the benefit arising to his testator from the value or sale of the trees he will.*^ The form of action, however, in such a case is not that of case in the nature of waste.*" Where the lessee even covenants not to do waste, the lessor has his election to bring either an action on the case in the S4See Gooding v. Shea, 103 Mass., 360 (1869), and Hitchman v. Walton, 4 M. & W., 409 (1838), cited (ante). 36 See Page v. Davison, 22 111., 112 (1859) ; also Bacon v. Smith, cited (supra). See Stat. 3 & 4, W. IV., c. 42, § 2. 38 See 1 Wash. Eeal Prop., 119 and notes; and consult the statutes of the several states. 87 See Broom's Leg. Max., 909; 2 Inst., 302; 1 Cru. Dig., tit. 8. eh. 2, § 11; Vin. Abr., Waste, S 2; Bro. Abr., Waste, pi. 138. 38 1 Cru. Dig., tit. 8, ch. 2, § 11; 2 Inst., 302; Powell v. Eeese, 7 Ad. & E., 426 (1837); Vin. Abr., Waste, S 2. 30 See Hambly v. Trott, 1 Cowp., 376 (1776), per Lord Mansfield; Powell v. Eeese, (supra) ; Dick. 215, also next note. io See cases cited in next note, supra; Bishop of Winchester v. Knight, 1 P. Wms., 403 (1717), which was a bill in equity against the executor and heir for an account of ore dug by the testator. 597 *399 THE LAW OF FIXTUEES. [CHAP. XIH. nature of waste, or of covenant against the lessee for the waste done by him during the term.^^ [*399] *II. Peeventivb and Equitable Remedies. Prohibition, — Estrepement. By the ancient remedy of writ of waste in the tenet, the place wasted was recovered and also treble damages. After the term was expired the writ was in the tenuit, and treble damages only were recoverable, the tenant no longer having the possession.! Besides this remedy for waste actually done, the common law provided a preventive remedy before the waste was done by writ of prohibition issued out of chancery against those persons who were by the common law punishable for waste, "Kinlyside v. Thornton, 2 W. Bl., 1111 (1776). DeGrey, C. J., '"I have no difficulty upon this question. Tenant for years commits waste and delivers up the place wasted to the landlord. Had there been no deed of covenant, the action of waste, or case in nature of waste would have lain. Because the landlord by the special covenant acquires a new rem- edy, does he therefore lose his old?" Blackstone, J., "Action of waste lies against tenant for years after the term is expired, only the writ must be in the tenuit and not in the tenet. 2 Eoll. Abr., 830. It by no means follows, because in cases unprovided for by the Register, the Statute of Westm. 2 directs an action on the case to be framed, that the action on the case in general did not subsist at common law." See 2 Saund., 252, note 7; Burnett v. Lynch, 5 B. & C, 603 (1826) ; Muskett v. Hill, 7 Scott, 855, 873 (1839) ; s. c, 5 Bing. N. C, 694; Marker v. Kenrick, 13 C. B., 188 (1853). See, also, 18 Ves., 455; 2 Ves. & B., 349; Dick., 445. See, however, Jones v. Hill, 1 Moore, 100 (1817), per Gibbs, C. J.: "When there is an express stipulation or contract between two parties, this species of action is not maintainable; for such contract is a total waiver of tort, and it therefore ceases to bear the character of waste." This dictum is not, however, found in the report of the case in 7 Taunt., 392. See, also. Heme v. Bembow, 4 Taunt., 764 (1813) ; Co. Lit., 54, b, note 359; 3 Brod. & Bing., 171. [Where a tenant in writing agrees to leave gas fittings and fixtures, which are trade fixtures, but he removes them, the landlord should set put his cause of action, viz., the tort or breach of duty committed by the tenant as arising from a right which the landlord had by virtue of the specific contract, and not for a breach of a common law duty. Dunn v. Garrett, 7 N. Brunsw., 218, 222 (1851).] 12 Inst., 304; 2 Eoll. Abr., 830; 2 W. Bl., 1111. 598 CHAP. XIII.] PROHIBITION — ^ESTEEPEMKNT. *400 viz: tenants by the curtesy, in dower, and guardians in chiv- alry, which remedy Lord Coke^ pronounced "an excellent law, for prcestat cautela quam medela, and preventing justice excel- leth punishing justice." This writ was considered by Lord Bathurst, in Goodeson v. Gallatin,* as the origin of the jurisdic- tion of the Court of Chancery to administer preventive relief by injunction. *The common law also afforded another remedy pre- [*400] ventive in its nature by writ of estrepement, which is thus lucidly described by Sir William Blaekstone in his learned com- mentaries:* "Estrepement is an old French word signifying the same as waste or extirpation; and the writ of estrepement lay at the common law, after judgment obtained in any action realjS and before possession was delivered by the sheriff; to stop any waste which the Vanquished party might be tempted to commit in lands, which were determined to be no longer his. But as in some cases the demandant may be justly appre- hensive, that the tenant may make waste or estrepement pend- ing the suit, well knowing the weakness of his title, therefore the Statute of Glocester ^ gave another writ of estrepement pen- dente placito, commanding the sheriff firmly to inhibit the ten- ant 'ne faciat vastum vel estrepementum pendente placito dicto indiscusso.''' And, by virtue of either of these writs the sheriff may resist them that do, or offer to do, waste ; and if otherwise he cannot prevent them, he may lawfully imprison the wasters, or make a warrant to others to imprison them; or, if necessity require, he may take the posse comitatus to his assistance. So odious in the sight of the law is waste and destruction.* In suing out these two writs this difference was formerly observed ; that in actions merely possessory, where no damages are recov- ered, a writ of estrepement might be had at any time pendente 2 2 Inst., 299. See, also, Jefferson v. Bishop of Durham, 1 B. & P., 104, 120 (1797), where this writ is considerably discussed by Eyre, C. J. sDiek., 455 (1771). * 3 Bl. Com., 225. See, also, Jefferson v. Durham (supra) ; Jones v. Whitehead, 1 Pars. Eq. Cas., 304 (1847). 5 2 Inst., 328. 6 6 Edw. I., c. 13. 'Eegister, 77. 8 2 Inst., 329. 599 *401 THE LAW OP FIXTURES. [CHAP. XUI. lite, nay even at the time of suing out the original writ, or first process; but in an action where damages were recovered, the demandant could only have a writ of estrepement, if he was apprehensive of waste after verdict had ; ® for, with regard to waste done before the verdict was given, it was presumed the jury would consider that in assessing the quantum of damages. [*401] But *now it seems to be held, by an equitable construc- tion of the Statute of Glocester, and in advancement of the remedy, that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only possession is had of the lands ; for peradventure, saith the law, the tenant may not be of ability to satisfy the demandant his full damages.^" And there- fore now, in an action of waste itself to recover the place wasted and also damages, a writ of estrepement will lie as well before as after judgment. For the plaintiff cannot recover damages for more waste than is contained in his original com- plaint; neither is he at liberty to assign or give in evidence any waste made after the suing out of the writ; it is therefore reasonable that he should have the writ of preventive justice, since he is in his present suit debarred of any further reme- dial}^ If a writ of estrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he after- wards proceeds to commit waste, an action may be carried on upon the foundation of this writ ; wherein the only plea of the tenant can be, non fecit vastum contra prohihitionem : and, if upon verdict it be found that he did, the plaintiff may recover costs and damages,!^ or the party may proceed to punish the defendant for the contempt; for, if after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for this contempt of the writ.i^ But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the estrepement absolutely, even by raising the posse comitatus, if it can be done no other way." F. N. B., 60, 61. 10 Ibid., 61. 11 5 Bep., 115. 12 Moor., 100. 13 Hob.. 85. 600 CHAP. Xni.] INJUNCTION. *402 Injunction. The remedies above mentioned were not usually employed at the time the above extract was written ;i4 and they are now *obsolete in the most of the United States ^^ as well as [*402] in England, having been superseded by the remedy of injunc- tion to stay waste issued by courts of equity upon a bill ex- hibited for that purpose. For an exhaustive discussion of the cases upon this subject the reader is referred to the professed treaties upon injunctive relief, anything further than an outline of the subject and its relation to the law of fixtures being be- yond the scope of this treatise.^® It may be stated in general terms that injunctive relief will be granted only where the threatened injury will be destructive to the inheritance or will produce irreparable injury.i^ But 1*3 Bl. Com., 227. 16 See 4 Kent Com., 77 and notes. In Pennsylvania and Delaware the writ of estrepement has been adopted in practice. See ante sec. 1, p. *393, note; Jones v. Whitehead, 1 Pars. Eq., Cas. 304 (1847), where this writ is considered at considerable length by Parsons, J. 18 See High on Inj., § 419, et seq., where the origin and nature of the jurisdiction, and the cases on the subject are exhaustively considered. [Harms v. Jacobs, 158 111., 505, 512 (1895).] 17 See Jerome v. Boss, 7 John. Ch., 315 (1823) ; Amelung v. Seekamp, 9 Gill & John., 468 (1838); Hamilton v. Ely, 4 Gill, 34 (1846); Green V. Keen, 4 Md., 98 (1853) ; Atkins v. Chilson, 7 Met., 398 (1844) ; Poin- dexter v. Henderson, 1 Miss. (Walk.), 176 (1824); MeCay v. Wait, 51 Barb., 225 (1868); Douglass v. Wiggins, 1 John. Ch., 435 (1815). [Guernsey v. Wilson, 134 Mass., 482 (1883) ; Looser v. Liebman, 14 N. Y. Supp., 569, 571 (1891) ; John L. Eoper Lumber Co. v. Wallace, 93 N. C, 22, 30 (1885) ; Weiss v. Jackson County, 9 Ore., 470, 472 (1881) ; Bangor Slate Co. V. Shimer, 12 Pa. Dist., 777, 778 (1903) ; McMillan v. Ferrell, 7 W. Va., 223, 229 (1874).] In Georges Creek Co. v. Detmold, 1 Md. Ch., 371 (1848), the rule is laid down that where there is privity of title, as between tenants for life, or years, and the reversioner, it is not necessary for the plaintiff to show irreparable injury or destruction to the estate to entitle him to the remedy by injunction. But as between strangers or parties claiming adversely there is no distinction between trespass and waste; and in both cases the injury must be shown to be irreparable, before the court will grant an injunction. [Equity vrill restrain trespasses when the threatened injury is irreparable in damages. Cottle v. Harrold, 72 Ga., 830, 838 (1884).] 601 *403 THE LAW OP FIXTXmES. [CHAP. XIH, the mere allegation of a complainant that irremediable damage or irreparable mischief will ensue is not sufficient. To satisfy the conscience of the court, the facts must be stated, to show that the apprehension of injury is well founded.^^ And where [*403] *an adequate remedy may be had by pecuniary com- pensation obtainable through the medium of an action at law for damages, the injunction will be refused.!^ In order, how- [A sherifE will be enjoined from removing an engine and boilers as personal property where to do so would necessitate tearing down brick- work and cause great injury to the freehold and unusual damages; and one is not required to depend upon obtaining relief at law at the end of litigation; and especially is this true when the property is held in trust. Jenney v. Jackson, 6 111. App., 32, 38 (1880).] IS See Amelung v. Seekamp, 9 Gill & John., 468 (1838) ; Hamilton v. Ely, 4 Gill, 34 (1846); Green v. Keen, 4 Md., 98 (1853); White y. Plannigain, 1 Md., 525 (1852) ; CarUsle v. Stevenson, 3 Md. Ch., 499 (1850) ; Branch Turnpike Co. v. Tuba Co., 13 Cal., 190 (1859) ; Wa;ldron V. Marsh, 5 Cal., 119 (1855) ; Jerome v. Boss, 7 John. Ch., 315 (1823). [MeCormick v. Nixon, 83 N. C, 113, 116 (1880).] See, also, Richardson v. Ardley, 38 L. J. Chanc, 508 (1869), where the rule was laid down that, if the sherifE takes part of the fixtures belong- ing to the landlord on execution against the tenant, the Court of Chan- cery will interfere to prevent him without the mere statement of its being an irreparable damage; that the mere fact of removing the land- lord's fixtures is in itself an irreparable damage, or in the nature of an irreparable damage. It is a waste which is committed upon the property and the Court of Chancery vriU interfere to prevent it. [The destruction of a building or improvement permanently attached to the freehold, is per se a lasting injury to the inheritance as it will come to the reversioner, and will be regarded as waste. Williams v. Chicago Ex- hibition Co., 188 111., 19, 31 (1900).] 19 Amelung v. Seekamp, 9 Gill & John., 468 (1838); Cockey v. Carroll, 4 Md. Ch., 344 (1849) ; Atkins v. Chilson, 7 Met., 398 (1844) ; Eobinson V. Eussell, 24 Cal.,. 467 (1864); Jerome v. Boss, 7 John. Ch., 315 (1823). [Eice V. Looney, 81 111. App., 537, 539 (1898) ; Bolton v. McShane, 67 Iowa, 207, 208 (1885); Frink v. Stewart, 94 N. C, 484, 486 (1886); Dunkart v. Einehart, 87 N. C, 224, 227 (1882) ; Cox v. Douglas, 20 W. Va., 175, 178 (1882); Schoonover v. Bright, 24 W. Va., 698, 701 (1884).] [The removal of a house will not be enjoined where it was erected by one believing himself to be the owner of the lot, and the land-owner has a remedy upon an appeal bond. Campbell v. Coonradt, 26 Kan., 67, 71 (1881).] [Where an addition erected by a tenant has been separated from the main building with the intention of removing it from the landlord's premises, upon which it yet remains, an injunction will be granted to 602 CHAP. Xm.] INJUNCTION. *403 ever, to entitle the complainant to relief by injunction, the evi- dence of his title must be clear, and injunctive relief will in general be refused as against a defendant in possession under an adverse title.^" It is not necessary in order to warrant relief by injunction that actual waste shall have been already com- mitted.^i It is sufScient to show that there exists the intention to commit waste, or that threats thereof have been made.^^ Thus, sending a surveyor to mark out trees preparatory to cutting them, is sufficient ground for an injunction, though no waste has as yet actually been committed.^s So, a claim by a tenant for life of a right to commit waste where no such right existed, has been held sufficient to warrant an injunction though no waste restrain the removal from the premises; but a mandatory injunction will not issue to restore the addition as it was, as a sufficient remedy can be obtained by the recovery of damages. Fortescue v. Bowler, 55 N. J. Eq., 741, 746 (1897).] 20 See Pillsworth v. Hopton, 6 Ves., 51 (1801") ; Field v. Jackson, Dick., 599 (1782) ; Davis v. Leo, 6 Ves., 784 (1802) ; Poindexter v. Henderson, 1 Miss. (Walk.), 176 (1824); Nevitt v. Gillespie, 2 Miss. (1 How.), "108 (1834); Bogey v. Shute, 4 Jones Bq., 174 (1858); Storm v. Mann, 4 John. Ch., 21 (1819). [Nethery v. Payne, 71 Ga., 374, 379 (1883).] See, however, Earl Talbot v. Scott, 4 Kay & John., 96 (1858) ; Haigh V. Jaggar, 3 Colly. Ch., 231 (1845), for certain limitations upon the rule in cases of fraud, and where the waste is malicious and destructive, and irreparable by any proceedings at law. See, also, Shubrick v. Guerard, 2 Desaus. Eq., 616 and note (1808). [Where a person seeks to enjoin the removal of a building, he must show not only his ownership of the building, but also of the lots, or, at least, a right to have it remain upon the lots, unless, possibly the defendant is a mere trespasser. Cuppy v. O 'Shaughnessy, 78 Ind., 245, 248 (1881).] [The complainant must show title to the land, and actual possession. Weariu v. Munson, 62 Iowa, 466, 467 (1883).] [An injunction will be granted to restrain waste by the defeated party in a suit of ejectment. Winang v. Beidler, 6 Okla., 603, 607 (1898).] 21 Gibson v. Smith, 2 Atk., 182 (1741); Coffin v. Coffin, Jac, 70 (1821). [Poertner v. Eussel, 33 Wis., 193, 199 (1873).] 22 White- Water Valley Canal Co. v. Comegys, 2 Ind., 469 (1851) ; Lou- don V. Warfield, 5 J. J., Mar., 196 (1830) ; Coffin v. Coffin, Jac, 71 (1821) Gibson v. Smith, 2 Atk., 182 (1741). See, also, 6 Ves., 706; Die. 101 1 Jac. & Walk., 653. [Dougherty v. Spencer, 23 111. App., 357, 359 (1887) Thatcher v. Humble, 67 Ind., 444 (1879); Butman v. James, 34 Minn., 547, 552 (1886); Poertner v. Eussel, 33 Wis., 193, 199 (1873).] 23 Jackson v. Gator, 5 Ves., 688 (1800). See, also. Coffin v. Coffin {supra) 603 *404 THE LAW OP FKTXJRES. [CHAP. XHI. had in fact been committed.^* But where there is no claim of [*404] right to *comniit acts which amount to waste, and there exists no intention of committing such acts, an injunction will not be granted on the sole ground that the tenant in possession has at a previous time committed waste. ^^ Indeed, the writ of injunction being a preventive rather than a remedial writ, is inapplicable to past injuries, which being already committed are beyond the reach of a preventive writ; and where future waste is not threatened there is no ground for the issuance of the writ.^® In all cases in order to warrant relief by injunction on the specific ground of waste, the property in dispute must be an- nexed to the freehold. And where a bill for an injunction and an account alleged the commission of waste by the defend- ant by destroying a dove-cote, and removing the locks from the doors of the house, the chains from the lawn, the statues, images and fences from the pleasure-grounds, wardrobes, presses and closets, forming part of the wainscot of the house, Lord Chan- cellor Eldon in delivering his opinion observed, that the founda- tion of the motion to revive the injunction was, first a clear act of waste ; second, another act of removing things supposed to be fixed to the freehold, wainscot, presses, etc. ; that as to the dove- cote a clear act of waste was proved, and therefore against waste the injunction must be revived; but that he could not grant it against removing the presses, eo nomine, if not fixed to the free- hold.*'' Neither in ordinary cases will an injunction be granted 2* See Gibson v. Smith, Barnard. Ch., 497 (1741) ; Crockett t. Crockett, 2 Ohio St., 180, 186 (1853). See, also, Livingston v. Eeynolds, 26 Wend., 115, 123 (1841). 2s Crockett v. Crockett, 2 Ohio St., 180 (1853). See, also, Southard v. The Morris Canal, 1 N. J. Eq. (Saxt.), 518 (1832). 2S See Southard v. The Morris Canal, 1 N. J. Eq. (Saxt.), 518 (1832) ; Watson V. Hunter, 5 John. Ch., 169 (1821). 27Kimpton v. Eve, 2 Ves. & Bea., 349 (1813). "Note that waste was assigned in pulling down one wooden wall, also in permitting one brick wall to fall wholly down, and also in breaking up and destroying the plank floor and mangers of a certain stable, without saying 'then fixed to the soil'; and for this cause it was holden no waste. The law is the same in the said two other cases above, inasmuch as it is not expressly alleged that the walls were coped or covered, it is not waste; Accordant 44 E. [44 b, pi. 52], and 22 H. 6 [24 b, pi. 45]. But quaere 604 CHAP. XIII.] INJUNCTION. '405 to restrain the removal of *timber already cut and sev- [*405] ered from the premises ; ^s though where the mischief would be irreparable it might be necessary to interfere in this extraordi- nary way and prevent the removal of the timber.^^ In some cases a court of chancery will restrain waste which at law, either by reason of the nature of the estate, or from the what shall be intended of a stone or brick wall?" Earl of Bedford v. Smith, Dj., 108 b (1689). See, also, Eichardson v. Ardley, 38 L. J. Chanc, 508 (1869). Constructive annexation is sufficient. Titus v. Mabee, 25 111., 257 (1861); Titus v. Ginheimer, 27 111., 462 (1861). [Where the removal of a house was permanently enjoined by the lower court, the appellate court held that the latter court did not have jurisdiction, as title to real estate was not involved. Bourne v. Beck, 22 Ky. Law R, 792 (1900).] 28 Watson V. Hunter, 5 John. Ch., 169 (1821) ; Van Wyck v. Alliger, 6 Barb., 507 (1849). [Bank of Chenango v. Cox, 26 N. J. Eq., 452 (1875).]- See, however, anonymous case in 1 Ves. Jun., 93 '(1790), where Lord Thurlow upon the Eegister's saying that many such orders had been made, granted an order to prevent the removal of timber unlawfully cut down. 29 Per Kent, Ch., in Watson v. Hunter (^supra). In this case Chancellor Kent in considering this subject said: "This Court will stay the com- mission of waste or the transfer of negotiable paper, in certain cases, in order to prevent irreparable mischief; but the only mischief that can arise in the present case, as to the timber already cut and drawn to the mills of the defendants, is the possible inability of the party to respond in damages. That is a danger equally applicable to all other ordinary de- mands, and it is not an impending and special mischief, which will justify this extraordinary preventive remedy by injunction. If the injunction could be ordinarily applied to waste already committed, I apprehend we should very rarely hear of a special action on the case, in the nature of waste, in the courts of common law." Eef erring to the case in 1 Ves. Jr., 93, he proceeded: "Such a case is not a sufficient authority to ex- tend the injunction to the timber already cut. There must be a very special case made out to authorize me to go so far, and such cases may be sup- posed. A lease, for instance, may have been fraudulently procured by an insolvent person for the very purpose of plundering the timber under the shelter of it. Perhaps in that and like cases where the mischief would be irreparable it might be necessary to interfere in this extraordinary way, and prevent the removal of the timber. I do not mean to be understood to say that the Court will never interfere, but that it ought not to be done in ordinary cases like the present. I shall accordingly confine the injunction to the timber standing or growing at the time of the service of the process." 605 •406 THE LAW OF FIXTURES. [CHAP. XIH. estate's having been expressly granted "without impeachment of waste, ' ' is dispunishable. Thus, a tenant for life without im- peachment of waste may be restrained by injunction from the wanton and malicious injury or destruction of buildings upon [*406] the demised premises.^" So, relief may be had in *chan- cery to prevent waste to the injury of a contingent estate, or an executory devise even, dependent upon a legal estate.*^ As to the parties between whom relief by injunction to re- strain waste is applicable, it may be stated that in general injunctive relief is exercised only in cases where there is a privity of estate, though, as will be seen hereafter, the jurisdic- tion has been extended to include some cases of trespasses not founded in privity. The most ordinary applications of this species of relief arise upon biUs filed by the owner of the inheritance against ten- ants for life, or for years, or parties claiming under them.^^ And an injunction may be granted on a bill filed by a remain- so See Paekington 's Case, 3 Atk., 215 (1744); Strathmore v. Bowes, 2 Bro. C. C, 88 (1786); S. C, 2 Dick., 673; 1 Cox, 263; Vane v. Bernard, 1 Salk., 161 (1714); s. c, 2 Vern., 738; Marker v. Marker, 9 Hare, 1 (1851) ; Aston v. Aston, 1 Ves. Sr., 264 (1749) ; O'Brien y. O'Brien, Amb., 107 (1751) ; Marquis of DownsMre v. Lord Sandys, 6 Ves., 107 (1801) ; Lord Tamworth v. Lord Ferrers, Id., 419 (1801) ; Day v. Merry, 16 Id., 375 (1810); Abraham v. Budd, 2 Freem. Ch., 53 (1680); 1 Bro. C. C, 166; 2 Atk., 383; 16 Ves., 185, 1 Term, 56; Com. Dig., Chancery, D 11; Clement v. Wheeler, 25 N. H., 860 (1852). See ante, p. *181, note. 312 Story's Eq. Jur., § 914; Stansfield v. Habergham, 10 Ves., 278 (1804). [Contingent remainder-men can have the life tenant enjoined from future voluntary vraste. Cannon v. Barry, 59 Miss., 289, 305 (1881). So can an executory devisee. Gordon v. Lowther, 75 N. C, 193, 195 (1876). But the holder of a base fee will not be enjoined from the commission of equitable waste at the suit of an executory devisee where the contingency which will determine the fee is not reasonably certain to happen, and the waste is not wanton nor unconscientious. Gannon v. Peterson, 193 111., 372, 383 (1901).] 32 See Kimpton v. Eve, 2 Ves. & Bea., 349 (1813), already cited, where an injunction against waste by a tenant was allowed; Eichardson v. Ard- ley, 38 L. J. Chanc, 508 (1869), which was a bill filed by a landlord to restrain the sale by the sheriff of the landlord's fixtures on execution against the tenant; Dickinson v. Jones, 36 Geo., 97 (1867). See, also Titus V. Mabee, 25 111., 257 (1861); Titus v. Ginheimer, 27 Id., 462 606 CHAP. XIII.] INJUNCTION. H06 (1861). [Bobertson v. Meadors, 73 Ind., 43, 45 (1880); Hughes v. Burriss, 85 Mo., 660, 668; Holmes v. Standard Pub. Co., 55 Atl., 1107, 1109 (N. J. Ch., 1903); Miller v. Gray, 29 Tex. Civ. App., 183 (1902); Poertner v. Eussell, 33 Wis., 193, 199 (1873) ; see, also, Agnew v. Whit- ney, 10 Phila., 77 (1873); Allan v. Eowe, 1 N. B. Eq. (Trueman), 41, 52 (1894).] [The removal of a building by the tenant 's assignee is waste, and may be restrained by injunction. Gray v. McLennan, 3 Man., 337, 342 (1886).] [A landowner in possession can enjoin a purchaser of a former tenant's interest in fixtures from removing such fixtures, whether they be real or personal property, where it is not shown that the title or right of possession was in the tenant at the time of the purchase. Nolan v. Eotsler, 135 Cal., 264, 266 (1901).] [Where the lessor enjoins the lessee from removing fixtures pending an appeal, and intends to appropriate the property in dispute, an injunction to prevent the lessor from interfering with the fixtures pending such appeal is properly granted. Baker v. National Biscuit Co., 96 111. App., 228, 229 (1901).] [A lessee for ninety-nine years, with a covenant for perpetual renewal, will be enjoined from tearing down a building if the reversioner's security for rent reserved would be greatly and irreparably impaired. Crowe v. Wilson, 65 Md., 479 (1886).] [If a mechanics' Uen upon a building erected by a tenant be foreclosed, and the landlord, by acquiring the certificate of purchase, acquires title to the building, he is entitled to an injunction against its removal; but he must declare as a lien-holder, and not as owner. Cuppy v. O 'Shaughnessy, 78 Ind., 245, 249 (1881).] [A lessee will be restrained from cutting and removing timber, even though no irreparable injury be shown, where, by the terms of his lease, he is restricted to a particular use of the premises. Frank v. Brunnemann, 8 W. Va., 46^, 471 (1875).] In Hooper v. Broderick, 9 L. J., Ch. (N. S.), 321 (1840), upon a ques- tion as to the legal right of a tenant to remove fixtures, upon a motion to dissolve an injunction, the V. C. expressed the opinion that the motion should stand over until the plaintiffs had been permitted to inspect and make a list of the articles proposed to be removed; and then in order to try the legal right to do so, that the plaintiffs should bring an action against the defendant in which the defendant should admit that he had removed the things in dispute. However, in Pugh v. Arton, L. E., 8 Eq., 626 (1869), the right of a tenant to remove fixtures was passed upon by Malins, V. C, upon a bill to enjoin such removal filed by the landlord, without recourse to a court of law to determine the legal right. See, also, Lawton v. Lawton; Dudley V. Warde; Quincy, Ex parte, cited in a preceding part of the work, and also post, where questions as to the right to fixtures between various parties arose and were determined in equity. 607 *407 THE LAW OF FLXTUEES. [CHAP. XIH. [*407] *derinan for life ^ as well as one filed by remainderman in fee; and this notwithstanding there is an intervening estate for life.^ But an injunction will not be granted at the suit of the landlord against the tenant or his assigns to restrain the commission of waste by the removal from the demised premises of a building erected by the tenant, where it appears that the landlord is not entitled to the reversion.* An injunction may be issued to restrain a tenant from year to year from removing the crops, manure, etc., contrary to the custom of the country.^ So, a ground landlord may enjoin the commission of waste by an under lessee.^ The remedy by injunction to restrain waste is not precluded by the fact that the lease contains a covenant by the lessee to repair the premises and leave in repair at the end of the term, etc. ; ® nor by a covenant not to injure, cut down, take, destroy or carry away, etc., any more wood or timber than shall actually be used on the premises, and not to make or suffer to be made 1 Perrot v. Perrot, Atk., 94 (1744) ; Davis v. Leo, 6 Ves., 787 (1802) ; Garth v. Cotton, 1 Dick., 183, 205, 208 (1753); Birch-Wolfe v. Birch, L. E., 9 Eq., 683 (1870). Contra, Mayo v. Feaster, 2 MoCord Ch., 137 (1827). 2 Perrot v. Perrot, 3 Atk., 94 (1744) ; Eobinson v. Litton, Id., 209 (1744) ; Davis v. Leo, 6 Ves., 787 (1802) ; Garth v. Cotton, 1 Dick., 183, 205, 208 (1753) ; s. C, 1 Ves. Sr., 555; 3 Atk., 751; Abraham v. Bubb, 2 Freem. Ch., 53 (1680); Dennett x. Dennett, 43 N. H., 499 (1862); Com. Dig., Waste, C 3; 1 Eq. Ca. Abr., 400; 3 P. Wms., 268; Amb., 105; 3 Atk., 723; 2 Story's Eq. Jur., § 913. aPerrine v. Marsden, 34 Cal., 14 (1867). 4 Brett V. Brett, 2 Madd., 62 (1817); Pultney v. Shelton, 5 Ves., 147 (1799); Onslow v. , 16 Id., 173 (1809). See, also, Lewis v. Chris- tian, 40 Geo., 187 (1869). [A tenant may be enjoined by his landlord from removing manure. Bonnell v. Allen, 53 Ind., 130, 134 (1876).] [An injunction will not be granted at the suit of the landlord to restrain a tenant from cutting a matured crop, upon the ground that it would be an injury to the freehold. Perry v. Hamilton, 138 Ind., 271 (1894).] BFarrant v. Level, 3 Atk., 723 (1750), s. c, nom, Farrant v. Lee, Amb. 105. e See Sunderland v. Newton, 3 Sim., 450 (1830) ; Kimpton v. Eve, 2 Ves. and Bea., 349 (1813); Richardson v. Ardley, 38 L. J. Chanc, 508 (1869). [A tenant will be enjoined from tearing down a building, vrith the intention of erecting another, although hi^ fesQ authorizes alterations. Davenport v. Magoon, 13 Ore., 3 (1884).] 608 CHAP. XIII.] INJUNCTION. *408 any manner of waste, sale or destruction in the wood or timber on the premises.'^ The value of the fixtures should not be assessed as damages upon the dissolution, after the expiration of the term, of an in- junction issued before such expiration prohibiting the removal *of fixtures by the tenant, the injunction not changing [*408] the title to the property nor making the party suing it out liable for a conversion.* But where in such a ease after such expiration the landlord being in possession of the premises, by warranty deed sold and conveyed the premises, buildings as well as land, to a bona fide purchaser for a valuable consideration, and applied the proceeds to his own use, such buildings being as between landlord and the tenant the property of the tenant, though passing by such deed to the purchaser, it was held that this was a conversion and entitled the lessee to compensation in damages; and in assessing the damages on the dissolution of such injunction the value of the buildings for purposes of removal was properly included.^ The remedy by injunction to restrain the commission of waste is also in some cases applicable to the relation existing be- tween the mortgagee and the mortgagor in possession, the lat- ter of whom will be restrained by injunction from severing and removing fixtures, timber, etc., constituting a part of the mortgage security, to such an extent as to diminish the value of the property and thereby render the mortgage security inadequate.!"' The authorities certainly go to the extent above T Livingston v. Eeynolds, 26 Wend., 115 (1841). sBircher v. Parker, 40 Mo., 118 (1867). [See, ante, p. *141. Poertner V. Eussel, 33 Wis., 193, 203 (1873).] [A tenant guilty of contempt of court by removing fixtures in violation of an injunction, must not only restore the same, but must meet any expenditure required to remedy the injuries thereto. Ashby v. Ashby, 62 N. J. Bq., 618, 622 (1901).] 9Bircher v. Parker, 43 Mo., 443 (1869). The warranty deed from the landlord to the purchaser was held to have been properly read in evidence as tending to show a conversion, and was sufficient for that purpose. lb. 10 See Eobinson v. Preswick, 3 Edw. Ch., 246 (1838) ; Capner v. Fleming Mining Co., 3 N. J. Eq., 467 (1836) ; Brown v. Stewart, 1 Md. Ch., 87, 93 (1847) ; Maryland v. Northern, etc., Rwy. Co., 18 Md., 193 (1861) ; Gray v. Baldwin, 8 Blackf., 164 (1846) ; Bunker v. Locke, 15 Wis., 635 (1862) ; En- sign V. Colburn, 11 Paige, 503 (1845) ; Eobinson v. Eussell, 24 Cal., 467 39 609 •409 THE LAW OF PIXTUEES. [CHAP. XIH. [*409] *stated, and some of them, and especially those where the mortgagee is considered the owner of the fee, go further and state the doctrine without the limitation as to impairing and rendering insufficient the mortgage security, to be, that the mortgagor in possession will be restrained by injunction from removing fixtures, etc., constituting a part of the mortgage security, or otherwise committing waste upon the mortgaged premises.ii The mortgagor in possession may, however, ac- cording to the weight of authority (at least in those States where a mortgage is considered a mere security), exercise all (1864) ; Aokroyd v. Mitchell, 3 L. T. (N. S.), 236 (1860) ; King t. Smith, 2 Hare, 239, 244 (1843), where Wigram, V. C, in defining the terms "suf- ficient security," said: "I think the question which must be tried is whether the property the mortgagee takes as a security is sufficient in this sense: — that the security is worth so much more than the money advanced, that the act of cutting timber is not to be considered as substantially im- pairing the value, which was the basis of the contract between the parties at the time it was entered into." See, also. Camp v. Bates, 11 Conn., 51 (1835) ; Webb v. Boyle, 63 N. C, 271 (1869) ; Witmer's Appeal, 45 Penn. St., 455 (1863), which was an in- junction bill by prior judgment creditors whose judgments were a lien upon the land, to restrain the sale by subsequent judgment creditors of fixtures (parts of the engine and other machinery of a grist and saw-mill), which had been severed by the judgment debtor for the purpose of converting them into personalty and enabling such subsequent creditors to levy thereon and sell in satisfaction of their claims. Such sale was restrained by the court, upon the ground that such severance was a fraud upon the com- plainants, the real estate upon which their judgments were liens being eon- ceded to be insufficient for their security. [See Penn Mut. L. Ins. Co. v. Semple, 38 N. J. Eq., 314 (1884), as between a mortgagee and a judgment creditor.] [Mutual Life Ins. Co. v. Bigler, 79 N. Y., 568 (1880), modifying Mutual Life Ins. Co. v. National Bank of Newburgh, 25 Supr. Ct. (18 Hun), 371, 372 (1879) ; Starks v. Eedfield, 52 Wis., 349, 354 (1881) ; Taylor v. Collins, 51 Wis., 123, 127 (1881) ; Scott v. Webster, 50 Wis., 53 (1880) ; see, also, Cahn V. Hewsey, 29 N. Y. Supp., 1107 (1894); Kimball v. Darling, 32 Wis., 675, 687 (1871); Bobinson v. Cook, 6 Out., 590, 598 (1884).] [Under the statute a mortgagee can enjoin the removal of a building if an adequate remedy can not be afforded by an action of damages. State Sav. Bank v. Kercheval, 65 Mo., 682, 688 (1877).] 11 See Nelson v. Pinegar, 30 111., 473 (1863) ; State v. Northern, etc., Ewy. Co. (supra); Salmon v. Clagett, 3 Bland Ch., 180 (1830). [Williams v. Chicago Exhibition Co., 188 111., 19, 30 (1900) ; Minneapolis Trust Co. v. Verhulst, 74 111. App., 350,, 355 (1897).] 610 CHAP. XIII.] INJUNCTION. *410 such acts of ownership upon the premises (even to the extent of committing acts ordinarily amounting to waste), as do not im- pair and render inadequate the mortgage security, without ren- dering himself subject to be restrained by injunction; ^^ though in those States where the mortgage is considered a conveyance of the land an action at law may lie in respect of the things sev- ered. In those States where the mortgagee is considered the owner of the fee, and the doctrine is stated generally that the mortgagee is entitled to an injunction to prevent waste being committed upon the mortgaged premises, the grounds of the interference are stated to be that the mortgagee is entitled to his whole security unimpaired during the existence of his *mortgage;i* and that, as between the parties to the [*410] See, also, Titus v. Mabee, 25 111., 257 (1861) ; Titus v. Ginheimer, 27 Id., 462 (1861), where the sheriff was restrained at the suit of trustees of the bondholders from selling fixtures on execution against the owner of the land. i2Kekewich v. Marker, 3 Mac. & G., 311, 329 (1851); King v. Smith, 2 Hare, 239, 243 (1843) ; Perrine v. Marsden, 34 Cal., 14 (1867) ; Buckout v. Swift, 27 Cal., 433 (1865) ; Eobinson v. Eussell, 24 Cal., 467 (1864) ; Cooper V. Davis, 15 Conn., 556, 561 (1843). See ante, p. *48. [Williams v. Chicago Exhibition Co., 86 111. App., 167 (1899).] [Where the mortgagor is not alleged to be insolvent, and the loan is nine thousand dollars secured by property worth forty thousand dollars, the mortgagee is not entitled to an injunction to restrain the removal of fixtures worth two thousand dollars. Andrews v. Chandler, 27 111. App., 103, 110 (1887).] [While a court of equity will interfere by injunction to restrain waste by a mortgagor in possession, the waste must be injury to the freehold which will impair the security of the mortgagee. The removal of half decayed rails, and the scattered plank of a stable which has fallen from its own decay, is not waste. Coker v. Whitlock, 54 Ala., 180, 183 (1875).] [Where machinery is attached by the. buyer to his plantation, and the seller has a right to have such machinery sold to satisfy his claim, the mortgagee of the plantation will be enjoined from selling such machinery. Walburn-Swenson Co. v. Darrell, 49 La. Ann., 1044, 1046 (1897).] 13 Nelson v. Pinegar, 30 111., 473 (1863) ; State v. Northern, etc., Ewy. Co., 18 Md., 193 (1861); Eobinson v. Litton, 3 Atk., 210 (1744). [After foreclosure and sale, the mortgagor will be enjoined from cutting and removing trees valuable for lumber, which constitute the chief value of the land. Malone v. Marriott, 64 Ala., 486, 492 (1879).] [Either a senior or junior mortgagee has the right, by injunction, to arrest the commission of waste by the mortgagor in possession. Coleman V. Smith, 55 Ala., 368, 378 (1876).] 611 *410 THE LAW OP FIXTURES. [OHAP. XIII. mortgage the mortgagee is considered in equity as the owner of the fee and as such entitled to all the rights and remedies which the law gives to such an owner.^* The principle upon which relief is granted in those States where a mortgage is considered only a security, is that of preventing the destruction of such security.! ^ Injunction is also a proper remedy in certain cases as be- tween the vendor and vendee of real estate. Thus it has been held to be a proper remedy in behalf of the vendee in posses- sion to prevent the removal by the vendor of fruit trees in a nursery and ornamental shrubbery claimed by the vendor by virtue of a parol reservation from the deed.^® But a vendee of land in possession under his contract for the purchase thereof will not be enjoined from cutting timber thereon, unless the cutting is continued to such a degree as to render the land inadequate as a security for the payment of the unpaid pur- chase money.i^ So, an injunction bill may be maintained by a prior judg- ment creditor whose judgment is a lien upon the land against subsequent judgment creditors, to restrain the sale by them of fixtures severed by the judgment debtor for the purpose of 1* Nelson v. Pinegar (supra). 10 See Cooper v. Dayis, 15 Conn., 556, 561 (1843) ; Nelson v. Pinegar, 30 111., 473, 481 (1863) ; Brady v. Waldron, 2 John. Ch., 148 (1816). And the principle is the same in the case of an injunction bill by an at- taching creditor who has levied his attachment upon the land of the debtor. Camp v. Bates, 11 Conn., 51, 57 (1835). [In Williams v. Chicago Exhibition Co., 188 111., 19, 32 (1900), the court did not pass upon the point whether, to entitle a mortgagee to an injunc- tion against waste, it must be such as renders the security inadequate or insuf&cient, saying that some cases seem to treat "inadequate" and "im- paired" as convertible terms, and holding that the allegations in the bill of irreparable injury, that interests would be unduly prejudiced, etc., implied that by the removal of the buildings and machinery the security would be insufficient.] 18 Smith V. Price, 39 111., 28 (1865). [The vendee can not be restrained from removing houses erected by him, which he was under no duty to erect, as long as he complies with his contract, and is in possession, and it is not shown that the vendor 's security is impaired. Miller v. Waddingham, 91 Gal., 377, 382 (1891).] 17 Van Wyok v. Alliger, 6 Barb., 507 (1849); Scott v. Wharton, 2 Hen. & Mun., 25 (1808). [Core v. Bell, 20 W. Va., 169 (1882).] 612 CHAP. Xm.] • INJUNCTION. *411 converting them into personalty and enabling such subsequent creditors to levy thereon and sell in satisfaction of their claims, on the ground that such severance is a fraud upon the com- plainant, the real estate upon which his judgment is a lien being conceded to be insufficient for his security.i^ *An injunction is also an appropriate remedy at the [*411] suit of a patron to restrain waste by a rector or vicar in pos- session of an ecclesiastical benefice.^* As an incident to the relief by injunction against future waste, a court of equity will, in all cases where an injunction is granted to restrain such future waste, grant an account and decree satisfaction for the waste, if any, already done.^'' But where an injunction is not granted, neither, in general, will an account be ordered of the waste already committed, the maxim being "no injunction, no account. "^^ In Winship v. Pitts,22 the rule was laid down by Walworth, Ch., that a court of chancery only interferes to prevent future waste, except in cases where the complainant has no remedy at law, or a dis- covery is necessary, or where there is some other ground for equitable interference. In ordinary cases the account for isWitmer's Appeal, 45 Penn. St., 455 (1863). See, also. Camp v. Bates, 11 Conn., 51 (1835), the case of an attach- ment levied upon land; Webb v. Boyle, 63 N. C, 271 (1869). [An injunction against cutting timber will not be continued where, if removed, the property will still be valuable enough to secure creditors. Portland Bldg. Ass'n v. Creamer, 34 N. J. Eq., 107, 110 (1881).] isSowerby v. Fryer, L. E., 8 Eq., 417 (1869); 2 Atk., 217; Barnard, 399; Amb., 176; 1 Bos. & Pul., 119. See, also, 2 Bro. C. C, 552; 3 Mer., 427. 20 Jesus College v. Bloom, 3 Atk., 262 (1745); Ackerman v. Hartley, 8 N. J. Eq., 476 (1850) ; Porch v. Pries, 18 N. J. Eq., 204 (1867) ; Dennett v. Dennett, 43 N. H., 499, 503 (1862); Livingston v. Eeynolds, 26 "Wend., 115, 123 (1841). [Powell v. Cheshire, 70 Ga., 357, 360 (1883); Bonnell v. Allen, 53 Ind., 130, 134 (1876); Weatherby v. Wood, 29 How. Pr., 404, 407 (N. Y., 1865) ; Brown v. Sage, 11 Gr. Ch., 239 (Ont., 1865).] [Although one having a contingent interest can have waste by a life tenant enjoined, he can not recover damages for that already committed. Gordon v. Lowther, 75 N. C, 193, 195 (1876).] 21 Crockett v. Crockett, 2 Ohio St., 180, 186 (1853) ; Parrott v. Palmer, 3 My]. & K., 632, 640, 642 (1834) ; Garth v. Cotton, 1 Ves. Sr., 528 (1750). 22 3 Paige, 261 (1832). [See Swing v. Eourke, 14 Ore., 514 (1887).] 613 *412 THE LAW OP FIXTURES. [CHAP. XIH. waste already committed is merely incidental to the relief by injunction against future waste and is directed upon the prin- ciple of preventing a needless multiplication of suits. But where there is some distinct ground for equitable interference as to the waste already done, as where such waste is of such a character that the complainant has no remedy at law and by the denial of an account would receive great injury, it will be ordered, though no injunction is allowed.^^ [*412] *But on a bill simply to restrain waste by the removal of fixtures, and not for a sale or to foreclose the mortgage, the mortgage debt not being due, a receiver will not be appointed, an injunction being an adequate and appropriate remedy .2* As has been before remarked, injunctive relief in restraint of waste is generally exercised in cases where there is privity of title, and it was originally confined to cases founded upon such privity. But the jurisdiction has been gradually enlarged ; and now it is well settled that to prevent irreparable mischiefs, or to suppress multiplicity of suits and oppressive litigation, a court of equity will interfere in cases of trespasses where there is no privity. But if the trespass be merely fugitive and temporary, and one for which adequate compensation can be had at law, equity will not interfere.^^ Questions respecting fixtures may also arise for determina- tion in courts of equity in a variety of other ways. 23 Parrott v. Palmer, 3 Myl. & K., 632 (1834) ; Garth v. Cotton, 3 Atk., 751 (1753); s. c, 1 Vcs. Sr., 524, 546. Mines and collieries constitute an exception to the general rule on the ground that working them is a kind of trade, and as to them an account is granted even in cases where no injunction would lie. Story v. Windsor, 2 Atk., 630 (1743) ; Winchester v. Knight, 1 P. Wms., 406 (1717) ; Pulteney V. Warren, 6 Ves., 73, 89 (1801); Parrott v. Palmer, 3 Myl. & K., 632, 642 (1834). As to the allowance of an account against the assets of one deceased in cases of equitable waste where an injunction is inapplicable, see Morris v. Morris, 3 DeG. & J., 323 (1858) ; Lansdowne v. Lansdowne, 1 Madd., 116 (1815). 24 Eobinson v. Preswick, 3 Edw. Ch., 246 (1838). [See Collins v. Eichart, 77 Ky., 621, 623 (1879).] 25 See Jerome v. Ross, 7 John. Ch., 315 (1823); 2 Story's Eq. Jur, §§918, 928, et seq.; High on Inj., §458, et seq., where the cases are ex- haustively collected and considered. A further consideration of the subject here would be beyond the scope of this work. 614 CHAP. XIII.] INJUNCTION. *413 In Lawton v. Lawton,28 the question arose as to the right to fixtures as between the executor of a tenant for life and the remainderman, upon a bill filed by a creditor of the tenant for life to have a certain fire-engine set up for the benefit of a colliery by the tenant for life considered as personal estate and applied to the increase of assets for the payment of debts. In Dudley v. "Warde,^'' also, the bill was filed by the executor of a tenant for life or in tail against the remainderman to have four similar engines delivered up as the personal estate of his testator. In Franks v. Cravens,^® an engine, boiler and other maehin- *ery of a saw-mill situated on land covered by a deed [*413] of trust to secure a debt to A., were severed and removed to another tract of land several miles distant, and while there a deed of trust was executed upon them as personalty to secure a debt to another creditor and they were subsequently sold and passed into the possession of other parties. On a biU filed by the cestui que trust in the first deed against the purcha-sers, who had been in possession of the property for several years, alleging notice of plaintiff's lien on the mill, engine, etc., and that defendants were endeavoring to delay and hinder the plaintiff in the collection of his debt, and praying that the engine, etc., might be surrendered to a trustee to be appointed by the court in the place of the former trustee who had left the State, on the ground of notice of the plaintiff's prior lien, and that the said purchasers had only an equitable title cognizable in a court of equity, it was held, that, as there was nothing to have prevented the plaintiff or his trustee from pursuing and reclaiming the property by an action of trover or detinue in whosesoever possession it was found, there was a complete reme- dy at law, and therefore equity would not interfere. 26 3 Atk., 13 (1743). 27AinM., 113 (1751). [Where defendants in ejectment stand upon an agreement that buildings should remain their property, and do not dispute title to the land, and make no claim for the value of the improvements, a court of equity has juris- diction to allow the removal of such improvements. Decell v. McEee, 35 So., 940 (Miss., 1904).] 28 6 W. Va., 185 (1873). 615 *414 THE LAW OP FIXTURES. [CHAP. XIII. In Smith v. Altick,2o however, on a petition filed to foreclose a mortgage given to the vendor in pursuance of a contract for the sale by him of a " distillery with all the machinery, fixtures, etc., thereto belonging or appertaining," and to compel the purchasers of fixtures severed and removed from the distillery by the vendee while in possession under the contract, and sold to such purchasers both before and after the execution of such mortgage (the premises having substantially the same descrip- tion in the contract and the deed and mortgage executed in pursuance thereof, and such purchasers having notice of the plaintiff's rights under the contract and under the mortgage) to pay the value thereof into court, etc., it was held, that such purchasers being chargeable with notice of the rights of the vendor who had been guilty of no laches, were liable for the value of such fixtures to make up any loss to the vendor on [*414] *aeeount of the diminution in value of the premises by reason of their removal, the vendor's rights in this respect being considered as perfect as that of a mortgagee whose mortgage had been recorded; that the vendor after default in his mort- gage might join such purchasers and the mortgagor in one action to foreclose his mortgage, sell the mortgaged premises, and, in the event of their being insufficient, subject the value of the fixtures so purchased to make up the deficiency or loss to the mortgagee, such purchasers being liable in the inverse order of time in which the purchases were made. In cases like that last cited where the removal of the fix- tures renders the mortgage security inadequate, the purchaser of the fixtures having notice of the rights of the vendor or mortgagee, there would seem to be no obstacle to a complete remedy at law whether such mortgage is considered as a con- 20 24 Ohio St., 369 (1873). [Tate v. Meld, 56 N. J. Bq., 35 (1897); see, also. Mercantile Trust Co. v. Chicago, P. & St. L. R'y Co., 123 Fed., 393 (U. S. G. C A., 111., 1903).] [If a house is removed from mortgaged premises, the lien of the mort- gage follows, and the house may be sold if there be a deficiency. Dakota Loan Co. v. Parmalee, 5 S. D., 341 (1894).] [See Betz v. Muench, 13 Atl., 622 (N. J., 1888), as to the right of a mortgagee against a purchaser, with notice, of a house removed by the mortgagor.] 616 CHAP. Xni.] INJUNCTION. *414 veyance of the title or not ;3<' and in States where the distinction in form between legal and equitable remedies is kept up, the doctrine of Franks v. Cravens is probably more in accordance with principle. The two cases, may, however, probably be distinguished on this ground.*^ 80 See section 1, ante. 31 See further, on the subject o£ equitable remedies, Bennett v. Nichols, 12 Mich., 22 (1863). In this case the complainant's intestate had been leased premises for the purpose of erecting a, steam s3.w-mill thereon (the lease running to himself, his executors, administrators and assigns forever, reserving no rent but conditioned to erect and maintain a saw-mill), had placed thereon a frame for the building ready for erection, but which except as to a small amount of material had not been put up before his death, and he had contracted and partly paid for an engine for the same. After his death the land was sold by his lessor, and the purchaser together with the contractor for the engine, put up the frame, completed and commenced operating the mill. Complainant as his administrator filed his bill against them to compel the payment of the value of the mill frame, and of moneys paid toward the engine and to have the amount declared a lien upon the premises. Held, that his claims were not of equitable jurisdiction, and that his remedy was at law. [See Fisher v. Patterson, 99 111. App., 70 (1900), aff'd 197 111., 414 (1902); Hamlin v. Parsons, 12 Minn., 108; Seibel v. Siemon, 52 Mo., 363, 370 (1873); Betz v. Mueneh, 13 Atl., 622 (N. J., 1888) ; Edler v. Hasche, 67 Wis., 653, 661 (1887) ; and, ante, p. *47.] [Where a building is removed from mortgaged lots by the mortgagor, the mortgage remains a hen upon the building as between a subsequent assignee of the mortgage and one who has, by quitclaim deed and without notice, acquired the lot upon which such building has been moved. Part- ridge V. Hemenway, 89 Mich., 454 (1891).] [Where a dwelUng-house was removed from mortgaged land to another lot, and the latter lot sold to one without notice, the equities of the grantee and of the mortgagee are equal, and the mortgagee's only remedy is at law. Verner v. Betz., 46 N. J. Eq., 256 (1889).] [A mortgagee can not pursue property, when sold by the owner, after it is annexed to and forms part of real estate. Harris v. Bannon, 78 Ky., 568, 570 (1880). In this case cottages had to be removed to make way for a railroad station, and there was no evidence that the security had been impaired.] [Where, between the time of a foreclosure sale of a house and lot, and the expiration of the equity of redemption, the house is stolen and annexed to an adjacent lot, whatever right to an equitable lien the purchaser at the foreclosure sale might have had upon the property to which the house was removed, will be lost by a delay during which such property is acquired by an innocent purchaser. Pisher v. Patterson, 197 111., 414, 417 (1902), aff'g 99 111. App., 70 (1900).] 617 *415 THE LAW OP FIXTURES. [OHAP. XIU. III. Eeplevin. It is well settled that, if fixtures, timber trees, etc., consti- tuting during their annexation to the soil a part of the realty, are tortiously severed therefrom and removed by a wrong-doer, or by a tenant without the consent of the owner of the fee, they become, at the option of the owner of the soil, personal property; and may as such be recovered by him in an action [*415] *of replevin.! In those States where a mortgage is con- sidered a conveyance of the fee, the same rule applies, as be- [While the removal of a building can be enjoined by the mortgagee if his security would thereby be rendered insufficient, regardless of the re- sponsibility of the mortgagor; yet, if such removal has been made, and the mortgagee, in ignorance thereof, accepts a deed of the premises from the mortgagor in full payment of the indebtedness secured, he has no remedy. Triplett v. Parmlee, 16 Neb;, 649, 650 (1884).] 1 Christian v. Dripps, 28 Penn. St., 278 (1857); Harlan v. Harlan, 15 Penn. St., 507 (1850) ; Snyder v. Vaux, 2 Eawle, 423 (1830) ; Cresson v. Stout, 17 John., 116 (1819) ; Congregational Soc'y of Dubuque v. Fleming, 11 Iowa, 533 (1861); Laflin v. Griffiths, 85 Barb., 58 (1860); Ogden v. Stock, 34 111., 522 (1864) ; Sands v. Pfeiffer, 10 Cal., 258 (1858) ; Eichard- son V. York, 14 Me., 74 (1837). See, also, Heaton v. Findlay, 12 Penn. St., 307 (1849). [United States v. Cook, 86 U. S., 591 (1873); McGinnis v. Fernandes, 32 111. App., 424 (1889), afC'd 135 111., 69 (1890); Moore v. Combs, 24 Ind. App., 464 (1899) ; Cent. Br. E. E. Co. v. Fritz, 20 Kan., 430, 438 (1878) ; Green v. Chicago, E. I. & P. E. E. Co., 8 Kan. App., 611, 614 (1899); Strubbee v. Cincinnati E'y, 78 Ky., 481, 484 (1880); Luce v. Ames, 84 Me., 133, 134 (1891) ; United States v. Steenerson, 50 Fed., 504 (U. S. C. C. A., Minn., 1892) ; Mine LaMotte Co. v. "White, 80 S. W., 356, 360 (Mo. App., 1904) ; Tudor Iron "Works v. Hitt, 49 Mo. App., 472, 479 (1892) ; Kirch v. Davies, 55 "Wis., 287, 294 (1882) ; see, also. Sawyer v. Middleborough Co., 13 Ky. Law E., 550 (1891) ; Nelson v. Graff, 12 Fed., 389 (U. S. C. C, Mich., 1882) ; Merrill v. Dixon, 15 Nev., 401, 404 (1880) ; Jones V. Bull, 90 Tex., 187, 192 (1896).] They may also as a matter of course be retaken by the owner or his agent without process, by seizure and forcing them from such wrong-doer, using no more violence than is necessary for that purpose. State v. Elliot, 11 N. H., 540 (1841). [Detinue may also be maintained. Cooper v. "Watson, 73 Ala., 252, 254 (1882).] [A grantor, who is given the right to occupy the premises for a certain time, is the tenant of the grantee; and articles, which are a part of the realty, are let for use on the premises during the term. If wrongfully separated by the tenant they become the personal property of the landlord, 618' CHAP. Xm.] REPLEVIN, *415 tween the mortgagee and the mortgagor, or parties claiming under him, severing and removing fixtures from the mortgaged premises without the consent of the mortgagee.^ And since a sheriff's deed on the sale of mortgaged premises takes effect by- relation at- the date of the mortgage, it is held to pass fixtures annexed subsequently to the execution of the mortgage; and such fixtures if wrongfully severed by the mortgagor prior to the execution of such deed may be recovered in replevin by the purchaser at the foreclosure who subsequently obtains a sheriff's deed of the premises.* The rule first above stated applies irre- and all right of the wrong-doer therein ceases, and the landlord can bring replevin at once. Leonard v. Stickney, 131 Mass., 541, 545 (1881).] [A vendor of real estate under contract, the vendee being in default, can not maintain replevin for a house built by the vendee and afterwards removed from the land, until he has taken such steps as will entitle him to possession of the land. Ellsworth v. McDowell, 44 Neb., 707, 713 (1895).] [Where railroad iron was sold under an execution upon a. void judgment, and bought by the owner of the land to which it was attached, who re- moved it, and placed it in piles, and claimed ownership for two years, he is protected by the statute of limitations. Carter v. Pratt, 23 Kan., 613, 617 (1880).] 2 See ante, p. *47, and note; also Cresson v. Stout, 17 John., 116 (1819), replevin by mortgagee in possession as against a subsequent levy by an execution creditor. [Jones v. Ramsey, 3 111. App., 303, 310 (1878) ; see Scottish Am. Co. v. Sexton, 26 Ont., 77, 79 (1894).] [A mortgagor, without the knowledge of the mortgagee, moved a house from the mortgaged lot to another lot owned by the former, and subse- quently sold the house to the party whom the mortgagor had originally employed to move it. The latter proceeded to move it to a lot of his own; and, while it was detached, the mortgagee replevied it. Held, that the mortgagee could recover the house, as his title had not been extinguished; and the purchaser could not claim to be innocent, and the house was per- sonal property while severed. Dorr v. Dudderar, 88 111., 107, 109 (1878).] [Where the mortgagee has an order from the mortgagor to cut the hay upon the mortgaged premises, and apply the proceeds upon the mortgage note, he can maintain replevin for grass cut and carried away by a stranger, even though he might recover full compensation in a pending suit for trespass. Burley v. Pike, 62 N. H., 495, 497 (1883).] s Sands v. PfeifEer, 10 Cal., 258 (1858). See, also, Laflin v. Griffiths, 35 Barb., 58 (1860). [•But a purchaser of land at foreclosure sale can not, before the period of redemption has expired, bring replevin for a house removed from such land after the sale, as he has not the right to immediate possession. Peo- ple's 3ay. Bank v. Jones, 114 Cal., 422 (1896).] 619 *416 THE LAW OP FIXTURES. [CHAP. XHl. speetive of the physical character of the thing so severed and removed; thus, houses so severed and removed are properly sub- jects of replevin, though a house is prima facie a parcel of the realty.* And the action lies so long as the house or other article can be identified and is not permanently annexed to and made a [*416] part *of other realty.^ It is no cause of demurrer to a [Execution purchasers can maintain replevin for timber severed between the date of sale and the delivery of the sheriff's deed. So held in Michi- gan. Marquette, H. & O. E. E. Co. v. Atkinson, 44 Mich., 166, 168 (1880).] 4 Ogden V. Stock, 34 111., 522 (1864) ; Huebschmann v. McHenry, 29 Wis., 655 (1872). See, also. Mills v. Eedick, 1 Neb., 437 (1871). [Dorr v. Dudderar, 88 111., 107, 108 (1878); Matzon v. Griffin, 78 111., 477, 478 (1875) ; Bridges v. Thomas, 8 Okla., 620, 621 (1899) ; see, also. Gutter v. Wait, 131 Mich., 508, 509 (1902).] [Where a trespasser has begun to remove a building, replevin can be maintained therefor by the land-owner, although it lies about one-fourth upon the plaintiff's land. Luce v. Ames, 84 Me., 133, 134 (1891).] 5 Ogden V. Stock, 34 111., 522 (1864) ; Davis v. Easley, 13 111., 192 (1851) ; Huebschmann v. McHenry, 29 Wis., 655 (1872). [Richards v. Morey, 133 Gal., 437 (1901) ; Dorr v. Dudderar, 88 111., 107, 108 (1878) ; Hacker v. Munroe, 176 111., 384 (1898); Fifield v. Farmers' Nat. Bank, 148 111., 163, 173 (1893); Bicketts v. Dorrel, 55 Ind., 470 (1876); Gill v. DeArmant, 90 Mich., 425, 430 (1892) ; McDaniel v. Lipp, 41 Neb., 713, 716 (1894) ; see, also, Scottish Am. Co. v. Seston, 26 Ont., 77, 79 (1894).] [A contract for the purchase of land was entered into, which provided for the erection of a dwelling-house by the grantee which was to remain upon the premises. A house, sixteen by twenty-four, resting upon ten blocks of wood, was built; but, after default in payment upon the contract, was moved into the highway, and sold to an assignee of the contract, who moved it to a tract of his, and placed it upon a stone foundation which was thereon, intending to convert it into real estate, but which could easily be removed without injury to the house or to the land. Held, that the grantor could maintain replevin. Central Branch E. E. Co. v. Fritz, 20 Kan., 430 (1878). In this case is a review of the other cases upon the subject; and it was further said that where a house and founda- tion are not built at the same time, as parts and portions of a single whole, placing the house upon a stone foundation is not sufficient to make it a part of the realty, any more than placing it upon a stone pavement or upon the earth.] [Where a house is removed upon the land of a third party, and there is no privity of title between the ownership of the house and the ownership of such land, replevin will lie. Michigan Mut. Ins. Co. v. Cronk, 93 Mich., 49, 51 (1892).] See, however, Eeese v. Jared, 15 Ind., 142 (1860), which, however, is to 620 CHAP. XIII.] REPLEVIN. *416 declaration in replevin for a saw-mill, steam-engine with fixtures, a barn, shingle-mill, office and shed, described in the declaration as goods and chattels, that they are not personal chattels; for although these things ordinarily are fixtures and a part of the realty, yet they may be personal property; and being described as goods and chattels, whether they are so or not is a matter of evidence.^ But where the plaintiff in his af&davit for a writ of replevin stated that he was lawfully entitled to the possession of a certain steam saw-mill building, together with all the appa- be distinguished from the above cases on the ground that in this case the party upon whose lot the house was removed was not a trespasser, but had bought the house in good faith from the person who had built it on the lot of the plaintiff, and had paid for it; and because the house had in this case been set upon a permanent brick foundation. [See Fisher v. Patter- son, 197 111., 414, 417 (1902).] [Where a house, which is a part of the realty, is sold as personal prop- erty, and removed to another lot belonging to the purchaser, where it is placed upon brick pillars sunk into the ground with the intention of mak- ing it a residence for the purpose of sale, it becomes real property, although an action of trespass might lie for its removal. Salter v. Sample, 71 111., 430, 433 (1874).] [Replevin will not lie for a wooden partition. McAuliffe v. Mann, 37 Mich., 539, 542 (1877).] [Detinue will not lie for the recovery of machines which are a part of the realty. McFaddeu v. Crawford, 36 W. Va., 671, 680 (1892). Nor for log buildings, and a ferry-boat with cables. Stimson v. Smith, 1 N. W. Ter., 109 (1889).] oBrearley v. Cox, 24 N. J. Law, 287 (1854). ["Bails, as well as a string of fence, may be personal property." Fahnestock v. Gilham, 77 111., 637, 639 (1875).] [It is a matter of defence to show that a corn-crib is real property. Smith V. Stanford, 62 Ind., 392, 395 (1878).] [Where replevin was brought for "one frame building now in process of erection," etc., and the action was sent to another court where the plaintiff described the property as "all the lumber, laths, shingles, nails, joists, boards, and materials on lot," etc., "being the same chattels and personal property mentioned and described in the original petition filed in this cause, which petition is hereby made a part hereof, ' ' it was held that this was not a departure; and that the defendant by joining issue waived the error, if any. Waters v.- Eeuben, 16 Neb., 99 (1884).] [Where a defendant, in his pleadings, avers that buildings, erected by the plaintiff upon lands of another without permission, were "owned, pos- sessed and occupied" by such plaintiff, he is not at liberty to deny such averment, nor prove that such buildings became the property of the land- owner. Myrick v. Bill, 3 Dak., 284 (1883).] 621 •416 THE LAW OF FIXTURES. [CHAP. XIII. ratus, machinery and tackling belonging to the same, consisting of a steam-engine, etc., describing the land on which such mill was situated, but not stating that the property in question was personal estate, but simply alleging that plaintiff was the owner of the mill and appendages without showing the circumstances under which the same were put on the land, the affidavit was held defective and the proceedings dismissed.® Where a house or other fixture has been constructively severed from the realty and treated by the parties in interest as personalty, it is the subject of an action of replevin.'' So, where one mortgages eChatterton v. Saul, 16 111., 149 (1854). [The bare recital "that the plaintiff is the owner of the following de- scribed personal property, to wit: One frame two-story building about 28 feet wide by 30 feet long, and now located," etc., is a mere conclusion. It appears to be an action to recover real estate by replevin. The facts should be pleaded, so that the court may determine whether the action is properly brought. Demurrer sustained. Bridges v. Thomas, 8 Okla., 620 (1899).] [An engine and gin machinery were sold under an attachment as per- sonal property. The purchaser of the land at foreclosure sale, to whom the engine and machinery passed as real estate, in a trial of the right of proper^;y, sought summary judgment against the sureties upon a statu- tory claim bond. Held, that, as the purchaser maintained his title by proving that the property was real estate, without showing that by sever- ance it had become personalty, he could not enter judgment upon the bond. Bull v. Jones, 9 Tex. Civ. App., 346 (1895).] 7 Poy V. Eeddick, 31 Ind., 414 (1869) ; Hensley v. Brodie, 16 Ark., 511 (1855). [Wells V. Merle & Heaney Mfg. Co., 66 111. App., 292, 298 (1896) ; District Township of Corwin v. Moorehead, 43 Iowa, 466, 469 (1876); Commissioners of Eush County v. Stubbs, 25 Kan., 322, 325 (1881) ; Duke V. Shackleford, 56 Miss., 552 (1879) ; McDaniel v. Lipp, 41 Neb., 713, 716 (1894) ; Wheeler v. McFerrou, 33 Ore., 22, 23 (1898) ; Page v. Uriok, 31 Wash., 601, 603 (1903) ; Fitzgerald v. Anderson, 81 Wis., 341, 344 (1892) ; Scarth v. Ontario Power Co., 24 Ont., 446 (1894) ; see, also, Seidel v. Cornwell, 166 Mo., 51, 55 (1901); Waters v. Eeuber, 16 Neb., 99, 102 (1884).] [A portable engine on wheels, capable of being moved from place to place, and some old irons of a saw-mill that had been burned, are personal property and subject to a personal action. Kennedy v. Clayton, 29 Ark., 270, 278 (1874).] [Eeplevin can be maintained by the vendor of brewery fixtures under a conditional contract of sale, although attached. Ott v. Specht, 8 Hous., 61, 73 (Del., 1887).] [Where a l&ndlord attaches a steam-engine as the personal property of Ms tenant, it is an admission of record, whether conclusive is not deter- 622 CHAP. XIII.] REPLEVIN. *416 articles annexed to the realty, describing them as goods and chattels, all persons claiming under him will be estopped from denying that they are goods and chattels as against persons claiming tinder such mortgage, without reference to the question how they are annexed to the soil ; and in such a case as between these parties such annexations are proper subjects of an action of replevin.* mined, that the property belongs to the tenant, and, necessarily, that it is not a part of the realty. Hewitt v. Watertown Steam Engine Co., 65 111. App., 153, 158 (1895).] [A stave-machine, consisting of a line-shaft fastened by hangers bolted to joists in a mill, used to convey power thereto from an engine, some belting, an equalizer and a bucker, is personal property for which replevin will lie. BalUett v. Humphreys, 78 Ind., 388, 391 (1881).] [Where a son erects houses by permission upon land of his father, which the father intends to give his son, and the houses are sold by the son, they are personal property, and, as such, can not be recovered after the statute of limitations has run. Dominick v. Tarr, 22 S. C, 585 (1885).] [However, in Eddy v. Hall, 5 Colo., 576, 581 (1881), it was held that a copartnership agreement that one of the partners is to receive rental for certain real estate, and that the value of buildings permanently attached thereto is to be credited to Mm upon the firm books, and that, at the termi- nation of the copartnership, he is to take them back at a reduced price, and a sale by him after the termination of the copartnership, is not such a constructive severance as to make the buildings personal property.] sBallou V. Jones, 37 HI., 95 (1865). [See, ante, p. *346.] Eeplevin for taking the goods and chattels, to wit: one lime-kiln, etc., of the plaintiff. Avowry for rent in arrear. Plea in bar, that the lime-kiln was affixed to the freehold, and as such exempt from distress. Demurrer thereto. Held, that the plea in bar was bad, because it was a departure from the declaration which treated the lime-kiln as a chattel, while the plea treated it as affixed to the freehold. Judgment for defendant. Niblet v. Smith, 4 Term., 504 (1792). See, also. Lane v. Dixon, 3 C. B., 776 (1847). [In an action of replevin for mill machinery, where the sheriff has returned that he replevied the goods, and the defendants plead non cepit, and property, they can not contend that the machinery was a part of the freehold. Alexander v. Cowie, 19 N. Brunsw., 599 (1880).] [Where a fixture is severed from the soil so as to give to it the «haracter of personalty, and litigation in regard thereto occurs both before and after severance, its character at the time the plaintiff is required to appear in court determines the procedure; and the fact that the mortgagee of the land, before severance, claims the fixtures as real estate, does not estop him after severance in another suit from claiming it as personal property. Jones V. Bull, 90 Tex., 187, 194 (1896).] [Treating boilers as a part of the real estate by filing a claim for a 623 *417 THE LAW OF FIXTURES. [CHAP. Xm. [*417] *A writ of replevin, however, is effectual for the de- livery of personal property only,^ and furnishes no justification to an officer who under it severs and delivers part of the realty.** Neither does replevin lie by a tenant or his assignee against the landlord for an unremoved fixture, whether annexed for lien upon the real estate upon which they are located, which claim is afterwards released and not followed by suit, will not prevent such claim- ants from subsequently bringing an action of replevin for such boilers as personal property. Hacker v. Munroe, 56 111. App., 532, 540 (1894).] [Where a mortgagee, having dismissed a suit in replevin against a chat- tel mortgagee for fixtures, remains in possession thereof and is sued upon his replevin bond, he should be permitted, under the statute, to show in mitigation of damages that the property could not, from its nature, be cov- ered by a chattel mortgage; and he is not estopped by the fact that his affidavit for the writ called it personal property. HoweU v. Barnard, 32 111. App., 120 (1889).] [A chattel mortgagor of log houses and a ferry-boat and cables is not estopped from asserting that they are real estate. Stimson v. Smith, 1 N. W. Ter., 109 (1889).] oVansse v. Eussel, 2 McCord, 329 (1823). [See Camp v. Charles Thatcher Co., 75 Conn., 165, 170 (1902) ; Oskamp v. Crites, 37 Neb., 837 (1893); McCormick v. Eiewe, 14 Neb., 509 (1883).] 10 Eoberts v. Dauphin Deposite Bank, 19 Penn. St., 71 (1852). [See Bull V. Jones, 9 Tex. Civ. App., 346, 349 (1895) ; Alexander v. Cowie, 19 N. Brunsw., 599 (1880).] [A contrary view, however, is taken in Sample v. Broadwell, 87 111., 617, 620 (1878). Said Sheldon, J., in delivering the opinion of the court: "Although ordinarily a dwelling-house is attached to, and forms a part of, the realty, and is to be presumed such, there may be circumstances existing in which it will be a personal chattel, and one may own and have belonging to him as his personal property, a house standing upon the land of another; and the latter was what the officer had the right to believe and act upon as the condition here. The writ recited upon its face that the plaintiff suing it out had made affidavit before the clerk that the house belonged to him as his goods and chattels, and was vrrongfully detained by the defendant, and therefore the sheriff was commanded to cause the said goods and chattels to be replevied and delivered to the plaintiff. Surely it was not for the sheriff to set up against this the ordinary presumption that the house was part of the realty, and act thereon, and refuse to obey the writ. It did not belong to him to institute an inquiry whether or not the house was the personal property of the plaintiff, and execute the writ or not, according as he found the result. But he might rest upon the writ itself as his sufficient authority, and execute its command by the delivery of the property to the plaintiff, and if the defendant should thereby be wrongfully injured, his resort for redress should be to him who 624 CHAP. XIII.] REPLEVIN. *418 purposes of trade or otherwise; so long as it remains annexed, it is a part of the freehold." A title deed, however, though so connected with and essential to the ownership of real estate that it descends with it to the heir, is for the purpose of its recovery by a civil remedy, a personal chattel and hence recov- erable in replevin.! 2 The rule stated at the beginning of this section is subject to a qualification arising out of the rule of law that the title to real property can not be tried in a transitory action. The rule on this subject was thus stated by Field, J., in Halleck v. Mixer 1*: "The plaintiff out of possession can not sue for •property severed from the freehold, where the defend- [*418] ant is in possession of the premises from which the property was severed, holding them adversely, in good faith, under claim and color of title; — in other words: the personal action cannot he made the means of litigating and determining the title to sued out the writ, and not to the ministerial officer who obeyed the man- date of the writ."] [Eeplevin will not lie for a coffin and its contents after interment; and a sheriff should refuse to obey such a writ. There is no property in such things. Guthrie v. Weaver, 1 Mo. App., 136, 141 (1876).! "Brown v. Wallis, 115 Mass., 156 (1874). The article in question (which was not in terms decided to be a trade fixture, but only so consid- ered to show that in the most favorable aspect of the ease the plaintiff could not recover in that form of action) was a counting-room put into a store by a tenant, and consisted of a framework sheathed and paneled on both sides and fastened to the floor and walls by nails so securely as to require the use of a crow-bar to remove it; and it was necessarily sepa- rated into three pieces before it could be removed by the sheriff. See, also, Folger v. Kenna, 24 La. Ann., 436 (1872), where in an action for the recovery, separate from the land, of the double iron doors and iron lining of a brick vault attached with plaster to the walls of a house and to the soil by a brick foundation, it was held, that they were not recoverable separate from the premises in which located. [But see Hamilton v. Stew- art, 59 111., 330, 333 (1871).] 12 Wilson V. Eybolt, 17 Ind., 391 (1861). See, also, Atkinson v. Baker, 4 Term, 229 (1791). [See, ante, p. *230; and King v. Gilson, 32 111., 348, 354 (1863).] [It is otherwise where there is a dispute about its delivery. Pasterfield V. Sawyer, 43 S. E., 799 (N. C, 1903); see, also, Pasterfield v. Sawyer, 45 S. B., 524 (N. C, 1903).] IS 16 Cal., 574 (1860). 40 625 *418 THE LAW OP PETXniES. [CHAP. XHI. the real property, as between conflicting claimants.^* But this rule does not exclude the proof of title on the part of the plain- tiff in other eases, for it is, as we have already observed, upon such proof that the right of recovery rests. It is because the plaintiff owns the premises, or has the right to their possession, that he is entitled to the chattel which is severed, and that must of course be in the first instance established. A mere intruder or trespasser is in no position to raise the question of title with the owner so as to defeat the action." ^^ The rule above stated " See Brown v. Caldwell, 10 S. & E., 114 (1823) ; Heaton v. Findlay, 12 Penn. St., 307 (1849) ; Powell v. Smith, 2 Watts, 126 (1833) ; Snyder v. Vaux, 2 Eawle, 423 (1830) ; Anderson v. Hapler, 34 111., 436 (1864) ; and the cases cited in the next note {infra). [Hines v. Good, 128 Cal., 38, 40 (1900); Smith v. Cunningham, 67 Cal., 262, 263 (1885); Hooker v. Latham, 118 N. C, 179, 186 (1896) ; Eenick v. Boyd, 99 Pa. St., 555, 558 (1882); Weed v. Hall, 101 Pa. St., 592, 595 (1882); see, also, Caldwell v. Custard, 7 Kan., 303 (1871).] [A trespasser can not bring replevin for a house. Where a vendor of real estate under contract had some repairs made to the foundation of a, house thereon, after default by the vendee, such house being locked and containing goods of the vendee, the vendee being temporarily absent, is not retaking possession so as to enable the vendor to maintain replevin for the house. Ellsworth v. McDowell, 44 Neb., 707, 711 (1895).] [A purchaser of a building from a landlord can not bring replevin for the same against a tenant in possession. Eiewe v. McCormick, 11 Neb., 261.] [An action of replevin having been brought for wood and ties cut and removed from land, it was held that, upon the request of the defendant, under his averment that neither party was in possession of the land, and that the plaintiff claimed under an illegal tax purchase, the oourt properly transferred the cause to equity and canceled the plaintiff's tax-deed and awarded the wood and ties to the defendant. Eogers v. Kerr, 42 Ark., 100, 102 (1883).] [The owner of the freehold can not maintain detinue if, at the time of severance, he had not actual or constructive possession of the land. Cooper V. Watson, 73 Ala., 252, 254 (1882).] IB Citing Harlan v. Harlan, 15 Penn. St., 507 (1850). [Washburn v. Cutter, 17 Minn., 361; see, also, Cutter v. Wait, 91 N. W., 753 (Mich., 1902).] The rule above laid dovm has been approved in subsequent cases: Page V. Fowler, 28 Cal., 605 (1865) ; s. c, 37 Id., 100, where it was held that replevin for hay cut on public lands could not be maintained by a prior pos- sessor against one in adverse possession claiming a pre-emption right when he cut the hay; 8. P. in Page v. Fowler, 39 Cal., 412 (1870) ; Stockwell v. 626 CHAP. XIII.] REPLEVIN. *418 Phelps, 34 N. Y., 363 (1866). See, also, the rule of Halleck v. Mixer, explained in Kimball v. Lohmas, 31 Cal., 154 (1866), which was in turn explained in Page v. Fowler, 39 Cal., 412, 417. In Kimball v. Lohmas, the defendants were in the adverse possession of the land at the time the wood was cut, but had no title or color of title; and in 39 Cal., 412, 418, it is said that all the cases show that there must be something more than a mere assertion of title, and that the court in such eases will look into the case to see if there is in reality a claim of title to try. To the last point, see, also, Harlan v. Harlan, supra, where it was said by Rogers, J.: "It is not the actual possession, but it is the actual adverse possession of a person who claims title to it, that is the criterion. " * * * " The mere assertion of a title would be nothing. The court looks to the substance, and where it appears that in truth it is a trial of title, then it is properly ruled that replevin is not the proper action, but that it must be tried in another form. Beyond, the eases do not go, nor does public policy require they should. ' ' In Kimball v. Lohmas, above referred to, Sanderson, J., said: "Adverse possession is of different kinds: First, where the possession is taken by bow and spear without color of title, but with the intent to claim the fee exclusive of any other right, and to hold it against all comers, which is the kind found in the present cases; second, where the possession is taken under a claim of title founded upon a written instrument, as a conveyance, or upon the decree or judgment of a court of competent jurisdiction. The first is sufficient to put the Statute of Limitations in motion, and, at the expiration of five years, vest in the usurper a right under the Statute which is equivalent to title; but until the Statute has run he is to the true owner a mere intruder, without right. It can not be said in any just sense that as between him and the true owner a case of conflicting titles is presented until the Statute has run; or that until then there can be, as between them, any substantial contest as to the title. But as to the other, or second kind of adverse possession, the case is other- wise. There the possession is accompanied by at least a colorable title, and an actual and substantial contest as to the title must arise whenever the party out of possession undertakes to assert his rights in any kind of action, for they occupy the position of conflicting claimants as to the true title, and not as to the possession only. Where the defendant is in possession as a naked trespasser, and his right rests only upon a bold assertion which merely suffices to put the Statute of Limitations in motion, he is not in a position to contest the title of the plaintiff in such a sense as to defeat a personal action; for notwithstanding he may have alleged title in himself, it turns out to be false, and at the outcome it is made clear that title, al- though apparently a fact in issue, is so in no just sense, but only in seeming, and is in fact only exhibited by the plaintiff collaterally for the purpose of proving his right to the property in suit. Such is the rule announced in Halleck v. Mixer, as we understand that case, and if, as counsel for the appellants contend, that case creates an exception where none previously existed, we think it was not created too soon," 627 *419 THE LAW OF FIXTURES. [CHAP. Xm. [*419] has been carried so far, that *where the plaintiff had recovered in ejectment land with a mill situated thereon, and, after judgment and before issuing a writ of habere facias pos- sessionem, the defendant while yet in actual possession severed and removed from the mill the bolting-cloth, meal-chest, mill- spindle, etc., for the recovery of which the plaintiff brought replevin, it was held that such recovery in ejectment was not equivalent to actual possession, and that replevin did not lie.^ In the application, however, of the above rule a distinction is [*420] to be made between actions for *taking away the sub- stance of the estate itself, as fixtures, timber, etc., and those relating to annual crops, which contain both the value of the use of the land and the labor of the farmer, and such crops grown and actually harvested on the land by the defendant while in possession, it is held, may not be recovered in an action of replevin, the remedy of the owner of the land in such a case being by an action for the mesne profits after again recovering the possession of the land.^ And the rule is the same though the crops be sown by the owner of the land and harvested by the disseisor.^ "With respect to the damages recoverable in this form of action, it is to be observed that, although where one sues for damage to the freehold caused by the wrongful removal of a fixture, e. g., a fence, he may recover the value thereof as it stood, if a part of the realty, yet where he sues in replevin for 1 Powell V. Smith, 2 Watts, 126 (1833). In Harlan v. Harlan, already cited, in referring to this case, Eogers, J., said : " It is true there was a recovery in ejectment, but no habere facias had been issued, and, conse- quently, the possession of the defendant continued, as before, to be ad- verse. The remedy, therefore, was not replevin, but an action for mesne profits, or by writ of estrepement. " See, also. Page v. Fowler, 39 Cal., 412, 416 (1870). 2 See Stockwell v. Phelps, 34 N. Y., 363 (1866) ; Page v. Fowler, 39 Cal., 412 (1870) ; Brothers v. Hurdle, 10 Ired. Law, 490 (1849) ; Branch v. Morrison, 5 Jones's Law, 16 (1857); s. c, 6 Id., 16. [Cooper v. Watson, 73 Ala., 252, 255 (1882)'; Martin v. Thompson, 62 Cal., 618, 619 (1882); Edwards v. Eveler, 84 Mo. App., 405, 410 (1900).] See, also, Page v. I wler, 28 Gal., 605 (1865); s. c, 37 Id., 100; Eay- mond V. Andrews, 6 Gush., 265 (1850). See, however, Nichols v. Dewey, 4 Allen, 386 (1862). [Bowell v. Klein, 44 Ind., 290, 296 (1873).] sDeMott V. Hagerman, 8 Cow., 220 (1828). [See Wakefield v. Dyer, 76 Pac, 151 (Okla., 1904).] 628 CHAP. XIII.] TRESPASS. *421 the materials as personal property, whiek are not taken on the writ, he can recover only their value as such.* So, in an action by the purchaser at a mortgage sale for wrongfully de- taining machinery and other fixtures severed by a mortgagor (there being no claim for a wrongful taking) , the admission of evidence of the expense of replacing the property in the mill from which it was severed, is error. The severance of the prop- erty in such a case is no part of the cause of action, but would have been the subject of an action of trespass, the action in this ease being for the wrongful detention of the property after it became personalty.^ IV. Trespass. Since fixtures while in a state of annexation are parcel of *the realty to which they are annexed, the action of [*421] trespass in its application to injuries thereto is governed by the general rules limiting its application as a means of redressing injuries to real property. Trespass quare clausum lies against a sheriff for seizing under a fi. fa. the fixtures of the plaintiff, who is a freeholder.^ So, trespass quare clausum lies in favor of one tenant against his co-tenant for the unauthorized disseverance, removal and destruction by such co-tenant of fixtures constituting a part of the common property.'' And the unauthorized disseverance and removal by one co-tenant of machinery constituting fixtures in a sash and blind-factOry, and its incorporation into another mill the sole property of such co-tenant, has been held to be such a practical destruction of the common property as to authorize an action of trespass by the co-tenant who did not consent thereto ; ^ though a simple severance and removal would not, it seems, war- iPennybaeker v. MeDougal, 48 Cal., 160 (1874). e Gardner v. Finley, 19 Barb., 317 (1855). 6 Winn V. Ingilby, 5 B. & Aid., 625 (1822) ; Goddard v. Bolster, 6 Me., 427 (1830). TMaddox v. Goddard, 15 Me., 218 (1839); Symonds v. Harris, 51 Me., 14 (1862). See 1 Chit. Plead. (16 Am. ed.), 89, 175, 192, 200. Murley v. McDermott, 3 N. & P., 356 (1838). 8 Symonds v. Harris (supra). "See, also. Sparks v. Leavy, 19 Abb. Pr., 364 (1863) ; s. C, 1 Eobt., 530, an action by one tenant in common in pos- 629 *421 SHE LAW OS' FtStTUftES. [cHAP. XHl. rant the action.® So, in those States where a mortgage is held to be a conveyance of the land, and the possession of the mort- gagor is considered as the possession of the mortgagee, the mort- gagee or his assignee may maintain trespass quare clausum against any one who under authority from the mortgagor re- maining in possession enters and removes fixtures from the premises, whether annexed before or after the execution of the mortgage.!" session under a contract with his co-tenants to convey to him against a third person for injury to fixtures in which the whole damages were held recov- erable by him. 9 Gibson v. Vaughn, 2 Bail., 389 (1831). See, also, Murley v. McDer- mott {supra). 10 Cole v. Stewart, 11 Cush., 181 (1853) ; Smith v. Goodwin, 2 Me., 173 (1822). See, also, Harris v. Haynes, 34 Vt., 220 (1861). [linscott v. Weeks, 72 Me., 506, 509 (1881); Atkinson v. Hewitt, 63 Wis., 396 (1885); see risk v. People's Bank, 14 Colo. App., 21, 26 (1899).] [In the absence of an agreement, express or implied, denying the mort- gagee the right of immediate possession, the mortgagor can not maintain trespass against the mortgagee for removing fixtures. Chellis v. Stearns, 22 N. H., 312 (1851).] But a mortgagee out of possession and without the right of possession can not maintain trespass quare clausum against a stranger for breaking and entering the mortgaged premises. Gooding v. Shea, 103 Mass., 360 (1869). [Where the mortgagee is given an order by the mortgagor to cut the hay upon the mortgaged premises, and apply the proceeds upon the indebted- ness, he has an interest in the soil and sufficient possession to maintain tres- pass qu. cl. against a stranger who enters, cuts and carries away the hay after being notified not to do so. Burley v. Pike, 62 N. H., 495 (1883).] [A mortgagee, whether in possession or not, may maintain an action on the ground that his security has been diminished, as long as anything is due. The mortgagor in possession may also recover for the same injury, but the defendant is not compelled to make two satisfactions; and, as against the mortgagee, he can show, in mitigation of damages at least, that, since the injury, there has been a change of relation to the property whereby the mortgagee can be indemnified by a less sum. King v. Bangs, 120 Mass., 514 (1876).] [A mortgagee, with the right of possession, can maintain the action of trespass quare clausum, the legal title being in him, if his security is affected. Leavitt v. Eastman, 77 Me., 117, 119 (1885).] [Trespass q. c. for removing manure lies against the mortgagor by the mortgagee entitled to immediate possession, although he is for a time post- poned in getting possession by legal process; and it lies against one buying 630 CHAP. XIII.] TRESPASS. *422 *0n the other hand, it is well settled that a lessor can- [*422] not maintain trespass quare clausum against a stranger for severing and removing fixtures, trees, crops, etc., while there is a tenant in possession of the premises.^ Neither can he main- tain this action against his tenant for wrongfully severing and removing fixtures during the term; nor against the sub-tenant at will of his tenant.^ So, under an agreement for the sale of land, the payment of the purchase money and the execution of the deed being the manure from the mortgagor and taking it away. Vehue v. Mosher, 76 Me., 469, 470 (1884).] [A mortgagee, alleging that the removal of a building pending fore- closure proceedings, lessened his security, can not recover by showing a deficiency under the foreclosure and sale, if the foreclosure was void. Taylor v. McConnell, 53 Mich., 587 (1884).] A mortgagor can not maintain trespass for the removal of buildings (theretofore erected by mortgagee in possession) intermediate the decree on a bill to redeem and the issuing of a writ of possession, the mortgagor not being in possession. Taylor v. Townsend, 8 Mass., 411 (1812). A tenant for a term of years demised the premises to plaintiff by way of mortgage by deed dated March 24, 1838, expressed to hold thenceforth during the remainder of the term less one day, and, thereby also assigned to plaintiff the fixtures, etc., therein to hold to the plaintiff for his own absolute use and benefit, subject to the proviso thereinafter contained for a reconveyance on repayment of the mortgage money on the 24th of June then next, and also, that on non-payment on that day it should be lawful for the mortgagee to enter upon and receive and take the rents and profits of the said leasehold and other premises, and if he should think proper so to do of his sole authority to sell or underlet the premises, and to sell the fixtures and chattels. There was no covenant that the mortgagor should remain in possession till June 24th, but the court held that looking at the whole deed the plaintiff 's right to take possession did not attach till that day, and that, therefore, the mortgagee could not maintain trespass for an entry or for an asportavit of the fixtures, etc., made before that day by a third party. Wheeler v. Montefiore, 2 Q. B., 133 (1842); s. c, 6 Jur., 299; 1 Gale & Dav., 493. 1 Campbell v. Arnold, 1 John., 511 (1806) ; Gibbons v. Dillingham, 10 Ark., 9 (1849). [Uttendorffer v. Saegers, 50 Cal., 496, 498 (1875); Eey- nolds T. Williams, 1 Tex. Eepts., 311, 312.] [This rule has been changed by statute in New York. Taylor v. Wright, 51 App. Div., 97, 99 (1900).] 2 Schermerhorn v. Buell, 4 Den., 422 (1847) ; Tobey v. Webster, 3 John., 468 (1808). Per Yates, however, in this case: "An action of trespass may be maintained by a landlord against a tenant at will, for waste, be- cause the injury determines the estate, and the possession considered as 631 *423 THE LAW OP FIXTURES. [CHAP. XHI. concurrent acts to be done in the future, although the vendee acquires an equitable interest and the right to specific per- [*423] *formance on payment made, yet, not having the legal title nor the possession, he cannot maintain trespass for an inter- mediate removal of fixtures by the vendor.^ So, an heir, or devisee cannot, it is said, bring trespass quare clausum to try the right to fixtures as between himself and the executor, till after entry made ; * though in the United States the doctrine does not seem to have been universally accepted, the owner in some States be- ing allowed to maintain trespass without actual entry, on the principle that possession follows the ownership, unless there be an adverse possession.* Whatever may be the rule as to constructive possession in the ease of real estate, the rule is well settled that where fixtures, timber, etc., have been severed from the freehold and thereby reduced to the condition of chattels, the person in whom is vested the right of property from the time of severance, may maintain trespass de bonis asportatis for their removal ; because the general property of personal chattels draws to itself the legal possession.^ Thus, it lies by the grantee of real estate in thereby actually in the landlord." See, also, 8 Edw. IV., 8; 12 Id., 8; Litt., §71; Saville, 84; Dy. 121b; Com. Dig., Tresp., B 2; Bull. N. P., 84; 1 Chit. Plead., 200, and cases cited. s Tabor v. Robinson, 36 Barb., 483 (1862). * Anonymous, 2 Mod., 7 (1686); Plowd., 142; 1 Chitty Plead., 197, 198. See, also, 21 H. VII, 26 (1506) ; Perard Pixt., 290. 5 See Van Brunt v. Sehenck, 11 John., 385 (1814), per Spencer, J.; Cohoon V. Simmons, 7 Ired., 189 (1847) ; MeGraw v. Bookman, 3 Hill (S. C), 265 (1837). See, also, 1 Chitty Plead. (16 Am. ed.), 197, and the cases cited. 6 See Perard Pixt., 290; Wadleigh v. Janvrin, 41 N. H., 503 (1860). [Westgate v. Wix on, 128 Mass.,_ 304, 307 (1880) ; Gasco v. Marshall, 7 Up. CanTcj. B., 193, 196; Meyers v. Marsh, 2 Up. Can., Q. B., 148.] [A purchaser of a growing crop can maintain trespass de bonis aspor- tatis but not quare olausum fregit against the seller, the landowner in possession of the land, for injury thereto; and he is not estopped because the price is paid after the trespass was committed, where the sale was on credit. Meinke v. Nelson, 56 111. App., 269, 271 (1894).] [One not in possession of land who has bought grass growing thereon can maintain trespass against one who cuts and carries it away. Avitt v. Farrell, 68 Mo. App., 665, 668 (1896).] [One having title to lands can not maintain trespass for trees cut and removed therefrom while another, in possession, is holding adversely. The 632 CHAP, xm.] TRESPASS. *424 possession for the wrongful removal of fixtures by the grantor.^ So, fixtures belonging to the landlord and demised by him with the land to the tenant, or which for any reason the tenant has no right to sever and remove, timber, virgin soil, etc., wrongfully severed and removed by a tenant during his term, may be re- covered by the landlord in trespass de ionis? In like manner the owner of land in possession of a tenant may maintain tres- pass de bonis against a stranger for taking and carrying away fixtures belonging to the landlord, timber, etc., wrongfully sev- ered by him from the *land.^ A question has, however, [*424] been made whether an action of trespass de bonis asportatis for the removal of fixtures after their severance could be main- tained in a ease where the severance and removal are one con- tinued and entire act; i" and the case of Udal v. Udal ^^ is cited title can not be litigated in a personal or transitory action; otherwise a tona fide occupant might be harassed by a multiplicity of suits, all of which should more properly be embraced in one action for mesne profits after of during recovery in ejectment. Beatty v. Brown, 76 Ala., 267, 269 (1884).] [Trespass can be maintained by one not in actual possession of the land if he has the legal title, and the trespasser is not in possession, and does not claim title. Jenkins v. Lykes, 19 Fla., 148, 160 (1882).] [And it is held in Alliance Trust Co. v. Nettleton Co., 74 Miss., 584, 592 (1896), that trover or trespass de bonis asportatis can be maintained by the disseizee, the true owner, after his re-eatry, for the value of trees cut by the first or second disseizor or their grantees intermediate the disseizin and such re-entry.] [An administrator can recover for injuries to real estate caused by cutting and carrying away standing timber, committed after the death of the intestate and before he takes possession of the real estate. Noon v. Pinnegan, 32 Minn., 81 (1884).] 7 Wadleigh v. Janvrin (^supra.) 8 See Schermerhorn v. Buell, 4 Den., 422 (1847) ; Higgon v. Mortimer, 6 C. & P., 616 (1834); Udal v. Udal, Aleyn, 82 (1648); Liford's Case, 11 Co., 48 (1614); Bowles's Case, 11 Co., 81 b (1615). 9 Bulkley v. Dolbeare, 7 Conn., 232 (1828) ; Ward v. Andrews, 2 Chitty, 636 (1772). [Babley v. Vyse, 48 Iowa, 481, 483 (1878); Bailey v. A. Siegel Co., 54 Mo. App., 50, 54 (1893); Parker v. Shackelford, 61 Mo., 68, 72 (1875); Smith v. Felt, 50 Barb., 612, 615 (N. Y., 1868). See Murphy v. Stafford (1852), 4 Ir. Jur., 231, 232.] [Landlord can bring action against one having no title who removes gravel from the land. Mayor of Carterville v. Lyon, 69 Ga., 577, 580 (1882).] loFerard Fixt., 292. 633 *425 THfi LAW OV I'KtUfiES. [chap. XUl. as bearing upon the question, where it is said to have been agreed by the court "if a lessee for years cuts down timber trees and lets them lie, and after carries them away, so that the taking and carrying away be not as one continued act, but that there be some time for the distinct property of a divided chattel to settle in the lessor, that an action of trespass vi et armis would' lie in such case against the lessee; and that in such case felony might be committed of them; but not where they have taken and carried away at the same time." Although the distinction so far as it refers to the crime of larceny has, in favorem vitae, been recognized in subsequent cases,^^ yet even there a slight interval between severance and removal will make the thing re- moved a chattel ; ^ * and the distinction so far as it applies to the action of trespass de ionis asportatis, or trover, seems entirely too subtle and refined ever to be generally adopted, and does not seem in fact to have been alluded to or adopted in subsequent cases, though circumstances raising the question must have fre- quently happened.^* [*425] *A tenant or his vendee may also recover in this form of action against a wrong-doer for the asportation of fixtures, 11 Aleyn, 82 (1648). See, also. Bull. N. P., 84; Vin. Abr., Trees, A, G; 2 Eoll.. Abr., 119 ; Com. Dig. Biens, H ; 3 Bing., 136 ; Barnes v. Burt, 38 Conn., 541 (1871), cited post in this sec. 12 See post, chapter on Criminal Law. IS See Spooner v. Brewster, 8 Bing., 136 (1825); s. c, 10 Moore, 494; 2 0. & P., 34, per Best, C. J. " See Berry v. Heard, Cro. Car., 242 (1622) ; s. c, Palm., 327 ; Bend., 141; W. Jo., 255; Skidnes v. Huson, Noy, 125 (1607); 2 Eoll. Abr., 119; Ferard Fixt., 299; post, Trover. [Rails, when made into a fence, become a part of the land; and where they are removed and carried away by the same continuous act, it is not trespass to personal property. State v. Graves, 74 N. C, 396 (1876).] Where fixtures are severed from the freehold and remain on the prem- ises for a period, but are subsequently removed, the Statute of Limitations is no bar to an action for the removal brought within six years thereafter, although more than six years have elapsed since the severance. Morgan v, Varick, 8 Wend., 587 (1832). [When timber is cut and hauled away, the trespass may be considered as a continuing trespass, not completed until the timber is hauled away; and, under these circumstances, the statute of limitations would not com- mence to run until the removal of the timber was completed. Sullivan v. Davis, 29 Kan., 28, 34 (1882).] 634 CHAP. Xm.] TRESPASS. *425 nursery trees, shrubs, plants, etc., removable by the tenant as against his landlord.!^ The tenant in possession, also, it is said, has during the term a sufScient interest in the fixtures to enable him to maintain trespass de bonis asportatis or trover against a third party who wrongfully removes them, although at the end of the term he may be bound to leave them for the use of the landlord;!^ for during the term he has a special property therein. So, where A. granted to B. and his heirs, liberty, license, power and authority to build a bridge on A.'s land for public use, and B. covenanted to build the bridge and maintain the same in repair, and that such bridge and the road leading to and from it should forever remain as a public highway free from toll, it was held that as against a wrong-doer the property in the materials of the bridge, when built and dedicated to the public, still continued in B., subject to the public easement, and that when severed and taken away by a wrong-doer, he might maintain trespass de bonis for such materials.!^ So, 15 See Miller v. Baker, 1 Met., 27 (1840) ; s. C, 3 Law Reporter, 148. In this case the tenant had sold and delivered nursery trees, etc., while rooted in the ground, to the plaintiff, and after such sale they were levied upon on an execution against the tenant and kept by the officer rooted in the greenhouse and garden, no one being permitted to remove them; and this taking them into possession and excluding the owner from the lawful exercise of Ms rights over them was treated as a conversion sufficient to warrant trespass de ionis, the trees, etc., being considered mere personal chattels. See, however, Davis v. Banks, 3 Exch., 435 (1849) ; Lee v. Eis- don, 7 Taunt., 191 (1816), and other eases cited post, to the point that fixtures during annexation are realty. 16 See Hitchman v. Walton, 4 M. & W., 409, 416 (1838), per Parke, B.; Boydell v. McMichael, 1 Cr. M. & E., 177, 179 (1834), per Parke, B.; Bowles's Case, 11 Co., 82 (1615); Bull. N. P., 33; Vin. Abr., Trees, G. See, however, Evans v. Evans, 2 Camp., 491 (1810), where it was held at nisi prius that a tenant for years could not maintain trespass de ionis asportatis for timber cut down on the demised premises. Lawrence, J.: "The plaintiff had no property or interest whatsoever in the trees after they were severed from the freehold. They were then in the legal posses- sion of the reversioner, and he alone could maintain trespass for the asportation. ' ' 17 Harrison v, Parker, 6 East, 154 (1805). Lord Ellenborough, C. J.: "They [the materials] were dedicated by him to the public for given purposes, but a scintilla of property still remained in him ; and when those purposes could no longer be answered by their ceasing to be combined in that form in respect of which the dedication was made, without saying that 635 *426 THE LAW OP FIXTURES. [CHAP. XUI. [*426] *where fixtures, timber, trees, etc., constituting a part of the premises demised to the tenant, are wrongfully severed by the landlord or by one acting under his authority, it seems that the landlord and the party so acting under him in effecting such wrongful severance cannot take advantage of their own wrong- ful act, and are estopped from claiming that the tenant's interest in the thing so severed is thereby terminated, and hence that the tenant may recover therefor in trespass.^* he could have severed them himself, they returned to him again as his absolute property, and he may well maintain this action against a wrong- doer for the materials now subsisting in the shape of several chattels. It is something analogous to the case where the founder of an eleemosynary foundation dedicates his laad to its support, and it afterwards ceases, the land reverts to him or his heirs. Here there was a qualified right of prop- erty subsisting in the plaintifE after the dedication of the bridge to the public, which upon the severance of the materials became a perfect right of property in him. ' ' See, also, 8 Taunt., 614. [A land-owner constructed a sidewalk in front of his lot. Forty-five years later, the city, in constructing a drain, removed the granite curb- stones, substituting others, and sold those which had been removed. The land-owner brought trespass d. h. a. against the person who assisted in car- rying them away. Eeld, that the defendant was liable, as, in the absence of proof, the land-owner owned to the middle of the street; that, at most, he dedicated the use only of such sidewalk to the public, which to be complete, must be proved to have been accepted; and that, while the city might have used the material for repairs, such material could not be sold. Muzzey v. Davis, 54 Me., 361 (1867).] [Trespass- q. c. does not lie against one fastening his boat to a bridge which forms the public highway over a navigable stream, although the bridge rested upon the soil of the plaintiff. Parsons v. Clark, 76 Me., 476 (1884).] 18 See Pitt V. Shew, 4 B. & Aid., 206 (1821); Channon v. Patch, 5 B. & C, 897 (1826). Holroyd, J., in this case said: "The landlord (under whom the plaintiff claims as vendee) cannot by wrongfully cutting down the trees acquire a right to them so as to entitle him to maintain trespass against the tenant for taking them away. That would be allowing him to take advantage of his owu wrong, for the lessee, during the term being entitled to the usufruct of the trees, might have maintained an action on the case against the landlord for wrongfully cutting them down." See, also, Twigg V. Potts, 1 Cr. M. & E., 89 (1834) ; Vin. Abr., Trees, A. [See Meinke v. Nelson, 56 111. App., 269, 271 (1894) ; Willis v. Branch, 94 N. C, 142, 150 (1886).] A. hired of B. certain rooms with the privilege of putting a brass plate with A. 's name thereon upon the front door there to remain so long as he 636 CHAP. XIII.] TEESPASS. *427 *But although an auctioneer has a special property as [*427] bailee in goods and chattels put into his possession for the pur- pose of sale, whether such goods be in his own rooms or in the house of another person, yet where put into possession of a house for the purpose of selling in lots, machinery and fixtures, to be sold as fixtures attached to the freehold, the purchaser being bound to detach. and remove them, such auctioneer has not such a possession of the house and fixtures as to entitle him to bring trespass de bonis for their wrongful removal. He was only au- thorized at the time of his employment to sell the right of de- taching and removing the fixtures; has no possession of them as materials ; and is not in possession of the freehold.!^ With reference to the proper manner of describing the prop- erty in question in the pleadings in actions of tort for injuries to fixtures, some questions have arisen which will be referred to at this place. The value of fixtures illegally taken has been held to be re- coverable in trespass under a declaration for breaking and enter- ing plaintiff's dwelling-house and for taking divers "goods and chattels, and effects," Abbott, C. J., observing that fixtures might be taken in execution under a fieri facias which contains similar words.^" should continue to occupy the apartments. Subsequently the rent being in arrear B. removed the brass plate from the door and refused A. access to his apartments. In trespass by A. charging that B. broke and entered A. 's apartments and expelled him therefrom, that he removed the plate of plain- tiff from the outer door and seized and converted his goods, B., among other pleas, pleaded that A. was not possessed of the brass plate modo et forma, on which issue was taken. Seld, that the removal of the plate having been complained of in the declaration as a substantive trespass and issue taken on' the possession of the plate as a chattel, it was not compe- tent for defendant to change his ground. If defendant had meant to con- tend that it was so fixed to the freehold as to have ceased to be a chattel, he should in his plea have shown how it was in fact fastened, and not hav- ing done so, it was too late to urge the point on the rule nisi to enter ver- dict for defendant or a nonsuit on the ground that the removal of the plate was not a substantive trespass. Lane v. Dixon, 3 C. B., 776 (1847) ; S. C, 11 Jur., 89 ; 16 L. J., C. P., 129. See, also, Welch v. Nash, 8 East, 394 (1807). "Davis V. Danks, 3 Exch., 435 (1849); s. C, 18 L. J., Bxch., 213. See, however. Miller v. Baker (ante). 20 Pitt V. Shew, 4 B. & Aid., 206 (1821). The articles in question in this 637 *428 THE LAW OF FIXTUEES. [CHAP. XIII. On the other hand under a declaration by an administratrix complaining of iajuries to the "personal chattels" of the intes- tate, no recovery can be had for injuries to the trade fixtures of a [*428] tenant firmly affixed to a building by bolts and *screws, they not being personal chattels.^i In order to avoid all ques- tion in similar cases where the injury complained of is done to property while in a state of annexation to the freehold, the prop- erty should be described in terms applicable to it only in a fixed state.22 case probably were not removed till several days after their severance. See s. c. on motion for a new trial, 4 B. & Aid., 208; Parke, B., in Hallen V. Eunder, 1 Cr. M. & E., 266, 276 (1834) ; Perard Fixt., 293, note. See, also, Twigg v. Potts, 3 Tyrwh., 969 (1834); s. c, 1 Cr. M. & E., 89; 3 L. J. (N. S.), Exch., 336. 2iBarnett v. Lucas, 5 Ir. Com. Law, 140 (1870). [Eeversed in (1872) Ir. E., 6 C. L., 247.] See, also, Pirn v. Grazebrook, 4 Scott N. E., 565 (1842). 22 See Ferard Fixt., 293, and the cases cited in the following pages. See, also, Eichardson v. Ardley, 38 L. J. Chanc, 508 (1869); Dyer, 108 b, pi. 31. Where plaintiff declared in trespass to personal property for taking and carrying away his "small fish-house or camp," and in another count for destroying his "wooden camp or small house," situated on a small island in another State, it not appearing that the building stood on land owned by any private individual, and the plaintiff making no claim to the land; and it appeared that the house or camp was a building abbut nineteen feet square, one story high, with no cellar, used by plaintiff and his men to live in every spring while carrying on the salmon fishery, it was held that there was no legal presumption from the declaration and evidence that the build- ing was real estate, and that if defendant would oust the courts of Massa- chusetts of jurisdiction on the ground that the action was a local one, he should prove it so, and not having produced any evidence at all the plaintiff was entitled to recover. Sogers v. Woodbury, 15 Pick., 156 (1832). [An action for injury to. a wooden tent erected upon the land of another tinder a parol license, is transitory, and can be brought in another county than that in which the building is located. Ford v. Burleigh, 62 N. H., 388, 391 (1882). See Laird v. Eailroad, 62 N. H., 254, 261 (1882).] [Where the lower court, in an action of trespass qua. cla., has rendered judgment for the plaintiff, every reasonable intendment is to be made in support of it; and where the facts found are consistent with the theory that a meetinghouse horseshed, the subject of the suit, was so attached as to the realty as to become a part of it, the judgment will not be reversed, Kelly V. Seward, 51 Vt., 436, 440 (1879).] 638 CHAP. XIII.] TEESPASS. *429 With respect to the measure of damages in actions of tres- pass quare clausum fregit for injuries to real property, it may be laid down that, although the asportation of fixtures, trees, etc., may be a ground for maintaining the action of trespass de ionis asportatis, or trover, yet it may be laid also as an aggrava- tion in trespass.^* And, though in trover the plaintiff can only recover the value of the fixtures wrongfully severed *as [*429] chattels,^* though it be less than their value was as fixtures, yet in trespass their actual value as fixtures may be recovered.^^ [Where a steam-barge ran into a boom of logs, which consisted of con- nected timbers chained at one end to a clump of piles, and at the other to a dock, it was held to be a trespass upon real property, and within the jurisdiction of a state court. John Spry Lumber Co. v. Steam-barge C. H. Green, 76 Mich., 320, 331 (1889).] [A fence being part of the realty, an action of trespass q. c. for taking it away raises a question as to the title to real estate which is beyond the jurisdiction of a justice of the peace. Murray v. Van Derlyn, 24 Wis., 67 (1869).] In Coddington v. Beebe, 29 N. J., 550 (1862) ; (s. C, 31 Id., 477), upon demurrer to a declaration to enforce a mechanics' Hen against a "certain building and fixture for manufacturing purposes, and the fixed machinery and gearing attached to and connected therewith and making a part thereof, known by the name of a floating-dock" (describing it), and also upon the estate of the owner of said building in the land whereon the said building stood and to which it was attached. Meld, that it was impossible to deter- mine from the declaration whether such floating-dock was or was not a fixture, and the judgment below overruling the demurrer and giving judg- ment for plaintiff was reversed and the record remitted. [See, ante, p. *289.] 23 Anderson v. Buckton, 1 Str., 192 (1719) ; Barnes v. Burt, 38 Conn., 541 (1871), where in trespass by husband and wife for an entry on the land of the wife, and the severance and removal of a pump so affixed to the land as to become a fixture, the plaintiffs were held entitled to recover for the removal of the pump, if the entry, severance and removal were one con- tinuous act. See, also, Weeton v. Woodcock, 5 M. & W.. 587 (1839) ; s. c. Id., 143. 24 Clarke v. Holford, 2 C. & K., .540 (1848), and cases cited in the next section. 25 Moore v. Drinkwater, 1 Fost. & Fin., 134 (1858). [Ehoda v. Alameda County, 58 Cal., 357 (1881) ; Kent County Soc. v. Ide, 128 Mich., 423, 426 (1901); Beck v. Zimmerman, 75 N. C, 60 (1876).] [The measure of damages for removing an oil-tank used for the purpose of lighting a theatrical hall, would be the cost of returning the tank, of repairing injuries and the loss resulting from disappointment of existing 639 *429 THE LAW OP FIXTURES. [CHAP. XHI. Thus, where the assignees of a bankrupt sold at auction fixtures belonging to the plaintiff and situated on demised premises, for £36 16s., which was their fair value sold in that manner, but their value if sold at a valuation as between incoming and out- going tenants would have been £80, in trespass for taking and carrying away the goods, chattels, fixtures and effects of plain- tiff, it was held by the Court of Queen 's Bench that the assignee was not entitled to take advantage of his own proceeding in separating the fixtures from the house, according to ordinary experience it being most probable they would be sold with it, and that plaintiff was entitled to recover damages according to the latter estimate^® So, in trespass for removing the fruit trees from an orchard, the measure of damages is the orchard as it was situated upon the ground, i. e., what it was worth to the tract of land, and not the value of the trees which were re- moved.2^ Where, however, in trespass quare clausum f regit, the plaintiff complains not only of injury to land, but that his dwelling- house was destroyed, and the cause is tried upon plea of title, he cannot upon error brought insist that the house was per- sonalty for the destruction of which trespass would lie. The gist of the action in such ease is the injury to the land, the allega- tion as to destruction of the dwelling being merely matter of aggravation; and unless the evidence sustains the charge of in- jury to the land the plaintiff is not entitled to recover. ^^ But engagements for entertainments. Willis v. Branch, 94 N. C, 142, 149 (1886).] [Where a building is destroyed, the extent of the recovery of a life tenant is not the value of the fixture, but is to be approximated by taking into consideration its rental value less taxes and repairs, and multiplying by the probable duration of life. Sagar v. Eckert, 3 111. App., 412, 417 (1879).] 26 Thompson v. Pettitt, 10 Q. B., 101 (1847) ; s. c, 11 Jur., 748; 16 L. J., Q. B., 163. 2T Mitchell V. BilHngsley, 17 Ala., 391 (1850). See, also, Ivey v. Mc- Queen, Id., 408 (1850) ; Whitbeck v. N. Y. Central E. R. Co., 36 Barb., 644 (1862). [See White v. Stoner, 18 Mo. App., 540 (1885).] 28 Houghtaling v. Houghtaling, 5 Barb., 379 (1849). [Burleigh v. Ford, 59 N. H., 536 (1880); see, also, Missouri, &c., B'y Go. v. Lycan, 57 Kan., 635, 640 (1897) ; Johnson v. Willoughby, 3 Tena, Qas. (Shannon), 838, 341 (1875).] 640 CHAP. XIII.] TRESPASS. *430 if the thing destroyed, although it is part of the realty, has a value which can be accurately measured and *ascertained [*430] without reference to the value of the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing thus destroyed, and not for the difference in the value of the land before and after such destruction. ^^ And in trespass for digging and cutting the plaintiff's close and carrying away the soil, the proper measure of damages was held by the Court of Exchequer to be the value to the plaintiff of the land re- moved and not the expense of restoring the land to its original condition.^" "With reference to the measure of damages in actions of tres- pass de bonis asportatis in cases of injuries to real estate, it is to be observed that his class of cases falls as regards the question of damages properly under the head of torts to personal prop- erty, for the consideration of which the reader is referred to the professed treatises on the subject of damages.^^ [When the action is for breach of the close, damages for the removal of fixtures are incidental to the action and separable from it. King v. Bangs, 120 Mass., 514, 515 (1876).] [The breaking of an awning-post belonging to another, rightfully at- tached to the sidewalk and the owner's house, is trespass. Sohergens v. Wetzell, 12 Mo. App., 596.] [Removing the drivepipe, easing and tubing from a gas-well is an injury to real estate, whether such structures are personalty or realty. Ohio Oil Co. V. Griest, 30 Ind. App., 84 (1902).] 29 Per Johnson, J., in Whitbeck v. N. Y. Central E. E. Co. (supra). [Hunt V. Boston, 183 Mass., 308, 307 (1903).] [If the value of the timber cut covered the damage done to the land, that should be the basis of the verdict; but, if not, the amount should be fixed at the damage done the land by cutting and removal of timber. Thomp- son V. Moiles, 46 Mich., 42, 44 (1881).] [The measure of damages for the destruction of an immature crop is - its value at the time it is destroyed, which is not what it is worth for immediate use, but is ascertained by deducting the cost of harvesting and threshing from the probable amount the crop would have yielded at the market season. Scanland v. Musgrove, 91 111. App., 184, 186 (1900).] 80 Jones V. Gooday, 8 M. & W., 146 (1841). [Donovan v. Consolidated Coal Co., 88 111. App., 589, 597 (1899) ; Karst v. St. Paul, S. & T. F. E. E. Co., 22 Minn., 118, 123 (1875).] 31 See Sedg. on Dam., ch. v., p. *145; ch. xxii., p. *528, et seq. 41 641 *431 THE LAW OF FIXTURES. [CHAP. XIH. v. Trover. Fixtures, trees, etc., when unlawfully severed from the soil, become, at the option of the owner of the freehold to whom they belonged before severance, personal property, for the wrongful asportation or assumption of dominion over which after their severance trover lies at the suit of such owner. ^2 And the action lies without any demand or refusal against a bona fide purchaser [*431] of the thing severed by a trespasser *though the defend- ant was ignorant of the trespass when he converted the thing severed to his own use.^^ So, in those States where a mortgage 32 Phillips V. Bowers, 7 Gray, 21, 26 (1856) ; Moody v. Whitney, 34 Me., 563 (1852) ; Strickland v. Parker, 54 Me., 263 (1866) ; Mooers v. Wait, 3 Wend., 104 (1829) ; Eiley v. Boston Water Power Co., 11 Gush., 11 (1853) ; Higgon V. Mortimer, 6 G. & P., 616 (1834) ; Berry v. Heard, Cro. Car., 242 (1622); s. c. Palm., 827; Bend., 141; W. Jo., 255; Parrant v. Thompson, 2 D. & E., 1 (1822) ; s. c, 5 B. & Aid., 826; Weeton v. Woodcock, 7 M. & W., 14 (1840). See, also, OUver v. Vernon, 6 Mod., 170 (1704); s. C, Holt, 332. [Nelson v. Burt, 15 Mass., 204 (1818) ; Westgate y. Wixon. 128 Mass., 304, 307 (1880) ; Mueller v. Olson, 90 Minn., 416, 417 (1903) ; Shep- ard V. Pettit, 30 Minn., 119, 121 (1883) ; Bailey v. Sweeney, 64 N. H., 296, 297 (1886); Eeynolds v. Deehman, 2 Nova S. L. E., 459 (1881); Cleaver V. CuUoden, 15 Up. Can., Q. B., 582, 584; see, also, Connor v. Squiers, 50 Vt., 680, 683 (1878).] [Trover may be brought for timber severed in another state. Tyson v. McGuineas, 25 Wis., 656 (1870).] If a tenant of a farm takes and removes from the premises and converts to his own use the manure made thereon in the ordinary course of hus- bandry, the landlord may recover therefor in trover or trespass de bonis asportatis. See Plumer v. Plumer, 30 N. H., 558 (1855) ; Daniels v. Pond, 21 Pick., 367 (1838). [See, ante, p. *122.] So, trover lies in favor of the grantee against the grantor of land for the removal and conversion by grantor of the manure accumulated in the barn- yard and in heaps at the windows of the stables of the granted premises. Stone V. Proctor, 2 D. Chip., 108 (1824). [Where a mortgagor of a farm is left in possession, upon his solicitation, after the mortgagee obtains a writ of possession, and the night before leaving under his agreement, sells the manure upon the farm to one knowing that the mortgagee claims it, the mortgagee can maintain trover against the purchaser. Chase v. Wingate, 68 Me., 204, 207 (1878).] S3 Eiley v. Boston Water Power Co., 11 Gush., 11 (1853). See, also, Par- rant V. Thompson, 2 D. & E., 1 (1822) ; s. c, 5 B. & Aid., 826. [Freeman V. Underwood, 66 Me., 229, 232 (1877).] Where, however, the fixture was severed and shipped by the mortgagor 642 CHAP. XIII.] TROVER. *431 is considered a conveyance of the land to the mortgagee, the rule first above stated applies, and the mortgagee may bring trover for fixtures unlawfully severed and converted. 2* If a landlord under a distress for rent arrere severs the ten- ant's fixtures from the freehold and sells them, he is liable in trover therefor.^^ The articles may be described in the declara- accompanied by a bill of lading to an agent for sale, who sold it and in- dorsed the bill of lading to a 6omo f,de purchaser without notice, it was held that, though a fixture, the bill of lading in regard to the transfer of the property like a bill of exchange was good unless affected by notice, and that therefore trover did not lie by mortgagee against the vendee. Cope v. Eomeyne, 4 McLean, 384 (1848). 34Burnside v. Twitchell, 43 N. H., 390 (1861). See, also, Boydell v. McMichael, 3 Tyrwh., 974 (1834) ; s. c, 1 Cr. M. & E., 177; 3 L. J. (N. S.), Exch., 264; Hitehman v. Walton, 4 M. & W., 409 (1838); s. c, 8 L. J. (N. S.), Exch., 31. [See, ante, p. *47. Gill v. Weston, 110 Pa. St., 312, 317 (1885) ; Mann v. English, 38 Up. Can. Q. B., 240, 250 (1875) ; see, also, Brown v. Brookfield, 24 Nova S., 476 (1892).] [A mortgagee, after condition broken, can bring trover for turf removed by the mortgagor without license. Wilbur v. Moulton, 127 Mass., 509, 510 (1879).] [Where a mortgagor in possession after condition broken, cuts and sells timber without objection from the administrator of the mortgagee who sees what is being done, the latter is estopped from bringing trover against the purchaser. McKellop v. Jackman, 50 Vt., 57, 62 (1877).] Aliter, where the mortgage is considered only as a security. See Peter- son v. Clark, 15 John., 205 (1818). [See, ante, p. *49. Eobbins v. Sackett, 23 Kan., 301, 304 (1880). See Eeynolds v. Deokman, 2 Can. Law T., 261 (Nova S., 1882).] [A mortgagee can bring trover for timber or other fixtures wrongfully removed; but where the mortgagor is allowed to retain possession, the assent of the mortgagee to such removal will be implied where the security is not impaired and it is good husbandry. Searle v. Sawyer, 127 Mass., 491 (1879).] [Where, after a contract of sale of land, the vendee taking possession, the vendor mortgaged the land, it was held that the vendor, and not the mortgagee who had not taken possession, was the proper party to bring an action for a dwelling-house placed upon the land by the vendee and removed by him. Eeynolds v. Dechman, 2 Nova S. L. E., 459 (1881).] [AVhere a house is removed from land, becoming personal property, and remains for two years in the undisturbed possession of one believing the house to be his, the statute of limitations makes such house his. Eobbins V. Sackett, 23 Kan., 301, 305 (1880).] SB Dalton v. Whittem, 3 Q. B., 961 (1842) ; Clarke f. Holford, 2 C. & K., 540 (1848). 643 *432 THE LAW OP FIXTUEBS. [CHAP. Xni. tion as goods and chattels; and the plaintiff does not thereby waive his right of maintaining the illegality of the distress on the ground that fixtures cannot be distrained for rent ; the land- lord cannot commit the wrong of severing fixtures from the realty, and then take advantage of such wrong and treat them as goods and chattels for the purpose of distress.** So, a tenant or his vendee has during the term a sufSeient interest in the fixtures to entitle him to maintain trover against a third [*432] *party who wrongfully removes and converts them, al- though at the end of the term he may be bound to leave them for the use of the landlord. ^^ And if a house be blown down and a stranger takes away the timber, the lessee for life or for years may bring trover; for he has a special property to make use of the same for the purpose of rebuilding, though the gen- eral property be in the reversioner.** The case would be other- wise, however, where the tenant wrongfully pulls down houses or fells timber, for in that ease the lessor shall have the same.*® Under an agreement for the sale of land, the payment of the purchase money and the execution of the deed being concurrent acts to be done in the future, the vendee acquires an equitable interest and the right to specific performance upon pa3nnent made; but not having the legal title nor the possession he can- not maintain trover for an intermediate removal of fixtures by the vendor ; for at the time of the conversion he must have had property in the chattels, general or special, and possession or the right to immediate possession; and a demand of the fixtures prior to the time for completing the agreement and delivery of possession of the premises being evidence of conversion only, but not of property, will not help the matter.*" 36Dalton V. "Whittem, 3 Q. B., 961 (1842). s7Boydell v. McMichael, 3 Tyrwh., 974, 979 (1834), per Parke, B.; s. c, 1 Cr. M. & E., 177; Hitchman v. Walton, 4 M. & W., 409, 416 (1838) j s. C, 8 L. J. (N. S.), Exch., 31. 38 See Bull. N. P., 33; Per Powel, J., on Midland Circuit, Salk. MSS., Bowles's Case, 11 Co., 82a (1615); Liford's Case, 11 Co., 48 a (1614). [See, ante, p. *50.] s» Bowles's Case, 11 Co., 81b (1615). [See, ante, p. '49.] io Tabor v. Eobinson, 36 Barb., 483 (1862). But in an action upon bonds given for the purchase money of land, the defendant may set up by way of recoupment, damages for the removal and conversion of fixtures without his knowledge or consent, after the contract 644 CHAP, Xm.] TROVER. *433 But where the plaintiff under license from the owner of the soil to search for tin ore, had in searching for that mineral made certain excavations in the soil, and the defendant carted away some of the soil so thrown out, the plaintiff not having abandoned his right to search the soil so thrown out, for ore, *in trover for the soil so removed it was held that the [*433] plaintiff had as against the defendant, a mere wrong-doer, a sufficient possessory title to the mass thrown out to maintain the action.*! As was observed in a preceding section with reference to the action of replevin, trover is not the proper form of action to try the title to land; and hence it does not lie by one who has the right of possession, and who might recover in ejectment, against one in the actual adverse possession of the land setting up title to it, to recover the value of fixtures, stone, gravel, etc., removed from the land by such party in possession.*^ Neither can the of sale and before a formal transfer of the land and the execution of the bonds. Grand Lodge v. Knox, 20 Mo., 433 (1855). [One holding the legal title to land can not maintain trover for hay and apples severed by a tenant of a party who has a contract for the purchase of the land, as long as the latter remains in possession. Look v. Norton, 94 Me., 547, 550 (1901).] [A purchaser of real estate at execution sale, can maintain an action for the conversion of logs from timber cut therefrom between the time of sale and the expiration of the period of redemption. Whitney v. Huntington, 34 Minn., 458, 461 (1886).] 41 Northam v. Bowden, 11 Exch., 70 (1855) ; s. C, 24 L. J., Exch., 237 (1855). Where the plaintiffs were possessed of a wharf on the Thames, in front of which about twenty years before a pile of wood had been driven into the bed of the river by the then occupiers of the wharf, the plaintiff's prede- cessors, and had remained there without interruption from the Crown or conservators of the river, and was necessary to the enjoyment of the wharf. Held, that these were circumstances from which the court could properly draw the inference that the pile was not so placed with a view of its perma- nent annexation to the freehold so as to become a part thereof, but that it was placed there by virtue of an easement granted by the Crown or whoever had a right to grant it, and that there was a sufficient possession in plaintiffs to entitle them to maintain an action against defendants for negligently running against it and removing it. Lancaster v. Eve, 5 C. B. (N. S.), 717 (1859) ; s. c, 28 L. J., C. P., 235; 5 Jur. (N. S.), 683. *2 Mather v. Trinity Church, 3 S. & E., 509 (1817). See, also, ante, § 3, p. *417; Hutchins v. King, 1 Wall., 53 (1863). 645 *434 THE LAW OP FIXTURES. [CHAP. XIII. rightful owner of land maintain trover for com, fodder, or other crops raised on the land by one in adverse possession and severed while the defendant was in possession, his remedy in such case being by an action for the mesne profits ; ** but on the other hand the party raising and severing the crops under such cir- cumstances may maintain trover against the owner of the land for their conversion by him.** With respect to what amounts to a conversion sufficient to maintain the action, it is to be observed, that, in general, the mere act of severing a fixture (which only converts it into [*434] *personalty), is insufficient;*^ and that, in order to con- stitute a conversion, which is the gist of this action, there must be a subsequent asportation or some unlawful assumption of dominion over the thing severed for the benefit of the party making the severance or some person other than the owner there- of, or in defiance or exclusion of the owner's right.** 43 Brothers v. Hurdle, 10 Ired. Law, 490 (1849). [Harrison v. Hoff, 102 N. C, 126, 128 (1889).] [Trover can not be maintained, after recovery of land, for timber cut and carried away by the defendant pending the suit. Gardner v. Peckham, 13 E. I., 102, 104 (1880).] « Branch v. Morrison, 5 Jones' Law, 16 (1857) ; s. c, 6 Id., 16. 45 See Addison on Torts, § 467; Houghton v. Butler, 4 Term, 364 (1791) ; Bristol V. Burt, 7 John., 254 (1810) ; Big. Lead. Cas. on Torts, 389, et seq. See, also, Beck v. Denbigh, 8 C. B. (N. S.), 888 (1860) ; s. C, 6 Jur. (N. S.), 998 ; 29 L. J., C. P., 273. [American Telegraph Co. v. Middleton, 80 N. Y., 408, 411 (1880) ; see, also, Greenebaum v. Taylor, 102 Gal., 624, 627 (1894).] 40 See Perard Pixt., 295 ; Addison on Torts, § 467 ; Houghton v. Butler, 4 Term, 364 (1791). [See Presno Bank v. Husted, 49 Pac, 195, 197 (Gal., 1897).] [Where the superintendent of a poor-house, under direction of the select- men of the town, removed a fence located upon the land of the town by the adjoining landowner, and, in so doing, carried away a section of fence belonging to the adjoining landowner, this amounts to conversion whether the property was afterwards wrongfully detained or not. Smith v. Colby, 67 Me., 169 (1878).] [Where a sheriff levies upon fixtures, and follows all the legal forms to make the lien effective, and then sells the fixtures, it constitutes conversion. Scudder v. Anderson, 54 Mich., 122, 124 (1884).] [If the owner of a factory to which is attached a water-wheel and shaft- ing, which another person has the right to remove, refuses to return them when demanded, this might not be conversion, as it is not the duty of the 646 CHAP. XIII.] TROVER. *434 Since, however, trover lies only for the conversion of per- sonal chattels, it is well settled that the action cannot be maintained for the recovery of fixtures so long as they are annexed to and constitute a part of the realty ; *^ though in landowner to take out the property; but when a claim of ownership accom- panies the refusal, it amounts to an appropriation of the property. And where such right of removal results from a reservation in a deed conveying a starch factory, and no time is fixed for the removal, the statute of limita- tions does not begin to run until a claim of title thereto is made by the landowner. Straw v. Straw, 70 Vt., 240, 243 (1897).] [It is not necessary, to render one liable in trespass or trover, that there should be an appropriation of the thing to the party's own use or bene- ficial enjoyment. The disposing or assuming to dispose of another man's goods, without his authority, is a conversion of them. Thus, a wrongful attachment and sale of a growing crop without further intermeddling therewith, is a conversion thereof. Mead v. Thompson, 78 111., 62, 64 (1875).] "Ex parte Quincy, 1 Atk., 478 (1750), per Lord Hardwicke; Eoffey (or Euffey) V. Henderson, 17 Q. B., 574 (1851) ; s. c, 16 Jur., 84; 21 L. J., Q. B., 49; Colegrave v. Dias Santos, 2 B. & C, 76 (1823) ; LongstafE v. Meagoe, 2 Ad. & E., 167 (1834) ; Eaddin v. Arnold, 116 Mass., 270 (1874) ; Guthrie V. Jones, 108 Mass., 191 (1871); Prescott v. Wells, 3 Nev., 82 (1867); Pierce v. Goddard, 22 Pick., 559 (1839) ; Overton v. WilHston, 31 Penn. St., 155 (1858). See, also, Lee v. Eisdon, 7 Taunt., 188 (1816); Beck v. Den- bigh, 8 C. B. (N. S.), 888 (1860) ; s. c, 6 Jur. (N. S.), 998; 29 L. J., C. P., 273; 8 W. E., 392; 2 L. T. (N. S.), 154; Bichardson v. Copeland, 6 Gray, 536 (1856) ; Clary v. Owen, 15 Gray, 522 (1860). [Dewitz v. Shoeneman, 82 111. App., 378, 379 (1899) ; Leman v. Best, 30 111. App., 323, 325 (1888) ; Hopewell Mills v. Taunton Bank, 150 Mass., 519, 523 (1890) ; Detroit & Bay City E. E. Co. v. Busch, 43 Mich., 571 (1880); Morrison v. Berry," 42 Mich., 389, 394 (1880); Geirke v. Schwartz, 45 N. Y. Supp., 928, 929 (1897) ; Darrah v. Baird, 101 Pa. St., 265, 272 (1882), aff 'g 12 Pitts. Leg. J., 240 (1882) ; Oates v. Cameron, 7 Up. Can. Q. B., 228; Bunnell v. Tupper, 10 Up. Can. Q. B., 414, 422; see, also, Doran v. Willard, 14 N. Brunsw., 358 (1873).] [Bricks and rails were upon land at the time it was sold upon execution. ■Afterwards a tenant used the bricks to build a chimney, and the rails to build a, fence. Held, that an action of trover could not be maintained for the brick and rails while annexed, since that action lies only for the con- version of personal chattels. Thweat v. Stamps, 67 Ala., 96, 98 (1880).] [Where the owner of a lot gave permission for a house to be moved thereon, and refused to allow it to be removed, but had no possession of it while in transitu, he is not guilty of conversion. Northrup v. Trask, 39 Wis., 515 (1876).] [Trover lies for a cotton-screw although a permanent fixture, if the defendant had detached it from the plaintiff 'b realty and moved and aflSxed 647 *434 THE LAW -OP FIXTURES. [CHAP. Xm. some cases, where tenant's fixtures removable as against the landlord were considered by the court as personalty, the rule has been understood to be otherwise.** Neither a tenant nor it to his own, as, when detached, it became that thing for which trover would he, and the conversion was complete at that moment, and the right of action then arose, and this right could not be defeated by the defendant 's fastening this chattel to his own real estate. Woods v. McCall, 67 Ga., 506, 507 (1881).] 48 See Moore v. Wood, 12 Abb. Pr., 393 (1860), where the property in dis- pute consisted of shafting, belts, pulleys, and a brick chimney sunk three feet into the ground for a foundation and piercing the roof, all which were put on the demised premises by a tenant for the purpose of his business, and for a refusal on the part of the landlord to allow the tenant to remove which upon his being dispossessed of the premises, the landlord was held liable, as constituting a conversion, though the property was still unsevered from the realty; Villas v. Mason, 25 Wis., 810, 827 (1870) ; Miller v. Baker, 1 Met., 27 (1840), trees, shrubs, etc., planted by a tenant; Peck v. Knox, 1 Sweeney, 811 (1869); Finney v. Watkins, 13 Mo., 291 (1850), where the property in question was a hydraulic press used by a tallow chandler, put into a hole in the ground walled up with solid masonry, the bottom of the cylinder resting on flanges on the stone wall even with the floor, but not otherwise attached to the wall than by resting on it, and the part of the press composed of plank around the cylinder being nailed to the floor and braced to steady the press, which was allowed to be recovered in trover by the vendee of the tenant as against the landlord, who had got into posses- sion of it and the premises without plaintiff's consent, and refused to deliver it up. All these cases were decided on the ground that as between landlord and tenant fixtures removable by the tenant are personal property, from which the conclusion that trover lies follows naturally enough. The eases seem, however, open to the criticism that their assumed premises are incorrect and opposed to the weight of authority. See the eases already cited and those cited post in this chapter. Between the cases of Wansbrough v. Maton, 4 Ad. & E., 884 (1886) ; s. c, 6 N. & M., 367; 2 H. & W., 87; 4 L. J. (N. S.), K. B., 154; 5 Id., 150 (the case of a wooden barn built by a tenant and resting by its weight alone on staddles) ; Wittshear v. Cottrell, 1 El. & Bl., 674 (1853) ; s. C, 22 L. J., Q. B., 177 ; 17 Jur., 758 ; 18 Eng. L. & Eq., 142 (a granary likewise resting on staddles) ; Davis v. Jones, 2 B. & Aid., 165 (1818), (where parts of a ma- chine called jibs, put up by a tenant, and fastened by pins upon caps and steps, were held recoverable in trover), and the cases cited to sustain the text, there is no conflict; because these cases proceed upon the ground that the things which were the subjects of the actions were not fixtures at all, but mere personal chattels. See Minshall v. Lloyd, 2 M. & W., 460 (1837), per Parke, B. [In the following cases trover was allowed for removable fixtures : TJpde- 648 CHAP. Xin.] TBOVEK. *435 *his assignee can maintain trover against the landlord, [*435] or an incoming tenant, for the recovery of fixtures left by him annexed to the demised premises after the expiration of the tenancy.! But where a lessee mortgaged his tenant's fixtures and afterwards surrendered his lease to the lessor who granted a new lease to a third person who refused to deliver up the fixtures to the mortgagees, it was held that the mortgagees might maintain an action against the defendant for preventing them from exercising their right to sever, and in such action recover the value of the fixtures, as severed.^ Neither can a •tenant, even during his term, maintain trover for fix- [*436] tures while annexed to the freehold.* graff V. Lesem, 15 Colo. App., 297; Shapira v. Barney, 30 Minn., 59 (1882) ; Smusoh V. KokQ, 49 N. Y. Supp., 176, 178 (1898) ; Thorn v. Sutherland, 123 N. Y., 236, 240 (1890); Eosenau v. Syring, 25 Ore., 386, 390 (1894); Watts V. Lehman, 107 Pa. St., 106, 112 (1884) ; see, also, Broaddus v. Smith, 121 Ala., 335, 339 (1898) ; Sattler v. Opperman, 30 Pitts. Leg. J., 205 (1900) ; and ante, p. *408.] 1 Lyde v. Eussell, 1 B. & Ad., 394 (1830) ; Minshall v. Lloyd, 2 M. & W., 450 (1837); Wilde v. Waters, 16 C. B., 637 (1855); s. c, 24 L. J., C. P., 193; 1 Jur. (N. S.), 1021; 3 W. B., 570; 32 Eng. L. & Eq., 422; EofPey or (Buffey) V. Henderson, 17 Q. B., 574 (1851) ; Davis v. BufEum, 51 Me., 160 (1863) ; Stockwell v. Marks, 17 Me., 455 (1840) ; Preston v. Briggs, 16 Vt., 129 (1844), per Eedfield, J.; Ex parte Eeynal, 2 M. D. & DeG., 461 (1841), per Holroyd, Com'r. [Donnelly v. Thieben, 9 111. App., 495, 499 (1881); Walsh V. Sichler, 20 Mo. App., 374, 379 (1886).] Neither in such a case can he maintain trover therefor after the landlord has severed them from the freehold. Lyde v. Eussell (supra). [The acceptance of the keys and possession of a building by the lessor does not constitute a conversion of the fixtures therein. Feleher v. McMillan, 103 Mich., 494, 500 (1894).] 2 London, etc., Loan & Discount Co. v. Drake, 6 C. B. (N. S.), 798 (1859) ; S. C, 5 Jur. (N. S.), 1407; 28 L. J., C. P., 297. [If the mortgagee of a boiler, upon his attempting to remove it, is forbidden to do so by those in possession of the premises, that constitutes a conversion of the property without any demand being made. Badger v. Batavia Paper Mfg. Co., 70 111., 302, 305 (1873).] 3 Mackintosh v. Trotter, 3 M. & W., 184 (1838). [There can be no conversion of fixtures by a landlord while the tenant is in possession of and using them, although the latter has been enjoined from removing same. Felcher v. McMillan, 103 Mich., 494, 500 (1894).] [While a lessee of land remains in possession thereof and of a house which he built and has a right to remove, he can not maintain an action 649 *436 THE LAW OF FIXTURES. [CHAP. XIU. But the above remarks do not apply to articles which are in their nature furniture merely, which though fastened to the walls for safety or convenience do not lose their character as personal chattels and become a part of the realty; and hence for such. articles trover will lie after demand therefor made by the tenant of the landlord and refusal, though they are still at- tached to the walls and have not been disannexed by the land- lord.* It seems also well settled that trover lies in behalf of the rightful owner for the conversion of a house or other structure built on the land of another with his consent or under an agree- ment express or implied that it shall continue personalty, if averred and proved to be personal property, -notwithstanding it has not actually been severed from the land whereon it was erected.^ And in such a case, the thing in qniestion being already for the conversion of the house although his lessor sold the lots, and the vendee exacts a much higher rent. Heighes v. Dollarville Co., 113 Mich., 518, 519 (1897).] * Guthrie v. Jones, 108 Mass., 191 (1871). The articles in question which were in this case considered furniture, were a glass case, a case of drawers, and a mirror about six feet long by two -feet wide, bought by the tenant of an eating house where intoxicating liquors were sold to use in his business, and screwed or nailed by him to the walls, and gas-fixtures (so called) bought by him for the same purpose and ■screwed upon the gas-pipes fastened to the ceiling. But in the same case two counters, called respectively an oyster and trench counter, and a bar, both brought into the room entire and fastened to the floor by nails and with iron knees, though removable trade fixtures, were held to have lost their character as movable chattels, while thus attached, and hence not to be the subjects of trover. See, also, Duke of Buckingham v. Lord Pembroke, 3 Keb., 74 (1683). [Smusch v. Kohn, 49 N. Y. Supp., 176, 178 (1898) ; see, also, Morrow v. Burney, 2 Ind. Ter., 440, 443 (1899) ; and ante, p. *78.] [Where a tenant voluntarily surrenders possession, and then demands possession of fixtures, the landlord is entitled to reasonable time to make reply before being guilty of conversion. In this case a reply within twenty- four hours, Sunday excepted, was held reasonable, although one was prom- ised the same day. Felcher v. McMillan, 103 Mich., 494, 500 (1894).] 5 Davis V. Taylor, 41 111., 405 (1866) ; Hinckley v. Baxter, 13 Allen, 139 (1866) ; Eussell v. Eichards, 10 Me., 429 (1833) ; s. C, 11 Id., 371 (1834) ; Osgood V. Howard, 6 Id., 452 (1830) ; Hilbourne v. Brown, 12 Id., 162 (1835) ; Pullen v. Bell, 40 Id., 314 (1855) ; Adams v. Goddard, 48 Me., 212 (1859) ; 39 Id., 144; Tift v. Horton, 53 N. Y., 377 (1873) ; Smith v. Benson, 1 Hill, 176 (1841) ; Eing v. BilUngs, 51 111., 475 (1869), where the things in dispute were vrine plants. [Watertown Steam Engine Co. v. Davis, 5 Houston, 192, 204 (Del., 1877); Walker v. Schindel, 58 Md., 360, 369 650 CHAP. XIII.] TROVER. *437 personal property, actual severance and asportation are un- necessary in order to constitute a conversion, and the question as to whether or not there has been a conversion *of [*437] the thing in controversy, is to be determined by the general rules of law applicable to that question, which, the scope of this work forbidding, will not be here considered.^ (1882) ; Korbe v. Barbour, 130 Mass., 255, 259 (1881) ; Dolliver v. Ela, 128 Mass., 557, 559 (1880) ; Stout v. Stoppel, 30 Minn., 56, 58 (1882) ; Lewis V. Ocean Pier Co., 125 N. Y., 341, 352 (1891) ; see, also. Griffin v. Eansdell, 71 Ind., 440, 441 (1880) ; Seidel v. Cornwall, 166 Mo., 51, 55 (1901); Walker v. Grand Kapids Mill Co., 70 Wis., 92 (1887).] See, however, Prescott v. Wells, 3 Nev., 82, 90 (1867) ; Eaddin v. Arnold, 116 Mass., 270 (1874). [Where the opposing parties in a suit concerning a building, have each treated it as personal property, and where neither would have any interest therein unless it was personal property, and there is no evidence showing it to be real property, it is error for a trial court to nonsuit the plaintifE in an action for conversion, on the ground that the building is real prop- erty. Wheeler v. McPerron, 33 Ore., 22, 25 (1898). See Hughes v. Edisto Shingle Co., 51 S. C, 1, 30 (1897).] [Where an action of trover was brought for a "three-story frame flat- roof dwelling-house, twenty-five feet front by forty feet deep," which the plaintifE avers was personal property, and that the building was erected by one by permission upon the land of another, a demurrer, that the structure was real estate, can not be sustained, as that fact is capable of trial by jury, and should be pleaded. Under the facts presented, there is no inevitable presumption that the house was realty. Pope v. Skinkle, 45 N. J. Law, 39 (1883). But recovery for the conversion of a house built upon the land of another, can not be had if no circumstances are shown which would make the house a personal chattel. Ekstrom v. Hall, 90 Me., 186, 192 (1897).] [Where a water-wheel and shafting in a starch-factory, which are so attached as to be a part of the realty, are reserved in a deed conveying the factory, it is a severance of them in law, and they may be recovered by the grantor as personal chattels in an action of trover. Straw v. Straw, 70 Vt., 240, 242 (1897).] [See Harris v. Powers, 57 Ala., 139, 144 (1876), which was an action of trover for a house. A count in case may be joined for a denial of the privilege to remove.] 1 See the cases cited m next note {supra), for illustrations of what has been held to be a conversion in the absence of severance and asportation. See, also, Parker v. Goddard, 39 Me., 144 (1855); 48 Id., 212; Dame v. Dame, 38 N. H., 433 (1859) ; Beardsley v. Sherman, 1 Daly, 325 (1863) ; Davis V. Buffum, 51 Me., 160 (1863) ; Wansbrough v. Maton, 4 Ad. & E., 884 (1836); s. c, 6 N. & M., 367; 2 H. & W., 37. [Thweat v. Stamps, 651 *437 THE LAW OP FIXTURES. [CHaP. XHI. As respects the pleadings in this form of action, if the declara- tion shows that the plaintiff was possessed of the things in dis- pute, ut de bonis propriis, it is sufficient, though the things named are things which seem annexed to the freehold ; for that will not be intended when they are named de bonis propriis.^ Thus, in Wood v. Smith, the declaration alleged that the plain- tiff was possessed ut de bonis propriis, of a portal with hinges, a hand-mill, a lead, and a washing-fat, and lost them, etc.; to which defendant pleaded not guilty ; and after verdict for plain- tiff, it was moved in arrest of judgment that these things ap- peared to be fixed to the house, were as parcel thereof, and not accounted as goods, and therefore the action did not lie for them ; for, as it was argued, the portal was the door of the house, and the hand-mill and the lead (which was a brewing lead), and 67 Ala., 96, 98 (1880); Leman v. Best, 30 lU. App., 323, 326 (1888); Dolliver v. Ela, 128 Mass., 557, 560 (1880); Edmundson v. Brie, 136 Mass., 189, 191 (1883); Ingersoll v. Barnes, 47 Mich., 104, 107; Nei- Bwanger v. Squier, 73 Mo., 192, 198 (1880) ; Stackpole v. Eastern E. E., 62 N. H., 493, 495 (1883) ; Snow v. Perkins, 60 N. H., 493, 495 (1881) ; Johnston v. Boss, 22 App. Div., 631 (N. T., 1897) ; Waller v. Bowling, 108 N. C, 289 (1891); Vulcan Iron Co. v. Eapid City Elevator Co., 9 Man., 577, 582 (1894) ; see, also, Chalifoux v. Potter, 113 Ala., 215 (1896); Carper v. Eisdon, 76 Pae., 744, 746 (Colo, App., 1904) ; Heighes v. Dol- larville Co., 113 Mich., 518, 519 (1897) ; Wilson v. Cummings, 53 N. T. ' St. E., 584 (1893); Allen v. Dent, 72 Tenn., 676 (1880); Argles v. McMath, 26 Ont., 224, 247 (1895), aff'd 23 Ont. App., 44, 47 (1896); Poison V. Degeer, 12 Ont., 275 (1886).] [Where a tenant built a corn-crib for his own use upon the demised farm, with the express understanding that, when he left the place, he could take the lumber with him or be paid for it, he cannot recover its value in the absence of evidence showing a refusal to permit the removal of the lumber or that a demand was made for it. Jared v. Vanvleet, 13 111. App., 334, 336 (1883).] 2 Wood V. Smith, Cro. Jac, 129 (1606); Com. Dig., Action upon the Case, Trover, G 1; Davis v. Taylor, 41 111., 407 (1866), where the subject of the action was a house which was described in the declaration as goods and chattels. See, also, Campbell v. O'Neill, 64 Pa. St., 290 (1870) ; Earl of Bedford v. Smith, Dy., 108b (1690) ; Kimpton v. Eve, 2 Ves. & Bea., 349 (1813) ; Niblet v. Smith, 4 Term, 504 (1792). See, however, Pyot v. St. John, Cro. Jac, 329 (1609), where a shelf not alleged to be fixed was, on error brought, intended to be so. So in Anon., 2 Vent., 214 (1690), as to a rack in a stable. In these cases, however, the action was covenant, and the declaration did not contain the words ut de ionis proprUs. 652 CHAP. XIII.] TROVER. *438 the washing-fat (which was parcel of the brewing vessels) were always fixed things going to the heir and not to the executor. Sed non allocatur; for it was alleged in the declaration, that the plaintiff was possessed of them ut de bonis propriis; and it might be that those things were severed from the freehold, and things lying by; and it shall be *so intended when the plaintiff [*438] so declares; and the contrary appears not to the court by any matters shown to them by the defendant's plea. And, where the declaration in trover was for "goods, chat- tels and fixtures," and a verdict was found for the plaintiffs on the whole declaration with general damages; upon a motion in arrest of judgment it was held by the Court of Exchequer that, though, if it had clearly appeared that the plaintiff meant to sue in respect of fixtures properly so called — ^things affixed to the freehold — ^the declaration after such assessment of gen- eral damages would have been bad, yet, since after verdict every reasonable intendment ought to be made in favor of the declaration, and since the word "fixtures" does not necessarily import things affixed to the freehold, but only means some- thing fixed to another, and since every article enumerated in the declaration might be a purely movable chattel, the word ought to be understood in such a sense as would support the declaration, and that it must be presumed that the judge who tried the cause would not have directed the jury to find, and that the jury would not have found, damages for the articles claimed under the name of fixtures, if it was improper that damages should be given in respect to them; and the verdict having been found generally, the things in question must be intended to have been fixtures attached to other things which were in themselves movable.^ 1 Sheen v. Eickie, 5 M. & W., 175 (1839) ; s. c, 7 Dowl. Pr., 335. See, also, Carr v. Burdiss, 5 Tyr., 309 (1835) ; Baldwin v. Walker, 21 Conn., 168 (1851), where in referring to machinery in a factory, it was stated that where not shown to be personalty it may as well be presumed to be a part of the building as otherwise. [See Meyers v. Marsh, 2 Up. Can., Q. B., 185.] [In TJpdegraff v. Lesem, 15 Colo. App., 297, 301 (1900), a change of venue was asked by the defendant on the theory that the suit was brought for the determination of some kind of interest in real estate; but his motion was overruled. The complaint was framed upon the hypothesis that the articles were personal property; if they had been incorporated 653 *438 THE LAW OF FIXTURES. [CHAP. XHI. A question has also been made in relation to this action, as well as the action of trespass de bonis asportatis, whether trover can be maintained in a case where the severance and removal are one continuous and entire act ; and the better opinion seems to be that the action lies, notwithstanding such entirety .^ into real estate there could be no recovery. But in Darrah v. Baird, 101 Pa. St., 265 (1882), it was said that trover does not lie for fixtures eo nomine. While they remain attached they are a part of the freehold.] 2 See ante § 4. Mr. Terard in his vrork on Fixtures (page 299), thus discusses this sub- ject: "There does not appear to be any case in which this question has been discussed with reference to the doctrine of fixtures ; but it seems to have arisen incidentally in respect of the cutting down and carrying away of timber. "In 2 EoUe's Ab., 119, tit. Maeresme, it is laid down, that if lessee for life or years cuts timber trees, and immediately barks them and carries them away, yet they belong to the lessor who has the inheritance; for they are parcel of the inheritance; and the lessor may have trover and eon- version for them, although he never seizes them before the carrying them away, and that the lessee carried them away immediately after the felling and barking, so that all was but one entire act. Between Berrie & Herde, adjudged upon a special verdict in B. E. This case of Berry v. Heard is found in several of the books of reports, and is stated in a manner somewhat differently in each of them (a). It established a principle which had been for a long time doubted, viz., that a landlord .has such a possession of timber cut down during the continuance of a lease, that he could maintain trover for it; because the lessee has only an interest in it while it was growing, and which determined the instant it was cut down. This was, in fact, the principal question raised in the case, and the observations of the court are for the most part applied to this point. It appears, however, from a reference to the case, that the court did also take into consideration the objection as to the cutting and carrying away of the trees being one continued act. For they advert to the rule of law, that in criminal cases such a taking would be no felony; and, according to the report of the case in Palmer, Mr. Just. Doddridge is said to have remarked, that in respect of the barking of the tree, there must have been an interval between it and the cutting down of the tree (6). "There is another case, Udal v. Udal (c), in which the same point arose, and which has been mentioned on a former occasion. In the discussion of that case, it is said to have been agreed by the court, that an action of tres- pass vi et armis would lie against a lessee for the taking and carrying away (o) Palm., 327; Sir W. Jones, 255; Bend., 141; Cro. Car.. 242. (h) And see, per Houghton, J., in the same report, (c) Aleyn, 82. 654 CHAP. Xni.] TROVER. *439 *Althoiigh the actions of trover and trespass de bonis [*439] asportatis are for the most part concurrent remedies, trover is in some respects more extensive in its application than trespass *de bonis, and may in some eases be maintained where [*440] the latter does not lie. Thus, where the sheriff upon a writ of extent seized a furnace fixed to the land, and sold and delivered it to a third person, an action of trespass was held not to lie against such purchaser, because, although the sheriff could not lawfully sell it, it being fixed to the land, yet it came into the of trees, if the same be not as one continued act. The case itself was an action of trover, and the effect of the decision, according to the note in Comyn's Digest, Biens, H, was, that a lessor may maintain trover for the bark of trees cut, although they are carried away or converted at the time of cutting, or afterwards. It is observable, that in the judgment of this case, the above mentioned decision of Berry v. Heard was referred to by the court, and in terms which in substance correspond with the abridgement of it given by Eolle. "There is also a further case, which may, perhaps, deserve to be noticed in reference to this subject. In Noy's Kep., 125, in the case of Sir Jos. Skidnes v. Huson, it was determined, that if a stranger enters my close and cuts niy trees and carries them away I may have trover, although that after the cutting and before the carrying away I could not claim them, and no actual possession in me. The decision of this ease, however, seems rather to turn upon the right of property in the trees, than upon the form of action, or the nature of the injury complained of. Since the determination of these early eases, the point does not appear to have been the subject of legal discussion. It was, however, adverted to by the Court of Common Pleas on one occasion. For, in the case of Clark v. Calvert (a). Chief Justice Dallas is reported to have proposed the question, whether an action of trover could be maintained for trees cut down and carried away at the same time? In criminal law, indeed, it is a clearly established rule that there must be an interval between the severance and removal of a thing to make the taking of it a felony. But the principle upon which this rule proceeds in criminal cases, seems in some essential particulars to be inappUoable to proceedings of a civil nature. Perhaps the subs6^ quent detention of the article in a chattel state may be thought to amount to a conversion, for which an action of trover might be sustained. And at all events, a very short interval between the acts of severing and taking away the fixture, would be sufScient to remove an objection so very techni- cal in its nature. And, in practice, it may be found a useful precaution, to make a demand of the property previous to bringing the action, because a refusal after demand would probably be deemed evidence of a new con- version. ' ' (a) 3 B. Moore, 107. And see Davis v. Connop, 1 Price, 53. 655 *441 THE LAW OF FIXTUEES. [CHAP. Xm. defendant 's possession without any wrong on his part ; ^ for, as was observed by the court in the case just cited, if a stranger takes my horse, and sells him, a trespass will not lie against the vendee, but a detinue. But if one sells my horse, and a stranger [*441] takes him, he is a trespasser. In this ease *an action of trover could probably have been maintained for the recovery of the value of the furnace vsdthout any demand thereof and re- fusal,2 and very clearly after demand and refusal. As respects the measure of damages in the action of trover for the conversion of fixtures wrongfully severed, it is well set- tled that the value of the fixtures in their severed state only, as chattels, can be recovered, and not their value in an affixed state, or as the same would be estimated between an incoming and an outgoing tenant.* [An action was brought in New York for maliciously cutting down and converting telegraph poles in New Jersey. Held, that the plaintiff could not recover, as the poles were realty, and the remedy should be trespass quare clausum f regit, which is not transitory; nor could recovery be had on the ground that the severed poles became personalty, as the cutting and removal was one continuous transaction. American Telegraph Co. v. Middleton, 80 N. Y., 408, 411 (1880).] iDay V. Austin, Owen, 70 (1595); 2 Boll. Abr., Tresp., p. 556, pi. 18; Bro. Abr. Tresp., pi. 48. See, however, the case above cited, under the name of Day v. Bisbitch, as reported in Cro. Eliz., 374, where, as to the point that the action lay not against the defendant, because he had the thing by deliveiy of another and not by his own taking, it is said that the matter was not much insisted upon, because he was present and took it, and so was an immediate tres- passer. [A sheriff levied upon all right of, in and to a leasehold interest in land, "on which is erected a stationary steam saw mill, with engine and boiler," etc., and subsequently sold the leasehold interest "with the im- provements, ' ' but did not disturb nor pretend to take manual possession of the premises. An action of trespass was brought against him by one who had bought the saw mill prior to the levy. Held, that the sheriff was not liable, as the property sold was an interest in realty, and he had never taken the fixtures into his personal custody. Elile v. Giebner 114 Pa. St., 381 (1886).] 2 See Kiley v. Boston Water Power Co., 11 Cush., 11 (1853) ; Farrant v. Thompson, 2 D. & E., 1 (1822) ; s. c, 5 B. & Aid., 826. 3 Clarke v. Holford, 2 C. & K., 540 (1848) ; McGregor v. High, 21 L. T. (N. S.), 803 (1870); Moore v. Wood, 12 Abb. Pr., 393 (1860). The ar- ticles in question in Moore v. Wood, were a brick chimney that could not be removed without being taken down, and machinery; and the measure of 656 CHAP. XIII.] EJECTMENT. *441 VI. Ejectment. At common law this action does not lie for anything whereon an entry can not be made, or of which the sheriff can not deliver possession; or, in other words, it is maintainable only for cor- poreal hereditaments.* But at the common law where the owner of land recovers it in ejectment, the improvements and fixtures thereon, forming a parcel of the land, pass by virtue of such recovery to such owner, as a part thereof ; and the owner of the land is as much entitled to recover the fixtures so forming part of the land, as he is the corpus of the estate itself.^ In like damages was held to be the value for purposes of removal, which in the ease of the chimney was the value of the material, subject to the obligation to remove it, with interest thereon. [Walker v. Sehindel, 58 Md., 360, 371 (1882) ; Seibel v. Siemon, 72 Mo., 526 (1880) ; BarfE v. Probyn (1895), 64 L. J., Q. B., 557, 560).] See, also, Hitchman v. Walton, 4 M. & W., 409 (1838); Cook v. Cham- plain Transportation Co., 1 Den., 102 (1845). [Waller v. Bowling, 108 N. C, 289 (1891); Seibel v. Siemon, 5 Mo. App., 303 (1878). But see Greenebaum v. Taylor, 102 Cal., 624, 627 (1894).] [Under the Code, § 3564, the measure of damages in trover for a cotton screw detached from the plaintiff's land by the defendant, and affixed to the land of the latter, is the value of the screw with a reasonable addition for its hire or use, this being precisely what was lost by the wrongful conversion. Woods v. McCall, 67 Ga., 506, 507 (1881).] [Where a landlord wrongfully refuses to permit the removal of a build- ing, the measure of damages is its worth to the landlord, being the sum it enhances the value of the lot, and not what the value of the building would be to the tenant. Neiswanger v. Squier, 73 Mo., 192, 199 (1880).] * Adam's Eject., 18 et seq; Jackson v. Buel, 9 John., 298 C1812) ; Black V. Hepburne, 2 Yeates, 331 (1798) ; Den. ex dem. Farley v. Craig, 15 N. J. Law, 191 (1836). McMinn v. Mayes, 4 Cal., 209 (1854) ; Blackw. Tax Titles, *587. [See, ante, p. *57. Haggin v. Clark, 51 Cal., 112, 116 (1875); Anderson v. Eeid, 14 App., D. C, 54 (1899) ; Kanoii v. Kaioipahia, 11 Haw., 326, 327 (1898) ; Miles v. McNaughton, 111 Mich., 350, 354 (1896) ; Ege v. Kille, 84 Pa. St., 333, 341 (1877) ; Effinger v. Hall, 81 Va., 94, 101 (1885) ; see, also, Doren v. Lupton, 154 Ind., 396, 399 (1899); Armstrong v. Oppen- heimer, 84 Tex., 365, 368 (1892).] [A saw-mill upon a mill-site, attached to the earth in the usual way, although separable without injury to either the land or the mill, is realty for the purpose of determining the mesne profits recoverable in ejectment from a trespasser who uses the mill as it stands; and he cannot insist upon a separate valuation of the site and the mill, although the mill is 42 657 *442 THE LAW OF FIXTURES. [CHAP. XIH. [*442] manner as between the successful plain*tiff in ejectment and the evicted defendant, the crops growing upon the premises are part of the realty, and pass with the land when possession thereof is delivered by the sheriff under the writ of habere facias possessionem.^ But in these cases the improvements, not mentioned in the declaration. Morris v. Tinker, 60 Ga., 466, 472 (1878).] [Where the unsuccessful defendant in ejectment had bought a house upon the land as personal property and united it more firmly to the land, the plaintiff cannot, while insisting upon retaining the house by virtue of his recovery of the land, escape compensation for the improvement on the ground that it never became a fixture. Zweitusch v. Watkins, 61 Wis., 615, 621 (1884).] [A tenant was wrongfully dispossessed by his landlord, who leased the premises to another tenant, the latter erecting fixtures. Upon recovery by the first tenant, the structures erected by the second tenant became realty as to the first tenant, and subject to his lease. Wright v. Macdonell, 88 Tex., 140, 149 (1895).] [Improvements erected by a tenant, although removable by him as against the landlord, pass ; and the tenant cannot recover their value from the landlord although the latter has set off their value in reduction of the claim for mesne profits. Lanigan v. Kille, 97 Pa. St., 120, 127 (1881).] [A heater nowise attached to the realty is not a part of a miU which a sheriff is directed to deliver under a writ of possession awarded upon judgment in an action of forcible detainer. Smith v. People, 99 111., 445, 448 (1881).] [As to structures placed upon land by a railroad company, see Illinois Central E. E. Co. v. LaBlanc, 74 Miss., 650 (1897).] As to the subject of compensation for improvements made by bona fide occupants, under the various ' ' betterment, " " improvement, ' ' and ' ' occu- pying claimant" laws of the various States, see Blackw. Tax Titles, *587, et seq., and notes. oAltes V. Hinckler, 36 111., 275_ (1864) ; Adam's Eject. *.S47, and cases there cited. [See, ante, pp. *64," *261 and *262.. Carlise v. Killebrew, 89 Ala., 329, 332 (1889) ; McGinnis v. Fernandes, 32 111. App., 424 (1889), afE'd 135 111., 69 (1890); Huston v. Skaggs, 7 Ky. L. E., 592 (Super., 1886) ; Oyster v. Oyster, 32 Mo. App., 270 (1888) ; see, also, Huerstal v. Muir, 64 Cal., 450, 453 (1884) ; Adams v. Kauwa, 6 Hawaii, 280, 281 (1881); Hamilton Loan Co. v. Campbell, 5 Ont., 371 (1884).] [Unsevered crops pass with land recovered in ejectment, if no rent is claimed for the year in which recovery is had. Craig v. Watson, 68 Ga., 114, 116 (1881).] [The successful plaintiff in ejectment does not recover crops planted by a lessee before the action was commenced. Collier v. Cunningham, 2 Ind. App., 254, 262 (1891).] 658 CHAP. Xni.] EJECTMENT. *442 fixtures, and crops pass as parcel of the land itself, and not as things distinct therefrom; and the action is believed to be ap- plicable to the recovery of fixtures only as incidental to the re- covery of the possession of the land to which they are annexed, the action itself being calculated to try the mere possessory title to real estate,^ and not being applicable to personal chattels. But, although ejectment does not lie for the recovery of mere chattels, though in a state of annexation with the realty, where a boiler, engine and stack were erected on the land of the plain- tiff at the joint expense of himself and the defendant, under an agreement rcognizing their joint ownership in such erec- tions and that they should be used as a common source of power without limitation as to time, it was held that the interests thereby created were in the nature of real estate; and that if one of the tenants in common excluded the other from the use and possession thereof, ejectment would lie to enforce the agree- ment.* So, ejectment may be maintained for "a house," "a chamber," "a part of a house," "the vestry in D," "a ware- house," "a stable," "a shop," "a cottage," "four corn-mills," without saying of what kind, "a store," etc., without any special reference to the soil beneath, these things being prima facie realty.^ 7 3 Bl. Com., 201, 205. [Eailroad track laid by a railroad company without proper proceedings to appropriate the land, does not pass to the successful plaintiff in eject- ment, as the track is not a part of the freehold. Justice v. Nesquehoning E. E. Co., 87 Pa. St., 28 (1878).] [The word "dwelling-house" embraces the laud upon which it stands, and a charge of its forcible detention is equivalent to a charge of forcible detention of the land upon which it is standing. Endsley v. State, 76 Ind., 467, 469 (1881).] 8 Hill V. Hill, 43 Pa. St., 521 (1862). See Paull v. Eldred, 29 Pa. St., 415 (1857). [Cassell v. Crothers, 193 Pa. St., 359 (1899).] » See, generally. Mills v. Pierce, 2 N. H., 9 (1819) ; Hill v. Giles, Cro. Bliz., 818 (1601); Eoyston v. Bccleston, Cro. Jac, 654 (1623); Hammond V. Ireland, Sty., 215 (1649); Lady Dacre's Case, 1 Lev., 58 (1673): Fitz- gerald V. Marshall, 1 Mod., 90 (1683) ; Anon., 3 Leon., 210 (1588) ; White V. White, 16 N. J. Law, 202 (1837) ; King v. Catlin, 1 Tyler, 355 (1802) ; Jackson v. May, 16 John., 184 (1819) ; Adam's Eject., 26; and the authori- ties therein cited. [Gilliam v. Bird, 30 N. C, 280, 284 (1848) ; see, also, Lange v. Baranco, 32 La. Ann., 697, 699 (1880); Dean v. Pyncheon, 3 659 *443 THE LAW OF FIXTURES. [CHAP. Xm. [*443] *VII. Actions Ex Contractu. Many of the cases that might properly be referred to in this connection have already been cited in the preceding pages of this volume in considering the right of the tenant to remove fixtures as affected by the terms of his tenancy, and other rela- tions, where the general rules of law relating to fixtures have been qualified, restricted or enlarged by agreements upon the subject entered into by the parties in interest.^" There are, however, some other cases that will be referred to in this con- nection. Where a tenant represents that he is the owner of and sells to a sub-tenant as personal property, fixtures upon the demised premises, which by the term of his original lease are to be a part of the freehold and belong to the landlord, and to which he has no title except the right to their use, as tenant, the purchaser may recover damages for the failure of the vendor's title, and the subsequent destruction of the demised property by a third party or the forfeiture of the lease to the original lessor will not relieve the defendant from such liability .^^ Chand., 9, 19 ("Wis., 1850). See Asheville Div. S. 0. T. v. Ashton, 92 N. C, 578, 587 (1885), that a third or upper story of a large brick building can be recovered in ejectment.] [The road bed and everything attached to the soil upon which a railroad is built, are realty, for which ejectment will lie. Tennessee & Coosa E. E. Co. V. East Alabama E'y Co., 75 Ala., 516, 525 (1883).] In a suit to recover possession of premises, defendant 's answer admitted plaintiff's ownership of the lot and title to the possession, but alleged that defendant was owner of a building standing on the premises and held and occupied it by possession and license of plaintiff's grantor, and that plain- tiff purchased with full knowledge of defendant's right to the house, and claimed to hold the premises as tenant at will and the right to remove the house before delivering possession of the lot: — Held, on demurrer, to be no answer to the action for possession. Goodman v. Hannibal & St. Jo. E. E. Co., 45 Mo., 33 (1869). 10 See, ante, pp. *66, *149. •iiBeckmann v. Bormann, 3 E. D. Smith, 409 (1854). [See Dryden v. Kellogg, 2 Mo. App., 87 (1876).] [Where a lot with the buildings thereon is granted with warranty, a removal of the house by a tenant under a prior agreement with the grantor, is a breach of the covenant of warranty. West v. Stewart, 7 Pa. St., 122 (1847). See, Atkinson v. Noad, 14 Low. Can., 159 (1863).] 660 CHAP. Xni.] ACTIOKS EX CONTRACTU. *444 Where a lease contained on the part of the lessee an express covenant to pay the rent, not to assign without the lessor's consent, and also at the expiration of the lease to surrender *up the possession of the premises in the same condition [*444] in which they then were, natural wear and tear excepted; and the buildings were destroyed by fire, but certain fixtures attached to and constituting a part of the demised premises were severed by the fire and were subsequently removed by the lessee and not returned, it was held, that the fixtures not losing their identity, but remaining a portion of that covered by the lease, were fairly within the agreement to surrender at the end of the term, and that the lessor might recover their value in an action on the covenant, and was not driven to his action of trover.^^ Where fixtures have been wrongfully severed, removed and [A contract for the sale of a store was made, the vendor falsely repre- senting that all of the fixtures belonged to him. A tenant, having removed the fixtures, the vendee refused to perform the contract, and suit was brought. Beld, that, although specific performance might have been de- creed in equity, compensation being given for the removal of the fixtures, the vendor could not recover damages without performance upon his part, as the vendee was entitled to the store in the condition in which it was when bargained for. Smyth v. Sturges, 108 N. Y., 495, 503 (1888).] [See Cameron v. Tarrett, 1 Up. Can., Q. B., 312, where a prior tenant took away fixtures of which his successor expected to have the use.] 12 Warner v. Hitchins, 5 Barb., 666 (1849). In an action upon a covenant in a lease to repair and keep the demised premises in tenantable order and repair and at the end of the term to yield them up in such tenantable repair, the breach assigned was that defendant ' ' did not nor would sufficiently support, repair and keep the said messuage, etc., in tenantable order or repair, nor yield up the same in such tenantable repair at the end of said term, but on the contrary thereof suffered and permitted the said messuages, etc., to be and continue and the same were during all that time ruinous, etc., and the defendant at the end of the said term left the premises so out of repair as aforesaid." Held, that though if nothing had been stated except merely to negative performance of the covenant in its terms and issue had been taken thereon it would have been taken to be a breach to the full extent of the covenant, yet the words, "on the contrary, suffered and permitted" the premises to be out of repair, makes the allegation specific, and therefore lessor could not recover for voluntary waste as hy removing windows, and window-frames, etc. Edge v. Pemberton, 12 M. & W., 187 (1843). And on the other hand a charge of voluntary waste is not supported by proof of permissive waste. Martin v. Gillham, 7 Ad. & E., 540 (1837). 661 ♦445 THE LAW OF FIXTURES. [cHAP. Xffl. converted into money by the wrong-doer, the party entitled to the fixtures after such severance may waive the tort and recover in assimipsit upon the count for money had and received; and there are many eases holding that if the defendant has by means of a tort obtained even money's worth, assumpsit may be maintained.!^ But assumpsit for money had and received does not lie for the price of sand taken from a sand-bar and [*445] *sold by defendant, to which sand-bar, both plaintiff and defendant claim title, this action not being applicable to the trial of title to land." As respects the pleadings in actions upon contracts relating to fixtures, there have been some decisions that may properly be referred to at this place. Thus, it is well settled that, fixtures being while in a state of annexation a part of the freehold, the price thereof when sold in that condition, cannot be recovered 13 See a learned discussion by Hon. T. M. Cooley, of the right to waive a tort and sue in assumpsit, in the Bench and Bar for January, 1871, vol. 2, page 218, where the authorities on the subject are fully eoUeeted. [It is not necessary that the fixture should be converted into money. Assumpsit may be brought if the trespasser does not retain it in its origi- nal shape, as where trees are changed into lumber. Evans v. Miller, 58 Miss., 120, 125 (1880).] [A party can always waive the trespass and sue for the value of the property taken, in this case stone from a quarry, and a fence, and the law will imply a promise to pay. Hagaman v. Neitzel, 15 Kan., 383, 389 (1875).] [A remainderman or reversioner can bring assumpsit for money had and received when the life tenant unlawfully severs a part of the realty. Williamson v. Jones, 43 W. Va., 562, 569 (1897).] [A tort cannot be waived unless the trespass is willful, or the trespasser has benefited therefrom, or he has promised to pay. Where crops are destroyed by the cattle of another, without his participation in the tres- pass, the remedy is by an action ex delicto. Tightmeyer v. Mongold, 20 Kan., 90 (1878).] [A tenant cannot waive a tort and recover in assumpsit for fixtures attached to the premises surrendered by him, as they are a part of the realty. Donnelly v. Thieben, 9 111. App., 495, 500 (1881).] [See, further, upon the subject of waiving a tort. Brown v. Magorty, 156 Mass., 209 (1892) ; Mhoon v. Greenfield, 52 Miss., 484 (1896) ; Wall v. WilHams, 91 N. C, 477, 481 (1884); Duren v. Strait, 16 S. C, 465, 466 (1881).] 11 Baker v. Howell, 6 S. & B., 476 (1821). See ante, Replevin and Trover. 662 CHAP. Xm.] ACTIONS EX CONTRACTU. *445 under a declaration in assumpsit for goods sold and delivered.^ ^ But, although in such a ease there can be no recovery under the count for goods sold and delivered, where the defendant has entered into possession of premises to which the fixtures are attached and has agreed to the amount of the valuation of the fixtures, a recovery may be had under a count upon an account stated.^® In Hallen v. Runder,i^ two or three days before the expira- tion of the lease of a house, the landlord agreed with the tenant to take his fixtures at a valuation. The lease expired and the tenant having quitted possession without severing the fixtures IB Lee V. Kisdon, 7 Taunt., 188 (1816); Nutt v. Butler, 5 Esp., 176 (1804). See, also, Clark v. Bulmer, 11 M. & W., 243 (1843); Salmon v. Watson, 4 Moore, 73 (1819); Sleddon v. Cruikshank, 16 M. & W., 72 (1846), per Parke, B.; Knowles v. Michel, 13 East, 249 (1810); Steams V. Washburn, 7 Gray, 187 (1856). [See, ante, p. *77.] [Where grates were placed in a house, for which the buyer refused to pay, and ordered the seller to take them out, and, when sued in assumpsit, successfully defended by showing a breach of warranty, such action is no bar to a subsequent action in assumpsit by the seller for a refusal of the buyer to allow the removal of the grates on the ground that they had be- come a part of the realty. The order to take them out showed an inten- tion not to make them fixtures, and assumpsit lies for their price. Aldine Mfg. Co. V. Barnard, 84 Mich., 632 (1891).] 16 Salmon v. Watson, 4 Moore, 73 (1819). See, also, Knowles v. Michel, 13 East, 249 (1810). 17 3 Tyrwh., 959 (1834), s. C, 1 Or. M. & E., 266; 3 L. J. (N. S.), Exch., 260. [Without actual severance of fixtures from the realty, before surrender of possession, or some arrangement with the landlord by which the right of removal was continued thereafter, a tenant cannot recover the value of such fixtures in an action of assumpsit for goods sold and delivered. Donnelly v. Thieben, 9 111. App., 495, 501 (1881).] See, also, Keyser v. District No. 8 in Sunapee, 35 N. H., 477 (1857), where it was held that if the owner of a building standing on the land of another by his license and hence personal property, sell it for an agreed price, and the purchaser takes possession and holds the building under the sale, the seller may recover the price in general indebitatus assumpsit tax goods sold and delivered. [A lessee having erected improvements with the right of removal, and his ownership of such improvements being undisputed, sold same to his successor as tenant; but, after taking possession, the purchaser refused payment, whereupon the former tenant resold them, and brought an action to recover rent for the use of such property from the tenant suc- 663 *446 THE LAW OP PIXTUKES. [CHAP. XUI. sent the key to the landlord. A broker appointed by the land- lord afterwards appraised the fixtures at more than £10. In an action brought by the tenant to recover for the fixtures, it was held, that, though the tenant could not recover the price of the fixtures as for goods sold and delivered, yet the contract being executed and the plaintiff having given up possession to the [*446] *defendant, he might recover therefor upon a count in indebitatus assumpsit "for fixtures bargained and sold, and for fixtures sold and delivered." The real nature of the contract between the plaintiff and defendant in that case was, as observed by Parke, B., that the plaintiff should waive his right of removal, and thereby give up to the defendant all his interest in and right to enjoy these effects as chattels. And, although the terms used might not be the most accurate mode of describing the real contract between the parties, they were regarded as suffi- cient ; and the case was alleged to bear a strong analogy to that of a contract by a tenant to give up to his landlord or successor those growing crops to which he was entitled by the common law or custom of the country, the value of which after the contract was executed might certainly be recovered on a count for crops bargained and sold.^^ There are, however, cases where a general form of pleading in actions upon contracts relating to fixtures has been held in- sufficient. Thus, where by a written agreement between the parties, the defendant was to purchase of the plaintiff a lease of a farm for 500J, and was to take the fixtures and crops at a valuation, and having paid a deposit of twenty per cent, upon the purchase money, he was let into possession, and the fixtures and crops valued to him at 1,2001, but a good title not being made the lease was not assigned, and he refused to pay the ceeding him. Seld, that, as such improvements were personal property, he could not recover rent, but might have brought an action for damages. Had the improvements been leased, the succeeding tenant might have been estopped from invoking rules applicable to sales of personalty. Denver Transfer & Warehouse Co. v. Swem, 8 Colo., Ill, 113 (1884).] IS See Mayfleld v. Wadsley, 3 B. & C, 357 (1824) ; 5 D. & E., 224. The price of grain growing on the land of the vendor cannot be recovered under the common counts for goods bargained and sold or goods sold and delivered. Stearns v. Washburn, 7 Gray, 187 (1856). See, also, Knowles V. Michel, 13 East, 249 (1810). 664 CHAP. Xni.] ACTIONS EX CONTRACTU. *447 amount of the valuation or the remainder of the purchase money, it was held that an action of indebitatus assumpsit would not lie for the price of the fixtures and crops, and that the agreement being entire should have been specially declared upon.i® So, in an action of indebitatus assumpsit for the sum of 3,000J, "for the price and value of a main engine and other goods sold and delivered, on the trial it was proved that the •contract was to build an engine of one hundred horse [*447] power for the sum of 2,5001, to be completed and fixed at a specified time ; that the different parts were constructed at plain- tiff's manufactory and sent at different intervals to defendant's colliery, twenty miles distant, where they were fixed piece-meal and so made into an engine, and upon these facts it was held, that the price was not recoverable in this form of action, the proper form of action being, as it seems, either indebitatus assumpsit for work, labor and materials, or for erecting and constructing an engine.^' Where a written agreement provides for the letting of apartments ' ' at the sum of seventy-five guineas i»Neal V. Viney, 1 Camp. N. P., 471 (1808). See, also, Sleddon v. Cruikshank, 16 M. & W., 71 (1846). [One who has erected buildings under the expectation of receiving title to the land, which is not realized, cannot maintain assumpsit for their value as long as he has not been dispossessed. Naftzinger v. Both, 93 Pa. St., 443, 448 (1880).] 20 Clark v. Bulmer, 11 M. & W., 243 (1843). See, also, Cottrell v. Apsey, 6 Taunt., 322 (1815) ; Pinner v. Arnold, 2 Cr. M. & E., 613 (1835) ; also Tripp v. Armitage, and other cases cited ante, p. *7, note. Where a tenant of a hotel laid down tiles in cement in an entry of the house under a written agreement, entered into subsequent to the lease as to their removal, that at the expiration of the said lease he would take up and remove said tile or flagging at his own expense, and clean the mortar or cement from the flooring and leave it in good order for laying a floor of boards, unless the landlord should elect to have them remain and pay therefor a specified sum; and the tenant offered them to the landlord for said sum, who gave no decided answer, whereupon the tenant removed them, leaving the cement adhering to the floor and breaking many of them in the removal. Held, that lessor 's remedy must be sought by action on the special agreement and not on the covenant in the lease against waste. Wall V. Hinds, 4 Gray, 256 (1855). [Where a tenant in writing agreed to leave gas fittings in a shop, which he did not do, the landlord's right of action would be assumpsit on the agreement, not trover on the property. Dunn v. Garrett, 7 N. Brunsw., 218, 222 (1851).] 665 *447 THE LAW OF FIXTURES. [cHAP. XIH. per annum; fixtures as follows (enumerating them) ; the rent to commence at the time possession is taken;" in an action of assumpsit thereon for not permitting the plaintiff to take pos- session and have the use of the premises, it is no objection to the' declaration that it does not state the agreement to have been for letting the apartments and fixtures; and the omission from the declaration of that part of the agreement relating to the fixtures is no variance. All that the plaintiff complains of in such action is the defendant's refusal to give him possession of the apartments, which is the whole gravamen of the action, the fixtures having nothing to do with the deelaration.^i 21 Ward V. Smith, 11 Price, 19 (1822). For a further consideration of the subject of pleading, etc., the reader is referred to the professed treatises on that subject. As to the measure of damages in an action by the lessor for breach of covenant to deKver up the demised premises and all fixtures therein, in a case where the mortgagee of the premises and fixtures demanded possession thereof of the lessee under his mortgage, see Watson v. Lane, 11 Exch., 769 (1856). [Watriss v. First Nat. Bank, 130 Mass., 343 (1879); see, also, Scott V. Haverstraw Brick Co., 16 N. Y. Supp., 670, 672 (1891), aflf'd 135 N. Y., 141, 149 (1892).] [Where a landlord prevents a tenant from removing marble mantels and grates which, under a covenant in the lease, the tenant had a right to remove, the measure of damages is their value as they stand in the build- ing. Bruce v. Welch, 59 Supr. Ct. (52 Hun), 524 (N. Y., 1889).] 666 CHAPTEE XIV. [*449] CEIMINAL LAW, AS RELATED TO FIXTURES.— DEODANDS. I. Laecent. Larceny is defined to be the felonious taking and carrying away of the personal goods of another ; ^ and if the things taken are things real, or savour of the realty, larceny at the com- mon law cannot be committed of them.* As we have already seen, fixtures are, during the time they are annexed, consid- ered as partaking of the nature of the realty, and hence it has almost universally been held, that they are not when severed and carried away by one continuous transaction the subjects of larceny at common law.* This subject is thus explained by 14 Bl. Com., 229. See Bract., lib. 3, ch. 32. [See Meerschat v. State, 57 S. W., 955, 956 (Tex. Grim. App., 1900).] 2 4 Bl. Com., 232. See next note. 3 State V. Hall, 5 Harr., 492 (1854), and State v. Davis, 22 La. Ann., 77 (1870), copper pipes part of a steam-engine attached to a manufacturing establishment; U. S. v. Wagner, 1 Cranch C. C, 314 (1806) ; and U. S. v. Smith, 1 Cranch C. C, 475 (1807), rails in a fence; Eegina v. Eice, 28 L. J., M. C, 64 (1859) ; s. c, BeU's C. C, 87; 5 Jur. (N. S.), 273; 7. W. E., 232; 32 L. T., 323; 8 Cox C. C, 119, lead gutters of brick, timber and tile-made sheds on a wharf fixed to the soil; Lee v. Eisdon, 7 Taunt., 190 (1816), per Gibbs, C. J.; Aleyn, 31, 32; Sty., 66, 73, dung spread upon the land not the subject of larceny; Ex parte Eeynal, 2 Mont. Dea. & DeG., 443, 461 (1841). See, also, Eex v. Millar, 7 C. & P., 665 (1837) ; 2 East's P. C, 587. [Bell v. State, 51 Tenn., 426 (1874) ; see, also. State v. Graves, 74 N. C, 396 (1876).] [A copper plate nailed to a ripple-table, the latter being a part of the freehold, is not the subject of larceny. Eex v. Dowsey, 29 Vict. L. E., 453 (1903) ; nor are valves screwed to iron pipes attached to a building by staples and necessary for a factory. Langston v. State, 96 Ala., 44 (1891).] ["Almon Wing stole windows from Benjamin Jordan's house" do not impute the crime of larceny, as windows are, strictly, a part of a house. Wing V. Wing, 66 Me., 62, 63 (1876).] 667 *450 THE LAW OP FIXTURES. [CHAP. XIV. [*450] *Sir William Blackstone in his learned Commentaries : i "Lands, tenements, and hereditaments (either corporeal or in- corporeal), cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees,^ and the like, or lead upon a house, no larceny could A commission (pursuant to an order previously made in chancery) to settle the boundaries of a manor, and the return thereto, are instruments concerning the realty, and not the subject of larceny. Eex v. Webster, 1 Leach C. C, 14 (1739). See, also, 2 Buss, on Crimes, 70. [See, ante, p. *230, charters.] That wild bees are not the subject of larcency while remaining in the tree where they have hived, see Wallis v. Mease, 3 Binn., 546 (1811). But oysters planted in public waters, if not planted where oysters grow naturally, and if the spot is designated by stakes or otherwise so that they can be readily distinguished from others in the same waters, are the sub- ject of larceny. State v. Taylor, 27 N. J. Law, 117 (1858). See, also, Beg. V. Downing, 23 L. T. (N. S.), 398 (1870). [People v. Wanzer, 88 N. Y. Supp., 281 (1904).] [A person cannot be indicted for taking oysters from a bed between high-water and low-water mark. Johnson v. State, 114 Ga., 790 (1901).] Drifted and ungathered sea-weed~ cast on the shore (between high and low water-mark) of him who has the exclusive ownership of said shore, is held not to be the subject of larceny. Beg. v. Clinten, Ir. E., 4 Com. Law, 6 (1869). 1 4 Bl. Com., 232. 2 Paulin V. Forde, March, 211 (1642) ; Emmerson v. Annison, 1 Mod., 89 (1684); s. c, 2 Keb., 874; 1 Vent., 187; Comfort v. Fulton, 39 Barb., 56 (1861); s. C, 13 Abb. Pr., 376; [Johnson v. State, 100 Ala., 55, 57 (1893); McCall v. State, 69 Ala., 227, 228 (1881); Bonham v. State, 65 Ala., 456, 458 (1880) ; Holly v. State, 54 Ala., 238, 239 (1875) ; State V. Thompson, 93 N. C, 537, 538 (1885) ; State v. Toy, 82 N. C, 679, 680 (1880).] [An indictment which charges that the defendant carried away ' ' corn, a part of an outstanding crop," and describing it as "personal property," is defective, being contradictory, inconsistent and uncertain, and does not justify a verdict against the defendant. Smitherman v. State, 63 Ala., 24, 26 (1879); Pinckard v. State, 62 Ala., 167 (1878).] Growing trees cannot be called bona et catalla. So held in an indict- ment for riotously entering a close and cutting down, etc., twenty ashes, etc., ibidem crescentes, de bonis et catallis of J. S., etc. Beg. v. Harris, 11 Mod., 113, 121 (1707) ; s. c, Holt, 353. Stealing growing crops is made larceny by statute in some States. State V. Cherry, 72 N. C, 123 (1875) ; State v. Stephenson, 2 Bail., 334 (1831) ; Comfort V. Pulton (supra) ; 3 E. S., N. Y. (5 ed.), 959, § 70; 971, § 1; 973, § 15, div. 4; 4 Bl. Com., 233, 2 East's P. C, 587; Eev. Stat. 111. (1874), p. 668 CHAP. XIV.] LABCENY, ETC. *451 be committed by the rules of the common law, but the severance of them was, and in many things is still merely a trespass, which depended on a subtilty in the legal notions of our ancestors. These things were parcel of the real estate, and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immovable. And if they were severed by violence, so as to be changed into movables, and at the same time by one and the same continued act carried off by the person who severed them, they could never be said to be taken from the proprietor in this their newly-acquired state of mobility (which is essential to the nature of larceny), being never as such in the actual or constructive possession of any one but of him who committed the *trespass.3 He could not in [*451] strictness be said to have taken what at that time were the per- sonal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels in the constructive possession of him on whose soil they are left or laid, and come again at another time, when they are so turned into personalty, and takes them away, it is larceny ; and so it is if the owner or any else has severed them. ' ' * While the rule as above stated may be regarded as a settled rule of the common law, there appears to be a tendency on the part of the courts in this country (where the subject has not been regulated by statute) to restrict its application within somewhat more narrow limits, than it has hitherto been sup- 378, §§ 173, 175. See, also, Bartlett v. Brown, 6 R. I., 37 (1859). [Gregg V. State, 55 Ala., 116, 117 (1876).] [Under §§ 4407, 2220 of the Code, a person detaching ears of corn and taking them from the field is guilty of larceny, as they become personalty as soon as detached. Beall v. State, 68 Ga., 820, 821 (1882).] But turpentine which has run out of the trees into excavations called ' ' boxes ' ' made in the bodies of the trees for the purpose of receiving it, is personalty, and the subject of larceny. State v. Moore, 11 Ired., 70 (1950). [State V. King, 98 N. G., 648, 650 (1887).] 3 See, however, Mx parte Willke, 34 Tex., 155 (1871). [See Farris v. State, 69 S. W., 140 (Tex. Grim. App., 1902).] 4 3 Inst., 109, 1 Hal. P. C, 510; Emmerson v. Annison (supra). [State V. Parker, 34 Ark., 158, 160 (1879) ; State v. Prince, 42 La. Ann., 817, 823 (1890); Eegina v. Foley (1889), 17 Gox Grim., 142.] 669 *452 THE LAW OF FIXTURES. [CHAP. XIV. posed to include.^ And the rule of the common law that things savoring of the realty are not the subject of larceny, has been considered to apply only to things issuing out of or growing upon the land and such as "adhere" to the freehold, but not to personal chattels which are constructively annexed thereto, and it has accordingly been held that a leather belt connecting cer- tain wheels in a saw-mill, necessary to its propulsion, but re- movable without injury by Tintying thongs holding the ends together, is a subject of larceny.* It has likewise been held that a key, though in the lock of a door in a house, is the subject of larceny; and that words charging a person with stealing it are actionable.'' The defects of the common law in respect to crimes against fixtures, growing crops, etc., have to some extent been rem- [*452] *edied by statutes both in England and the United States, making the stealing of such things larceny or felony.* 5 See Bex v. Webster, cited ante. [The old common law rule does not obtain in Texas. Alvia v. State, 42 Tex. Grim., 424, 426 (1901); Harberger v. State, 4 Tex. App., 26, 27 (1878).] 8 Jackson v. State, 11 Ohio St., 104 (i860), a well considered case, in which the case of Hoskins v. Tarrance (infra), was. approved. [The following articles are the subject of larceny: Chandeliers screwed into gas-pipe attached to the ceiling. Smith v. Commonwealth, 77 Ky., 31 (1878) ; copper boxes connected by a pipe to a still and worm. Clement V. Commonwealth, 20 Ky. L. E., 688, 689 (1898).] [Sugar-cane severed from the soil by the owner and placed in windrow on the plantation for the service of the place (to be used later as seed cane) although "immovable by destination" by fiction of law, is not so attached to the soil as to make one carrying it away, guilty of "sever- ing" it under the statute. State v. Green, 106 La., 440, 441 (1902).] [Pigs bitten by a mad dog, were shot and buried by their owner. Seld, that they had not become so attached to the soil as not to become subjects of larceny. Eegina v. Edwards (1877), 10 Cox Mag., 452, 453.] 'Hoskins v. Tarrance, 5 Blackf., 417 (1840). [The words: "Tell Susan to bring back the door she and the young 'uns stole from my house" are not actionable in themselves, as real estate cannot be the subject of larceny. Blackburn v. Clark, 19 Ky. L. E., 659 (1897).] 8 See State v. Cherry, 72 N. C, 123 (1875) ; State v. Stephenson, 2 Bail., 334 (1831); Comfort v. Fulton, 39 Barb., 56 (1861); s. c, 13 Abb. Pr., 376; Bartlett v. Brown, 6 E. I., 37 (1859) ; 3 E. S., N. Y. (5th ed.), 959, $ 70; 971, § 1; 973, § 15, div. 4; E. S. 111. (1874), p. 378, §§ 173, 175; 670 CHAP. XIV.] LABCENY, ETC. *452 By the Statute of 4 Geo. II., c. 32 {anno 1731), it was enacted that every person who shall steal, rip, cut or break, with intent to steal, any lead, iron bar, iron gate, iron palisadoe or iron rail whatsoever, being fixed ^ to any dwelling-house, out-house, coach-house, stable or other building,!" used or occupied with Eev. Code of Geo., § 2194; 4 Bl. Com., 233; 2 East's P. C, 587. [Seham- berger v. State, 68 Ala., 543 (1881) ; SuUins v. State, 53 Ala., 474 (1875) ; State V. SaUsberry, 49 Kan., 160 (1892); State v. Prince, 42 La. Ann., 817, 822 (1890) ; see, also, NewBom v. State, 107 Ala., 133 (1894) ; Long V. State, 28 So., 775, 777 (Fla., 1900) ; McCall v. Walter, 71 Ga., 287, 289 (1883); King v. Beauvais, 7 Can. Grim., 494 (Que. K. B., 1904).] [By statute, any person who severs and carries away from the freehold, any property thereto attached, under such circumstances as would render the trespass a larceny, if the thing severed and carried away was personal property, is guilty. Johnson v. State, 61 Ala., 9, 11 (1878).] 8 In Eex V. Hedges, 1 Leach C. C, 240 (1779) ; 2 East P. C, 590, note, the prisoner was indicted for stealing six light glazed window-sashes. The window-frames from which they were taken were fixed into the proper places, but the sashes were neither hung nor beaded in the frames, but were fastened in by laths nailed across the frames to prevent their falling out. Held, that they were not fixed to the freehold. 10 All buildings appear to be within this act. See Eex v. Norris, Euss. & E. C. C, 69 (1804), where a summer-house, used occasionally for tea and refreshment, within the same inclosure as the dwelling-house, though half a mile distant, was held to be a building within this Statute, and a convic- tion for stealing lead fixed thereto, held good. So as to a church. Eex v. Hickman, 1 Leach, C. C, 358 (1784) ; s. c, 2 East's P. C, 593; Eex v. Eiehard Isley, Id., 360 (1785); Eex v. Parker & Easy, 2 East's P. C, 592 (1782). A vpindow casement made of iron, lead and glass is not within the above Statute, nor 21 Geo. III., c. 68 made to remedy it, and providing for punishing such persons as shall rip, cut, break, or remove with intent to steal any copper, brass, bell-metal, utensil or fixture, being fixed to any dwelling-house, etc. Eex v. John Senior, 2 Leach, C. C, 559 (1788) ; s. c, 2 Bast's P. C, 593. Where an indictment on this Statute (4 Geo. II.) charged the prisoner with stealing iron rails fixed to a tomb in a church-yard, belonging to a certain building called Islington Church, and laid respectively to be the property of the vicar, church-wardens, parishioners, and of a person un- known; and it appeared that the tomb was not connected by any building with the church; all the judges on a reference to them held that the offense was not within the statute. Eex v. John Davis, 2 East's P. C, 593 (1792). A person who procures possession of a house under a written agreement between himself and the landlord for a lease of twenty-one years, entered 671 *453 THE LAW OP FIXTURES. [CHAP. XIV. [*453] *such dwelling-house, or thereunto belonging, or to any other building whatsoever, or fixed in any garden, orchard, court-yard, fence or outlet i^ belonging to any dwelling-house or other building, shall be deemed and construed to be guilty of felony, etc. By the Statute of 7 & 8 Geo. IV., ch. 29 12 (anno 1827), the laws in relation to larceny and other offenses con- nected therewith were consolidated and amended. Section 44 of this Statute enacts, that if any person shall steal or rip, cut or break, with intent to steal, any glass or wood-work belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metal or other material, respectively fixed i^ in or to any building ^* into for the purpose of getting a fraudulent possession of the house, is by stealing the lead affixed to the house, guilty of larceny under 4 Geo. II., c.'32. Rex V. Munday, 2 Leach C. C, 991 (1799). See note (i*) p. *453. 11 As to what is an outlet or garden belonging to a house or building, see Eex V. Eichards, Euss. & E. C. C, 28 (1802). 12 See, also, the Statute, 21 Geo. III., c. 68 (1781), amending 4 Geo. II., c. 32. See, also, the subject considered in 2 East's P. C, 587 (ch. 16, § 27) ; 2 Euss. on Crimes, 63, et seq. The provisions of the Statute 7 & 8 Geo. IV., c. 29, are with some slight amendments re-enacted in 24 & 25 Vict., c. 96 (1861) ; but as the decisions cited are mostly upon the construction of 7 & 8 Geo. IV., c. 29, and the earlier Statute 4 Geo. II., c. 32, those are here presented. 13 See Eegina v. Gooeh, 8 C. & P., 293 (1838); Eex v. Hedges (supra). 1* See note (i") p. *452. A place intended for a cart-shed, boarded up on all sides and having a door with a lock to it, and a wooden frame-work for a roof ready for thatching, but not thatched, some gorse being thrown on it, is a building vrithin 7 & 8 Geo. IV., c. 29, § 44. Eex v. Worrall, 7 C. & P., 516 (1836). Where the prisoners stole the lead gutters of some brick, timber, and tile-made sheds built on a wharf, and the indictment charged the stealing of lead fixed to a wharf, the conviction was held good, as the evidence showed that the sheds were part of the wharf, and that the wharf was a building within the meaning of this Statute. Lord Campbell, C. J.: "The shed must be considered part of the wharf. It is enough if the indictment alleges that the lead is fixed to that which may be a building and which is proved by the evidence to be a building. Here it is clearly proved that the lead is fixed to a building." Eeg. v. Eice, 28 L. J., M. C, 64 (1859) ; s. c, Bell's C. C, 87. But a plank used as a seat in the grounds of the Duke of Beaufort, the plank being laid in mortar on the top of a wall and pillars at the ends of it, there being no roof, is not a building within the meaning of the Act. Eex V. Eeece, Monmouth Lent. Ass. (1828) ; 2 Buss, on Crimes, 65. 672 CHAP. XIV.] MALICIOUS INJUEIES. *454 *whatsoever, or anything made of metal fixed in any [*454] land being private property, or for a fence to any dwelling- house, garden or area, or in any square, street or other place dedicated to public use ^^ or ornament, every such offender shall be guilty of felony, and being convicted thereof shall be liable to be punished in the same manner as in the case of simple larceny ; and in case of any such thing fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person. Sections 38 1^ et seq. make it felony in certain cases to steal, cut, break, root up, etc., with intent to steal, trees, saplings, shrubs, plants, roots, fruit, vegetable productions,* '^ etc. By Section 37,1^ the stealing or severing with intent to steal the ore of any metal, etc., or coals, etc., is made a felony. II. Malicious Injueies. The law with respect to malicious injuries to property is pretty generally regulated by statute, and it would be foreign to the scope of this work to enter into an extended consideration of the subject.** An indictment for stealing a copper pipe fixed to the dwelling-house of A. & B., is not supported by proof of stealing a pipe fixed to two rooms in the same house, of which A. & B. are separate tenants. Eex v. Pinch, 1 Mood. C. C, 418 (1834). Proof that one received the rents is held to be sufScient prima facie evidence of ownership of a dwelling-house in support of an indictment for stealing lead affixed thereto. Eeg. v. Brummitt, 8 Cox C. C, 413 (1861); s. c, L. & C, 9; 3 L. T. (N. S.), 679; 9 W. R, 257. 15 To the point that a church-yard is a place dedicated to the public use, etc., so that stealing brass fixed to tombstones situated therein is within the Statute, see Eex v. Bliok, 4 0. & P., 377 (1830), per Bosanquet, J. See, also, Eex v. Jones, Gloucester Spr. Ass. (1828), 2 Euss. on Crimes, 65; Eeg. V. Jones, 7 Cox C. C, 498 (1858); s. C, Dears. & B. C. C, 555; 4 Jur. (N. S.), 394; 27 L. J., M. C, 171, a copper sun-dial fixed by screws on the top of a wooden post fixed in a church-yard. 16 See 24 & 25 Vict., c. 99, s. 33. 17 See Eex v. Hodges, M. & M., 341 (1829) ; Eex v. Taylor, Euss. & E., 373 (1819); Eeg. v. Brumby, 3 C. & K., 315 (1851). See, generally, 2 Euss. on Crimes, 67 et seq., where the subject is fully considered. IS Id., sec. 38; Eex v. Webb, 1 Mood. C. C, 431 (1835). "Under Sess. Acts, 1869, p. 71 (Wagn. Stat. 462, § 56), of Missouri, providing for the punishment of certain malicious trespasses, the trespass • 43 673 *455 THE LAW OP FIXTURES. [CHAP. XIV. [*455] *In England the law on this subject has been revised and consolidated in 24 & 25 Vict., c. 97.^ By sec. 14 of this act it is made a felony, unlawfully and maliciously to cut, break, or destroy, or damage with intent to destroy or render useless any loom,^ frame,^ machine, engine, tackle,* tool, or implement whether fixed or movable prepared complained of must be wilful and malicious. It does not apply where the party simply acts upon a mistaken view of his legal rights; and, therefore, not to the case of a tenant removing fixtures from the demised premises before the term has expired upon an honest conviction of what he believes to be his rights, however mistaken he may have been. State v. Newkirk, 49 Mo., 84 (1871). See, also. Beg. v. Pembleton, 12 Oox C. C, 607 (1874) ; S. C, 2 L. E. C. C, 119; 43 L. J., M. C, 91; Eev. Stat. 111. (1874), p. 380, § 192; 381, § 195 et seq.; 382, § 201; 2 Comp. Laws Mich. (1871), p. 2088, § 7597 et seq.; 2 Bish. Crim. Law (5th ed.), § 984 et seq.; Bish. Stat. Crimes, § 430, et seq. [See Wheeler v. State, 109 Ala., 56 (1895) ; Harris v. State, 73 Ga., 41 (1884); State v. Eising, 10 Nev., 97, 102 (1875) ; Anderson v. How, 116 N. Y., 336 (1889) ; State v. Jones, 129 N. C, 508 (1901); State v. McCracken, 118 N. C, 1240, 1242 (1896); State V. Eoseman, 66 N. C, 634, 635 (1872) ; AUgood v. State, 95 Tenn., 471, 472 (1895).] [A tenant removing window-sash which every layman and some lawyers would think he had a right to remove, is not guilty of wilfully injuring the house. State v. Whitener, 93 N. C, 590 (1885). And the tenant making such removal while he is in possession before his lease expires, cannot be indicted under Section 1062 of The Code. State v. Whitener, 92 N. C, 798, 799 (1885).] [Where there is a bona fide dispute as to a boundary line or the' pos- session of premises, the removal of fences or the severing of crops, is not malicious. The criminal law may not be invoked to decide who is en- titled to land. Hughes v. State, 103. Ind., 344, 348 (1885); Dawson v. State, 52 Ind., 478 (1876); State v. Haney, 32 Kan., 428, 431 (1884); Price V. Tawhao, 3 N. Z. L. B., Supr. Ct., 145 (1884).] [An information charging malicious injury to personal property is not supported by evidence of malicious injury to a stationary engine which is a part of the realty. People v. Jones, 120 Mich., 283, 284 (1899). And, conversely, where a person claiming to be the owner of an engine, shed and ore-crusher, which could be moved without injury to the ground, enters the mining-lot of another for the purpose of taking possession of these articles, he is not guilty of forcibly taking possession of real property. State V. Brinkerhoff, 44 Mo. App., 169 (1891).] 1 See, also, 7 & 8 Geo. IV., c. 30. 2 See Bex v. Hill, E. & E. C. C, 483 (1822). 8 See Eex v. Tracey, E. & E. C. C, 452 (1821). 4 See Eeg. v. Smith, 6 Cox C. C, 198 (1853). 674 CHAP. XIV.] MALICIOUS INJURIES. *456 for or employed in carding, spinning, throwing, weaving, etc., or otherwise manufacturing or preparing any goods or article of silk, woolen, linen, cotton, etc. Section 15 makes it a felony unlawfully and maliciously to cut, break, or destroy, or damage ^ with intent to destroy or render useless any machine ^ or engine, whether fixed or mov- able, used or intended to be used for sowing, reaping, mowing, threshing,^ etc., or for performing any other agricultural opera- tion, or any machine or engine, or any tool or implement, whether fixed or movable prepared for or employed in any manufacture whatever (except the manufacture of silk, woolen, linen, cotton, etc., goods). Sections 16 et seq. provide for malicious injuries to com, •trees and vegetable productions ; '^ section 25 for mali- [*456] cious injuries to fences ; sections 26 et seq. for malicious injuries to mines, among other ways, by pulling down, destroying or damaging,* etc., any steam-engine or other engine for sinking, draining, ventilating, etc., any mine, or any appliance or apparatus in connection with such engine or any staith, build- ing or erection* used in conducting the business of any mine, etc. Section 13 makes it a misdemeanor for any tenant unlaw- fully and maliciously^" to pull down or demolish, or begin to pull down or demolish the dwelling-house or other building or part thereof held by him, or maliciously to pull down or sever from the freehold any fixtures being fixed in or to such dwel- ling-house, etc. Sections 11 and 12 relate to offenses to property committed by persons riotously and tumultuously assembled to- 5 See Eeg. v. Gray, 9 Cox C. C, 417 (1864). Eeg. v. Fisher, 10 Cox C. C, 146 (1865). 6 See Keg. v. Gray (supra); Eex v. Mackerel, 4 C. & P., 448 (1831); Eex V. Fidler, 4 C. & P., 449 (1831) ; Eex v. Crutchley, 5 C. & P., 133 (1831); Eex v. HutoMns, Deae. C. L., 1517; Eex v. Bartlett, Id., Eex v. Chubb, Id., 1518; Eex v. West, Id. ' See Eex v. Taylor, E. & E. C. C, 373 (1819) ; Eex v. Whateley, 4 M. & E., 431 (1829). 8 Eeg. V. Norris, 9 C. & P., 241 (1840). 9 Eeg. V. Whittingham, 9 C. & P., 234 (1840). See, also, Orgell v. Smith (infra). 10 See State v. Newkirk (ante) ; Eeg. v. Pembleton, 12 Cox C. C, 607 (1874) ; s. c, 2 L. E., C. C, 119. 675 *457 THE LAW OF FIXTUEES. [CHAP. XIV. gether to the disturbance of the public peace. Sec. 11 makes it a felony for such persons unlawfully and with force to demol- ish, or pull down and destroy, or to begin to demolish, etc., any church, chapel, etc., or any house,!^ stables, etc., building or erection used in farming land or in carrying on any trade or manufacture, etc., or any machinery, whether fixed or movable,^ ^ prepared for or employed in any manufacture, or any steam or other engine, etc., for working, etc., any mine. Sec. 12 makes it a misdemeanor unlawfully and with force to injure or damage any such church, chapel, etc., as in the preceding section. [*457] *III. BUBGLAET. Burglary is defined to be the unlawful breaking and entering in the night time into another's dwelling-house, with the in- tent to commit a felony therein;!^ j^jj^j j^ order to constitute the offense both the breaking as well as the entry must be of something which constitutes a part of the dwelling-house. There seems to have been, however, in this connection, where it would work a fatal prejudice to the prisoner, some relaxation of the rule that fixtures are to be deemed a part of the realty; and with regard to cupboards, presses, lockers and other fixtures of the like kind, it seems, that a distinction ought to be made be- tween cases relative to mere property, and such wherein life is concerned. In questions between the heir or devisee and the executor, those fixtures may with propriety enough be considered 11 Destroying movable shop shutters is not a beginning to demolish within the statute, as they are not part of the freehold. Eeg. v. Howell, 9 C. & P., 437 (1839). See, however, as to window-shutters when part of a dwelling in a ease of burglary. Gibbon's Case, Foster's C. L., 107 (1752), post. See, also, 1 Hale P. C, 552. [See Fletcher v. Commonwealth, 80 S. "W., 1089 (Ky., 1904).] [An electric advertising sign does not form a part of the building to which it is afixed and does not violate an act forbidding a "projection from any building." Hull v. London Council [1901], 1 K. B., 580.] 12 See Orgell v. Smith, 6 M. & S., 182 (1817) ; 1 Price, 343. 13 2 Bish. Grim. Law, § 90; 4 Bl. Com., 224; 3 Inst., 63. [Where a house is erected by one person upon the lands of another by permission, its ownership is severed from that of the freehold; and, in an indictment for burglary, it is proper to allege ownership in the person who erected and occupies it. Webb v. State, 52 Ala., 422, 423 (1875).] 676 CHAP. XIV.] BUEGLAEY. *458 as annexed to, and parts of the freehold. But in capital cases, such fixtures which merely supply the place of chests and other ordinary utensils of household, have been considered in no other light than as mere movables partaking of the nature of those utensils and adapted to the same use.i* But if the breaking is merely of a trunk or box from which the goods are stolen, clearly the offense is not burglary.i^ Cutting a hole in the window- shutters of the prosecutor's shop which is part of his dwelling- house, and putting the hand through the hole and removing property, or forcing the blinds, the window being raised, there being no other entry or breaking, is held to be a sufficient entry or breaking to constitute burglary .^^ But simply forcing and putting the hand within outside shutters, the window being down and the glass remain*ing unbroken, is not a suffi- [*458] eient entry.^'^ A shutter-box partly projected from the wall of the house and adjoining one side of the window of the shop which side was protected by wooden paneling lined with iron has been considered as not constituting any part of the dwelling so as to constitute the breaking and entering of it burglary, though it seems clear that it would have passed with the free- hold as between exebutor and heir.^* 1* See Foster 's Or. L., 109 ; 1 Gab. Crim. Law, 172 ; 1 Hale P. C, 527, 555; 2 East P. C, 489; State v. Wilson, Coxe, 439, 441 (1793). [A frame structure, sixteen feet square, with doors and windows, and covered with a tin roof, used as a hen-house, is a building within the statute defining burglary. Gilloek v. People, 171 111., 307, 312 (1898).] IB 1 Hale P. C, 524, 554; 2 East P. C, 488; State v. Wilson, Coxe, 439, 441 (1793). 16 Gibbon's Case, Foster's Cr. L., 107 (1752); Commonwealth v. Steph- enson, 8 Pick., 354 (1829), per Parker, C. J., See, generally, as to what is a sufficient breaking, 1 Hale P. C, 552. [Grimes v. State, 77 Ga., 762 (1886); State v. Boysen, 30 Wash., 338, 389 (1902).] [Eemoving a wire-screen fastened into a window with nails, is a sufficient breaking. Sims y. State, 136 Ind., 358, 360 (1893).] 17 The State v. McCall, 4 Ala., 643 (1843). [See Minter v. State, 71 Ark., 178 (1903), Gaddie v. Commonwealth, 25 Ky. L. E., 1585 (1904).] isEex V. Paine, 7 C. & P., 135 (1835). See, also, Eeg. v. Howell, 9 C. & P., 437 (1839); Commonwealth v. Trimmer, 1 Mass., 476 (1805). [See Hunter v. Commonwealth, 7 Gratt., 641 (Va., 1850).] [A grating on the street, which gave entrance to a cellar under a store- room, is a part of the store-house, the removal of which constitutes a breaking. Commonwealth v. Bruce, 79 Ky., 560, 561 (1881); People v. Nolan, 22 Mich., 229 (1871).] 677 *459 THE LAW OP FIXTURES. [CHAP. XIV. IV. Deodajstds.^' "The peculiar nature whicli personal chattels acquire by reason of their annexation to the realty, gave rise formerly to some nice questions connected with the subject of deodands. And although this curious branch of law may, perhaps, hence- forth be rather matter of study for the antiquarian than the practical lawyer (since deodands have recently been entirely abolished by the legislature) ,2° stiU it seems proper not to pass wholly unnoticed the few striking cases upon this subject which are to be found in the books ; inasmuch as they throw a light on the principles out of which the general law of fixtures has grown up, and serve to explain the nature of this species of property in its strict relation to land. "The ancient authorities laid it down, that if, in case of mis- adventure, the death of a man was occasioned by means of a thing affixed to the freehold, it was liable to be forfeited to the king as a deodand in the same manner as any movable chattel. [*459] *But, according to later opinions, it was considered that there could not be a deodand in such a case, unless the thing was actually separated from the freehold before the accident happened. Thus, in the Axminster Parish Case,^^ a man ringing a bell in a church was drawn up and strangled by the rope. Two justices, Hyde, Ch. J., and Windham, J., were of opinion, that the bell was not forfeited, because parcel of the freehold; but the other two justices, semb. contra?^ The case was ad- 19 The antiquated learning of this section might perhaps rnih propriety be altogether omitted from this volume; but, as it is the object of the author to present not only the law as it now is, but also exhaustive refer- ences to the eases decided at the different stages of its growth to its present condition, and as this branch of the law of fixtures has been presented vpithin a convenient compass by Mr. Ferard in his work on Fixtures (p. 332), it has been thought expedient to present his observations on the subject at this place. 20 Statute 9 & 10 Vict., ch. 62 (which took effect from and after Sept. 1, 1846). 2iEex V. Crosse, 1 Sid., 207 (1675); s. c, 1 Lev., 136; 1 Keb., 723, 745; Bowman v. Milbanke, Sir T. Eaym., 97 (1675) ; s. P., and seems to be s. C. And see Eeg. v. Wheeler, 6 Mod., 187 (1704). See, also, Norff v. Caudray, Dyer, fol. 78, in notis. 22 In Woodward v. Mackpeth, Comb., 132 (1869), it is said that ehurch- 678 CHAP. XIV.] DEODANDS. *460 journed, and was not afterwards moved.^^ However, in the discussion of this case, it was "said, that if a door or gate is forced, per vim venti, against a man and Mils him, that it shall not be deodand. Quod fuit concessum per Cur?* In like manner, it is said to have been held by Clench and Fenner, Justices, that the sail of a wind-mill, which causes a death by striking against a man, cannot be a. deodand.^^ And Clench, J., held that the linen of the sail was liable to forfeiture; which Fenner denied, because it participated of the nature of the sail *itself. So, according to a more modem case, a mill- [*460] stone or the wheel of a forge or mill, which occasions a death, cannot be accounted a deodand.^* And so a tree, not severed, but which is blown by the wind against another.^'' "On the other hand, if the thing was severed from the free- hold before causing the death, then it was liable to forfeiture. Thus, if a bell fell from a steeple, or a mill-stone fell from the bells are chattels not fixed to the freehold, though the frames are. See 1 Salk., 164; Ferard Tixt., 205, in notis. If a person hang a bell in the steeple, it becomes church property. 2 Salk., 571. [It seems clear that in the United States, church bells are ordinarily part of the freehold.] See ante pp. *240, *354. 23 ' ' Another argument urged against the forfeiture in the Axminster Case, was that the bell had already been dedicated to God. This argument is founded on the explanation given of a deodand by some of the old writers, viz.: 'A thing given or rather forfeited to God for the pacification of His wrath, where any Christian man came to a violent end without the fault of any reasonable creature; which thing so given to God was to be sold and distributed to the poor by the king's almoner, for an expiation for that dreadful event.' Fleta says, the price is to be distributed to the poor for the soul of the king, his ancestors, and all faithful people de- parted this life. Lib. 1, ch. 25. Other ancient authorities consider it a payment for the purchase of propitiatory masses for the soul of the deceased, and, therefore, originally, belonging to the church, though after- wards vested in the king as a forfeiture. 2 Inst., 281. While others, again, state it to belong to the crown by common right, to be distributed in pious uses. ' ' 24 2 EoUe, 23. 25 1 Sid., 207. 26 Beg. v. Wheeler, 6 Mod., 187 (1704), Sir T. Eaym., 97; 3 Inst., 57; 1 Keb., 745. See 1 Salk., 220, per Pollexf en, Ch. J., in the case of the Lord of the Manor of Hampstead. See, also. Finch, b. 3, ch. 18. 27 1 Sid., 207. And see 1 Salk., 220; Hale's P. C, 420; Cowell's Diet, tit. Deodand. 679 *460 THE LAW OF FIXTURES. [CHAP. XIV. mill, and killed any one in its descent, then it would have been forfeited as a deodand; because it was a chattel from the moment of its severance.^* And so, if a jack-weight fell and killed a man, the weight would be forfeited, but not the jack which moved it.^® And, in like manner, if a mass of earth was separated from the soil, and in falling crushed a man. 8" So, if one in felling a tree gave notice to the bystanders, but, nevertheless, the tree in its fall killed one, the tree was for- feited.*^ And so, where a tree was blown against another, and a branch of the latter was thereby broken off, and in falling, killed a man, it was said that there should be a deodand of the branch. And, according to some authorities, both the tree and the branch should be forfeited.^* 28 1 Keb., 723; Sir T. Eaym., 97. [Corisistently with what has been stated ante p. *43, it would seem that the better doctrine would have been, that had the severance been only accidental or temporary, the thing severed would not have become a chattel and hence would not be subject to for- feiture.] 29 1 Sid., 207, arg. SOI Sid., 207; 1 Keb., 745. 31 Coke 's Copyholder, 45. 32"Staundf., lib. 1, ch. 12. In a late case, where a death was occasioned by the explosion of a steam-engine boiler [on a steamboat], a question was made whether both engine and boiler were deodand. Reg. v. Brownlow, 11 Ad. & E., 119 (1839). By the Statute 3 & 4 W. IV., ch. 99, sec. 29, et seq., provision was made for the more .effectual levying of deodands by the crown. ' ' In Eeg. V. The Eastern Counties Railway Co., 2 Dowl. Pr. C. (N. S.), 293 (1842), it was assumed that a locomotive steam-engine was the subject of a deodand. In this case, four coroner's inquisitions found that the deaths of four persons were respectively caused on a certain day by a steam-engine, and each inquisition imposed a deodand on the engine of 125!. The deodands having been estreated into the Court of Exchequer under the Statute 3 & 4 Wm. IV., ch. 99, sec. 29, the court refused to stay proceedings en three inquisitions on payment of 125?, on the ground that the instrument moving to the death of the party could not be tvfice for- feited by the same accident, but left the parties to their remedy by traversing the inquisition or moving to quash it in the Queen's Bench. See further on the subject of deodands. Bract., lib. 3, tract. 2, cap. 5; Britt., cap. 17; West's Symb. Indict., sec. 49; Staund. Cor., lib. 1, ch. 12; Coke's Copyholder, 46, 47; Nels. Lex. Man., tit., Deodand, 96; 1 Hale P. C, 420; 1 Hawk., ch. 26; Com. Dig., Waife, E 2; Bac. Abr., tit., Deodand; 7 Vin. Abr., 535; Fost. on Homicide, disc. 2. ch. 1. 680 INDEX. [BEFBRENCES ABE TO THE BOTTOM PAGES.] ABANDONMENT. See Surrender, Be-entry. right to remove fixtures lost by, 208. of railway track, right of removal lost, 215. effect on right to crops, 360, 371. failure to remove fixtures is, 218. none where landlord agrees to make endeavor to sell fixtures, 223, by vendee under contract, buildings pass to vendor, 383. ACCESSION. 81 et seq., 399. cloth covering of billiard table, 82. motors, controllers and poles upon electric cars, 82. ACCOUNT. See Injunction. ACCOUNT STATED. See Pleading and Practice. ACORNS. sown in the soil, not subject of emblements, 337. ACTION. See Equity, Jurisdiction, Pleading and Practice, Bemedies, Statute of Limitation, Waste, Measure of Damages. is notice, 580. lies for non-performance of agreement of tenant to leave fixtures, 224. lies for removal of fixtures by landlord before tenant takes pos- session, 404. by vendee under contract when vendor refuses to convey, 386. lies for recovery of rent paid for buildings under erroneous belief that right of removal existed, 256. for damage to nursery stock can be brought by lessee, 163. tenant cannot relieve himself from liability by a surrender, 208. for injury to a removable building, when transitory, 116, 217, 638. Assumpsit, in relation to fixtures, 660. count for money had and received, 662. covenant, breach of how alleged, 662. waiver of tort and suit in assumpsit, 662. not applicable to trial of title to real property, 662. when lies for fixtures or refusal of vendor under contract to convey, 386. Case in the Nature op Waste, the action of, has superseded the action of waste, 591. 681 682 INDEX. [BEFEBENCES ABE TO THE BOTTOM PAGES.] ACTION, continued- origin and advantages of, 591. may be brought by whom and for what, 591 et seq. against whom it lies, 592 et seq. by mortgagee of the realty, 593 et seq. by mortgagee when maintainable, 594. by mortgagee measure of damages, 595. by mortgagee, what must be averred, 596. inapplicable where executor claims fixtures, 597. does not lie against personal representative for waste by testator or intestate, 597. when a concurrent remedy, 597. ease may be joined to trover for a house, 651. Detinue, 618, 621, 626. Ejectment, when it lies at common law, 657. fixtures pass by virtue of a recovery in, 657. so, as to growing crops, 658. by one tenant in common to enforce agreement as to joint owner- ship of a boiler, engine, and stack, 659. to recover a "house, " a "chamber," "stable," etc., 659. value of improvements may be recouped, 79. when defendants allowed to remove buildings, 615. railway track laid without authority not pass by virtue of recovery in, 91. houses sold by landlord to his tenant do not pass by virtue of re- covery •in, 66. PoECiBLE Detainee, right to crops, 352. heater does not pass on recovery in, 658. for a house, includes the land, 659. Beplevin, fixtures, timber, trees, etc., tortiously severed and removed, recov- erable in, 65, 70, 618. fixtures constructively severed recoverable in, 622. maintainable for house wrongfully severed, 620. lies so long as the thing can be identified, and is not perma- nently annexed to other realty, 620. fixtures, how described in declaration, 621. fixtures, how described in affidavit, 621. lies only for personal property, 624. does not lie for unremoved fixtures, 624. title deed recoverable in, 625. cannot be made the means of litigating title to the realty, 625 et seq. by mortgagee for fixtures severed from the mortgaged premises, 73, 619. INDEX. 683 [KEFBBBNCES ABE TO IHB BOTTOM PAGES.] ACTION, continued- ripe corn unsevered recoverable in, 362, 369, 370. but growing crops severed by disseisor in possession, not recoverable in, 361, 628. coffin and corpse not recoverable in, 325. Trespass, quare clausum f regit. gist of the action, 640. tenant may maintain against landlord for injury to his emble- ments, 363. damages to growing crops as personalty, also recoverable in trespass before a justice of the peace, 369. against a sheriff for taking fixtures on /i. fa., 629. by tenant against a co-tenant, 629. by mortgagee, 630. lessor cannot maintain while a tenant is in possession, 631. by vendee of realty against the vendor, 631. by heir or devisee against executor, 632. de honis asportatis. See supra quare clausum f regit. for severance and removal of fixtures, timber, soil, manure, etc., 632, 635, 636. by grantee of real estate against the grantor, 632. by landlord against tenant, 633. by landlord against a stranger, 633. tenant against a wrong-doer, 634. tenant against the landlord, 636. auctioneer authorized to sell fixtures, 637. whether it lies where the severance and removal are one en- tire act, 633, 639. Teover, what amounts to a conversion, 646, 651. for manure, 179, 180, 642. when it lies for severance and conversion of crops, 369, 646. lies for severance and conversion of fixtures, trees, etc., 642, 645. lies for severance and conversion of furniture, 650. lies for severance and conversion of house built on land of an- other by his consent, 650. does not lie for fixtures while unsevered, 647, et. seq. whether this action lies where the severance and removal are one continuous act, 654. of more extensive application than trespass de 'bonis, 655. by the mortgagee of the realty, 72, 642. by the tenant against the landlord, 643. by the tenant against a third person, 644. by the vendee of the realty, 644. 684 INDEX [KEFEBBNCES ABB TO THE E0TT03I PAGES.] ACTION, continued— by the licensee against wrong-doer, 645. not a proper form of action to try title to land, 645. lies for fixtures severed by a stranger, 64, 70. lies for articles constructively severed, 651. does not lie for gas-fittings vphieh tenant agreed to leave, 665. right of action not affected by subsequent acts, 261, 382. ACT OP GOD. See Accession, Severance. ADAPTATION. See Appropriation; Tests. ADDITION. See Meaning. meaning of term, 10, 11, 247. folding doors are not, 10. vrhen removal is waste, 127. ADMINISTEATOB. See Seir and Hxecutor. ADVERSE POSSESSION. See Alieno Solo, Ejectment, 59. AEROLITE, to whom belongs, 83. AFFIXED. See Meaning. meaning of, 9. AGREEMENT. See Annexation, Bemoval, Covenants to Repair, Mort- gagor and Mortgagee, Statute of Frauds. limitation to rule that fixtures may become personalty by agreement, 34, 58, 107. as to removal of things to be annexed to realty, may be by parol, 108. character as personalty of things to be annexed to freehold, pre- served by agreement, 68, 103 et seq. agreement or understanding to have this effect must have existed before the thing was annexed, 109. agreement may be implied. 111 et seq. house severed by agreement may be re-annexed by agreement, 108. after annexation by a stranger, the thing annexed cannot afterwards be converted into personalty by a mere oral assent of the land- owner without a severance, 110. sales of fixtures to be annexed to realty under an agreement that they shall remain the vendor's till paid for. 111. right to hold a house as personalty by agreement not lost by mov- ing out, 113. trees, crops, etc., may remain personalty by agreement, 119. to remove, made after disability ceases, is without consideration, 94. AGEICITLTTJRAL FIXTURES, distinction between trade fixtures and erections for agricultural purposes, 166. Elwes V. Maw, 166. INDEX. 685 tREFERENCES ARE TO THE BOTTOM PAGES.] AGEECIJLTUEAL FIXTUEES, continued- buildings erected by agricultural tenant held not to be removable, 167, 171. rule criticised, 168 et seq. as between tenant for life and reversioner, 171, 173. buildings erected, by tenant for life not removable, 171. McCuUough V. Irvine, 170 et seq. McCullough V. Irvine, conmients thereon, 174. is agriculture a trade? 167-175. scope of the decision in Elwes v. Maw, 176. semble, that mere implements or articles of machinery are remov- able, 176. English Statutes, 14 & 15 Vict., ch. 25, s. 3, 178. Agricultural Holdings Act, 178. farm buildings, fences, etc., not removable as between tenant for life and remainderman, 274. AGEICULTTJEAL HOLDINGS ACT, 178. tenant's right to compensation for trees, 163. AGEICULTUEAL LIEN. See Lien. ALFALFA, not growing crop, nor improvement, 334, 559. ALIENO SOLO, annexations made in, 59, 77-101. rule of the Eoman Law, 77. rule of the Eoman Law, adopted in modern codes, 78. Britten's observations on the subject, 78. at common law an adverse possessor makes annexations at his peril, 79. recoupment of bona fide improvements, 79.. compensation for improvements in equity, 79, 80. compensation for improvements, statutory regulations, 80. See Agricultural Holdings Act. erections made by the owner of the soil with the material of another, 81. erections made by owner of soil with the materials of another, the owner may pursue his property wherever he can trace it, 81. erections made by owner of soil with the materials of another, right may be lost by delay, 84. erections made by owner of soil with the materials of another, may not recapture when the property has lost its legal identity, 83. erections made by owner of soil with the materials of another, physi- cal identity need not be lost, 83. erections made by owner of soil with the materials of another, effect of subsequent destruction of erection, 85. annexations in, by a stranger with his own materials, 86. •686 INDEX. [BEFEBEXCES ABE TO THE BOTTOM FACES.] ALIENO SOLO, continued- annexations in, by a stranger with materials of third party, 84. annexations in, by a stranger with materials of third party, demand necessary, 84. right of land owner against chattel mortgagee or conditional seller, 85. materials purchased by fraudulent representations of contractor, 85. railway track, removal of, 88. same rule applies in case of joint-tenants, etc., 92. same rule applies in case where owner of land is under disability, 94. immaterial that annexation was by mistake, 92. annexation remains personalty where entry is made under order of court, 117. distinction as respects the persons between whom the question arises, 95, 111. rule applies to trees, plants and crops, 99. rule does not apply to leaseholds, 91. rule does not apply to public lands, 97. insurance on building, not recoverable by builder, 88. ALIMONY, crops pass with land allowed for, 360. ALTAE STONE. See Stone. goes to remainderman, 278. not furniture, 477. ALTEBATION. See Improvements, Repairs, Meaning. folding doors are an, 10. meaning, 10, 246, 247, 248, 608. removal of building is not, 248, 608. AMBIGUITY OF "FIXTUEES," 2, 4, 6, 22, 234. ANCHOE, of a ship, not a fixture, 44, 45, 446. contra, as to anchor holding cable of a bridge, 44. used to moor a floating derrick, whether it renders the occupier of the derrick ratable, 570. ANIMALS. See Game. ANNEXATION, See Machinery, Be-Annexation, Foundation. degree requisite to constitute a fixture, 14 et seq. what constitutes annexation, 14. cases illustrating the subject, 14. Culling V. TufiPnal, 14. Elwes V. Maw, 15. Eex V. Londonthorpe, 15. Eex V. Otley, 16. Horn V. Baker, 16. Walker v. Sherman, 16. INDEX. 687 tKBPERENCBa ABE TO THE BOTTOM PAGES.] ANNEXATION, continued- other cases cited in note, 18. diversity of opinion as to degree requisite to constitute a fixture, 22 et seq. cases holding annexation necessary, 14, 22, 53. cases holding substitial annexation necessary, 22. cases holding slight annexation sufficient, 22. cases holding no annexation necessary, 22, 25. some leading cases holding no annexation necessary, stated, 23 et seq. Farrar v. Stackpole, 23. Voorhis v. Freeman, 24. Pyle V. Pennock, 25. physical annexation not necessary in Penn., 25. the test of physical annexation, too narrow and arbitrary, 26, 37. true rule as to, 27, 44. well considered in Holland v. Hodgson, 43. well considered with reference to statuary, etc., in Snedeker v. War- ring, 38. of chattels to soil of another with his consent, 103. character as personalty retained by agreement notwithstanding an- nexation, 103 et seq. distinction between buildings and other annexations, 106. house severed by agrement may be re-annexed by agreement, 108. too narrow a test, 37. alone, insufficient, 573. slight, sufficient for motive power, 22. juxtaposition, not, 14. by belting is not sufficient, 436. by tube is not sufficient, 449. by hose is not sufficient, 436. by pipe, 436, 578. sinking into earth by weight not sufficient, 20. when stone foundation not sufficient to make a building realty, 620. by gearing and shafting, makes machinery realty, 433. CoNSTRUCTivB ANNEXATION, 27, 45 et seq. keys, doors, windows, etc., examples of, 45. what necessary to constitute constructive annexation, 47. whether railroad rolling stock is constructively annexed to the realty, 47. fixtures constructively annexed pass with the realty to the heir, 310. ANNEXATIONS TO FEEEHOLD OP THE CHUKCH, 324. ANVILS, go to executor, 273. pass to the heir if annexed to the freehold, 300. 688 INDEX. [REFERENCES ARE TO THE BOTTOM PAGES.] ANVILS, continued. right to as between vendor and vendee, etc., of the realty, 273, 381, 468. whether exempt from distress, 551. APPENDAGES. See Appurtenances. rolling stock not, 567. APPRAISEMENT. See Valuation. APPEOPEIATION OE ADAPTATION, as tests of a fixture, 24, 27, 440, 452, 453, 564, 573. as evidence of intention, 31, 43, 58. with reference to constructive annexation, 47. APPITETENANCES, 8, 247, 395, 462, 463, 464, 467. machinery is, 463. manure is, 460. pump is not, 82. safe is not, 20. AEBITEATION. See Valuation. AEMS, of deceased ancestor, in nature of heir-looms, 320, 324. do not go to remainderman, 278. AEEAS, removable by tenant, 196. ASBESTOS COVEEING, mechanics lien allowed for, 428. ASSESSMENT. See Taxation. ASSIGNEE. See BanTcruptcy, Seller and Buyer. no better right to fixtures than assignor, 479. can remove fixtures as against landlord, 211, 213. of lease, rights as against a conditional seller, 487. of lease is not an under-tenant, 231. of lessors, when bound by covenants to pay for improvements of lessee, 527. of buyer, no right as against a conditional seller, 105. has no right to a building though removable, 106. ASSUMPSIT. See Action, Pleading and Practice. ATTACHED, 578. ATTACHMENT. See Execution, Annexation. AITCTIONEEE. See Trespass. AWNINGS, removable as trade fixtures, 143. right of removing not lost by taking new lease without reservation, 256. and awning frames pass by conveyance of the realty, 394. INDEX. 689 [BBrBBBNCES ABE TO THE BOTTOM PAGES.] AWNINGS, continued- does not pass by conveyance of the realty, 436. covered by insurance on building, 379. BACK-STAND, in a mill, a removable fixture, 237. BALANCES, as between executor and heir, under the N. Y. statute, 313. BALCONY, a fixture, 8. removable as a trade fixture, 142. BALLING-MACHINES. See Machinery. vrhether they pass to the grantee with the realty, 441. BALL-EOOM, removable as a trade fixture, 153, 157, 193. BALUSTEES, removable as trade fixtures, 143. BANKEUPTCY, statutes on the subject, 502. fixtures not goods and chattels within these statutes, 123, 503 et seq. so, whether the mortgage is of a freehold or leasehold, 504. so, whether erected by a tenant or the owner In fee, 504. so, in the case also of an equitable mortgage, 505. reasons of the rule, 506, 511. so, in the case of trade fixtures, though mortgaged separately from the leasehold interest of the mortgagor, 507. rule the same whether the question arises between mortgagee and the assignee, or between parties sustaining a different relation, 507, 509. e. g., between the lessor and the assignee, 507. so, between the vendor of land by executory contract and the as- signee, 510. the law of reputed ownership not applicable to landlord's fixtures let with the demised premises, 509. stipulation that tenant shall not remove trade fixtures unless he shall have kept all his covenants, binding on the assignee, 510. fixtures only constructively annexed, not goods and chattels vrithin bankrupt acts, 511. so, as to articles severed without the knowledge or consent of the mortgagee, 511. articles not annexed to the realty pass to the assignee, 508. articles not annexed to the realty are "goods and. chattels, " 16. when receiver is entitled to fixtures, 211, 226. trustee occupies no better position than tenant, 255. trustee entitled to building materials, 508. trustee entitled to a steam engine, 107. 44 690 INDEX. [BEFEBENCES ABB TO THE BOTTOM PAGES.] BANKETJPTCY, continued- trustee entitled to ease of stufEed birds, and a "trophy," 278. trustee not entitled to crop on homestead, 369. trustee not entitled to signboard, 508. trustee who disclaims has no right to remove fixtures, 206, 207. uncompleted tanks are not part of the realty, 508. BAB AND BAE-FIXTUEES. See Counters. realty while annexed, 125. removable as trade fixtures, 142. contra, 145, 146. BABGES. See Wharf. used for piers, occupiers when ratable, 570. of University Boat Club, when ratable, 571. BAENS. See Buildings. on pattens, removable by tenant, 15. on staddles are mere chattels, 18, 648. contra, 19. erected by a tenant for life of a. farm, not removable, 171. quaere as to whether a bam is not an accessory to a trade, 175, 1/6. erected by mortgagee in possession, whether he may remove them, 422. declaration in replevin for, 621. BAEEACK8, built by IT. S. on pubUe commons, 98. BASEBOARDS, 105. BATHING-TUB, right to as between grantor and grantee of the realty, 389. is a trade fixture, 43. BAYES, pass to heir with the freehold, 300. BAY-WINDOW, is part of the realty, 380. BEAST-HOUSE. See Buildings. erected by agricultural tenant, not removable, 167. BEDS. See Covering. BEEE-PUMP, as between executor and heir, under N. Y. Statute, 313. BEES, qualified property in, 329. when not the subject of larceny, 668. belong to land-ovraer, 83, 329. BELLOWS, pass on conveyance of land, 393. go to executor, 273. INDEX. 691 [BBFEBBNCES ABE TO THE BOTTOU FAQES.] BELLS, are fixtures, 7, 46. not removable after expiration of tenancy, 201. hung in steeple of church become the property of the church, 326, 678. church bell not subject to f,. fa., 540. origin of bells and chimes, 326. a factory bell passes by a conveyance of the realty, 394. otherwise of a plantation bell temporarily placed upon posts, 394. BELL-PULLS, pass by a bequest of household furniture, 475. BELL-BOPES, belong to church wardens, 326. BELTING. See Mill-Baws, Larceny. when passes with the realty to grantee, 391, 392, 436. parcel of the freehold, though temporarily severed, 46. trover for, 648. mechanics' lien allowed for, 427, 428. covered by insurance, 379. not subject to levy, 537, 538, 539. is constructively annexed, 46. effect of connection by, 436. BENCHES, 196, 265. BEQUESTS. See Devises. of fixtures is a constructive severance, 66. BETTERMENTS. See Ejectment. what are, 246. BILL OP LADING, for severed fixtures, rights of hona fide holder, 71. BILL OP SALE. See Seller and Buyer. as evidence of intent, 57, 136. constructive severance by, 67, 68, 471. working estoppel, 522. BILLS OP SALE ACT. See Notice. BLEACHING-HOUSE. See Buildings. held not removable as a trade fixture, 147. BLINDS, when pass vrith the house to the grantee, 455. pass by a bequest of household furniture, 475. BLOWEE, of a forge, right to as between vendor and vendee, etc., of the realty, 381. blower-pipe passes under the description of "fixed machinery," 468, 692 INDEX. [BBFBBENCBS ABE TO THE 50TX0M PAGES.] BOAT. See Ferry-Boat. not constructively annexed, 47. ancient, embedded in soil, belongs to landowner, 83. BODY. See Coffin. human being not a fixture, 13. dead, no property in, 325. dead, when buried, not removable, 119. dead, does not pass by conveyance of land, 325. dead, of pigs, when buried, are subjects of larceny, 670. BOILEE. See Mechanic's Lien, Ejectment, Steam Engine. of steam-engine annexed to land under agreement as to its removal, 104, 115, 485. compensation for use of, 106, 124. of steam-engine, when removable by tenant, 140, 141, 146, 187, 204, 238, 245. in distillery, removable by tenant, 140. steam-boiler erected by agricultural tenant, held to be a chattel, 178. in a green-house, not removable by tenant, 187. right to as between vendor and vendee, mortgagor and mortgagee, etc., or the realty, 381, 387, 392, 395, 403, 433, 434, 438, 451, 470. right to as between mortgagee of the realty and a chattel mortgagee, 418, 420. right to as between mechanic claiming a lien and a chattel mort- gagee, 425. affixed by owner of freehold, when subject to fi. fa., 537, 538, 543. affixed by tenant, subject to fi. fa., 544. occupier of, ratable, 580, 582. when fixture by weight, 38. alieno solo, when removable, 98. go to executor, 273. go to heir, 303. mechanics' lien allowed for, 427, 428. covered by insurance, 379. how taxable, 564. right of unpaid seller, 105. BOLTING-CLOTH, replevin for, 628. mechanics' lien allowed for, 429. BOOK-CASES. See Cases. when fixed furniture, 7. do not pass vrith the land, 447. BOOK-SHELVES. See Shelving. set in recess in wall cut to receive them, held to be fixed to the free- hold, 456. INDEX. 693 [BEEDBBNCES ABB TO THB BOTTOM PAGES.] BOOM, taxable as realty, 559. is realty in action of trespass, 639. BOEING-MACHINE. See Machinery. right to as between mortgagor and mortgagee, etc., of the realty, 438. BOUNDAKY. See Trees, Bedge. when fences on, are removable, 87, 98. unwritten partition of fence on, vaUd, 514. ownership of party wall, 105. when in dispute, removal of fences or crops is not malicious, 674. BOWLING-AUyEY, removable as a trade fixture, 142. contra, 145. BOX. See Sedges, Shrubs. planted by tenant, may not be removed by him, 163, 197. BEICK. See Building Materials. laid in wall, part of freehold, 85. land in wall, part of freehold, and a sale of, is vrithin the Statute of Frauds, 515. when pass on conveyance of land, 435, 459. made on government land, do not pass with the land to the grantee, 434. BEICK-KILNS. See Kilns. removable as trade fixtures, 150, 161. BEIDGE, materials of severed by wrong doer, 113, 635. stone piers of, revert to railway company on abandonment of enter- prise, 117. when removable by tenant, 144, 146, 168. damages not allowed for in condemnation proceedings, 89. how taxable, 558, 562, 563. public, does not belong to land owner, 113. public, does not pass on conveyance of land, 402. public, not trespass to fasten boat to, 636. BUCKETS, as between grantor and grantee of the realty, 433. BUILDING. See Dwellings, Covenants to Sepair, Taxation, Enginehouse, Poor-rates, PuMio Lands. a wing is, within Mechanic's Lien Law, 11. when a chattel and subject to attachment, 19. set upon blocks on U. S. land, personalty, 19. set upon blocks by tenant, personalty, 15, 19, 170, 153, 192, 195, 239. set upon blocks, realty, 59, 117, 119, 382, 413. 694 INDEX. [BBFaBBNCBS ABE TO IHB BOTTOM PAGES.] BUILDING, continued— a floating dock, not, 44. alieno solo, 86 et seq. on piles below low water mark of navigable river, 95. prima facie real estate, 96, 102, 195, 513, 514. distinction between and other annexations, 106. annexed to the land of another with his consent, 103 et seq. annexed under parol agreement for its purchase, 385. not severed from realty by treating it as personalty in the instru- ment of conveyance, 110. waste to pull down, 127, 602, 607. distinction taken between and trade fixtures, 147. contra, 148. when removable as a trade fixture, 146, 148, 152, 176, 274. landlord under no obligation to pay for buildings erected by tenant on the demised premises, 191, 217. erected by lessee of dowress and rented for stores and bed-rooms, not removable, 192, 283. farm buildings erected by tenant for life, not removable, 274. tenant entitled to use of during the term, 75, 195. erected by incumbent, when removable, 287, 289. ■when passes by a conveyance of the land on which situated, 393, 424, 434. when not subject to distress, 549. wrongfully severed from the realty, recoverable in replevin, 73, 620. constructively severed from the realty, recoverable in replevin, 622. trover for, 652. what are within English acts as to larceny, 671, 672. what is, 12, 525, 677. go to heir or remainderman, 263, 273, 274, 284, 311. pass with land in condemnation proceedings, 380. when mechanics' lien allowed, 429, 430. are immovable by destination, 34. how taxed, 557, 561, 563, 664. when exempt, 71, 106, 539, 546, 559. not subject to levy, 92, 537, 538. rights of vendee of land under contract, 59, 383. erected by partners, 92, 109, 110. removable, is not personalty, 67, 106, 124, 379, 502, 546. removable, is insurable as realty, 223, 379. removable, not within the Statute of Frauds, 513. removable, homestead therein, 404. detinue does not lie for, 621. on posts or blocks, when removable, 18, 98, 383, 422, 434. on posts or blocks, covered by covenant to leave in repair, 236. on stone pillars, presumed realty, 96. INDEX. 695 [befgbbnces abi: to ths bottom paobs.] BUILDING, continued— on stone foundation, when not realty, 620. presumptions as to, 11, 96, 147, 152. of post traders, 113. what is evidence that it is movable, 107. contract as to removal, not within the Staute of Frauds, 109. injunction against removal, does not involve title to realty, 605. insurance of, implied warranty of title to land, 398. carries land under it, 397, 425, 473, 565, 659. removal of, from mortgaged land, 71, 73, 616, 619. severance, what is, 66, 67, 623. severance, starting from its place, is, 65. severance, effect, 71, 75. limitation to rule making it a chattel by agreement,- 34. not covered by chattel mortgage of personalty, 13. chattel mortgage of, operates as mortgage of realty, 35. when a fixture by weight, 38. effect of failure to remove by certain day, 68. removable by tenant, land is not "improved," 477. second floor of, is land, 586. third story for life of, walls become property of land-owner after fire, 82. BUILDING MATEEIALS. See Lumber, BricJc. when exempt from seizure on attachment, 539. sale of, within Statute of Frauds, 515. trustee in bankruptcy entitled to, 508. BUILDING EBSTBICTION. See Bestriction. what is a violation of, 11. BUEGLAEY, rule that fixtures are a part of the realty relaxed in respect of, 676. a distinction to be made in respect to cupboards, presses, lockers, etc., in favor of Ufe, 676. what a suflScient breaking, 677. BUEIAL. See Body. BUEIED AETICLES. See Accession. belong to land-owner, 83. BUYEE. See Seller and Buyer, Grantor and Grantee. CABIN. See Building. waste to remove, 310. CALENDEE, quaere as to whether removable as a trade fixture, 152. calender-rolls right to as between mortgagor and mortgagee, 438. calender-rolls right to as between grantor and grantee, 392. CAMP, no presumption that it is not a part of the land, 96. 696 INDEX. [EEPEKENCES ABE TO THE BOTTOM PAGES.] CARDING MACHINES. See Settlement, Machinery. not fixed to the land are chattels, 16, 20. when subject to f,. fa., 539, 543. not subject to a mechanics' lien, 426. whether they pass to the grantee with the realty, 442, 443, 465. whether ratable to the poor, 575. CAEPENTER-SHOP. See BvAlding. remoTable as a trade fixture, 148, 161. removable contra where erected by agricultural tenant, 167. when passes under a mortgage sale, 445. CARPETS. See Oil Cloth. ' ' not fixtures, 45, 308, 447. do not pass with the land, 447. quaere whether fixed furniture, 476. CARS. See 'Rolling Stoclc. mechanics' lien allowed for, 427, 430. of electric railway, taxable as realty, 562. CART-HOIJSE. See Buildings. erected by tenant in agriculture, not removable, 167. CASE. See Furniture. is trade fixture, 141. not pass to grantee of realty, 434. not pass with lease, 404. of stuffed birds, not go to remainderman, 278. CASE IN THE NATURE OF WASTE. See Action, Waste. CASING, of oil-well, is a trade fixture, 140. CASKS. See TanTcs, Tuts, Vats. not constructively annexed, 47. when fixtures by weight, 38. when pass to grantee of realty, 434, 456. CAULDRONS, exempt from distress, 552. CHAIN, not a fixture, 419. when pass to grantee of realty, 24. subject to levy, 543. annexation by. See Ferry Boat. CHAIRS. See Stools, Opera Chairs. not an addition, alteration or improvement, 241. when trade fixture, 141. when pass on conveyance of the realty, 395, 437, 447, 452, 485. mechanics' lien allowed for, 429. I]SiDEX. 697 [BErEKBNCES ABB TO THB BOTTOM PAGES.] CHAMBERS, used in making sulphuric acid, as increasing the ratable value of the realty, 574. CHANDELIERS. See Gas Fixtures. pass to grantee of realty, 390. mechanics' Uen allowed for 429 subject to larceny, 670. CHARTERS, pass with the land to the heir, or alienee, 315. when executor entitled to possession of, 315. are forfeited, if the land is forfeited, 315. not goods and chattels, 316. but trover, detinue or trespass de bonis may be brought therefor, 316. 80, as to replevin, 625. when the box containing them passes to the heir, 316, 317. not the subject of larceny, 316. not the subject of distress, 316, 549. but charters relating to personalty pass to executor, 317. so, when pledged they are chattels in respect of the creditor, 317. CHATTEL MORTGAGE. See Bill of Sale, Mortgage. CHATTEL REAL, when a building is, 35, 95, 124, 502. must be mortgaged as realty, 502. CHATTELS. See Personal Property. are not fixtures, 13. what recoverable in trespass for taking, 637. CHEEK-POSTS, waste to remove, 127, 188. CHIMNEY. See SmoJcestack. removable by tenant, 150. removable by tenant, see, however, 152. trover for, 648. iron backs to, removable by tenant for life, 276. iron backs to, when pass to executor of incumbent, 286. iron backs to, when pass to executor of incumbent, as against the heir, 301. CHIMNET-GLASSES, held to be furniture, 447. removable by tenant for life, 279. do not pass to the grantee with the land, 447. CHIMNEY-PIECES, removable, if ornamental, 189, 250. held not to pass by a bequest of furniture, 476. not subject to distress, 550. 698 INDEX. [BEFEBENCES ABE TO THE BOTTOM FAOES.] CHUECH. See Buildings, Organ. annexations to freehold of, 324. CIDEE-MILL. See Buildings, Mill. removable by tenant, 152, 159, 169. the case of the eider mill, decided by Comyns, C. B., 159, 272, 301. the case of the cider mill, doubted and overruled, 159, 302, 306, 391. and press pass to grantee with the realty, 391. portions of, as the sweep, trough, etc., pass, though temporarily severed, 457. CISTEENS, in oil refinery removable by tenant, 140. in oil refinery included in term "erections," 246. in a tavern and boarding-house removable by tenant, 165. when passes by a conveyance of the land, 396, 424, 456. CIVIL LAW. See Boman Civil Law, French Law. columns and statues under, 40. in erections alieno solo, 77 et seq. poacher not required to restore game, 328. CLAPBOAED-MACHINES. See Machinery. pass with the land on execution sale, 402. CLOCK. See Furniture. whether one will pass by a bequest of household goods, 476. not an alteration, 11. is constructively annexed, 46. passes to grantee of realty, 453. CLOSET. See Water-Closet. removable as a trade fixture, 143. CLOVEE, whether the subject of emblements, 334, 338. COAL. See Fuel. subject to levy, 541. COAL-BINS, removable as trade fixtures, 143. COAT-AEMOE, 320, 324. COFFIN. See Body. property in, 325, 625. after interment, not subject to replevin, 325, 625. subject to larceny, 325. COKE-OVENS. See Ovens. are trade fixtures, 149. COLD STOEAGE EOOM, removable as trade fixture, 142. COLLAE OF S. S., said to be in the nature of an heir-loom, 320. INDEX. 699 [BBFBBENCES ASB TO THB BOTTOU PAOBS.] COLLECTOR'S BOND. See Uen. COLUMNS, not removable by tenant, 146. COMMISSION. See Larceny. COMMUNITY. See Husband ajid Wife. CONDEMNATION PEOCEEDINGS, rule between grantor and grantee prevails, 379. what passes as part of the land, 380. tenant has right to remove fixtures, 481. railway company acquires lessor's right to purchase tenant's im- provements, 534. compensation to be allowed tenant, for buildings erected by him, 196, 224, 530. remainderman not entitled to compensation for building erected with consent of life-tenant, 89. by railway company, whether compensation allowed for fixtures pre- viously annexed by them, 88. compensation not allowed for a school-house previously built, 89. effect of delay, 117. CONDITION, effect of non-performance, 218, 227, 229, 230. may be waived, 230. violation of, must be shown, 265. purchaser of leasehold subject to, 229. when broken, right to fixtures of grantor re-entering, 265, 383, 384. unperformed, creates no estoppel, 520. CONDITIONAL SALE. See Seller and Buyer. CONFLICT OF LAWS, 417, 487. CONFUSION OF GOODS. See Accession, Manure. CONIES, when pass to the heir, 329. when pass to the executor, 330. CONSERVATORIES, erected by tenants, when removable, 186, 187, 188. removable by incumbent, 287, 290. CONSIDERATION, none, for promise of landowner to pay for improvements made by adverse possessor, 79. none, for permission to remove a building erected upon land of a person under disability, 94. none, for promise after surrender, to allow removal of fixtures, 226. for improvements on public land, 95. for improvements on lands of others, 514. CONSTRUCTIVE ANNEXATION. See Annexation. 700 INDEX. [BEFBBENCES ABB TO THE BOTTOM PAGES.] CONSTEUCTIVE SEVEEANCE. See Severance. CONTEACT. See Agreement. CONYEESION. See Trover. COOLEES, in distillery, removable by tenant, 140, when subject to distress, 551. COPPEES, are removable by a tenant, 139. may be seized on fl. fa. against tenant, 133. as between heir and executor, 300. not goods and chattels within bankrupt act, 504. in paper-mill not subject to extent, 538. when not subject to distress, 552. COPYING-PEESS. See Press. is a trade-fixture, 143. COEN-CEIB. See Buildings. erected by tenant for life of a farm, not removable, 171. erected by tenant for life of a farm, see, however, 176. quaere as to whether a corn-crib is not accessory to a trade, 176. COEN-CEUSHEE. See Machinery. passes with land to grantee, 392. COENICE, fixed by tenant, question as to whether merely matter of ornament and removable without injuring house, etc., left to jury, 155, 187. COENICE POLES, pass to grantee of realty, 452. COEPOEATION, annexations by stockholder to building owned by, 37. COEPSE. See Body. COTTON-GIN, house for, an immovable in Louisiana, 34. running-gear of, a fixture passing to the heir, 304. when passes on a conveyance of the realty, 391, 434, 444. not severed by giving a delivery bond, 65. removable by tenant, 178. goes to executor, 273. detaching running-gear of, is waste, 265. reservation of, is not within the Statute of Frauds, 516. COTTON-PEESS. See Press. not covered by mortgage of land, 419. of tenant, not subject to levy, 545. COTJNTEES. See Bar. interest of tenant in, when severed from the demised premises, 76. INDEX. 701 [IIEFEBENCES ABB TO THE BOTTOM PAOBS.] COUNTEES, continued- oyster and trench counter, realty while annexed, 125. when removable as trade fixtures, 142, 146, 197. when trover lies for, 650. when pass by a conveyance of the realty, 394, 436. COUNTING-EOOM. See Offlce. replevin for, 625. COUET. See Question of Law. COVENANT. See Actions. COVENANTS. See Warranty. not presumed in lease not printed, 259. against alteration, what not a violation of, 11. against removal, what not violation, 233. against underletting, assignment of lease is not, 231. to pay for improvements, when binding upon assignee of lessor, 527. to repair, effect of upon tenant's right of removing fixtures, 233 et seq. to repair, effect of a matter of interpretation depending on facts of individual case, etc., 233. coTenant to repair generally construed to relate only to articles annexed at time of demise, 234. cases on the subject, 234 et seq. carrying away a shelf, a breach of, 234. may prohibit removal of subsequent erections where such appears to be the intention, 235. question sometimes turns upon what are repairs, 236. cases on the subject considered, 236. covenant to repair and to yield up, etc., the demised premises and subsequent erections, 238 et seq. includes trade buildings fixed to the soil, 239. but not trade buildings not let into the ground, 239. quaere as to last point, 240. does not in general include mere chattels, 240. does not in general include trade fixtures, 242. not a breach of, to remove fixtures not immediately restored, but capable of restoration before end of term, 248. construction of sometimes determined upon the principle ejusdem generis, 248 et seq. of title, not broken by purchasing tenant's crops, 482. of warranty, when broken, 484, 660. COVEEING, to billiard table, 82. to beds, as between heir and executor, 298. COVEETUEE. See Husband and Wife. disability of with reference to annexations alieno solo, 94. 702 INDEX. [BEFBBENCBS ABE TO THE BOTTOM PAGES.] CBANES, when pass with the realty to the grantee, 390, 393, 466. affixed by owner of freehold, not subject to f,. fa., 537. ratable value of the realty as affected by annexation of, 574, 578. how taxed, 564. CEEDITOES. See Execution, Lien. CEITERIA. See Tests. CBOPS. See Emblements. planted alieno solo, 99. planted alieno solo, may retain character of personalty if so agreed, 119. as between parties not owning the land, 99. distinguished from emblements, 335. planted alieno solo, rule of civil law as to, 79. are not personal property, 369. reserved in deed, not personal property, 67. are goods and chattels, 364. are movables, as to a privilege for supplies, 366. partition of, is a partition of personal property, 372. include vegetables, 482. fruit, 338. trees are not, 559. alfalfa is not, 559. severance by sheriff, does not change character, 64, 342. when not pass with land, 349. not pass to one with notice, 479 agricultural lien on, superior to right of grantee of land, 343, 480. ' mature crops, when not part of the realty, 347, 350, 365. planted between execution sale of land and receipt of deed, right to, 342, 345, 347. as between vendor and vendee of land under contract, 344. go vfith land on partition, 340, 346. covered by lien on land, 342, 343, 344. pass with lease of land, 340. right to, of mortgagee in possession of land, 345. as between holder of particular estate and remainderman, 353. rights of under-lessee, 347. rights of licensee, 346. landlord entitled to on tenant's abandonment, 371. mortgage of, without writing, is valid, 368, 371. constructive severance of, 66, 67. subject to levy if conveyance of land is fraudulent, 362. when have a potential existence, 367. to be grown, when chattel mortgage of is valid, 367, 368. on homestead, exempt, 365. replevin lies for, 369, 370. INDEX. 703 [BBFEBENCBS ABE TO THE BOTTOM FAOES.] CEOPS, continued- right to, on disaffirmance of lease by ward, 358. judicial notice as to, 350, 368, 370. when a specific legacy, 351. measure of damages for destruction of, 641. CBOWN JEWELS. are heir-looms, 235, 318, 321. CEYSTAL PALACE, 235. CULM, when mined is personal property, 480. CUPBOAED. See Burglary, Cases. when removable as a trade fixture, 143, 145, 146. removable as a domestic fixture, 197. when annexation of confers settlement, 586. passes to heir if affixed to the freehold, 300. when passes to the grantee of the realty, 450. CUPOLA, passes to grantee of land, 395. in manufactory af^ed by owner of freehold, not subject to /!. fa., 537. CUEBING, passes with land, 396. CUETAINS, not fixtures, 308. when pass with the land, 395, 447. mechanics' lien allowed for, 429. CUETEST. See Tenant for Life. CUSTOM. See Emllements. ground of decision in Culling v. Tuffnal, 15. in Milwaukee to consider buildings erected on blocks, etc., by tenants as personalty, 59, 166. in Washington to consider buildings erected on blocks, etc., by tenants as personalty, 165. influence of, in cases of erections alieno solo, 98. influence of, in cases of tenant's fixtures, 165. may be established by parol testimony, 166. not applicable where there is a contract applicable to the point in controversy, 166. right to manure as between landlord and tenant, affected by, 184. right to fixtures as between heir and executor, influenced by, 310. heir-looms due by, 318, 319, 323. as affecting the law of emblements, 353, 354. when not admissible to alter meaning of the words in a deed, 461. usage of trade, influence of upon questions of reputed ownership, 509. 704 INDEX. [BEFSBENCBS ABB TO TED BOITOU PAOES.] CUSTOM, continued— in Hawaii, to remove house-frame, 311. right under, lost by delay, 165. DAIEY-HOUSE. See Buildings. removable as a trade fixture, 148, 161. DAMAGE. See Measure of Damages, Injury, Injunction. to freehold in removing fixtures, 154. DEAD BODY. See Body, Coffin. DECAY. See Severance. DECLAEATION. See Pleading and Practice. DEED. See Charters. DEER. See Game. when pass to the heir, 328. tame and reclaimed, go to personal representatives, 329. waste may be committed in respect of, 331. when not subject to distress, 549. DEFINITIONS. See Meaning, 1 et seq. DELAY, effect of, on right to fixtures, 84, 117, 165, 208, 214, 224, 538, 617. DEODANDS, origin of, 679. fixed property formerly the subject of, 678. otherwise by later authorities, unless the thing was severed before the accident happened, 678. examples, 678, 679. abolished by statute, 678. DEEEICK, occupier of floating derrick, when ratable, 571. attached to freehold, not an allowable deduction, 574. passes with land, 395. is trade-fixture, 140, 144. how taxable, 564. DESK. See Office Furniture. passes with land, 396. DESTINATION. See Immovables. DETINUE. See Action. DEVISES. See Tenants for Life and in Tail, Furniture, Legacy, Bequest. fixtures pass by devise of land, 473, 476. testamentary disposition of fixtures separately from the land, 474. testamentary disposition of furniture, etc., 475, 476. intention to dispose of fixtures separately from the freehold, how evidenced, 475. of plant in a brew-house, 476. INDEX. 705 [HEFEBBNCES ABB TO THE BOTTOM PAGES.] DEVISES, continued— what passes under the words "eflfects belonging to the business," 477. what passes by the devise of a plantation by name, 477. of land pass growing grass, 334. of land not pass trees severed by wind, 474. of building passes land, 397, 473. right of tenant to fixtures, 204. void, improvements do not pass, 474. of "unimproved" land passes land upon which are buildings owned by third parties, 477. devisees in remainder are not bound by agreement of life tenant, 524. executory devisee, whom can he have enjoined against waste, 606. DILAPIDATION. See Ecclesiastical Persons. defined, 289. considered in Martin v. Eoe, 290. not dilapidation to remove hot-houses, pineries, etc., 290. principle of estimating compensation for, 291. remedy for, 292, 293. DISABILITY. See Infancy, Guardian and Ward, Husband and Wife. of landowner, effect on right to remove building, 94. no consideration after removal of, for agreement as to articles annexed before, 94. DISCLAIMER. See Bankruptcy. DISHES. See Accession. buried, belong to landowner, 83. DISTILLERY, fixtures belonging to, removable by tenant, 140, DISTINCTION, between fixtures and improvements, 247. between emblements and growing crops, 335. ' DISTRESS, fixtures not subject to, 549. of fixtures, dicta in Year Books concerning, 298. charters not subject to, 316, 549. growing crops not subject to, till 11 Geo. II., 364, 550. Stat. 11 Geo. II., eh. 19, construed, 365, 550. reason of rule as to exemption of fixtures, etc., 549, 552 et seq. when receipt of proceeds of, does not make landlord a trespasser, 549. things constructively annexed to the realty, exempt from, 551. things temporarily severed exempt from, 551. otherwise, if permanently severed, 551. instances of fixtures held exempt from, 551, 552. 45 706 INDEX. [EEFEBENCES ABE TO THE BOTTOM PAGES. ] DISTEESS, continued- privilege of exemption may be waived, 556. trover against landlord for distress of fixtures, 643. DISUSED BUEIAL GROUNDS ACT, ENGLAND, what is a building within, 11. DOCK. See Dry Bock, Moating Bock, Tier, Wharf. is a fixture or erection, 10, 526. DOLPHIN, attached to the freehold, not an allowable deduction from the ratable value, 574. DOMESTIC nXTUEES. See Ornamental and Bomestic Fixtures, Mixed Cases. DOOES. See Furnace, Vault. parcel of freehold and go with the house, 45, 394, 453. of a pew, 97. waste to remove, 127, 188, 265. as between heir and executor, 298, 300, 456. as between grantor and grantee, 394,- 452. not devisable by tenant for life or in tail, 474. not goods and chattels within bankrupt law, 511. not subject to distress, 551. not subject of deodand, 679. not subject of larceny, 670. constructively annexed, 45. not an addition, but an alteration, 10. not removable by tenant, 146, 197. mechanics' lien allowed for, 429. right of seller on condition against mortgagee of land, 105. DOVECOTE, destruction of, waste, 126, 604. injunction to prevent removal of, 604. DOVES, when pass to the heir, 329. waste may be committed in respect of, 331. DOWEE. See Emhlements, Tenant for Life, water-wheel subject to, 297. wharf subject to, 297. DEAIN-PIPE. See Pipes. mechanics' lien allowed for, 431. DEAWEES, in a drug store, interest of tenant in when severed, 76. case of, when considered as furniture, 81, 125, 650. removable after end of tenancy, 201. pass by a conveyance of the realty, 394. sale of, within Statute of Frauds, 515. INDEX. 707 [BEFEBBNCES ABB TO THB BOTTOM FAQXS.] DBTLL, passes with land, 395. DEILLING-MACHINE. See Machinery. when passes to mortgagee of the realty, 445. held subject to fi. fa., 543. DBY-DOCK, is land, 12. not subject to salvage, 44. DET-H0U8B. See Buildings. quaere as to being removable as a trade fixture, 152. DUPLICATE MACHINERY, is constructively annexed, 24, 46. passes with land, 392. DUTCH BARNS. See Buildings. removable by tenant, 149. not buildings within covenant to repair buildings, 236. DWELLING-HOUSES. See Buildings. set on blocks and rollers by tenant, personalty, 19, 192. set on blocks and rollers by tenant, see, however, 59, 117. are immovables in Louisiana, 34. set on blocks, etc., by vendee, realty, 59. built by son on land of his father, 118. generally not removable, 161, 170. not accessories to a trade, and not removable by tenant, 175, 192. a levy on, without also levying on tenant's leasehold interest is irregular, 548. DYE-HOUSE. See Buildings. held not removable as a trade fixture, 147. right to, as between tenants-in-common, 380. DYNAMO. See Electric Fixtures. not an erection or addition, 241. is trade-fixture, 143. when passes with land, 396, 449. not subject to levy, 538. how taxable, 564. BASEMENT, may be acquired in a building which is personal property, 124. ECCLESIASTICAL PERSONS. See Dilapidation. claims between, and their successors in respect of fixtures, similar to those between tenant for life and remainderman, 285, 286. what passes to executors of, 286. may remove mere ornamental fixtures, 286. ornaments of bishop's chapel are in nature of heir-looms, and merely in succession, 287. 708 "INDEX. [EEFEEBNCES ABB TO THE BOTTOM PAGES.] ECCLESIASTICAL PEESONS, continued— hot-houses, pineries, conservatories, etc., removable, 287- other buildings, when removable, 289. trade fixtures not removable by, 289. EFFECTS. See Devises. EJECTMENT. See Action. EJUSDEM GENEEIS, 248, 251, 465. ELECTOES, qualifications of, as respects annexation to the freehold, 15, 586. right to vote conferred by holding a wind-mill, 587. ELECTEIC APPAEATXJS, not pass by conveyance of the realty, 437. mechanics' hen allowed for, 429. ELECTEIC FAN, not pass by conveyance of the realty, 437. ELECTEIC nXTTJEES. See Dynamos, Switchboard. pass by conveyance of the realty, 390, 396. not subject to levy as chattels, 538. ELECTEIC LIGHT APPAEATUS, is a trade fixture, 143. ELECTRIC LIGHT PIXTUEBS. See Dynamos. do not pass with on conveyance of the land, 449. ELECTRIC LIGHT MACHINERY. See Machinery, Dynamos. is subject to levy, 543. ELECTEIC LIGHT PLANT. See Dynamos, 397. when not an "addition," 11. ELECTRIC RAILWAY. See Hallway, Tramway, Street. passes by conveyance of the land, 463. how taxed, 562. ELECTRIC "WIRES. See Wires, Telegraph, Telephone, Poles, Posts, Street. in street, how taxed, 560. ELEVATOR.. See Buildings. passes by conveyance of realty, 393. mechanics' lien allowed for, 429. not removable by tenant, 187. removal of, is waste, 127. not a fixture as between seller and buyer, 452. is an "addition," 10. EMBLEMENTS. See Trespass, Statute of Frauds, Ejectment, Crops. what are emblements, 335. distinguished from growing crops, 335. reason of the rule as to, 335, 389, 356. INDEX. 709. [BBEHEBNCES ABB TO THE BOTTOM PAGES.] EMBLEMENTS, continued— the doctrine of, extends to everything produced annually by labor, cultivation and manurance, 335. the doctrine of, does not include crop which is not gathered within the year in which the labor is bestowed, 338. the doctrine of, does not include crop which is not gathered within the year in which the labor is bestowed, nor more than a single crop, 338. no difference in degrees of liberality in application of rule as to, 338. are chattels for most purposes, 339, 369. pass to personal representatives as against the heir, 339. pass by a conveyance, mortgage, etc., of the land, 339, 341, 349. bound by statutory lien on land for ancestor's debts, 347. parol reservation of, void, 340. meaning of the term "growing crops," 349, 368. pass with the land to devisee if no contrary intention appears, 350.. what words in a will sufScient to pass, 351. dowress entitled to crops growing on the land assigned, 351. crops growing on land of joint tenants pass to survivor, 352. who entitled to the privilege of, 352. interest of tenant in land must be uncertain as to duration, 352. rule as to, influenced by custom, 353. personal representative of tenant for life entitled to, 354. personal representative of baron seized in right of his wife, 355. husband of tenant for life, when entitled to, 355. personal representatives of tenant for years si tamdiu vixerit efl-. titled to, 355. under-tenant of lessee for life, when entitled to, 355. since the Statute of Merton, personal representatives of tenant in dower entitled to, 356. personal representatives of tenant by curtesy entitled to, 356. where the reason of industry and charge fails, not entitled to, 356. right to, does not obtain till seed sown, 357. personal representatives of incumbent of benefice, entitled to, 357. parson resigning his living not entitled to, 294, 357. tenant at will entitled to, 357. ■ tenant at sufferance not entitled to, 353. - tenant entitled to, where lease is determined by landlord, 358. but not where by his own act or default, 358, 360. husband not entitled to when his estate is determined by divorce .for misconduct, 358. tenant no right to, as against one claiming by title paramount to that of his landlord, 344, 360. disseisee, when entitled to crop, 360. right to, as between plaintiff and defendant in ejectment, 361, 363. 710 INDEX. [BBFEBENCES ABB TO THB BOTTOM FAQES.] EMBLEMENTS, continued- party entitled to, also entitled to "free entry, egress and regress," etc., 363. right of entry, etc., should be exercised within a reasonable time, 363. fructus industriales, subject to fi. fa., 364. fructus industriales, subject to distress by statute, 364. fructus industriales, may be sold, mortgaged, etc., as chattels, if the crop is in existence, 365. fructus industriales, how delivered on sale, 366. fructus industriales, pass to assignee in bankruptcy, 369. fructus industriales, are chattels within registry laws, 370. fructus industriales, not goods and chattels within the statute con- cerning fraudulent conveyances, etc., 372. EMEEY-MACHINES. See Machinery. not fixtures, 381. EMINENT DOMAIN. See Condemnation Proceedings. EMBAN'KMENT. See Railway, 397. ENGINES. See Steam-Engines, Portable Engine, Gas Engine, Fire Engine. ENGINE-HOUSE. See Buildings. held not removable as a trade fixture, 147. held contra, 149, 150, 155, 270. and engine therein, how rated to the poor, 575. and engine therein held ratable as included in the term "shed " or "other building," 577. ENTIRETY. See Busland and Wife. wife no right to fixtures as against a conditional seller, 85. EQUITY. See Action, Mortgage, Partition, Pleading and Practice, Es- toppel. remedies in, respecting fixtures, 614. not granted when relief may be had at law, 615, 616. bill to have fire engines applied to increase the personal assets, 615. bill to foreclose mortgage, and to compel purchaser of fixtures severed by mortgagor to pay value thereof into court, etc., 615. compensation allowed for improvements made bona fide, 80. removal of buildings, when allowed in ejectment, 615. rules governing removal of fixtures from mortgaged land, 71, 73. when lessor can maintain action to determine value of buildings, 530. when crop may be attached, 365. Injunction, value of fixtures, when to be assessed as damages upon dissolution of, 203, 609. to restrain defendant from harvesting crops, removing manure, etc., 362, 608. writ of, when granted to prevent waste, etc., 127, 601 et seq. INDEX. Til [BEFEBHNCES ABB TO IHB BOTTOM PAGES.] EQUITY, Injunction, continued- writ of, when granted to prevent removal of fixtures, 229, 487, 601, 606, 611. not granted unless the property is annexed to the freehold, 604. granted in cases of constructive annexation, 605. tenant for life without impeachment of waste restrained from malicious destruction of buildings, etc., 266, 606. parties between whom applicable, 606. by owner of inheritance against tenant for life, or for years, etc., 606. not granted where landlord not entitled to the reversion, 608. not precluded where lease contains covenant to repair, etc., 608. not precluded where lease contains covenant to repair, nor where there is a covenant not to injure, cut down, etc., 608. mortgagor when restrained from severing fixtures, etc., 609. when lies in favor of judgment creditors to prevent removal of fix- tures, 610, 612. at suit of vendor against the vendee of realty, 612. at suit of patron against rector or vicar, 613. account granted as an incident to, 613. no injunction, no account, 613. no injunction, no account exception in cases of mines and collieries, 614. when granted to restrain trespasses, 614. trees on boundary Une, 99, 100. to restrain proceedings by a sole arbitrator, 528. to restore a still, 266. duty of person in contempt for violation of, 609. Receiver, when appointed on a bill to restrain waste, 614. to take possession of, harvest and preserve crops, when appointed, 362. not entitled to crops as against mortgagor, 348, 352. EBrORMATION, of lease, to permit removal of fixtures, 220. Subrogation, none against railway company for amount paid by insurance com- pany for a loss occasioned by a locomotive to a house erected upon railway .land without authority, 88. ERECTIONS. See Covenants to Bepair, etc., Structures, Buildings, Im- provements. meaning of the term, 10, 239 et seq. includes retorts, cisterns, etc., 242, 246. includes machinery, 526. includes a greenhouse, 244, 561. includes veranda, 244. crib-work and earth-filling not, 525. 712 INDEX. [BEFBBENCES ASB TO THE BOTTOM FAQES.] ESTOPPEL, may prevent party from alleging rolUng-stoek to be personalty, 51. in cases of erections, alieno solo, 98. owner of land may be stopped to deny that an annexation is per- sonalty, 115, 116, 518. persons claiming under a tenant for years estopped by execution of chattel mortgage, 50, 422, 521, 623, 624. landlord when estopped from claiming fixtures sold by his tenant, 517. declarations and admission of want of title, when work no estoppel, 520. to claim fixtures, 481. to claim fixtures of licensee, 116. to claim crops, 342, 343. to claim nursery-stock, 120. grantor not estopped to buy crops of former tenant, 482. grantor not estopped to claim fence rails, 435. of vendor under contract, 382, 384. of vendee under contract, 522. of grantee, 540. of mortgagor, 423, 521. of mortgagee, 400, 409, 412, 421, 519, 520, 522, 643. of landlord, 192, 217, 518, 519, 520. of tenant, 209, 460, 482, 518, 522. of tenant in common, 410, 519. of seller of chattels reserving title, 84, 521, 522. of buyer, 519. of wife, 518. of beneficiary of trust-deed, 520. of insured, 520. of tax-collector, 69. of creditor, 74. in ejectment, 520. by acquiescence in sale of fixtures as chattels, 69. by bidding at sale, 519. by presence at sale, 519. by bill of sale, 522. by levy, 542. by pleadings, 522, 621, 623, 624. by decree, 522. by replevin suit, 522, 624. by renting house, 522. by agreement to return machine, 520. by deed, 521, 522. by mistake in deed, 521. by unperformed conditions, 520. INDEX. 713 [BBFEBBNCES ABB TO THE BOTTOM FAGB3.] ESTEEPEMENT. See Injunction, Prohibition. writ of, when it lay, 599. obsolete in the United States, 591, 601. ET CETEEA, effect, 251, 466. EVIDENCE. See Intention, Question of Fact, Question of Law. stronger required as to articles subsequently annexed to mortgaged land, 409, 415. of parol license to remove must be very clear, 246. real more satisfactory than oral, 147. oral, when admissible where lease in writing, 147. oral, to show what articles are covered by an expression in a deed, 516. oral can be offered by third parties to contradict deed, 516. of abandonment, failure to remove is, 218. of secret intent not admissible, 41, 55. what is, that a building is movable, 107. enumeration of articles does not make them part of the realty, 468. of right to remove fixtures, what is, 112, 113, 114, 116, 119, 187, 199, 217, 221, 225, 257, 259, 623. of intention, what is, 28, 43, 56, 57, 58, 136, 137, 236. 402, 440, 449, 452, 663. of intention from adaptation, 58. of intention by annexation, 137. of intention by giving a bill of sale, 57. of intention by giving a chattel mortgage, 57, 58, 136, 471, 472. of intention by claiming lien, 136. of intention by endeavor to purchase, 137. of intention by insurance of fixtures, 58, 195, 420. of intention shown by levy, 136. of intention shown by obtaining consent, 401. of intention from option to purchase, 136, 137. of intention shown by statements, 57. of intention from unity of title, 58. Burden or Pkoop, as to intention in making an annexation, 45, 60. what satisfies the onus, 45. is with those claiming building to be personalty, 102. same rule applies to other annexations, 103. as to custom to have emblements, lies with tenant, 354. as to annexations made to mortgaged land, 417, 419. Judicial Notice, as to crops, 350, 368, 370. . Presumptions, articles are chattels, 60. articles are movable, 57. 714 INDEX [BEFBBENCES ABB TO THE BOTTOM PAQBS,] EVIDENCE, Presumptions, continued — articles annexed are realty, 60, 61, 62. certain machinery is usually annexed, 61. buildings, 96, 103, 514. buildings of tenants, 147, 152. buildings, what will not overcome, 96. camp, 96. fence, 103. giving chattel mortgage upon machinery makes it personalty, 471. severance by owner, is to convert article into a chattel, 64. tenant holds over by consent, 207, 260. none, that lease, not printed, contained covenants to surrender prem- ises in as good condition as received, 259. none, that condition would be broken, 228. in favor of landlord after surrender, 208. grantee had notice of tenant's rights, 482. right to compensation for improvements waived after thirteen years, 535. in favor of master's findings, 37. EXCEPTION. See Reservation. effect of, in deed, 66, 67, 401. EXECUTION. See Extent, Severance, Exemption, Lien. fixtures annexed by owner of the fee not subject to sale on -fi. fa., as goods and chattels, 537. rule the same whether actually or constructively annexed, 539, 540. examples of fixtures held not subject to f,. fa. as against the owner of the freehold, 48, 537. examples of articles held subject to fi. fa., 19, 20, 50, 541, 543. growing grass, trees, etc., not subject to f,, fa., 541. levy of, upon growing grass, etc., or fixtures, void, though Authorized by execution debtor, 542. levy of, upon growing grass, etc., or fixtures, void, though authorized by execution debtor, see, however, 542. grovring crops (being fractus indtistriales) , subject to fij fa. as personalty, 364. ... ■" quaere, in case the seed has not yet sprung up, 368. buildings erected by purchaser of land on execution, held removable before redemption, 423. tenant's fixtures removable as against the landlord are subject to fi. fa. as chattels, 544. instances where held subject to fi. fa. against tenant, 544. fixtures not removable as against landlord not subject to fi. fa., 545. erections made upon the land of another by his consent, subject to fi. fa., 546. the tenant or other person must, however, have a power of removal coupled with an interest, 547. INDEX. 715 [itEFEUENCES ABB TO THE BOTTOM PAGES.] EXECUTION, continued— the tenant 's interest in the landlord 's fixtures may be sold on execu- tion, 547. but not if wrongfully severed by the tenant, 547. sheriff ought to sell the fixtures separately from the lease, in case he cannot sell them with the lease to one purchaser, 547. a levy on house, without also levying on the lease, is irregular, 548. articles constructively annexed not subject to levy, 540. Tights of creditors as to buildings which the lessor has option to purchase, 534. fixtures on homestead exempt, 539. fixtures on public land exempt, 538. eflfect of annexation of machinery to realty after levy, 538. levy on building carries the land, 397. constructive severance not effected by a levy upon fixtures, 67. levy upon tenant's crops is a constructive severance, 67. after levy upon land, crops severed remain subject to, 342. EXECTJTOE. See Heir and Executor. EXEMPTIONS. See Distress. of fixtures as personal property, 106, 539, 546. of building extends to land, 398, 559. from taxation covers fixtures, 558, 559, 560. of fixtures on ' lie lanr" 558. Homestead, fixtures upon, exempt, 383, 539. fixtures upon, removed by a trespasser, remain exempt, 71. fixtures upon, can only be conveyed as realty, 539. chattel mortgage of fixtures upon, is not a constructive severance, 67. can be had in a building which is removable, 404. does not extend to fixtures intended to be annexed, 53. crops upon are exempt, 349, 351, 365, 369. EXHATJSTEES, ratable to the poor, 580. EXPEESSIO UNITJS EST EXCLUSIO ALTEEIUS, 467. EXTENT, fixtures demised vrith a paper-mill, not subject to, 538. FACT. See Question of Fact. PACTOEIES. See Buildings. covenant to keep insured embraces fixed machinery, 11. effect of the use of the term, in a conveyance or policy, 462, 463. includes machinery for purpose of taxation, 566. printing machinery not, 566. 716 INDEX. [BBFEEBNCES AKB I'O THE BOTTOM PAGES.] FAN. See Punkah, Electric Fan. in manufacturing establishment, affixed by owner of freehold not subject to fi. fa., 537. not pass with land, 437. FARMING IMPLEMENTS, ETC., not fixtures, 18, 26, 49, 51. FAUCET. See Fosset. passes with land, 395. FENCES. See Bails. portable, when chattels, 19, 91. as examples of constructive annexation, 30, 38. whether part of the freehold, 38, 103, 380, 621, 634, 639. erected by husband of dowress on the dower estate, 274. . erected on land of IT. S., 19, 93, 95. ceases to be realty by decay, 458. on boundary Hue, 87, 98. rail fence alieno solo, 92, 93. rail fence alieno solo, statutory regulations concerning, 93. rail fence passes to heir with the realty, 305. quaere whether a portable fence passes with the land to the grantee, 454. when removable by tenant, 167, 256. passes with land to grantee, 396, 462. passes to remainderman, 263. on homestead, exempt, 539. are taxable as realty, 563. unwritten partition of, valid, 514, 515. not subject to levy, 538. FENDEE, in mill stream, 97. FEEET-BOAT, not a fixture, 419. subject to levy, 543. detinue does not lie for, 621. FEETILIZEES. See Marmre, 53. FILTEE, when passes with land, 389, 397, 452. FINDEE. See Accession, Buried Articles. of bees and honey, no right to, 329, FIEE. See Severance. FIEE-ENGINES. See Bemedies. personal estate passing to executor, 134, 159, 269, 271. personal estate by custom, 311. when pass by bequest, 476. INDEX. 717 tKBFEEENCaS ABB TO THE BOTTOM PAGES.] FIRE-PEAME, removable by tenant, 189. FIEE-GEATES. See Grates. right to, as between grantor and grantee, etc., of the realty, 387. FIE TEEES. See Trees. thinnings of, belong to tenant for life, 264. FISH, when pass to the heir, 328, 329. waste may be committed in respect of, 331, FISH-HOUSE OE CAMP. See Buildings. trespass for, 638. FITTINGS. See Meaning. meaning of, 8. FIXED AND ATTACHED. See Meaning. meaning of, 9, 573. FIXED AND FASTENED. See Meaning. effect of the term in a conveyance, 468. FIXED AND STATIONAEY PEESONAL PEOPEETY, meaning of the term, 567. FIXED ENGINE. See Meaning. meaning of, 12. FIXED FUENITTJEE. See Meaning. meaning of term, 7, 476. quaere whether a carpet is, 476. FIXED MACHINEEY. See Meaning. effect of the term in a conveyance, 468. meaning of, 11. insurance of, creates double insurance, 463. FIXED PLANT. See Meaning. meaning of, 11, 535. FIXTUEES. See Trade Fixtures, Pleading, and tJie titles immediately preceding. a modem word, 2, 127. different significations of the term, 1-7, 18. terms expressing relation between the parties, as tenant's fixtures, etc., 1, 5. meaning of, in declaration, 2, 653. meaning of, in Bills of Sale Act, 491. ambiguity of the term, 2, 4, 7, 22. Ferard's definition of, 4. removable and irremovable, 1, 3, 5. the term, how used in this volume, 6. meaning of term in contracts, 7. 718 INDEX. [BEFEBBKCES ABB 10 THE BOTTOM PA0B3.] FIXTUEBS, continued- meaning of term "fixed furniture," 7. meaning of term "fixtures and appurtenances," 8. meaning of term "work done and fixed," 8. meaning of term "fixtures and articles in the nature of fixtures," 2,9. meaning of term "improvements," etc., 9. distinction between, and repairs, 12. term "fixture" not predicable of name of building, 13. tests as to whether a fixture or not, 13 et seq., 439. tests as to whether a fixture or not, contradiction among the authori- ties as to what are, 13. annexation necessary, 14 et seq. See Annexation. adaptation and preparation to be used with realty as a test, 24, 26. true criterion of an irremovable fixture, 27. true criterion of an irremovable fixture, real or constructive annexa- tion, 27. true criterion of an irremovable fixture, appropriation or adaptation, 24, 27. true criterion of an irremovable fixture, intention, 27. See Inten- tion. whether a fixture or not, a mixed question of law and fact, 35, 147, 188, 190. where the facts are undisputed, a question of law, 36, 190. during annexation, are parcel of the realty, 122, 123. are not goods and chattels within bankrupt law, 123. cannot be treated as goods in an action for their price, 124. degrees of relaxation of the ancient rule respecting, 138. authority of decisions arising between landlord and tenant, executor and heir, etc., 138. FIXTURES AND APPURTENANCES. See Meaning. meaning of, 8. FIXTURES AND FITTINGS. See Meaning. meaning of, 8. FLOATING-DOCK, not a fixture, 44, 426. nor a building, 44, 431. occupier of, not ratable, 572. description of, in declaration to enforce mechanics' lien, 639. FLOOR. See PlanTc. when removable by tenant, 143, 146. when passes with land, 396, 437. mechanics' lien allowed for, 427. not subject to levy, 540. not subject to distress, 552. INDEX. 719 [REPEEBNCES ABB TO THE BOTTOM PAGES.] FLOWEKS. See Plants. mechanics' lien not allowed for, 13. not removable by tenant. 194. FLUES, mechanics' lien allowed for, 428. FLUME, of a mill, a fixture and subject to a mechanic's lien, 430. FLY-WHEEL, not subject to extent, 538. FOLD-YARD WALL. See Wall. erected by tenant in agriculture not removable, 167. FOBCE-PUMP. See Pumps. right to, as between vendor and vendee of the realty, 381. FOECIBLB DETAINEE. See Action. FOEECLOSUBE. See Lien, Mortgage. FOEPEITUEB. See Bemoval, Be-entry. by tenant, what is, 230, 231. right of removal lost by, 210. does not affect right of seller on condition, 229. does not affect right of chattel mortgagee, 384. does not affect right to crops, 359. not favored, 256. may be waived, 230. not allowed, when landlord knew of but did not object to tenant 'd acts, 233. FOEGE, passes with land, 393. POSSETS. See Faucets. as between grantor and grantee of the realty, 433. FOUNDATION, is an addition, 10. is a superstructure, 11. of stone, when not sufficient annexation to realty, 620. FOUNTAIN, when removable by tenant, 194, 197. FOWL-HOUSE. See Buildings. erection of, not a repair, 237. FEAMES, filled with satin, when removable by tenant for life, 279. PEAUD, claim of creditors of husband to building erected by him on wife's land, 414. vendee of land under contract may remove, 384. r720 INDEX. KEFEKENCES ABB TO THE BOTTOM PAGES.] FEATJDS, STATUTE OF. See Statute of Frauds. FRAUDULENT CONVEYANCES. See Emblements, Statute 13 EUz. does not affect crops, 362. FEENCH LAW. See Civil Law. as to statuary, 41. FEUCTUS INDUSTEIALES. See Emblements. FEUCTUS NATUEALES. See Emblements. what are, 333. imsevered, pass to heir, 333. FRUIT. See Peaches. is crop, 338. unsevered, a part of the realty and passes to the heir, 333. severed, passes to executor 332. FUEL. See Coal. not a fixture, 52. FUEL-HOUSE. See Buildings. erected by tenant in agriculture, not removable, 167. FULLING-MILL. See Buildings, Mill. when passes on a conveyance of the realty, 465. FULLING-STOCKS, right to, as between tenants in common, 380. FURNACES, cases in Year Books and other early reports relating to removal of, 130 et seq., 196, 298. removable by tenant, 130, 139, 197. removable by tenant for life, 276. removable by tenant, see, however, 152, 265. pass to the heir with the realty, 298, 300. when pass to grantee or mortgagee with the realty, 389, 450, 468. subject to mechanics' lien, 427, 428, 429. not subject to extent, 538. not subject to distress, 550, 552. trover and trespass for, 655, 656. removable by vendee of land under contract. 383. goes to executor, 273. covered by insurance, 379. doors of, are trade-flxtures, 140. FURNITURE. See Fixed Furniture, Bousehold Furniture. distinguished from fixtures, 7, 124. considered as personalty, 53, 125. trover for, 650. a glass case, case of drawers, and mirror considered as, 125, 201, 650. so, as to gas fixtures, 125, 447, 650. other articles of, enumerated, 447 et seq. INDEX. 721 [KBrSEENCES AKE TO THE BOTTOM PAGES.] FUENITUEE, continued- may be removed by tenant after expiration of tenancy, 201. not included in covenant to yield up in repair with all fixtures etc 240. ' ' does not in general pass with the realty though temporarily annexed, 437, 447. ■^11 pass if such is the intention of the owner of the fee, 450. meaning of the term in wills, 475, 476. whether it enhances the ratable value of the realty, 579. GAME, qualified property in, 327. kiUed by trespasser, belongs to owner of the land, 328. when the subject of felony, 328. waste may be committed in respect of, 331. chattel interest in, passes to executor, 331. GAEDEN-GKOTJNDS. See Nurseries. GAETEE, of gold, in the nature of an heir-loom, 320. GASELIEES. See Gas Fixtures. held to pass with the realty, 448. GAS ENGINE. See Steam Engine. passes on conveyance of land, 389. GAS-FITTINGS, as trade-fixtures, 141. pass to the grantee with the realty, 390, 449. mechanics' lien allowed for, 429. GAS-FIXTURES, considered as furniture, 489, 650. removable by tenant, 141, 197, 242. do not in general pass on a conveyance of the realty, 390, 447. will pass when such is the intention of the owner of the land, 450. removable by vendee under contract, 383. mechanics' lien allowed for, 429. not covered by policy of insurance, 449. 6AS-H0LDEES, occupiers of, ratable, 580. GAS-METBES. See Gas-Pipes, Improvements, Meters. are personal property, 560. are mere chattels, and not ratable to the poor, 579. gAsombtees, removable by tenant, 197. pass with the inheritance, 449. occupiers of, ratable, 578. 46 722 INDEX. [befehencbs abe to the bottom pages.] GAS-PIPES. See Pipes. laid in streets by permission, are personalty, 104. when removable by tenant, 141, 146, 165. how taxable, 559, 560. the word "machinery" held to include gas-pipes and meters, 559, 560. occupier of, ratable, 568, 578. when not covered by mortgage, 104. go to executor, 273. covered by insurance, 379. owners of, not landowners, 104. GATE, trover for, 652. not subject of deodand, 679. GEAEING, covered by insurance, 379. annexation by, effect, 433. GIBBET AND CHAIN, upon the land of another, 86. GIN. See Cotton-gin. GIN-HOUSE. See Buildings. is immovable by destination, 11. GIN-STAND, not covered by mortgage of land, 419. mechanics' lien allowed for, 427. GLASS. See Mirrors. not removable by tenant from windows of the demised premises, 187, 188, 189. passes to heir and not to executor, 300. glasses in panels a part of the freehold, 476. removal of is waste, 127. GLASS CASE. See Furniture, Case. GOODS. See Meaning. meaning of, 12. confusion of. See Accession. GOODS AND CHATTELS. See Bankruptcy. crops are, 364. GOODS, CHATTELS AND EFFECTS, meaning of, in declaration in trespass for taking, 637. GOODS, CHATTELS AND FIXTURES. See Meaning. meaning of, in declaration in trover, 2, 653. GOODS SOLD AND DELIVERED. See Pleading. G00P8, WARES AND MEKCHANPISE, See Statute of Frmds, Stamp dots, INDEX. 723 [RBFMRBNCES ABB TO THE BOTTOM PAGES.] GOVEBNMENT LAND. See Puilic Land. GBANAEY. See Bmldings. on staddles, a chattel, 18, 648. may be a chattel by custom, 311. GEANTOE AND GEANTEE. See Mortgagor and Mortgagee, Valuation, Lease, Machinery, Furniture, Manure, Registry Acts, Covenant, Warranty. rule between, same as between executor and heir, etc, 378. fixtures pass by a conveyance or mortgage of the freehold, 387, 433, 439. articles held to pass with the realty, 23, 387 et seq. articles held not to pass, 19, 433 et seq. rule same where the conveyance is by virtue of legal process, 402, 406. BO, in the case of the conveyance, etc., of a lease-hold, 403. a grant of a barn, shop, house, etc., passes the title to the land under it, 397. mere chattels not annexed to the realty do not pass by a conveyance thereof, 433. articles constructively annexed to the realty pass therewith, 453. so, as to articles temporarily or accidentlly severed, 456, 457. otherwise if permanently severed, 456. articles severed by act of God, held to pass, 457, 458. articles unlawfully severed pass, 457. influence of intention upon the question, 386, 460. effect of using the terms "fixtures," "fixed furniture," "fixed machinery," etc., 462, 464, 468. effect of using the terms "factory," "mill," etc., 462 et seq. the deed may express that the fixtures shall not pass, 470. or they may be the subject of a distinct contract, 470. the tenant's removable fixtures do not pass by conveyance or mort- gage to one having notice of his rights, 478, 482. BO, as to annexations made under an agreement reserving the right of removal, 478. so, as to fixtures sold by the owner of the land to a third person, 478. possession of tenant suflScient to put purchaser upon inquiry as to the extent of the tenant's rights, 481. dead bodies do not pass, 325. effect of fixtures being ovnied by titles different from that of grantor, 400. right of grantee against a chattel mortgagee of fixtures, 105, 384. right of grantee against an unpaid seller reserving title, 85, 484, right of grantee against a defrauded seller, 401, right of grantee against a licensee, 401, 724 INDEX. [BEFEEENCES ABE. TO THE BOTTOM PAGES.] GEANTOE AND GEANTBE, continued- removal of fixtures by grantor before delivery of premises, eflfeet, 399, 618, 661. when grantee liable to pay for improvements of tenant, 527. effect of re-entry of grantor, 383. Sale of Land Under Contract, right to remove fixtures, determined by rule prevailing between grantor and grantee, 381, 385. fixtures not removable, 59, 72, 851, 383, 384. heater placed in a tannery by a conditional vendee when a chattel, 20. grantee can not remove fixtures which were his upon the land at the time contract made, 383. right of grantor against third parties, 59, 85, 105, 383. right to crops, 344. when grantor can bring trover, 643, 645. when grantor can have grantee enjoined, 612. GEAPB VINES, considered as sustaining the same relation to the freehold as crops, 337, 338, 343. GEASS. See Execution, Larceny, Emblements. when severed by chattel mortgage, 67. when passes with land to heir, 334. when passes with land to devisee, 334. when species considered emblements, 334. when not subject to fi. fa., 541, 542. is not personal property, 369. GEATES, when fixtures, 38. removable by tenant, 197. removable by tenant for life, 276. when they pass to executor of incumbent, 286. not subject to distress, 552. do not pass on conveyance of the realty, 450, 452. when annexation of, confers settlement, 586. GEATING, on street, removal of, is a breaking, 677. GEAVEL, removable by tenant, 164, 197. GEAVE-ST0NE8. See Tomls. are in the nature of heir-looms, 320, 324. who to bring action for injuries thereto, 324. GEEEN-HOTJSES. See Buildings. not pass by conveyance of realty, 434. when removable as trade fixtures, 19, 164. erected for ornamental purposes, when removable, 187. INDEX. 725 [BBFEBBNCES ABE TO THE BOTTOM PAGES.] GEEEN-H0USE8, continued- included within the term "erections and improvements," 244. valued as land, 573. GKIND-STONES, not fixtures, 381. GEIST-MILL, "Noyes portable, " held to be a fixture, passing with the land to grantee, 391. when presumed personal property, 96, 103. not covered by mortgage of land, 419. not subject to levy, 537. GEOWING-CEOPS. See Emblements, Crops. GUAEDIAN AND WAED. See BisaUUty. guardian allowed to remove house erected by him on ward's land, 94. right of ward who is life tenant, as against remainderman, 524. right of ward to crops upon disaffirmance of lease, 358. GTJTTEES. See Troughs. not removable by tenant, 194. HAND-MILIi. See Mill. trover for, 652. HANGINGS, held to be furniture, 447. removable by tenant, 196. removable by tenant for life, 276. when they pass to executor of incumbent, 285. as between executor and heir, 301, 309. as between grantor and grantee of the realty, 447. HAWKS, pass to executor, 330. HAT, cut on public land, replevin for, 626. HAY-CUTTBE, erected by an inn-keeper passes with land to grantee, 392. HAY-FOEK, passes vrith land, 396. HEAETHS, passes with land, 396. HEATEE. See Radiators. in a tannery, not fastened, a chattel, 20, 296. in paper mill, not subject to extent, 538. not rated as realty, 577. not part of the realty, 658. when passes with land, 397, 450. 726 INDEX. [BEfBBSNCES ABB TO THE BOTTOM FAGES.] HEATER, continued — mechanics' lien allowed for, 428. covered by insurance, 379. not subject to levy, 538. HEATING-PIPES. See Pipes. in green-house, removable by tenant, 187. HEATING-PLANT. See Steam-Heater. when an "addition," 10. not removable by tenant, 146. removal of is waste, 127. HEDGE, mechanics' lien not allowed for, 13. on boundary line, is common property, 99. HEIE AND EXECUTOE. See Ornamental and Domestic. Fixtures, Char- ters, Heir-looms, Annexations to Freehold of Church, Valuation, fixtures as between, 295 et seq. rule the same as between vendor and vendee, etc., 308. less relaxation of the old rule in this relation than in that of land- lord and tenant, etc., 295. grounds of the strict application of the rule, 295. degree of annexation requisite to convert a chattel into a fixture, 290. when an annexation passes with the land to the heir, 296, 297. of tenant in tail, right to fixtures as between, 298. of tenant pur autre vie, rights to fixtures as between, 524. cases in Year Books respecting fixtures as between heir and execu- tor, 298. test of being accessory to a matter of a personal nature, etc., 302- 305. Lawton v. Salmon and other cases, 303. when trade fixtures pass to heir with the realty, 305-308. mixed cases, so-called, 305. Fisher v. Dixon, 306-308. ornamental and domestic fixtures, 308, 310. fixtures constructively annexed pass with the realty to the heir, 310. effect of custom upon the question as to whether a thing passes with the realty to the heir, 310. statutory regulations of the question, 311, 473. New York statutes, construction of, 311-313. proceeds of house and fence which ancestor had erected upon land of another, go to heir, 297. HEIR-LOOMS, defined, 318, 319. ornament of bishop's chapel are in the nature of, 287. due by custom, 318, 319, 323. INDEX. 727 [BEFEBBNCBS abb to IBB BOTIOU PAOES.] HEIR-LOOMS, continued- instances of, 318. chattels in the nature of, 319. cannot be devised away from the heir, 323. pass with the house to the devisee of the house, 324. may be sold by the owner of the inheritance, 323. may be recovered in detinue, 319. bill lies for specific delivery of, 324. quasi heir-looms, or heir-looms by settlement, 321. things consumable in the use cannot be limited as, 322. undertaking to take care of, 323, HIGHWAY. See Street. HINGE-STAPLES, pass to grantee of a barn though temporarily severed, 456. HITCHING-POST. See Post. HOMESTEAD. See Exemption. HONEY, belongs to ovmer of tree, 329. HOP-POLES. See Poles. pass on a foreclosure sale of the land, 454. HOPS. are personal property, 371. the subject of emblements, 336. HOENS. See Pusey Horn. HOSE, connection by, is not annexation, 436. mechanics' lien not allowed for, 430. HOT-HOUSES. See Buildings. when removable as trade fixtures, 164. erected for ornamental purposes, when removable, 187. removable by incumbent of benefice, 287, 290. HOUNDS, pass to executor, 330. HOUSEHOLD FUENITUEE. See Furniture. meaning of the term, 475. stoves, blinds, bell-pulls, etc., held to pass under a bequest of, 475. HOUSEHOLD GOODS. See Furniture. gas-fixtures are, 489. HOUSEHOLD GOODS AND IMPLEMENTS OF HOUSEHOLD, a clock held to pass by a bequest of, if not fixed, 476. HUSBAND AND WIFE. See Disability. right to improvements made by husband on wife's land, 87, 106, 114, 413, 414. ?28 INDEX. [BEFEBENCES ABE TO THE BOTTOM PAOES.] HUSBAND AND WIFE, continued- estoppel of wife, 518. creditor cannot seize buildings placed by conrmunity on wife's land, 538. crops pass with land allowed for alimony, 360. husband cannot remove manure from wife's land, 460. HYDEANTS. See Water-Pipes. how taxable, 559, 560. HYDEAULIC PBESS. See Presses. removable as a trade fixture, 142. when passes on a conveyance of the realty, 390, 443. right to as between vendor and assignee in bankruptcy, 510. trover for, 648. ICE. See Accession. when constructively annexed, 46. when a part of the land, 83. cut and removed, 345. is not emblements, 333. passes to grantee of the realty, 456. sale of, not within the State of Frauds, 514. ICE-BOX, does not pass with land, 436. ICE-CHEST, is a trade fixture, 143. right to as between grantor and grantee of the realty, 388. ICE-HOUSES. See Buildings, removable as trade fixtures, 149, 150. reasonable time allowed to remove where tenancy was of uncertain duration, 212. IMMOVABLES. See Movable. .when columns and statues are, 40. when materials from a demolished building are, 54. covered by a mortgage of the realty, 399. by destination, what are, 34. by destination, are subject to a privilege, 480. by destination, larceny may be committed of, 670. IMPOET. See Definition, Meaning. IMPEOVEMENTS. See Metals and Improvements, Ejectment. meaning of term as between lessor and lessee, 9. a more comprehensive term than ' ' fixtures, ' ' 9, 243, 244, 246, 247. on land of U. S., statutes concerning, 93. promise to pay for, not vrithin Statute of Frauds, 219. the term includes mill-stones, 243. the term includes gas-pipes, burners, gas-ladders, meters, doors, hinges, locks, etc., 244. INDEX. 729 [BEFEBENCES ABE TO THE BOTTOM PAGES.] IMPROVEMENTS, continued— the term includes green-houses, 244. the term includes verandas, 244. the term includes plate-glass shop fronts, 245. the term includes steam-engines, 245. what are, 10, 246, 247, 251, 252, 383, 526. alfalfa is not, 559. includes repairs, 246, 525. INTANCY. See Disability. disability of, with reference to annexations alieno solo, 94. infant life tenant, relief against remainderman, 524. INJUNCTION. See Equity. INJUEY, to freehold as affecting right of removing fixtures, 22, 34, 107, 153- 157, 438, 573. tenant liable for unnecessary, 154, 157. a question for the jury, 155. principal not to be destroyed in removing accessory, 155. rule, 156. what is, 154, 155. INSOLVENCY. See Assignee, Bankruptcy. INSUEANCE. See Factories. 14 Geo. 3, c. 78, construed, 124. insurable interest of lessor, 235. of addition to a main building, who entitled to money due thereon, 398. what is covered by policy, 379. ordered by second mortgagee gives him no prior claim to money paid for loss of machinery which is a part of the building, 71. does not cover gas-fixtures, 449. does not cover removable machinery, 402. of building which is removable, is insurance of realty, 223, 379. of building, is implied warranty of title to land, 398. vendor's lien on land, is an incumbrance on the building, 408. insured estopped to claim that a barn is a chattel, 520. of a "factory," "mill," effect, 11, 463. construction of policy, 465. construction of policy, what is a structure, 379. construction of policy, what are fixtures, 13. construction of policy, what are store and ofBce fixtures, 379. construction of policy, what are store and other fixtures, 8. construction of policy, what are yard fixtures, 12. policy cannot make property personal contrary to statute, 37. of fixtures, as evidence of intention, 58, 420. of fixtures, as evidence of right to remove, 195. 730 INDEX. [BEFEBENCES ABB TO THE BOTTOM PAGES.] INSTJEANCE, continued— of fixed machinery creates double insurance, 463. separate valuation of building and machinery does not make the latter personalty, 472. of building erected by husband upon wife's land, 106. of building removable by one tenant in common, 410. insurer cannot recover from a railroad company for amount paid to the builder of a house on railroad land without authority, and set on fire by locomotive, 88. INTENTION. See Evidence. as a test of a fixture, 27 et seq., 117, 135. limitation to the rule, 34. evidence of, 37, 56, 60, 135, 188, 276, 296, 418. influence of, well considered in Holland v. Hodgson, 43. illustrated from Year Books, 137. evidence of secret intention as to the annexation, cannot prevail over evidence afforded by actions, 41, 56. such testimony inadmissible as against grantee or mortgagee, 55. mere intention to annex, insufficient to convert into realty, 53. contra, 456, 540. and conversely, intention to sever, insufficient to convert into per- sonalty, 53, 55, 58, 65. examples, 53. in order that intention may prevail, the party must have a right to determine in accordance therewith, 56, 59, 60, 487. a question of fact for the. jury, 56. burden of proof as to, 45, 60. no special intent necessary, if there is no intention of removing at a future time, 60, 418. presumptions as to intent in making an annexation, 60, 78, 86, 96, 118, 174, 192, 263, 267, 274, 296, 305, 418. presumptions as to intent in severance, 64. presumptions when not conclusive, 96. in case of trade fixtures, 135, 145, 150, 151. in case of ornamental and domestic fixtures, 186, 188, 283. in eases between tenant for life or in tail and remainderman, etc., 263, 274, 283. in cases between executor and heir, 296, 305. in cases between grantor and grantee, and mortgagor and mortgagee, 386, 414 et seq., 445, 450, 460. annexation as evidence of, 43. adaptation as evidence of, 43. massiveness as evidence of, 43. to re-annex, 69. to annex, mechanics' lien attaches, 427. to convert into a chattel by severance by owner is presumed 64. INDEX. 731 [bevebbnces abb to ihb boiiou pages.] INTENTION, continued— to sever is not ^own by a bill of sale, 68. not to remove until danger of losing the land, does not make article realty, 418. IN THE NATURE OF FIXTURES. See Meaning. too indefinite, 2. IRON CHEST. See Safe. set in a recess in the wall cut away to receive it, considered as fixed to the freehold, 456. IRREMOVABLE FIXTURES, 1, 3. JACK-WEIGHT, whether subject of deodand, 680. JIBS, as between landlord and tenant, when chattels, 19, 648. JOINT-TENANTS. See Tenants in Common, Entirety, Partition. cannot make improvements on common property without consent of co-tenants, etc., 92. JUDGMENT LIEN. See Lien. JUDICIAL NOTICE. See Evidence. JURISDICTION, what is beyond, as part of the realty, 380. of justice of the peace, none as to a fence, 639. of justice of the peace, none as to crops, 369. to foreclose a chattel mortgage on fixtures annexed to a homestead, 539. title to real estate is not involved in an injunction against the re- moval of a house, 605. state court has, of injury to a boom, 639. JURY. See Question of Fact. KETTLES. See Salt-Kettles. removable by tenants, 140. right to as between tenants in common, 380. right to as between grantor and grantee of the realty, 389, 392, 393, 434. brew-kettles held to pass on sale to enforce mechanics' lien, 425. mechanics' lien allowed for, 428. potash-kettles held subject to f,. fa., 543. KEYS. See Larceny. parcel of the freehold and go with the house, 45, 300, 310, 453. not goods and chattels within the bankrupt law, 511. KILN. See Brick-Kiln, Lime-Kiln. passes with land, 392. LAMPS, are trade-fixtures, 143. 732 INDEX. [BBFBBENCES ABB TO THE BOTTOM FAQBS.] LAMPS, continued— •when pass with the land, 449. mechanics' lien allowed for, 431. LAMP-POSTS. See Posts. are not machinery, 560. LAJND. See Lands, Tenements and Hereditaments. whether railway track on street is, 563. a second floor is, 586. gas-pipes are not, 104. meaning of term "land" under statutes making judgments a lien upon land, 423. meaning of term "land" under statutes relating to taxation, 562i is unimproved when the buildings thereon are removable, 477. LANDLOED AND TENANT. See Lease, Distress, Lien, Removal, Trade Fixtures. meaning of improvements between, 9. landlord has the general property in fixtures demised with a house to a tenant, 75. may retake such fixtures if severed by tenant, 75. not if severed by act of God, 75. property in fixtures which tenant agrees not to remove, 224. landlord re-entering, rights against seller on condition, 85, 479. landlord re-entering, does not acquire crops constructively severed, 67. mechanics' lien not allowed against landlord for tenant's fixtures, 431, 432. tenant has no right to fixtures substituted by him, 146. tenant's right to trees, 163, 164. tenant's right to buried articles, 83. tenant's right to remove buildings, .Jb^ 18, 91. rights under custom lost by delay, 165.' LANDS CLAUSE CONSOLIDATION ACT, 123. LANDS, TENEMENTS AND HEREDITAMENTS. See Land. power supplied tenant not included in the term, 12. LAND-WAEEANTS. See Charters. pass to the heir as realty, 315. LAECENT, cannot be committed of things savoring of the realty, 667. of manure, 179, 667. charters and box containing them not the subject of, 316, 317. commission to settle boundaries of a manor not subject of, 668. corn, grass, trees, etc., not subjects of, 668. of winding-sheet and cofim, a felony, 325. of buried hogs, 670. of deeds, by statute, 316. INDEX. 733 [befebbnces abb to thb bottom faosis.] LAECENT, continued— of pigeons, 330. of bees, oysters, sea-weed, etc., 668. examples of fixtures held not to be subjects of larceny, 667. may be conunitted of articles only construetively annexed, as a key, or belt in a mill, 670. common law rule changed in England and the United States by statute, 668, 670. decisions under those statutes, 671. LATHES. See Machinery. are part of the realty, 424. right to, as between grantor and grantee of the realty, 389, 434, 438. held subject to fi. fa., 543. as enhancing the ratable value of realty, 578. LAW, QUESTION OF. See Question of Law. LEADS, pass to heir as parcel of freehold, 300. trover for, 652. LEASE. See Landlord and Tenant. of factory and land, does not pass portable wood-cutting machine, 20. a question of fact whether fixtures in a house are let as a part of the house, or delivered upon a separate contract of sale, 404. when tenant entitled to .the fixtures on the premises, 75, 404. tenant entitled to use of building subsequently erected, 75. does not cover a machine outside of premises though connected by belt, 20. of land covers crops, 340. of building covers land, 398. requiring erection of buildings, no right to remove, 535. not printed, not presumed to contain covenants to surrender in as good condition as received, 259. LEASEHOLD, when machinery passes with, 548. mortgage of, has only the same interest in the fixtures as he has in the land, 405. buyer of, takes subject to conditions, 229. quicguid plantatur solo, solo cedit, does not apply to, 91. mechanics' lien allowed against, 432. machinery passes to heir T\'ith, in Scotland, 297. LEGACY. See Devise, Bequest. of crop, 351. LEVY. See Execution. LICENSEE, when allowed to remove fixtures, 113, 114, 214, 385, 401, 413. parol evidence of right to remove fixtures must be very clear, 246. 734 INDEX. [BEFEBENCES ABB TO IHO BOTTOM FAQES.] LICENSEE, continued- license to remove house is not revocable, 214. right to remove may be lost by delay, 214. right to remove terminates with death, 214. not entitled to crops, 346. not entitled to manure, 461. mechanics' lien not allowed, 432. sale of buildings by, is not within the Statute of Frauds, 513. LIENS. See Mortgagor and Mortgagee, Severance. effect of severance of fixtures in case of, 72. effect of statutory liens upon the right to fixtures, 423. a valid lieu cannot be created upon a thing not in existence, 366, 501. injunction by holders of, to restrain severance and removal of fixtures, 607, 610, 612. not lost by a surrender by tenant, 209. when must be recorded, 501, 502. Agsicdltural, effects a constructive severance, 66, 366. as against a. grantee of the land, 343, 348, 349, 480. Or Attachment. lost by annexation of article to realty, 538. lost by delay, 538. Op Bond, covers fixtures, 424. Op Chattel Mortgage, not defeated by annexation of machinery to land, 85. Op Decedent's Debts, attaches to fixtures, 425. Judgment Liens, none upon the fund raised by sale of fixtures severed from the free- hold, 74. extend to things passing by sale of the land on execution, 423. but not to the tenant's fixtures, 424. not superior to claims of third parties, 480. effect of severance of fixtures, 72. attaches to a building, 404, covers subsequent improvements, 424. crops, 342. Landlord's Lien, when extends to buildings erected by the tenant, 230. inferior to a mortgage of the leasehold, 487. if claimed, as evidence of intent, 136. Mechanics' Lien, porch or piazza, an addition vrithin, of N. J., 10. folding doors not an addition within, 10. a wing or addition, a building within, of Pens., 11, INDEX. 735 [BEFERENCES ABE TO THE BOTTOM PAGES,] LIENS, Mechanics', continued- does not attach to building built by father upon land of his infant son, 94. whether trade fixtures, etc., pass by sale to enforce, 405, 425, 431. mechanics' hen as against chattel mortgagee of engines, boilers, etc., 425. in order to be subject to, the structure must be annexed to the realty, 426. on steam boilers and gauge-cocks not lost by severance in 111., 43. of marble, as between grantor and grantee, 394. MECHANICS' LIEN. See Lien. METALS AND IMPEOVEMBNTS, held not to include an engine, 245. MEEGEE. See Title. not by landowner acquiring building, 481. when trade fixtures become part of the realty, by landowner acquir- ing them, 400, 402, 409, 413. when personal representative sells the land, 447, 482. what is not, as to liability to pay for improvements of sub-lessee, 527. effect upon chattel mortgage of crops, 340. of written agreement vrith deed, effect on crops, 341. 740 INDEX. [BEFEBENCIDS ABB TO THB BOTTOU PAGES.] MESNE PROFITS. See Ejectment. METEOE. See Aerolite. METEE. See Gas-Meter. is personal property, 395. not machinery, 560. MIUTAEY EESEBVATION. See Fublio Land. MILLS. See Buildings, Taxation. removable as trade fixtures, 142. pass on a conveyance of the land, 391, 393. effect of the use of the term "mill" in a conveyance, 462. declaration in replevin for, 621. insurance of, covers machinery, 463. MILL-CHAIN, DOGS AND BAES. See Chain. when fixtures, 23. MILL-SAWS AND BELTING. See Belting, Saws. parcel of the freehold, though temporarily severed, 46. otherwise, if never set up nor used, 54. pass on a conveyance of the realty, 391, 392. MILL-SPINDLE, replevin for, 628. MILL STONES, fixtures by constructive annexation, 30, 46. pass by lease or conveyance of mill, 46, 392, 453. when recoverable by mortgagee, 74. removable as trade fixtures, 142. included within the term ' ' improvements, ' ' 243. pass to the heir with the realty, 300, 310. under the N. Y. statute, as between heir and executor, 312. not goods and chattels within the bankrupt law, 511. not subject to distress, 550, 551. whether subject of deodand, 679. when personalty, 116. mechanics' lien allowed for, 430. not subject to levy, 540. MIEEOES. See Furniture, SouseTiold Goods, Looking-Glasses. set in recesses and nailed to wall, immovables, 34. considered as furniture, and personalty, 125, 650. removable after end of tenancy, 201. trover for, 650. when "fixed furniture," 7. when not removable, 34. when removable by tenant, 142, 197. when pass with land, 395, 437, 447. mechanics' lien not allowed for, 430. trhen go to devisee, 473. INDEX. 74J. [KEPBKBNCES ABB TO THE BOTTOM PAGES.] MIXED CASES, 158 et seq., 269 et seq. See Trade Fixtures. MONUMENT, passes with land, 396. MOOEINGS, occupier of when ratable, 570. MOETGAGOE AND MORTGAGEE. See Lien, Furniture, Grantor and Grantee, Action, Equity, Notice. rule between, same as between grantor and grantee, executor and heir, 378. fixtures pass by mortgage of realty, 387. so, as to tenant's fixtures, though not mentioned in memorandum of deposit, 405. so, as to trade fixtures, 405. BO, as to fixtures by constructive annexation, 387, 453. so, as to statuary, 38. so, as to upper mill-stones, 453. so, as to a sun-dial, 38. so, as to railroad rolling-stock, 47. contra, 50. other instances of fixtures passing to mortgagee, 387. fixtures pass whether the mortgage be in fee, for a term of years, or of a leasehold interest only, 405. so, though annexed since the execution of the mortgage, 90, 405, 406. presumption that subsequent improvements by the mortgagor are for the benefit of the inheritance, not an absolute one in some states, 410, 414, 417, 418, 419, 420, 421. where mortgage is considered a conveyance, fixture may not be re- moved by mortgagor, 406. in such a case the mortgagee may recover fixtures severed without his consent, 71, 73. . but not where sold and transferred by the indorsement of a bill of lading, 71, 643. rights of mortgagee in case of severance where mortgage is a mere security, 72, 73. tenant can not, by selling or mortgaging, convey a greater right to fixtures than he possesses, 144. fixtures annexed by tenant of mortgagor under a lease subsequent to the mortgage, pass on a foreclosure sale, 412. ■" effect of chattel mortgages, and agreements between mortgagor and tbird persons, that the thing annexed shall remain personalty, 105, 408, 414 ei seq., 483, 484, 611. right of removal preserved if mortgagee of the land consents' to such an agreement, 420. such agreement binding as between third parties, 420. mortgagee in possession makes improvements at his peril, 418, 422. whether he may remove buildings erected by him, 422. 742 INDEX. [BEFERENCBS ABB TO IHB BOTTOU FAaUS.] MOETGAGOE AND MORTGAGEE, continvied— right to crops, 345, 348. mortgage covers precious metals imbedded in smelting furnace, 399. mortgage covers trade fixtures subsequently purchased, 409. mortgage covers immovables, 399. mortgage covers everything granted by the mortgagee to the mort- gagor, 471. mortgage covers fixtures which do not pass under a void sale, 479. mortgage attaches to building erected by one tenant in common, 410, 414. mortgagee of a tenant in common acquires his lien against a co- tenant for improvements, 410. right of mortgagee to nursery stock, 338, 421. mortgage does not cover machinery on exhibition, 415. mortgage does not cover school-house, 89. stepping stone not an improvement, 10. mortgage does not cover machinery because the building and ma- chinery vrould bring more if sold together, 595. clearer evidence required as to articles subsequently annexed, 415. mortgagee not estopped by knovrledge of improvements being made, 409, 412, 423. rights of mortgagee as to fixtures removed, 70, 71, 72, 73, 616, 619. rights of mortgagee to funds from a sale of fixtures, 412. where mortgagee, under a mistake of fact, consents to an order for the sale of machines, it will be set aside, 71. right to trees cut, 71, 72. right of mortgagee superior to claims of lienors, 408, 409, 432. right of mortgagee superior to claim of one delivering machinery on trial, 408. right of mortgagee inferior to claims of creditors to building placed by husband upon wife's land, 414. second mortgagee requiring insurance of machinery which is a part of the miU, acquires no superior right to the money in event of loss, 71. mortgagee not estopped by unperformed conditions, 520. mortgagee loses his priority to crops by buying the land, 340. mortgagee can not maintain trover for manure, 642. mortgage of fixtures is a mortgage of realty, 502. mortgage of a building covers the land, 398. how sale should be made where there is a mortgage on the land, and a chattel mortgage upon machinery, 419. selling land separately from crops, 345, 349. mortgagee of a leasehold is not entitled to the proceeds of fixtures, 405. Chattel Mortgage, of crops, without writing, is valid, 368, 371. INDEX. 743 [BEFEBENCES ABE TO THE BOTTOM PAGES.] MOETGAGOE AND MOETGAGEE, continued— Chattel Mortgage — Continued — of trade-fixtures to be affixed, is valid, 144. of future crops, when valid, 367. of steam elevator, operates as a mortgage on realty, 35. works constructive severance, 67. of grass, effect, 67. constructive severance by, ceases when chattel mortgage expires, 68. as evidence of intent, 57. 58, 136, 420, 471. estoppel by, 50, 422. for greater caution, effect, 472. not defeated, by annexation of article to land, 85. right of mortgagee of crops against landlord, 359. right of mortgagee of fixtures against landlord, 209, 229. right of mortgagee of fixtures against a grantee of land, 105, 384. right of mortgagee of fixtures against mortgagee of land, 349. right of mortgagee of crops against mortgagee of land, 348. of crops becomes prior by mortgagee of the land buying the land, 340. right of mortgagee of nursery stock against mortgagee of the land, 338. of crops, subordinate to liens upon the land, 342. of crops, effect of a recovery of the land in ejectment, 360. of fixtures upon homestead invalid, 67, 383, 539. when assignee must take constructive notice of, 480. right of mortgagor of a vessel to dispose of old material, 74. MOTIVE POWBE. See Steam Engine, Water-Wheel. slight annexation sufficient, 22. is realty, 61. MOULDING MACHINES. See Machinery. when pass with land to the grantee, 392, 442. MOVABLE AETICLES. See Meaning. meaning of, 12, 251. MOVABLES AND IMMOVABLES. See Immovable. regulated by statute in Louisiana, 34. vault-doors and lining, mirrors, dwelling and gin-house, held to be immovables, 34. .when building material are movables, 54. when railway materials are movables, 89. when crop is, 364, 366. MUD-VALVE, a removable fixture, 237. MULE-BEAMEES, whether they pass to the grantee with the realty, 441. MULES, being machines for spinning cotton, whether subject .to distress, 553. 744 INDEX. [BEFBBBNCES ABB TO THB BOTTOM PAGES.] NAME. See Trade-MarTc. of building, cannot be carried away, 13. carved in stone, grantor of bviilding cannot compel grantee to erase, 13. NEW TOEK, statutes of, relating to fixtures, 311 et secL-, 473. NOTICE, what is, 480, 490. hire-plate is not, 487. possession of, by agent, is, 482. possession of grantor is not, 482. possession of grantee of trees, is, 376. possession of one partner, 481. possession of tenant, 527. proceeds in probate court, not, 482. as affecting grantee of the land, 401. rights gained by lack of, are not affected by lack of knowledge as to fixtures, 487. lack of, by mortgagee of land to which a building is removed, does not affect right of mortgagee of land whence building taken, 73. to grantee of land, of a previous sale of trees, effect, 376. by sheriff, can not affect right of a grantee of land to the crops, 341. tenant's lack of, of prior sale of a foundation upon the land, effect, 75. rights of a seller on condition preserved by, 479. holder of bill of lading for a fixture severed from mortgaged land, is protected, 71. Eecormng Acts, recorded chattel mortgage protects where article annexed to land by a third party, 85. sale of fruotus industriales need not be recorded, 372. constructive notice by record of chattel mortgage as between chattel mortgagee and holder of mechanic's lien, 425. possession of tenant sufficient to put purchaser of the land upon in- quiry as to the tenant's rights, 481. of the right to annexations upon the land of another under agree- ment that the same shall remain personalty, as between bona fide purchasers or mortgagees of the land and the party entitled under such agreement, 483 et seq. limitation upon the effect of such agreement, 484. actual severance or notice of agreement to sever, necessary in order to deprive bona fide purchaser of, or creditor levying upon, the land, of the right to fixtures, 485. record or filing of a chattel mortgage not sufficient to deprive a pur- chase or mortgage of the realty of its ione fide character, 486. contra, 488. INDEX 745 [BEFEBENCES ABE TO THE BOTTOU PAGES.] NOTICE, continued- mortgage of realty and fixtures appurtenant thereto need not be re- corded as a chattel mortgage, 469, 487, 492. , trade building of tenant subject to the same rule as personalty in respect of the recording of liens, 500. Bills of Sale Act, 490. meaning of "fixtures" in, 491, 492. registry unnecessary where the fixtures pass with and as a part of the realty, 492, 499. , otherwise, where the intention is that the fixtures shall pass sepa- rately from the freehold, 493, 499. as, where such intention appears by the use of a separate instrument, 493. BO, where the fixtures pass by virtue of a second operative part of the deed and not as parcel of the land, 470, 494, 499. so, where such intention is evidenced by the conveyance of an abso- lute interest in the fixtures, being different from the interest conveyed in the land. 494. BO, where there is a mortgage by way of underlease with a power to the mortgagee to seize and sell the fixtures absolutely, 494 et seq. registry not necessary where the mortgagee has no power to sever the fixtures and sell them separately, 496. registration necessary in the case of chattels, though in a state of quasi annexation to the land, 590. NUBSEEIES. See Trees. trees kept for sale in, removable as trade fixtures, 162. but not such as are kept for the fruit they yield, 163. not removable after expiration of tenancy, 199. trees, etc., in, as between heir and executor, 337. trees, etc., not subject to distress under 11 Geo. II., ch. 19, 365. trees, etc., not subject to fi. fa., 541. trees, etc., trespass de ionis for, 635. trees, etc., when pass vrith land, 338, 421. trees, etc., subject to levy, 542. trees, etc., how taxed, 565. trees, etc., when mortgagee of land estopped to claim, 120. OBSERVATOET, removable by incumbent, 288. OFFICE. See Counting-Boom. declaration in replevin for, 621. is a trade fixture, 142. OFFICE FIXTTJEES, 379. OFFICE FUENITITEE. See Furniture, Desk. not fixtures, 53. 746 INDEX [BEFEBENCES ABE TO THE BOTTOU FAQES.] OIL, not a fixture, 52. OILCliOTH, passes to grantee of land, 396. ONUS PEOBANDI. See Evidence. OPEN SPACES ACT, ENGLAND. ■what is a building within, 11. OPEKA CHAIES. See Chairs, Stools, Theaters. are trade fixtures, 141. OPTION. See Valuation. to purchase, as affecting right to remove fixtures, 384. OEAL EVIDENCE. See Evidence, Statute of Frauds. agreement as to trade fixtures valid, 219, 220. OEDEE AND DISPOSITION. See Banlcruptcy. OEGAN, is a fixture by weight, 38. in a church belongs to whom, 326. in a church when passes by a sale of the realty, 437, 450. OENAMENTAL AND DOMESTIC FIXTUEES. See Buildings, Eccles- iastical Persons. defined, 184. rule applies to an office, 185. grounds upon which removal thereof is allowed, 185. not so favorably regarded as respects right of removal, as trade fixtures, 185. tests as to whether removable, 185, 190, 191. permanent additions not removable, 186 et seq. each case dependant on its own circumstances, 188. whether removable, a mixed question of law and fact, 190, 191 statutory rule in Louisiana, 194. as between tenant for life or in tail and remainderman, etc., 276 et seq. D'Eyncourt v. Gregory, 277 et seq. rule as to what is removable as between said parties, 283. rule as to permanent buildings not removable, 283. as between executor and heir, 308. OENAMENTS, of bishop 's chapel, in nature of heir-looms, 287, 321. OVENS. See CoTce-Ovens. affixed by owner of freehold go to the heir, 310. affixed by owner of freehold not subject to fi. fa., 537. when removable, 140, 146, 152. pass with land, 462. INDEX. 747 [BBFEBBNCES ABB TO THE BOTTOM PAGES.] OTSTEES, when the subject of property, 329, 668. PALINGS, as between heir and executor, 298, 300. PANS. See Salt-Pans. PAPER-MILLS. See MilU. right to machinery in, as between mortgagor and mortgagee, 438. PAROL EVIDENCK See Evidence, Statute of Frauds. PAETICULAB ESTATE. See Semainderman. right as to crop, 353. PARTITION. See Joint Tenants, Tenants in Common. rule in, same as between grantor and grantee, 17. right to improvements made by one tenant, 414. right to crops, 340, 346. of crops, classed as personalty, 372. second and third stories are realty, 380. oral, of line fence, is valid, 514, 515. PARTITIONS, are fixtures, 8, 127. seized on fi. fa. against tenant, 133. when removable by tenant, 139, 142, 146. pass with land, 396. mechanics' lien allowed for, 429. replevin does not lie for, 621. PARTNERS, when erections upon land of one become realty, 96, 109, 110, 385, 623. effect of annexation of fixtures to land owned by, 109, 400, 413. effect of one acquiring entire interest in land and fixtures, 109, 400. when possession of one is notice, 481. PARTRIDGES, when pass to the heir, 328. when pass to the executor, 330. PARTY-WALL, 105, 396. See Wall. PASSENGER-ELEVATOR. See Elevator. PATENT. See Puhlio Land. infringement of, by machinery annexed to the land, is a breach of a covenant against incumbrances, 484. PATTERNS. See Tools. not pass with land, 434, 469. PAUPER. See Settlement. PAVEMENT, 88, 133. See Sidewalk. 748 INDEX. [BEFEBENCES ABB TO THE BOITOU FAOES.] PEACHES. See Fruit. are subject to levy, 542. PEAT, in process of curing is personal property, 332. PENNONS, 320, 324. PEESONAL PEOPEETY. See Goods, Chattels. does not include removable buildings, 12. does not cover wheat constructively severed, 67. PEESONAL EEPEESENTATIVB. See Seir and Executor. PEWS, 325, 326. PHEASANTS, when pass to the heir, 328. when pass to the executor, 330. PIAZZA. See Porch, Veranda. PICKETS, as between grantor and grantee of the realty, 433. PICKING-MACHINES, not fixed, are chattels, 17. PICTUEES. See Portraits. removable by tenant for life, 276, 278. not fixtures, 308, 452. ancient pictures said to be in the nature of heir-looms, 320. PIEE. See DocTc, Wharf, Bridge. occupier of, when ratable, 570, 572. not removal by tenant, 146. damages allowed for in condemnation proceedings, 89. dower in, 297. not subject to levy, 538. how taxed, 558. PIEE-GLASSES. See Mirrors. held to be furniture, 447. removable by tenant for life, 276. do not pass with the land to the grantee, 447. PIGEONS, when pass to executor, 330. the subject of larceny, 330. ._ PILE, in bed of the Thames, 95, 645. PILLARS, of brick on dairy floor, not removable by tenant, 176. not removable by agricultural tenant, 177. PINEEIES, removable by incumbent, 287, 290. INDEX. 749 [BEFEBBNCBS ABB TO THE BOTTOM PAGES.] PIPES. See Gas-Pipes, Water-Pipes, Drain-Pipes, Plumbing, Beating- Pipe. removable by tenant, 140, 142, 187. right to, as between grantor and grantee of the realty, 389, 392, 393, 396, 452. of iron, for heating purposes, etc., as between grantor and grantee of the realty, 390, 392, 395. when pass by chattel mortgage, as against mortgagee of the realty, 418. in paper mill will not subject to extent, 538. for conveying water or gas, occupier of, ratable, 568. larceny of copper pipe, 673. mechanics' lien allowed for, 428, 431. covered by insurance, 379. not subject to levy, 538. are personalty, 395. are not machinery, 560. connection by, is not annexation, 436, 578. PITS, of frame-work on brick foundation, when removable, 187. PIT-WHEEL, not subject to extent, 528. PLANK. See Building Materials, Lumber, Floor, Sidewalk. used as a floor, held to pass by a conveyance of the realty, 453. as trade fixtures, 143. PLANING-MACHINE. See Machinery. not attached to the freehold, are personalty, 20, 53, 381. not attached to the freehold, subject to f,. fa., 20. when pass with the land to the grantee, 381, 392, 434, 438, 442. when pass by chattel mortgage as against mortgagee of the realty, 418. PLANT. See Pixed Plant, Heating Plant, Electric Plant, Refrigerating Plant. meaning of, 536. PLANTATION, See Devises. sale of, includes fences, 462. PLANTS. See Wine Plants, Strawberry-Beds. upon public lands, when personalty, 95. do not pass with land, 435. PLATFOEM, is a trade fixture, 143. PLAYHOUSE. See Buildings. does not pass with land, 446. 750 INDEX. [bsfbhencss abb to thb bottom pagbs.] PLEADING AND PEACTICE. See Waste. averment in bill to restrain waste, 602. in proceedings to enforce mechanics' lien; description of floating dock, 639. in case in the nature of waste brought by mortgagee, 593, 596. performance of covenant, how negatived, 661. in replevin, things replevied how described in declaration, 621, 622. departure in, in replevin for a lime-kiln, 623. in trespass, fixtures how to be described, 637, 638. in trover, articles how described in declaration, 643, 651, 652, 653. in assumpsit, price of fixtures not recoverable under a count for goods sold and delivered, 124, 662. price of fixtures, when recoverable under a count upon an account stated, 663. general form of pleading in actions upon contracts relating to fixtures, when insuflScient, 664. meaning of "goods, chattels and fixtures" in declaration, 2. what is sufficient answer in foreclosure of a lien on a house which is removable, 415. what is insufficient answer by buyer in foreclosure of a chattel mortgage, 489. what is sufficient defense in trespass for removing a house, 214. PLUMBING. See Pipes. when removable by a tenant, 141, 194. POLES. See Posts — Telegraph, Telephone, Electric Fixtures, when may be re-taken from a staging, 81. when pass with land, 397, 435. mechanics' lien allowed for, 431. on street, when subject to levy, 546, 547. how taxed, 562. POLICY. See Irisurance. PONTOONS, whether occupation of land is enhanced by, 570. POOR BATES. See Machinery. statute of 43 Eliz., ch. 2, § 1, 567. are personal charges in respect of lands, and the occupier ratable by whatever tenure he holds, 567. what constitutes an occupier of land, 567, 568. what annexations have been considered as land, or as increasing the ratable value of land, 568 et seq. real property, how rated as to value, 572. whether in order to render a chattel subject to rate upon land, it must be annexed thereto, 574. where machinery is so annexed as to become a fixture, the premises should be rated in accordance vdth their enhanced value, 577. INDEX. 751 [BEFBBENCBS ABE TO THE BOTTOM PAGES.] POOR EATES, continued- profits arising from a mere chattel ought not to enhance rate upon lands and houses only, 557, 579. principal not ratable, accessory not ratable, 581, qualification of this rule, 581. POBCH. See Veranda. is not a building, 11. an addition within the N. J. Mechanics' Lien Law, 10. PORTABLE ENGINE. See Steam Engine. removable by lessee, 138. not subject to levy, 537. PORTRAITS. See Pictures. removable by tenant for life, 278. ancient portraits said to be in the nature of heir-looms, 320. POSSESSION. See Notice. POSTS. See Telegraph, Wires, Lamp-Posts. hauled upon the form for a fence, not realty, 53. not removable by tenant, 146. POST-TRADERS. See Public Land. POTATOES, are personalty, 369. POTENTIAL EXISTENCE. See Crops. PRACTICE. See Pleading and Practice. PRE-EMPTION, 353. See Public Land. PRESSES. See Cotton Press, Printing Press, Hydraulic Presses, Burglary. not waste to remove unless fixed, 126, 604. injunction to prevent removal of, 604. pass to heir with the realty, 300, 303. in dye-house, right to as between tenants, in common, 380. cotton-press, right to as between grantor and grantee, etc., of the realty, 391, 444. cider-press, right to as between grantor and grantee, etc., of the realty, 391. paper-presses, right to as between grantor and grantee, etc., of the realty, 438. trimming-press, right to as between grantor and grantee, etc., of the realty, 438. held not to pass with the land, such not being the intention of the grantor, 466. not subject to extent, 538. when pass with land, 419, 434. are trade-fixtures, 143. PRESUMPTION. See Evidence. 752 INDEX. [BEFEItENCES ABS TO THB BOTTOM PAGES.] PEINTING-PEESS. See Presses. passes with land, 391. PRIVILEGE. See Lien. PEODUCT, meaning of in Stat. 11 Geo. II., eh. 19, sec. 8, 365, 550. PROHIBITION. See Injunction, Estrepement. writ of at common law, 598. writ of the origin of relief by injunction, 599. writ of lay against whom, 599. writ of now obsolete, 601. PROOF. See Evidence. PUBLIC LAND. See Alieno Solo. improvements upon, are chattels real, 95. improvements upon, when removable, 19, 95, 97, 113, 385. improvements upon, whether consideration for a promissory note, 95. improvements upon, not subject to levy, 538. improvements upon, how taxed, 558, 559, 562. crops upon, 353. vines upon, are personalty, 95. sawmiU upon, passes to grantee, 91. PULLEYS, mechanics' lien allowed for, 429. PUMPS. See Windmills. removable by tenant, 143, 160, 196. alieno solo, when removable, 98. in paper-mill, not subject to extent, 538. as between executor and heir, 303, 313. right to as between grantor and grantee of the realty, 383, 389, 392, 393, 434, 436. when pass by chattel mortgage as against mortgagee of the realty, 418. erected by tenant, do not pass to grantee of reversion, 479. when ratable to the poor, 577, 580. trespass for, 639. mechanics' lien allowed for, 427, 429. when not a part of the realty, 107. when not an appurtenance to a dredge, 82. PUMP-HOUSE. See Buildings. erected by tenant in agriculture, not removable, 167. PUNCHES, held subject to fi. fa., 543. PUNKAHS. See Fans. pass with land, 396. PURCHASERS. See Grantor and Grantee, Seller and Buyer. INDEX. 753 [BEFBBENCBS MCB TO IHB BOIIOU PAGES.] PUEIFIEES, in gas-works, ratable, 579. PUSEY HOEN, descends to heir, 321. QUESTION OF FACT. See Evidence. whether an article is a fixture, 35. intention is, 56. what is a reasonable time, 213, 218. QUESTION OF LAW, whether an article is a fixture, 36. to construe written contract, 57. QUICQUID PLANTATUR SOLO, SOLO CEDIT, express the general rule as to fixtures, 3, 18, 77, 126. Boman law on the subject, 77. exceptions to maxim, 80, 90, 127. when to be applied, 97. different degrees of relaxation of the rule, 138. quaere as to whether relaxed in respect of agricultural erections, 167. applied with most rigor between heir and executor, 295, 378. the same strict rule prevails, also, between grantor and grantee, etc., 378. does not apply to structures erected by a railway company, 90. does not apply to leaseholds, 91. when it does not apply to public land, 97. BACK, in a stable, presumed to be fixed, 652. EADIATORS. See Heaters. not removable by tenant, 187. when p^ss with land, 395, 450. mechanics' lien allowed for, 428. covered by insurance, 379. subject to levy, 538. BAG-CUTTBE. See Machinery. in paper-mill, as between mortgagor and mortgagee, 438. BAILING, when removable by a tenant, 143, 146. BAIL-BOAD lEON, ETC., annexed to land without consent of owner of the land or iron, 84. alieno solo, 88. annexed under defective proceedings for condemnation of land, 117. removable as trade fixtures, 142. effect of severance, 619. BAILS. See Fences, Larceny. laid into a fence are a part of the freehold, 38, 305, 454, 48 754 INDEX. [BEFEBIINCE3 ABB TO THB BOTTOM FAGSS.] BAILS, continued — of iron, laid by tenant in a coal mine, removable, 140, 161. of iron, laid by tenant in a coal mine, subject to j^. fa., 544. cut on government land do not pass to grantee of the land, 434. laid into a fence pass vrith the land to the grantee, 454. laid into a fence, right to, as between tenant and the grantee of the land, 484. lying on the ground cannot be included in a sale of land by parol evidence, 516. when do not pass with the land, 435. may be personalty, 621. EAILWAY-CAES. See Mollvng-Stock. EAILW AY-STATION. See Building. BAILWAT-TEACK. See Marine Railway, Tramway, Electric Baihcay, Emiankment, alieno solo, 88. when not an immovable, 89. when passes on sale of the land, 390, 403, 463. whether subject to a mechanics' Uen, 432. how taxable, 562, 568. as enhancing ratable value of realty, 577. when conveyance of, requires registry under Bills of Sale Act, 492. not subject to distress, 552. not goods and chattels, 502. when removable, 114, 119. right to remove lost by abandonment, 215. right to remove lost by delay, 215. is a trade fixture, 142. not removable by a Ueensee, 385. when covered by a mortgage of the land, 90, 410, 414. when damages allowed for in condemnation proceedings, 89. goes to executor, 273, 284. does not pass upon recovery of the land in ejectment, 91, 659. ejectment for, 660. whether liable for special assessments, 563. when value of should be deducted from injury done farm in action of trespass, 91. in city street, not personalty, 546. in city street, belongs to city, 88. in city street, mechanics' lieu not allowed for, 431. in city street, how taxable, 562. switchback railway is a chattel, 12. BANGES. See Stoves. af^ed by owner of freehold, go to the heir, 310. affixed by owner of freehold, not subject to fi. fa., 537. INDEX. 755 [EBPBBBNCBS ABU TO THE BOTTOM PAGES.] KANGES, continued- affixed by tenant, not subject to distress, 552. are trade fixtures, 139. when pass with land, 389, 395, 396, 450. removable by vendee of land under contract, 383, when mechanics' lien allowed for, 428, 429. KE-ANNEXATION. See Annexation. by agreement, 68. what shows intent to reannez, 69. REASONABLE TIME. See Bemoval. what is, 213, 224. EECEIVEB. See Equity. EECOEDING ACTS. See Notice. REDEMPTION, of land from execution-sale, creditor can claim articles severed by agreement, 68. crops pass, 345. HEELS, whether pass with the land to the grantee, 441. RE-ENTET. See Landlord and Tenant, Forfeiture, Abandonment, 'Sur- render. by landlord, right of removal is lost, 210. EEFOEMATION. See Equity. EEFBIGEEATING MACHINE. See Machinery. passes with land, 393. EEFEIGEEATING PLANT, when unpaid seller reserving title is protected, 105. REPEIGERATOES, not removable by tenant, 146. not rated as realty, 577. EEGISTEES, not removable by tenant, 146. mechanics' lien allowed for, 428. REGISTRY ACTS. See Notice. REMAINDERMAN. See Particular Estate, Tenant for Life. right to crop as against holder of a particular estate, 353. can enjoin life tenant against waste, 606. can bring assumpsit against life tenant for severed fixtures, 662. not bound by agreements of life tenant, 524. minor life tenant, when entitled to relief against, 524. REMEDIES. See Action, Equity. for dilapidation, 292. by recaption of thing severed, without process, 618. for preventing the exercise of the right to remove fixtures, 649. 756 INDEX. [BBFESDNCSS ABE TO THE BOTTOM PAGES.] REMOVABLE FIXTTJEES, 1, 3, 5, 6. REMOVAL. See Annexation, Trade Fixtures, Covenants to Bepair, Sev- erance, Tenant for Life. nature of tenant's right of remoTing fixtures, 121, 122 an exception to the general rule of law, 121. when right of, must be exercised, 197 et seq. when right of, must be exercised in cases between representatives of tenant for life, etc., and remainderman, and in the case of ecclesiastical persons, 293. right of, may be exercised during the tenancy, but not after, 197, 199. dicta to the contrary, 200. grounds of rule, 198. right may be extended by oral agreement, 199, 220. right may be extended but not as against a, subsequent incoming tenant not privy thereto, unless agreement is so executed as to bind the land, 221, 222. may remove after end of tenancy, when wrongfully prevented by landlord from removing during the term, 202. may remove after end of tenancy, when prevented during the term by injunction sued out by landlord, 202. of fixtures by tenant holding over, 203, 259. rule governing such cases, 203-207. rule that fixtures must be removed during term applies where ten- ancy is determined by act of tenant, 207. rule that fixtures must be removed during term applies where ten- ancy is determined by act of tenant, as by surrender of the lease, 207. rule that fixtures must be removed during term where tenancy is determined by act of tenant, vrill not prejudice third parties, 208, 229. rule applicable to cases of forfeiture of lease, 210, 211. rule subject to exception where tenancy is of uncertain duration, 212. what is a reasonable time for, 212. buildings sold by owner of land to be removed by a certain day, not forfeited by failure to remove on that day, 68. of annexation alieno solo, Britton's remarks concerning, 79. property annexed to another's land under license, not within the rule requiring fixtures to be removed by tenant during the term, 214, party removing probably liable in trespass for subsequent entry, 214. of trees in a nursery, when to be made, 215. where lease provides for removal of fixtures at end of term, lessee may remove during its continuance, 103, 227. INDEX. 757 [BBFGBBNCES ABE XO THE BOTTOM FAGBS.] EKMOVAL, continued — right of, valid as against assignee of land with notice, 106. lesseo can convey no greater right of, than he possesses himself, 144, 145, 213. special agreements in relation to removal of fixtures, 103, 215 et seq., 472. right of, subject to control by agreements between the parties, 215 et seq., 242. such agreements not within Statute of Frauds, 109, 219. but parol, contemporaneous evidence inadmissible to contradict, etc., a valid, written instrument, 219. exception to the rale, 219. agreements allowing time for, relate to expiration of lease by its own limitation, and not by act of lessee, 225. landlord cannot confer right of removal as against his remainder- man, 226. in order to entitle lessee to remove, he must have kept all condi- tions precedent, 218, 228, 229, 231, 242. lessor's interest in fixtures agreed to be left on the land, 224. agreement allowing tenant to remove fixtures, not to be construed to authorize removal causing material injury to the landlord's property, unless such appears to be the clear intention of the parties, 231. tenant may hold "without impeachment of waste," 232. clause authorizing use of steam engines, etc., authorizes their re- moval, 232. eftect of non-happening of contingency changing tenant's right of removing fixtures, 228, 232. » effect upon right of, of contracts subsequent to the demise, 252 et seq. effect upon right of, of agreement for entry of judgment in eject- ment against the tenant with stay of execution, 253. rifht of removing fixtures lost by accepting new lease without reservation of the fixtures, 254. in such case covenants to repair, etc., include the fixtures, 258. right of removing not lost by holding over by consent of landlord, where it existed under the prior lease, 259. where lessee continues to hold under remainderman, it is a question of fact whether such provision of the prior tenancy is adopted in the new, 261. right of removal also lost by tenant's entering into another agree- ment terminating his possession under his lease, 261. right of removal also lost by tenant's entering into another agree- ment terminating his possession under his lease, as by con- tracting to purchase the premises, 262. alteration is not, 233, 248, 758 INDEX. [befebences abb to tbb botiou pages.] REMOVAL, continued — right of, not given by permission to erect, 225. right of, none where lease requires erection, 243, 535. of trade fixtures, right not affected by a covenant to repair, 241. right of, lost by delay, 214. right of, lost by disclaimer, 206, 207, 226. right of, vchen lost although tenant is in possession, 218. right of, not lost where landlord agrees to buy or try to sell, 223. right of, not lost by judgment of dispossession of party holding lease or security, 209. of house by lessee not permitted until fully paid for, 229. on day notice of forfeiture is received, is in sufficient time, 211. right of, lost by sub-lessee by agreement between lessor and lessee, 243. right of, not lost by tenant, by agreement between landlord and dub-tenant, 223. right of, by third party, not lost by agreement between landlord and tenant, 225. right of, as against remainderman, 114. right of, as against devisee, 204. of fixtures by grantor of land, grantee not bound to accept, 399. by chattel mortgagee of fixtures, must be made within a reasonable time, 413. right of, by unpaid seller reserving title, 105. right of, when makes fixtures chattels, 106, 124. lessee having right of, can not remain in possession without pay- ment of rent, 213, 224. permission for, is without consideration if fixtures have become the property of the landowner 94, 226. when grantee can insist upon, 400. right of, not lost by becoming tenant in common of the land, 261. right of, terminates vrith death of licensee, 214. of disability, agreement made after is without consideration, 94 BENT, , can not be recovered for fixtures which are personalty, 664. action lies for recovery of, when paid for buildings under erroneous belief that a right of removal existed, 256. estoppel by receiving, 522. change in amount of, is not a surrender by tenant, 256. REPAIRS. See Alteration, Improvement. distinction between and fixtures, 12, 236. distinguished from improvements, 525. meaning of, 10. REPLACED FIXTURES. See Substitution. agreement to replace does not require that it be done immediately, 248. INDEX 759 [refebbncbs abb to the bottom pages.] REPLEVIN. See Action, Measure of Damages, Pleadiw and Practice. EBPUTBD OWNERSHIP. See Bankruptcy. ESSEBVATION. See Exception. constructive severance by, 651. of crop, does not make it personalty, 67. of crop, in agreement, is merged into a subsequent deed, 341. of crop, by officer is invalid, 342. of trees, can not be made by parol, 375. of trees, in contract of sale of land, is of no effect if none in sub- sequent deed, 377. of title to machinery does not defeat a mechanics' lien, 106, 107. of building extends to the land, 398. of building is within the Statute of Frauds, 516. EESERVOIE, occupiers of, ratable, 568. not rated as realty, 577. is realty, 560. EE8TKICTI0N. See Building Restriction. a switchback railway is a violation of, 12. statutory, what are buildings and fixtures within, 11 EETOETS, removable by tenant, 140. occupiers of, ratable, 578, 579. EEVEESIONEE. See Tenant for Life, Bemaindefman. buildings pass to, on re-entry for condition broken, 383. can bring assumpsit against life tenant for severed fixtures, 662. EIGHT OF WAT. See Easement. EIPEAPPING, 397. EOADBBD. See Embanlcment, Bailway. in condemnation proceedings, 380. EOADS AND WAYS, do not include tram plates and sleepers not fixed to freehold, 240. EOLLING-MILL. See Mill. conveyance of, passes iron rolls and plates used as a floor, 24, 25. EOLLING-STOCK. See Taxation, Cars. whether parcel of the realty, 47 et seq. held to be part of the realty, and to pass by a mortgage, etc., of the roadway, 48. not subject to sale on /i. fa., 48, 540, 546 contra, 50, 541. may become realty by estoppel, 51. according to the better opinion is personalty, 53. mortgage of, as parcel of the realty held not to require registry as a chattel mortgage, 489. 760 INDEX. [BEVEBENCES ABE TO THB BOTTOM PAOBS.] EOLLING-STOCK, continued- net appendages, 567. when covered hj a mortgage in another state, 489. BOLLS, in rolling-mill are part of the realty, and not subject to levari facias, 25, 46. such roUs pass with the mill on a sale thereof, 24, 392, 455. not realty, if never turned or finished off and put into the mill, 54, 455. calender rolls, right to, as between mortgagor and mortgagee, 438. in rolling-mill not goods and chattels within the bankrupt acts, 511. ROMAN CIVIL LAW. See Civil Lavf. as to columns, figures, and statues, 40. as to annexations upon the land of another, 77. SAFE. See Iron Chest. not "fixtures and appurtenances," 20. not attached to freehold is personalty, 20, 53. not attached to freehold is personalty, and subject to /!. fa., 20. in a, vault, removable by tenant, 143, 150. when passes with land to the grantee, 391, 437, 453, 456. SALE. See Seller and Buyer. SALT-KETTLES. See Kettles. right to as between chattel mortgagee and a subsequent grantee of the land to which annexed, 483. SALT-PANS, removable by tenant, 140, 160. when pass to the heir, 160, 303. included in a demise of salt-works, etc., 258. SASH. See Worlc Done and Fixed, Windows, Glass. of a show-ease, when furniture, 81. removable after end of tenancy, 201. SAW-DTJST, 435. SAW-FEAMES, in a marble-mill, right to as between mortgagor and mortgagee, 438. SAW-MILL. See Mill. conveyance of by that description passes what, 23. on government land, 86, 91. when not realty, 424. presumption as to, 96, 103. removable by tenant, 138, 142. treated as personalty by owner, 115. machinery in, as between grantor and grantee, 383, 392, 403 434. when a chattel not passing to grantee of the land, 433. declaration in replevin for, 621. affidavit in replevin for, 621. INDEX. 761 [BBfBBBNCES ABB TO THB BOTTOM tAOBS.] SAWS. See Mill-Saws. circular saws, when pass by conveyance of the realty,. 391, 392, 436, 438, 463. pass to heir, 303. held subject to fi. fa., 543. saws and saw-benches, when pass by chattel mortgage as against the mortgagee of the realty, 418. right to, as between chattel mortgagee and mechanic claiming a lien, 425. SCAPPOLDING, 430. SCALES, when removable by tenant, 141, 146. as between executor and heir under the N. T. statute, 313. goes to heir, 303. as between grantor and grantee of land, 391, 393, 396, 434, 436. is a fixture, 470. SCENERY. See Stages, Theater. is "fixtures and improvements," 10. doesn't pass on conveyance of land, 437. when mechanics' Uen allowed for, 429. SCHOOLHOUSE. See Buildings, Condemnation Proceedings. damages not allowed for in condemnation proceedings, 89. not covered by mortgage of land, 89. SCOTCH LAW, as to fixtures, difference between and English law, 307. "SCRAPE." See Turpentine. is personalty, 333. SCREENS, are trade-fixtures, 142. pass on conveyance of land, 389. removal of, is a breaking, 677. SEATS, stone garden-seats removable by tenant for life, 280. SEA-WEED, not the subject of larceny, 668. SEIZURE. See Execution. SELLER AND BTTYER. See Grantor and Grantee, Vendor and Vendee Lien. right of buyer of fixtures as against grantee of the land, 105. right of buyer of fixtures as against lienor, 424. right of buyer of fixtures as against mortgagee of the land, 444. seller of fixtures annexed can enjoin mortgagee of land from sale thereof, 611. 762 INDEX. [JtEFEBENCES ABB TO THB BOTTOLI PAOSS.] SELLER AND BUYEE, continued- effect, against seller of chattel, of taking mortgage of the land and chattel as security for the price, 472. uncompleted tanks do not become property of the landowner as against seller, 508. agreement of tenant to go out of possession of land is not a sale of his fixtures, 262. right of buyer of fixtures after tenancy expires, 200, 208. ■windmill is not personalty, 107. elevator is not a fixture which compels buyer to accept, 452. trees, 376. void sale of fixtures, covered by mortgage of the land 479. buyer of leasehold takes subject to conditions, 229. defrauded seller. See Accession. rights of defrauded seller as against a grantee of the land, 401. Conditional Sale, rights of unpaid seller against landlord, 85, 209, 210, 229, 241, 479. rights of unpaid seller against vendor under contract, 85. rights of unpaid seller against assignee, 105. rights of unpaid seller against assignee of lease, 487. rights of unpaid seller against landowner, 84, 487. rights of unpaid seller against grantee and mortgagee of the land, 408, 409, 415, 417, 419, 480, 484. rights of unpaid seller against mortgagee of electric cars, as to articles annexed thereto, 82. rights of unpaid seller against mortgagee of the leasehold, 419. rights of unpaid seller against wife, 85. rights of unpaid seller against one with notice, 479. rights of unpaid seller to mechanics' lien, 106, 107, 426. rights of unpaid seller as to machinery, 105. rights of unpaid seller as to doors, mantels, baseboards and wainscot- ing, 105. unpaid seller can maintain replevin, 622. SET-POTS, affixed by owner of freehold go to the heir, 310. affixed by owner of freehold not subject to fi. fa., 537. SETTLED LAND ACT, ENGLAND, what is an "addition" within, 10. SETTLEMENT, statute of 13 and 14 Car. II., c. 12, sec. 1, and other statutes on the subject, 582. not gained by holding a post-wind-mill not annexed to the free- hold, 15, 16, 583. contract for a standing-place for a carding-machine confers no settlement, 583. INDEX. 763 [befebences abb to the bottom pages.] SETTLEMENT, continued— in order to confer, the thing by which the value of the tenement is enhanced must be a fixture, 585. gained by the annexation of stove, grates and cupboards to the house, 586. SEVEEANCE. See Mechanics' Lien, Grantor and Grantee, Semedies. the tenant's right of severing fixtures, an exception to the general rule of law, 121. nature of this right in case of tenant, 121. See Removal. what constitutes a severance suf&cient to convert a fixture into per- sonalty, 62. physical severance not always sufficient to convert into personalty, 62. accidental, or temporary severance insufScient, 46, 54, 62, 456 et teq. must be by one having the right to do it, 63. and with the intention of converting into a chattel, 63. owner may elect to consider thing severed as personalty, 64, 70. mere intention to sever, insufficient, 55, 58, 65. giving a delivery bond, insufficient, 65. so, as to exception of a building from a levy on land, 65. effect' of j 68 et sdq., 360, 362, 616, 617, 619. effect of thing severed becomes personalty, when, 68, 480. effect of in case of mortgages, 70, 71, 418. effect of in case of mere liens, 72, 73. effect of where mortgage is considered a mere lien, 72, 73. by owner, effect, 64, 70. by mutual consent for preservation, effect, 382. by mutual consent pending dispute, 64. when complete, building, 64. when complete, fallen trees, 63. what sufficient, manure, 460. what sufficient, stones, 457. of trees unlawfully, pass with land, 457. of landlord's fiitures, effect, 75, 618. by grantor before delivering possession of premises, 618. effect of bill of lading for severed fixtures, on right of owner, 71. by life te^nant, 662. ' of crops by sheriff, remain realty, 64, 342. trustee under deed of trust can not sell land without improvements, 65. pending partition suit, effect, 380. court no power to sever, 64. from homestead, fixture remains exempt, 71, 540. from homestead, of crops, 365. Constructive Severance, 65. by grant or reservation, 65, 66, 67, 375, 651. 764 INDEX [BEFEBENCES ABE TO THE BOTTOM PAGES.] SEVEEANCE, continued— CoNSTKUCTivE SEVERANCE — Continued — by agreement, 67, 68. by treatment of the parties, 69. by distinct interests, 69. by act of God, 63, 75, 265, 457, 459, 474, 644. by act of God, decay, 63, 310, 458. by act of God, fire, 63, 69, 75, 424, 541, 622. not by levy of execution, 67, 68, 69, 542. nor oral assent of landowner, 110. not by sale, 623. effect, 67, 75, 540. by chattel mortgage, ceases when mortgage expires, 68. of crops, 66, 340, 342. SHAFT-HOUSE, is trade fixture, 140, SHAETING, removable by tenant, 141. right to, as between tenants in common, 380. right to, as between vendor and vendee of the realty, 381, 389, 392, 403, 418, 433. trover for, 648. goes to remainderman, 273. mechanics' lien allowed for, 428. not subject to levy, 538. covered by insurance, 379. SHAPEES, in a sash, door and blind factory, right to as between grantor and grantee of the realty, 392. SHEAEIN6-MACHINES, not fixed are chattels, 17. SHEAES, as increasing the ratable value of realty, 574. SHEDS. See Engine Bouse, Building. removable as trade fixtures, 143, 150, 161. erection of, not a repair, 237. erected by mortgagee in possession for use as a blacksmith shop, removable, 422. declaration in replevin for, 621. go to executor, 273. covered by insurance, 379. "SHED, STABLE, STOEE-EOOM AND BARN," building described as, removable by tenant, 150 SHELF, SHELVING, removable as a trade fixture, 141, 143, 197, 242. presumed to be fixed, 234, 652. INDEX. 765 [BEFBRBNCES ABB TO THB BOTTOM PAGES.] SHELF, SHELVING, continued— in a store passes with the land by a conveyance, 394. mechanics' lien allowed for, 429. not furnituTe, 476. sale of, within Statute of Frauds, 515. SHELLS, for printing machine, mechanics' lien allowed for, 427. SHINGLE-MACHINES. See Machinery. pass with the realty on an execution sale, 402. SHIP, right of mortgagee of, to severed articles, 74. SHOP. See Building. erected by tenant out of materials of old shop, 153. SHOP-SHUTTEES. See Shutters. destroying, when an offense within 24 & 25 Viet., c. 97, 676. SHOW-CASE. See Case. removable as trade fixture. 142. SHEOUD, no property in, 325. SHBUBSi See Trees. not removable by tenant. 164, 197. SHUTTEE-BOX, when not considered part of a dwelling so as to constitute thi breaking of it burglary, 677. SHTTTTEES. See Shop-Shutters. removable by tenant, 197. SIDEBOAED, passes on conveyance, 436. SIDEWALK. See Pavement. in street, belongs to landowner, 88, 636. SIGNIFICATION. See Definition, Meaning. SIGNS, when passes by a conveyance of the realty, 394, 436, 437. trespass for removing a brass plate used as a sign, 636. is a fixture, 526. is not part of a building, 676. is trade fixture, 143. passes to assignee in bankruptcy, 508. SINKS, when removable by tenant, 143, 146, 165. pass to heir as against the executor, 309. SIZE. See Weight. as a test, 125, 154, 436, 448. as evidence of intent, 43. as evidence of movability, 107. 766 INDEX [BEFEBENCES ABE TO THE BOTTOM FAeSS.] SKY-LIGHT, a fixture, 8. SLANDEB, charging larceny of fixtures is not per te, 670. SMOKESTACK. See Chimney. mechanics' lien allowed for, 427. covered by insurance, 379. not subject to levy, 538. right of unpaid seller to, 105. SORGHUM-MILL. See Mill. passes on conveyance of realty, 391. SPEAKING-TUBE, covered by insurance, 379. SPECIAL ASSESSMENT. See Taxation. SPEEDEES, whether pass to the grantee with the realty, 441. SPINNING-FEAMES, whether pass to the grantee with the realty, 441. SPINNING-MACHINES. See Machinery. do not go to heir, 303. SP00LEE8, whether pass to the grantee with the realty, 441. SPREADERS, whether they pass to the grantee with the realty, 441. STABLE. See Uack, Buildings. not waste to break up stable floor, unless fixed, 604 alieno solo, 91. STACK. See Ejectment, SmoTcestack. STAGE AND SCENEET. See Scenery, Theater. pass on conveyance of land, 395. in a theater, whether subject to a mechanics' lien, 425. STAIES, when removable by tenant, 143, 146, 187. removal of, is waste, 127. STALLS, box stalls in a saloon removable as trade fixtures, 142. box stalls in a stable, removal of prevented by covenant to repair, etc., 236. STAMP ACTS, an agreement for sale of growing fruit is an agreement for the sale of an interest in land, requiring a stamp, etc., 375. fixtures are not goods, wares and merchandise, within, 517. lease stamp, when required, 517. INDEX. 767 [BBFEBBNCES ABE TO THE BOTTOM PAGES.] STANCHION-TIMBEES, of a barn, pass to grantee though temporarily severed, 456. STAEE DECISIS, doctrine of as applied to fixtures, 191. STATE LAND. See Pullio Land. STATION. Sea Building. STATUAEY, an example of constructive annexation, 30. well considered in Snedeker v. Warring, 39. passes by conveyance of realty, 38, 435. removable by tenant for life, 279. not subject to levy, 538. STATUTES. See their different titles. how affected by agreements, 221, 225. STATUTE OF 13 AND 14, CAR. II., Ch. 12, Sec. 1, etc. See SettU- ments. STATUTE OP 13 ELIZ., Ch. 5. See Emblements. mortgagor's retaining possession of fixtures after execution of mortgage upon the land not evidence of fraud, 512. STATUTE OF 43 ELIZ., Ch. 2. See Poor Bates. STATUTE OF FEAUDS. See Emblements, Evidence. agreements as to removal of things to be annexed to the realty may be by parol, 108, 109. agreements as to removal of fixtures may be by parol, 219, 513. sales of growing crops, whether within the 14th section, 370 et seq. sales of growing crops are within the 17th section, 371. sales of trees, grass, etc., whether within the 4th section, 372. sales of fixtures, whether within the 4th section, 513. parol promise to pay for improvements upon land, valid, 219, 514. otherwise as to a contract for the sale and delivery of possession of land and the improvements, 515. whether fixtures may by parol be excepted from the operation of a deed conveying land on which they are situated, 515. parol testimony inadmissible to include in a sale of land anything not appertaining thereto or parcel thereof, 516. sale of tenant's fixtures while annexed not a sale of goods, wares and merchandise within the 17th section, 517. if sale of fixtures void, mortgagee of land entitled to, 479. whether a building is prima fade realty within, 513. sale of building materials of a standing house is within, 515. contract to haul away materials of a standing barn not within, 515. sale of ice not within, 514. oral partition of line fence valid, 514, 515. oral mortgage of crop valid, 368, 371. 768 INDEX. [BEFBBENCBS ABB TO THE BOTTOM PAGES.] STATUTE OF FEAITDS, continued — if transfer of land Toid, crops do not pass, 340, 372. oral agreement on conveyance of land that a third person may have a marine railway is valid, 516. STATUTE OF LIMITATIONS, when a bar to trespass de bonis for fixtures, 634. when a bar to trespass de ionis for water-wheel reserved in a deed, 647. when a bar to trespass de bonis for timber, 634. when rails are personal property within, 619. when buildings are personal property within, 623, 643. STATUTES OF MAELBRIDGE AND GLOUCESTEE, 128, 130. STATUTE OP MEETON, 356. STAULKS, pass to the heir with the realty, 300. STEAM-ENGINE. See Ejectment, Larceny, Motive Power, Boiler, Gas Engine, Portable Engine. character of as personalty preserved by agreement, 485, transferred by bill of lading as against mortgagee of realty, 71. placed on land of another under agreement for its removal, is per- sonalty, 104, 115. afBxed by owner of freehold not subject to fi. fa., 537, 538, 543. afSzed by tenant subject to fi. fa., 245, 544. when removable by tenant, 140, 146, 160, 245. included in the term improvement, 245. right to as between vendor and vendee, mortgagor and mortgagee, etc., of the realty, 381, 387, 392, 396, 403, 418, 419, 420, 433, 434, 446, 449, 457, 466. held to pass on sale to enforce mechanics' lien, 425. right to, as between chattel mortgagee and mechanic claiming a Hen, 425. right to, as between landlord and assignee in bankruptcy, 510. as enhancing the ratable value of realty, 573, 574, 577, 578, 580. connected with non-ratable principal, whether ratable, 581. declaration in replevin for, 621. affidavit in replevin for, 621. whether subject of deodand, 680. not an alteration, 247. when a fixture by weight, 38. abandoned by tenant, belongs to the landlord, 208. between heir and executor, 273, 303. when mechanics' lien allowed for, 427. covered by insurance, 379. how taxable, 564. right to, in bankruptcy, 107. INDEX. 769 [EBFBEBNCBS ABB TO THE BOTTOM FAOESj STEAM-ENGINE, continued- replevin for, 622. right of seller on condition, 105. right of lessor as against a grantor of the land under contract, 622, STEAM-HAMMEE, right to, as between mortgagor and mortgagee of the realty, 468. STEAM-HEATEK. See Keater. is trade fixture, 139. STEAM HEATING PliANT. See. Heating Plant. not removable by tenant, 187. STEAM-TUB. See Tub. in a distillery, removable by a tenant, 140. when liable to distress, 551. STEEL-TAKD, whether ratable to the poor, 575. STEPS. See Stairway. when removable by tenant, 146, 164, 197. STILLS, when goods and chattels in order and disposition of bankrupt, 16, 507. when subject to fi. fa., 538. when subject to distress, 551. removable by tenant, 140. not fixed to freehold, go to executor, 296. set in brick-work pass to grantee of the land, 389. not fixed do not pass to grantee of the land, 433. removable by tenant pur autre vie, 266. STOCKHOLDEE. See Corporation. annexations made by, to corporate building are not removable, 87. STONE. See Accession, Gravestones, Pavement, Torribs, Altar-Stone. quarried for door step but not fitted and placed, a chattel, 54, 435. quarried for a tomb does not pass with the land, 55, 435. falling from cliffs, when becomes part of realty, 82. falling from the heavens, belongs to finder, 83. when piling up, is a severance, 54, 55, 64, 70. when passes with land, 397, 435, 457. STONE WALL. See Wall. influence of intention in determining whether a fixture, 44. STOOLS. See Chairs, Furniture. in a store, removable by tenant, 141. STOBE-FIXTITEES. See Meaning. meaning of, 8, 12, 379. STOEM-HOUSE. See Building. is a trade fixture, 143. 49 o 770 INDEX. [BEFEBENCES ABE TO THE BOTTOM PAGES.] STOVES. See Furniture, Banges, Heaters. when furniture, 449, 476. removable by tenant, 197. removable by incumbent, 286. when pass to the heir with the realty, 304. and pipe, when pass with the realty to grantee, 438, 449. in a leasehold house held to pass by a bequest of household furni- ture, 475. when not subject to distress, 552. when annexation of, confers a settlement, 586. mechanics' lien not allowed for, 429. STRAW, a part of the crop and belongs to the owners thereof, 180. STEAWBEEEY-BEDS. See Plants. waste for tenant to plow up, 163. STEEET, pipes and mains in are personalty, 104. pipes and mains in, how and where to be taxed, 559, 560. railway on, not personalty, 546. railway on, belongs to city, 88. railway on, mechanics' lien not allowed for, 431. railway on, how assessed and taxed, 562, 563. poles and wires on, are personalty, 113. poles and wires on, are covered by a mortgage, 463. poles and wires on, mechanics* lien allowed for, 431. bridge on, not exempt from taxation, 559. wharf on, how taxable, 558. pavement on, belongs to abutting lando"wner, 88. fixtures upon, how tax apportioned, 563. STRUCTTJEB. Sea Erection. what is, 379. STUBBLE-CANE, covered by a mortgage on the land, 349. STUFF-CHESTS, in paper-mill, not subject to extent, 538. SUBROGATION. See Equity. SUBSTITUTION. See Beplaced Fixtures. of fixtures by tenant, no right to remove, 146, 217, 241, 243, 409. right to make, gives no right to dismantle, 228. of ferry-boat, lien on old one does not attach to new, 419. SUGAR-CANE. See Crops. is subject to the law of emblements, 337. SUGAR-MILL. See Mill. passes with land, 391. sale of, IS within the Statute of Frauds, 515. INDEX. 771 [BEFlmSNCIS ABU TO THB BOTTOU PA0B8.] SUIT. See Action. SUMMEE-HOUSE. See BiiiUings. not removable by tenant, 193. SUN-DIAL, constructively annexed to tte realty and passing by a mortgage thereof, 38. larceny of, 673. SUEEENDEB. See Abandonment, 'Re-entry. assignment of lease is not, 527. a change in the amount of rent is not, 256. right to remove fixture is lost by, 207. no consideration for promise made after, in regard to removal of fixtures, 226. effect on right to crops, 359. SWINGS, mechanics' lien not allowed for, 430. SWITCHBACK EAILWAY, is a chattel, 12. SWITCHBOAED. See Electrie Fixtures. is a trade fixture, 143. does not pass with land, 437. taxable as personalty, 564. TABLES, seized on fi. fa. against tenant, 133. are removable fixtures, 139. as between heir and executor, 298. when pass with land, 395, 437. mechanics' lien not allowed for, 430. when fixtures by weight, 38. TABLES DOEMANT, as between landlord and tenant, 196. not subject to distress, 298, 549. pass to heir and not to executor, 298, 300. TANKS. See Casks, Tubs, Fats. when fixtures by weight, 38. are trade fixtures, 140. pa*s with the land, 389, 395. mechanics' lien allowed for, 427, 430. covered by insurance, 379. when not taxable as realty, 564. not ratable as realty, 577. incomplete, property in does not pass to buyer as landowner, 508. TAPESTEIES, when removable by tenant for life, 276, 277, 279. 772 INDEX [BDFEBBNCES ASB TO THB BOTIOU PAQSS.] TAPESTRIES, continued— as between executor and heir, 301, 309. pass to devisee, 474. TAXATION; TAXES. See Poor Hates, Lien. subject matter of, regulated by statute, 557. railroad rolling stock subject to sale as personalty to enforce collec- tion of taxes, 50, 566. buildings upon the land of another, how taxable, 19, 557, 561. machinery in mills, how taxable, 565. gas-pipes, how taxable, 559. "fixed and stationary personal property," 567. property must be treated as realty throughout the entire proceed- ings as to taxation, or as personalty, 567. whether rule between grantor and grantee and heir and executor applies, 564. dry-dock assessed as land, 12. ■ ' : fixtures on streets, how tax on apportioned, 563. fixtures on streets, special assessment Of, 563. tax on a structure includes the land, 565. exemption of a building from, extends to the land, 398. trees are not exempt as a crop, 338. failure to return fixtures as personal property as evidence of intent, 452. TEAZLES, whether the subject of emblements, 338. TELEGEAPH. See Wire, Posts. on public land, how taxed, 562. occupier of the posts and vrires ratable, 569, 578. apparatus as enhancing the ratable value of realty, 578. TELEPHONE. See Poles, Wires. on public land, how taxed, 562. in street, remains personal property, 113. subject to levy, 547. who occupier of, 570. TEMPOEAEY PURPOSE, meaning of term, 446, 555. TENANT. See Landlord and Tenant, Lease, Lien. has a special property in fixtures, etc., leased vrith a house, 75. bas a special property in materials, etc., severed by act of God, 75, 644. has a special property only for purpose of rebuilding, 75, 644. may not remove fixtures, parcel of the demised premises, to another building, after their severance by fire, 75. TENANT AT SUFFERANCE, not entitled to emblements, 353. INDEX. 773 [bofjobences abb to ths bottom faqes.] TENANT AT WILL, yihea loses right to remove fixtures, 213. TENANT BY CURTESY. See Tenant for Life. TENANT FOR LIFE, OE IN TAIL. See Trade Fixtures, Ornamental and Domestic Fixtures, Settled Land Act. cases between executor and heir, when of authority in this relation, 263. reason of distinction between the two relations, 263. agricultural fixtures erected by, not removable, 171. thinnings of fir trees belong to tenant for life, 264. right of tenant for Ufe, during his lifetime, to remove fixtures equal to that of his executor, 265. ' tenant pur autre vie, rights of, as to removal after death of cestui que vie, same as those of executor of tenant for life, 265. powers of tenants for life without impeachment of waste, 266, 267. may not commit malicious waste, 266, 606. tenants in dower, and by the curtesy, rights of as to fixtures, same as those of tenant for life, 267. tenant for life cannot charge the expense of improvements upon the inheritance, 523. tenant in tail, power of as to removing fixtures in his lifetime, 267. tenant in tail will not be enjoined from committing waste, unless . : malicious, 268. rights of, and their executors compared, 268. rights of issue in tail as to fixtures as against the executor, same as between executor and heir of tenant in fee, 298. cannot devise irremovable fixtures, 474. but may devise those which would pass to the personal representa- tive, e. g., tenant's or trade fixtures, 474. can not take timber to rebuild, 524. .. ;; right to timber severed by act of God, 75. can not bind devisee in remainder, 524. structures erected with permission of, are removable, 114. ' structures erected with permission of, remainderman not entitled to compensation for in condemnation proceedings, 8S." measure of damages for destruction of building, 640. liable in assumpsit to remainderman or reversioner, for severance of fixtures, 662. who can enjoin against waste, 606. . when a minor is entitled to relief against remainderman, for funds expended by guardian in building, 524. TBNANT-IN-COMMON. See Trespass, Grantor and Grantee, Mortgagor and Mortgagee, Title, Joint Tenants, Lien. cannot make improvements on the common- property without consent of co-tenants, etc., 92, 414. 774 INDEX. [BBFEBENCE3 i^B TO THB BOTTOM PAGES.] TENANT-IN-COM]VCON, continued- consent in such case held not to authorize the inference of an agree- ment as to removal, 113. consent in such case held to authorize the inference of an agreement as to removal, 115. questions on partition between, to be decided as if between grantor and grantee, 17, 380, 387. may remove trade fixtures, 413. of remainder, can not recover for improvements made as tenant, 524. when building by one is covered by a mortgage of the land, 410, 414. lien of, for improvements, passes to his mortgagee, 410. right to machinery on lot of one, 400. brick building owned by fewer than all, does not make it per- sonalty, 92. right to fixtures annexed as partners, 109. lessee becoming, does not lose his right to fixtures, 261. crops go with land on partition, 340. of crops, are owners of personalty, 372. estoppel of, 410, 519. entry by one, does not affect lessee's right of removal, 211. TENANT IN DOWEE. See Tenant for Life. TENANT PUE ATTTEE VIE. See Tenant for Life. right to improvements after death of cestui que vie, 265, 284. improvements by, go to heir of cestui que vie, 524. TENANT'S FIXTUEE8. See Fixtures, Trade Fixtures, Meaning. what are, 1,-5. are realty while unsevered, 45 reason of this rule, 45. TENEMENT. See Settlement. TESTIMONY. See Evidence. TESTS, what are, 13, 27. adaptation, 27, 440. annexation, 27, 37. common sense, 33. injury occasioned by removal, 438. intention, 30. long use in connection with land, 441. possibility that realty and machinery would bring more if sold together, 595. size, 125, 154, 436. weight, 436. value, relative to land, 136, 137, 221, 257, 463. INDEX. 775 [BBPERBNCES ABB TO THE BOTTOM PAGES.] THEATER. See Scenery, Stage, Opera Chairs. fixtures in, pass with land, 395, 464. mechanics' lien allowed for, 429. THINGS FIXED, distinguished from fixtures, 4. THRESHING-MACHINES, when not fixtures, 18. removable by agricultural tenant, 177. when pass to grantee with the realty, 391, 443. TIE-CHAINS, pass to grantee though temporarily severed, 456. TIE-UP-PLANKS, pass to grantee though temporarily severed, 456. TILES, when removable by tenant, 143, 146. TIMBER. See Trees, Building Materials. hauled upon the farm for a granary, not realty, 53. by annexation to freehold becomes realty, 84. cut on government land does not pass to the grantee with the land, 434. Injunction to restrain removal of, 605. does not pass with the land, 435. trover lies for, if cut pending suit in ejectment, 646. trover lies for, if out between execution sale and delivery of deed, 645. trover lies for, if cut in another state, 642. TITLE. See Merger, Seller and Buyer. effect of ownership in land and fixtures merging in one person, 109, 400, 402, 409, 413. what is unity of, 385, 400. effect of land and fixtures being owned by different, 92, 109, 112, 400, 410, 538, 620. to land, covenant not broken by grantor purchasing the crops of his former tenant, 482. TOMBS. See Grave Stones, Stones. ■ are in the nature of heir-looms, 320. who to bring action for injury thereto, 324. larceny of iron rails and brass fixed to, 671, 673. TOOLS. See Patterns. are not necessarily personalty, 469. do not pass with land, 434. TRACK. See Bailway. not removable by tenant, 146. tax on, includes the land, 565. 776 INDEX. [BE7EBENCES ABB TO THE BOTTOM PAGES.] TRADE FIXTURES. See Heir and Executor, Tenant 's Fixtures. are realty while annexed, 45, 122. reason why so considered, 45. early cases relating to, 129 et seq. Poole's Case, 133 et seq. grounds of the privilege in respect of, 134. intention, a material subject of inquiry, 135. privilege of removal most liberally construed in respect of, 138. what articles are removable by tenant as, 139. may be sold or mortgaged by tenant, 139. may be sold on fi. fa. against tenant, 144, 153. when the privilege of removing is allowed, 144 et seq. distinction between and buildings, 147. distinction between and buildings, contra, 148 et seq. no objection that two trades are carried on in same building, 162. what constitutes a trade, 157, 166-176. privilege of trade not confined to trade according to the construc- tion of statutes of bankruptcy, 158. keeping an inn a trade within rule as to trade fixtures, 157. so, as to working a coal mine, 158. 80, as to manufacturing cider, 158. BO, as to manufacturing salt, 158. so, as to brickmaking, 158. so, as to lime-buming, 158. 80, aa to milling, 158. quaere as to certain specified branches of husbandry and agricultural operations, 158, 159. See Agricultural Fixtures. mixed cases; trade connected with the enjoyment of the profits of land, 158 et seq. Lawton v. Lawton, 159. Dudley v. Warde, 159. other cases, 160. tenants of nursery and garden grounds, 162. mixed trade and domestic fixtures, 164. as between the personal representatives of tenants for life or in tail and remainderman, etc., 269 et seq. mixed cases, Lawton v. Lawton, 269. mixed cases, Dudley v. Warde, 272. trade buildings removable as between tenant for life or in tail and remainderman, etc., 273. exception does not extend to farm buildings, nor fences, 274. grounds of exception as between tenant for life and remainderman, 274. tests as to whether removable as between, 274-276. erected by incumbent of benefice, not removable, 289. are ratable to the poor, 580. INDEX. 777 [BSFSBENCBS ABB TO THB BOTTOM FAQBS.] TRADE FIXTTJEES, eontinued— of sub-lessee are lost by an agreement between lessor and lessee, 243. right to remove not affected by a covenant to repair, 241. whether agreement as to removal of, confers additional rights, 216, 224. whether may be removed by a tenant-in-conunon of the land, 413. when mechanics' lien allowed for, 432. effect on right of removal, if ownership of, and ownership of the land unite in the same person, 400, 402, 409. to be afSxed, chattel mortgage of, is valid, 144. TBADE-MABK, not a fixture, 13. TBAMWAY. See Bailway, Electric 'Railway. occupier of ratable, 569, 582. right to remove, 114. passes with land, 390. owned by tenant, subject to levy, 544. TBANSOMS, pass with land, 389. TBEES. See Statute of Frauds, Execution, Larceny, Product, Action, limber, Shrubs, Hedges, Nurseries. growing trees, etc., a part of the realty, 72, 333, 668. growing trees not subject to fi. fa., 541. trees, grass, etc., when constructively severed become personalty and pass to executor, 375. trees cut down by copy-holder belong to the land, 70. planted alieno solo, 78, 99, on boundary line between adjoining proprietors, 99. planted on another's land may remain personalty by agreement, 119. trees, shrubs, plants, etc., when removable by tenant, 162. growing in churchyard, belong to incumbent, 241. interest of tenant in, 75, 163, 164, 333. if severed, pass to personal representative, 334. not the subject of emblements, 337. severance and removal of, when restrained by injunction, 603, 605, 608, 612. whether subject of deodand, 679. . . agreement by tenant to replace, 248. severance of, by tenant, go to landlord, 75. severance of, unlawfully, pass with land, 457. severance of, unlawfully, when pass to grantee of land, 459. severance of, by wind, do not go to devisee, 474. severance of, by wind, proceeds do not go to Ufe tenant, 265. severance of, from mortgaged land, 71, 72. can not be used by life tenant to rebuild, 524. 778 INDEX. [BEFEBENCES ABB TO THE BOTTOM FAQES.] TKEES, continued— algaroba, removable by tenant, 164. can not be reserved by parol, 375. reservation of, in contract of sale of land, of no effect if no reserva- tion is made in the deed, 377. mechanics' Uen not allowed for, 13. not exempt from taxation as a crop, 338. measure of damages for removal of, 641. warranty of title to, is one of personalty, 376. TBESPASS. See Action, Pleading and Practice. TEIP-HAMMEB, right to, as between vendor and vendee of the realty, 381. TROUGHS. See Gutters. are removable by tenant, 187. TEOVEE. See Action, Pleading and Practice. TUBE. See SpeaTcing-Tube. TUBS. See Caslcs, Vats. removable by tenant, 197. when pass with land, 389, 434, 456. TUBF, unsevered, parcel of the freehold, 332. not removable by tenant, 197. trover lies for, 643. TURN-TABLES, whether an allowable deduction from the ratable value of realty, 578. TUEPENTINK See Scrape. properly classed with fructus indiistriales, 833. way-going crop of, when to be removed, 363. the subject of larceny, 669. TWISTERS, whether they pass to the grantee with the realty, 441. UNITED STATES. See Public Lands. UNITY. See Merger. UPON AND OVER. See Meaning. meaning of, 9. USAGE. See Custom. does not affect the right to bees and honey, 329. UTENSILS, what are within 34 Geo. HI., c. 20, § 27, 538. VALUATION, a stipulation that fixtures are to be taken at a valuation, shoiws that they are not otherwise to pass, 404. INDEX. 779 [BEPEEDNCES ABB TO THE BOTTOM PAGES.] "VALUATION, continued— in order to entitle tenant to the benefit of a covenant on the part of the landlord to pay for fixtures, etc., erected by the tenant, the erections must be such as are authorized by the lease, 524. where the agreement as to, is mutual, and the obligation of the lessee is discharged by bankruptcy, the lessor is discharged also, 526. a covenant to purchase improvements at an appraisal can have but one breach, and the assignee of the lessor, after breach, does not take the land chargeable with the covenant, 527. when appraisement by appraisers appointed by administrator will bind the heir, 527. ex parte appraisement not binding, 528. a court of chancery cannot compel the appointment of an appraiser, 528, nor can it enforce specific performance of a contract to purchase fixtures at a valuation, 528. but it may compel vendor to permit an entry to make valuation, 529. when compensation will be granted, 529. when the extent of lessor's liability may be ascertained in equity, 529. tune when the valuation shall be made, 530, 532. what articles are included in the stipulation that fixtures are to be taken at a valuation, 535. tenant's right to possession till paid for improvements, 531, 532. setting' aside appraisal for misconduct of appraisers, 532. covenant to renew does not necessarily imply a renewal with the same covenants, 532. appraised value when a lien, 532, 533. how determined, 530. how determined, when tenant retains possession, 532. how affected by failure to renew, 534. extension, for one day insufficient to defeat tenant's rights, 534. in condemnation proceedings, 530. in condemnation proceedings railway company has the same right as the lessor, 534. proceedings of sole arbitrator enjoined,' 528. when appointment of appraisers by the lessor is valid, 528. who are disinterested persons, 528. without hearing, invalid, 528. when lessor can maintain equitable action to determine, 530. option to purchase, 534. option to purchase, effect on claims of lessee's creditors, 534, 546. election once made, lessor cannot change, 534. right to, presumed waived after thirteen years, 535. tenant retaining possession must pay rent, 532, 780 INDEX. [BEFBBENCES ABB TO THE BOTTOUC PAGES.] VALUATION, continued- grantee of lessor, when liable, 527. assignee of lessor, when liable, 527. a liquidator's rights are no greater than tenant's, 535. what is not a suf&eient defense in an action, of trover brought by lessee, 535. VALUE, relative, of land and fixtures, as affecting the right of removal, 116, 136, 137, 221, 257, 388, 401, 463. as affecting articles covered by insurance, 379. VANE, does not pass with the land, 446. VAENISH-HOUSE. See Building. removable by tenant, 150. VASES, of marble, removable by tenant for life, 279. when pass with land, 396, 435. are not improvements, 10. VATS. See Caslcs, Tubs. when goods and chattels in order and disposition of bankrupt, 16, 507. may be removed by tenant during the term, 130, 131, 133, .139, 143. may be seized on fi. fa. against the tenant, 133. as between heir and executor, 299, 300. as between grantor and grantee of the realty, 433, 456. trover for a washing vat, 652. VAULT-DOOES, ETC., are immovables by destination, 34. vault removable as a trade fixture, 143, 150. replevin for, 625. VENDOR AND VENDEE. See Grantor and Grantee, Mortgagor and Mortgagee, Trespass, Trover, Seller and Buyer. VENDOR'S LIEN. See Lien. VENEERING, mechanics' lien allowed for, 429. VERANDA. See PorcK an erection, building and improvement, within the meaning of a covenant to yield up in repair, etc., 244. VESSEL. See Ship. VIDELICET CLAUSE, effect of, 251. VINES. See Grape Vines, Plants, Hops. VISES, annexed to work-bench by screws and bolts, not fixtures 381. goes to executor, 273. ' . ' INDEX. 781 [BBFBBBNCES ABB TO THQ BOTTOU PAQBS.] VOID DEED, crops do not pass, 340. VOID DEVISE, improTementa do not pass, 474. VOID SALE, of fixtures, effect as to mortgage on the land, 479. WAGONS, .in a sugar-mill, are not fixtures, 21. WAGON-SHED. See Building. erected by tenant for life of a farm, not removable, 171. WAGON-WAYS, materials for, whether personalty or realty by custom, 311. WAINSCOT, when removable by tenant, 146, 187, 189, 190, 196. not removable by tenant for life, 265. as between executor and heir, 298, 300, 309. not devisable by tenant for life or in tail, 474. removal of, is waste, 127. does not pass with land, 452. mechanics' lien allowed for, 429. right to, of unpaid seller reserving title, 105. WALK. See Gravel, Sidewalk, Favement. not removable by tenant, 194. WALLPAPER, mechanics' Uen allowed for, 429. WALLS. See Farty-Walls, Stone Walls, Fold Yard Wall. of brick, inclosing threshing-machine, not removable, 177. pass to heir with realty, 300. not waste to pull down unless fixed to the freehold, 604. WAKD. See Guardian and Ward. WABEHOTJSE. See Buildings. WAREANTT. See Covenants. of title to land, what is a breach of a covenant of, 482, 484, 660. of title to trees, is warranty of personal property, 376. WASHERS, in dye-house, right to as between tenants in common, 380. WASTE. See Game, Action, Equity. defined, 126, 264. by- destruction of dove-cote, 126, 604. Temoving presses not waste unless fixed, 126. by pulUng down house, 127, 265, 310, 602, 607. by destroying wall or partition, 127, 604. 782 INDEX. [BEFEBENCES ABE TO THE BOTTOM FAOBS.] WASTE, continued— by removing door and check posts, 127, 265. by removing furnace, vats, etc., 130, 265. by removing windows, 264. by removing wainscot, 265. by removing benches, 265. by plowing up strawberry beds, 163. how assigned, 604. not waste to remove things not annexed to the freehold, 265, 284, 604. tenant holding without impeachment of, 232. action of, at common law lay against whom, 128, 588, 589. Statutes of Marlbridge and Gloucester, 128, 129, 589. punishment for at common law, 589. damages recoverable under these statutes, 589. who punishable for under the above statutes, 590. action of depends upon privity, 590. who entitled to maintain the action of, 590. writ of, abolished in England, 590. writ of, obsolete in the tJnited States, 591. what is, by life tenant, 265. when removal of decayed structures is, 310, 611. does not lie for windmill upon posts, 15. injunction against, when allowed, by remainderman or executory devisee, 606. defeated party in ejectment will be enjoined, 603. WATEB-CLOSETS. See Closets. when removable by a tenant, 142, 146, 197. do not pass vrith the land, 452. WATEE-PIPBS. See Pipes. removable by tenant, 141, 165, 194. occupier of, ratable, 568. when do not pass with the land, 402. how taxable, 559, 560. are removable, 113. are personal property, 104. WATEE-WHEEL. See Moti/ve Power. a fixture passing to heir, and subject to dower, 297. and gears pass on sale of the realty, 390. right to under the N. Y. statute, as between heir and executor, 312. not subject to extent, 538. are fixtures, 526. WEIGHING-MACHINES. See Scales. right to, as between grantor and grantee of the realty, 434. whether an allowable deduction from the ratable value o"f realty, 575, 578. go to executor, 273. INDEX. 783 [BBrBBBNCES ABD TO THB BOTTOM PAOBS.] WEIGHT. See Size. when article a fixture by, 19, 38 et seq., 436, 443, 444, 543, 573, 578. WHAEP. See Dock, Pier, Barges. wharf-boat is a part of, 44. WHAT CHEEB HOUSE, ■ name of not a fixture, 13. WHEEL, of a forge or mill, not subject of deodand, 679. WIDOW. See Dower, Bomestead, Tenant for Life. WIFE. See Entirety, Husband and Wife. WILL. See Bequest, Devisee, Heir and Executor, Legacy, Void Devise. WILLOWS, whether they pass to grantee with the realty, 441. WIND. See Severance. WINDING-SHEET, property in, remains in executor, 325. WINDLASS, in slaughter-house, passes on conveyance of the realty, 391. WIND-MILL. See Pump. post-wind-mill, not afSxed to realty, removable by tenant, 15. post-wind-mill, waste does not lie for, 15. poat-wind-mill, settlement not gained by taking, 15, 16, 583. right to vote conferred by holding, 15, 586. sail of, whether subject of deodand, 679. when not part of the realty, 107. passes with land, 393, 396. mechanics' lien allowed for, 429. WINDOW-CASEMENT, larceny of, 671. WINDOWS. See Glass. parcel of freehold, and pass with the house, 45, 453. not subject to distress, 551. lent to tenant by landlord, remain the property of landlord, 188. quaere as to whether removable by tenant, 188. quaere as to whether a plate-glass shop front is a window, 245. not devisable by tenant for life or in tail, 474. not removable by tenant for life, 264. as betweien heir and executor, 298, 456. as between grantor and grantee, 455. not subject of larceny, 667. WINDOW-SASHES. See Sash. larceny of, 671. right of tenant to remove, 188. right of unpaid seller reserving title, 105. 784 INDEX. [BEFEBBNCES ABO TO TBS BOTTOM FAGSS.] WINDOW SCREENS, pass with the land, 389. WINDOW-SHUTTEES. See Shutters, Shop-Shutten. removable by incumbent, 286. pass to the heir with the realty, 300. when part of a dwelling in a case of burglary, 676, 677. WINE-PLANTS. See Plants. trover for, 650. WING. See Addition. WIBES. See Electrio Fixtures, Poles, Sailway, Street, Telegraph, Tele- phone. removable by lessee, 143, 413, 417. pass vfith realty, 396, 397. mechanics' lien allowed for, 429, 431. not subject to levy, 538, 546. how taxable, 560, 562. who is an occupier of, 570. WIEING. See Electrio -Fixtures. passes to grantee, 449. WOOD. See Timier, Trees. cut on land does not pass to the grantee, 434, 435. WOOD-CUTTING MACHINE, portable, a mere chattel, 20. does not pass with the realty to the grantee, 435. WORK DONE AND FIXED. See Meaning. meaning of, 8. WORM, in distillery, removable by tenant, 140. when subject to distress, 551. YARD FIXTURES. See Meaning. what are, 12. KP 636 E9^ 1905 Author Vol. Ewell, Max shall Davis Title Copy A Treatise on the law of fix- — ■ — -tiiHdfi