c.fc 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 ^-
 
 CASES ON THE LAW OF PROPERTY 
 
 VOL. I. 
 
 PERSONAL PROPERTY. 
 
 
 By Harry A. Bigelow, Professor of Law in the 
 University of Chicago. 
 
 VOL. n. 
 
 RIGHTS IN ANOTHER'S LANDS. 
 
 
 By Harry A. Bigelow. 
 
 VOL. in. 
 
 TITLES TO REAL PROPERTY. 
 
 
 By Kalpli W. Aigler, I'rofessor of Law in the 
 University of Michigan. 
 
 VOL. IV. 
 
 FUTURE INTERESTS. 
 
 
 By Albert M. Kales, Professor of Law in Har- 
 vard University. 
 
 VOL. V. 
 
 WILLS, DESCENT, AND ADMINISTRA- 
 
 
 TION. 
 
 
 By George P. Costigan, Jr.. Professor of Law in 
 Northwestern University. 
 
 Big.Pebs.Prop. (il)
 
 CASES ON THE LAW OF PROPERTY 
 
 VOLUME 1 
 
 PERSONAL PROPERTY 
 
 BY HARRY A. BIGELOW 
 
 PROFESSOE OF LAW IN THE UNIVEESITT OF CHICAGO 
 
 AMERICAN CASEBOOK SERIES 
 
 WILLLMI R. VANCE 
 
 GENEBAL EDITOB 
 
 ST. PAUL 
 
 WEST PUBLISHING COMPANY 
 1917 
 
 671009
 
 Copyright, 1917 
 
 BY 
 
 WEST PUBLISHING COMPANY 
 (Big.Pebs.Prop.) 
 
 T 
 
 1*1 n
 
 THE AMERICAN CASEBOOK SERIES 
 
 The first of the American Casebook Series, Mikell's Cases on Crim- 
 inal Law, issued in December, 1908, contained in its preface an able 
 argument by Mr. James Brown Scott, the General Editor of the Se- 
 ries, in favor of the case method of law teaching. Until 1915 this 
 preface appeared in each of the volumes published in the series. 
 But the teachers of law have moved onward, and the argument 
 that was necessary in 1908 has now become needless. That such 
 is the case becomes strikingly manifest to one examining three im- 
 portant documents that fittingly mark the progress of legal education 
 in America. In 1893 the United States Bureau of Education pub- 
 lished a report on Legal Education prepared by the American Bar As- 
 sociation's Committee on Legal Education, and manifestly the work 
 of that Committee's accomplished chairman, William G. Hammond, 
 in which the three methods of teaching law then in vogue — that is, by 
 lectures, by text-book, and by selected cases — were described and com- 
 mented upon, but without indication of preference. The next report 
 of the Bureau of Education dealing with legal education, published 
 in 1914, contains these unequivocal statements : 
 
 "To-day the case method forms the principal, if not the exclusive, 
 method of teaching in nearly all of the stronger law schools of the 
 country. Lectures on special subjects are of course still delivered in 
 all law schools, and this doubtless always will be the case. But for 
 staple instruction in the important branches of common law the case 
 has proved itself as the best available material for use practically ev- 
 erywhere. * * * The case method is to-day the principal method 
 of instruction in the great majority of the schools of this country." 
 
 But the most striking evidence of the present stage of development 
 of legal instruction in American Law Schools is to be found in the 
 special report, made by Professor Redlich to the Carnegie Foundation 
 for the Advancement of Teaching, on "The Case Method in American 
 Law Schools." Professor Redlich, of the Faculty of Law in the Uni- 
 versity of Vienna, was brought to this country to make a special study 
 of methods of legal instruction in the United States from the stand- 
 point of one free from those prejudices necessarily engendered in 
 American teachers through their relation to the struggle for supremacy 
 so long, and at one time so vehemently, waged among the rival sys- 
 tems. From this masterly report, so replete with brilliant analysis 
 
 (V)
 
 Vi PREFACE 
 
 and discriminating comment, the following brief extracts are taken. 
 Speaking of the text-book method Professor Redlich says: 
 
 "The principles are laid down in the text-book and in the profes- 
 sor's lectures, ready made and neatly rounded, the predigested essence 
 of many judicial decisions. The pupil has simply to accept them and 
 to inscribe them so far as possible in his memory. In this way the 
 scientific element of instruction is apparently excluded from the very 
 first. Even though the representatives of this instruction certainly do 
 regard law as a science — that is to say, as a system of thought, a group- 
 ing of concepts to be satisfactorily explained by historical research and 
 logical deduction — they are not willing to teach this science, but only 
 its results. The inevitable danger which appears to accompany this 
 method of teaching is that of developing a mechanical, superficial in- 
 struction in abstract maxims, instead of a genuine intellectual probing 
 of the subject-matter of the law, fulfilling the requirements of a 
 science." 
 
 Turning to the case method Professor Redlich comments as follows : 
 '"It emphasizes the scientific character of legal thought ; it goes now 
 a step further, howev'er, and demands that law, just because it is a 
 science, must also be taught scientifically. From this point of view it 
 very properly rejects the elementary school type of existing legal edu- 
 cation as inadequate to develop the specific legal mode of thinking, as 
 inadequate to make the basis, the logical foundation, of the separate 
 legal principles really intelligible to the students. Consequently, as the 
 method was developed, it laid the main emphasis upon precisely that 
 aspect of the training which the older text-book school entirely neg- 
 lected — the training of the student in intellectual independence, in in- 
 dividual thinking, in digging out the principles through penetrating 
 analysis of the material found within separate cases ; material which 
 contains, all mixed in with one another, both the facts, as life creates 
 them, which generate the law, and at the same time rules of the law 
 itself, component parts of the general system. In the fact that, as has 
 been said before, it has actually accomplished this purpose, lies the 
 great success of the case method. For it really teaches the pupil to 
 think in the way that any practical lawyer — whether dealing with writ- 
 ten or with unwritten law — ought to and has to think. It prepares the 
 student in precisely tlie way which, in a country of case law, leads to 
 full powers of legal understanding and legal acumen; that is to say, 
 by making the law pupil familiar with the law through incessant prac- 
 tice in the analysis of law cases, wdiere the concepts, principles, and 
 rules of Anglo-American law are recorded, not as dry abstractions, but 
 as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating, 
 social and economic life of man. Thus in the modern American law 
 school professional practice is preceded by a genuine course of study, 
 the methods of which are perfectly adapted to the nature of the com- 
 mon law."
 
 PREFACE Vll 
 
 The general purpose and scope of this series were clearly staled in 
 the original announcement : 
 
 "The General Editor takes pleasure in announcing a series of schol- 
 arly casebooks, prepared with special reference to the needs and limi- 
 tations of the classroom, on the fundamental subjects of legal educa- 
 tion, which, through a judicious rearrangement of emphasis, shall pro- 
 vide adequate training (Combined with a thorough knowledge of the 
 general principles of the subject. The collection will develop the law 
 historically and scientifically ; English cases will give the origin and 
 development of the law in England ; American cases will trace its ex- 
 pansion and modification in America ; notes and annotations will sug- 
 gest phases omitted in the printed case. Cumulative references will be 
 avoided, for the footnote may not hope to rival the digest. The law 
 will thus be presented as an organic growth, and the necessary con- 
 nection between the past and the present will be obvious. 
 
 "The importance and difficulty of the subject as well as the time that 
 can properly be devoted to it will be carefully considered so that each 
 book may be completed within the time allotted to the particular sub- 
 ject. * * * If it be granted that all, or nearly all, the studies re- 
 quired for admission to the bar should be studied in course by every 
 student — and the soundness of this contention can hardly be seriously 
 doubted — it follows necessarily that the preparation and publication of 
 collections of cases exactly adapted to the purpose would be a genuine 
 and by no means unimportant service to the cause of legal education. 
 And this result can best be obtained by the preparation of a systematic 
 series of casebooks constructed upon a uniform plan under the super- 
 vision of an editor in chief. * * * 
 
 "The following subjects are deemed essential in that a knowledge of 
 them (with the exception of International Law and General Juris- 
 prudence) is universally required for admission to the bar: 
 
 Administrative Law. Evidence. 
 
 Agency. Insurance. 
 
 Bills and Notes. International Law. 
 
 Carriers. Jurisprudence. 
 
 Contracts. Mortgages. 
 
 Corporations. Partnership. 
 
 Constitutional Law. Personal Property. 
 
 Criminal Law. did <.. f ^^' ^^"' 
 
 „ . . , „ , Real Property. J. 2d " 
 
 Crimmal Procedure. (_ 3d 
 
 Common-Law Pleading. Public Corporations. 
 
 Conflict of Laws. Quasi Contracts. 
 
 Code Pleading. Sales. 
 
 Damages. Suretyship. 
 
 Domestic Relations. Torts. 
 
 Equity. Trusts. 
 
 Equity Pleading. Wills and Administration.
 
 Vin PREFACE 
 
 "International Law is included in the list of essentials from its in- 
 trinsic importance in our system of law. As its principles are simple 
 in comparison with municipal law, as their application is less technical, 
 and as the cases are generally interesting, it is thought that the book 
 may be larger than otherwise would be the case. 
 
 "The preparation of the casebooks has been intrusted to experienced 
 and well-known teachers of the various subjects included, so that the 
 experience of the classroom and the needs of the students will furnish 
 a sound basis of selection." 
 
 Since this announcement of the Series was first made there have 
 been published, or put in press, books on the following subjects: 
 
 Administrative Law. By Ernst Freund, Professor of Law in the 
 
 University of Chicago. 
 Agency. By Edwin C. Goddard, Professor of Law in the University 
 
 of Michigan. 
 mils and Notes. By Howard L. Smith, Professor of Law in the Uni- 
 versity of Wisconsin, and William U. Moore, Professor of Law 
 
 in the Columbia University. 
 Carriers. By Frederick Green, Professor of Law in the University of 
 
 Illinois. 
 Conflict of Lazi'S. By Ernest G. Lorenzen, ProfesSQr of Law in the 
 
 University of Minnesota. 
 Constitutional Law. By James Parker Hall, Dean of the Faculty of 
 
 Law in the University of Chicago. 
 Corporations. By Harry S. Richards, Dean of the Faculty of Law in 
 
 the University of Wisconsin. 
 Criminal Laiv. By William E. Mikell, Dean of the Faculty of Law in 
 
 the University of Pennsylvania. 
 Criminal Procedure. By William E. Mikell, Dean of the Faculty of 
 
 Law in the University of Pennsylvania. 
 Damages. By Floyd R. Mechem, Professor of Law in the University 
 
 of Chicago, and Barry Gilbert, Professor of Law in the Uni- 
 versity of Illinois. 
 Equity. By George H. Boke, Professor of Law in the University of 
 
 California. 
 Insurance. By W. R. Vance, Dean of the Faculty of Law in the 
 
 University of Minnesota. 
 
 Legal Ethics, Cases and Other Authorities on. By George P. Costigan, 
 Jr., Professor of Law in the Northwestern University. 
 
 Partnership. By Eugene A. Gilmore, Professor of Law in the Uni- 
 versity of Wisconsin. 
 
 Persons (including Marriage and Divorce). By Albert M. Kales, Pro- 
 fessor of Law in the Northwestern University, and Chester G. 
 Vernier, Professor of I<aw in tlie University of Illinois.
 
 PREFACE IX 
 
 Pleading (Common Lazv). By Clarke B. Whittier, Professor of Law 
 in the Stanford University, and Edmund M. Morgan, Professor 
 of Law in the University of Minnesota. 
 
 Property (Titles to Real Property). By Ralph W. Aigler, Professor 
 of Law in the University of Michigan. 
 
 Property (Personal). By Harry A. Bigelow, Professor of Law in the 
 L'niversity of Chicago. 
 
 Property (Wills, Descent, and Administration). By George P. Costi- 
 gan, Jr., Professor of Law in the Northwestern University. 
 
 Qtiasi Contracts. By Edward S. Thurston, Professor of Law in the 
 University of Minnesota. 
 
 Sales. By Frederic C. Woodward, Professor of Law in the University 
 of Chicago. 
 
 Suretyship. By Crawford D. Hening, Professor of Law in the Uni- 
 versity of Pennsylvania. 
 
 Torts. By Charles M. Hepburn, Professor of Law in the University 
 of Indiana. 
 
 Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer- 
 sity of New York. 
 
 IVills and Administration. By George P. Costigan, Jr., Professor of 
 Law in the Northwestern University. 
 
 It is earnestly hoped and believed that the books thus far published 
 in this series, with the sincere purpose of furthering scientific training 
 in the law, have not been without their influence in bringing about a 
 fuller understanding and a wider use of the case method. 
 
 The following well-known teachers of law are at present actively 
 engaged in the preparation of casebooks on the subjects indicated be- 
 low: 
 Edward W. Hinton, Professor of Law in the University of Chicago. 
 
 Subject, Evidence. 
 Arthur L. Corbin, Professor of Law in the Yale University. Subject, 
 
 Contracts. 
 James Brown Scott, Professor of International Law in the Johns 
 
 Hopkins University. Subject, International Law. 
 A. M. Catlicart, Professor of Law in the Stanford University. Sub- 
 ject, Code Pleading. 
 Albert M. Kales, Professor of Law in the Northwestern University. 
 Subject, Property. 
 
 William R. Vance, 
 
 General Editor. 
 Mat, 1917.
 
 AUTHOR'S PREFATORY NOTE 
 
 It is perhaps an open question whether, in the first year course in 
 property, cases dealing with possession should precede or follow those 
 dealing with the acquisition of ownership. The author, after experi- 
 menting with hoth orders, has found the order here adopted more sat- 
 isfactory personally. At the same time the possibility of taking up 
 first the acquisition of ownership has been borne in mind, and the 
 cases on that topic have been selected and arranged in the light of 
 that possibility. The chapter dealing with the forms of actions may 
 seem unnecessarily long. The relation between the so-called substan- 
 tive rights and forms of action is, however, so intimate that the stu- 
 dent's attention cannot be too soon called thereto ; and the course in 
 personal property not only gives a good opportunity for bringing out 
 that relation in connection with property rights, but may also well 
 serve as a general introduction to the subject of the forms of common 
 law actions. 
 
 In the preparation of the cases the names and arguments of the at- 
 torneys have been regularly omitted. Other omissions are indicated 
 by stars. The author's statements of fact or additions to the text of 
 the decisions are in brackets. 
 
 Harry A. Bigelow. 
 The University of Chicago Law School, 
 May 16, 1917. 
 
 (XX)*
 
 TABLE OF CONTENTS 
 
 CHAPTER I 
 
 Page 
 Distinction Between Real and Pebsonal Pkopertt 1 
 
 CHAPTER II 
 Rights op Action Based on Possession ob on Owneeship 4 
 
 CHAPTER III 
 
 POSSESSOBY INTEBESTS IN CHATTELS 
 Section 
 
 1. Finder 25 
 
 2. Bailor and Bailee 43 
 
 I. In general 43 
 
 II. Lien 48 
 
 (A) Scope of Lien 48 
 
 (B) When Good Against Others than the BaUor 75 
 
 (0) Loss of Lien 97 
 
 III. Pledge 119 
 
 CHAPTER IV 
 Acquisition of Ownebship 
 
 1. Mere Taking of Possession 141 
 
 2. Adverse Possession 150 
 
 3. Accession 160 
 
 4. Confusion 195 
 
 5. Judgment 223 
 
 6. Satisfaction of Judgment 227 
 
 7. Gift 241 
 
 CHAPTER V 
 
 Fixtures 
 
 1. When Chattels Become Fixtures 264 
 
 2. Annexation to the Land of Another 301 
 
 I. Landlord and Tenant 301 
 
 II. Other Relations 335 
 
 3. Conflicting Rights Arising from the Ambiguous Nature of Fixtures. .. 352 
 
 CHAPTER VI 
 
 Emblements 3S1 
 
 Big.Pebs.Pbop. (xiii)*
 
 TABLE OF CASES 
 
 [TnXES OF CASES FEINTED HEREIN AEE SET IN OBDINABT TYPE. CASES CITED IN 
 
 FOOTNOTES ABE INDICATED BY ITALICS. WHEBE SMALL CAPITALS 
 
 Afi£ USBO, THS CASE IS BEFEBBED TO IN THE TEXT] 
 
 Page 
 
 Abrahamg v. Tappe 380 
 
 Adams V. Burton 147 
 
 Ad<jms V. Meyers 207 
 
 Adams Machine Co. v. Interstate 
 
 Building, etc., Ass'n 360 
 
 Aldine Mfg. Co. v. Phillips 74 
 
 Aldrich V. Parsons 344 
 
 Allen V. Allen 258 
 
 Allen V. Smith 10.5 
 
 Altliause, Matter of 3 
 
 Ames V. Palmer 23 
 
 Andreics v. Keith 45 
 
 Angus V. McLachlan 119 
 
 Anonymous 17 
 
 Anonymous 177, 235, 245, 247 
 
 Armory v. Drtamirie 25 
 
 Aemoby v. Delamibie 9, 13, 39 
 
 Armroyd v. Williams 22'.i 
 
 Astbury, Ex parte 276 
 
 Atwatcr v. Tupper 234 
 
 Avery v. Uackley 117 
 
 Ayre v. Eixson 219 
 
 Bacon V. Klmmel 240 
 
 liaker v. McClurg 309 
 
 Baltintore Marine Ins. Co. v. Dal- 
 
 rymple 123 
 
 Barker v. Bates 29 
 
 Barwick v. Barwick 15 
 
 Beach v. Schmultz 214 
 
 Beadle v. Hunter & Garrett 1.53 
 
 lieldon V. Perkins 1.36 
 
 Berkshire Woollen Co. v. Proctor 97 
 
 Beits v. Lee 179 
 
 Bevan v. Waters 62 
 
 Binns v. Pigot 89 
 
 Bird V. Georgia R. R 83 
 
 Bird of Paradise, The 119 
 
 Black V. Breniuin 72 
 
 Blackman v. Pierce 115 
 
 Blades V. Uiggs 149 
 
 Blake v. Nicholson 70 
 
 Bleaden v. Hancock 66 
 
 Bligh V. Brent 3 
 
 Bloss V. Holman 17 
 
 Boardmau v. Sill 108 
 
 Bosttrick v. Leach 297 
 
 Bowen v. Sullivan 32 
 
 Bra^kett v. Goddard 383 
 
 Bradley v. Bailey 392 
 
 Biq.Pebs.Pbop. (XV) 
 
 Page 
 
 Bradley v. Copley 20 
 
 Brennan v. Whitaker 352 
 
 Brewster v. Warner 15 
 
 Bridges v. Hawkesworth 26 
 
 Bbidgb>s v. Hawkesworth 31 
 
 Briygs v. Boston d L. R. Co 87 
 
 Bbinsmead v. Harbison 229 
 
 British Empire Shipping Co. v. 
 
 Somes 71 
 
 Bbittain v. McKay 383 
 
 Broadwood v. Granara 87 
 
 Broadwood v. Granara 91 
 
 Brown v. M'Gran 74 
 
 Broicn V. Xorthcutt 207 
 
 Brown v. Reno Electric IJght & 
 
 Power Co 309 
 
 Bryan v. Weems 157 
 
 Bryant v. Ware 221 
 
 Bunn V. Markham 253 
 
 Burrough v. Ely 74 
 
 Bush, Ex parte 49 
 
 Buster v. Newkirk 143 
 
 Cain V. Moon 255 
 
 Caldwell v. Tutt 105 
 
 Caldwell v. Wilson 259 
 
 Campbell V. Roddy 362 
 
 Cannon v. Bare 341 
 
 Cantwell v. Terminal R. Ass'n of 
 
 St. Louis 70 
 
 Capehart v. Foster 286 
 
 Carlin v. Rittcr 26-j 
 
 Carpenter v. Griffin 195 
 
 Carrel v. Early 239 
 
 Cartwbioht v. Green 32 
 
 Case V. Allen 76 
 
 Causey v. Empire Plaid Mills. . . . 360 
 
 Central Branch R. Co. v. Fritz. . . 195 
 
 dmtury Throwing Co. v. Mullcr. . 79 
 
 Chapin v. Freeland 150 
 
 Chapman v. Allen 48 
 
 Chase v. Corcoran 42 
 
 Chase v. We.stmore 65 
 
 Chase v. Westmore 70 
 
 Chicago & N. W. R. Co. v. Jenk- 
 ins 68 
 
 Claridge v. South Staffobd- 
 
 SHiEE Tramway Co 11 
 
 Clark V. Banks ,390 
 
 Coal Co. v. Coai, Co 169
 
 XVI 
 
 TABLE OF CASES 
 
 Page 
 
 CJochrane v. Moore 2-41 
 
 CooGs V. Bebnard 14 
 
 Collamore v. GiUis 309 
 
 Colorado Min. Co. v. Turck lGf> 
 
 Colquitt V. Eirkman 79 
 
 Cook V. Kane 92 
 
 Cooper V. Woolfitt 3S6 
 
 Corinth Engine <C- Boiler Works v. 
 
 Mississippi Cent. K. Co 83 
 
 COBTELYOU V. LaNSINO 99 
 
 Covington v. 'Seiohcrgcr 93 
 
 Cowell V. Simpson 117 
 
 Culling v. Tuffnell 304 
 
 Curran v. Smith 282 
 
 CuBTig V. Groat 179 
 
 Dana v. Burke 282 
 
 Danforth v. Pratt 100 
 
 Daniels v. Brown 213 
 
 Danielson v. Roberts 33 
 
 Dartmouth College v. Internation- 
 al Paper Co 165 
 
 Dartmouth College v. Internation- 
 al Paper Co 174 
 
 Datjbignt v. Duval 23, 101 
 
 Davis V. Bowsher 51 
 
 Davis V. Emery 297 
 
 Dcaderick v. Oulds 25 
 
 Dean v. Allaly 305 
 
 Debow V. Colfax 39S 
 
 Deeze, Ex parte 53 
 
 Deitz V. Field 230 
 
 Demainbby v. Metcalfe 121 
 
 Dennett v. Hopkinson 385 
 
 Denver <f R. O. H. Co. v. HiU 83 
 
 Devereux v. Fleming 72 
 
 De Vinne v. Rianhard 66 
 
 Devol V. Dye 251 
 
 D'Eyncourt v. Gregory 291 
 
 Dirks V. Richards 110 
 
 Dollar V. Roddenbery 398 
 
 Domestic Seivi/ng Mach. Co. v. 
 
 Walters 94 
 
 Donald v. Suckling 135 
 
 DOWS v. MOREWOOD 115 
 
 Dows V. Morewood 115 
 
 Drake, Ex parte 227 
 
 Drew v. Hagerty 25i 
 
 Dudley V. Hurst 282 
 
 Dubant Mining Co. v. Percy 
 
 Mining Co 168 
 
 Durfee v. Jones 37 
 
 Eaton V. Langley 160 
 
 Edghill v. Mankey 387 
 
 Ellis V. Wire 182 
 
 Elices V. Brigg Gas Co 29 
 
 Elwes V. Maw 303 
 
 Enoch V. Wehrkamp 51 
 
 Evans v. Roberts 385 
 
 Ewarts v. Kerr 74 
 
 Excelsior Brewing Co. v. Smith. 
 
 Page 
 . 376 
 
 Fabrant v. Thomtson 225 
 
 Fechet V. Drake 28.? 
 
 Feder v. Tan Winkle 270 
 
 Ferguson v. Miller 146 
 
 Ferguson v. Ray 35 
 
 Ferriss v. Sciireineb 104 
 
 First Nat. Bank of Elgin v. 
 
 Schween 210 
 
 First Nat. Banic of Louisville v. 
 
 Boyce 136 
 
 Fisher v. Brown 193 
 
 Fiteh V. Newberry 79 
 
 Pitch v. Newberry 84 
 
 Fletcher v. Fletcher 258 
 
 Florala Sawmill Co. v. Parrish. . 392 
 
 Flower's Case 248 
 
 Flynt V. Conrad 383 
 
 Foley v. Hill 201 
 
 Folsom V. Barrett Ill 
 
 Forbes v. Marsh 21 
 
 Foreman v. Neilson 236 
 
 Forth V. Simpson 63 
 
 Foster v. Fidelity Safe Deposit 
 
 Co 36 
 
 Foster v. Warner 213 
 
 Fowler v. Parsons 115 
 
 Fuller V. Bradley 61 
 
 Fuller V. Tabor ^ 298 
 
 Fulton V. Norton 296 
 
 Galigher v. Jones 125 
 
 Oalland, In re.... 55 
 
 Gammon Theological Seminary v. 
 
 Rohbins 261 
 
 Gardner v. Ninety-Nine Gold 
 
 Coins 39 
 
 Gusaway v. Thomas 338 
 
 Gates V. Rifle Boom Co 174 
 
 GaUin V. Vaut 155 
 
 German Sav. Bank of Baltimore 
 
 City V. RensJiaw 136 
 
 Gibbs V. Estcy 298 
 
 GlLLETT V. WniTING 129, 130 
 
 Gilson V. Gwinn 78 
 
 Goddard v. WincJvell 29 
 
 Gotf V. Craven 238 
 
 Goff V. Kilts 147 
 
 Gordon v. Harper 18 
 
 Gordon v. Silber 95 
 
 Goss V. Emerson 119 
 
 Cough V. Wood 370 
 
 Graves v. Weld 392 
 
 Giawsliay v. Horn fray 63 
 
 Great SoutJiern Gas d Oil Co. v. 
 
 Lcgan Natural Gas £ Fuel Co. 219 
 
 Griffith V. Fowler 224 
 
 Grinnell v. Cook 97 
 
 GRYjres v. BOWEBEN 315 
 
 Guernsey v. Phinizy 29!)
 
 TABLE OF CASES 
 
 xvn 
 
 Page 
 
 Gustin V. Embury-Clarh Lumber 
 
 Co 165 
 
 Guthrie v. Jones 325 
 
 Guthrie v. Jones 290 
 
 GutUier V. Pacific Steam Whaling 
 Co 15 
 
 Hackett v. Amsden 204 
 
 Ball V. Pwkard 24 
 
 Hall V. Pillsbuni 207 
 
 Halliday v. Holgate 126 
 
 Hamaker v. Blanchard ^^- 
 
 HamUton v. Davis 149 
 
 Hamilton v. McLaughlin 112 
 
 EamJin v. Parsons 349 
 
 HAinioND V. Danielson 78 
 
 Hammond v. Danielson 76 
 
 Hanna v. Phelps 113 
 
 Harris v. Carson 300 
 
 Harris v. Woodruff 63 
 
 Haetley v. Hitchcock 72 
 
 Hartshorne v. Johnson 70 
 
 Hatch V. Atkinson 253 
 
 Heap v. Barton 317 
 
 Heavilon v. Heavilon 382 
 
 Hendrixson v. Cardwell 390 
 
 Henly v. Walsh 72 
 
 Herdic v. Young 164 
 
 Hesseltine v. Stockwell 220 
 
 Hillebrant v. Brewer 250 
 
 Hilton v. Woods 16S 
 
 Hobson V. Gorringe 355 
 
 Holbrook v. Chamberlin 321 
 
 Holdemess v. CoUinson 61 
 
 Holland v. Hodgson 358 
 
 Holland v. Hodgson 270 
 
 HoUv V. Huggeford 22 
 
 Hook V. Bolton 288 
 
 Hooper v. Goodwin 248 
 
 Hoover v. Epler 102 
 
 Hopewell Mills v. Taunton 
 
 Savings Bank 289 
 
 Hopper V. Smith 122 
 
 Horn V. Clark Hardware Co 327 
 
 Houghton v. Matthews 51 
 
 Hughes v. Cornelius 224 
 
 Hughes v. Lambert viUe Electric 
 
 Li-ght, Heat & Power Co 285 
 
 Hunt v. Bay State Iron Co 370 
 
 HuRD V. West 196 
 
 Hurlbert v. Brlgham 53 
 
 Illinois d St. L. R. & Coal Co. v. 
 
 Ogle 170 
 
 Irons v. Smallpiece 242 
 
 Irons V. SmaUpiece 251 
 
 Isaack v. Clark 41 
 
 Isle Royale Min. Co. v. Hertin... 171 
 
 Jackson v. Cummins 62 
 
 Jacobs v. Latour 63 
 
 Big.Pebs.Prop. — b 
 
 Page 
 
 ■Jacobs V. Latour 103 
 
 James & Xeer y. Plank 207 
 
 JaquUh v. American Express Co. 103 
 
 Jegon v. Vivian. 169 
 
 Jenkins v. Steanka 216 
 
 Jcrmyn v. Schueppenhauser 372 
 
 ■Johnson v. Smith 140 
 
 Johnston v. Fish 395 
 
 Jones V. Pearle 108 
 
 Joy V. Craicford 41 
 
 JuDSON V. Etheridge 62 
 
 Justice V. 'Sesquchoning Valley It. 
 Co 351 
 
 Kaufman v. Leonard 107 
 
 Keech v. Hall 397 
 
 Keeler v. Kceler 360 
 
 Keith V. De Bussigney 45 
 
 Kerford v. Mondel 110 
 
 Kerr v. Kingsbury 318 
 
 King V. Morris 342 
 
 King v. Otley 265 
 
 King v. Smith 153 
 
 KiBKMAN V. SHAWCROSS 65 
 
 Kirkm^n v. Shawcross 61 
 
 Kittredge v. Woods 382 
 
 K(/rbe v. Barbour 326 
 
 Kniger v. Wilcox 50 
 
 Lambert v. yicklass 103 
 
 Lanwnd v. Richard 97 
 
 Lane v. King 396 
 
 Lane v. Old Colony & F. R. 
 
 Co 70, 100 
 
 Langdon v. Buchanan 271 
 
 L<itham V. Attoood 392 
 
 Lawton v. Lawtan 341 
 
 Lawton v. Salmon 375 
 
 I.EAME V. Bray 20 
 
 Ledyard v. Hibbard 210 
 
 Lie V. Atkinson 17 
 
 Leland V. Gassett 344 
 
 Leonard v. Clough 296 
 
 IjiWIS V. MOTT . 134 
 
 Lewis v. Ocean Xav. & Piee Co. 378 
 
 Lewis V. Ocean Xav. & Pier Co.. . 318 
 
 LiCKBARROW V. MaSON 101 
 
 Liebe v. Battnwnn 255 
 
 Linahan v. Barr 309 
 
 Lindsay v. Witiotia £ St. P. R. Co 395 
 
 Lir>sky V. Borgmann 264 
 
 Little'dale v. Sc<i ith 144 
 
 I/ivermore v. White 35 
 
 Livingstone v. Rawyards Coai 
 
 Co 190 
 
 Loeschman v. Machin 21 
 
 London & Westminster Loan & 
 
 Discount Co. v. Drake 372 
 
 Lord V. Jones 66 
 
 Ijotan V. Cross 20 
 
 Loughran v. Ross 115
 
 xviu 
 
 TABLE OF CASES 
 
 Page 
 
 hovejoy V. Murray i238 
 
 Lurch V. Wilson 94 
 
 Lynde v. Parker 79 
 
 McAvoY V. Medina 36 
 
 McConnell v. Blood 273 
 
 McCulloush V. Irvine's Ex'rs 338 
 
 McEwen v. Troost 260 
 
 McFarland v. Wlieeler 97 
 
 McGhce V. Edwards 78 
 
 Mcllvane v. Uilton 97 
 
 Mackintosh v. Trotter 326 
 
 McRea v. Central Nat. Bank of 
 
 Troy 265 
 
 MoVaughters v. Elder 160 
 
 Mahonej' v. Martin 201 
 
 Maloolm v. Sims-Thompson Motor 
 
 Car Co 72 
 
 Malone v. Lebus 263 
 
 Maloney v. Kitvg 220 
 
 Maiott V. Price 344 
 
 Marks v. New Orleans Cold Stor- 
 age Co 74 
 
 Marsh v. Fuller 253 
 
 Marx V. Nclms 387 
 
 Massachusetts Nat Bank v. Shinn 376 
 
 Mathews v. Harsell 31 
 
 Mears v. Callendcr 306 
 
 Merby v. Green 27, 32, 37 
 
 Merry v. Green 39 
 
 Meux v. Jacobs 375 
 
 Jlexal V. Doiirborn 115 
 
 Meyers v. Sehemp 297 
 
 Miekle v. Douglas 380 
 
 Milicie v. Pearson 372 
 
 MiUer v. Adsit 21 
 
 Miller v. Dell 151, 154 
 
 Miller v. Hjde 230 
 
 JtiLLEK V. Mansfield OS 
 
 Miller v. Wilson 292 
 
 Minor v. Beveridge 128 
 
 Mitchell V. Bridfouan 350 
 
 Monti V. Bonus 291 
 
 Moore v. Robinson 8 
 
 Morey v. Uoyt 380 
 
 Morgan v. Powell 169 
 
 Muggridge v. Eveleth IS 
 
 Mulgrave v. Ogden 41 
 
 Mullelt V. Bradley 149 
 
 Murphy v. Dunham 140 
 
 Mtirphy v. S. C. d P. R. Co ISii 
 
 Xawahi v. Hakalau 392 
 
 Naylor v. Mangles 53 
 
 Ncsbitt V. St. Paul Lumber Co 193 
 
 Vew York Life Ins. Co. v. Alli- 
 son 291 
 
 Nicholson V. Chapman 55 
 
 'Siculette Lumber Co. v. People's 
 
 Coal Co 69 
 
 Noble V. Bosworth 295 
 
 I Page 
 
 I Noble V. Smith 251 
 
 Nohle V. SylV(:.'<ter 296 
 
 Norton v. Woodruff 197 
 
 Norway, The 113 
 
 Note 387 
 
 Oqden v. Stock 345 
 
 O'Neal V. Baker ' 9 
 
 Opperman v. Litthjohn 393 
 
 Osgood V. Hoiiard 344 
 
 Owirigs v. Estcs 288 
 
 Pabst Bretoing Co. v. Greenberg . . 
 
 Page v. Edwards 
 
 Painter v. Harding 
 
 Parker v. Copland 
 
 Patten v. Union Pac. R. Co 
 
 Peck V. Batcheldcr 
 
 Peck-Hammond Co. r. Walnut 
 Ridge School Dist 
 
 Peirce v. Goddard 
 
 Penton v. Robart 
 
 Peoria & Pekin Union R. Co. v. 
 United States Rolling Stock 
 Co 
 
 Peters Box rf Timber Co. v. Lesh 
 
 Philips V. Rubin-son 
 
 Pickebell v. ('arson 
 
 I'ickering v. Moore 
 
 Pierce v. Schr^ick 
 
 Pierson v. Post 
 
 Pine River Logging Co. v. Unit- 
 ed State.? 
 
 Pine River Logging £ Imp. Co. v. 
 United States 
 
 Polk £ Co. V. Melcnbacker 
 
 Poole's Case 
 
 Potter v. Cromwell 
 
 Powell v. Rich 
 
 Preston v. Neale 
 
 Pugh V. Arton 
 
 Pulcifer V. Page 
 
 11 
 306 
 140 
 259 
 
 S4 
 294 
 
 371 
 
 193 
 305 
 
 67 
 
 193 
 9 
 
 285 
 211 
 197 
 141 
 
 166 
 
 193 
 94 
 302 
 272 
 382 
 47 
 380 
 182 
 
 Rahm v. Domayer 293 
 
 Railroad Co. v. Morgan 281 
 
 Railway Co. v. Hutchins 186 
 
 Ratcliffe v. Davis 121 
 
 Ray V. Xoung 321 
 
 Reeder v. Sayre 391 
 
 Regina v.« North Staffordshibe 
 
 R. Co 284 
 
 Regina v. Roice 29 
 
 Rex v. Humphrey 64 
 
 Rex v. Wynne 32 
 
 Reynolds v. Ashby 371 
 
 Ridden v. Thrall 256 
 
 Ridden v. Thrall 252 
 
 Rivara v. Ohio 66 
 
 Robhins & Co. v. Gray 89 
 
 Robert Bros. v. Hurdle 394 
 
 Roberta v. Koehler 70
 
 TABLE OF CASES 
 
 XIX 
 
 Page 
 
 Roberts V. Wyatt 11 
 
 Robinson v. Bakkr 78 
 
 Hoiinson v. Baker SG 
 
 Roderick v. Sanhoni 291 
 
 Rogers v. Gilinger 300 
 
 Rooth V. Wilson 6 
 
 ROOTH V. AViLSOX ti 
 
 Rosenhaum v. Hayes IIT 
 
 T'ucker v. Donovan 102 
 
 Ruggles V. Walker 100 
 
 Rnshforth v. Hadfleld 60 
 
 RrssELL V. Richards 194 
 
 Russell V. Richards 361 
 
 Rtder v. Hatuaway 179, 212 
 
 St. Louis, I. If. d S. R. Co. V. 
 
 Bi^gs 15 
 
 St. Paul Boom' Co. v. Kemp 219 
 
 Salter v. Sample 344 
 
 Saltus V. Everett lOS 
 
 Sanders v. Davis 374 
 
 Havannah, F. d W. Co. v. Talbot. . S3 
 
 Scarfe v. Morgan 108 
 
 Schaaf v. Fries 123 
 
 Schneider v. Dayton 66 
 
 Schumacher v. Chicago & X. W. 
 
 R. Co 66 
 
 Scott V. Berkshire Co. Sav. Bank 263 
 
 Scudder v. Anderson 2S2 
 
 Seebaum v. Handy 106 
 
 Seeger v. Pettit 309 
 
 Sexton & Abbott v. Graham 203 
 
 Shapira v. Barney 334 
 
 Shaw V. Fergusrm 74 
 
 Sfieegog v. Perkins 252 
 
 Sheridan v. Presas 136 
 
 Shoecraft v. Bailey 97 
 
 Shoemaker v. Simpson 347 
 
 Silsbury v. McCoou 174 
 
 Singer Mfg. Co. v. London, etc., R. 
 
 Co 83 
 
 Single V. Schneider 183 
 
 Skinner v. Upshaw 49 
 
 Smart v. Sandars 74 
 
 Smith V. Bay State Sav. Bank... 2S8 
 
 Smith v. Dearlove 96 
 
 Smith V. O'Brien 63 
 
 Smith V. Plomer 21 
 
 Smith V. Smith 240, 253 
 
 SN YDEB V. Vatjx 164 
 
 Sollers v. SoHers 146 
 
 South Australian Ins. Co. v. Ran- 
 
 dell 197 
 
 South Staffordshire Water Co. v. 
 
 Sharman 28 
 
 SOVERN V. XORAN 33 
 
 Sowden v. Craig 354 
 
 Sparrow v. Pond 385 
 
 Sproul V. Sloan 130 
 
 Squire & Co. v. City of Portland. . 309 
 Standing v. Bowring 263 
 
 Page 
 
 State v. McCann 38 
 
 State V. Shaw 145 
 
 State v. Shevlix 105 
 
 Steinman v. Wilkins 64 
 
 Stephenson v. Little 215 
 
 StiUuian V. Hamer 351 
 
 Stone V. Quanl 213 
 
 StornTs V. Smith 76 
 
 Sutton V. Buck 4 
 
 Swan V. Bounies 54 
 
 Swift V. Qifford 145 
 
 Symmes v. Fbazier 58 
 
 Talty V. Freedman's Savings & 
 
 Trust Co 133 
 
 Tatum V. Sharpless 29 
 
 Teaff v. Hewitt 268 
 
 Terry v. Munger 234 
 
 Thacher v. Hannahs 51 
 
 Thames Iron Works Co. v. Pat- 
 ent Derrick Co 73 
 
 Thomas' Adm'r v. Lewis 253 
 
 Thompson v. Lacy 97 
 
 Thrcfall v. Borwick 93 
 
 Thresher v. East London Water- 
 
 TVorks 318 
 
 Thropp's .ippeal 374 
 
 Tippett & Wood v. Barhanl 366 
 
 TOWNE V. i^SKE 290 
 
 Trask v. Little 360 
 
 Tripp V. Hasceig 381 
 
 Tniistees ot Dartmouth College v. 
 
 'International Paper Co 165 
 
 Trustees of Dartmouth College v. 
 
 International Paper Co 174 
 
 TiithiU v. Wheeler 7 
 
 Tyson v. Post 298 
 
 United States v. LorcnREY.... 166 
 United States v. New Orleans 
 
 R. Co 304 
 
 United States v. Van Winkle. . 169 
 United States v. Waters-Pierce Oil 
 
 Co 193 
 
 Vail V. Weaver 270 
 
 Van Eman v. Stanchfield 140 
 
 Van Ness v. Pacard 306 
 
 Vaughan v. Providence <£ W. R. 
 Co 86 
 
 Waite V. Grubhe 253 
 
 Walker v. Crews 261 
 
 Wall V. Hinds 312 
 
 Wallace v. Woodgate 107 
 
 Ward V. Ayre 215 
 
 Ward V. Macauley 18 
 
 Ward v. Macauley 19 
 
 Ward V. Turner 25.3 
 
 Ware, In re 227
 
 XX 
 
 TABLE OF CASES 
 
 Page 
 Watruss v. First Bank of Cam- 
 bridge 318 
 
 Watts-Campbell Co. v. Yuenq- 
 
 LINQ 311 
 
 Weil & Uro. v. Silverstone 217 
 
 Wells V. Baits 213 
 
 Welsh V. Barnes IM 
 
 Went worth r. l^ay 58 
 
 Western Transp. Co. v. Barber. . 
 
 . 43, 102 
 
 Westgate v. Wi.\on .335 
 
 Wetiierbee v. Green 161, 188 
 
 Weymouth v. Cuica<30 & N. W. 
 
 R. Co 185 
 
 Wheeler v. Wlieeler 251 
 
 Whipple V. Button 127 
 
 White V. Arndt S24 
 
 White v. Gainer 114 
 
 White V. Griffin 23 
 
 ■rniite V. Martin 238 
 
 White V. Philbrick 238 
 
 White Enamel Refrigerator Co. v. 
 
 Knise .330 
 
 Whitehead v. Bennett 300 
 
 Whitmarsh v. Cutting .389 
 
 Whitnev v. Huntington 193 
 
 Whitney t. Peay 13G 
 
 Page 
 Wilensky v. Central of Georgia R. 
 
 Co 74 
 
 Williams v. AUsup 75 
 
 Williams v. Ashe. 136 
 
 Willia7iis V. Vanderbilt 380 
 
 Williamson v. J\'ew Jersey South- 
 ern Rij 282 
 
 Wilson V. Gwjton 59 
 
 Winchester v. Cbaiq 109 
 
 Winkfield, The 11 
 
 Winn V. In/jlchi/ 303 
 
 Winslow V. Bromich 2S1 
 
 Witt, In re 53 
 
 Woadson v. iXawtou 4 
 
 Wolf V. ^Summers 69 
 
 WOLFORD V. BaXTKR 3.32 
 
 Wolford V. Baiter 282 
 
 Wood V. Fisk 125 
 
 Wood V. Piersmi 42 
 
 Wooden-Ware Co. v. United States 190 
 
 Woodson V. rparce 10 
 
 Wright v. Du Bignon 315 
 
 Wright v. Skinner 169 
 
 Wynkoop v. Seal 132 
 
 Wystow's Case 301 
 
 York V. Oreenaugh 97 
 
 Young V. Hlchena 143
 
 CASES ON PROPERTY 
 
 PERSONAL PROPERTY 
 
 CHAPTER I 
 
 DISTINCTION BETWEEN REAL AND PERSONAL 
 PROPERTY 
 
 WILLIAMS, PERSONAL PROPERTY (Lith Ed.) pp. 1-6. 
 
 Property in English law is divided into two classes, real property 
 and personal property, and these are governed by very different rules. 
 This great classification has its origin in the fact that after the Xorman 
 Conquest land, then the main source of public wealth, became sub- 
 ject to the law of feudal tenure, which was not applied to moveable 
 things known as chattels or goods. * * * 
 
 Another diiference between fees and chattels was in the mode of 
 succession after death. Fee simple estates passed at common law to 
 the heir of the tenant who died possessed of them. And the heir was 
 ascertained from amongst the tenant's nearest blood relations by rules, 
 of which the most prominent preferred males to females in the same 
 degree of relationship, and of males equally related selected the eldest 
 as heir to the exclusion of all others. Originally, it would seem, the 
 heir was also entitled to his deceased ancestor's chattels for the pur- 
 pose of paying the ancestor's debts. But afterwards all title of an 
 owner of chattels passed, on his death, either to the persons whom he 
 had appointed to perform his will and who were called his execu- 
 tors, or if he died intestate, then to the administrator of his effects, 
 appointed in pursuance of a statute of Edward III from among the 
 next friends of the deceased by the ecclesiastical authorit}', to whom 
 the administration of intestates' effects had been previously commit- 
 ted. And the administrator of an intestate is bound to distribute the 
 surplus of his chattels, after payment of his debts, between his wid- 
 Big.Pebs.Peop. — 1
 
 2 DISTINCTION BETWEEN HEAL AND PERSONAL PROPERTY (Ch. 1 
 
 ow and children or next of kin, according to rules, which permit males 
 and females in the same degree of relationship to share equally, giving 
 no preference to males or to the eldest male. 
 
 A further distinction between property in land and property in goods 
 arose from the diiiferent nature of the remedies given for the depriva- 
 tion of either. This distinction rests at bottom upon the physical 
 difference between land, which is immovable and indestructible, and 
 goods, which are moveable and perishable. Hence a dispossessed land- 
 holder can always be restored by process of law to the identical hold- 
 ing, from which he has been ejected: while there is no such certainty 
 of specific restitution in the case of goods. For goods may always 
 be taken out of the jurisdiction, lost, or destroyed ; when the law can 
 give the dispossessed owner no remedy but pecuniary compensation. 
 Actions were therefore classified in English law, as real or personal, 
 according to the nature of the relief afforded thereby. Real actions 
 were those brought for the recovery of lands or tenements, wherein 
 specific restitution was obtainable by process of execution issuing di- 
 rectly against the thing demanded (in rem). Personal actions were 
 brought to enforce an obligation imposed on a man personally to make 
 reparation for a breach of contract or a wrong ; in other words, they 
 were brought to obtain pecuniar)^ compensation for a violation of right 
 — what the English law calls damages. Actions in v.'hich claims for 
 both kinds of relief were combined were called mixed actions. Not 
 every kind of landholding however was recoverable in a real action. 
 From the reign of Henry H, owing to the permanent establishment 
 of the King's Court, and the provision of special remedies therein for 
 dispossessed landholders, all the existing forms of landholding were 
 submitted to the classifying action of a general judge-made law. The 
 result was that freeholdings of land, or free tenements, were the only 
 form of property in land admitted to be protected in the King's Court 
 by real or mixed action. This restriction left unprotected in the King's 
 Court, and therefore without the pale of property, the humbler form 
 of landholding known as tenure in villenage. Tenure in villenage, 
 however, gave rise to the customary property in land, which in later 
 times obtained complete legal protection as copyhold. But there were 
 in early times certain valuable interests in land, which fell short of 
 the dignity of freehold, without incurring the degradation of villenage. 
 The most important of these were tenancies for a term of years. 
 Placed outside the class of free tenements, they nevertheless obtained 
 special legal protection. But they were reckoned as chattels, and thus 
 became the objects of the same liberty of alienation and liability for 
 debt as attached to the ownership of other chattels. Chattel interests 
 in land also came to be completely assimilated to other chattels with 
 regard to the mode of succession after death, passing to the executor or 
 administrator, not the heir.
 
 Ch. 1) DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY 3 
 
 Now, as free tenements were the only things recoverable in the 
 reahy, or specifically by real action, they became known by the name 
 of realty or of real things ; while things recoverable in personal ac- 
 tions were termed personalty, or personal things. And when the word 
 realty had thus come to denote the freehold, chattel interests in land 
 were given the name of chattels real, because, it was said, they con- 
 cerned the realty; while moveable goods were distinguished as chat- 
 tels personal, "because for the most part they belong to the person 
 of a man, or else" (which seems the better reason) "for that tliey 
 are to be recovered by personal actions." In later times, however, 
 when men began to speak of all their property or valuable rights as 
 their estate, and to classify their estate as real or personal, the lim- 
 its of the two classes of propert}' were determined rather by the dif- 
 ference in the mode of succession after death than by the nature 
 of the actions for their recovery. The term real estate was appro- 
 priated to the realty, which passed to the heir, or to real heredita- 
 ments; while chattels real, which passed to the executor, were on 
 that account placed in the class of personal estate. Thus in modern 
 times what is called personal property or estate comprises all chat- 
 tels, which go to the executor, be they chattels real, that is, chattel 
 interests in land, or chattels personal, namely, moveable goods and 
 other things, for the withholding of which damages only are recover- 
 able. > 
 
 1 A. by will left shares In a waterworks company to B. The will was in 
 proper form to pass personal proiiert.v. but not real property. Held, the 
 shares passed to B. Bligh v. Brent, 2 X. & C. Ex. 268 (18.37). 
 
 A statute provided that the transfer of property to the children of the de- 
 cedent should be exempt from a transfer tax except "personal property of the 
 value of ten thousand dollars." A. died owning a lease for 21 years worth 
 .'?12.000. It went to B., his son. Held, it was subject to the tax. Matter of 
 Althause, 63 App. Div. 252, 71 N. Y. Supp. 445 (1901).
 
 ACTION BASED ON POSSESSION OE OWNERSHIP (Ch. 2 
 
 CHAPTER II 
 
 RIGHTS OF ACTION BASED ON POSSESSION OR ON 
 OWNERSHIP 
 
 VVOADSON V. NAWTON. 
 (Court of King's Bench, 1727. 2 Strange, 777.) 
 
 Trespass for taking and dispersing a load of fern ashes : the de- 
 fendant pleaded that he was an occupier of land in A. the tenants 
 whereof had right of common and cutting fern on the locus in quo; 
 and that the plaintiff wrongfully came and cut fern and burnt it where- 
 upon the defendant came and scattered it about prout ei bene licuit. 
 Demurrer inde. 
 
 Sed Tota Curia Contra. For if the plaintiff' did him any dam- 
 age he has his action; but after the plaintiff' had burnt the fern and 
 thereby converted it to his own use ; the commoner has no right to 
 come and disperse it. Judicium pro quer'. 
 
 SUTTON V. BUCK. 
 (Court of Common Pleas, 1810. 2 Taunt. 302.) 
 
 [One Gardiner owned a vessel. The vessel was wrecked and he sold 
 it by agreement, partly written and partly oral, to the plaintiff'. A bill 
 of sale was executed but it was not properly attested nor was it regis- 
 tered as required by the registry acts. The plaintiff" attempted with a 
 gang of workmen to save the vessel but it broke up and parts of it were 
 carried to the defendant's land. These the defendant collected and re- 
 fused to deliver to the plaintiff, but said he should keep for the rightful 
 owner. 
 
 The plaintiff' brought trover and was nonsuited upon the ground that 
 the registry of the transfer was necessary to confer any title on the 
 plaintiff. 
 
 Rule nisi for a new trial.] 
 
 Mansfield, C. J.^ Suppose a man gives me a ship without a reg- 
 ular compliance with the register act, and I fit it out at £500. expence, 
 see what a doctrine it is that another man may take it from me, and I 
 have no remedy. The only doubt on the case, I think, arises from the 
 
 I The opinions of Lawrence and Chambre, JJ., are omitted.
 
 Ch. 2) ACTION BASED ON POSSESSION OR OWNERSHIP 5 
 
 register act, lest if we should decide that any property passed by the 
 transfer, it should militate against that act; and I have never been 
 able entirely to free my mind from that doubt ; but at present, I think, 
 that, on the circumstances, the plaintiff might maintain trover. The 
 case is this : here is a ship stranded : she is certainly considered by all 
 parties as a ship belonging to Gardiner : he does not think her worth 
 taking much trouble about ; he sells her to Sutton, who thought her an 
 advantageous purchase at £600., and who puts on board eighteen men 
 for the purpose of getting the ship off, having a hope that she might 
 still be saved and used as a ship. There had been a bill of sale, but 
 no registration ; but as to the bill of sale, the transaction was void, both 
 because there was no written transfer proved, and no registration: 
 and it struck me on the trial, that no propert)^ passed thereby to the 
 plaintiff, because the deliver}' was made to him as to an absolute ven- 
 dee. But, however, it is clear that Gardiner did deliver her to the 
 plaintiff, with intent that the plaintiff should have her, and keep her, he 
 was, in every sense of the word, in possession of the ship ; he being in 
 possession, the defendant saws and cuts some parts of the wreck ; not, 
 1 suppose, with a view of doing mischief, but, as he himself says, with 
 an intent to keep it for the owner, whoever he should be. Now thus 
 the title stands, as it was proved at the trial. If mere possession will 
 make property, to be sure here is possession, taking it without refer- 
 ence to the register act. If Gardiner had said, I give, or I abandon the 
 ship to you, and the plaintiff had said, I will endeavour to save her, and 
 had laid out great sums of money, and failed, might a stranger come 
 and take possession of a part? it would be a monstrous thing to say 
 that he could so do. Here the case is stronger ; for in all equity and 
 conscience the plaintiff is the vendee, and has paid his money. Now is 
 this in any degree different from other cases of special property-? The 
 register acts have not said that a man shall not give a ship; and it 
 seems strange to say that a gift by A. to B. should be defeated by C. 
 I do not see how the payment of the money makes this transfer to dif- 
 fer from a gift in that respect : and though the plaintiff fails to es- 
 tablish a complete title to the ship, on account of the non-compliance 
 with the register act, yet that question is to be disputed only between 
 Gardiner and the plaintiff' ; and it would be a strange thing to say that 
 the defendant can take possession. In Westerdell v. Dale, the person 
 to whom the ship was conveyed, had suffered his former partner to 
 continue to manage it ; so that as to all the world, the former partner 
 continued owner. Rule absolute.^ 
 
 2 See Armory t. Delamirie, 1 Strange, 505 (1722), post, p. 25 ; Poole v. Sv- 
 monds, 1 N. H. 2S9, S Am. Dec. 71 (1818). 
 
 A. had possession of X.'s horse by B.'s permission ; B. wrongfully claiming 
 to be the owner. X. gave T. a mortga^te on the horse and authorized X. to 
 take possession. The mortgage was defective. Y. took possession. Held, A. 
 cannot maintain trover against Y. Sherman v. Matthews, 15 Gray (Mass.) 
 508 (1860).
 
 6 ACTION BASED ON POSSESSION OR OWNERSHIP (Ch. 2 
 
 ROOTH V. WILSON. 
 (Court of King's Bench, 1817. 1 Barn. & AW. 59.) 
 
 Case against the defendant for not repairing the fences of a close ad- 
 joining that of the plaintiff, whereby a certain horse of plaintiff, feed- 
 ing in the plaintiff's close, through the defects and insufficiencies of the 
 fences, fell into the defendant's close, and was killed. Plea, not guilty. 
 At the trial before Richards, Baron, at the last spring assizes for the 
 county of Nottingham, it appeared that the horse was the property of 
 the plaintiff's brother, who sent it to him on the night before the acci- 
 dent ; that the plaintiff put it into his stable for a short time, and then 
 turned it, after dark, into his close, where his own cattle usually graz- 
 ed, and that on the following morning the horse was found dead in the 
 close of the defendant, having fallen from the one to the other. The 
 liability to repair was admitted. Defence, that the plaintiff' had not 
 such a property in the horse as to entitle him to maintain this action. 
 The learned Judge, however, suffered the cause to proceed, and the 
 jury found a verdict for the plaintiff. In Easter term last a rule was 
 obtained by Reader for setting aside this verdict and having a new 
 trial. * * * 
 
 Lord EllEnborough, C. J.' The plaintiff certainly was a gratu- 
 itous bailee, but as such, he owes it to the owner of the horse not to put 
 it into a dangerous pasture ; and if he did not exercise a proper degree 
 of care he would be liable for any damage which the horse might sus- 
 tain. Perhaps the horse might have been safe during the daylight, but 
 here he turns it into a pasture to which it was unused after dark. That 
 is a degree of negligence sufficient to render him liable : such liability 
 is sufficient to enable the plaintiff to maintain this action ; he has an 
 interest in the integrity and safety of the animal, and may sue for a 
 damage done to that interest. 
 
 BavlEy, J. I am entirely of the same opinion : the plaintiff by 
 receiving the horse becomes accountable. Case is a possessory action ; 
 the declaration merely states that it was the horse of the plaintiff'; if 
 this had been an indictment, might it not have been described as the 
 horse of the plaintiff? as in the common case of goods stolen from a 
 washerwoman. 
 
 Abbott, J. I think that the same possession which would enable 
 the plaintiff to maintain trespass, would enable him to maintain this ac- 
 tion. 
 
 Rule discharged. 
 
 3 The statement of facts Is abridged and the opinion of Holroyd, J., Is 
 omitted.
 
 Ch. 2) ACTION BASED ON POSSESSION OK. OWNEESHIP 7 
 
 TUTHILL V. WHEELER. 
 
 (Supreme Court of New York, 1S49. 6 Barb. .362.) 
 
 This was an action of trover to recover the value of a canal boat. It 
 was tried at the SulHvan Circuit, in September, 1846, before Barculo, 
 Circuit Judge. It appeared upon the trial tliat on the 1st day of March, 
 1845, the plaintiff entered into a contract with the Delaware & Hudson 
 Canal Company whereby he agreed to take charge of, and navigate 
 the boat in question, during the season of navigation, in conformity 
 with the orders and directions of the company, and to hold himself ac- 
 countable to the company for any injury done to the boat. The compa- 
 ny, on their part, agreed to pay for every ton of coal delivered at Ron- 
 dout by the boat, certain stipulated prices, reserving eight dollars on 
 each trip of the boat towards the payment of the value of said boat, 
 and when the sums so resen-ed should amount to $225 and the interest 
 thereon, a title was to be given to the plaintifif for the boat ; but in case 
 of failure to pay for the boat, as stipulated, or the termination of the 
 agreement by the company, whilst the value of the boat and the interest 
 remained unpaid, then the sums reserved were to accrue to the compa- 
 ny for the use of the boat. The company also reserved the right to ter- 
 minate the agreement at pleasure, and to take the absolute possession 
 of the boat, and to transport it with the cargo on board, to its place of 
 •destination, at the plaintiff's expense. Under this contract the plaintiff' 
 ran the boat through the season, and at the close of navigation laid it 
 up in the canal, in the town of Lumberland. He had paid during the 
 season, towards the purchase of the boat, $136. The defendant was 
 collector of the town of Lumberland, and as such collector held a tax 
 warrant, by virtue of which he was directed to collect of the Delaware 
 & Hudson Canal Company $969, for the tax assessed upon that part of 
 their canal, witliin the town of Lumberland; and by virtue of such 
 warrant, the defendant levied upon, and on the 27th of February, 1846, 
 sold the boat in question. 
 
 The plaintiff' having rested, upon this evidence, the defendant moved 
 for a nonsuit, upon two grounds: (1) That the plaintiff" at the time of 
 the seizure and sale of the boat, had no such property in the boat as 
 would enable him to maintain his action of trover ; and (2) that at the 
 time of the seizure and sale, the boat was in the actual possession of 
 the company and was therefore liable to be seized and sold for the ta.x 
 mentioned in the warrant. The circuit judge decided that the plaintiff' 
 could not maintain the action, and directed a nonsuit to be entered ; 
 which the plaintiff' moved to set aside. 
 
 Harris, J.^ The agreement between the Delaware & Hudson Ca- 
 
 * i'art of the opiuiou is omitted.
 
 8 ACTION BASED ON POSSESSION OR OWNERSHIP (Ch. 2 
 
 nal Company and the plaintiff can scarcely be considered as amounting 
 even to a conditional sale of the boat. The plaintiff, it is true, was to 
 take charge of, and navigate, it during the season, but he was to do so, 
 in conformity with the orders and directions of the company, and in 
 every respect, was to act as their servant. They reserved the right to 
 discharge him from their employment at pleasure, and to resume the 
 absolute possession of the boat ; and in that case, they were not even 
 to be accountable for the $8 per trip, retained under the agreement. 
 At the most, there was but a contract for a future sale, in case the 
 plaintiff' should continue to run the boat long enough to pay the price 
 stipulated in the agreement. 
 
 I was at first inclined to think that even under such an agreement, 
 the plaintiff' having the boat in his possession, at the time it was seized 
 by the defendant, and the company having retained out of the plain- 
 tiff's earnings in running the boat in their employ, towards the pur- 
 chase of the boat, $136, and not having elected to terminate the agree- 
 ment, he had such a special property in the boat as would sustain the 
 action. But upon reflection, I am convinced that this position can not 
 be maintained. To bring the case within the principle of those cases 
 in which the action has been maintained by virtue of a special property, 
 even against the general owner, the plaintiff should have an absolute 
 vested interest in the boat. But, by the contract, the complete and 
 absolute ownership remained in the company. To maintain this form 
 of action, the plaintiff must show at the time of the conversion a right 
 of property, special or general, in himself. This the plaintiff cannot 
 do. It is inconsistent with the express provisions of the agreement un- 
 der which the plaintiff received the possession of the boat. His pos- 
 session was that of a mere servant, restricted to use the boat for the 
 company, and in the manner prescribed by them. Such possession, like 
 that of the master of any other boat owned by the company, was the 
 possession of the company. The terms of the agreement are such as 
 to exclude the idea that it was intended that the plaintiff should have a 
 lien upon the boat for the amount retained by the company before the 
 entire price was paid. * * * 
 
 Motion denied.' 
 
 B Compare Moore v. Robinson, 2 B. & Ad. 817 (1S31) ; Hampton v. Brown, 
 13 Irea. Law (35 N. C.) 18 (1S51) ; Harris v. Smith, 3 Serg. & R. (Pa.) 20 (1S17).
 
 Ch. 2) ACTION BASED ON POSSESSION OR OWNERSHIP 9 
 
 O'NEAL V. BAKER. 
 (Supreme Court of North Carolina, 1855. 47 N. C. 168.) 
 
 Action of detinue tried before his Honor Judge Bailey, at the Spring 
 Term, 1855, of New Hanover Superior Court. Judgment for defend- 
 ant. Appeal. 
 
 Nash, C. J.° The action cannot be sustained: To support an ac- 
 tion of detinue, the plaintiff must have the right of property in the 
 thing claimed, and also the present right of possession. A bailor may 
 sustain the action, because he has a special right of property, and the 
 right of present possession. The case discloses that the mother of the 
 slave, sued for, belonged to the plaintiff in the year 1826, when she 
 intermarried with Thomas O'Neal. Before the intermarriage, articles 
 of agreement were entered into by the parties, and in pursuance of 
 them, the mother of the slave, Henry, sued for, together with other 
 property, was conveyed to trustees for the use and benefit of Thomas 
 O'Neal and his wife, the plaintiff, and after their death, for their 
 children. O'Neal died in the year 1849, in possession of the slaves, 
 and his widow continued in the possession of Henry until he passed 
 into that of the defendant. The sole question is, in whom is the right 
 to bring the action? The plaintiff' relies on her possession, as suffi- 
 cient to entitle her to a recovery of the slave, against a mere wrong- 
 doer. * * * 
 
 In the case in Strange [Armory v. Delamirie, 1 Strange, 505] the 
 jewel was lost and found and the owner was unknown. Here the slave 
 was neither lost nor found, and the legal owner was knov.n. Mr. 
 Walker, one of the trustees, was alive and his interest in the slave 
 was known — the legal title was in him. 
 
 In reply it is shown that Mr. Walker had released all his right, title 
 and interest in and to the slave in controversy, to the plaintiff'. With- 
 out inquiring into the eft'ect of this conveyance, as it touches the le- 
 gal title to the slave, it can have no effect upon the question now be- 
 fore us. The deed was executed in 1854, and this action was com- 
 menced in 1850. At the time when the action was brought, the legal 
 title was not in the plaintiff, but in Mr. Walker, who, as the surviving 
 trustee, was alone competent to bring the action. His Honor com- 
 mitted no error. 
 
 Per Curiam. Judgment affirmed.' 
 
 8 Part of the opinion is omitted. 
 
 7 Contra: Traylor v. Marsliall. 11 Ala. 458 (1847). A. had an interest in 
 a parcel of land and delivered the title deeds thereof to B., to be liept until 
 requested. A. conveyed the land to X. B. refused to deliver the deeds to A. 
 Held, A. cannot maintain detinue for the deeds. Philips v. Robinson, 4 Bing. 
 106 (1827).
 
 10 ACTION BASED ON POSSESSION OR OWNERSHIP (Cll. 2 
 
 WOODSON V. PEARCE. 
 (Supreme Court of Tennessee, 1858. 5 Sneed [37 Tenn.] 416.) 
 
 Harris, J. This action of replevin was commenced by Pearce in 
 the Circuit Court, of Gibson county, for the recovery of certain slaves. 
 On the 28th of November, 1850, the following agreement was entered 
 into between Woodson and Pearce, to wit: "I, James P. Woodson, 
 this day do lend to my son-in-law, William R. Pearce, a negro girl 
 named Caroline. The right and title is still vested in me during my 
 natural life, and at my death the said William R. Pearce binds him- 
 self to deliver up to my e.xecutor or administrator the aforesaid negro 
 and her increase, or take the aforesaid negro and her increase at a 
 fair valuation." 
 
 At the same time the slave Caroline was delivered by Woodson to 
 Pearce, who continued his possession of her until a short time before 
 the bringing of this suit, when the possession was re-taken by Wood- 
 son without the consent and against the will of Pearce. On the trial 
 in the Circuit Court, the Court charged the jury, in substance, that 
 the "instrument" above set out "was an absolute gift of the negro for 
 Woodson's life, and vested Pearce with the title to her and her in- 
 crease, and authorized him to recover in this suit, if before the suit 
 commenced the slaves were taken out of his possession by defendant 
 against his consent." The jury found for the plaintiff, and a new 
 trial having been refused, the defendant has appealed in error to this 
 Court. 
 
 It is now insisted that this charge is erroneous ; that this contract 
 is, by express terms, purely a loan, and as such is revocable at pleasure. 
 We think that by a fair construction of the contract, it is clear, that 
 it was the intention of Woodson to give the use of the slave to his 
 son-in-law, Pearce, retaining the title in himself, during his life, cou- 
 pled with a right, on the part of Pearce, at his death, to make her and 
 her increase absolutely his own, by accounting to his personal repre- 
 sentative for them, "at a fair valuation," or to surrender them up at 
 his election to such representative. 
 
 That it was an executed gift of the use of the slave for the life 
 of the donor, and vested such right in the donee as could not be revok- 
 ed at pleasure. 
 
 It is true he uses the word "lend," and the "right and title is still 
 vested in me during my natural life." But when we take the whole 
 instrument together, it is manifest that he only intended to retain the 
 legal title, for the use of his son-in-law during his life, surrendering 
 the possession and the use of the property to the son-in-law, during 
 that time, coupled with a right in the son-in-law, either to deliver the 
 slaves, at the death of the donor, to his personal representative, or
 
 Ch. 2) ACTION BASED ON POSSESSION OR OWNERSHIP 11 
 
 make them absolutely his own, by "taking" them at a fair valuation. 
 Thereby vesting such right in the plaintiff below as would enable him 
 to maintain this action. 
 
 That portion of the charge of the Circuit Judge, in which he in- 
 structs the jury that the instrument made "an absolute gift of the ne- 
 gro for Woodson's life, and vested Pearce with the title to her and 
 her increase," is inaccurate. He should have told the jury that it 
 conveyed the use of the slave and her increase to Pearce during the 
 life of Woodson — Woodson retaining the legal title to the slave dur- 
 ing that time. 
 
 But this verbal inaccuracy was wholly immaterial and could not 
 have misled the jury, as Pearce's right to recover would have been 
 the same in either aspect of the question. 
 
 We think there is no error in the judgment and it is affirmed.* 
 
 THE WINKFIELD. 
 
 (Court of Appeal. [1902] Prob. Div. 42.) 
 
 Collins, M. R.' This is an appeal from the order of Sir Francis 
 Jeune dismissing a motion made on behalf of the Postmaster-General 
 in the case of The Winkfield. 
 
 The question arises out of a collision which occurred on April 5, 
 1900, between the steamship Mexican and the steamship Winkfield, 
 and which resulted in the loss of the former with a portion of the mails 
 which she was carrying at the time. 
 
 The owners of the Winkfield under a decree limiting liability to 
 i32,514. 17s. lOd. paid that amount into court, and the claim in 
 question was one by the Postmaster-General on behalf of himself and 
 the Postmasters-General of Cape Colony and Natal to recover out 
 of that sum the value of letters, parcels, etc., in his custody as bailee 
 and lost on board the Mexican. 
 
 The case was dealt with by all parties in the Court below as a 
 claim by a bailee who was under no liability to his bailor for the loss 
 in question, as to which it was admitted that the authority of Claridge 
 
 8A., a landowner, dellverpd to B. an abstract of title, to be kept by B. un- 
 til a proposed purcbase by B. under a contract of sale should be either com- 
 pleted or rescinded. B. later redelivered the abstract to A., for him to look 
 at overuii;ht. A. then refused to give it back to B., the purchase still pend- 
 ing. Held, B. may maintain trover against A. for the abstract. Koberts v. 
 Wyatt, 2 Taunt. 268 (ISIO). As to the measure of damages, see Benjamin v. 
 Streniple, 13 111. 4GG (1S51) ; Pabst Brewing Co. v. Greenberg, 117 Fed. 135, 
 55 C. C. A. 151 (1902). 
 
 9 Parts of the opinion of Collins, M. R., are omitted.
 
 12 ACTION BASED ON POSSESSION OR OWNERSHIP (Ch. 2 
 
 V. South Staffordshire Tramway Co. ([1892] 1 O. B. 422) was con- 
 clusive, and the President accordingly, without argument and in defer- 
 ence to that authority, dismissed the claim. The Postmaster-General 
 now appeals. 
 
 The question for decision, therefore, is whether Claridge's Case 
 was well decided. I emphasize this because it disposes of a point 
 which was faintly suggested by the respondents, and which, if good, 
 would distinguish Claridge's Case, namely, tliat the applicant was 
 not himself in actual occupation of the things bailed at the time of the 
 loss. This point was not taken below, and having regard to the 
 course followed by all parties on the hearing of the motion, I think it 
 is not open to the respondents to make it now, and I therefore 
 deal with the case upon the footing upon which it was dealt with on 
 the motion, namely, that it is covered by Claridge's Case. I assume, 
 therefore, that the subject-matter of the bailment was in the custody 
 of the Postmaster-General as bailee at the time of the accident. For 
 the reasons which I am about to state I am of opinion that Claridge's 
 Case was wrongly decided, and that the law is that in an action against 
 a stranger for loss of goods caused by his negligence, the bailee in 
 possession can recover the value of the goods, although he would have 
 had a good answer to an action by the bailor for damages for the loss 
 of the thing bailed. 
 
 It seems to me that the position, that possession is good against 
 a wrongdoer, and that the latter cannot set up the jus terlii unless he 
 claims under it, is well established in our law, and really concludes this 
 case against the respondents. As I shall shew presently, a long series 
 of authorities establishes this in actions of trover and trespass at the 
 suit of a possessor. And the principle being the same, it follows that 
 he can equally recover the whole value of the goods in an action on 
 the case for their loss through the tortious conduct of the defendant. 
 I think it involves this also, that the wrongdoer who is not defending 
 under the title of the bailor is quite unconcerned with what the rights 
 are between the bailor and bailee, and must treat the possessor as 
 the owner of the goods for all purposes quite irrespective of the 
 rights and obligations as between him and the bailor. 
 
 I tliink this position is well established in our law, though it may 
 be that reasons for its existence have been given in some of the cases 
 which are not quite satisfactory. I think also that the obligation of 
 the bailee to the bailor to account for what he has received in re- 
 spect of the destruction or conversion of the thing bailed has been 
 admitted so often in decided cases that it caimot now be questioned; 
 and, further, I think it can be shewn that the right of the bailee to 
 recover cannot be rested on the ground suggested in some of the cases, 
 namely, that he was liable over to the bailor for the loss of the goods 
 converted or destroyed. It cannot be denied that since the case of
 
 Ch. 2) ACTION BASED ON POSSESSION OR OWNERSHIP 13 
 
 Armory v. Delamirie (1 Str. 505), not to mention earlier cases from 
 the Year Books onward, a mere finder may recover against a wrong- 
 doer the full value of the thing converted. That decision involves 
 the principle that as between possessor and wrongdoer the presump- 
 tion of law is, in the words of Lord Campbell, in JefTries v. Great 
 Western Ry. Co. (5 E. & B. 802, 806), "that the person who has 
 possession has the property." * * * Therefore it is not open to 
 the defendant, being a wrongdoer, to inquire into the nature or lim- 
 itation of the possessor's right, and unless it is competent for him 
 to do so the question of his relation to, or liability towards, the true 
 owner cannot come into the discussion at all ; and, therefore, as 
 between those two parties full damages have to be paid without any 
 further inquiry. The extent of the liability of the finder to the true 
 owner not being relevant to the discussion between him and the wrong- 
 doer, the facts which would ascertain it would not have been ad- 
 missible in evidence, and therefore the right of the finder to recover 
 full damages cannot be made to depend upon the extent of his liabil- 
 ity over to the true owner. To hold otherwise would, it seems to me,, 
 be in efifect to permit a wrongdoer to set up a jus tertii under which 
 he cannot claim. But, if this be the fact in the case of the finder, why 
 should it not be equally the fact in the case of a bailee? Why, as 
 against a wrongdoer, should the nature of the plaintiff's interest in 
 the thing converted be any more relevant to the inquiry, and therefore 
 admissible in evidence, than in the case of a finder? It seems to me 
 that neither in one case nor the other ought it to be competent for 
 the defendant to go into evidence on that matter. * * * 
 
 Holmes, C. J., in his admirable lectures on the Common Law, in 
 the chapter devoted to bailments, traces the origin of the bailee's right 
 to sue and recover the whole value of chattels converted, and arrives 
 at the clear conclusion that the bailee's obligation to account arose from 
 the fact that he was originally the only person who could sue, though 
 afterwards by an extension, not perhaps quite logical, the right to sue 
 was conceded to the bailor also. He says at p. 167: "At first the bailee 
 was answerable to the owner because he was the only person who could 
 sue; now it was said he could sue because he was answerable to the 
 owner." And again at p. 170: "The inverted explanation of Beau- 
 manoir will be remembered, that tlie bailee could sue because he was 
 answerable over, in place of the original rule that he was answer- 
 able over so strictly because only he could sue." This inversion, as 
 he points out, is traceable through the Year Books, and has survived 
 into modern times, though, as he shews, -it has not been acted upon. 
 Pollock and Maitland's History of the English Law, vol. 2, p. 170, 
 puts the position thus : "Perhaps we come nearest to historical truth if 
 we say that between the two old rules there was no logical priority. 
 The bailee had the action because he was liable, and was liable because
 
 14 ACTION BASED ON POSSESSION OK OWNERSHIP (Cll. 2 
 
 he had the action." It may be that in early times the obligation of 
 the bailee to the bailor was absolute, that is to say, he was an in- 
 surer. But long after the decision of Coggs v. Bernard (1704) [2 Ld. 
 Ray. 909], which classified the obligations of bailees, the bailee has, 
 nevertheless, been allowed to recover full damages against a wrong- 
 doer, where the facts would have afforded a complete answer for 
 him against his bailor. The cases above cited are instances of this. 
 In each of them the bailee would have had a good answer to an ac- 
 tion by his bailor ; for in none of them was it suggested that the act 
 of the wrongdoer was traceable to negligence on the part of the bailee. 
 I think, therefore, that the statement drawn, as I have said, from 
 the Year Books may be explained, as Holmes, C. J., explains it, but 
 whether that be the true view of it or not, it is clear that it has not 
 been treated as law in our Courts. * * * fhe bailee's right to 
 recover has been affirmed in several American cases entirely without 
 reference to the extent of the bailee's liability to the bailor for the 
 tort, though his obligation to account is admitted — see them referred 
 to in the passages cited, and in particular see Ullman v. Barnard (1856) 
 [7i Mass. (7 Grav) 5541 ; Parish v. Wheeler fl860) [22 N. Y. 494] ; 
 White v. Webb [iS Conn. 302]. The case of Rooth v. Wilson, 1 B. & 
 A. 59, is. a clear authority that the right of the bailee in possession 
 to recover against a wrongdoer is the same in an action on the case 
 as in an action of trover, if indeed authority were required for what 
 seems obvious in point of principle. * * * Therefore, as I said 
 at the outset, and as I think I have now shewn by authority, the root 
 principle of the whole discussion is that, as against a wrongdoer, pos- 
 session is title. The chattel that has been converted or damaged is 
 deemed to be the chattel of the possessor and of no other, and there- 
 fore its loss or deterioration is his loss, and to him, if he demands 
 it, it must be recouped. His obligation to account to the bailor is really 
 not ad rem in the discussion. It only comes in after he has carried 
 his legal position to its logical consequence against a wrongdoer, and 
 serves to soothe a mind disconcerted by the notion that a person who 
 is not himself the complete owner should be entitled to receive back 
 the full value of the chattel converted or destroyed. There is no 
 inconsistency between the two positions; the one is the complement 
 of the other. As between the bailee and stranger possession gives 
 title — that is, not a limited interest, but absolute and complete own- 
 ership, and he is entitled to receive back a complete equivalent for the 
 whole loss or deterioration of the thing itself. As between bailor 
 and bailee the real interests of each must be inquired into, and, as 
 the bailee has to account for the thing bailed, so he must account for 
 that which has become its equivalent and now represents it. What he 
 has received above his own interest he has received to the use of his 
 bailor. The wrongdoer, having once paid full damages to the bailee.
 
 Ch. 2) ACTION BASED ON POSSESSION OK OWNERSHIP 15 
 
 has an answer to any action by the bailor. See Com. Dig. Trespass, B. 
 4, citing Roll. 551, 1. 31, 569, 1. 22, Story on Bailments, 9th Ed. § 
 352, and the numerous authorities there cited. * * * 
 
 Stirling and Mathew, L. JJ., concurred. 
 
 Appeal allowed.^" 
 
 BARWICK V. BARWICK et al. 
 (Supreme Court of North Carolina, 1850. 33 N. C. SO.) 
 
 Pearson, J. Benjamin Sutton, by his will, gave a number of slaves 
 to his wife, Sarah Sutton, for her life : and at her death to be divided 
 among his four daughters, one of whom was Winifred, the wife of 
 Joshua Barwick, one of the defendants. Joshua Barwick and his wife 
 sold their interest in said slaves to the plaintiff, who took four of them 
 into his possession. Afterwards, the said Joshua sold the two slaves 
 sued for to Wood, who, with the assistance of the other defendant, 
 Brown, took them from the possession of the plaintiff, and sent them 
 out of the State ; whereupon this action of trover was brought. 
 
 The case made up by his Honor, states that it was not proven that 
 Sarah Sutton was dead. The plaintiff insisted that he was entitled to 
 recover on two grounds: 1st, because he had the title; and 2d, be- 
 cause he had the possession, and could recover against wrongdoers. 
 
 His Honor charged, that the plaintiff' could not recover on the first 
 ground, because it was not proved that Sarah Sutton was dead ; but he 
 charged, on the second ground, that, if the plaintiff was in possession 
 of the slaves, and the defendants took them, and sent them out of the 
 country, he was entitled to recover their value, with interest from the 
 time of the conversion : as tlie defendants were wrongdoers and had 
 shown no title. There was a verdict for the plaintiff, and, from the 
 judgment thereon, the defendants appealed. 
 
 The defendants excepted to the charge of his Honor, upon the second 
 ground, and we think the exception well founded. 
 
 The bare possession is sufficient to maintain an action of trespass 
 against a wrongdoer, for the gist of that action is an injury to the pos- 
 session, and the measure of damage is not the value of the property, 
 but the injury done to the plaintiff, by having his possession disturbed. 
 
 In trover, the injury done by the wrongful taking is waived, and the 
 plaintiff supposes he has lost the property, and alleges that the defend- 
 ant found it and wrongfully converted it to his own use. So the gist of 
 the action is not, that the defendant, having found the property, took 
 
 10 See, for various applications of the rule of the Winkfield Case, St. Louis, 
 I. M. & S. Ry. Co. V. Biggs, 50 Arl<. 109, 6 S. W. 724 (1SS7) ; Atkins v. Moore, 
 S2 111. 1240 aST6) ; Brewster v. Warner, 136 Mass. 57, 49 Am. Rep. 5 (1883) ; 
 Chamberlain v. West, 37 Minn. 54, 33 N. W. 114 (1887); Guttner v. Pacilic 
 Steam Whaling Co. (D. C.) 9« Fed. G17 (1899).
 
 16 ACTION BASED ON POSSESSION OE OWNERSHIP (Ch. 2 
 
 it into his possession, but that, after doing so, he wrongfully converted it 
 to his own use, and the measure of damage is the value of the property. 
 It is true, that when nothing appears, but the fact that the defendant 
 took the property out of the possession of the plaintiti' and converted 
 it to his own use, trover will lie. For the possession of personal prop- 
 erty is prima facie evidence of title, and in the absence of any proof to 
 rebut this presumption, the person in possession is taken to be the 
 owner and can recover the full value. But, if it appears on the trial, 
 that the plaintiff, although in possession, is not in fact the owner, and 
 that the property belongs to a third person, the presumption of title, in- 
 ferred from the possession, is rebutted ; and it would be manifestly 
 wrong to allow the plaintiff to recover the value of the property. For 
 the real owner may forthwith bring trover against the defendant, and 
 force him to pay the value a second time, and the fact that he had paid 
 it in a former suit would be no defense. When trover is brought and 
 the defendant satisfies the judgment, he pays the value of the property, 
 and the title is vested in him by a judicial transfer, because he has paid 
 the price. Consequently, trover can never be maintained unless a sat- 
 isfaction of the judgment will have the effect of vesting a good title in 
 the defendant, except when the property is restored, and the conver- 
 sion was temporary. Accordingly, it is well settled as the law of this 
 State, that to maintain trover, the plaintiff must show title and a pos- 
 session, or a present right of possession. Hostler's Administrators v. 
 Scull, 3 N. C. (2 Haywood) 139; Id., 1 N. C. (Taylor) 152, 183, 1 Am. 
 Dec. 583 ; Laspevre v. McFarland, 4 N. C. (N. C. T. R.) 187 ; Andrews 
 V. Shaw, 15 N. C. (4 Dev.) 70. 
 
 There are cases in the English books, and in the reports of some of 
 our sister states to the contrary ; but we must be allowed to say, that 
 the doctrine of our courts is fully sustained, by the reason of the thing, 
 and is most consonant with the peculiar principles of this action. The 
 cases differing from our decision, are all based upon a misapprehension 
 of the principle laid down in the leading case, Delimirie v. Armory. In 
 that case the jewel was lost, and was found by the plaintiff, a chimney 
 sweeper. He had a right to take it into possession, and became the 
 owner, by the title of occupancy, except in the event of the true owner 
 becoming known. The former owner of the jewel was not known, and 
 it was properly decided that the finder might maintain trover against 
 the defendant to whom he had handed it for inspection, and who re- 
 fused to restore it. 
 
 But the result of that case would have been very different, if the 
 owner had been known. The defendant could then have said to the 
 plaintiff, you have no right to make me pay you the value, when I must 
 forthwith deliver up the property to the owner, or else pay him the 
 value a second time. 
 
 The distinction between that case, when the possessor was the only 
 known owner, and the ordinary case of one, who himself has the pos-
 
 Ch. 2) ACTION BASED ON POSSESSION OR OWNERSHIP 17 
 
 session wrongfully and sues another wrongdoer for interfering with 
 his possession, the true owner being known and standing by, ready to 
 sue for the property, is as clear as daylight. 
 
 In this case, for instance, as the facts appeared on the trial, the plain- 
 tiff was in the wrongful possession, which was disturbed by the defend- 
 ant, and for that injury he had a right to recover in trespass. But 
 Sarah Sutton was known as the true owner, and had a right to demand 
 her property of the defendants, or else to recover its value, and they 
 could not protect themselves by showing that they had paid the full 
 value to the plaintiff, under the coercion of a judgment and execution. 
 This result would seem, by the reductio ad absurdum, to show that the 
 inference from the case of Delimirie v. Armory, that trover can be 
 maintained against a wrongdoer by one not [sic] having a naked pos- 
 session, when the true owner is known, is contrary to good sense. 
 That which is not good sense is not good law. 
 
 The judgment must be reversed and there must be a venire de novo. 
 
 ANONYMOUS. 
 (Court of King's Bencb, 1472. T. B. 12 Edw. IV, 8. pi. 20.) 
 
 Choke. If I loan one my horse to ride to York and he rides else- 
 where I shall have an action of trespass." * * * 
 
 Brian. In your case of the horse if he to whom I loan it rides 
 elsewhere the party will have an action on tlie case but not a general 
 action of trespass. 
 
 ANONYMOUS. 
 
 (Court of Common Pleas, 15S7. Moore, 248.) 
 
 A draper having a servant to sell goods in his shop, the servant took 
 cloths and converted them to his own use, and it was adjudged that 
 trespass vi et armis lies because he was only a servant and had posses- 
 sion of the cloths as a servant, and sakept the possession of his master. 
 And therefore if a shepherd or a butler steal sheep or plate this was 
 felony at the common law, so 3 H. 7, and 21 H. 7, but if one delivers 
 an article to his servant to deliver over and he takes it away, that is not 
 felony because he has a special property upon which he can maintain 
 trespass upon the taking out of his possession. And Anderson said 
 that in all cases where the servant has neither general nor special prop- 
 erty trespass lies; otherwise with a bailee.'^ 
 
 11 Ace: Co. Lit. 57a. See Lee v. Atkinson, Cro. Jac. 236 (1610). 
 
 12 See Bloss v. Holman, Owen, 52 (1587), apparently the same case. 
 
 Big. Pebs. Prop. — 'Z
 
 18 ACTION BASED ON POSSESSION OR OWNERSHIP (Ch. 2 
 
 WARD V. MACAULEY et al. 
 (Court of King's Beneb, 1791. 4 Term R. 4S9.) 
 
 Tlie plaintiff was the landlord of a house, which he let to Lord 
 Montfort ready furnished ; and the lease contained a schedule of the 
 furniture. An execution was issued against Lord Montfort, under 
 which the defendants, sheriff of Middlesex, seized part of the fur- 
 niture, notwithstanding the officer had notice that it was the property 
 of the plaintiff'. For this the plaintiff brought an action of trespass 
 against the defendants. At the trial Lord Kenyon thought that tres- 
 pass would not lie, and that the plaintiff should have brought trover; 
 a verdict, however, was taken for the plaintiff for value of the 
 goods with liberty to the defendants to move to enter up a nonsuit, 
 if this Court should be of opinion that the plaintiff' could not recover 
 in this form of action. 
 
 Mingay obtained a rule for that purpose on a former day ; against 
 which 
 
 Erskine now shewed cause. 
 
 Lord Kenyon, C. J. The distinction between the actions of tres- 
 pass and trover is well settled ; the former is founded on possession, 
 the latter on property. Here the plaintiff' had no possession ; his rem- 
 edy was by an action of trover founded on his property in the goods 
 taken. In the case put of a carrier, there is a mixed possession : actual 
 possession in the carrier, and an implied possession in the owner. 
 
 Bui.LER, J. The carrier is considered in law as the servant of the 
 owner, and the possession of the servant is the possession of the 
 master. 
 
 /ER Curiam. Rule absolute.' ' 
 
 GORDON V. HARPER. 
 (Court of King's Bench, 1790. 7 Term. R. 9.) 
 
 In trover for certain goods, being household furniture, a verdict was 
 found for the plaintiff, subject to the opinion of this Court on the 
 following case: On the 1st October 1795, and from thence until the 
 seizing of the goods by the defendant, as aftermentioned, Mr. Biscoe 
 was in possession of a mansion-house at Shoreham and of the goods 
 
 ISA. chartered a boat to B. for a detinite term. The boat was wrongfully 
 attached by C. on e.xecution. Held, A. cannot maintain trespass against C. 
 Muggrldge v. Eveleth, 9 Mete. (Mass.) 233 (1S45).
 
 Ch. 2) ACTION BASED OX POSSESSION OR OWNERSHIP 19 
 
 in question, being the furniture of the said house, as tenant of the 
 house and furniture, to the plaintiff under an agreement made be- 
 tween the plaintiff' and Mr. Biscoe, for a term which at the trial of 
 this action was not expired. The goods in question were on the 24th 
 of October taken in execution by the defendant, then sheriff of the 
 county of Kent, by virtue of a writ of testatum fieri facias issued on a 
 judgment at the suit of J. Broomhead and others, executors of J. 
 Broomhead deceased against one Borret, to whom the goods in ques- 
 tion had belonged, but which goods, previous to the agreement be- 
 tween the plaintiff and Mr. Biscoe, had been sold by Borret to tlie 
 plaintiff. The defendant after the seizure sold the goods. The ques- 
 tion is, whether the plaintiff' is entitled to recover in an action of trover. 
 Lord Kexvox, C. J.'* The only point for the consideration of 
 the Court in the case of Ward v. Macauley was, whether in a case 
 like the present, the landlord could maintain an action of trespass 
 against the sheriff for seizing goods, let with a house, under an execu- 
 tion against the tenant; and it was properly decided that no such ac- 
 tion could be maintained. What was said further by me in that case, 
 that trover was the proper remedy, was an extrajudicial opinion, to 
 which upon further consideration I cannot subscribe. The true ques- 
 tion is, whether when a person has leased goods in a house to another 
 for a certain time, whereby he parts with the right of possession dur- 
 ing the term to the tenant, and has only a reversionary interest, he can 
 notwithstanding recover the value of the whole property pending the 
 existence of the term in an action of trover. The very statement of 
 the proposition affords an answer to it. If, instead of household goods, 
 the goods here taken had been machines, used in manufacture, which 
 had been leased to a tenant, no doubt could have been made t)ut that 
 the sheriff might have seized them under an execution against the 
 tenant, and the creditor would have been entitled to the beneficial 
 use of the property during the term ; the difference of the goods then 
 cannot varj' the law. The cases which have been put at the bar do 
 not apply: the one on which the greatest stress was laid was that 
 of a tenant for years of land whereon timber is cut down, in which 
 case it was truly said, that the owner of the inheritance might maintain 
 trover for such timber, notwithstanding the lease. But it must be re- 
 membered that the only right of the tenant is to the shade of the 
 tree when growing, and by the very act of felling it his right is ab- 
 solutely determined ; and even then the property does not vest in 
 his immediate landlord; for if he has only an estate for life, it will 
 go over to the owner of the inheritance. Here however the tenant's 
 right of possession during the term cannot be devested by anv wrongful 
 act, nor can it thereby be revested in the landlord. I forbear to de- 
 
 1* The opinions of Ashhurst, Grose, and Lawrence, JJ., are omitted.
 
 20 ACTION BASED ON POSSESSION OR OWNERSHIP (Ch. 2 
 
 liver any opinion as to what remedy the landlord has in this case, not 
 being at present called upon so to do ; but it is clear that he cannot 
 maintain trover. 
 
 [The other Justices concurred.] Postea to the defendant.'' 
 
 LOTAN V. CROSS. 
 
 (Nisi Prius, 1810. 2 Camp. 4G4.) 
 
 Trespass for running against the plaintiff's chaise. 
 
 It appeared that the plaintiff, a stable-keeper, was owner of the 
 chaise; but that when the injury was done, it was in the possession 
 of one Brown, a friend of his, whom he had permitted to use it. 
 
 The objection being taken, that trespass could not be maintained by 
 the plaintiff under these circumstances, 
 
 Lord ELLENBououcn said : The property is proved to be in the 
 plaintiff', and prima facie the thing is to be considered in his legal 
 possession, whoever may be the actual occupier. Shew a letting for a 
 certain time to Brown, and the possession would be in him; but a 
 mere gratuitous permission to a third person to use a chattel does not, 
 in contemplation of law, take it out of the possession of the owner, 
 and he may maintain trespass for any injury done to it while it is so 
 used. 
 
 The witness stated, that the defendant seemed to have no intention 
 of running his carriage against the plaintiff's chaise; and that die ac- 
 cident appeared to arise entirely from the negligent manner in which 
 the defendant was driving. 
 
 Park thereupon objected that the action should have been case and 
 not trespass. 
 
 Lord Ellenborough. The injury to the plaintiff being immediate 
 from the act done by the defendant, it was settled in Leame v. Bray, 
 3 East. 393, that trespass is the proper remedy, and that the defend- 
 ant's intentions were immaterial. 
 
 Verdict for the plaintiff'. 
 
 Park, in the ensuing term, moved for a new trial, on the ground 
 that the action was misconceived; and stated, that Leame v. Bray 
 had been overruled by tlie court of C. P. in Huggett v. Montgomery, 
 2 N. Rep. 446. 
 
 Cur. If we are desired to review the case of Leame v. Bray, the 
 matter should be brought before us in a dift'erent shape, than a motion 
 
 >5 A., being indebted to B., sold goods to B. in good faith, covenanting to 
 pay the debt on demand and with a proviso for redemption on such payment ; 
 
 A. to be allowed to retain possession of the goods until such demand and a 
 default. X. levied on the goods as A.'s. Held, admitting the levy wrongful, 
 
 B. cannot maintain trover. Bradley v. Copley, 1 C. B. 085 (1845).
 
 Ch. 2) ACTION BASED ON POSSESSION OR OWNERSHIP 21 
 
 for a new trial. We do not entertain so slight an opinion of our own 
 judgment, as to allow it to be thus canvassed. We will wait for some 
 case where the question is raised upon the record, and may be car- 
 ried farther. 
 Rule refused.'" 
 
 LOESCHMAN v. MACHIN. 
 (Court of King's Bench, 1818. 2 Starkie, .311.) 
 
 This was an action of trover, brought to recover tlie value of two 
 piano-fortes. 
 
 The plaintiff was a maker of piano-fortes, and the defendant was 
 an auctioneer. The plaintiff had lent one of the pianos, the larger, 
 to a person of the name of Brown, whose wife was a musical teach- 
 er, on hire, for which Brown was to pay at the rate of 18s. per month, 
 if he kept it for the whole year ; and if for a less period, he was to pay 
 a guinea per month. With respect to the other piano, it did not ap- 
 pear very clearly on what terms it had been delivered by the plain- 
 tiff to Brown, whether upon hire, or that he might dispose of it for 
 the plaintiff'. Brown had sent both these pianos to the defendant, to 
 be sold by auction, and he, upon the plaintiff's application to deliver 
 the pianos to him, refused to deliver them unless the plaintiff would 
 pay the amount of certain e.xpences which had been incurred. 
 
 Abbott, J.,'' in summing up to tlie jury said, I wish you to find 
 whether the smaller piano was let on hire, or sent to be sold by Brown, 
 if an opportunity offered; this is a question of fact for your considera- 
 tion ; and although I am of opinion that it will make no difference as 
 to the verdict, it will give the party an opportunity of making the dis- 
 tinction. The general rule is, that if a man buy goods, or take them 
 on pledge, and they turn out to be the property of another, the own- 
 er has a right to take them out of the hands of the purchaser ; except, 
 indeed, in the case of a sale in market overt. With that exception, 
 it is incumbent on the purchaser to see that the vendee has a good 
 title. And I am of opinion that if goods be let on hire, although the 
 person who hires them has the possession of them, for the special 
 
 i<!A. leased to B. certain furniture. B. was a married woman and incapable 
 of contracting. C. wrongfully took the furniture from B. Held, A. may 
 maintain trover against C. Smith v. Plomer. 15 East. 607 (1812). 
 
 Compare Forbes v. JIarsh, 15 Conn. 38-1 (1S43) ; Morgan v. Ide, 8 Gush. 
 (Mass.) 420 (ISol). 
 
 A sheriff attaches A.'s chattel in an action by B. C. gives the sheriff a 
 receipt for the chattel and makes himself responsible for it, but permits it 
 to stay in A.'s possession. D. wrongfully takes the chattel from A. Held, 
 C. may replevy it from D. Miller v. Adsit, 10 Wend. (N. T.) 335 (1S36). 
 
 1' Part of the opinion is omitted.
 
 22 ACTION BASED ON POSSESSION OR OWNEIISIIIP (Cll. 2 
 
 purpose for which they are lent, yet, if he send them to an auctioneer to 
 be sold, he is guilty of a conversion of the goods; and that if the auc- 
 tioneer afterwards refuse to deliver them to the owner, unless he will 
 pay a sum of money which he claims, he is also guilty of a conver- 
 
 HOLLY V. HUGGEFORD. 
 (Supreme Judicial Court of Massachusetts, 1829. 8 Piclc. 73, 19 Am. Dec. 303.) 
 
 [The plaintiff sent goods to one Lobdell for the latter to sell on com- 
 mission. Lobdell advanced money to the plaintiff on the goods thereby 
 obtaining a lien on them. The goods were attached while in Lobdell's 
 possession by the defendant as deputy sheriff in an action by one Has- 
 kell against Lobdell. The plaintiff brought trespass for the taking.] 
 
 Parker, C. J." The principal objection to the verdict in this case 
 arises from the supposed lien which Lobdell, the debtor, had on the 
 goods attached, as the factor to whom they were sent to be sold on 
 commission, he having accepted draughts drawn by Holly, the plain- 
 tiff, the balance at the time of the attachment being in his favor. 
 
 It was argued that this lien so destroyed the right of possession in 
 Holly, that he cannot maintain trespass against the sheriff who made 
 the attachment. We think this objection is not supported. It is true 
 that the plaintiff must be in possession of tlie goods at the time of the 
 injury, in order to maintain this action, for it is a remedy for an in- 
 jury done to the possession. But by the authorities, general property 
 in the goods carries with it constructively the possession, unless by 
 some act of the owner he has so parted with the possession that at 
 the time of the injury he has no right to reclaim it; as if, by con- 
 tract, he had given the use and possession of the goods for a speci- 
 fied time, during which that injury occurs; which may happen in the 
 case of a lease of a house with the furniture in it, or of a store with 
 the goods in it, or of a manufactory with the machinery. But the 
 lien of a factor does not dispossess the owner, until the right is ex- 
 erted by the factor. It is a privilege which he may avail himself of 
 or not, as he pleases. It continues only while the factor himself has 
 the possession, and therefore if he pledges the goods for his own debt, 
 or suffers them to be attached, or otherwise parts with them volun- 
 tarily, the lien is lost, and the owner may trace and recover them, or 
 he may sue in trespass if they are forcibly taken ; for his construc- 
 tive possession continued notwithstanding the lien. None but the 
 factor himself can set up this privilege against the owner. It is a 
 personal privilege of the factor, and cannot be transferred; nor can 
 
 18 Part of the opinion is omitted.
 
 Ch. 2) ACTION BASED ON POSSESSION OR OWNERSHIP 23 
 
 the question upon it arise between any but the principal and factor. 
 Tones v. Sinclair, 2 N. H. 321, 9 Am. Dec. 75; Daubigny v. Duval, 
 5 T. R. 606. * * * 
 
 Judgment according to verdict.^' 
 
 WHITE V. GRIFFIN. 
 (Supreme Court of North Carolina, 1806. 49 N. C. 139.) 
 
 This was an action on the case, for unlawfully seizing and detain- 
 ing a vessel, called the Belle, belonging to the plaintiff, tried before 
 Bailey, Judge, at the Spring Term, 1854, of Pasquotank Superior 
 Court. 
 
 The vessel had been chartered to one Burgess, to make a voyage 
 from Elizabeth City, in this State, to the West-India Islands. * * * 
 
 The Court intimated an opinion, that the plaintiff was not entitled 
 to recover any thing. In deference to his Honor's opinion the plain- 
 tiff took a nonsuit and appealed.-" 
 
 Nash, C. J. We think there is error in the Judge's opinion. He 
 doubtless came to his conclusion, from the belief that the plaintiff' 
 could not recover the value of his vessel from the defendant, which 
 he certainly could not, (though the detention by him might have been 
 the remote cause of the loss of the vessel) and by not adverting to 
 the principle, that for every tortious act committed as to the property 
 of another, the perpetrator is answerable, in damages, to the owner, 
 either in case or in trespass. If the trespass is committed on prop- 
 erty while in possession of the owner, "trespass" is the proper rem- 
 edy ; if while in the possession of another as bailee, the owner hav- 
 ing but a reversion of the property, the action is "case." This is an 
 action of the latter character — the vessel being in the actual posses- 
 sion of Burgess at the time the act was committed. The vessel was 
 the property of the plaintiff, and by him chartered to Burgess for a 
 trip to the West Indies. She was loaded with staves, the property 
 of a Mr. Williams, and while lying at the Wharf at Elizabeth City, 
 and ready to start on her voyage, one Banks, a constable, came on 
 board and levied several executions on the staves. In one of these 
 executions the present defendant was the plaintiff, and Banks acted by 
 his directions in making the levy. The executions were all against 
 Burgess ; the staves belonged to Williams. The levy was illegal ; in 
 consequence of it, the vessel was detained in port six days, and though 
 
 19 Ace: Ames v. Palmer, 42 Me. 197, 66 Am. Dee. 271 (ISoC), trover; 
 Stowel! V. Otis, 71 N. Y. S6 (1S77), replevin. 
 = oThe statement of facts is abridged.
 
 24 ACTION BASED ON POSSESSION OR OWNERSHIP (Cll. 2 
 
 the plaintiff is not entitled to ask for damages for the loss of the ves- 
 sel, yet, he is entitled, at least, to nominal damages from the defend- 
 ant, for his illegal detention, by having his execution improperly and 
 illegally levied. Venire de novo. 
 Per Curiam. Judgment reversed.*^ 
 
 21 See Hall v. PicUard, 3 Camp. 1S7 (1812). 
 
 On the general topic of this chapter see "Property in Chattels" by Profes- 
 sor Bordwell, 29 Harv. L. R. 374, 501, 731.
 
 Sec. 1) POSSESSORY INTERESTS IN CHATTELS 25 
 
 CHAPTER III 
 POSSESSORY INTERESTS IN CHATTELS 
 
 SECTION 1.— FINDER 
 
 ARMORY V. DELAMIRIE. 
 (Nisi Prius, 1722. 1 Strange, 505.) 
 
 The plaintiff being a chimney sweeper's boy found a jewel and car- 
 ried it to the defenchmt's shop (who was a goldsmith) to know what it 
 was, and delivered it into the hands of the apprentice, who under pre- 
 tence of weighing it, took out the stones, and calling to tlie master to 
 let him know it came to three halfpence, the master offered the boy the 
 money, who refused to take it, and insisted to have the thing again ; 
 whereupon the apprentice delivered him back the socket without the 
 stones. And now in trover against the master these points were ruled : 
 
 1. That the finder of a jewel, though he does not by such finding ac- 
 quire an absolute property or ownership, yet he has such a property as 
 will enable him to keep it against all but the rightful owner, and con- 
 sequently may maintain trover. 
 
 2. That the action well lay against the master, who gives a credit to 
 his apprentice, and is answerable for his neglect. 
 
 3. As to the value of the jewel several of the trade were examined 
 to prove what a jewel of the finest water that would fit the socket 
 would be worth ; and the Chief Justice directed the jury, that un- 
 less the defendant did produce the jewel, and shew it not to be of the 
 finest water, they should presume the strongest against him, and make 
 the value of the best jewels the measure of their damages : which they 
 accordingly did.^ 
 
 lA. foiiiid a vahuable log on the bank of a river: he put It back in the 
 stream to float it down to his mill; it stranded on B.'s land. Held, A. is en- 
 titled to the possession as against B. Deaderick v. Oulds, 86 Tenn. 14, 5 S. 
 W. 4S7, 6 Am. St. Kep. 812 (1887).
 
 2G POSSESSORY INTEUESTS IN CHATTELS (Ch. 3 
 
 BRIDGES V. HAWKESWORTH. 
 (Court of Queen's Bench, 1851. 21 L. J. N. S. 75.) 
 
 This was an appeal brought by the plaintiff from the Westminster 
 County Court. 
 
 The plaintiff was a traveller for a large firm with which the defend- 
 ant, who was a shopkeeper, had dealings. On one occasion (October, 
 1847) the plaintiff, who had called at the defendant's on business, on 
 leaving the defendant's shop noticed and picked up a small parcel 
 which was lying on the shop floor. He immediately shewed it to the 
 shopman, and on opening it found it contained bank notes to the value 
 of £55. The plaintiff told the defendant who came in that he had 
 found a parcel of notes, and requested the defendant to keep tliem to 
 deliver to the owner. The defendant advertised the finding of them in 
 the newspapers, stating that they should be restored to the owner on 
 his properly describing them and paying the expenses. Three years 
 having elapsed and no owner appearing to claim them, the plaintiff ap- 
 plied to the defendant for them, off'ering to pay the expense of the ad- 
 vertisements, and to indemnify the defendant against any claim in re- 
 spect of them. The defendant refused to deliver them up, and the 
 plaintiff consequently brought a plaint in the County Court of West- 
 minster to recover the notes. The Judge decided that the defendant 
 was entitled to keep them as against the plaintiff, and gave judgment 
 for the defendant. It was found in the case that the plaintiff when he 
 handed the notes over to the defendant to deliver to the true owner, 
 did not intend to give up any title to them that he might possess. 
 
 Patteson, J. The notes which are the subject of this action were 
 evidently dropped by mere accident in the shop of the defendant by 
 the owner of them. The facts do not warrant the supposition that they 
 had been deposited there intentionally, nor has the case been at all put 
 upon that ground. The plaintiff" found them on the floor, they being 
 manifestly lost by some one. The general right of the finder to any 
 article which has been lost as again.st all the world except the true 
 owner, was established in the case of Armory v. Delamirie (1 Strange, 
 505), which has never been disputed. This right would clearly have 
 accrued to the plaintiff had the notes been picked up by him outside 
 the shop of the defendant; and if he once had the right, the case finds 
 that he did not intend by delivering the notes to the defendant to waive 
 the title (if any) which he had to them, but they were handed to the de- 
 fendant merely for the purpose of delivering them to tlie owner should 
 he appear. Nothing that was done afterwards has altered this state of 
 things; the advertisements indeed in the newspapers referring to the 
 defendant had the same object ; the plaintiff has tendered the expense 
 of those advertisements to the defendant, and offered him an indemnity
 
 Sec. 1) FINDEK 27 
 
 against any claim to be made by the real owner, and has demanded the 
 notes. The case, therefore, resolves itself into the single point, on 
 which it appears that the learned Judge decided it: namely, whether 
 the circimistance of the notes being found inside the defendant's shop, 
 gives him, the defendant, the right to have them as against the plaintiff 
 who found them. There is no authority to be found in our law direct- 
 ly in point. Perhaps the nearest case is that of Merry v. Green (7 
 Mees. & W. 623, 10 Law J. Rep. [N. S.] M. C. 154), but it ditters in 
 many respects from the present. We were referred in the course of 
 the argument to the learned work of Von Savigny, edited by Chief 
 Justice Perry, but even this work, full as it is of subtle distinctions and 
 nice reasonings, does not afford a solution of the present question. It 
 was well asked on the argument, if the defendant has the right, when 
 did it accrue to him? If at all, it must have been antecedent to the 
 finding by the plaintiff, for that finding could not give the defendant 
 any right. If the notes had been accidentally kicked into the street, 
 and then found by some one passing by, could it be contended that the 
 defendant was entitled to them, from the mere fact of their having 
 been originally dropped in his shop? If the discovery had not been 
 communicated to the defendant, could the real owner have had any 
 cause of action against him, because they were found in his house? 
 Certainly not. The notes never were in the custody of the defendant, 
 nor within the protection of his house before they were found, as they 
 would have been had they been intentionally deposited there, and the 
 defendant has come under no responsibility, except from the communi- 
 cation made to him by the plaintiff, the finder, and the steps taken by 
 way of advertisement. These steps were really taken by the defendant 
 as the agent of the plaintiff, and he has been offered an indemnity, the 
 sufficiency of which is not disputed. We find, therefore, no circum- 
 stances in this case to take it out of the general rule of law, that the 
 finder of a lost article is entitled to it as against all parties except the 
 real owner ; and we think that rule must prevail, and that the learned 
 Judge was mistaken in holding that the place in which they were found 
 makes any legal dift'erence. Our judgment therefore is, thatt the plain- 
 tiff is entitled to these notes as against the defendant, and that the 
 judgment of the Court below must be reversed, and judgment given 
 for the plaintiff for i50. The plaintiff to have the costs of the appeal. 
 Judgment reversed.^ 
 
 = Ace: Hoagland v. Forest Park Highlands Amusement Co., 170 Mo. 335, 
 70 S. W. S78, 94 Am. SL Bep. 740 (1901i).
 
 28 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 SOUTH STAFFORDSHIRE WATER CO. v. SHARMAN. 
 (Court of Queen's Bench Division. [1S9G] 2 Q. B. 44.) 
 
 Lord Russell of Killowen, C. j.« * * * The action was 
 brought in detinue to recover the possession of two gold rings from the 
 defendant. The defendant did not deny that he had possession of the 
 rings, but he denied the plaintiffs' title to recover them from him. Un- 
 der those circumstances the burden of proof is cast upon the plaintiffs 
 to make out that they have, as against the defendant, the right to the 
 possession of the rings. 
 
 Now, the plaintiffs, under a conveyance from the corjioration of 
 Lichfield, are the owners in fee simple of some land on which is situate 
 a pool known as the Minster Pool. For purposes of their own the 
 plaintiffs employed the defendant, among others, to clean out that pool. 
 In the course of that operation several articles of interest were found, 
 and amongst others the two gold rings in question were found by the 
 defendant in the mud at the bottom of the pool. 
 
 The plaintiffs are the freeholders of the locus in quo, and as such 
 they have the right to forbid anybody coming on their land or in any 
 way interfering with it. They had the right to say that their pool 
 should be cleaned out in any way that they thought fit, and to direct 
 what should be done with anything found in the pool in the course of 
 such cleaning out. It is no doubt right, as the counsel for the defend- 
 ant contended, to say that the plaintiffs must shew that they had actual 
 control over the locus in quo and the things in it ; but under the cir- 
 cumstances, can it be said that the Minster Pool and whatever might be 
 in that pool were not under the control of the plaintiffs? In my opin- 
 ion, they were. The case is like the case, of which several illustrations 
 were put in the course of the argtmient, where an article is found on pri- 
 vate property, although the owners of that property are ignorant that 
 it is there. The principle on which this case must be decided, and the 
 distinction which must be drawn between this case and that of Bridges 
 V. Hawkesworth, 21 L. J. (Q. B.) 75, is to be found in a passage in Pol- 
 lock and Wright's Essay on Possession in the Common Law, p. 41 : 
 "The possession of land carries with it in general, by our law, posses- 
 sion of everything which is attached to or under that land, and, in the 
 absence of a better title elsewhere, the right to possess it also. And it 
 makes no difference that the possessor is not aware of the thing's ex- 
 istence. * * * It is free to any one who requires a specific inten- 
 tion as part of a de facto possession to treat this as a positive rule of 
 law. But it seems preferable to say that the legal possession rests on 
 a real de facto possession constituted by the occupier's general power 
 and intent to exclude unauthorized interference." 
 
 3 The statement of facts and part of the opinion of Lord Russell, C. J., and 
 the opinion of Wilk, J., are omitted.
 
 Sec. 1) riNDEE 29 
 
 That is the ground on which I prefer to base my judgment. There 
 is a broad distinction between this case and those cited from Black- 
 stone. Those were cases in which a thing was cast into a pubhc place 
 or into the sea — into a place, in fact, of which it could not be said that 
 any one had a real de facto possession, or a general power and intent 
 to exclude unauthorized interference. * * * 
 
 It is somewhat strange that there is no more direct authority on the 
 question ; but the general principle seems to me to be that where a per- 
 son has possession of house or land, with a manifest intention to exer- 
 cise control over it, and the things which may be upon or in it, then, if 
 something is found on that land, whether by an employee of the owner 
 or by a stranger, the presumption is that the possession of that thing is 
 in the owner of the locus in quo. * * * 
 
 Appeal allowed; judgment for plaintiffs.* 
 
 TATUM V. SHARPLESS. 
 
 (District Court of Philadelphia, 1S65. 6 Phila. 18.) 
 
 This case came on for trial a short time since, when the following 
 facts being conceded by the parties to have been proved by the evi- 
 dence, viz. that the plaintiff was a conductor on a passenger car be- 
 longing to the Fairmount Passenger Railway Company, and was in 
 charge of said car upwards of a year ago, when, on arriving at the 
 end of the route, and after all the passengers had left the car, there 
 remained on one of the seats a pocket book containing upwards of one 
 hundred dollars in United States Treasury notes, that the plaintiff 
 found the pocket book in this way, and had not then nor has he now 
 any knowledge who was or is the owner of the same; that the plain- 
 tiff immediately took it and delivered it to the defendant, who was 
 at the time in charge of the affairs of said company as a receiver ap- 
 pointed by the Supreme Court : that the defendant caused the pocket 
 book to be advertised three times in the Public Ledger, published in 
 this city, as found in the car as aforesaid, said Public Ledger having 
 
 *A. leased land to B., who in excavating unearthed at a depth of six feet 
 a boat about two thousand years old. Held, A. is entitled to the lx)at as 
 against B. Elwes v. Brigg Gas Co., L. R. 33 Ch. Div. 562 (1SS6). See Goddard 
 V. Winchell, 86 Iowa, 71, 52 N. W. 1121, 17 L. R. A. 7SS, 41 Am. St. Rep. 4S1 
 (1S92). 
 
 A canal company drained its canal to clean it. A., a stranger, stole a har 
 of iron from the bottom of the canal. Held, he may be indicted for stealing 
 the property of the canal company. Regina v. Rowe, Bell C. C. 93 (1859). 
 
 A stick of timber was thrown by the tide on A.'s land, whence it was tak- 
 en by B., a trespasser. Held, A. is entitled to bring trespass for breaking and 
 entering and recover the value of the timl>er in his damages. Barker v. 
 Bates, 13 Pick. (Mass.) 255, 23 Am. Dec. 678 (1832).
 
 30 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 the largest circulation of any newspaper in the State. That it was 
 the custom on this route when anything of value was found in the 
 cars by the drivers or conductors, to take it into the office of the com- 
 pany, and leave it there with the name of the finder marked on it, and 
 if the owner appeared the article was returned to him, if no owner 
 appeared after the lapse of a year or so, it was handed back to the 
 finder. 
 
 That after the lapse of a year from the time when the pocket book 
 was found and taken by the plaintiff to the office, he demanded of 
 the defendant the return of it and its contents to himself. The de- 
 fendant replied that he must see counsel first, and after having done 
 so, he said he was unwilling to give it up. At the same time he dis- 
 claimed all right to retain the book and contents for his own benefit. 
 
 Upon the admission of these facts by the parties, the jury were in- 
 structed to find a verdict for the plaintifl: for one hundred dollars, the 
 law arising thereon being reserved by the judge for the opinion of 
 the court in banc. 
 
 After a full argument by counsel before the whole court, the fol- 
 lowing opinion was given on the 8th of April, 1865, by Stroud, J. : 
 
 A princijjal point ruled in Armory v. Delamirie, 1 Strange, 505, was 
 that the finder of a chattel, though he does not by such finding ac- 
 quire an absolute property or ownership, yet he has such a property 
 as will enable him to keep it against all but the rightful owner, and 
 consequently may maintain trover. 
 
 Although this was the ruling of a single judge at nisi prius, it has 
 been thoroughly acquiesced in ever since as a settled principle of the 
 common law. 
 
 Unless, therefore, the case before us can in its cardinal facts be dis- 
 tinguished from that case, our judgment should be for the plaintiff. 
 
 I am unable to perceive any solid ground of distinction. The par- 
 cel was left in the car, accidentally no doubt, by some one unknown 
 then and not yet discovered. It was found by the plaintiff, and im- 
 mediately afterwards taken to the office of the company owning the 
 cars, and handed to the defendant, then in charge of this office. It 
 was advertised in the columns of a public newspaper having the larg- 
 est circulation among newspapers of this city and State. No one has 
 ever come forward to claim ownership of what had been thus found. 
 
 Why then should there be any question as to giving judgment for 
 the plaintiff on the verdict which is in his favor? 
 
 It was suggested on behalf of the defendant that the relation be- 
 tween plaintiff and the company was that of master and servant, and 
 that probably, should the parcel found be surrendered by the com- 
 pany to the plaintiff, the true owner, should he appear and prove his 
 property, might compel its delivery or damages for withholding it. 
 If the law would sustain such a demand, there would be very firm 
 ground for the defendant to stand upon, no authority of the kind was
 
 Sec. 1) FIKDEE- 31 
 
 referred to on the argument, and I have not been able to meet with 
 any. 
 
 In Mathews and wife v. Harsell, 1 E. D. Smith (N. Y.) 393, a 
 doubt was expressed whether a house servant finding lost jewels in 
 the house of her employer, acquired by the finding a right to retain 
 possession of them against tl]e will of the employer. 
 
 The thing found was a parcel consisting of Texas notes. The em- 
 jiloyers of the servant made no claim to retain them, but on the con- 
 trary gave express assent to the maintenance of the action by the serv- 
 ant against a third person, who, on being consulted in respect to the 
 value of the notes and obtaining the possession of them in that way, 
 refused to give them up. 
 
 The court sustained the right of the servant as finder. 
 
 Bridges v. Hawkesworth, 7 Eng. Law and Eq. Reps. 424 (taken 
 from 15 Jurist, 1027), furnishes a concurrent decision based also upon 
 Armory v. Delamirie. The plaintiflf picked up from the floor of the 
 shop of the defendant a parcel containing bank notes, and handed 
 them to the defendant to keep till the owner should claim them. They 
 were advertised in a leading newspaper of the city of London, but no 
 owner appeared to claim them. Three years elapsed and the plaintiff 
 requested the defendant to return the parcel to him, tendering the 
 costs of the advertisements, and ofifering an indemnity. The judg- 
 ment of the court was for the plaintiff as finder. 
 
 The important point in these decisions was that the place in which a 
 lost article is found does not constitute any exception to the general 
 rule of law that the finder is entitled to it as against all persons ex- 
 cept the owner. 
 
 The right of the finder depends on his honesty and entire fairness 
 of conduct. The circumstances attending the finding must manifest 
 good faith on his part. There must be no reason to suspect that the 
 owner was known to him or might have been ascertained by proper 
 diligence. 
 
 The English cases scrutinize the character of the finder with great 
 severity. If he has any ground for belief that the owner is a partic- 
 ular individual, or if enough is known to the finder to enable him 
 to prosecute with success a search for the owner, and instead of using 
 this knowledge, or these means, he attempts to appropriate to his 
 own use what has been found, he will subject himself to the charge 
 of larceny. 
 
 Thus, where a person purchased at public auction a bureau in which 
 he afterwards discovered, in a secret drawer, a purse containing sov- 
 ereigns and bank notes, which he appropriated to his own use, neither 
 he nor any one else knowing at the time of sale that the bureau con- 
 tained anything whatever, it was held that if the buyer had no rea- 
 son to believe that anything more than the bureau was sold, the ab- 
 straction of the money was a felonious taking, and he was guilty of
 
 32 POSSESSOnY INTERESTS IN CHATTELS (Cll. 3 
 
 larceny in appropriating the money to his own use. Merry v. Green, 
 7 JMee. & Wels. 623. 
 
 There have been numerous decisions to the same et¥ect, chiefly 
 arising from the detention and misappropriation of goods found by 
 hackney coachmen in their vehicles. Rex v. Wynne, 1 Leach's Crown 
 Cases, 460; Rex v. Sears, in note to same case; and see State v. 
 Weston, 9 Conn. 527, 25 Am. Dec. 46; Cartwright v. Green, 8 Ves. 
 409; Rex v. Pope, 6 Car. & Payne, 346. 
 
 It is to be always borne in mind that the finder of a lost article ac- 
 quires at most but a special property in the thing found. But he is 
 the only person, except the true owner, who can claim any title at all. 
 
 The conduct of the plaintiff after finding the parcel in question in 
 this case was unexceptionably correct. He attempted no concealment, 
 but took the pocket book at once to the office of the company and gave 
 it into tlie custody of the defendant. 
 
 Both parties to the action have acted fairly. The lost article was ad- 
 vertised. The defendant disclaims any purpose of retaining the pocket 
 book or its contents for his own use. 
 
 The plaintiff does not assert that they are his, but as the finder he 
 maintains that he has a special property in them, superior to that of 
 any one else but the owner. 
 
 We are strongly impressed with the utility of legislation requiring 
 railway companies to adopt measures by which, in every case of an 
 article left by a passenger in a car, the custody of it should be as- 
 sumed by the company, with a corresponding obligation prcrmptly to 
 deliver it to the owner on satisfactory proof of his loss. Notice of 
 such a regulation should be conspicuously posted up in each car. This 
 would induce losers to apply speedily to the companies for informa- 
 tion and restoration. In the absence of such a law or of any regula- 
 tion of the company on the subject, we have nothing to guide our judg- 
 ment but the known principles of the common law wdiich accords to 
 the finder a special property such as in this case the plaintiff claims. 
 
 Judgment is to be entered for the plaintiff on the points reserved. ° 
 
 s Ace. : HaMiaker v. Blanehard, 90 Pa. 377, 35 Am. Rep. G04 (1S79). See 
 Bowen v. Sullivan, 02 laU. 281, 30 Am. Rep. 172 (1878). 

 
 Sec. 1) FINDER 33 
 
 DANIELSON v. ROBERTS. 
 
 (Supreme Court of Oregon, 1904. 44 Or. 108, 74 Pac. 913, 65 L. R. A. 52C, 
 
 102 Am. St. Rep. 627.) 
 
 [The plaintiffs, boys of eight and ten, were employed by the de- 
 fendant to clean an old hen house upon the latter's land. While so 
 doing the plaintiffs found buried three or four inches below the sur- 
 face of the earth a rusted can containing $7,000 in gold coin. They 
 delivered the coin to the defendant who on a subsequent demand 
 by the plaintiffs refused to give it up and claimed it as his own. Plain- 
 tiff's brought trover for the conversion of the money. They were 
 non suited below and appealed.] 
 
 Bean, J.6 * * * The motion for nonsuit was sustained on the 
 ground, as we understand it, that the evidence for the plaintiffs show- 
 ed that the money in question had been intentionally deposited by 
 some one where found, and therefore the plaintiff's could not invoke 
 the rule that the finder of lost property is entitled to its possession 
 against all die world except its true owner. Ever since the early case 
 of Armory v. Delamirie, 1 Strange, 505, where it was held that the 
 finder of a jewel might maintain trover for the conversion thereof 
 by a wrongdoer, the right of the finder of lost property to retain it 
 against all persons except the true owner has been recognized. In 
 that case a chimney sweeper's boy found a jewel, and carried it to 
 a goldsmith to ascertain what it was. The goldsmith refused to return 
 it, and it was held that the boy might maintain trover on the ground 
 that by the finding he had acquired such a property in the jewel as 
 would entitle him to keep it against all persons but the rightful own- 
 er. This case has been uniformly followed in England and America, 
 and the law upon this point is well settled. Sovern v. Yoran, 16 Or. 
 269, 20 Pac. 100, 8 Am. St. Rep. 293 ; 19 Am. & Eng. Ency. Law (2d 
 Ed.) 579. But it is argued that property is lost in the legal sense of 
 that word only when the possession has been casually and involuntarily 
 parted with, and not when the owner purposely and voluntarily places 
 or deposits it in a certain place for safe-keeping, although he may 
 thereafter forget it, and leave it where deposited, or may die without 
 disclosing to any one the place of deposit. This seems to have been 
 the view taken by Mr. Justice Lord in Sovern v. Yoran, where money 
 was found hidden under the floor of a barn. It had evidently, as in 
 this case, been deposited there by some one, and the question for de- 
 cision was whedier the defendant who had treated the money as lost 
 property, and disposed of it as provided in the statute, was guilty of a 
 conversion, and liable to the true owner therefor. It is said in the 
 opinion that until the owner was discovered, the money was in the 
 
 « Part of the opinion Is omitted. 
 Big.PebsJ'bop. — 3
 
 34 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 nature of treasure trove, and could not be treated as lost property, 
 within the meaning of the statute. At common law a distinction was 
 made between lost property and treasure trove. Lost property was 
 such as was found on the surface of the earth, and with which the own- 
 er had involuntarily parted. The presumption arising from the place 
 of finding was that the owner had intended to abandon his property, 
 and that it had gone back to the original stock, and therefore belonged 
 to the finder or first taker until the owner appeared and showed that 
 its losing was accidental, or without an intention to abandon the 
 property. Treasure trove, on the other hand, was money or coin found 
 hidden or secreted in the earth or other private place ; the owner being 
 unknown. It originally belonged to the finder if the owner was not dis- 
 covered; but Blackstone says it was afterward judged expedient, for 
 the purposes of State, and particularly for the coinage, that it should 
 go to the king; and so the rule was promulgated that property found 
 on the surface of the earth belonged to the finder until the owner ap- 
 peared, but that found hidden in the earth belonged to the king. 1 
 Bl. Com. *295. 
 
 In this country the law relating to treasure trove has generally been 
 merged into the law of the finder of lost property, and it is said that 
 the question as to whether the English law of treasure trove obtains 
 in any State has never been decided in America. 2 Kent, 357; 26 
 Am. & Eng. Ency. Law (1st Ed.) 538. But at the present stage of the 
 controversy it is immaterial whether the money discovered by plaintiffs 
 was technically lost property or treasure trove, or if treasure trove, 
 whether it belongs to the State or to the finder, or should be dis- 
 posed of as lost property if no owner is discovered. In either event 
 the plaintiffs are entitled to the possession of the money as against 
 the defendants, unless the latter can show a better title. The reason 
 of the rule giving the finder of lost property the right to retain it 
 against all p>ersons except the true owner applies with equal force 
 and reason to money found hidden or secreted in the earth as to prop- 
 erty found on the surface. It is thus stated in Armory v. Delamirie, 1 
 Smith's Lead. Cas. pt. 1, *475 : "Every one on whom the possession 
 of chattels personal is cast by the law, by the act of the parties, or 
 through the force of circumstances is charged with the duty of taking 
 reasonable care, and answerable if he does not to the owner, and may 
 consequently recover for any wrongful act by which the property 
 is impaired, in the capacity of trustee, if in no other character." The 
 money for which this action is brought came lawfully into the posses- 
 sion of the plaintiffs. The circumstances under which it was discover- 
 ed, the condition of the vessel in which it was contained, and the 
 place of deposit, as shown by the plaintiffs' testimony, all tend with 
 more or less force to indicate that it had been buried for some con- 
 siderable time, and that the owner was probably dead or unknown. 
 The plaintiffs, having thus come into its possession, were charged with
 
 Sec. 1) FINDER 35 
 
 the duty of holding it for the true owner, if he could be ascertained, 
 and, if not, of making such disposition thereof as the law required. 
 The possession of the money was cast upon them by the force of cir- 
 cumstances. They were consequently under the obligation of taking 
 reasonable care of it until it could be returned to the true owner, or 
 otherwise disposed of, and they may therefore maintain such actions 
 or proceedings as may be necessary to enable them to retain or recover 
 its possession. The fact that the money was found on the premises 
 of the defendants, or that the plaintiffs were in their service at the 
 time, can in no way affect the plaintiffs' right to possession, or their 
 duty in reference to the lost treasure ; Hamaker v. Blanchard, 90 Pa. 
 Z77, 35 Am. Rep. 664; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 
 172; Tatum v. Sharpless, 6 Phila. (Pa.) 18; Durfee v. Jones, 11 R. 
 I. 588, 23 Am. Rep. 528; Bridges v. Hawkesworth, 21 L. J. Q. B. 75. 
 We are of the opinion, therefore, that the case should have gone to 
 the jury, and unless it should appear that the defendants are the owners 
 of the money, they must return the possession thereof to the plaintiffs, 
 in order that they may make lawful disposition thereof. Judgment 
 reversed and new trial ordered. 
 Reversed.^ 
 
 LIVERMORE v. WHITE. 
 
 (Supreme Judicial Court of Maine, 1SS3. 74 Me. 452, 43 Am. Rep. 600.) 
 
 ApplETOn, C. J.* This is an action of replevin for certain hides 
 of tanned leather. The plaintift''s only title is as finder of them as lost 
 goods. The verdict being against him, exceptions were duly filed to 
 the rulings of the presiding justice, which have been very elaborately 
 and ably argued. 
 
 It is in proof that in 1840, Edward Southwick was then owning and 
 carrying on a large tannery, containing seven hundred and eleven 
 vats of which the vats in question were part ; that he sold the tanner)' 
 to Southwick and Weeks who occupied a portion of the vats, not oc- 
 cupying the outside vats; that Edward Southwick died shortly after 
 his conveyance of his estate; that the same passed to the Vassalboro' 
 Manufacturing Company, which erected its mills thereon over twenty 
 years ago; that the defendant is their agent and servant; that while 
 the company were digging to lay a foundation for a brick building in 
 addition to their present erection, the plaintiff, a servant in their em- 
 
 ■JAcc: Weeks v. Hackett, 104 Me. 264, 71 Atl. 858, 19 L. R. A. (N. S.) 1201, 
 120 Am. St. Rep. 390, 15 Ann. Cas. 1156 (1908); Roberson v. Ellis, 58 Or. 
 219, 114 Pac. 100, 35 L. R. A. (N. S.) 979 (1911). See Ferguson v. Ray, 44 Or. 
 557, 77 Pac. 600, 1 L. R. A. (N. S.) 477, 102 Am. St. Rep. C4S, 1 Arm. Cas. 1 
 (1904). 
 
 8 Part of the opinion Is omitted.
 
 36 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 ploy, discovered the vats and the leather therein, by virtue of which 
 discovery he claims title thereto. 
 
 It further appeared that these hides were identified as hides placed 
 in the vats by Edward Southwick, and omitted to be taken when his 
 vats were emptied. * * * 
 
 (III). This is not a case of lost goods. The owner is shown. They 
 belong to his estate. The title of the finders vanishes when the owner 
 is known. These goods were not lost. The facts negative a loss by 
 the owner. The hides were through carelessness left in the vat. If 
 the fact of their being there was forgotten by the owner, they are none 
 the less his — and though forgotten they are not lost. They remained 
 in the vats subject to his control. In McAvoy v. Medina, 11 Allen 
 (Mass.) 548, 87 Am. Dec. 733, it was held that placing a pocket 
 book voluntarily by a customer upon a table in a shop, and accidentally 
 leaving it there or forgetting to take it, is not to lose it within the sense 
 in which the authorities speak of lost property. "To discover an ar- 
 ticle voluntarily laid down by the owner in a banking room and upon 
 a desk provided for such persons having business there, is not the 
 finding of a lost article," remarks Wells, J., in Kincaid v. Eaton, 98 
 Mass. 139, 93 Am. Dec. 142. "Property is not lost in the sense of the 
 rule," observ'es Trunkey, J., in Hamaker v. Blanchard, 90 Pa. 377, 35 
 Am. Rep. 664, "if it was intentionally laid on the table, counter or 
 other place by the owner, who forgot to take it away, and in such case 
 the proprietor of the premises is entitled to retain the custody." "The 
 loss of goods," the court say, in Lawrence v. State, 1 Humph. (Tenn.) 
 228, 34 Am. Dec. 644, "in legal and common intendment, depends on 
 something more than the knowledge or ignorance, the memory or want 
 of memory of the owner as to their locality at any given moment. 
 * * * To lose is not to place anything carefully and voluntarily in 
 the place you intend and then forget it ; it is casually and involuntarily 
 to part from the possession ; and the thing is then usually found in 
 a place or under circumstances to prove to the finder the owner's will 
 was not employed in placing it there." 
 
 The instructions upon the controverted questions were correct. 
 Hides in a vat for tlie purpose of tanning, though not removed when 
 the other vats are cleared, are not to be deemed abandoned or derelict, 
 — nor though remaining in the vats for a long period through the for- 
 getfulness of their owner or the ignorance of his representative, are 
 they to be considered lost, so that the finder thereby acquires a title 
 to them. Nor can the finding be deemed treasure trove, for there was 
 no gold or silver hidden, and no hiding.^ 
 
 »Acc.: McAvoy v. Medina, 11 Allen (Mass.) 548, 87 Am. Dee. 7?,?j (1866); 
 Foster v. Fidelity Safe Deposit Co., 162 Mo. App. 165, 145 S. W. 139 (1912), 
 affirmed 264 Mo. 89, 174 S. W. 376, L. R. A. 1916A, 655 (1915) ; Loucks v. Gal- 
 logly, 1 Misc. Kep. 22, 23 N. Y. Supp. 126 (1892).
 
 Sec. 1) FINDER 37 
 
 DURFEE V. JONES. 
 
 (Supreme Court of Rhode Island, 1S77. 11 R. I. 58S, 23 Am. Rep. 52S.) 
 
 DuRFEE, C. J. The facts in this case are briefly these: In April, 
 1874, the plaintiff bought an old safe and soon afterwards instructed 
 his agent to sell it again. The agent oft'ered to sell it to the defendant 
 for ten dollars, but the defendant refused to buy it. The agent then 
 left it with the defendant, who was a blacksmith, at his shop for sale 
 for ten dollars, authorizing him to keep his books in it until it was sold 
 or reclaimed. The safe was old-fashioned, of sheet iron, about three 
 feet square, having a few pigeon-holes and a, place for books, and back 
 of the place for books a large crack in the lining. The defendant 
 shortly after the safe was left, upon examining it, found secreted be- 
 tween the sheet-iron exterior and the wooden lining a roll of bills 
 amounting to $165, of the denomination of the national bank bills which 
 have been current for the last ten or twelve years. Neither the plain- 
 tiff nor the defendant knew the money was there before it was found. 
 The owner of the money is still unknown. The defendant informed 
 the plaintiff's agent that he had found it, and offered it to him for the 
 plaintiff; but the agent declined it, stating that it did not belong to 
 either himself or the plaintiff, and advised the defendant to deposit 
 where it would be drawing interest until the rightful owner appeared. 
 The plaintiff' was then out of the cit>'. Upon his return, being inform- 
 ed of the finding, he immediately called on the defendant and asked for 
 the money, but the defendant refused to give it to him. He then, after 
 taking advice, demanded the return of the safe and its contents, pre- 
 cisely as they existed when placed in the defendant's hands. The de- 
 fendant promptly gave up the safe, but retained the money. The plain- 
 tiff brings this action to recover it or its equivalent. 
 
 The plaintiff does not claim that he acquired, by purchasing the safe, 
 any right to the money in the safe as against the owner; for he bought 
 the safe alone, not the safe and its contents. See Merry v. Green, 7 M. 
 & W. 623. But he claims that as between himself and the defendant 
 his is the better right. The defendant, however, has the possession, 
 and therefore it is for the plaintiff, in order to succeed in his action, to 
 prove his better nght. 
 
 The plaintiff claims that he is entitled to have the money by the right 
 of prior possession. But the plaintiff never had any possession of the 
 money, except, unwittingly, by having possession of the safe which 
 contained it. Such possession, if possession it can be called, does not 
 of itself confer a right. The case at bar is in this view like Bridges v. 
 Hawkesworth, 15 Jur. 1079, 21 L. J. O. B. 75, A. D. 1851, 7 Eag. L. 
 & Eq. 424. In that case, the plaintiff, while in the defendant's shop on 
 business, picked up from the floor a parcel containing bank notes. He 
 gave them to the defendant for the owner if he could be found. The
 
 38 
 
 POSSESSORY INTERESTS IN CHATTELS 
 
 (Ch.3 
 
 owner could not be found, and it was held that the plaintiff as finder 
 was entitled to them, as against the defendant as owner of the shop in 
 which they were found. "The notes," said the court, "never were in 
 the custody of the defendant, nor within the protection of his house, 
 before they were found, as they would have been if they had been in- 
 tentionally deposited there." The same in effect may be said of the 
 notes in tlie case at bar; for though they were originally deposited in 
 the safe by design, they were not so deposited in the safe, after it be- 
 came the plaintiff's safe, so as to be in the protection of the safe as his 
 safe, or so as to affect him with any responsibility for them. The 
 case at bar is also in this respect like Tatum v. Sharplcss, 6 Phila. (Pa.) 
 18. There it was held, that a conductor who had found money which 
 had been lost in a railroad car was entitled to it as against the railroad 
 company. 
 
 The plaintiff also claims that the money was not lost but designedly 
 left where it was found, and that therefore as owner of the safe he is 
 entitled to its custody. He refers to cases in which it has been held, 
 that money or other property voluntarily laid down and forgotten is 
 not in legal contemplation lost, and that of such money or property the 
 owner of the shop or place where it is left is the proper custodian rath- 
 er than the person who happens to discover it first. State v. McCann, 
 19 Mo. 249; Lawrence v. State, 1 Humph. (Tenn.) 228, 34 Am. Dec. 
 644; McAvoy v. Medina, 11 Allen (Mass.) 549, 87 Am. Dec. 733. It 
 may be questioned whether this distinction has not been pushed to an 
 extreme. See Kincaid v. Eaton, 98 Mass. 139, 93 Am. Dec. 142. But, 
 however that may be, we think the money here, tliough designedly left 
 in the safe, was probably not designedly put in the crevice or inter- 
 space where it was found, but that, being left in the safe, it probably 
 slipped or was accidentally shoved into the place where it was found 
 without the knowledge of the owner, and so was lost, in the stricter 
 sense of the word. The money was not simply deposited and forgot- 
 ten, but deposited and lost by reason of a defect or insecurity in the 
 place of deposit. 
 
 The plaintiff claims that the finding was a wrongful act on the part 
 of the defendant, and that therefore he is entitled to recover die money 
 or to have it replaced. We do not so regard it. The safe was left with 
 the defendant for sale. As seller he would properly examine it under 
 an implied permission to do so, to qualify him the better to act as seller. 
 Also under the permission to use it for his books, he would have the 
 right to inspect it to see if it was a fit depository. And, finally, as a 
 possible purchaser he might examine it, for, though he had once de- 
 clined to purchase,- he might on closer examination change his mind. 
 And the defendant, having found in the safe something which did not' 
 belong there, might, we think, properly remove it. He certainly would 
 not be expected either to sell the safe to another, or to buy it himself 
 witliout first removing it. It is not pretended tliat he used any violence
 
 Sec. 1) FINDER 39 
 
 or did any harm to the safe. And it is evident that the idea that any 
 trespass or tort had been committed did not even occur to the plaintiff's 
 agent when he was first informed of tlie finding. 
 
 The general rule undoubtedly is, that the finder of lost property is 
 entitled to it as against all the world except the real owner, and that or- 
 dinarily the place where it is found does not make any difference. 
 We cannot find anything in the circumstances of the case at bar to take 
 it out of this rule.^° 
 
 GARDNER v. NINETY-NINE GOLD COINS. 
 
 (District Court of the United States, District of Massacliusetts, 1S99. Ill 
 
 Fed. 552.) 
 
 [The libelants found the body of a man at sea in whose clothing 
 was a sum of money. They took the money and disposed of the 
 corpse by sinking it. They were then awarded part of the money by 
 way of salvage in an earlier proceeding in this same case.] 
 
 Lowell, District Judge.^^ The fund remaining in the registry of 
 the court after the payment of the salvage decreed more than two 
 years ago has three claimants: (1) The salvors, claiming the fund as 
 the finders of lost or abandoned goods whose owner is unknown, and 
 as having "such a property as will enable to keep it against all but the 
 original owner." Armory v. Delamirie, 1 Strange, 505 ; Russell v. 
 Proceeds of Forty Bales of Cotton, Fed. Cas. No. 12,154. (2) The 
 United States, claiming as successor to the prerogative rights of the 
 king of England. Peabody v. Proceeds of Twenty-Eight Bags of 
 Cotton, Fed. Cas. No. 10,869. (3) The public administrator of Suf- 
 folk county, who has taken out letters of administration, pursuant to 
 Pub. St. Mass. c. 131, § 2, upon the estate of the man on whom the 
 coins were found. In the petition and in the letters the description 
 of this man is that given by the salvors, and a name of doubtful spell- 
 ing, written in a receipt found upon his person, is assigned to him. 
 The evidence that this man was the owner of the property is con- 
 vincing. 
 
 The salvors and the United States both admit that their rights, what- 
 ever they may be, are subordinate to the claim of the original owner 
 of the property, if a claim by that owner be made in this proceed- 
 ing. Does the public administrator so represent the original owner 
 that his intervening claim is effectually the claim of that owner? That 
 an administrator ordinarily represents his intestate's rights of property 
 is plain. The administrator of the original owner of the jewel in Ar- 
 
 10 See Merrv v. Green, 7 M. & W. 623 (1S41) ; Kuyliendall v. Fisher, 61 W. 
 Va. 87, 56 S. E. 48, 8 L. R. A. (N. S.) 94, 11 Ann. Cas. 700 (1900). 
 
 11 Part of tlie opinion is omitted.
 
 40 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 mory v. Delamirie could have recovered the same from the chimney 
 sweep as effectually as could the owner himself if living. In what 
 respect does the public administrator in this case differ from an ordi- 
 nary administrator? He is appointed by the same court, and has sub- 
 stantially the same duties. That he holds a commission from the gov- 
 ernor, which entitles him to apply for administration in a case like 
 this, does not make him the less an administrator after his appointment 
 by the probate court. The rights and duties of an administrator do 
 not depend upon his relationship to the intestate or upon the existence 
 of next of kin, but upon his appointment by a court of competent ju- 
 risdiction. It is urged against the administrator's claim * * * 
 that the claim of the public administrator here is really no more than 
 a claim by the commonwealth of Massachusetts to property in which 
 it has no right. * * * It is true that by virtue of Pub. St. Mass. 
 c. 131, §§ 7, 12, 14. the fund, if paid to the public administrator, may 
 ultimately become the property of the commonwealth ; but this might 
 happen if it was paid to any other administrator. Pub. St. c. 135, § 3. 
 The condition under which the commonwealth is entitled to estate in the 
 hands of a public administrator and in the hands of any other adminis- 
 trator is substantially the same, viz. that no next of kin can be found. 
 If the deceased owner had been domiciled in Massachusetts, and 
 was without next of kin, his estate would certainly pass to the com- 
 monwealth, yet his administrator would be entitled to a fund like this. 
 In the case at bar it is quite possible that the deceased owner's next 
 of kin, who probably exist, will be discovered by the public admin- 
 istrator. If a certainty that the estate will eventually pass to the com- 
 monwealth, as in the case just put, does not defeat the claim of the 
 administrator, his claim cannot be defeated by a mere possibility that 
 the commonwealth will take. In a sense, it may doubtless be said that 
 the deceased owner has not been identified. His name is in doubt, and 
 his body was buried at sea. But, in the last analysis, identification al- 
 ways differs in degree, and not in kind. That a man's name is in 
 doubt, that he is known by different names, will not prevent admin- 
 istration upon his estate; and this court is informed that the practice 
 here is not uncommon to administer upon the estates of persons whose 
 names are wholly unknown. Should a guest staying in a hotel for- 
 eign to his domicile die suddenly in his room, and should his name 
 and relatives be undiscoverable, the money found on his person would 
 hardly become the property of the chimney sweep or the chambermaid 
 who should first lay hands upon it. Doulatless extreme cases may be 
 put. If treasure were dug up in a field, so placed that it had been 
 manifestly the property of the unknown man with whose body it had 
 been buried two centuries before, the public administrator, might not 
 be entitled to the property, even upon taking out letters upon the es- 
 tate of the skeleton. To an illustration like this it should be answered : 
 First, that it is not the case at bar; and, second, that in the case sup-
 
 Sec. 1) FINDER 41 
 
 posed the probate court would hardly issue the requisite letters. In 
 Russell V. Proceeds of Forty Bales of Cotton, and in Peabody v. Pro- 
 ceeds of Twenty-Eight Bags of Cotton, nothing was known of the 
 owners, and probably they were alive. * * * 
 
 As the administrator in this case represents the estate and the rights 
 of the undoubted owner, the fund in court must be paid over to him. 
 The decree may contain an express saving of any right which either 
 the salvors or the United States have against the fund while in the 
 hands of the administrator or in the treasury of the common wealth. ^= 
 
 MULGRAVE v. OGDEX. 
 
 (Court of Queen's Bench, 1.591. Croke Eliz. 219.) 
 
 Action sur trover of twenty barrels of butter: and counts that he 
 tarn negligenter custodivit that they became of little value. Upon this 
 it was demurred, and held by all the Justices, that no action upon 
 the case lieth in this case ; for no law compelleth him that finds a 
 thing to keep safely ; as if a man finds a garment and sufl:'ers it to be 
 ifioth-eaten ; or if one find a horse, and giveth it no sustenance ; but 
 if a man find a thing and useth it, he is answerable, for it is conver- 
 sion: so if he of purpose mis-useth it; as if one finds paper, and puts 
 it into the water, etc., but for negligent keeping no law punisheth him. 
 Et adjournatur.^^ 
 
 ISAACK V. CLARK. 
 
 (Court of King's Bench, 1615. 2 Bulst. 306.) 
 
 Coke, Chief Justice." * * * wiien a man doth finde goods, it 
 hath been said, and so commonly held, that if he doth dispossess him- 
 self of them, by this he shall be discharged, but this is not so, as ap- 
 pears by 12 E. 4, fol. 13, for he which findes goods, is bound to an- 
 swer him for them who hath the property; and if he deliver them 
 over to any one, unless it be unto the right owner, he shall be charged 
 for them, for at the first it is in his election, whether he will take 
 
 12 Ace: New York & H. R. Co. v. Haws, 56 N. T. 175 (1S74) ; Kuykendall 
 V. Fisher, 61 W. Va. 87, 56 S. E. 48, 8 L. R. A. (N. S.) 94, 11 Ann. Cas. 700 
 (1906). 
 
 13 A. lost a diamond, which B. found and subsequently returned badly nick- 
 ed. In an action for damages, held, A. made out a prima facie case by show- 
 ing that the diamond was thus damaged while in B.'s possession. .Joy v. 
 Crawford (Tex. Civ. App.) 154 S. W. 357 (1913). 
 
 nThe statement of facts and the opinions of Haughton, Dodderidge, and 
 Croke, JJ., and part of the opinion of Coke, C. J., are omitted.
 
 42 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 them or not into his custody, but when he hath them, one onely hath 
 then right unto them, and therefore he ought to keep them safely ; 
 if a man therefore which iindes goods, if he be wise, he will then 
 search out the right owner of them, and so deliver tliem unto him ; 
 if the owner comes unto him, and demands them, and he answers him, 
 that it is not known unto him whether he be tlie true owner of the 
 goods, or not, and for this cause he refuseth to deliver them; this 
 refusal is no conversion, if he do keep tliem for him." * * * j{ 
 a man finds goods an action upon the case licth for his ill and negli- 
 gent keeping of them, but no trover and conversion because this is but 
 a non fcsans.'* 
 
 CHASE V. CORCORAN. 
 (Supreme Judicial Court of Massachusetts, 1S71. 106 Mass. 286.) 
 
 [The plaintiff found the defendant's boat adrift. He took posses- 
 sion of it, stored it for two winters and made necessary repairs. The 
 defendant then took the boat from the plaintitT without paying the 
 plaintiff the sums so expended by him although requested to do so. 
 The plaintiff sued to recover the sums expended by him and compensa- 
 tion for his care and trouble, amounting to $26. The plaintiff testified 
 that the boat when found by him was worth $5.00. The trial judge- 
 ruled that the plaintiff could not recover. Plaintiff excepted.] 
 
 Gkav, J.*^ * * * 'pi^g claim of the plaintiff is to be regulated 
 by the common law. It is not a claim for salvage for saving the boat 
 when adrift and in danger on tide water; and does not present the 
 question whether the plaintiff had any lien upon the boat, or could re- 
 cover for salvage services in an action at common law. His claim is 
 for the reasonable expenses of keeping and repairing the boat after he 
 had brought it to the shore; and the single question, is, whether a 
 promise is to be implied by law from the owner of a boat, upon taking 
 it from a person who has found it adrift on tide water and brought it 
 ashore, to pay him for the necessary expenses of preserving the boat 
 while in his possession. We are of opinion that sucli a promise is to be 
 implied. The plaintiff, as the finder of the boat, had the lawful pos- 
 session of it, and the right to what was necessary for its preservation. 
 Whatever might have been the liability of the owner if he had chosen 
 to let the finder retain the boat, by taking it from him he made himself 
 liable to pay the reasonable expenses incurred in keeping and repairing 
 it. Nicholson v. Chapman, 2 H. BI. 254, 258, and note; Amory v. 
 
 10 See Wood v. Pierson, 45 Mich. 31.3, 7 N. W. 888 (1881). 
 18 See Doiighert.v v. Posegate, 3 Iowa, SS (ISuG) ; Watts v. Ward, 1 Or. SO, 
 62 Am. Dec. 299 (18.54). 
 
 1' Part of the opinion is omitted.
 
 Sec. 2) BAILOR AND BAILEE 43 
 
 Flyn, 10 Johns. (N. Y.) 102, 6 Am. Dec. 316; Toms v. Four Cribs of 
 Lumber, Taney, 533, 547; 3 Dane, Ab. 143; Story on Bailments, §§ 
 121 a, 621 a; 2 Kent, Com. (6th Ed.) 356; 1 Domat, pt. 1, lib. 2, tit. 9, 
 art. 2; Doct. & Stud. c. 51: Preston v. Neale, 12 Gray, 222. 
 Exceptions sustained.^* 
 
 SECTION 2.— BAILOR AND BAILEE 
 I. In Generai, 
 
 WESTERN TRANSP. CO. v. BARBER. 
 (Court of Appeals of New York, 1874. 56 N. Y. 544.) 
 
 [The plaintiff as a common carrier carried oats for Hoyt & Co. 
 Hoyt & Co. refused to receive the oats when tendered by the carrier. 
 The latter then delivered diem to the defendant, a warehouseman, on 
 plaintiff's account. On subsequent demand by Hoyt & Co. the defend- 
 ant delivered the oats to them. The plaintiff now brings trover.] 
 
 GrovEr, J.^" [After holding that the act of the plaintiff in deposit- 
 ing the oats in the warehouse was tortious and put an end to the plain- 
 tiff's lien for freight:] 
 
 The remaining question is whether the defendant, having received 
 the property by bailment from the plaintiff and delivered the same up- 
 on demand to the true owner, he can set up the latter facts as a defence 
 to an action by the plaintiff for the conversion of the property. 
 
 The right of a bailee to set up title in a third person, as against the 
 claim of his bailor, has been much considered. It is said that neither a 
 wharfinger nor warehouse man can deny the right of the person from 
 or for whom he receives the property. That they are the agents of the 
 persons from whom they receive the property, and cannot dispute their 
 title. Edwards on Bailments, 305, 306; Story on Bailments, §§ 450, 
 482. This general rule is sustained by numerous cases, a citation of 
 which is unnecessary. It applies in all cases where the bailee seeks to 
 avail himself of the, title of a third person for the purpose of keeping 
 the property himself from the bailor, and to all cases where the bailee 
 has not yielded to a paramount title in another. The question in this 
 case is whether it applies in case he has done so. It does not apply 
 where the property has been taken from the bailee by due process of 
 
 18 Ace: Reeder v. Anderson's Adm'rs, 4 Dana (Ky.) 193 (1836). For cases 
 dealing with tbe lien of a finder, see post, pp. 55-oy. 
 
 >»The statement of facts is rewritten and a part of the opinion is omitte'l.
 
 44 POSSESSOItY INTEHESTS IN CHATTELS (Cll. 3 
 
 law. Story on Agency, §§ 211, 249; Bliven v. Hudson River Railroad, 
 36 N. Y. 403. Nor where the bailor has obtained possession felonious- 
 ly or by force, or fraud. Bates v. Stanton, 8 N. Y. Super. Ct. 79 ; King 
 V. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420. Upon principle I 
 can see no difference. As to the right of the bailee to deliver the jjrop- 
 erty to the true owner upon demand by him as against his bailor having 
 no title, depending upon the mode in which the bailor obtained posses- 
 sion — how can this affect the question ? The bailee could not set up the 
 jus tertii against his bailor, however tortious the latter may have ac- 
 quired possession, unless the owner has claimed the property and the 
 bailee has yielded to the claim. Why may he not set up the right under 
 the same circumstances when the possession of his bailor was lawfully 
 acquired? A bailor can confer upon his bailee no better title than he 
 lias himself, except in cases of negotiating bills of lading and like cases. 
 If the owner demands the property of the bailee and he refuses to de- 
 liver it to him, he is at once liable to him in an action for its conversion. 
 This is a tort, and it would be somewhat anomalous, if the bailee should 
 shield himself from this by delivering tlie property to the owner, that 
 he could not show such facts as a defence to the groundless claim of 
 the bailor for the property. I tliink the best considered cases hold that 
 the right of a third person to which the bailee has yielded, by deliver- 
 ing the property, may be interposed in all cases as a defence to an ac- 
 tion brought by the bailor, subsequently, for the property. When the 
 owner comes and demands his property he is entitled to its immediate 
 deliver}-, and it is the duty of the possessor to make it. The law will 
 not adjudge the performance of this duty tortious as against a bailor 
 having no title. Biddle v. Bond, 6 Best & Smith, 224, was thoroughly 
 considered, and the above conclusions established upon grounds whicli 
 I think unanswerable. See, also, White v. Bartlett, 9 Bing. 382, and 
 note a; Cheesman v. Exall, 6 Ex. 341 ; Dixon v. Yates, 27 Eng. Com. 
 Law, 92. * * * 
 
 The order appealed from reversing tlie judgment recovered by the 
 plaintiff and directing a new trial must be aftirmed and judgment abso- 
 lute given for the defendant, upon the stipulation. All concur. 
 
 Order affirmed and judgment accordingly.
 
 Sec. 2) BAILOR AND BAILEE 45 
 
 KEITH V. DE BUSSIGNEY et al. 
 (Supreme Judicial Court of Massachusetts, 1901. 1T9 Mass. 255, 60 N. E. 614.) 
 
 Contract to recover the amount paid by the plaintiff to one Andrews, 
 a livery stable keeper, on a judgment obtained by him against her in 
 Andrews v. Keith, reported in 168 Mass. 558, 47 N. E. 423, with a 
 count on an account annexed to recover a reasonable amount for the 
 board of a horse from July 23, 1895, to February 6, 1896. Writ dated 
 January 20, 1898. 
 
 At the trial in the Superior Court, before Bond, J., the following 
 facts appeared: The defendants were husband and wife and were 
 the owners of the horse, which they delivered to the plaintiff under 
 the following agreement, signed by both defendants: "Memorandum 
 of Agreement made this day of September the 17th, 1894, between 
 C. S. Keith and Mr. and Mrs. Henry de Bussigney. Miss C. S. Keith 
 hereby agrees to take one horse belonging to said Mr. and Mrs. de Bus- 
 signey to keep and board from the said above date to the first day 
 of June, 1895, provided said horse is suitable for ordinary family use. 
 Said horse at all times to be properly fed and cared for, and it is 
 further agreed that the said C. S. Keith is to be in no way responsible 
 for the safety of said horse except in case of neglect or abuse, and 
 to report any sickness or trouble that may occur to its owners, Mr. 
 and Mrs. Henry de Bussigney, within a reasonable time. Compen- 
 sation to Miss C. S. Keith to be the use of said horse during the 
 above specified time and none other. Sharon, September 17, 1894." 
 
 At the end of the term the plaintiff sent the horse back to the de- 
 fendants, who refused to receive it, declaring that the plaintiff had in- 
 jured it by want of proi>er food and care and by over use; and 
 after some correspondence with the defendants the plaintiff' on July 
 23, 1895, put the horse in the livery stable of Andrews, and notified 
 the defendants that they would be responsible for its board. The de- 
 fendants refused to be responsible for any expense whatever in keep- 
 ing the horse and suggested that the plaintiff should kill it. Andrews 
 kept the horse until February 6, 1896, and then brought action against 
 the plaintiff for its keep, and recovered in Andrews v. Keith, mention- 
 ed above. * * * '" 
 
 Knowlton, J. The evidence introduced and offered had no ten- 
 dency to prove a conversion of the horse by the plaintiff. It went 
 no further than to show that the horse had been used in ploughing 
 greensward and in drawing heavy loads to Boston, and that it was 
 not in good condition when the plaintiff endeavored to return it. Even 
 if a jury might have found from the evidence that the plaintiff had 
 not properly used and fed the horse, they could not have found that 
 
 20 The statement of facts Is abridged.
 
 46 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 she had exercised dominion over it adverse to the defendant's rights, 
 in such a way as to make her liable for a conversion of it. At most it 
 would only have warranted a finding of negligence or breach of con- 
 tract on the part of the plaintiff, for which she was liable in damages. 
 
 The horse remained the property of the defendants, and it was their 
 duty to receive it when the plaintiff brought it back. On the issue 
 of liability the evidence was rightly excluded, and the first two of 
 the defendants' requests for instructions were rightly refused. 
 
 The tliird request was as follows: "The plaintiff, after the defend- 
 ants refused to receive the horse, even if there was no fault on her 
 part and she had performed all the obligations imposed on her by 
 law or by the contract, should do with it as persons with ordinary 
 experience and prudence would have done with it, having reference 
 to its value and all other circumstances. If the horse was of little 
 value, the fact that the defendants refused to receive it would not jus- 
 tify the plaintiff in keeping or boarding it for a long time or at a 
 relatively great expense, either in her own stable or elsewhere. She 
 should, after a reasonable time, have taken further steps to deter- 
 mine what disposition should be made of the horse, or have taken 
 means to dispose of it as she could have done under the statutes of 
 this Commonwealth." The judge refused to give this instruction, and 
 ruled that the only question for the jury to determine was what was 
 a reasonable sum for the keeping of the horse after the time when 
 the plaintiff offered to return it and the defendants refused to take it 
 back. 
 
 We are of opinion that this ruling was wrong. This was the sit- 
 uation of the parties. The plaintiff' had received the defendants' horse 
 under a bailment for hire, by the terms of which she was to have 
 the use of it for its board and keeping. The time at which this bail- 
 ment was to terminate had arrived, and tlie plaintiff had taken the 
 horse back to the defendants and they had refused to receive it. There 
 was no contract at any time by which she was to board the horse at 
 the defendants' expense. They denied that they had any interest in 
 the horse, contended that she had converted it to her own use, and 
 virtually forbade her to do or expend anything on their account for 
 the care or preservation of it. 
 
 There are at least two possible opinions as to the legal relations of 
 the parties and the principles of law by which tlieir rights are to be 
 determined. One is that suggested by the cases of Whiting v. Sul- 
 livan, 7 Mass. 107, Earle v. Cobum, 130 Mass. 596, and Putnam v. 
 Glidden, 159 Mass. 47, 34 N. E. 81, 38 Am. St. Rep. 394. In this 
 view the rules of law applicable to the case may be stated as follows : 
 It is settled that under circumstances like these in this case the law 
 will not imply a contract to reimburse one for the care of property 
 against an owner who has expressly or impliedly declined to permit 
 sych care to be given on his account. No different principle is applied
 
 Sec. 2) BAILOR AND BAILEE 47 
 
 when the property is a Hve animal from that appHcable to ordinary 
 goods. In each of the three cases cited the owner of a horse which 
 was in possession of another person refused to receive it, and the court 
 held that he was not liable for its keeping to the person in whose 
 possession it was left. The rule is that one cannot be held liable on 
 an implied contract to pay for that which he declines to permit to be 
 done on his account. The exception to the rule is that when the law 
 imposes upon one an obligation to do something which he declines to 
 do, and which must be done to meet some legal requirement, the law 
 in some cases treats i)erformance by another as performance for him, 
 and implies a contract on his part to pay for it. A familiar illustra- 
 tion of this is seen when the law holds one liable for necessaries, fur- 
 nished to his wife, if he has witliout cause refused to provide for 
 her; but there is no such obligation upon one to retain and preserve 
 his property, whether it be live animals or anything else. He may 
 destroy or abandon it, provided he does not thereby imperil the per- 
 son or property of another. 
 
 In the present case the plaintiflf had no right, against the will of the 
 defendants, to expend money for the care and presentation of their 
 horse on their account. The only liability of the defendants to her 
 was a liability in damages for their refusal to receive their horse when 
 she returned it. By the terms of the original bailment they impliedly 
 agreed to receive it and relieve the plaintiff of it when she should 
 bring it back, after the time for her keeping it had expired. Their 
 refusal to receive it was a breach of their contract, and for such dam- 
 age as resulted directly from their refusal the plaintiff can recover. 
 But that damage includes only the loss or expense that has fallen or 
 necessarily would fall upon the plaintiff in ridding herself of the horse 
 in a reasonable way. It would not include compensation for the board 
 of the horse for an indefinite time for the purpose of preserving it for 
 the defendants. She was under no contract or obligation to keep 
 the horse for their benefit, and if she so kept it, or if she kept it 
 for her own benefit, because she was doubtful how the dispute ulti- 
 mately would be decided, such keeping was not a direct result of the 
 defendants' breach of contract, and she cannot charge them with the 
 expense of it. 
 
 The plaintiff in this case had not the full right of an involuntary 
 depositary, who finds property whose owner is unknown. The finder 
 of property may do that which is reasonably necessary for its preserva- 
 tion to prevent loss, and hold the owner responsible on the ground 
 of im.piied agency. Preston v. Neale, 12 Gray, 222. See Field v. 
 Roosa, 159 Mass. 128, 132, 34 X. E. 77. But if the owner is known 
 and forbids incurring expense at his charge, no contract can be implied 
 against him. 
 
 In the other view of the case the law may be stated tlius : On the 
 refusal of the defendants to receive the horse the relation of bailor
 
 48 
 
 POSSESSORY IXTEKESTS IN CHATTELS 
 
 (Ch. 3 
 
 and bailee still continued (Andrews v. Keith, 168 Mass. 558, 47 N. E. 
 423), but the obligation of the plaintiff to set the use of the horse 
 against its keeping was at an end. It was a necessary incident of the 
 relation of the parties that she should be entitled to charge the de- 
 fendants for the exj^ense which formerly she had been bound to bear, 
 lx;cause that expense had to be incurred by her so long as she remained 
 the defendants' bailee. 
 
 But the defendants' liability under this view is no greater than as 
 stated under the other ; for she was bound to do that which was rea- 
 sonable under the circumstances to keep the liability as small as pos- 
 sible. There is a line of decisions which establish the doctrine that 
 where one party has broken an executory contract, the other who is 
 in the right cannot go on indefinitely as if the contract still were un- 
 broken, but is bound to do what he reasonably can to stop the dam- 
 ages for which the first party will be liable in consequence of his 
 breach. Collins v. Delaporte, 115 Mass. 159, 162; Clark v. Mar- 
 siglia, 1 Denio (N. Y.) 317, 43 Am. Dec. 670; Danforth v. Walker, 37 
 Vt. 239 ; Allen v. Jarvis, 20 Conn. 38 ; Cort v. Ambergate Railway, 
 17 O. B. 127. 
 
 In either view the plaintiff was bound to make such disposition 
 of the horse as would terminate the defendants' liability for damages 
 or for expenses as soon as she reasonably could do it. 
 
 Exceptions sustained. 
 
 II. Lien 
 
 (A) Scope of Lien 
 
 CHAPMAN V. ALLEN. 
 (Court of King's Bench, 1632. Cro. Car. 271.) 
 
 Action of trover of five kine. Upon not guilty pleaded, a special 
 verdict was found, that one Belgrave was possessed of those five kine, 
 and put them to pasturage with the defendant, and agreed to pay to 
 him twelve pence for every cow weekly as long as they remained with 
 him at pasture ; and that afterwards Belgrave sold them to the plain- 
 till, and he required them of the defendant, who refused to deliver 
 them to the plaintiff, unless he would pay for the pasturage of them 
 for the time that they had been with him, which amounted to ten 
 pounds : afterwards one Foster paying him the said ten pounds by 
 the appointment of Belgrave, he delivered the five beasts to Foster : 
 and if super totam materiam he be guilty, tlney find for the plaintiff, 
 and damages twenty-five pounds ; and if, etc. then for the defendant. 
 
 Jones, Justice, and myself (absentibus cseteris Justiciariorum), con- 
 ceived, that this denial upon demand, and delivery of them to Foster,
 
 Sec. 2) BAILOB AND BAILEE 49 
 
 was a conversion, and that he may not detain the cattle against him 
 who bought them until the ten pounds be paid, but is inforced to 
 have his action against him who put them to pasturage. And it is 
 not like to the cases of an innkeeper or taylor; they may retain the 
 horse or garment delivered them until tliey be satisfied, but not when 
 one receives horses or kine or other cattle to pasturage, paying for 
 them a weekly sum, unless there be such an agreement betwixt them. 
 Whereupon rule was given that judgment should be entered for the 
 plaintiff. 
 
 SKINNER V. UPSHAW. 
 
 (Court of Queen's Bench, 1702. 2 Ld. Eaym. 752.) 
 
 The plaintiff brought an action of trover against the defendant, 
 being a common carrier, for goods delivered to him to carry, etc. 
 Upon not guilty pleaded, the defendant gave in evidence, that he of- 
 fered to deliver the goods to the plaintiff, if he would pay him 
 his hire ; but that the plaintiff refused, etc. and therefore he retained 
 them. And it was ruled by HoLT, Chief Justice, at Guildhall (the 
 case being tried before him there), May 12, 1 Ann. Reg. 1702, that a 
 carrier may retain the goods for his hire ; and upon direction, the de- 
 fendant had a verdict given for him. 
 
 Ex parte BUSH. 
 (Court of Chancery, 1734. 7 Viner's Abridgment, 74.) 
 
 An attorney had been employed by one who became bankrupt. As- 
 signees petition to have up papers and that the attorney might come 
 in for his demands pari passu with other creditors. 
 
 Lord Chancellor [Talbot]. f The attorney hath a lien upon the 
 papers in the same manner against assignees as against the bankrupt, 
 and though it doth not arise by any express contract or agreement yet 
 it is as effectual, being an implied contract by law. * * * 
 
 tPart of the opinion is omitted. 
 Big.Pees.Pbop. — i
 
 50 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 KRUGER V. WILCOX. 
 
 (Court of Chancerj', 1755. 1 Anib. 252.) 
 
 This cause coming on for further directions, the case was : 
 
 Mico was general agent in England for Watkins, who was a mer- 
 chant abroad, and at different times had received considerable con- 
 signments of goods, and upon the balance of accounts was in dis- 
 burse. Afterwards Watkins consigned to him a parcel of logwood, 
 for which he paid the charges, etc. Watkins coming to England, 
 Mico said, as he was here, he might dispose of tlie goods himself: 
 Watkins accordingly employs a broker to sell them, and ]\Iico tells 
 the broker, that \Vatkins intends to sell them himself, to save commis- 
 sion ; and Mico gave orders to the warehouseman, to deliver the goods 
 to that broker. The broker sells them, and makes out bills of parcels 
 to Watkins; and opens an account with Watkins, but takes no no- 
 tice of Mico. 
 
 After the goods were sold, Mico begins to suspect Watkins's cir- 
 cumstances, and resorts to the broker, to know whether he has opened 
 an account with Watkins. 
 
 The great question in the cause was, Supposing Mico had a lien 
 on these goods and produce, so as to be intitled to retain them for 
 the balance of the account ; whether he has not parted with that right ? 
 
 After argument at the bar. Lord Chancellor adjourned the cause to 
 the 27th, and desired the four merchants, who were examined in the 
 cause on the different sides, might attend in court, in order to be con- 
 sulted by him upon die point. And accordingly this day they attend- 
 ed, viz. ]Mr. Alderman Baker and Bethell, and Mr. Willetts and Foner- 
 eau : and after having asked them several questions, upon the cus- 
 tom and usage of merchants relating to the matter in doubt, his Lord- 
 ship gave his opinion with great clearness, as follows : 
 
 Lord HardwickE, Chancellor.-^ This is a case of bankruptcy, in 
 which this Court always inclines to equality; yet if any person has 
 a specific lien, or a special property in goods, which is clear and plain, 
 it shall be reserved to him, notwithstanding the bankruptcy. 
 
 Question is. Whether, in this case, Mico, is intitled to a specific lien, 
 and consequently, a preference in point of satisfaction out of the 
 money arising by sale of these goods? 
 
 Two things are to be considered : 
 
 1st, What lien a factor gains on goods consigned to him by a mer- 
 chant abroad? and whether Mico gained such lien in this case? 
 
 2d, If he did, Whether he has done any thing to part with it? 
 
 As to 1st. All the four merchants, both in their examination in 
 tlie cause, and now in Court, agree, that if there is a course of deal- 
 
 " Part of tbe opiuiou is omitted.
 
 Sec. 2) BAILOK AND BAILEE 51 
 
 ings and general account between the merchant and factor, and a bal- 
 ance is due to the factor, he may retain the ship and goods, or prod- 
 uce, for such balance of the general account, as well as for the charg- 
 es, customs, etc., paid on the account of the particular cargo. They 
 consider it as an interest in the specific things, and make them arti- 
 cles in the general account. Whether this was ever allowed in trover 
 at law, where the goods were turned into money, I cannot say ; nor 
 can I find any such case. I have no doubt, it would be so in this Court, 
 if the goods remained in specie; nor do I doubt of its being so, where 
 they are turned into money.^^ * * * 
 
 DAVIS V. BOWSHER. 
 
 (Court of King's Bench, 1794. 5 Term R. 488.) 
 
 This was an action of assumpsit by the plaintiffs as indorsees of a 
 bill of exchange for £635. 10s. against the defendant as drawer. The 
 defendant drew the bill in question on one Ames, payable to Cook, 
 from whom he received no consideration for it. Cook was a trader 
 at Bristol, and kept an account with the plaintiffs, who were bankers 
 in the same place. The course of dealing between them was this : 
 Cook lodged bills payable at future days with the plaintiffs from time 
 to time, and drew upon them for any money he wanted in advance ; 
 and the plaintiffs charged no interest on these advances, but used to 
 select out of the bills in their hands such as they pleased and were 
 nearest to the sum advanced, and discounted these bills, debiting Cook 
 with tlie amount of such discount in his account. On the 26th Feb- 
 ruary the balance on Cook's account with the plaintiffs was £103. in 
 his favour. On the 27th he directed his clerk to pay in to the plain- 
 tiffs other bills to the amount of about £3000., which was done; and 
 he applied for another advance, which the plaintiffs at first refused, 
 but they afterwards consented to let him have about £1400. and actu- 
 ally entered the discount on such of the bills as they selected, amongst 
 which the bill in question was not one. And on the plaintiff's' re- 
 fusing to make Cook any further advance, he demanded this and the 
 other bills which had not been discounted, none of which were then 
 
 2 2 A. was B.'s agent for the sale of 100 bales of hops, 16 hales of which 
 still remained in A.'s possession. B. converted certain property belonging to 
 A. Held, A. has no lien upon the hops still remaining in his possession for 
 the value of the property so converted. Tliacher v. Hannahs, 27 N. Y. Super. 
 Ct. 407 (1866). See Houghton v. Matthews, 3 B. & P. 485 (1803) ; Brander v. 
 Phillips, 10 Pet. 121, 10 L. Ed. 909 (1S42). 
 
 A. was B.'s factor and owed B. $1,.500 upon a balance of accounts. B. con- 
 signed goods to A. upon which A. paid .f400. B. replevied the goods. Held, 
 A. has no lien thereon. Enoch v. Wehrkamp, 16 N. Y. Super. Ct, 398 (185S) ; 
 ace: McGraft v. Kugee, 60 Wis. 400, 19 N. \V. 530, 50 Am. Rep. 378 (1884).
 
 52 POSSESSOUY INTEUESTS IN CHATTELS (Cll. li 
 
 due: but the plaintiffs refused to deliver any of thcin up, alleging their 
 right to detain them all, in case any of the discounted bills shouUl 
 prove bad. Those discounted bills had longer to run than the bill in 
 question. At this time none of the discounted bills had been dis- 
 honoured ; though some of them, beyond the amount of the present 
 bill, afterwards were so ; and at the time of the demand and refusal 
 the sums which the plaintiffs had advanced to Cook were considera- 
 bly more than covered by the amount of the discounted bills in their 
 hands, in the event of their proving to be good bills. Before this ac- 
 tion was brought Cook became a bankrupt, and the plaintiffs proved 
 their debt under his commission for the balance of iheir account, and 
 in the affidavit, usual upon such occasions, they swore that they had 
 no security for their debt, except certain bills which they specified, 
 and which only comprehended the discounted bills, and not the bill 
 in question. There was also some evidence at the trial of the general 
 custom of the bankers at Bristol to keep their accounts in the same 
 manner as the course of dealing shewn between the plaintiffs and 
 Cook. * * * 
 
 Lord Kenyon, C. J.*' I disclaim grounding my opinion upon any 
 particular law applicable to the City of Bristol only: I am clearly of 
 opinion that by the general law of the land a banker has a general lien 
 upon all the securities in his hands belonging to any particular per- 
 son for his general balance, unless there be evidence to shew that he 
 received any particular security under special circumstances, which 
 would take it out of the common rule. But it is taken for granted 
 by the counsel in support of the rule, that the party had a right to de- 
 mand of the bankers certain bills, which were not discounted, with- 
 out paying their general balance ; and the whole argument is built on 
 that mistake. I think he had only a right to demand this bill sub 
 modo, namely, on paying all that was due to the bankers : for wher- 
 ever a banker has advanced money to another, he has a lien on all the 
 paper securities which come into his hands for the amount of his gen- 
 eral balance. It has been urged that the bankers abandoned their gen- 
 eral lien in this case, by applying the money advanced to the discount 
 of a particular bill ; but nothing appears to warrant such a supposi- 
 tion. So long as they were in advance upon the general account, they 
 had a right to charge interest whether in one shape or another. * * * 
 It is very proper that there should be a known rule to govern the con- 
 duct of all persons of this description, whose dealings are very exten- 
 sive; and that rule is, that no person can take any paper securities 
 out of the hands of his banker, without paying him his general bal- 
 ance, unless such securities were delivered under a particular agree- 
 ment, which enables him so to do. If we were to set aside this ver- 
 dict, we should unsettle that which has always been considered as the 
 
 23 The statement of facts is abridged, part of the opinion of Lord Kenyon, 
 C. J., and the full opinions of Ashhurst and Grose, JJ., are omitted.
 
 Sec. 2) BAILOR AND BAILEE 53 
 
 law on this subject, and the constantly received course of trade found- 
 ed upon that law. I am therefore clearly of opinion that we ought 
 not to treat this even as a doubtful question, but that we should dis- 
 charge the rule for a new trial.'* 
 
 HURLBERT v. BRIGHAM. 
 
 (Supreme Court of Vermont, 1SS3. 56 Vt. 3CS.) 
 
 Ross, J.^° The plaintiff seeks to recover the amount of a judgment 
 recovered in his favor as administrator of the estate of Chloe D. 
 Spooner, which the defendants, attorneys for him, and Mrs. Spooner 
 in the suit, collected ; and retained the money. The suit was for the 
 recovery of property which belonged to Mrs. Spooner, and was com- 
 menced by her while in life, and subsequently prosecuted to judgment 
 by the plaintiff, as administrator of her estate. The defendants were 
 the attorneys who prosecuted that suit to judgment, and who had also 
 been employed in other suits by Mrs. Spooner, and by the plaintiff 
 as administrator of her estate. The defendants claim to hold the 
 money thus received by them in payment and satisfaction of the gen- 
 eral balance due them for legal services, rendered for Mrs. Spooner 
 while in Hfe, and for her estate subsequently to her decease. The de- 
 fendants did not present to, and have allowed by, the commissioners 
 on the estate of Chloe D. Spooner, that part of their claim for legal 
 services which accrued in her lifetime. 
 
 I. It is contended by the estate that that portion of the defendant's 
 claim for legal services which accrued in the lifetime of Mrs. Spooner 
 is barred by their failure to present and have it allowed by the com- 
 missioners on her estate. This contention would be sustained if this 
 were an action by the defendants to recover for such services. But 
 the defendants claim that they had a lien at common law upon the 
 money which came into their hands in the course of their employment 
 as attorneys, and that they had the right to retain the money until their 
 claim for services, both before and after the decease of Mrs. Spooner, 
 was satisfied. Liens upon property belonging to an estate, whether 
 created by mortgage, or pledge, whether upon real or personal proi>- 
 erty, are not discharged by failure to have the debts, for which the 
 property is held, allowed by the commissioners on the estate. Doubt- 
 less, to render the pledge of personal property available in such a case, 
 it must be in the possession of the pledgee. Such allowance is only 
 
 2* It was held in Naylor v. Mangles, 1 Esp. 109 (1794), that a wharfinger 
 has a general lien. 
 
 A packer lias a general lien. Ex parte Deeze, 1 AtUyns, 228 (174S) ; In re 
 Witt, L. R. 2 Ch. Div. 4S9 (1876). 
 
 25 The statement of facts and part of the opinion are omitted.
 
 54 
 
 POSSESSORY INTERESTS IN CHATTELS 
 
 (Ch.3 
 
 necessary to secure a dividend, or payment in full, out of the estate. 
 The lien withholds so much of the property from the estate as is thus 
 pledged to the extent of the debt for which it is pledged. The right 
 to enforce payment from the property pledged, is not affected by fail- 
 ure to have the debt allowed by the commissioners on the estate ; but 
 the right to participate with the creditors of the estate in a dividend 
 declared by the Probate Court is thereby lost.^° * * * 
 
 II. It is further contended by the plaintiff that at most the defend- 
 ants can only retain from the money collected, the amount of the tax- 
 able costs, for their services in the suit in which the money was re- 
 covered. * * * This contention would prevail, if the defendants 
 were asserting only what is called an attorney's charging lien upon the 
 judgment which had been or might be recovered in the suit liy aid of 
 their services ; that is, if they came to the court, to have their serv- 
 ices and disbursements made a charge upon whatever judgment might 
 be recovered in the suit, so as to protect themselves against an assign- 
 ment of the claim in prosecution, or a settlement of it, before judg- 
 ment; or to have them made a charge upon the judgment already re- 
 covered so as to protect them against an assignment of the judgment, 
 or its payment to the plaintiff. This protection and lien the attorney 
 can acquire and assert by filing a claim of such lien in the court where 
 the cause is pending, or judgment recovered, and by giving notice 
 thereof to the defendants in the cause. Therefore, if the suit be for 
 the recovery of an undisputed debt, and not for a tort, to the extent of 
 such lien the court will protect him against an assignment, or settle- 
 ment of the claim in suit, or payment of the judgment when recov- 
 ered, without first providing for payment for his services, and dis- 
 bursements in that cause. * * * g^j. jj-|g jj^^ recognizes in favor 
 of attorneys not only a charging lien, as already set forth, but a re- 
 taining lien. The two liens, their nature, extent, and distinguishing 
 characteristics, are clearly set forth in Wharton's Agents and Agency, 
 §§ 623 to 630. The failure to distinguish between the two has led to 
 an apparent, though not real, conflict and confusion in the decisions 
 on this subject. By a retaining lien an attorney has the right to re- 
 tain money or documents, — such as deeds, notes, and other papers, — 
 which come into his hands, professionally for collection, or other pro- 
 fessional action, for the payment of whatever is due him for profes- 
 sional services, whether bestowed upon the particular thing retained 
 or otherwise. * * * Hence at common law, as recognized by the 
 decisions of the courts of England and of this court, the defendants 
 had the right to retain from the money in their hands enough to pay 
 the general balance due them for professional services for the intes- 
 tate, and for her estate. The plaintiff discharged the defendants in 
 one of the suits after they refused to pay the money collected, then 
 
 2« A lien may be asserted against goods, even though they are exempt from 
 execution. Swan v. Bournes, 47 Iowa, 501, 29 Am. Rep. 492 (1877).
 
 Sec. 2) BAILOR AND BAILEE 55 
 
 in their hands, to him. This he had the right to do, ina?much as they 
 then had in their hands money more than enough to satisfy the gen- 
 eral balance then their due. Whether a client has the right to dis- 
 charge an attorney from a suit, in which he has a claim for unpaid 
 services, without first tendering payment for such services, is not in- 
 volved in the decision of this case, and no opinion is expressed in re- 
 gard to it. On the facts found by the referee, and the law applicable 
 thereto, the pro forma judgment of the County Court is reversed, and 
 judgment rendered for the plaintiff to recover the sum of sixteen 
 57-100 dollars [this being the balance due after deducting the at- 
 torney's charges], with interest from April 26, 1881, and costs, and 
 to have a certified execution therefor.^' 
 
 NICHOLSON V. CHAPMAN. 
 (Court of Common Pleas, 1793. 2 H. Bl. 254.) 
 
 This was an action of trover, brought under the following circum- 
 stances : A considerable quantity of timber, the property of the plain- 
 tiff, was placed in a dock on the banks of the Thames, but the ropes 
 with which it was fastened accidentally getting loose, it floated, and 
 was carried by the tide as far as Putney, and there left at low water, 
 upwn a towing path within the manor of Wimbledon. Being found 
 in this situation, the bailiff of the manor, one Fairchild, employed tlie 
 defendant Chapman, to remove the timber with his waggon from the 
 towing path, which it obstructed, to a place of safety at a little dis- 
 tance. This Chapman accordingly did, and when the plaintiff sent to 
 demand the timber to be restored to him, refused to deliver it up, un- 
 less i6. 10s. 4d. were paid, which he claimed partly by way of salvage, 
 as a customary right due to the lord of the manor, and partly as a 
 recompense to himself for the trouble of drawing the timber from 
 the water side to the place where it then lay: but this demand the 
 plaintiff refused to comply with, and did not tender any other 
 sum. * * * 23 
 
 EyrB, L. C. J. The only difficulty that remained with any of us, 
 after we had heard this case argued was upon the question whether 
 
 s'A. assisted in the promotion of a railway company before its incorpora' 
 tion, and subsequently acted as the attorney of the corporation. Held, A. 
 does not have a lien upon the papers of the corporation for his charges 
 arising out of the promotion of the company, although such charges were 
 by the statute of incorporation made a debt of the company. In re Galland 
 L. R. 31 Ch. Div. 296 (1SS5). 
 
 In general, on attorney's liens, see Welsh v. Hole, 1 Douglas, 23S (1T79) ; 
 Sanders v. Seelye. 12S Til. 631, 21 N. E. 601 (1SS9) ; Dubois' Appeal, 38 Pa. 
 231, SO Am. Dec. 478 (1861). 
 
 2 8 The statement of facts Is abridged.
 
 POSSESSORY INTEKESTS IN CHATTELS 
 
 (Ch. 3 
 
 this transaction could be assimilated to salvage? The taking care of 
 goods left by the tide upon the banks of a navigable river, communi- 
 cating with the sea, may in a vulgar sense be said to be salvage ; but 
 it has none of the qualities of salvage, in respect of which the laws 
 of all civilized nations, the laws of Oleron, and our own laws in par- 
 ticular, have provided that a recompcnce is due for the saving, and 
 that our law has also provided that this recompcnce should be a lien 
 upon the goods which have been saved. Goods carried by sea are 
 necessarily and unavoidably exposed to the perils which storms, tem- 
 pests and accidents (far beyond the reach of human foresight to pre- 
 vent) are hourly creating, and against which, it too often happens 
 that the greatest diligence and the most strenuous exertions of the 
 mariner cannot protect them. When goods are thus in imminent dan- 
 ger of being lost, it is most frequently at the hazard of the lives of 
 those who save them, that they are saved. Principles of public policy 
 dictate to civilized and commercial countries, not only the propriety, 
 but even the absolute necessity of establishing a liberal recompcnce 
 for the encouragement of those who engage in so dangerous a service. 
 Such are the grounds upon which salvage stands ; they are recog- 
 nized by Lord Chief Justice Holt in the case which has been cited 
 from Lord Raymond and Salkeld (1 Ld. Raym. 393, Salk. 654, pi. 2). 
 But see how very unlike this salvage is to the case now under con- 
 sideration. In a navigable river within the flux and reflux of the tide, 
 but at a great distance from tlie sea, pieces of timber lie moored to- 
 gether in convenient places ; carelessness, a slight accident, perhaps 
 a mischievous boy, casts off the mooring rope, and the timber floats 
 from the place where it was deposited, till the tide falls and leaves it 
 again somewhere up>on the banks of the river. Such an event as this, 
 gives the owner the trouble of employing a man, sometimes for an hour, 
 and sometimes for a day, in looking after it till he finds it, and brings 
 it back again to the place from whence it floated. If it happens to 
 do any damage, the owner must pay for that damage ; it will be im- 
 putable to him as carelessness, that his timber in floating from its 
 moorings is found damage-feasant, if that should happen to be the 
 case. But this is not a case of damage-f easance ; the timber is found 
 lying upon the banks of the river, and is taken into the f>ossession, and 
 under the care of the defendant, without any extraordinary exertions, 
 without the least personal risk, and in truth, with very little trouble. 
 It is therefore a case of mere finding, and taking care of the thing 
 found (I am willing to agree) for the owner. This is a good office, 
 and meritorious, at least in the moral sense of the word, and certainly 
 entitles the party to some reasonable recompcnce from the bounty, 
 if not from the justice of the owner; and of which, if it were refused, 
 a court of justice would go as far as it could go, towards enforcing the 
 payment. So it would if a horse had strayed, and was not taken as 
 an estray by the lord under his manorial rights, but was taken up by
 
 Sec. 2) BAILOR AND BAILEE 57 
 
 some good-natured man and taken care of by him, till at some trouble, 
 and perhaps at some expence, he had found out the owner. So it 
 would be in ever}' other case of finding that can be stated (the claim 
 to the recompence differing in degree, but not in principle) ; which 
 therefore reduces the merits of this case to this short question, wheth- 
 er every man who finds the property of another, which happens to 
 have been lost or mislaid, and voluntarily puts himself to some trouble 
 and expence to preserve the thing, and to find out the owner, has a 
 lien upon it for the casual, fluctuating and uncertain amount of the 
 recompence which he may reasonably deserve? It is enough to say, 
 that there is no instance of such a lien having been claimed and al- 
 lowed; the case of the pointer dog (2 Black. 1117) was a case in which 
 it was claimed and disallowed, and it was thought too clear a case to 
 bear an argument. Principles of public policy and commercial neces- 
 sity support the lien in the case of salvage. Not only public policy 
 and commercial necessity do not require that it should be established 
 in this case, but very great inconvenience may be apprehended from it. 
 if it were to be established. The owners of this kind of property, and 
 the owners of craft upon the river which lie in many places moored 
 together in large numbers, would not only have common accidents 
 from the carelessness of their servants to guard against, but also the 
 wilful attempts of ill-designing people to turn their floats and vessels 
 adrift, in order that they might be paid for finding them. I mentioned 
 in the course of the cause another great inconvenience, namely, the situ- 
 ation in which an owner seeking to recover his property in an action of 
 trover will be placed, if he is at his peril to make a tender of a suffi- 
 cient recompence, before he brings his action : such an owner must 
 always pay too much, because he has no means of knowing exactly 
 how much he ought to pay, and because he must tender enough. I 
 know there are cases in which the owner of property must submit to 
 this inconvenience ; but the number of them ought not to be increased ; 
 perhaps it is better for the public that these voluntar\^ acts of benevo- 
 lence from one man to another, which are charities and moral duties, 
 but not legal duties, should depend altogether for their reward upon 
 the moral duty of gratitude. But at any rate, it is fitting that he who 
 claims the reward in such a case should take upon himself the burthen 
 of proving the nature of the service which he has performed, and the 
 quantum of the recompence which he demands, instead of throwing 
 it upon the owner to estimate it for him, at the hazard of being non- 
 suited in an action of trover.-® 
 Judgment for the Plaintiff. 
 
 29 Ace: Etter v. Edwards. 4 Watts (Pa.) 63 (1S3.5) ; Tome v. Four Cribs 
 of Lumber, Taney, 533 (lSo3). See Preston t. Neale, 12 Gray (Mass.) 222 
 (185S).
 
 58 
 
 POSSESSORY INTERESTS IN CHATTELS 
 
 (Ch.3 
 
 WENTWORTH v. DAY. 
 
 (Supreme Judicial Court of Massachusetts, 1841. 3 Mete. 352, 37 Am. 
 
 Dec. 145.) 
 
 [The plaintiff lost a watch. He published the following advertise- 
 ment in a local newspaper : "Twenty dollars reward. Lost upon the 
 road from Haverhill to Brighton, about two miles from Haverhill 
 Bridge, a gold lever watch. Whoever will return it to this office shall 
 receive the above reward. Francis Wentworth, October 12th." A 
 minor son of the defendant found the watch and delivered it to the 
 defendant, who took the custody of it for his son. The plaintiff re- 
 fused to pay the $20.00 reward and the defendant refused to deliver 
 the watch. Upon these facts the plaintiff brought trover for the watch 
 and the case was submitted to the court upon an agreed statement.] 
 
 Shaw, C. J.^° Although the finder of lost property on land has no 
 right of salvage, at common law, yet if the loser of property in order 
 to stimulate the vigilance and industry of others to find and restore 
 it, will make an express promise of a reward, either to a particular 
 person, or in general terms to any one who will return it to him, and. 
 in consequence of such oft'er, one does return it to him, it is a valid 
 contract. Until something is done in pursuance of it, it is a mere offer, 
 and may be revoked. But if, before it is retracted, one so far coin- 
 plies with it, as to perform the labor, for which the reward is stipu- 
 lated, it is the ordinary case of labor done on request, and becomes 
 a contract to pay the stipulated compensation. It is not a gratuitous 
 service, because something is done which the party was not bound to 
 do, and without such offer might not have done. Symmes v. Frazier, 
 6 Mass. 344, 4 Am. Dec. 142. 
 
 But the more material question is, whether, under this offer of re- 
 ward, the finder of the defendant's watch, or the father, who acted in 
 his behalf and stood in his right, had a lien on the watch, so that he 
 was not bound to deliver it till the reward was paid. 
 
 A lien may be given by express contract, or it may be implied from 
 general custom, from the usage of particular trades, from the course 
 of dealing between the particular parties to the transaction, or from 
 the relations in which they stand, as principal and factor. * * * 
 
 In the present case, the duty of the plaintiff' to pay the stipulated 
 reward arises from the promise contained in his advertisement. That 
 promise was, that whoever should return his watch to the printing 
 office should receive twenty dollars. No other time or place of pay- 
 ment was fixed. The natural, if not the necessary implication is that 
 the acts of performance were to be mutual and simultaneous : the 
 one to give up the watch, on payment of the reward; the other to 
 
 3 Tart of the opinion Is omitted.
 
 Sec. 2) BAILOR AND BAILEE 59 
 
 pay the reward, on receiving the watch. Such being, in our judgment, 
 the nature and legal effect of this contract, we are of opinion that the 
 defendant, on being ready to deliver up the watch, had a right to re- 
 ceive the reward, in behalf of himself and his son, and was not bound 
 to surrender the actual possession of it, till the reward was paid, and 
 therefore a refusal to deliver it, without such payment, was not a 
 conversion. 
 
 It was competent for the loser of tlie watch to propose his own 
 terms. He might have promised to pay the reward at a given time 
 after the watch should have been restored, or in any other manner 
 inconsistent with a lien for the reward on the article restored ; in 
 which case, no such lien would exist. The person restoring the watch 
 would look only to the personal responsibility of the advertiser. It 
 was for the latter to consider, whether such an offer would be equally 
 efficacious in bringing back his lost property, as an offer of a reward 
 secured by a pledge of the property itself; or whether, on the con- 
 trary, it would not afford to the finder a strong temptation to conceal 
 it. With these motives before him, he made an offer, to pay the re- 
 ward on the restoration of the watch ; and his subsequent attempt 
 to get the watch, without performing his promise, is equally inconsis- 
 tent with the rules of law and the dictates of justice. 
 
 The circumstance, in this case, that the watch was found by the 
 defendant's son, and by him delivered to his father, makes no differ- 
 ence. Had the promise been to pay the finder, and the suit were 
 brought to recover the reward, it would present a different question. 
 Here the son delivered the watch to the father, and authorized the 
 father to receive the reward for him. If the son had a right to de- 
 tain it, the father had the same right, and his refusal to deliver it to 
 the owner without payment of the reward was no conversion. 
 
 Judgment for the defendant. ^^ 
 
 31 Ace: Cummings v. Gann, 52 Pa. 4S4 (1S66). 
 
 "There was no fixed or certain reward offered by the owner to he paid on 
 the delivery of his property. His offer was to pay a 'liberal reward." Who 
 was to he the arbiter of the lilierality of the offered reward? It cannot be 
 supposed that the owner, by his offer, designed to constitute the recoverer 
 of his property the exclusive judge of the amount to be paid him as a re- 
 ward. And it is equally unreasonable and unjust to say that the owner 
 should be such exclusive judge. In the event of a difference between them, 
 upon the subject, the amount to he paid must be ascertained by the judgment 
 of the appropriate judicial tribunal. This would involve the delays incident 
 to litigation, and it would be a gross perversion of the intention of the own- 
 er to infer, from his offered reward, an agreement on his part, that he was 
 to be kept out of the possession of his property till all the delays of litiga- 
 tion were exhausted. To the bailee thus in possession of property, such a 
 lien would rarely be valuable, except as a means of oppression and extor- 
 tion ; and therefore the law will never infer its existence either from the 
 agreement of the parties, or in furtherance of public convenience or policy." 
 Wilson v. Guyton, 8 Gill (Md.) 213, 215 (1S49).
 
 60 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 RUSHFORTH v. HADFIELD. 
 (Court of King's Bench, 1S06. 7 East, 224.) 
 
 This was an action of trover to recover the vakie of a quantity of 
 cloth which the bankrupts had sent by the defendants as comuion car- 
 riers, who claimed a lien upon it for tlieir general balance due to 
 them as such carriers for other goods before carried by them for the 
 bankrupts. The plaintiffs had tendered the carriage price of the par- 
 ticular goods in dispute, and the sole question was, Whether the de- 
 fendants as common carriers, had a lien for their general balance. 
 On die first trial a verdict was found for the defendants, which this 
 court thought was not sustained by the evidence, and therefore they 
 granted a new trial. The cause was again tried at the last assizes at 
 York, before Chambre, J. 
 
 [Various witnesses testified to several occasions on which carriers 
 had successfully retained goods for the general balance due them.] 
 
 It was left to the jury to decide whether the usage were so gen- 
 eral as to warrant them in presuming that the bankrupts knew it, and 
 understood that tliey were contracting with the defendants in con- 
 formity to it; in which case they were to find for the defendants: 
 otherwise they were told that the general rule of law would entitle the 
 plaintiffs to a verdict. On this direction the jury found for the plain- 
 tiffs ; which was moved to be set aside in last Michaelmas term, as a 
 verdict against all the evidence. 
 
 Lord EllEnrorough, C. J.'- It is too much to say that there his 
 been a general acquiescence in this claim of the carriers since 1775, 
 merely because tliere was a particular instance of it at that time. Oth- 
 er instances were only about 10 or 12 years back, and several of them 
 of very recent date. The question however results to this, What was 
 the particular contract of these parties? And as the evidence is silent 
 as to any express agreement between them, it must be collected either 
 from tlie mode of dealing before practiced between the same parties, 
 or from the general dealings of other persons engaged in the same em- 
 ployment, of such notoriety as that they might fairly be presumed 
 to be known to the bankrupt at the time of his dealing with the de- 
 fendants, from whence the inference was to be drawn that these par- 
 ties dealt upon the same footing as all others did, with reference to 
 the known usage of the trade. But at least it must be admitted that 
 the claim now set up by the carriers is against the general law of the 
 land, and the proof of it is therefore to be regarded with jealousy. 
 In many cases it would happen that parties would be glad to pay small 
 sums due for the carriage of former goods, rather than incur the risk 
 
 S2 The opinions of Grose and Le Blanc, JJ., and part of the opinion of 
 Lawrence, J., are omitted.
 
 Sec. 2) BAILOR AND BAILEE ' 61 
 
 of a great loss by the detention of goods of value. Much of the evi- 
 dence is of that description. Other instances again were in the case 
 of solvent persons, who were at all events liable to answer for their 
 general balance. And little or no stress could be laid on some of the 
 more recent instances not brought home to the knowledge of the bank- 
 rupt at the time. Most of the evidence therefore is open to observa- 
 tion. If indeed there had been evidence of prior dealings between 
 these parties upon the footing of such an extended lien, that would 
 have furnished good evidence for the jury to have found that they con- 
 tinued to deal upon the same terms. But the question for the jurj' 
 here was, whether the evidence of a usage for the carriers to retain 
 for their balance were so general as that the bankrupt must be taken 
 to have known and acted upon it? And they have in effect found 
 either that the bankrupt knew of no such usage as that which was 
 given in evidence, or knowing, did not adopt it. And growing liens 
 are always to be looked at with jealousy, and require stronger proof. 
 They are encroachments upon the common law. If they are encour- 
 aged, the practice will be continually extending to other traders and 
 other matters. The farrier will be claiming a lien upon a horse sent 
 to him to be shod. Carriages and other things which require frequent 
 repair will be detained on the same claim ; and there is no sayins^ 
 where it is to stop. It is not for the convenience of the public that 
 these liens should be extended further than they are already established 
 by law. But if any particular inconvenience arise in the course of 
 trade, the parties may, if they think proper, stipulate with their cus- 
 tomers for the introduction of such a lien into their dealings.^' But 
 in the absence of any evidence of that sort to affect the bankrupt, I 
 think the jury have done right in negativing the lien claimed by the 
 defendants on the score of general usage. 
 
 Lawrence, J. The most which can be said on the part of the de- 
 fendants is, that there was evidence which might have warranted the 
 jury to find the other way; but it was for them to decide. * * * 
 
 Rule discharged.'* 
 
 33 Certain wool dyers held a meeting and publicly announced that there- 
 after they would hold for their general balance of accounts all goods received 
 by them to be dyed. A., with notice of this statement, svtlisequently deliver- 
 ed wool to one of these dyers to be dyed. Held, the dyer has a lien for the 
 general balance of account. Kirkman v. Shawcross, 6 T. R. 14 (1794). 
 
 3* "Did the defendant undertake as a common carrier? If he did not he 
 has no lien upon the salt. One who is not a public or common carrier, but 
 specially undertakes to carry a particular load for hire, has no lien for 
 freight unless he specially reserves it by agreement." Fuller v. Bradley, 25 
 Pa. 120 (1855). 
 
 A general lien by a wharfinger for other than wharfage charges was held 
 not to be established in Holderness v. Collinson, 7 B. & C. 212 (1827).
 
 G3 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 JACKSON V. CUMMINS. 
 (Court of Exchequer, 1839. 5 Mees. & W. .342.) 
 
 [The plaintiff pastured his milch cows with the defendant for a pe- 
 riod of several months. He did not pay the amount owing for the pas- 
 turage and the defendant refused to give up the possession of the cows. 
 The plaintiff entered the defendant's premises and seized and drove 
 away the said cows. The defendant then entered the plaintiff's prem- 
 ises and retook possession of the cows. The plaintiff brought trespass 
 against the defendant for the entering and taking away. The verdict 
 below was for the plaintiff, with leave to the defendant to move for a 
 nonsuit if the court should be of opinion that a lien existed at common 
 law for the agistment of cattle. The defendant obtained a rule accord- 
 ingly.] 
 
 Parke, B.^' * * * j think ihat by the general law no lien ex- 
 ists in the case of agistment. The general rule, as laid by Best, C. J., 
 in Bevan v. Waters, Mood. & M. 235 (1828), and by this Court in 
 Scarfe v. Morgan, 4 M. & W. 270 (1838), is, that by the general law, in 
 the absence of any special agreement, whenever a party has expended 
 labour and skill in the improvement of a chattel bailed to him, he has a 
 lien upon it. Now, the case- of agistment does not fall within that 
 Ijrinciple, inasmuch as the agister does not confer any additional value 
 on the article, either by the exertion of any skill of his own, or indi- 
 rectly by means of any instrument in his possession, as was the case 
 with the stallion in Scarfe v. Morgan ; he simply takes in the animal to 
 feed it. In addition to which, we have the express authority of Chap- 
 man v. Allen, that an agister has no lien ; and although possibly that 
 case may have been decided on the special ground that there had been 
 an agreement between the parties, or a conversion of the animal had 
 taken place, still it is also quite possible, that it might have proceeded 
 on the more general principle, that no lien can e.xist in the case of agist- 
 ment; ^^ and it was so understood by this Court in Judson v. Etheridge, 
 1 Cr. & M. 743 (1833). The analog}-, also, of the case of the livery 
 stable keeper, who has no lien by law, furnishes an additional reason 
 why none can exist here; for this is a case of an agistment of milch 
 cows, and, from the very nature of the subject-matter, the owner is to 
 have possession of them during the time of milking; which establishes 
 that it was not intended that the agister was to have the entire posses- 
 sion of the thing bailed ; and tliere is nothing to shew that the owner 
 might not, for that purpose, have taken the animals out of the field 
 wherein they were grazing, if he had thought proper so to do. This 
 
 86 The statement of facts Is rewritten and part of the opinion of Parke, 
 J., Is omitted. 
 
 soAcc.: Lewis v. Tyler, 23 Cal. 3C4 (1S63); Goodrich v. Willard, 7 Gray 
 (Mass.) 1S3 (1S56).
 
 Sec. 2) BAILOR AND BAILEE 63 
 
 claim of lien is therefore inconsistent with the necessary enjoyment of 
 the property by the owner.^^ As to the case of the training groom it is 
 not necessary to say anything as it has not been formally decided ; for 
 in Jacobs v. Latour, 5 Bing. 130, the point was left undetermined. It 
 is true, there is a nisi prius decision of Best, C. J., in Bevan v. Waters, 
 that the trainer would have a lien, on the ground of his having expend- 
 ed labour and skill in bringing the animal into condition to run at races ; 
 but it does not appear to have been present to the mind of the Judge, 
 nor was the usage of training to that efTect explained to him, that when 
 horses are delivered for that purpose, the owner has always a right, 
 during the continuance of the process, to take the animal away for the 
 purpose of running races for plates elsewhere.^* The right of lien, 
 tlierefore, must be subservient to this general right, which overrides it ; 
 so that I doubt if that doctrine would apply where the animal delivered 
 was a race horse, as that case differs much from the ordinary case of 
 training. I do not say that the case of Bevan v. Waters was wrongly 
 decided; I only doubt if it extends to the case of a race-horse, unless 
 perhaps he was delivered to the groom to be trained for the purpose 
 of running a specified race, when of course these observations of mine 
 would not apply. But, at all events, I am clear that this agister has no 
 lien, as his case certainly does not come within the general principles 
 which have been established : in addition to which, such a claim would 
 be inconsistent with tlie more general right exerciseable by die owner 
 of the cattle. 
 
 Rule discharged.^' 
 
 s^ A garage keeper, in tlie absence of a statute, has no lien for the re- 
 pair of an automobile kept in bis garage, where tbe owner exercises the right 
 to use the automobile at pleasure. Smith v. O'Brien, 46 Misc. Kep. 325, 9i 
 N. Y. Supp. 673 (1005). 
 
 By business custom in a community, wharfage dues were not paid by the 
 importer until the Christmas following the importation, even tliough the 
 goods had Ix'en in tlie meantime removed. A. was indebted to B. for wharf- 
 age charges, and failed to pay at the Christmas following, and subsequently 
 iK'came bankrupt, the goods still remaining in B.'s possession. Held. B. 
 has no lien upon the goods as against C, who purchased from A. before 
 Christmas. Grawshay '\-. Homfray, 4 B. & Aid. 50 (1S20). See Pinney v. 
 Wells, 10 Conn. 104 (1834). 
 
 3 8 On these facts there was held to be no lien, in Forth v. Simpson, 13 Q. 
 B. N. S. OSO (1S49) : otherwise in Harris v. Woodruff, 124 Mass. 205, 26 Am. 
 Rep. G5S (187S). where the horse in fact remained in the trainer's possession. 
 
 sa See The History of Assumpsit, 2 H. L. R. 53, at 61 ; and compare the 
 reasoning of the court in HoduMn v. Waldron. 9 N. H. 66 (1S37), and Cura- 
 mings v.'llarris, 3 Vt. 244, 23 Am. Dec. 206 (1831). 
 
 By statute, agisters and stable keepers are frequently given liens, 1 Jones, 
 Liens (3d Ed.) c. 13.
 
 64 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 STEINMAN V. WILKINS. 
 (Supreme Court of Pennsylvania, 1S44. 7 Watts & S. 466.) 
 
 The plaintiff brought this action of trover against the defendant, 
 who is a warehouseman in Clarion county, on the Allegheny river, for 
 the supposed conversion of certain goods retained for the price of 
 warehouse room, being part of a larger lot which was stored in his 
 warehouse by Hamilton & Humes, of whom tlie plaintiiY is the general 
 assignee. Tho greater part had been delivered to Hamilton & Humes, 
 and the residue having been demanded without tender of any charges, 
 McCalmont (President of the Common Picas of Clarion county) di- 
 rected the jury that though tho defendant could not retain for the gen- 
 eral balance of his account, he might retain for all the charges on all 
 the goods forwarded to him at the same time. A bill of exceptions was 
 sealed, and the point was argued on a writ of error to this court. 
 
 Gibson, C. J." Though a plurality of the barons in Rex v. Hum- 
 phrey, 1 McClell. & Y. 194, 195, dissented from the dictum of Baron 
 Graham that a warehouseman has a lien for a general balance, like a 
 wharfinger, I do not understand them to have intimated that he has no 
 lien at all. They spoke of it as an entity, and seem to have admitted 
 that he has a sf>ecific lien, though not a general one. There is a well- 
 known distinction between a commercial lien, which is the creature of 
 usage, and a common-law lien, which is the creature of policy. The 
 first gives a right to retain for a balance of accounts ; the second, for 
 services performed in relation to the particular property. Commercial 
 or general liens, which have not been fastened on the law merchant by 
 inveterate usage, are discountenanced by the courts as encroachments 
 on the common law ; and for that reason it would be impossible to 
 maintain the position of Baron Graham, for tliere is no evidence of 
 usage as a foundation for it, and no text-writer has treated of ware- 
 house room as a subject of lien in any shape. In Rex v. Humphrey, it 
 was involved in the discussion only incidentally ; and I have met with 
 it in no otlier case. But there is doubtless a specific lien provided for it 
 by the justice of the common law. From the case of a chattel bailed 
 to acquire additional value by the labour or skill of an artisan, the doc- 
 trine of specific lien has been extended to almost every case in which 
 the thing has been improved by the agency of the bailee. Yet, in the 
 recent case of Jackson v. Cummings, 5 Mecs. & Welsh. 342, it was held 
 to extend no further than to cases in which tho bailee has directly con- 
 ferred additional value by labour or skill, or indirectly by the instru- 
 mentality of an agent under his control; in supposed accordance with 
 which it was ruled that the agistment of cattle gives no lien. But it is 
 difficult to find an argument for the position that a man who fits an ox 
 
 *o Part of the opiuion Is omitted.
 
 Sec. 2) BAILOR AND BAILEE 65 
 
 for the shambles, by fatting it with his provender, does not increase its 
 intrinsic value by means exclusively within his control. There are 
 certainly cases of a different stamp, particularly Bevan v. Waters, 
 Mood. & Malk. 235, in which a trainer was allowed to retain for fitting 
 a race-horse for the turf. In Jackson v. Cummings we see the expiring 
 embers of the primitive notion that the basis of the lien is intrinsic im- 
 provement of the thing by mechanical means ; but if we get away from 
 it at all, what matters it how the additional value has been imparted, 
 or whether it has been attended with an alteration in the condition of 
 the thing? It may be said that the condition, of a fat ox is not a perma- 
 nent one; but neither is the increased value of a mare in foal perma- 
 nent ; yet in Scarf e v. Morgan, 4 Mees. & Welsh. 270, the owner of a 
 stallion was allowed to have a lien for the price of the leap. The truth 
 is, the modern decisions evince a struggle of the judicial mind to escape 
 from the narrow confines of the earlier precedents, but without having 
 as yet established principles adapted to the current transactions and 
 convenience of the world. Before Chase v. Westmore, 5 Maule & 
 Selw. 180, there was no lien even for work done under a special agree- 
 ment ; now, it is indifferent whether the price has been fixed or not. 
 In that case. Lord Ellenborough, alluding to the old decisions, said that 
 if they "are not supported by law and reason, the convenience of man- 
 kind certainly requires that our decisions should not be governed by 
 them;" and Chief Justice Best declared in Jacobs v. Latour, 5 Bingh. 
 132, that the doctrine of lien is so just between debtor and creditor, 
 that it cannot be too much favoured. In Kirkman v. Shawcross, 6 T. 
 R. 17, Lord Kenyon, said it had been the wish of the courts, in all cas- 
 es and at all times, to carry the lien of the common law as far as pos- 
 sible; and that Lord Mansfield also thought that justice required it, 
 though he submitted when rigid rules of law were against it. What 
 rule forbids the lien of a warehouseman ? Lord Ellenborough thought 
 in Chase v. Westmore, that every case of the sort was that of a sale of 
 services performed in relation to a chattel, and to be paid for, as in the 
 case of any other sale, when the article should be delivered. Now, a 
 sale of warehouse room presents a case which is bound by no pre- 
 established rule or analogy; and, on the ground of principle, it is not 
 easy to discover why the warehouseman should not have the same lien 
 for the price of future delivery and intermediate care that a carrier has. 
 The one delivers at a dift'erent time, the other at a different place ; the 
 one after custody in a warehouse, the other in a vehicle ; and that is all 
 the difference. True, the measure of the carrier's responsibility is 
 greater; but that, though a consideration to influence the quantum of 
 his compensation, is not a consideration to increase the number of his 
 securities for it. His lien does not stand on that. He is bound in Eng- 
 land by the custom of the realm to carry for all employers at establish- 
 ed prices ; but it is by no means certain that our ancestors brought the 
 principle with them from the parent country as one suited to tlieir con- 
 Big.Pers.I'boi". — 5
 
 66 POSSESSORY IXTEItESTS IN CHATTELS (Ch. 3 
 
 dition in a wilderness. We have no trace of an action for refusing to 
 carry; and it is notorious that the wagoners, who were formerly the 
 carriers between Philadelphia and Pittsburgh, frequently refused to 
 load at the current price. Now, neither the carrier nor the warehouse- 
 man adds a particle to the intrinsic value of the thing. The one deliv- 
 ers at the place, and the other at the time, that suits the interest or the 
 convenience of the owner of it, in whose estimation it receives an in- 
 crease of its relative value from the services rendered in respect of it, 
 else he would not have undertaken to pay for them. I take it, then, that, 
 in regard to lien, a warehouseman stands on a footing witli a carrier, 
 whom in this country he closely resembles. * * * 
 Judgment affirmed.*^ 
 
 SCHUMACHER v. CHICAGO & N. W. RY. CO. 
 (Supreme Court of Illinois, 1904. 207 111. 199, 69 N. D. S25.) 
 
 [Plaintiff had shipped to himself, over defendant's railroad, two 
 carloads of coke. The plaintiff was duly notified of the arrival of 
 the cars and was also notified that if they were not unloaded within 
 48 hours a charge of $1.00 per day would be made for the trackage 
 and car rental, for which a lien would be reserved. The plaintiff' did 
 not unload the cars within the time specified. The defendant re- 
 ,tained a part of the coke to enforce its lien for demurrage. The plain- 
 tiff' brought replevin for the coke. Verdict below was for the defend- 
 ant and the plaintiff appealed.] 
 
 Ricks, J.*' * * * Under the constitution and laws of this State 
 railroads are public highways and railroad corporations are quasi pub- 
 
 *iAec.: Shingleur- Johnson & Co. v. Canton Cotton Warehouse Co., 78 Miss. 
 875, 29 South. 770. 84 Am. St. Kep. G.55 (1901). 
 
 "A mere volunteer, * * * accepting the temporary custod.v of gooils 
 without any agreement on the subject, has no * * * lien. He may or 
 may not, according to the circumstances, be entitled to compensation as for 
 work and labor, etc., upon a quantum meruit, but he has no lion." Uivara v. 
 Ohio, 3 E. D. Smith (X. Y.) 204, 208 (1854). Ace: Christopher v. Jerdee, 152 
 Wis. 367, 139 N. W. 1132 (1913). 
 
 A. leased a shop to B. ; later B. contended that he had sold the good in 
 the shop to C. and gave up the Isey. A. told B. and C. that if the goods were 
 not removed he should claim a lieu on them for storage. Held, he has a lieu 
 as against B. Schneider v. Dayton, 111 Mich. 396, 69 N. W. 829 (1S07). 
 
 For other instances of specific liens, see Green v. Farmer, 4 Burr. 2214 
 (1768), dyer; Franklin v. Hosier, 4 B. & Aid. 341 (1821), shipwright; Xevaii 
 V. Roup, 8 Iowa, 208 (1859), grain thresher; Lord v. Jones, 24 Me. 4.39, 41 
 Am. Dec. 391 (1844), farrier; Wilson v. Martin, 40 N. H. 88 (1860), harness 
 cleaner; Morgan v. Congdon, 4 N. Y. 552 (1851), sawyer; Moulton v. Greene, 
 10 R. I. 330 (1872), carriage repairer. 
 
 A. received stereotyi>e plates from B. for the purpose of printing a book 
 for B. Held, A. has no lien upon the plates for charges in connection with 
 the printing of the book. Eleadeu v. Hancock, Mood. & M. 465 (1829) ; De 
 Vinne v. Itianhard, 9 Daly (X. Y.) 406 (1880). 
 
 *2 Part of the opinion is omitted.
 
 Sec. 2) BAILOB AND BAILEE 67 
 
 lie corporations. * * * Regarding them as public agencies, dis- 
 charging duties in which the public is interested, the State regulates 
 and controls their rates and tolls, both for the carrying of freight 
 and passengers, and in many other respects regulates and controls their 
 operation. Upon the payment or tender of the legal tolls, freight or 
 fare, such companies are required to furnish cars and transport freight 
 and passengers within a reasonable time. * * * All of these reg- 
 ulations by the State are justified and sustained upon the ground that 
 the State is interested in the prompt and proper carriage of its products 
 and the commerce of its people, and it would seem that reasonable 
 rules and regulations adopted by such corporations, conducive to the 
 proper discharge of the public duty, should, where they are not in 
 violation of some positive law, be sustained. 
 
 Railroads, as to freights committed to their charge, during the period 
 of transport and until they are delivered, bear two well recognized 
 relations. While in transit, and for a reasonable time after reaching 
 the point of destination, they owe the duties and bear the relation of 
 common carriers ; and when the car containing the freight is delivered 
 to the consignee upon his own track or at the place selected by him 
 for unloading, if he have one, or to the consignee upon the company's 
 usual and customary track for the discharge of freight, with reasonable 
 and proper opportunity to the consignee to take the same, or when 
 placed in the warehouse of such company or the warehouse of another 
 selected by them, in any and all such cases such companies then bear 
 to such freight the relation of warehousemen. Peoria & Pekin Un- 
 ion Railway Co. v. United States Rolling Stock Co., 136 111. 643, 27 N. 
 E. 59, 29 Am. St. Rep. 348 ; Gregg v. Illinois Central Railroad Co., 
 147 111. 550, 35 N. E. 343, 37 Am. St. Rep. 238. * * * Such are 
 the duties of such companies appertaining to bulk freight in carload 
 lots, which, it may be said, by the uniform rule and custom of this 
 country are to be loaded and unloaded by the shipper and consignee. 
 Small or package freight of such character, and bulk that that be- 
 longing to many distinct owners may be shipped in a single car, is 
 commonly loaded and unloaded by the transporting company or com- 
 panies. When such freight reaches the point of destination and is 
 placed in the freight depot or warehouse of such company it is held 
 by such company as a warehouseman, and when a railroad company 
 carries freight to its point of destination and stores the same in its 
 warehouse, and the relation of warehouseman is established by the 
 failure to remove the property within a reasonable time, the liability 
 of a warehouseman attaches, and not the liability of a common car- 
 
 And when such freight is in the warehouse the railroad company 
 may charge storage upon the same, and it has a lien upon the freight 
 so stored for its storage charges, and this rule obtains although the 
 company may have given the consignee notice to remove the property
 
 68 POSSESSOnY INTERESTS' IN CHATTELS (Cll. 3 
 
 within twenty- four hours. Richards v. Michigan Southern & Northern 
 Indiana Railroad Co., 20 111. 405. * * * 
 
 When a railroad company delivering freight at its point of destina- 
 tion has no warehouse at that point suitable for the storage of bulk 
 freight in carload lots, and the property is of such character that the 
 cars in which it is transported furnish a proper and safe place for the 
 same, so that it is not liable to damage or deterioration arising from 
 heat or cold or the elements, there would seem to be no reason for 
 requiring the transporting company to seek a warehouse of another 
 and add the cost of removal to the cost of storage when said freight 
 may properly be held in storage in the cars in which the same was 
 carried ; and after notice to the consignee, and a reasonable time to 
 remove the same, reasonable storage charges may be collected therefor 
 and the freight held for the payment thereof. Miller v. Mansfield, 112 
 Mass. 260; iMiller v. Georgia Railroad Co., 88 Ga. 563, 15 S. E. 316, 
 18 L. R. A. 323, 30 Am. St. Rep. 170; Gregg v. Illinois Central Rail- 
 road Co., 147 111. 550, 35 S. E. 343, 37 Am. St. Rep. 238. * * * 
 
 The evidence in this case shows that by the enforcement of the 
 rule here insisted upon, the transportation facilities in the car service 
 territory here involved was increased practically one hundred per 
 cent., and that only about seven per cent, of the shippers or consignees, 
 through its operation, hold their cars overtime. If such common car- 
 riers must comply with our statute and must furnish transportation for 
 people and freight when demanded, and such companies have made 
 proper provision in equipping their roads with an ample supply of 
 rolling stock, and yet, because of the dilatoriness or perversity of ship- 
 pers and consignees, cars may be held indefinitely at loading and dis- 
 charging points, contrary to the desires and interests of such com- 
 panies, then it must be plain that the statute must either fall as a dead 
 letter or its enforcement must work great injustice to such com- 
 panies. * * * 
 
 Nor do we think it necessary to the existence of such lien that it 
 arise from a specific contract providing for the same, but that such 
 right and contract may arise by implication, as in the case of ware- 
 house charges to a railroad company that has stored goods transported 
 by it when not received by the consignee promptly at the place of de- 
 livery. * * * 
 
 It is claimed, however, by appellant that the case of Chicago & 
 Northwestern Railway Co. v. Jenkins, 103 111. 588, lays down tlie rule 
 contrary to the views we have above expressed, and that that case 
 should be controlling in the present case. We think not. That case 
 seems to have related to or grown out of the shipment of goods in 
 less quantity tlian a carload lot. The character of the goods was of 
 a perishable nature, and such, if removed from the cars, must be stored, 
 and in distinguishing that case from cases under the maritime law, and 
 denying that tlie rule applicable in contracts of shipment under the
 
 Sec. 2) BAILOR AND BAILEE 69 
 
 latter law applied to railroad companies, it was said (103 111. 600) : 
 "But the mode of doing business by the two kinds of carriers is es- 
 sentially different. Railroad companies have warehouses in which to 
 store freights ; owners of vessels have none. Railroads discharge 
 cargoes carried by them; carriers by ship do not, but it is done 
 by the consignee." Thus, it will be seen that the court could not have 
 had in mind the case of the shipment of goods of the character here 
 involved by carload lots, and where the undisputed evidence shows 
 that the rule is that such freight shall be loaded by the shipper and 
 unloaded by the consignee, and that railroads do not have warehouses 
 in which to store that class of goods. * * * 
 
 It is urged, further, that a lien ought not to be accorded common 
 carriers in such cases, but they should be left to their action upon 
 the case or in assumpsit. There is no law preventing the sale, by the 
 consignee, of the cargo, at the point of destination, to one or many 
 persons who may be wholly irresponsible and as against whom suits 
 would be unavailing. The object of such a rule cannot be so much 
 for the recovery of a revenue as the enforcement of a rule that is to 
 the benefit of all the shippers, and thereby a public benefit. The charge 
 must be said to be little more than nominal, and yet the evidence dis- 
 closes that its imposition in such cases has had a highly beneficial ef- 
 fect. No question is made as to the reasonableness of the charge, and 
 if there were, it could have no effect in the case at bar, for the rea- 
 son that appellant absolutely denies the right of appellee to any charge 
 or compensation and made no tender of anv portion of it. Russell 
 V. Koehler, 66 111. 459; Hoyt v. Sprague, 61 Barb. (N. Y.) 497; Schou- 
 ler on Bailments, § 125. 
 
 The views above expressed as to the rule obtaining to such charges, 
 whether regarded as storage charges or demurrage or car service, 
 seems to be in keeping with the weight of the modern decisions upon 
 the question, and, we believe, will tend to the public welfare. 
 
 The judgment of the Appellate Court is affirmed.*^ 
 
 •4 3 The cases on this point are collected in a note to Nicolette Lumber Co. 
 V. People's Coal Co.. 3 L. R. A. (N. S.) .327, also reported in 213 Pa. 379, 62 
 Atl. 1060. 110 Am. St. Rep. 550, 5 Ann. Cas. 387 (1906). 
 
 A common carrier has a lien upon the hasgage of a passenger for the lat- 
 ter's fare. Wolf v. Summers, 2 Camp. 631 (1811).
 
 70 possESSonY ixtekests in chattels (Cli. 3 
 
 BLAKE and Others, Assignees of Stratford, v. NICHOLSON. 
 (Court of King's Bench, 1814. 3 Maule & S. 1G7.) 
 
 Trover for certain numbers or parts of a printed work, called Dr. 
 Hawker's Commentary on the Bible. Plea, general issue. At the 
 trial before Lord Ellenborough, C. J., at the Middlesex sittings after 
 last term the case was this : the defendant, who was a printer, had 
 been employed by Stratford, before his bankruptcy, to print several 
 numbers, not all consecutive numbers, of the said work; of which 
 he printed in the whole 8750 copies, and delivered to Stratford 5987, 
 and the residue remained with him in his warehouse. Stratford sup- 
 plied the paper for printing the several numbers from time to time as 
 they were to be printed ; and a separate charge was made by the de- 
 fendant for the printing of each number, amounting in the whole to 
 £494 2s., of which Stratford had at different times paid £185 on ac- 
 count. Afterwards Stratford becoming bankrupt, the plaintiffs, as 
 his assignees, applied to the defendant for the delivery of the copies 
 remaining in his hands, tendering to him so much as was due for the 
 printing of those copies, in proportion to his charge for the whole. 
 The defendant refused to deliver them, insisting that he had a lien for 
 the whole balance. His Lordship upon this evidence considered the 
 work as one entire work, and directed a nonsuit. Rule for a new trial. 
 
 Lord EllExhorough, C. J. I think the defendant had a lien for 
 the whole balance, the work being an entire work in the course of 
 prosecution, upon the same principle that a tailor, who is employed 
 to make a suit of clothes, has a lien for the whole price upon any part 
 of them. It would be inconvenient if he was obliged to make stops in 
 the course of the work; the nature of the work affords a reason for 
 his general lien. 
 
 Rule refused.** 
 
 ** Ace: Chase v. Westmore, 5 M. & S. ISO (1816) ; Holderman v. Manier, 104 
 Ind. lis, 3 N. E. Sll (18S.5) ; Lane v. Old Colony & F. R. Co.. 14 Gray (Mas.s.) 
 143 (ISCO) ; Hensel v. Noble, 95 Pa. 345, 40 .\m. Rep. 659 (1S80). 
 
 The defendant was a common carrier. As such he carted for the plain- 
 tiffs, at various times during a period of several months, 450 barrels of flour 
 at the rate of $1.25 a barrel. The freight not being paid, he retained the 
 last 1.34 barrels for the freight on the entire amount carried. Held, he has 
 no right so to do. Hartshorne v. Johnson, 7 N. J. Law. 108 (182.3). 
 
 A. bought a through ticket from X. to Z. He willfully left the train at Y., 
 a way station ; his baggage going on to Z. He tooli the next train from Y. 
 to Z. and refused to pay a second fare. Held, the railroad has a lien on his 
 baggage for the second fare. Roberts v. Koehler (C. C.) .30 Fed. 94 (1887). 
 
 A. took passage on the X. railroad with liis infant son. He paid his own 
 fare and checked his baggage on his own ticket. During the journey a fare 
 was demanded for the son. A. refused to pay it. Held, A. is responsible for 
 his son's fare, but the X. railroad has no lien therefor on A.'s baggage. 
 Cantwell v. Terminal R. Ass'n of St. Louis, 160 Mo. App. 393, 140 S. \V. 906 
 (1911). 
 
 For similar questions in connection with statutory lumberman's liens, see
 
 Sec. 2) BAILOR AND BAILEE 71 
 
 BRITISH EMPIRE SHIPPING CO., Limited, v. SOMES. 
 (Court of Queen's Bench, 1858. El. Bl. & El. 353.) 
 
 [The plaintiff was the owner of a vessel called "The British Empire." 
 The defendants were shipwrights. The defendants were employed to 
 repair the vessel. On the completion of the repairs the defendants re- 
 fused to give up possession of the vessel until they were paid or se- 
 cured. A few days later, they notified the plaintiff that they should 
 charge £21. a day for the use of the dock in which the vessel was 
 stored. The plaintiff denied the right of the defendant to make this 
 latter charge. Some time later the plaintiff paid the bill for repairs, 
 and, under protest, the further sum of £567. for storage charges. The 
 present action is to recover the latter sum.]*" 
 
 Campbell, C. J. We are of opinion that, under the circumstances 
 stated in the special case, the defendants are not entitled to retain the 
 sum paid to them in respect of the item of £567., or any other sum, as 
 a compensation for the use of their dock in detaining the plaintiff's 
 ship. As artificers who had expended their labour and materials in 
 repairing the ship which the plaintiff's had delivered to them to be re- 
 paired, the defendants had a lien on tlie ship for the amount of the 
 sum due to them for these repairs ; but we do not find any ground on 
 which their claim can be supported to be paid for the use of their dock 
 while they detained the ship under the lien against the will of the own- 
 ers. There is no evidence of any special contract for such a payment. 
 The defendants gave notice that they would demand £21. a day for the 
 use of their dock during the detention ; but the plaintiffs denied their 
 liability to make any such payment, and insisted on their right to have 
 their ship immediately delivered up to them. Nor does any custom or 
 usage appear to authorize such a claim for compensation, even suppos- 
 ing that a wharfinger with whom goods had been deposited, he being 
 entitled to warehouse rent for them from the time of the deposit, might 
 claim a continuation of the payment during the time he detains them in 
 the exercise of right of lien till the arrears of warehouse rent due for 
 them is paid (see Rex v. Humphrey. r^IcCl. & Y. 173) ; there is no 
 ground for a similar claim here, as there was to be no separate pay- 
 ment for the use of the dock while the ship was under repair, and the 
 claim only commences from the refusal to deliver her up. The onus 
 therefore is cast upon the defendants to shew that, by the general law 
 of England, an artificer who, exercising his right of lien, detains a chat- 
 tel, in making or repairing which he has expended his labour and ma- 
 terials, has a claim against the owner for taking care of the chattel 
 
 Pbillips V. Vose, SI Jle. 134. 16 Atl. 40.", (ISSS) ; SLirtin v. Wakefield, 42 Minn. 
 1T6, 43 N. W. 966. 6 L. R. A. 362 (ISSO) ; Fish Creel< Boom & Log-Driving Co. 
 V. First Nat. Bank of Ashland. SO Wis. 630, 50 X. W. 5S5 (1S91). 
 *5 The statement of facts Is rewritten.
 
 72 POSSESSORX INTERESTS IN CUATTELS (Cll. 3 
 
 while it is so detained. But the claim appears to be quite novel ; and, 
 on principle, there is great difficulty in supporting it either ex con- 
 tractu or ex delicto. The owner of the chattel can hardly be supposed 
 to have promised to pay for the keeping of it while, against his will, he 
 is deprived of the use of it; and there seems no consideration for such 
 a promise. Then the chattel can hardly be supposed to be wrongfully 
 left in the possession of the artificer, when the owner has been pre- 
 vented by the artificer from taking possession of it himself. If such a 
 claim can be supported it must constitute a debt from the owner to the 
 artificer, for which an action might be maintained : when does the debt 
 arise, and when is the action maintainable? It has been held that a 
 coachmaker cannot claim any right of detainer for standage, unless 
 there be an express contract to that effect, or the owner leaves his 
 property on the premises beyond a reasonable time, and after notice 
 has been given to remove it ; Hartley v. Hitchcock, 1 Stark. 408. 
 
 The right of detaining goods on which there is a lien is a remedy to 
 the party aggrieved which is to be enforced by his own act ; and, where 
 such a remedy is permitted, the common law does not seem generally 
 to give him the costs of enforcing it. Although the lord of a manor 
 be entitled to amends for the keep of a horse which he has seized as 
 an estray (Henly v. Walsh, 2 Salk. 686), the distrainor of goods which 
 have been replevied cannot claim any lien upon them (Bradyll v. Ball, 
 1 Bro. C. C. 427). So, where a horse was distrained to compel an ap- 
 pearance in a hundred court, it was held that, after appearance, the 
 ])laintiff could not justify detaining the horse for his keep. Bui. N. 
 P. 45. 
 
 If cattle are distrained damage feasant, and impounded in a pound 
 overt, the owner of the cattle must feed them ; if in a pound covert or 
 close, "the cattle are to be sustained with meat and drink at the peril 
 of him that distraineth, and he shall not have any satisfaction there- 
 fore," Co. Litt. 47, 6. 
 
 For these reasons, on the question submitted to us, we give judgment 
 for the plaintiffs.** 
 
 46 Affirmed Exchequer Chamber, E. B. & E. 367 (1S59) ; House of Lords, 
 S H. of L. 3.38 (1860). 
 
 A. stored goods with B., a warehouseman, without any express contract as 
 to storage charges. A. demanded the goods; B. refused to deliver them un- 
 til liis storage charges were paid. Held, B.'s lien covers the storage charges 
 accruing during the time when he was liolding the goods to cover his claim 
 for the amount originally due. Devereux v. I-loniing (C. C.) 53 Fed. 401 
 (1S92) ; Reldenbach v. Tuch, SS N. Y. Supp. 366 (1904), semble. See, as to 
 liverv stable keeper, Folsom v. Barrett, ISO Mass. 439, 62 N. E. 723, 91 Am. 
 St. Kep. 320 (1902), post, p. 111. 
 
 B. stored and repaired automobiles. A. left his automobile with B. to be 
 repaired. B. claimed a lien for his services, and on A.'s refusal to pay re- 
 tained the automobile. Held, B. has a lien for his storage charges during the 
 time he so retained. Malcolm v. Sims-Thompson Motor Car Co. (Tex. Civ. 
 App.) 164 S. W. 924 (1914). 
 
 Ace: As to innkeeper, Black v. Brennan, 5 Dana (Ky.) 310 (1S37), semble.
 
 Sec. 2) BAILOR AND BAILEE 73 
 
 THAMES IRON WORKS' CO. v. PATENT DERRICK CO. 
 (Court of Chancery, 1S60. 1 John. & H. 93.) 
 
 [The plaintiff had a lien on tlie defendant's vessel for the sum of 
 illOOO. The retention of tlie vessel was causing the plaintiff great 
 expense and they filed this bill praying a declaration that they were en- 
 titled to a lien on the vessel and that in default of payment the vessel 
 might be sold for the satisfaction of the debt.] 
 
 The defendants demurred. 
 
 Vice-Chancellor Sir W. Page Wood.^' I am of opinion that 
 this demurrer must be allowed. * * * 
 
 As regards the lien which I am asked to enforce by sale, there is no 
 question that it is in its nature a mere passive lien. It is not founded 
 upon any stipulation in the contract, but arises simply from the usage 
 of trade. It has been settled by numerous authorities that such a lien 
 does not, in general, authorize a sale. It was argued, that, to create a 
 mere right of retainer, involving considerable expenditure and render- 
 ing the subject of the lien utterly useless to both parties, would be ab- 
 surd ; and, to a certain extent, there is authorit)' to show that this is 
 not the law. The case referred to, of a horse having eaten its full val- 
 ue, is one instance of a right of sale being held to flow from a lien. 
 In one statement this is said to rest on the local customs of London 
 and Exeter, but elsewhere it is treated as a general right. Whatever 
 the law may be, as a matter of fact, it is certainly very common for 
 such a right to be exercised; for advertisements, threatening to sell 
 horses or other chattels unless removed by a given date, are constantly 
 to be seen. The contention was, that, as a corollar)'- from the case I 
 have referred to, there followed a general rule of law, that, wherever 
 the retaining of a chattel under a lien occasions considerable expense, 
 there the right of sale must arise. But no such doctrine has ever been 
 held, and the authorities, on the contran,', point to the conclusion, that 
 the right of sale cannot be raised on the mere ground of the expense 
 of retaining the chattel which is the subject of the lien. If it could, it 
 would arise in every case of a lien on bulky goods, the retaining of 
 which must involve warehousing expenses. It is not material to con- 
 sider how far such a case as that put by Stor}% of notice being given 
 that expense is being incurred, and, that if the goods are not removed 
 they will be sold, may hereafter be held to justify a sale, because the 
 present case does not raise such a question. If it did, it would be nec- 
 essary to analyze the right of lien, and consider whether it amounts to 
 anything more than this— that a person who chooses to insist on the 
 right of retainer which the law gives, and is willing to put up with am' 
 inconvenience which may be the consequence, is at liberty to do so, but 
 
 " Part of the opinion is omitted.
 
 74 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 has no further right. Even though such an arrangement sliould be 
 most inconvenient for both parties, it does not follow that this is not 
 the law. 
 
 The general question as to the law of passive liens may possibly have 
 to be considered hereafter; but it is to be observed that the argument 
 from the inconvenience or absurdity of giving a mere right of retainer 
 is not confined to cases where the keeping of the chattel involves ex- 
 pense. In every case, as, for instance, that of a solicitor's lien on 
 deeds, it may be said that the property can be of no benefit to either 
 party so long as the retainer continues. * * * 
 
 I can find nothing to justify me in saying that the right to sell would 
 arise at law on the ground of expense alone. * * * Mr. Waller 
 pressed this point, that, even if the law did not give a right of sale, the 
 Court, in order to supply a defect of the law which causes great incon- 
 venience in commercial transactions, might annex to the passive lien 
 the active right of sale which is necessary to make the security effec- 
 tual. Upon this I need only say, tliat, if, in a matter of this magnitude, 
 the Court should for the first time in 1860 establish such a new right as 
 between persons dealing with chattels it would injure rather than pro- 
 mote commercial interests. * * * *» 
 
 48 Ace: BurrouRh v. Ely, 54 W. Va. IIS. 4G S. E. 371, 102 Am. St. Rep. 
 926 (190.3). See Klack v. Biennan, 5 Dana (Ky.) 310 (1S37) ; Aliline Mfg. Co. 
 V. Phillips, 118 Mich. 162, 76 N. W. 371, 42 L. R. A. 531, 74 Am. St. Rep. 380 
 (1S98). 
 
 A factor to whom goods have been consigned for sale and who has a lion 
 thereon may, after reasonable notice to the consignor, sell at a fair price to 
 satisfy his lien, even thougli the consignor after the consignment Instructeil 
 him not to do so. Parker v. BrancUer, 22 Picl<. (Mass.) 40 (18.'i9) ; Brown v. 
 M'Gran, 14 Pet. 479, 10 L. Ed. 550 (1840). Contra, Smart v. Sandars, 5 C. B. 
 895 (1S4S). 
 
 For statutory methods of enforcing liens, see 1 Jones, Liens, (3d Ed.) § 
 1049 et seci. 
 
 If the statutes of the jurisdiction permit the bailor to counterclaim against 
 the lienor any damage done to the goods by the lienor, the effect of this, if 
 the damage equals or exceeds the claim of the lienor, is to extinguish the 
 lien, and the bailor may bring replevin for the goods without tender, and a 
 refusal by the lienor to deliver them is a conversion. See Missouri I'ac. R. 
 Co. V. Peru-Van Zandt Implement Co., 73 Kan. 302, 85 Pac. 40S, 87 Pac. SO, 
 6 L. R. A. (X. S.) 1058, 117 Am. St. Rep. 468. 9 ^Viin. Cas. 790 (1906) ; Bancroft 
 V. Peters, 4 Mich. 619 (1S57) ; Ewarts v. Kerr, Rice, Law (S. C.) 203 (1839) ; 
 Moran Bros. Co. v. Northern Pac. R. Co., 19 Wash. 266, 53 Pac. 49. 1101 
 (1898). Contra, Marlis v. New Orleans Cold Storage Co., 107 La. 172, 31 
 South. 671, 57 L. R. A. 271, 90 Am. St. Rep. 285 (1901). 
 
 Similarly, if the lienor converts the goods, he may counterclaim to the ex- 
 tent of his lien in an action of trover by the bailor debtor. Shaw v. Fergu- 
 son, 78 Ind. 547 (18S1). 
 
 A. shipped goods by a common carrier to himself as consignee. The goods 
 were damaged in transit to more than the value of the freight. The carrier 
 refused to deliver unless A. paid the usual freight charges. Held, A. cannot 
 maintain against the carrier an action ex contractu for the value of the 
 goods so consigned. Wilensky v. Central of Georgia Ry. Co., 136 Ga. 889, 72 
 S. E. 418, Ann. Cas. 1912D, 271 (1911).
 
 Sec. 2) BAILOR AND BAILEE 75 
 
 (B) When Good Against Others Than the Bailor 
 
 WILLIAMS V. ALLSUP. 
 (Court of Common Pleas, 1861. 10 C. B. [N. S.] 417.) 
 
 [The plaintiff advanced money to the owner of a vessel and took 
 a mortgage thereon which was duly recorded. The vessel continued 
 to remain in the possession of the mortgagor and was managed by him 
 in the ordinary way. The vessel became badly out of repair and the 
 mortgagor left it with the defendant for repairs. These repairs were 
 duly completed and the defendant, the mortgagor having become 
 bankrupt, refused to deliver the vessel until his claim was paid. The 
 repairs were reasonable and necessary for the safety of the vessel and 
 the charges were reasonable. The plaintiff brought replevin for the 
 vessel.] 
 
 ErlE, C. J.*" This is an action by the mortgagee of a steam vessel 
 against a shipwright who had done certain repairs on the vessel at the 
 request of the mortgagor, who had been allowed to be in the posses- 
 sion and apparent ownership. The defendant claims a lien upon the 
 ship for the price of these repairs: and I am of opinion that that 
 claim is well founded. There is, it seems, no authority to be found 
 bearing upon the question, though I presume it must have arisen many 
 times. I should rather expect that it had never been made the sub- 
 ject of litigation because the right of lien has always been admitted 
 to attach. I put my decision on the ground suggested by Mr. Mel- 
 lish, viz. that the mortgagee having allowed the mortgagor to con- 
 tinue in the apparent ownership of the vessel, making it a source of 
 profit and a means of earning wherewithal to pay off the mortgage 
 debt, the relation so created by implication entitles the mortgagor to 
 do all that may be necessary to keep her in an efficient state for that 
 purpose. The case states that the vessel had been condemned as un- 
 seaworthy by the government surveyor, and so was in a condition to 
 be utterly unable to earn freight or be an available security or any 
 source of profit at all. Under these circumstances, the mortgagor did 
 that which was obviously for the advantage of all parties interested : 
 he puts her into the hands of the defendant to be repaired ; and, ac- 
 cording to all ordinary usage, the defendant ought to have a right of 
 lien on the ship, so that those who are interested in the ship, and who 
 will be benefited by the repairs, should not be allowed to take her 
 out of his hands without paying for them. The 70th section of the 
 Merchant Shipping Act, 17 & 18 Vict. c. 104, does not appear to me 
 at all to interfere with this view. It does not to my mind establish the 
 right of the mortgagee to the possession of the ship, or negative the 
 lien of the person doing the repairs. That section enacts that "a mort- 
 is The opiuious of Willes aud Bjles, JJ., are omitted.
 
 70 rOSfESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 gagee shall not by reason of his mortgage be deemed to be the owner 
 of a ship or any share therein, nor shall the mortgagor be deemed to 
 have ceased to be the owner of such mortgaged ship or share, except 
 in so far as may be necessary for making such ship or share available 
 as a security for the mortgage debt." The implication upon which I 
 found my judgment is quite consistent with that provision. The ves- 
 sel has been kept in a state to be available as a security to the mort- 
 gagee, by her destruction being prevented by the repairs which the de- 
 fendant has done to her. I think there is nothing in the 92nd section 
 to affect this question. There is, no doubt, some difficulty in the case. 
 But it is to be observed that the money expended in repairs adds to 
 the value of the ship; and, looking to the rights and interests of the 
 parties generally, it cannot be doubted that it is much to the advantage 
 of the mortgagee that the mortgagor should be held to have power to 
 confer a right of lien on the ship for repairs necessary to keep her 
 seaworthy. For these reasons, I am of opinion that the defendant is 
 entitled to judgment."" 
 
 STORMS v. SMITH. 
 
 (Supreme Jucliclal Court of Massachusetts, 1SS4. 107 Mass. 201.) 
 
 Tort, for the conversion of certain household goods. Trial in the 
 Sup>erior Court, before Pitman, J., who reported the case for the con- 
 sideration of this court, in substance as fbllows: 
 
 One Merrill on July 31, 1S74, made a mortgage of the property in 
 
 50 Ace: Watts v. Sweeney, 127 Ind. IIG, 26 N. E. 6S0, 22 Am. St. Rep. ei.5 
 (1S90) ; Hammoiid v. Daiiielsou, 12G Mass. 294 (1S79) ; Drummouil Carriage 
 Co. V. Mills, 54 Neb. 417, 74 X. ^Y. 9GG, 40 L. R. A. 7G1, 09 Am. St. Rep. 719 
 (1&9S). 
 
 A. gave B. a chattel mortgage on certain cattle. A. under the terms of the 
 mortgage remained in possession of the cattle. Said mortgage was duly re- 
 corded. A. delivered the cattle to C, who was engaged in the business of 
 pasturing cattle, to feed them during the winter. C. did so, and claimed a 
 statutory agister's lien upon the cattle against B. The court, in sustaining 
 the lien, said: "The mortgagor retaining possession * * * is not simply 
 an agent of the mortgagee. He can make no contract on behalf of, or which 
 will create any liability against, the mortgagee; he acts on his own behalf. 
 He is the owner, with the duties of owner and the powers of owner, except 
 as limited by the restrictions of the mortgage. Unless the mortgagee, by ex- 
 press contract, assumes the expense of the lieeping of the property, it rests 
 upon him. * * * The possession of the agister was rightful, and, the 
 possession being rightful, the keeping gave rise to the lien, and such keeping 
 was as much for the interest of the mortgagee as the mortgagor. » * * 
 Such indebtedness really inures to his benefit. The entire value of his mort- 
 gage may rest upon the creation of such indebtedness and lien, as in the case 
 at bar, where the thing mortgaged is live stock, and the lien for food. 
 * * • It is probable that the amount of the agister's lien, as against the 
 mortgagee, would be fixed, not by the contract with the mortgagor, but by 
 the reasonable value of the services." Case v. Allen, 21 Kan. 217, 220, 222, 
 30 Am. Rep. 42a (1S7S).
 
 Sec. 2) BAILOR AND BAILEE 77 
 
 suit, which was then at 224 Shawmut Avenue, in Boston, to his father- 
 in-law, \\illiam R. Storms, the plaintiff's intestate, to secure the pay- 
 ment of his promissory note for S500, payable in one year ; this mort- 
 gage was duly recorded. ]Morrill at that time occupied two rooms in 
 the house, and the property remained there until September 26, 1877, 
 when he was suddenly compelled to remove therefrom, and had no 
 place in which to store the goods. The defendant was at that time 
 engaged in the business of piano and furniture moving, and ^Morrill 
 employed him to move the goods. On the afternoon of the same day, 
 the defendant placed the goods on two wagons, where at the request 
 of Morrill, they remained until six o'clock in the evening of that day, 
 when Morrill, not being able to find a suitable place in which to store 
 the goods, requested the defendant to store them, and agreed to pay 
 him two dollars per load for each month or fraction of a month dur- 
 ing which they should be so stored. Thereupon the defendant stored 
 the goods in a room as requested by Morrill, and continued to store 
 them in different places in Boston, at Morrill's request, until June 30, 
 1880, when one Sherman came to the defendant's house, and, exhib- 
 iting said mortgage and a power of attorney from Storms, declared 
 that he had come to foreclose the mortgage. This was the first no- 
 tice the defendant had that there was a mortgage on said goods and 
 he claimed the right to retain them, on the ground that he had a lien 
 upon them for carriage and storage. * * * 
 
 It was proved that Storms had been informed that the goods had 
 been removed from Shawmut Avenue, and stored by the defendant, 
 about two months after the removal; and there was no evidence of 
 dissent or disapproval on the part of Storms. The removal was a 
 compulsory one, and the storing was a necessity to prevent the good? 
 from exposure to loss and damage, v.-hich might result from their 
 being put out and left on the sidewalk. 
 
 Upon the foregoing facts, the judge ruled that this action could be 
 maintained ; and ordered a verdict for the plaintiff. If the ruling 
 was correct, judgment was to be entered on the verdict; otherwise, 
 the verdict to be set aside, and judgment entered for the defendant. ^^ 
 
 Holmes, J. The mortgagor of the chattels was personally liable 
 to the defendant for their storage, and he could not subject the mort- 
 gagee's interest to a lien in support of his debt without the mortga- 
 gee's authority. The mortgagee had given no authority other than 
 what was to be implied from his allowing the mortgagor to remain in 
 possession of the mortgaged goods, coupled with the fact that it was 
 necessar)'^ that the goods should be stored somewhere to prevent their 
 destruction. If these circumstances were enough to support the de- 
 fendant's claim, every mortgagor in possession of perishable goods 
 would have power to create a paramount lien upon them, although 
 
 5 1 The statement of facts is abridged.
 
 78 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 the proviso against suffering them to be attached, or attempting to sell 
 or remove them in the form of chattel mortgage commonly used, in- 
 dicates pretty clearly that no such power is intended to be given. But 
 these circumstances are not enough. The mortgage was recorded, 
 and the defendant therefore had notice of it. Hence he was not at 
 liberty to assume that the mortgagor had an absolute jus disponendi 
 from his possession alone ; and, if storage was necessary, he was 
 chargeable with notice that the plaintiff had a right to judge for him- 
 self where it should be, if his interest was to be charged with the cost. 
 Richardson v. Rich, 104 Mass. 156, 6 .^m. Rep. 210; Sargent v. 
 Usher, 55 N. H. 287. 20 Am. Rep. 208; Bissell v. Pearce, 28 N. 
 Y. 252. 
 
 In Hammond v. Danielson, 126 Mass. 294, the description of the 
 mortgaged hack as "now in use at the American Stables" was deemed 
 sufficient to express the intent that the hack "should continue to be 
 driven for hire, and should be kept in a proper state of repair for that 
 purpose, not merely for the benefit of the mortgagee, but for that of 
 the mortgagor also." But permission to a mortgagor to retain house- 
 hold furniture for his own use conveys no permission to store it with 
 a third person on account of the mortgagee. 
 
 The fact that, some time afterwards, the plaintiff was informed that 
 the property had been stored, does not alter the case. He was not in- 
 formed that any attempt would be made to hold the goods, as against 
 him, or even that the storage had not been paid, and he knew that the 
 defendant was chargeable with notice of his mortgage, and therefore 
 of the want of authority to bind his property on the part of the mort- 
 gagor. Hollingsworth v. Dow, 19 Pick. 228 : Globe Works v. Wright, 
 106 Mass. 207. Sargent v. Usher, 55 N. H. 287, 293, 20 Am. Rep. 
 208. See, generally, Robinson v. Baker, 5 Cush. 137, 51 Am. Dec. 
 54; Gilson v. Gwinn, 107 Mass. 126, 9 Am. Rep. 13. It is still clearer 
 that no personal promise can be implied from the plaintiff's silence, as 
 argued for the defendant. For the plaintiff knew that the mortgagor 
 had an interest to protect the property and had a right to asslmie that 
 he contracted on his own behalf, as in fact he did. Neither was the 
 plaintiff's silence any fraud, or warrant for the defendant's inferring 
 that the mortgage was fraudulent. The plaintiff had a right to rely 
 on the notice which the recording of his mortgage gave to all the 
 world, and to leave them to make inquiries if tliey wanted explana- 
 tions. 
 
 Judgment on the verdict."^ 
 
 5 2 Ace: Oilson v. Gwinn, 107 Mnss. 126. 9 Am. Rep. 1.3 (1871); Baumann 
 V. Post, 16 Daly, 385, 12 N. T. Surp. 213 (IS'JO). common-law lipns; Wrii.'ht v. 
 Sherman. 3 S. D. 290, 52 N. W. 1093. 17 L. R. A. 792 ( ls92) ; McGhee v. Ed- 
 wards, 87 Tenn. 506, 11 S. W. 316. 3 L. R. A. 0.54 (1S.X», statutorj' agisters' 
 liens ; Bissel v. Pearce, 28 N. Y. 2.52 (1863). contract lien. 
 
 A borse mortgaired to the plaintiff, but retained b.v the mortgagor, was 
 boarded at defendant's stable. The defendant claimed a lien. The plaintiff
 
 Sec. 2) BAILOR AND BAILEE 79 
 
 FITCH et al. v. NEWBERRY et al. 
 (Supreme Court of Michigan, 1843. 1 Doug. 1, 40 Am. Dec. 33.) 
 
 [Replevin for taking and detaining 65 kegs of nails the property of 
 the plaintiff. A special verdict was found upon which the question was 
 submitted to the Supreme Court. The facts were as follows : 
 
 The plaintiffs were doing business in Marshall, Michigan. They 
 contracted with the New York & Michigan Line to transport the nails 
 from Port Kent, N. Y., to Marshall, Mich., and paid the freight in ad- 
 vance. The goods were duly shipped as directed but at some point, 
 probably Whitehall, N. Y., they were diverted to the Merchants' Line. 
 The latter in good faith transported the nails to Detroit. The mistake 
 then being disclosed the local agents and part owners of the Merchants' 
 Line refused to forward the nails to Marshall or to deliver them to the 
 plaintiff until their freight charges, which exceeded those contracted 
 for with the New York & Michigan Line, were paid, claiming a lien 
 for the amount tliereof and for wharfage.] 
 
 Ransom, J.^^ Upon the facts found in tlie special verdict, several 
 questions were raised, but the most important, and the only one which 
 we deem it necessarj' to consider, is, whether the defendants had ac- 
 quired a lien upon the goods, which they could enforce, even against 
 the owners, the plaintiff's in this case. 
 
 On the part of the defendants, it is contended that a common car- 
 rier who receives goods for carriage and transports them, may detain 
 them by virtue of his lien, for freight, even against the owner, in case 
 the freight has been earned without fraud or collusion on his part; 
 that, if goods be stolen, or otherwise tortiously obtained from the legal 
 owner, at New York or elsewhere, and carried by a transportation line 
 from thence to Detroit, without a knowledge of the theft, on the part 
 of the carrier, he would be entitled to a lien for freight, even against 
 the owner. This doctrine is sought to be maintained by the defendants' 
 
 replevied. The following instruction to the jury was held correct: "If the 
 plaintiff believed * * * that the owner of the horse was not himself 
 keepins the horse, but was boarding him at some livery stable * * * and 
 the plaintiff made no objection, the jury would be authorized to fiud * • * 
 that the horse was boarded at the defendant's stable * * * by the con- 
 sent of the plaintiff, even althoush the plaintiff did not know at which par- 
 ticular livery stable » * * the horse was being boarded." Lynde v. 
 Parker, lo.j Mass. 4S1, 30 X. E. 74 (1S92K 
 
 The question as to what persons or interests statutory liens may be enforc- 
 ed against frequently turns upon the language of the statute creating the 
 lien. See Colquitt v. Kirkman, 47 Ga. 5.55 (1873) ; Sidwell v. Cincinnati Leaf 
 Tobacco Warehouse Co.. 65 S. W. 436, 23 Ky. Law Rep. 1501 (1001) ; Smith 
 V. Stevens, 30 Minn. 303, 31 N. W. 55 (18861 : Barrett Mfg. Co. v. Van Rouk, 
 212 N. Y. 90, 105 N. E. 811 (19141 ; Smith Auto Co. v. Kaestner (Wis.) l.-.O X. 
 W. 738 (1916); Century Throwing Co. v. Muller, 197 Fed. 252, 116 C. C. A. 
 614 (1912). 
 
 t^3 Part of the opinion is omitted.
 
 80 POSSESSORS INTERESTS IX CHATTELS (Ch. 3 
 
 counsel, on several grounds: 1. He insists that a common carrier is 
 bound to receive goods which are offered for transportation, and to 
 carry them ; that it is not a matter of choice whether he will receive 
 and carry them or not; that he is liable to prosecution if he refuses. 
 
 2. That a common carrier is not only bound to receive and transport 
 goods that are offered, but he is liable for their loss, in all cases, ex- 
 cept by the act of God and public enemies; and the same rule, he in- 
 sists, applies to warehousemen and forwarders. 3. That the duties 
 and obligations of common carriers and innkeepers, are, in all respects, 
 analogous ; and an innkeeper is bound to receive and entertain guests, 
 and to account for a loss of their baggage while under his care. 4. 
 That a common carrier, being bound by law to accept goods oft'ered 
 him for carrying, and being responsible for their safe delivery in all 
 cases, except when prevented by the act of God or public enemies, is 
 entitled to a lien for their freight, against all persons, including even 
 tl:e owner, when the goods were tortiously obtained from him ; that he 
 is not bound to inquire into the title of the person who delivers them ; 
 and such lien exists, although there be a special agreement for the price 
 of carriage. 5. That the master is not bound (nor his agent for him) 
 to deliver any part of a cargo until the freight anil other charges are 
 paid. 
 
 But for the plaintiffs it is contended : 1. That liens are only known 
 or admitted in cases where the relation of debtor and creditor exists, 
 so that a suit at law may be maintained for the debt which gives rise 
 to the lien ; that a lien is a mere right to detain goods until some charge 
 against the owner be satisfied. 2. That the defendants obtained pos- 
 session of the goods without authority from the owners, either express 
 or implied ; that no legal privity exists between the parties, and there- 
 fore the relation of debtor and creditor <loes not exist between the de- 
 fendants or their principals and the plaintiffs, and no action could be 
 maintained by either against them for the freight, or any part of it. 
 
 3. They contend further, that, even if the defendants lawfully re- 
 ceived the goods from the original carriers of the plaintiffs, the New 
 York & Michigan Line, they did so as their agents and servants, and 
 were bound by their agreement with the plaintiffs ; that their contract 
 of affreightment is incomplete, and therefore no freight is due. 
 
 That common carriers are bound to receive goods which are offered 
 by the owners or their agents for transportation, and to carry them for 
 a just compensation, upon the routes which they navigate, or over 
 which they convey goods in the prosecution of their business, is too 
 well settled to require discussion, although this general proposition is 
 subject to some qualifications. * * * 
 
 That common carriers are responsible for the safe conveyance and 
 delivery of the goods committed to them for carriage, is just as con- 
 clusively settled as that they are bound to receive and carry them. * * * 
 
 Another position tal<en by the defendants' counsel, that the duties of
 
 Sec. 2) BAILOR AND BAILEE 81 
 
 common carriers and innkeepers are analogous, may be admitted. As a 
 general proposition it cannot be denied. Upon the obligations and lia- 
 bilities imposed on common carriers, for the transportation, safe cus- 
 tody and delivery of goods, the counsel for the defendants base a cor- 
 responding right to compensation for such transportation and delivery 
 and a lien on the goods for its payment. 
 
 If, as contended for by the defendants, a carrier is bound to receive 
 and carry all goods offered for transportation, without the right of in- 
 quiring into the title or authority of the person offering them, then 
 clearly he should be entitled to a lien, even against the owner, upon the 
 goods, until he is paid for the labor he may bestow in their car- 
 riage. * * * 
 
 There is an obvious ground of distinction between the cases of car- 
 rying goods by a common carrier, and the furnishing keeping for a 
 horse by an innkeeper. In the latter case, it is equally for the benefit 
 of the owner to have his horse fed by the innkeeper, in whose custody 
 he is placed, whether left by a thief, or by himself or agent; in either 
 case, food is necessary for the preservation of his horse, and the inn- 
 keeper confers a benefit upon the owner by feeding him. But can it 
 be said that a carrier confers a benefit on the owner of goods by carry- 
 ing them to a place where, perhaps, he never designed, and does not 
 wish them to go ? Or, as in this case, is the owner of goods benefited 
 by having them taken and transported by one transportation line, at 
 their own price, when he had already hired and paid another to carry 
 them at a less price? This distinction does not, however, at all affect 
 the determination of the case before us ; we place it entirely upon 
 other grounds. * * * 
 
 All the other cases, in which the general proposition is laid down 
 that common carriers are bound to receive goods offered for carriage, 
 are evidently based upon the supposition that the goods are there oft'er- 
 ed by their owners or their authorized agents ; and that, if in anj^ way 
 they acquire possession of property without consent of the owner, ex- 
 press or implied, they, like all other persons, may be compelled to re^ 
 store it to such owner, or pay him for its value. And that the doctrine 
 of caveat emptor applies, with the same force, to that class of persons 
 as to others, is manifest, I think, from an examination of authorities. 
 
 The obligation of a common carrier to receive and carry all goods 
 offered, is qualified by several conditions, which he has a right to in- 
 sist upon before receiving them. 1. That the person oft'ering the goods 
 has authority to do so. 2. That a just compensation, or the usual price, 
 be tendered for the carriage. And, 3. That, although the owner, or 
 his agent, offers goods for carriage and tenders payment for the freight 
 in advance, still he is not bound to receive them, unless he have the 
 requisite convenience to^ carry them. 
 
 In an action brought against a carrier for refusing to receive and 
 carry goods, would it not constitute a valid defense that the plaintiff 
 Big.Pehs.I'bop. — G
 
 82 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 had stolen them, although, at the time of offering, the carrier may not 
 have known they had been stolen ? * * * 
 
 So, a carrier is in all cases entitled to demand the price of carriage 
 before he receives the goods, and, if not paid, he may refuse to take 
 charge of them. Story on Bail. § 586; 5 Barn. & Aid. 353 ; 4 Barn. & 
 Aid. 32; 3 Bos. & Pull. 48; and Whit, on Liens, 92. 
 
 If, then, a common carrier may demand payment for carriage in ad- 
 vance, and if he may reject goods offered by a wrong-doer, or by one 
 having no authority to do so, is he not bound to take care that the per- 
 son from whom he receives them has authority to place them in his 
 custody ? * * * 
 
 If it be said for the defendants, that Allen, the master of the vessel 
 on which the goods were originally shipped, or Eddy & Bascomb, the 
 wharfingers and forwarders to whose care at Whitehall they were con- 
 signed, delivered them to the defendants or to those from whom they 
 received them, it may be replied that if such were the fact, it would not 
 affect the rights of the plaintiffs or the liabilities of tlie defendants, un- 
 der the facts found by the special verdict in this case. 
 
 The jury have found that the plaintiff's contracted with the New 
 York & Michigan line, to transport their goods to Detroit, and paid 
 them the stipulated price for tlie carriage, in advance. The only power 
 over the goods which that line derived from their contract with the 
 plaintiffs, was, to safely carry and deliver them at the place of con- 
 signment. Thev had no authoritv to transfer them to anv other line, 
 and make the plaintiff's chargeable for the freight. And the defend- 
 ants, under such a transfer, could acquire no right to compensation for 
 freight, as against the plaintiffs. 
 
 Nor had Eddy & Bascomb, from any fact appearing in the case, any 
 authority to forward the goods, from Whitehall, by any conveyance 
 other than that which the plaintiffs had directed, and which appeared 
 upon the bill of lading that accompanied the goods. A special authori- 
 ty must be strictly pursued; and whoever deals with an agent consti- 
 tuted for a special purpose, deals at his peril, when the agent passes the 
 precise limits of his power. 2 Kent's Com. 631. No one can transfer 
 to another a better title than he has himself, or a greater interest in per- 
 sonal property, than he. or the person for whom he acts, possesses: 
 Hoffman v. Carow, 22 Wend. (N. Y.) 318. 
 
 To create a lien it is necessary that the party vesting it, should have 
 the power to do so. A person can neither acquire a lien by his own 
 wrongful act, nor can he retain one, when he obtains possession of 
 goods without the consent of the owner, express or implied. 5 T. R. 
 606; 1 Saund. PI. & Ev. 326; 2 Stark. Ev. 360; Andrew v. Dieterich, 
 14 Wend. (N. Y.) 31. * * * 
 
 It seems to me to be a proposition too plain to be controverted. That 
 one man cannot, by his own act, make another his debtor, without his 
 consent, will not be questioned. Consequently, it is not sufficient to
 
 Sec. 2) BAILOB AND BAILEE 83 
 
 create the relation of debtor and creditor, that the plaintiff should have 
 rendered services to the defendant, without also showing that tlie de- 
 fendant assented to the services, and expressly or impliedly agreed to 
 remunerate the plaintiff for them. * * * 
 
 Finally, on a full and careful consideration of this case, we arrive at 
 the following conclusions : 
 
 1. That a common carrier is bound to receive and carry goods, only 
 when ottered for carriage by their owner or his authorized agent, and 
 then only upon payment for the carriage in advance, if required. 
 
 2. If a common carrier obtains the possession of goods wrongfully, 
 or without the consent of the owner, express or implied, and, on de- 
 mand, refuses to deliver them to the owner, such owner may bring t&- 
 plevin for the goods, or trover for their value. 
 
 3. To justify a lien upon goods for their freight, the relation of 
 debtor and creditor must exist between the owner and the carrier, so 
 that an action at law might be maintained for the payment of the debt, 
 sought to be enforced by the lien. 
 
 The facts set forth in the special verdict found in this case do not 
 bring it within the principles which justify the lien claimed by the de- 
 fendants, and, therefore, judgment for the plaintiffs must be entered 
 upon the verdict, for their damages for tlae detention of the goods re- 
 plevied, and for their costs."* 
 
 5-* A. shipped a horse by the N. T. C. R. R. to Columbus. Ohio. The horse 
 was accompanied by a hostler. At Columbus the horse was delivered wrong- 
 ly to the hostler. The latter shipped it to Georgia over the S. R. R. Held, 
 the S. R. R. has no lien on the horse. Savannah, F. & W. Co. v. Talbot, 123 
 Ga. 378, 51 S. E. 401, 3 Ann. Cas. 1092 (1905). 
 
 A. sold and delivered machinery to B., the title to remain in A. until the 
 price was paid. C, who bad obtained pos.sesslon of the machinery from B., 
 delivered it to the M. C. R. R. for carriage. Neither C. nor B. claimed it 
 at its destination. B. was in default in his payments to A. Held, the rail- 
 road has no lien on the machinery for its transportation charges good as 
 against A. Corinth Engine & Boiler Works v. Mississippi Cent. R. Co., 95 
 Miss. 817, 49 South. 261 (1009). Compare Singer Mfg. Co. v. London, etc., R. 
 R. Co.. [1894] 1 Q. B. D. 8:33. 
 
 A. shipped grain from Nebraska to B. in Colorado crver the U. P. R. R. to 
 Denver, with directions to forward from there over the D. & N. O. R. R. 
 The U. P. R. R,, in accordance with a contract with the D. & R. G. R. R., 
 to forward all goods by the latter, regardless of shipping directions, so for- 
 warded this grain. Held, the D. & R. G. R. R. has no lien on the grain, 
 even though it had no knowledge of the shipping directions in the present 
 case. Denver & R. G. R. Co. v. Hill, 13 Colo. 35, 21 Pac. 914, 4 L. R. A. 376 
 (1889). A fortiori, the second railroad has no lien, if it knows the delivery 
 to it is in violation of shipping directions. Bird v. Georgia R. R., 72 Ga. 
 655 (1884).
 
 84 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 PATTEN V. UNION PAC. RY. CO. 
 (Circuit Court of the United States, District of Colorado, ISSC. 20 Fed. 500.) 
 
 Brewer, J. The facts in this case are these: Plaintiffs shipped 
 from Kirksville, Ohio, to Denver, Colorado, a car-load of lumber. 
 They delivered it to the Baltimore & Ohio Railroad Company, at 
 Kirksville, for transportation by it to Chicago, with instructions to 
 forward it by the Chicago & Alton and the Atchison, Topeka & Sanla 
 Fe lines. They had made contract arrangements with the latter com- 
 pany for special rates. Disregarding the instructions, the Baltimore 
 & Ohio Company delivered the car at Chicago, in the usual course of 
 business, to the Chicago, Rock Island & Pacific Company, which, in 
 its turn, delivered it to the defendant, by whom it was finally brought 
 to Denver. Defendant, having paid all prior charges for freight of 
 the Baltimore & Ohio and the Chicago, Rock Island & Pacific Com- 
 panies, claimed a lien for these charges, as well as for its own. Plain- 
 tiiTs declined to pay these charges, and brought this action of replevin. 
 The contention of the plaintiffs is that the Baltimore & Ohio Com- 
 pany was a special agent, with limited powers, and that it disregard- 
 ed its instructions, and exceeded its authority ; that the carriage by 
 the defendant company, as well as the prior carrier, the Chicago, Rock 
 Island & Pacific, was without authority from and against the will of 
 the owners, and, being thus unauthorized, created no charge against 
 the owners for compensation — no right to a lien. 
 
 The principal case cited by the plaintiffs in support of this view is 
 that of Fitch v. Newberry, 1 Doug. (Mich.) 1, 40 Am. Dec. 33, which 
 unquestionably sustains their position. In a very elaborate and ex- 
 haustive opinion that court holds that the forwarding company is only 
 a special agent, with limited powers ; that whoever deals with such 
 agent is bound to take notice of the extent of his authority ; and that 
 if such agent, disregarding his instructions, delivers the goods to the 
 wrong carrier, the latter, although he carries them to the place of 
 destination, does so at his own risk, is not the debtor [sic] of the 
 owner, and has no claim for freight or lien upon the goods. I cannot 
 think, under the present conditions of transportation business, the rule 
 therein announced is the correct one. The true rule is this: that a 
 carrier, receiving goods for transmission over his own line, and con- 
 signed to a place beyond, has the apparent authority to forward the 
 same to the place of destination by any of the ordinary routes thereto, 
 and that such second carrier, receiving the goods in the usual and 
 ordinary course of business, without notice of any special instructions 
 to the first carrier, and transporting the goods to the place of destina- 
 tion, is entitled to demand the ordinary and reasonable freight there- 
 for. The question evidently turns upon the authority of the first car- 
 rier, and whether the delivery to the second carrier is in pursuance of
 
 Sec. 2) BAILOR AND BAILEE 85 
 
 the apparent authority conferred upon the first. I am aware of the 
 distinction that has frequently been drawn between the case of a gen- 
 era! and that of a special agent ; that the former is presumed to have 
 all the ordinary powers necessary for the accomplishment of the busi- 
 ness intrusted to him, while the latter is one with limited and special 
 powers ; and the further rule that one dealing with a special agent is 
 bound to take notice of the exact powers conferred. But this gen- 
 eral rule has been of late years subject to considerable modification. 
 
 The rule as recognized to-day is well stated in 1 Pars. Cont. 44, as 
 follows : 
 
 "It may, indeed, be said that- every agency is, under one aspect, spe- 
 cial, and under another, general. No agent has authority to be, in" 
 all respects, and for all purposes, an alter ego of his principal, bind- 
 ing him by whatever the agent may do in reference to any subject 
 whatever; and therefore the agency must be special, so far as it is 
 limited by place or time, or the extent or character of the work to be 
 done. On the other hand, every agency must be so far general that 
 it must cover, not merely the precise thing to be done, but whatever 
 usually and rationally belongs to the doing of it. Of late years, courts 
 seem more disposed to regard this distinction, and the rules founded 
 upon it, as altogether subordinate to that principle which may be called 
 the foundation of the law of agency; namely, that a principal is re- 
 sponsible, either when he has given to an agent sufficient authority, 
 or when he justified a party dealing with his agent in believing that he 
 has given to this agent this authority." 
 
 It is sometimes expressed in another way ; and that is that the prin- 
 cipal is bound by the acts of his agent, done within the apparent scope 
 of the authority conferred ; and that, whether he be technically either 
 a general or special agent. I think that rule determines this case, and 
 that a common carrier, having goods in its possession consigned to a 
 point beyond its own line, is clothed with the apparent authority to 
 forward those goods by any of the ordinary and usual routes. In 
 Whitney v. Beckford, 105 Mass. 271, the court uses this language: 
 
 "But when the freight is earned in good faith, under a contract of 
 transportation made with an agent of the owner, who, according to 
 the usages' of the business, is clothed with apparent authority by its 
 principal, then the charges for freight will constitute a valid lien upon 
 the property, although the agent, by an accidental or intentional de- 
 parture from his instructions, sends the goods by a route not intended, 
 or to the wrong place." 
 
 Any other rule would work a serious hindrance to the immense 
 transportation business of to-day, while this rule protects both car- 
 rier and owner. If the first carrier disobeys his instructions, by which 
 loss results to the owner, such carrier is liable to an action of dam- 
 ages, and as is proper the wrongdoer sufters the loss. At the same 
 time the second and innocent carrier having done the work of trans-
 
 8G POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 portation, receives, as it ought, the just freight therefor. The first 
 carrier is tlie agent of the owner. If he has done wrong, why should 
 not the principal be remitted to his action against his wrongdoing 
 agent, and why should the burden of litigation be cast upon the inno- 
 cent second carrier? Plaintiffs say that, in this case, they would have 
 to go to Ohio to maintain their action ; but, if they select an agent in 
 Ohio, and that agent does wrong, why should not they go to Ohio to 
 punish him for his wrong. And why should the defendant, innocent 
 of any wrong be forced to go thither to litigate with their agent ? And 
 why should the owner, who has had his goods carried to the place of 
 destination, be pennitted to take them from the carrier without any 
 payment for such transportation? Is the route by which the freight 
 is transported a matter so vital to him that, carried over the wrong 
 route, he is entitled equitably to the possession of his goods free from 
 any burden of freight? 
 
 One other matter requires notice. That the Chicago, Rock Island 
 & Pacific Company received this car at Chicago, in good faith, in the 
 usual course of business, and w'ithout actual notice of the special in- 
 structions to the Baltimore & Ohio Company, is shown by the testi- 
 mony beyond dispute. The lumber was in fact loaded in a car belong- 
 ing to the Chicago & Alton Railroad, and so marked. It is insisted 
 by the plaintiffs that the use of such a car was implied notice to the 
 Chicago, Rock Island & Pacific Company that the car was to be 
 shipped over the Chicago & Alton Railroad. I do not think this is 
 true. Courts must be presumed to be familiar with the ordinary facts 
 of transportation; and one of those facts is that the freight cars of 
 each road are constantly used by other roads. Everywhere one goes 
 he sees cars belonging to multitudes of railroad corporations in use 
 upon roads other than their own. The frequency of this is such that 
 it seems to me no implication can fairly be drawn from the fact that 
 the goods are loaded in a car belonging to one road that special in- 
 structions have been given to ship over that road. 
 
 These being the only questions in the case, judgment must be en- 
 tered in favor of the defendant, for a return of the propertv, or, upon 
 failure to do that, for the amount of the freight charges, both its own 
 and those of the prior carriers.-'" 
 
 6 5 See Schneider v. Evans, 25 Wis. 241, 3 Am. Rep. 56 (1S70). 
 
 Goods were sent from S. consigned to P., "rates guaranteed to P. by tlie 
 first carrier." By mistake tlie destination P. was changed to C, to which 
 the goods were taken. The owner ordered the W. By. to carry them from 
 C. to P. The W. Ry. did so, paying tlie freight from S. to C, which was the 
 same as from S. to P. This amount the owner repaid the W. Co. Held, it 
 has a lien for its own charges, although the total charges from S. to C. to P. 
 exceed the guaranteed rate from S. to P. Vaughan v. Providence & W. R. 
 Ck)., 13 R. I. 57S (1SS2). 
 
 "This conclusion does not at all contlict with the decision in the case of 
 Robinson v. Baker, 5 Cush. (Mass.) 137, 51 Am. Dec. 54 (1S49), upon which 
 the plaintiff, in support of his position, chiefly relies. For there is an es-
 
 Sec. 2) BAILOR AND BAILEE 87 
 
 BROADWOOD et al. v. GRANARA. 
 (Court of Exchequer, 1854. 10 Exch. 417.) 
 
 This was a case stated for the opinion of the Court by consent of 
 the plaintiffs and defendant, and by order of a Judge. 
 
 The declaration stated that the defendant converted to his own use 
 the plaintiff's' goods, that is to say, a boudoir grand pianoforte. The 
 defendant pleaded, first, not guilty ; secondly, that the goods were not 
 the plaintiff's'. Upon which, issues were joined. 
 
 The plaintiffs are, and at the time of the alleged conversion were, 
 in partnership as manufacturers of pianofortes, in Great Pulteney- 
 street, London. The defendant was, and is, the proprietor of an inn 
 or hotel, called the Hotel de I'Europe, in Leicester-place, Leicester 
 square. 
 
 In March, 1853, a Monsieur Hababier, a foreigner and professional 
 pianist, went to reside at the defendant's hotel, and remained there, 
 occupying apartments, and occasionally taking his meals in the house, 
 for some months. On the 28th of March, Monsieur Hababier, then re- 
 siding at the hotel, as before mentioned, went to the manufactory of 
 the plaintiff's in Great Pulteney-street, and requested the use or loan of 
 a grand pianoforte. It has been, and is, usual for the plaintiffs to 
 
 sential difference between the facts in the present and those which appeared 
 in that case. There it was shown that the plaintiff, the owner of a parcel 
 of Hour, delivered it at Black Rock, on Ixiard of one of their canal boats, to 
 the Old Clinton Line Company, who gave for it bills of lading in duplicate, 
 wherein they undertook, and agreed to transport it to Albany and there de- 
 liver it to Witt, the agent of the Western Railroad. The plaintiff sent one of 
 these bills of lading to Witt and the other to the consignee at Boston thus 
 reserving to himself the right and assuming the responsibility of giving to 
 Witt the directions under which he was to act. The service which the Old 
 Clinton Line Company was to render was exclusively in their capacity as 
 common carriers. They had only to carry the flour to Albany and there de- 
 liver it to Witt. They had no other duty to perform ; no right to exercise 
 any control over it for any other purpose. They were not, therefore, the for- 
 warding agents of the plaintiff, nor invested by liim with any authority to 
 give directions as to the further transportation of the flour, or to make any 
 other disposition of it than its delivery to Witt. Yet upon its arrival in Al- 
 bany, in consequence of the inability of Witt immediately to receive and take 
 charge of it, the agents of the Clinton Line Company, without right and in 
 violation of their duty, shipped the flour to the city of Xew Yoi-k, and from 
 there to Boston in the schooner Lady Sufi'olk, whose owners claimed a right 
 to detain it under a lien upon it for the freight. But the court, upon the 
 general principle that if a carrier, though innocently, receives goods from a 
 wrongdoer without the consent of the owner, express or implied, he cannot 
 detain them against the true owners until the freight or carriage is paid, 
 determined that they had no lien upon the flour, and that their claim to that 
 efliect could not be sustained. But if they had Ijeon the forwarding agents of 
 the owner he would have been responsible for their acts, and his consent to 
 the diversion of the property from its intended route of transportation would 
 have resulted by implication from their ilircctions, and the respective carriers 
 would then have become entitled to hold it under a lien to secure payment 
 of the freight." Briggs v. Boston ii L. U. Co., b Alien (.Mass.) 24G, S3 Am. 
 Dec. 626 (1863).
 
 88 POSSESSOKT INTERESTS IN CHATTELS (Ch. 3 
 
 lend pianofortes to musical artists witliout charge ; and in compliance 
 with this rec|ucst a grand pianoforte was sent to the before-mentioned 
 hotel for the use of Monsieur Hababier. This pianoforte remained 
 at the hotel in possession of Monsieur Hababier, in his apartments, 
 until the 9th of June following, when it was taken away and replaced 
 by a boudoir grand pianoforte, also supplied by the plaintiffs with- 
 out charge to Monsieur Hababier. 
 
 Monsieur Hababier remained at the hotel until the 27lh of June, and 
 during that time incurred a bill for the use of the apartments and for 
 board, hire of carriages, and other accommodation, to a considerable 
 amount. Some payments were made on account, but at the time of 
 the demand and refusal hereinafter mentioned, there was a balance 
 due from him to the defendant of £461. 3s. 5d., consisting in part of 
 use of apartments, etc., after the 9th of June. 
 
 On the 27th of June, the plaintiffs' clerk applied to the defendant 
 for the last-mentioned pianoforte, and requested that it might be de- 
 livered to him for the plaintiffs. He, at the same time, handed to the 
 defendant a written authority from IMonsieur Hababier to deliver it 
 to the plaintiffs. The defendant declined to deliver up the pianoforte. 
 On the following day, the clerk again went to the house of the defend- 
 ant, taking with him a van and two porters, and again demanded the 
 pianoforte. On this occasion, the defendant asked him if he had 
 brought any money, and being answered in the negative, said, "Unless 
 Messrs. Broadwood pay my bill for the rent of the apartments, I will 
 not give up the piano." 
 
 It is admitted, for tlie purposes of this case, that the hotel of the 
 defendant was, and is, an inn; and that the defendant was, and is, 
 entitled to the rights of an innkeeper. 
 
 The defendant, at all times knew the pianoforte in question was 
 not the property of Monsieur Hababier, but that of the plaintiffs ; and 
 the plaintiffs at all times knew that the said Monsieur Hababier was 
 stopping at an hotel. The balance due to the defendant from Mon- 
 sieur Hababier is still unpaid. 
 
 The question for the opinion of the Court is, whether, under the 
 above circumstances, the plaintiffs are entitled to maintain the action. 
 If the Court shall be of opinion that the action is maintainable, the 
 verdict is to be entered for the plaintiffs, with £100. damages. If the 
 Court shall be of opinion that the defendant had a right to detain the 
 pianoforte, then the verdict is to be entered for the defendant. 
 
 Pollock, C. B.'^" We are all of opinion that the lien claimed by the 
 defendant cannot prevail. I need not go through the series of deci- 
 sions referred to, or the propositions propounded at the bar, because 
 the limited ground on which I think the plaintiff's entitled to judgment 
 is this — that there is no case which decides that an innkeeper has a 
 
 C8 The opinion of Piatt, B., is omitted.
 
 Sec. 2) BAILOR AND BAILEE 89 
 
 right of lien under such circumstances as these. This is the case of 
 goods, not brought to the inn by a traveller as his goods, either upon 
 his coming to or whilst staying at the inn, but they are goods fur- 
 nished for his temporary use by a third person, and known by the inn- 
 keeper to belong to that person. I shall not inquire, whether, if the 
 pianoforte had belonged to the guest, the defendant would have had 
 a lien on it. It is not necessary to decide that point, for the case finds 
 that it was known to the defendant that the pianoforte was not the 
 property of the guest, and that it was sent to him for a special pur- 
 pose. Under these circumstances, I am clearly of opinion that the 
 defendant has no lien. 
 
 ParkE, B. I am of the same opinion. It is not necessary to advert 
 to the decisions on the subject of an innkeeper's lien, because this is 
 not the case of goods brought by a guest to an inn in that sense in 
 which the innkeeper has a lien upon them ; but it is the case of goods 
 sent to the guest for a particular purpose, and known by the innkeeper 
 to be the property of another person. It therefore seems to me that 
 there is no pretence for saying that the defendant has any Hen. The 
 principle on which an innkeeper's lien depends is, that he is bound to 
 receive travellers and the goods which they bring with them to the inn. 
 Then, inasmuch as the effect of such lien is to give him a right to 
 keep the goods of one person for the debt of another, the lien cannot 
 be claimed except in respect of goods which, in performance of his 
 duty to the public, he is bound to receive. The obligation to receive 
 depends on his public profession. If he has only a stable for a horse 
 he is not bound to receive a carriage. There was no ground whatever 
 for saying that the defendant was under an obligation to receive this 
 pianoforte. 
 
 Judgment for plaintiffs. 
 
 6T 
 
 ROBBINS & CO. V. GRAY. 
 (Court of Appeals. [ISOo] 2 Q. B. Div. 501.) 
 
 The action was brought to recover from the defendant, an innkeeper, 
 certain sewing-machines, the property of the plaintiffs, which they al- 
 leged were wrongfully detained by the defendant. 
 
 The plaintiffs were a firm of dealers in sewing-machines and other 
 articles. In 1894 they had in their employment as a commercial 
 traveller one Green, who canvassed for orders and sold their goods 
 upon commission. In April, 1894, Green, for the purposes of his busi- 
 ness as such commercial traveller, went to stay at the defendant's 
 
 15' A. stole B.'s horse and was arrested with the animal in his possession. 
 It was turned over by the police to C, an innkeeper, who fed it for several 
 weeks. Held, C. has no lien on the horse as against B. Biuns v. Bigot, 9 C. & 
 P. 208 (1S40).
 
 90 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 hotel, taking with him sewing-machines, the property of his employers, 
 for the purpose of selling tliem to customers in the neighborhood. He 
 remained there until the end of July. Whilst there the plaintiffs sent 
 to him from time to time more sewing-machines for the same pur-' 
 pose. At the end of July Green left the hotel without paying his bill 
 for board and lodging, and he left there some of the machines so 
 sent. Before the defendant received into his hotel the macliines so 
 sent, and before Green had incurred his debt for board and lodging, 
 the defendant had been expressly told by the plaintiffs that the ma- 
 chines were their property, and not the property of Green ; but he 
 received the goods into his hotel as Green's baggage. The defendant 
 claimed a lien for the amount of Green's debt upon the machines left 
 by him at the hotel. 
 
 On the above facts the learned judge gave judgment for the de- 
 fendant. 
 
 The plaintiffs appealed. 
 
 Lord Esher, M. R.*' I have no doubt about this case. I protest 
 against being asked, upon some new discovery as to the law of inn- 
 keeper's lien, to disturb a well-known and very large business carried 
 on in this country for centuries. The duties, liabilities, and rights of 
 innkeepers with respect to goods brought to inns by guests are found- 
 ed, not upon bailment, or pledge, or contract, but upon the custom of 
 the realm, with regard to innkeepers. Their rights and liabilities are 
 dependent upon that, and that alone ; they do not come under any 
 other head of law. What is the liability of an innkeeper in this re- 
 spect? If a traveller comes to an inn with goods which are his lug- 
 gage — I do not say his personal luggage, but his luggage — the inn- 
 keeper by the law of the land is bound to take him and his luggage 
 in. The innkeeper cannot discriminate and say that he will take in 
 the traveller but not his luggage. If the traveller brought something 
 exceptional which is not luggage — such as a tiger or a package of 
 dynamite — the innkeeper might refuse to take it in ; but tlie custom 
 of tlie realm is that, unless there is some reason to the contrary in the 
 exceptional character of the things brought, he must take in the trav- 
 eller and his goods. He has not to inquire whether the goods are the 
 property of the person who brings them or of some other person. If 
 he does so inquire, the traveller may refuse to tell him, and may say, 
 "What business is that of yours? I bring the goods here as my lug- 
 gage, and I insist upon j^our taking them in;" or he may say, "They 
 are not my property, but I bring them here as my luggage, and I in- 
 sist upon your taking them in;" and then the innkeeper is bound by 
 law to take them in. Again, suppose the things brought are such 
 things as the innkeeper is not bound to take in, he may, as I have said, 
 refuse to take them in although the traveller demands that they shall 
 
 58 The opiuious of Kay and Smith, LL. J., are omitted.
 
 Sec. 2) BAILOR AND BAILEE 91 
 
 be taken in as his luggage; but if after that the innkeeper changes 
 his mind and does take them in, tlien they are in the same position 
 as goods properly offered to the innkeeper according to the custom 
 of the realm. Then the innkeeper's liability is not that of a bailee 
 or pledgee of goods; he is bound to keep them safely. It signifies 
 not, so far as that obligation is concerned, if they are stolen by bur- 
 glars, or by the servants of the inn, or by another guest ; he is liable 
 for not keeping them safely unless they are lost by the fault of the 
 traveller himself. That is a tremendous liability; it is a liability fixed 
 upon the innkeeper by the fact that he has taken the goods in; and by 
 law he has a lien upon them for the expense of keeping tliem as well 
 as for cost of the food and entertainment of the traveller. By law that 
 lien can be enforced, not only against the person who has brought 
 goods into the inn, but against the real and true owner of them. That 
 has been the law for two or three hundred years ; but to-day some 
 expressions used by judges, and some questions — immaterial, as it 
 seems to me — which have been left to juries, are relied on to estab- 
 lish that if the innkeeper knows that the goods are not the goods of 
 the person who brings them to the inn, he may refuse to take them 
 in ; or, if he does take them in, he has no lien upon them. One can- 
 not help asking, What is his liability supposed to be if he does take 
 in goods under such circumstances? It must be borne in mind that 
 goods brought into an inn are not exclusively in the possession of the 
 innkeeper ; the person who brings them may deal with them : he 
 may take them out of a box in a room or passage without the knowl- 
 edge of the innkeeper, though the latter is bound to see that no one 
 else interferes with them. Now, is there any decided case in which 
 it has been held that, although goods have been brought to an inn 
 as the luggage of the traveller and received as such by the innkeeper, 
 he has no lien upon them if he knows that they are not the goods of 
 the traveller? There is not one such case to be found in the books. 
 It was said that Broadwood v. Granara, 10 Ex. 417, was such a case. 
 But there the proposition, that if a guest brings goods into art inn as 
 his luggage they must be treated as if they were his goods, was fully 
 recognised.. The judges held in that case that a piano, not brought 
 to the inn by the guest as his luggage, but sent in by a tradesman for 
 the guest to play upon during his stay at the inn, was not offered to, nor 
 taken possession of by, the innkeeper under the custom of the realm 
 as the luggage of the guest, and therefore that the piano was not sub- 
 ject to the innkeeper's lien. Whether we should have agreed with 
 that decision is immaterial. The case was expressly decided on the 
 ground that the law of innkeepers did not apply. It is, therefore, no 
 authority in the case now before us, where, as the learned judge in 
 the Court below has found, the goods were brought to die inn as the 
 goods of the traveller and accepted as his goods by the innkeeper. If 
 we were to accede to the argument for the appellants we should be
 
 92 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 making a new law, and our decision would produce in very many cases 
 great confusion and hardship. I am of opinion that an innkeeper is 
 bound to take in goods with which a person who comes to the inn is 
 travelling as his goods, unless tlaey are of an exceptional character; 
 that the innkeeper's lien attaches, and that the question of whose prop- 
 erty the goods are, or of the innkeeper's knowledge as to whose prop- 
 erty they are, is immaterial. 
 
 This appeal should, therefore, be dismissed."' 
 
 COOK V. KANE. 
 (Supreme Court of Oregon, ISSG. 13 Or. 4S2, 11 Pae. 22G, 57 Am. Rep. 28.) 
 
 Lord, J.°° This suit was instituted by the plaintiff as an innkeeper 
 to enforce a lien against a piano, put in his possession by the defend- 
 ant as his guest, for a debt due for lodging and entertainment. By 
 the facts stipulated, it is admitted that the relation of innkeeper and 
 guest existed between the plaintiff and defendant when the plaintiff, 
 at the request of the defendant, paid the freight charges on the piano, 
 and took it into his custody ; that the piano was in fact the property 
 of a third person, who had consigned it to the defendant to sell on 
 commission, but tliat the plaintiff did not know it was the property 
 of such third person, but received it in his character as an innkeeper 
 and as the property of his guest. Upon this state of facts, we are 
 to inquire whether the piano is chargeable with an innkeeper's lien 
 for board and lodging furnished his guest. 
 
 At common law, the liability of an innkeeper for the loss of the 
 goods of his guest is special and peculiar, and like that of the com- 
 mon carrier, is founded on grounds of public policy. It must not, 
 however, be confounded with that of a common carrier; the liabil- 
 ities, though similar, are distinct. Clark v. Burns, 118 Mass. 275, 
 19 Am. Rep. 456; Schouler on Bailments, 259. Whatever contro- 
 versy may exist in the judicial mind as to the true measure of the inn- 
 keeper's resyjonsibility it cannot be denied that his liability for the loss 
 of the goods of his guest is extraordinary and exceptional. Schouler 
 on Bailments, 261, and notes; Coggs v. Bernard, 1 Smith's Lead. Cas. 
 (.\m. Notes) 401. Compelled to afford entertainment to whomsoever 
 may apply and behave with decency, the law, as an indemnity for the 
 extraordinary liabilities which it imposes, has clothed the innkeepef 
 with extraordinary privileges. It gives him, as a security for unpaid 
 
 09 Accord: Brown Shoe Co. v. Hunt, 103 Iowa, 586, 72 N. W. 7C5, 39 L. R. 
 A. 291, 64 Am. St. Rep. 19S (1S97) ; Waters & Co. v. Gerard. 189 N. Y. 302, 
 82 N. E. 143, 24 I.. R. A. (N. S.) 958, 121 Am. St. Rep. 886 (1907), statute. 
 
 60 Parts of the opinions of Lord and Thayer, JJ., are omitted.
 
 Sec. 2) BAILOR AND BAILEE 93 
 
 charges, a lien upon the property of his guest, and upon the goods put 
 by the guest into his possession. Overton on Liens, 129. Nor is the 
 lien confined to property only owned by the guest, but it will attach 
 to the property of third persons for whom the guest is bailee, provided 
 only he received the property on the faith of the innkeeping relation. 
 Schouler on Bailments, 292 ; Calye's Case, 1 Smith's Lead. Cas. 247 ; 
 Manning v. Hollenbeck, 27 Wis. 202. But the lien will not attach if 
 the innkeeper knew the property taken in his custody was not owned 
 by his guest, nor had any right to deposit it as bailee or otherwise, ex- 
 cept perhaps some proper charge incurred against the specific chattel. 
 
 In Broadwood v. Granara, 10 Exch. 417, the innkeeper knew that 
 the piano sent to the guest did not belong to him, and did not receive 
 it as part of the guest's goods; and it was on that ground alone he 
 was held not entitled to his lien. But in Threfall v. Borwick, L. R. 
 7 Q. B. 210, where the innkeeper had received the piano as part of 
 the goods of his guest, it was held he had a lien upon it. Miller, J., 
 said : "When, having accommodation, he has received the guest with 
 his goods, and thereby has become liable for their safe custody, it 
 would be hard if he was not to have a lien upon them. And under 
 such circumstances, the lien must be held to extend to goods which 
 he might possibly have refused to receive." Lusk, J., said: "I am of 
 the same opinion. The innkeeper's lien is not restricted to such things 
 as a traveling guest brings with him in journeying; the contrary has 
 been laid down long ago. It extends to all goods the guest brings 
 with him and the innkeeper receives as his. If he has this lien as 
 against the guest, the cases have established beyond all doubt that he 
 has the same right as against the real owner of the article, if it has 
 been brought to the inn by the guest as owner." * * * 
 
 Whenever, by virtue of the relation of innkeeper and guest the law 
 imposes this extraordinary responsibility for the goods of the guest, 
 it gives the innkeeper a corresponding security upon the goods put 
 by the guest into his possession. It is true that the piano was shipped 
 to the defendant in his name, but he brought it to the inn as his prop- 
 erty, or at least it was brought there at his request and upon his order, 
 and put in the custody and possession of the plaintiff as the property of 
 his guest. It is admitted that the plaintiff received it as an innkeeper, 
 and safely kept it as the property of his guest; nor is it doubted but 
 what he would have been liable for its loss; and in such case, it is 
 difficult to perceive upon what principle of law or justice he can be 
 denied his lien. The judgment must be affirmed. °^ 
 
 Waldo, C. J., concurring. 
 
 Thayer, J. (dissenting). * * * Upon the main question in the 
 case, there is some doubt in view of the authorities upon the subject. 
 
 «iAcc.: Threfall v. Borwick, L. R. 7 Q. B. 711 (1S72) ; Joiips v. Morrill, 
 42 Barb. (N. Y.) 623 (1SC4). Compare Covington v. Newberger, 99 X. C. 523,
 
 94 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 Though upon a common-sense view there would not seem to be any. 
 That the man Kane could pledge the appellant's piano for his own 
 hotel bill, or in any way subject it to the payment thereof, would shock 
 all sense of property right. The respondent's counsel, however, have 
 cited numerous cases where such a lien has attached to the property 
 of a third person, and I have no doubt but that .such lien will in many 
 cases attach to the property taken by the guest to the inn, at which 
 he obtains accommodations, though he be not the owner of it. But 
 in all such cases, it seems to me the property must derive some spe- 
 cial benefit,"- or else the owner must have intrusted it to a party un- 
 der circumstances from which he could reasonably have concluded that 
 the party would become the guest of an inn, and take the property with 
 him there as his own;"' and I do not think the rule should extend 
 further than this. In the case under consideration, it does not ap- 
 pear that the appellant ever knew that Kane was stopping at a hotel. 
 He sent the piano to him at Baker City, to sell upon commission. It 
 does not appear that the respondent furnished the entertainment upon 
 the credit of the piano, or upon the supposition that it belonged to 
 Kane. The latter might, and so far as I can see, would have continued 
 a guest at the hotel the same whether the piano had been sent or not. It 
 is not a case, as I view it, where the owner of the property has clothed 
 another with the indicia of ownership, and a third person been de- 
 ceived thereby into purchasing it, or giving credit upon the faith of 
 such indication. It was purely a business transaction. The appellant 
 was attempting to make sale of his property, and sent it to Kane for 
 that purpose. The latter had no authority in the premises, except to 
 exercise the special power conferred, and it does not appear but that 
 the respondent had full knowledge of the facts, as the appellant al- 
 leged he did in his answer. I am inclined to believe that the burden 
 of proof was upon the respondent to establish that he supposed the 
 piano to belong to Kane, and that he entertained him upon the faith 
 that such was tlie fact, before he could claim a lien upon it for the 
 hotel bill. The property of one man should not be taken for the debt 
 of another against the former's consent, imless he has done some act 
 or neglected some duty creating the liability. A party cannot be de- 
 prived of his ownership to property to satisfy the claim of another, 
 unless he has in some form obligated himself to submit to it. He 
 
 6 S. E. 205 (ISSS). As to the effect of notice of ownership by another after 
 receipt of luggage, see Lurch v. Wilson, 62 Misc. Rep. 259, 114 N. Y. Supp. 
 789 (1909). 
 
 On statutory Innkeepers' liens, see Torrey v. McClellan, 17 Tex. Civ. App. 
 371, 43 S. W. 64 (1S97) ; Wertheimer-Swarts Shoe Co. v. Hotel Stevens Co., 38 
 Wash. 409, 80 Pac. 569, 107 Am. St. Rep. S64. 3 Ann. Gas. 625 (1905). 
 
 62 Ace: Domestic Sewing Machine Co. v. Watters, 50 Ga. 573 (1S74), statute. 
 
 8 3 Ace: PollJ & Co. V. Melenbacker, 136 Mich. 611, 99 X. W. 867 (1904).
 
 Sec. 2) BAILOR AND BAILEE 95 
 
 must have agreed to it in terms, or have done some act directly or 
 remotely authorizing it. I do not think that the pleadings and agreed 
 facts' in this case establish that the respondent had any lien upon the 
 piano for the hotel bill against Kane, or for anything beyond the sum 
 advanced by the respondent for the freight and transportation of it, 
 unless it be for its storage ; but the instrument has doubtless been 
 used sufficiently to offset any sum for storage, and the appellant duly 
 tendered the amount advanced as freight and transportation. 
 I think the decree should be reversed as to the appellants. 
 
 GORDON V. SILBER. 
 (Court of Queen's Bench Division, 1S90. L. K. 25 Q. B. Div. 491.) 
 
 Lopes, L. J. This is an interesting and important case, and raises 
 a question which could not have arisen before the Alarried Women's 
 Property Act, 1882. The claim is made by the plaintiffs, the propri- 
 etors of the Hotel Metropole, against Mr. Martin Silber and his wife, 
 Lady Lucy, to recover £340. 4s. Id., the balance of a hotel bill. Lady 
 Lucy has separate propertjs and the claim is made against her on that 
 ground. The separate property is admitted. j\Ir. Martin Silber, has 
 become insolvent, whence this action. 
 
 The facts may be shortly stated thus. Before May, 1889, Mr. 
 Martin Silber had been staying at the Hotel Metropole by himself 
 and had incurred expenses which he had paid. In May he was joined 
 by his wife; she subsequently left for a fortnight, and then again 
 joined her husband at the Hotel Metropole ; he met her at the sta- 
 tion : they came to the hotel with a large quantity of luggage, and were 
 received there, occupying the same rooms which they had previously 
 occupied. They continued to live there together until August 27, when 
 Mr. ^lartin Silber left. Lady Lucy remaining there until September 
 4, when she left. Mr. Martin Silber had made payments on account. 
 The plaintiffs claimed the balance of the bill from Lady Lucy, and 
 sought to make her separate property liable. I was of opinion that 
 their claim could not be sustained against Lady Lucy, on the ground 
 that Mr. Martin Silber was the contracting party, to whom credit 
 fas Mr. Hollands, the proprietor, candidly admitted) had been given. 
 But the separate property of Lady Lucy in the shape of trunks, boxes, 
 and their contents had been detained by the plaintiffs as and for their 
 lien in respect of the unpaid balance, and the return of this separate 
 property was claimed by Lady Lucy in her counter-claim. This raises 
 the important question in this case. 
 
 The question is, were the plaintiffs entitled to retain these last-men-
 
 9G POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 tioned goods of Lady Lucy? They were unquestionably her separate 
 property, but were brought into the hotel and there received by the 
 plaintiffs at the time when Mr. Martin Silber with his wife became 
 the guests of the plaintiffs. The plaintiffs as innkeepers were bound 
 to receive tlie defendants and their goods, and were bound, so long 
 as the defendants remained guests at the hotel, to keep safely and se- 
 curely their goods; and the plaintiffs would have been liable in dam- 
 ages if these goods had been lost. How did the plaintiffs receive them? 
 They knew of no distinction between the goods of husband and wife, 
 and could not inquire into their respective titles to the goods. They 
 received them as the goods of Mr. Martin Silber and his wife, who 
 became their guests. Suppose Mr. Martin Silber had stolen the goods, 
 still if the plaintiff's received them with their guests the lien would have 
 attached. 
 
 By the common law of England every person who keeps a common 
 inn is under an obligation to receive and aft'ord proper entertainment 
 to every one who offers himself as a guest, if there be sufficient room 
 for him in the inn, and no good reason for refusing him. The inn- 
 keeper is under an obligation to keep the goods of a guest received 
 into the inn safely and securely, and can be sued and made liable in 
 damages if he fails in this respect. As a compensation for the burden 
 thus imposed upon him, the law has given him a lien upon the goods 
 of the guest until he discharges the expenses of his lodging and food. 
 If the guest has brought goods to the inn to which he has no title, this 
 will not deprive the innkeeper of his lien, because he is obliged to re- 
 ceive the guest without inquiries as to his title. It seems, therefore, 
 that the lien is commensurate with the obligation to receive the guests 
 and to keep safely and securely his goods. The right of lien of an 
 innkeeper depends upon the fact that the goods came into his posses- 
 sion, in his character of innkeeper, as belonging to a guest. Smith v. 
 Dearlove, 6 C. B. 132. The guests received in this case were Mr. 
 Martin Silber and his wife, and all the goods received by the innkeeper 
 were received as the goods of Mr. Martin Silber and his wife. They 
 brought the goods to the hotel. If Mr. Martin Silber had stolen the 
 goods, the lien, as I have said, would have attached. Can it be said 
 that it is not to attach because some of the goods happen to be the scn- 
 arate property of his wife, who was received as his wife with him as 
 a guest? Husband and wife arrive at an hotel with luggage; the inn- 
 keeper has no power of discriminating what mav be the property of 
 the husband and what may be the property of the wife ; he receives, and 
 is bound to receive husband and wife with their luggage; the inn- 
 keeper's charges are not paid, and I cannot see how it can be success- 
 fully contended that the lien does not attach. It would, in many cases, 
 be defeating the innkeeper's lien and the object for which it was gi\-en. 
 The plaintiffs therefore, fail as to their claim against the female de-
 
 Sec. 2) BAILOR AND BAILEE 97 
 
 fendant, but succeed as to her counter-claim, and there will be judg- 
 ment for the defendant on the claim, and for the plaintiffs on the 
 counter-claim.^* 
 
 (C) Loss of Lien 
 
 McFARLAND v. WHEELER. 
 
 (Court for the Correction of Errors, New York, 1841. 26 Wend. 467.) 
 
 Error from the Supreme Court. Wheeler and others brought an 
 action of replevin in the Washington Common Pleas, against McFar- 
 land, for taking a quantity of boards, which they, as the owners of a 
 saw-mill, had sawed for one Vaiighan. It was agreed they should 
 
 «4 Contra, Chiyton v. Butterfield, 10 Rich. (S. C.) 300 (1S57). 
 
 Husband and wife lodged with A., credit being given to the husband. 
 Held, A. has no lien upon wife's property under a statute extending innkeep- 
 ers' liens to lodging house keepers. Mcllvane v. Hilton, 7 Hun (N. T.) 594 
 (1876). See Baker v. Stratton, 52 N. J. Law, 277, 19 Atl. 661 (1890). 
 
 "The simple fact that Russell made an agreement as to the price to be 
 paid by him by the week, would not, upon any principle of law or reason, 
 take away his character as a traveler and a guest. A guest for a single 
 night might make a special contract, as to the price to be paid for his lodg- 
 ing, and whether it were more or less than the usual price, it would not af- 
 fect his character as a guest. The character of guest does not depend upon 
 the payment of any particular price, but upon other facts. If an inhabitant 
 of a place makes a special contract with an innkeeper there, for board at 
 his inn, be is a boarder, and not a traveler or a guest, in the sense of the 
 law. But Russell was a traveler, and put up at the defendant's inn as a 
 guest, was received by the defendants as a guest, and was, in the sense of 
 the law, and in every sense, a guest." Berkshire Woollen Co. v. Proctor, 7 
 Cush. (Mass.) 417, 424 (1851). 
 
 "The distinction between a guest and a boarder seems to be this: 'The 
 guest conies without any bargain for time, remains without one, and may go 
 when be pleases, paying only for the actual entertainment which he receives ; 
 and it is not enough to make him a boarder, and not a guest, that he has 
 staid a long time in the inn in this way.' 1 Par.sons, Contracts. 628; Story 
 on Bailments, § 477." Shoecraft v. Bailey, 25 Iowa, 553, 555 (1868). 
 
 "The question is whether it is the law that, if a person goes to an inn in 
 the character of a traveler, that person retains the same character for any 
 time however long. » * * The question whether a person has ceased to 
 be a traveler seems to me ■* * * to be a question of fact, and mere 
 length of residence is not decisive of the matter, because there may be cir- 
 cunistanoes which shew that the length of the stay does not prevent tlie 
 guest being a traveler, as, for instance, where it arises from illness ; but it is 
 wrong to say that length of time is not one of the circumstances to be taken 
 into account in determining whether the guest has retained his character of 
 traveler." T.aniond v. Richard, [1S97] 1 Q. B. D. 541, 546. 
 
 See, also. Thompson v. Lacy, 3 B. & Aid. 283 (1820) ; Lusk v. Belote, 22 
 Minn. 46S (187(1) : Hancock v. Rand, 94 N. Y. 1, 46 Am. Rep. 112 (1S83). 
 
 A traveler brings his horse to an inn and leaves it there. Held, he there- 
 by becomes a guest. York v. Clreeiuuigh, 2 Ld. Ray. 866 (1702) : Mason v. 
 Thompson, 9 Tick. (Mass.) 2S0, 20 Am. Dec. 471 (1S;10). Compare Smith v. 
 Dearlove, 6 C. B. 132 (1848) : Grinuell v. Cook, 3 Hill (N. Y.) 485, 38 Am. 
 Dec. 6G3 (1S42) ; McDaniels v. Robinson, 26 Vt. 316, '62 Am. Dec. 574 (1854). 
 Big.Pers.Prop. — 7
 
 98 rossEssoHY interests in chattels (Ch. 3 
 
 receive $2.25 per one hundred pieces, and have a Hen upon the same 
 until paid. It was further agreed tliat Vaughan might pile the 
 boards on the bank of the Champlain Canal, about half a mile from 
 the mill-yard — the plaintiffs' lien for sawing, however, to remain the 
 same as if the lumber was piled in the mill-yard — the expenses of the 
 removal to be borne by Vaughan, and the ground for piling to be pro- 
 cured by him. The plaintiffs sawed about fourteen thousand pieces. 
 Vaughan took away a boat load of the lumber from the canal bank, 
 with the assent of the plaintiffs, and afterwards took away two other 
 boat loads without their knowledge or assent. A deputy of the de- 
 fendant, who was Sheriff of the County of Washington, levied upon 
 the lumber remaining upon the bank of the canal, in quantity about 
 8,000 pieces, by virtue of an execution against Vaughan, and adver- 
 tised it for sale. * * * Jt was proved that there was no agreement 
 that the lien for sawing the lumber taken away should be transferred 
 to the boards which remained. * * * 
 
 Senator Verplanck."^ In this case the right of action depends 
 wholly upon the continuance of tlie lien on the replevied boards for 
 the price of sawing them ; and if that right had ceased at the time 
 of the levy, there is an end of all the other questions which have been 
 raised in this unusually protracted litigation. I think that the Su- 
 preme Court erred in holding that the special agreement, continuing' 
 the lien upon the boards after their delivery to the owner, gave the 
 plaintiffs below such a special property in them as to authorize an 
 action to be brought by them against the sheriff. * * * 
 
 The very definition of the word lien, as "the right to retain," indi- 
 cates that it must cease when the possession is relinquished. This prin- 
 ciple, so clearly founded in reason and so congruous to public utility 
 and the convenience of trade, is supported by the uniform testimony 
 of the decisions. * * * 
 
 Now, in this case, there was a voluntary relinquishment of posses- 
 sion by allowing the owner to take the sawed boards from the mill- 
 yard to a landing place on the canal, procured by himself, and which, 
 in the charge, is called his "landing ground." The boards appear to 
 have been so much under his control there, that he not only remov^ed 
 one boat load with tlie plaintiffs' consent, but two more without their 
 knowledge. It was, indeed, expressly stipulated, that the lien of 
 Wheeler & Co., for sawing, "should remain the same as if the lum- 
 ber were piled up in the mill-yard." This stipulation was considered 
 by the late Chief Justice as equivalent to a continuance of possession. 
 "Their rights were the same," he says, "as if they paid the rent of tlie 
 ground on which the boards were piled, or as if they were piled up 
 
 «5 The statement of facts is abridged, parts of the opinion of Verplanck. 
 Senator, and the opinions of Paige, Nicholas, Lee, Root, and Dickinson, Sen- 
 ators, and Bradish, President of the Senate, are omitted. 
 
 I
 
 Sec. 2) BAILOR AND BAILEE 99 
 
 in their mill-yard." I cannot give such an effect to this agreement as 
 against any third party. Special stipulation may enlarge the lien so 
 as to secure other legal demands besides those to which the law itself 
 gives that privilege ; but it is in contradiction to the principle and pol- 
 icy of the law to allow any such agreement to extend the right itself 
 beyond possession. It would be recognizing a right to retain after the 
 property had ceased to be retained. * * * jf the boards had been 
 placed under the control or upon the lands of some third person, for 
 the convenience of both parties, but under the authority of the owners 
 of the saw-mill claiming the lien, or if tlie place of deposit had been 
 some public wharf where the lumber was placed under the control 
 of those claimants and in tlieir name, there might be a continuance of 
 legal possession. But here the real possession is that of the owner of the 
 boards, which is inconsistent with their being retained for any charge 
 upon them. So plainly is any such possession by the owner inconsistent 
 with the continuance of the right of a lien or to a pledge, whether by 
 law or contract, that it has been held that even the right and exercise 
 of occasional control and possession by the owner must terminate any 
 
 I 1 f*T1 -T" •I* •)* 
 
 It has been suggested, that the lien thus extended beyond posses- 
 sion by express agreement, would operate as a mortgage. Not so. 
 It would only constitute it a pledge without possession. The legal 
 distinction between a pledge and a mortgage is often overlooked. It 
 is nowhere more precisely defined than in a per curiam opinion of 
 our own court, delivered by Chief Justice Kent : "The note came un- 
 der tlie strict definition of a pledge. It was delivered with a right to 
 retain as security for debt. But the legal property does not pass as 
 it does in case of a mortgage with condition of defeasance. It is, 
 therefore, to be distinguished from a mortgage of goods, for that is 
 a pledge to become an absolute interest, if not redeemed at a fixed 
 time. Delivery is essential to a pledge, but a mortgage of goods is, 
 in certain cases, valid without delivery." Cortelyou v. Lansing, 2 
 Caines' Cas. 202. We have here no condition of the property becom- 
 ing absolute if this demand for sawing is not paid at a given time. 
 There was simply an agreement that security of the lien should con- 
 tinue ; or, in other words, that the boards should be considered as a 
 specific security after the possession was parted with. The contract 
 is valid between the parties, and might, I presume be enforced in 
 equity, or perhaps at law, under certain circumstances. But it is a 
 contract the parties have no right to make, so as to control the rights 
 of other persons, and it would be in hostility to all the definitions, rea- 
 sonings and decisions on this head to regard tlie lien as still valid 
 against creditors or purchasers in good faith. 
 
 Every reason of policy that has ever induced courts to watch with 
 suspicion sales and mortgages unaccompanied by possession, and to 
 presume them fraudulent when secret and known only to the parties,
 
 100 POSSESSORY INTKRESTS IN CHATTELS (Ch. 3 
 
 applies with yet greater force to a secret continuance of lien after 
 tlie owner receives voluntary possession. It opens a wide door to fraud 
 and abuse. If this action can be maintained against a sheriff, who 
 levied upon the boards, others may also be obtained against those per- 
 sons who have bought the boards mentioned in evidence as having been 
 taken off%y the owner without the consent of the agent of the saw- 
 mill. Thus, the indulgence given to the owner, and the private agree- 
 ment between him and those who claim the lien, would work gross 
 hardship to fair purchasers, acting upon the apparent indication of 
 a perfect right of property held out by this stipulation. * * * 
 
 On the question being put. Shall this judgment be reversed? all the 
 members of the court present at the argument of the cause, except the 
 Chancellor and Senator Paige, voted in the affirmative; the Chan- 
 cellor and Senator Paige voted in the negative. 
 
 Whereupon the judgment of the Supreme Court was reversed." 
 
 RUGGLES V. WALKER. 
 
 (Supreme Court of Vermont, 1861. 34 Vt 4CS.) 
 
 [One Whipple had a lien on starch of the defendant. The plaintiff 
 advanced to Whipple the amount of his lien. Whipple delivered the 
 starch to the plaintiff who notified the defendant that he had purchased 
 Whipple's claim. The defendant took the starch from the plaintiff 
 without making payment. Plaintiff brought trespass and ti'over. Judg- 
 ment below was for the plaintiff and defendant excepted.] 
 
 Kellogg, J."' * * * jj_ f^g more important question is, 
 whether Whipple's lien was of such a character as would enable him 
 to transfer it with the property by assignment to the plaintiff. The 
 rule, as generally stated by text writers, is that the right of lien is 
 
 88 Ace.: Lembeck v. Jarvls Terminal Cold Storage Co., 68 N. J. Eq. 492, 
 59 Atl. 300 (1004), affirmed 09 N. J. Kq. 781, 63 Atl. 257, 7 Ann. Cas. !IG0 (1900). 
 
 The A. R. R. carried coal for B. ; at its destination it was shoveled into 
 bins by B. ; the bins were on A.'s land, but one had broken, and the coal ran 
 over on B.'s land. B. carted it from the bins as he sold it. Held, A. ha.s a 
 lien on the coal not carted away. Lane v. Old Colony & F. R. Co., 14 Gray 
 (Mass.) 143 (1860). Compare Reineman & Co. v. Covington, C. & B. R. Co., 51 
 Iowa, 338, 1 N. W. 619 (1879) ; Rowland v. Dolby, 100 Md. 272, 59 Atl. GOG, 
 3 Ann. Cas. 643 (1905). 
 
 A. had possession of B.'s horse under a lien for work done on the horse 
 for C, to whom B. had intrusted it. D. promised A. by parol to be resiwn- 
 sible for the claim against C, and A. agreed to surrender the horse to B. 
 A. later refused to do so. B. brought replevin. Held, D.'s promise, being 
 void under the statute of frauds, is no consideration for A.'s promise to give 
 up the horse, and B. cannot replevy. Panforth v. Pratt, 42 Me. 50 (1856). 
 See Benson v. Mole, 9 I'hila. (Pa.) G6 (1872). 
 
 8 7 I'art of the opinion is omitted. 
 
 I. jl
 
 Sec. 2) BAILOR AND BAILEE 101 
 
 a personal right which can not be parted with, and that a person who 
 has a lien can not sell his right to another, nor can be transfer the 
 property over which the lien extends, without losing his right, unless 
 the property has been pledged to secure the payment of money advanc- 
 ed with an express or implied power of sale. 2 Kent's Comm. 642 ; 
 Addison on Contracts, 1155. It is said by Duller, J., in Lickbarrow v. 
 Mason, 6 East, 27, in notis, that he who has a lien only on goods has 
 no right to sell or dispose of them, but only to retain them until the 
 original price be paid; and the same profound jurist says, in Daubigny 
 V. Duval, 5 D. & E. 604, that "a lien is a personal right, and can not 
 be transferred to another." * * * The distinction is this, that a 
 lien, when given by law, is merely a right to retain or keep possession 
 of property until payment; but a pledge of property by way of se- 
 curity for a debt is a lien with a power of sale superadded. In Lovett 
 V. Brown, 40 N. H. 511, it is held that a mechanic's or manufacturer's 
 lien is neither a jus ad rem, nor a jus in re, but a simple right of re- 
 tainer personal to the part)' in whom it exists, and not assignable or 
 attachable "* as personal property, or a chose in action, of the per- 
 son entitled to it. The lien in such cases is a mere passive lien or 
 right of retainer, and, although the retention of the property may be 
 attended with expense, and may be of no benefit to either party, these 
 considerations will not change the nature of the lien or the rights con- 
 ferred by it. It is of the same nature as the lien of an attorney or 
 solicitor on papers for his costs, which is a mere personal right, and 
 one that can not be actively enforced, as the papers can not be sold or 
 transferred, but can only he held as a security. Bozon v. Bolland, 4 M\l. 
 & Cr. 354 (18 Eng. Ch'.. S. C). Property held by a party in right of 
 a lien can not form the subject matter of a sale by, or be taken on 
 execution against, the lien holder. Legg v. Evans, 6 M. & W. 36; Hol- 
 ly v. Huggeford, ubi supra; Kittredge v. Sumner, 11 Pick. (Mass.) 50. 
 We regard it as well established by the authorities referred to that 
 Whipple's right of lien was, while the property remained in his pos- 
 session, a personal privilege which he could not sell or transfer ex- 
 cept with the consent of the defendant, who was the general owner of 
 the property ; that possession was essential not only to the creation, but 
 also to the continuance, of the lien ; and that when Whipple parted 
 with his dominion over the property, and suffered its locality to be 
 changed, so as to put it out of his power to surrender it on demand 
 to the general owner, on payment or tender of the price of manufac- 
 turing it, his right of lien was determined and forfeited. The transfer 
 by Whipple of his right of lien to the plaintiff was consequently in- 
 operative, and passed no right or interest in the property to the plain- 
 tiff. A different view of the law of the case having been taken by 
 
 «8Acc.: HoUy V. Huggeford, 8 Pick. (Mass.) 73, 19 Am. Dec. 303 (1S29), 
 *nte, p. 22.
 
 102 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 the county court in the instructions given to the jury, the judgment 
 of that court in favor of the plaintiff is reversed, and a new trial 
 granted."' 
 
 WESTERN TRANSP. CO. v. BARBER. 
 
 (Court of Appeals of New York, 1874. 56 N. T. 544.) 
 
 [For Statement of facts and portion of opinion, see ante, p. 43.] 
 Grover, J. The first inquiry is whether the plaintiff lost its lien 
 for freight upon the oats by failing to deliver them to Hoyt & Co. 
 pursuant to the bill of lading, and warehousing them with the defend- 
 ant in its own name. This will, I think, depend upon the question 
 whether Hoyt & Co., the consignees, were in default in not receiving 
 the oats in the time they were required so to do by the bill of lading 
 so as to confer upon the carrier the right to remove them from its boat 
 by placing them elsewhere. It is said that a lien can exist only while 
 the lienor retains the possession of the property subject thereto. This 
 is the undoubted rule applicable to the rights of the lienor and general 
 owner. If the former delivers possession of the property to the 
 latter he thereby waives his lien. McFarland v. Wheeler, 26 Wend. 
 467. But in this case the oats were not so delivered, but placed by the 
 plaintiff, in its own name, in the warehouse of the defendant; and the 
 question is, whether this discharged the Jien, assuming that by the 
 default of the consignees in receiving them the plaintiff had the right 
 to remove them from its boat by placing them elsewhere. * * * 
 I am unable to see any but the most technical reason for holding, that 
 under such circumstances the lien would be lost. These reasons are 
 that the carrier has parted with the actual possession, which is nec- 
 essary to uphold the lien; and, second, that it is, substantially, a de- 
 livery to the owner. As to the first, I concur with the observation of 
 Senator Verplanck, in his opinion in McFarland v. Wheeler, supra. He 
 says, "it is true that the possession thus essential to the lien need not 
 always be the direct and actual possession of the party; that of his 
 agent or servant, or the keeper of a warehouse acting under his au- 
 thority is also his own, for this and many other legal purposes." The 
 
 eoAcc.: Glascock v. I.emp, 26 Ind. App. 175. .59 X. E. .342 (1901). Contra: 
 Gardner v. I^e Fevre, ISO Mich. 219, 146 N. W. 653, Ann. Cas. 1916A, 618 
 (1914) : Nash v. Mosher, 19 Weud. (X. Y.) 431 (1838). 
 
 A. was B.'s servant in charge of his horse. A. paid C.'s charges for shoe- 
 ing the horse. Held, A. has a lien on the horse for these charges. Hoover 
 V. Epler, 52 Pa. 522 (1866). 
 
 A. shipi>ed goods to B. ; they were attached en route by C. on an execu- 
 tion against B., C. paying the carrier his freight charges. A. stopped the 
 goods in transit because of B.'s insolvency. Held, A. cannot replevy from C. 
 without paying the freight charges. Eucker v. Donovan, 13 Kan. 251, 19 Am. 
 Rep. 84 (1874), Compare Leag v. Evans, 6 JI. & W. 36 (1840) ; Keep Mfg. Co. 
 V. Moore, 11 Eea (79 Tenn.) 285 (1SS3).
 
 'Sec. 2) BAILOR AND BAILEE 103 
 
 senator evidently refers to a warehouse belonging to another than the 
 carrier, the keeper of which acts under the authority of the carrier 
 in respect to the particular goods deposited. As to these the keeper 
 acts under the authority of the carrier, and his possession may be re- 
 garded as that of the carrier, for the purpose of preserving the lien. 
 The delivery for the owner is subject to the condition of his paying the 
 freight; and he cannot, otherwise, obtain actual possession of the 
 goods. It is said in some of the cases, that a lienor has no right to sub- 
 ject the goods to any additional lien in favor of another; that by so 
 doing he would be liable for a conversion of the goods. This, in the 
 cases where the rule was applied, is correct, but not so as to a car- 
 rier who has been obliged to deposit the goods in a warehouse because 
 of a refusal of the owner to receive them. Then the creation of a 
 further lien for the warehouse charges is made necessary by the act 
 of the owner ; and it is immaterial to him whether the carrier creates 
 this additional lien in his own favor by depositing them in a ware- 
 house of his own, if he has one, or in behalf of another in whose ware- 
 house he makes the deposit. In the present case the plaintiff did 
 not deposit the oats for the owner, but in its own name, as its prop- 
 erty. Such a deposit, if made in consequence of the default of the 
 owner in receiving, would no more discharge the lien than if made 
 by the plaintifT in a warehouse of its own. The keeper, as in the case 
 of a deposit for the owner subject to the lien, had possession by au- 
 thority of the carrier ; and his possession is to be deemed that of 
 the carrier, for the purpose of preserving the lien.'" 
 
 The question, therefore, is whether the owner was so far in de- 
 fault in receiving the oats as to confer upon the plaintiff the right to 
 abandon further attempts to deliver to him, and obtain the immedi- 
 ate use of its boat by depositing them elsewhere. If he was, the de- 
 posit was rightful, and the lien preserved. If he was not, it was wrong- 
 ful and in violation of the rights of the owner, and a conversion of 
 the oats by the plaintiff, which, it is clear, destroyed the lien. * * * 
 
 [The court held that the delivery to the warehouseman was under 
 the circumstances of the case a violation of the rights of the con- 
 signee. The final question discussed by the court is given ante, p. 43.] 
 
 'OA. had a lien on B.'s trunk. He forwarded it to B. by a common car- 
 rier C. O. D. B. paid the freislit. but not the amount of the lien. Held, he 
 is not entitled to the trunk. Jaquith v. American Expre.ss Co., 60 N. H. 61 
 (ISSO). 
 
 A. had a lien on B.'s horse: he sued B. for the debt, had the .sheriff 
 attach the horse, and himself bid it in at the sale. C. had acquired title to 
 the horse as B.'s assignee in bankruptcy while A. was holding it under his 
 lien. Held, the attachment destroyed the lien, since the iwssession of the 
 horse was thereby put in the sheriff. Jacobs v. Latour, 5 Biug. 130 (1828). 
 Contra, on the ground that the officer has possession as the agent of the 
 lienor. I>ambert v. Mcklass, 45 W. \i\. .527, 31 S. E. 951, 44 L. R. A. 501. 72 
 Am. St. Hep. S2S (1S9S). Compare \Yingard v. Banning, 39 Cal. 543 (1870); 
 Palmer v. Tucker, 45 Me. 316 (1858).
 
 lOi POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 WELSH V. BARNES. 
 
 (Supreme Court of North Dakota, 1S95. 5 N. D. 277, 65 N. W. 675.) 
 
 Corliss, J.'* This case presents a contest between a stable keeper 
 claiming a lien on a mare for the feeding and care of her, and an 
 attaching creditor, whose attachment was levied on the mare while 
 she was temporarily in the p)ossession of the owner thereof. The 
 plaintiff, who was the stable keeper, brought replevin against the 
 defendant, who was the sheriff by whom the levy was made. The 
 defendant sought to justify under the writ. At the time he made the 
 levy there was owing the plaintiff, for feeding and caring for this 
 mare, something over $50. Plaintiff claimed a right to the possession 
 of the mare under the statutory lien given him by section 5486, Comp. 
 Laws, for the amount of this bill. The contention of defendant is 
 that, as to the creditors of the owner of the mare, the lien was lost 
 by allowing the owner to take the mare temporarily from the stable 
 to drive. It is undisputed that he had not taken her permanently 
 from the possession of the plaintiff, nor did any one so understand. 
 The mare was, when seized by defendant, simply in his possession 
 for a short time, to drive her about as is customary in such cases ; 
 and it was his purpose to return her to the stable of plaintiff, as he had 
 done before. The statute giving the lien provides as follows : "Any 
 farmer, ranchman or herder of cattle, tavern keeper, or livery stable 
 keeper, to whom any horses, mules, cattle, or sheep shall be entrust- 
 ed for the purpose of feeding, herding, pasturing or ranching, shall 
 have a lien upon said horses, mules, cattle or sheep, for the amount 
 that may be due for such herding, feeding, pasturing or ranching, and 
 shall be authorized to retain possession of such horses, mules, cattle or 
 sheep until the said amount is paid ; provided that these provisions 
 shall not be construed to apply to stolen stock." Comp. Laws, § 5486. 
 It is obvious that this statute must be construed in the light of the 
 usages of business, and the customs of people who place horses in 
 stables to be cared for by the proprietor of such stables. It is always 
 understood that the owner will, from time to time, take temporary 
 possession of the horse, returning it to the stable after his temporary 
 use of the animal has ceased. If the owner, with the consent of the 
 stable keeper, removes the horse permanently from his possession, the 
 lien is gone. Such was the case of Ferriss v. Schreiner, 43 Minn. 
 148, 44 N. W. 1083. If the circumstances of the case warrant the in- 
 ference that the owner in the case cited had come to take his horse 
 for good, then if the plaintiff had assented to this his lien would have 
 been gone. But the mare, in the case at bar, when she was taken out 
 
 Ti Part of the opinion is omitted.
 
 Sec. 2) BAILOR AND BAILKE 105 
 
 for a drive, was being boarded at plaintiff's stable by the month, and 
 it was not the intention of either party to terminate this arrangement 
 at the time she was attached. 
 
 Under the facts of the case at bar, it is obvious that the plaintiff's 
 lien was not lost or impaired at the time the defendant, as sheriff, 
 seized the mare under attachment against the owner. The authori- 
 ties are unanimous on this point. Walls v. Long, 2 Ind. App. 202, 
 28 N. E. 101 ; Caldwell v. Tutt, 10 Lea (Tenn.) 258, 43 Am. Rep. 
 307 ; State v. Shevlin, 23 Mo. App. 598 ; Young v. Kimball, 23 Pa. 
 193. There was not such a loss of possession as would defeat the 
 lien as to third persons. Caldwell v. Tutt, 10 Lea (Tenn.) 258, 43 Am. 
 Rep. 307 ; State v. Shevlin, 23 Mo. App. 598. Said the court in this 
 last case: "In the view we take of the meaning of the statute, the 
 lien thereby conferred is not dependent upon any actual, physical cus- 
 tody by the stable keeper at every moment of time. We think that the 
 lien conferred by the statute subsists, even as against third persons 
 without notice, while the horse is boarded in the stable of the lienor, 
 although it may, with his consent, be used during the day by the own- 
 er in his business. To hold otherwise would be to construe the statute 
 so as to deprive stable keepers of the protection which the legislature 
 probably intended to give them ; since, as is well known, in most cases 
 where horses are boarded the owner is allowed to use them in his 
 business during the day. This being so, the statute could not have 
 intended to allow the owner to destroy the lien of the stable keeper, 
 while having the possession of the horse on the street during the day, 
 by selling or mortgaging it to a stranger without notice of the lien. 
 On the contrary, we are of opinion that every person is bound so far 
 to take notice of the statute that, when he is about to become the 
 purchaser or mortgagee of a horse, found upon the street in the cus- 
 tody of its owner, it is incumbent upon him to make inquiry as to the 
 place where the horse is boarded, and whether anything is due for its 
 keeping. There is no greater hardship in this rule than there is in 
 the general rule in respect of purchases of personal property, — that 
 the purchaser gets no better title than the seller has." * * * We 
 have decided this case upon the theory that neither the sheriff nor the 
 attaching creditor knew of plaintiff's lien. We agree with the court 
 in State v. Shevlin, supra, that ignorance of the lien does not give the 
 creditor any right to insist that it does not exist as to him. * * * 
 
 The judgment is affirmed.'^ 
 
 '2 Ace, as to an innkeeper's lien, Allen v. Smith, 12 C. B. N. S. 638 (1862). 
 
 A livery stable keeper's lien has been held good on facts similar to the 
 main case as against: The owner, who had rented the horse to the one 
 against whom the lien was asserted, Walls v. Long, 2 Ind. App. 202, 28 X. E. 
 101 (1891) ; a mortgagee for a 'present loan, State v. SheTlln, 23 Mo. App. 
 598 (1S86) : an attaching creditor, Caldwell v. Tutt, 10 I>ea (78 Tenn.) 258, 43 
 Am. Uep. 307 (1S82). Contra, as against: A purchaser for value in good 
 faith, Fishell v. Morris, 57 Conn. 547, 18 Atl. 717, 6 L. R. A. 82 (18S9) ; Vinal
 
 lOG POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 SEEBAUM V. HANDY. 
 (Supreme Court of Ohio, 1SS9. 46 Ohio St. 560, 22 N. E. 869.) 
 
 [Plaintiff was a livery stable keeper in Cincinnati; the owner of 
 the horse in question lived out of the city ; he drove in at irregular 
 intervals and whenever he did so stabled the horse with the plaintiff; 
 sometimes leaving it there for periods varj-ing from two days to two 
 months. The plaintif? last had the horse in his possession on No- 
 vember 12, 1884. On November 15, 1884, the owner of the horse was 
 killed, the plaintiff's bill for fifteen months being unpaid. Subse- 
 cjuently the plaintiff replevied the horse from the next of kin under 
 a claim of lien. Judgment was for defendant and plaintiff excepted.] 
 
 MiNSHALL, C. J." Whether the instructions of the court to the 
 jury stated the law applicable to the case made by the tendency of 
 the proof, depends upon the nature and character of the lien given 
 by sections 3212 and 3213, Rev. Stats., to a person who furnishes 
 food and care for any "horse" by virtue of an agreement with the 
 owner, to secure the payment of tlie same. 
 
 These sections are as follows : 
 
 "Sec. 3212. A person who feeds or furnishes food and care for 
 any horse, mare, foal, filly, gelding, mule, or ass, by virtue of any con- 
 tract or agreement with the owner thereof, shall have a lien therefor, 
 to secure the payment of the same, upon such animal." * * * 
 
 The right to sell the animal upon notice and apply the proceeds to 
 satisfying the lien, does not affect its classification with similar com- 
 mon law liens; it only gives a plain and simple remedy for enforcing 
 the lien. 
 
 The evidence tended to show, and the charge of the court was ap- 
 plicable to, a case where the owner of a horse temporarily leaves it 
 with the owner of a feed-stable to be fed and cared for ; there is no 
 definite arrangement as to time ; it may be for less or more than a 
 day ; this depends upon the convenience of the owner who resides 
 out of the city ; when he wishes to return home, the horse is delivered 
 to him, and the feed and care is charged to him in an account by the 
 keeper. There is no express agreement at any time that the horse is 
 to be returned. Now how, under these circumstances, it can be in- 
 ferred as the court charged the jury, that there is an implied contract 
 on the part of the owner to return the horse, we are unable to see. The 
 owner is, for the time, simplya customer of this particular feed-stable. 
 The keeper may expect that when the owner again comes to the city 
 he will again patronize him by sending his horse to his stable. But 
 
 V. Spofford. 139 Mass. 126, 29 N. E. 2S8 (1SS5) ; an attaching creditor, Crab- 
 tree V. GrltTith, 22 V. C. Q. B. 573 (1863), contract lien. 
 
 Compare Papineau v. Wentworth, 136 Mass. 5-43 (18S4), 
 
 7 3 Part of the opinion is omitted.
 
 Sec. 2) BAILOR AND BAILEE 107 
 
 when this may be, he can neither rightfully demand to know, or expect 
 to be informed. How would the owner, as a matter of law, violate 
 any agreement for which damages could be recovered, if he should, 
 in the meantime, conclude to change his patronage and never return the 
 horse. If it were otherwise then it might be inferred that every cus- 
 tomer of a store is under an implied contract to continue to deal with 
 it. If he were in debt for goods previously sold, he might be under a 
 moral obligation not to withdraw his custom until he had discharged 
 what he owed, but there would be no legal obligation to that effect, 
 arising from the circumstances. 
 
 The lien provided by this statute does not arise upon contract. 
 True, the feed must be furnished under an agreement with the own- 
 er, but where this has been done the statute creates the lien in favor 
 of the party furnishing it, irrespective of any agreement therefor 
 to that effect. The lien given is a right to retain the property, that 
 is its possession, as a security for the debt, and if this right is not in- 
 sisted on when the horse is called for, the owner can not be said to 
 violate any agreement in not afterward returning it; for he has no 
 notice of an intention on the part of the keeper to assert a lien, when 
 the property is voluntarily delivered to him ; and, therefore, any sup- 
 posed agreement to return could only relate to a thing of which he 
 has no notice, and which in fact, has no existence. 
 
 Therefore, in a case like the one to which the court applied its charge, 
 the person furnishing the feed and bestowing the care must, if he 
 would assert a lien on the animal therefor, do so by retaining its pos- 
 session when called for by the owner, unless his charges are paid. If 
 he do not, and voluntarily deliver the animal to the owner, he must 
 lie held to have waived his right to assert a lien under the statute, 
 and to be satisfied with the personal liability of the owner for the 
 charges. Such is the rule in common law liens based on possession, 
 and we see no reason why the rule should not apply here as well as 
 there. It is more in harmony with the general policy of our statutes 
 "which always strive to secure public registration when possession 
 is not given and retained, and which expressly provide for such regis- 
 tration when they in terms create a lien not depending on possession." 
 Holmes, J., in Burton v. Frye, 139 ]\Iass. 131, 29 N. E. 476. See also 
 the following cases: Perkins v. Boardman, 14 Gray (Mass.) 481; 
 Papineau v. Wentworth, 136 Mass. 543; Forth v. Simpson, 66 Eng. 
 Com. Law, 680. * * * 
 
 Judgment affirmed.'* 
 
 '*Acc.: Hartley v. Hitchcock, 1 Starkio, N. P. 408 (1S16). 
 
 A. had a statutory warehouseman's general lieu upon B.'s goods. He per- 
 Diitteil B. to remove them. Subsequently B. nirain stored the goods with A. 
 Held, A. may hold for his former charges. Kaufmau v. Leonard, 139 Mich. 
 104, 102 N. W. 632 (1905). 
 
 Loss of possession 1 Urough force or fraud does not destroy the Hen. Wal- 
 lace V. Woodgate, E. & M. 193 (1824) ; Willard v. ■UTilnfield, 2 Kan. App. 53, 
 43 I'ac. 314 (1S96) ; Weber v. Whetstone, 53 Neb. 371, 73 N. W. 695 (1!>97).
 
 108 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 JONES V. PEARLE. 
 
 (Court of King's Bench, 1723. 1 Strange, 557.) 
 
 In trover for three horses, the defendant pleaded, that he kept a 
 public inn at Glastenbury, and that the plaintiff was a carrier and used 
 to set up his horses there, and £36. being due to him for the keeping 
 the horses, which was more than they were worth, he detained and 
 sold them, prout ei bene licuit: and on demurrer judgment was given 
 for the plaintiff, an innkeeper having no power to sell horses, except 
 within the city of London. 2 Roll. Abr. 85 ; 1 Vent. 71 ; Mo. 876; Yel. 
 67. And besides, when the horses had been once out, the power of 
 detaining them for what was due before did not subsist at their coming 
 in again.^' 
 
 BOARDMAN v. SILL. 
 
 (Nisi Prius, 1809. 1 Camp. 410, note.) 
 
 Trover for some brandy, which lay in the defendant's cellars, and 
 which when demanded he had refused to deliver up, saying it was his 
 own property. At this time certain warehouse rent was due to the de- 
 fendant on account of the brandy, of which no tender had been made 
 to him. The Attorney General contended that the defendant had a lien 
 on the brandy for the warehouse rent, and that till tliis was tendered 
 trover would not lie. But Lord EHenborough considered, that as 
 the brandy had been detained on a different ground, and as no demand 
 of warehouse rent had been made, the defendant must be taken to have 
 waived his lien, if he had one, which would admit of some doubt. The 
 plaintiff had a verdict.'' 
 
 SCARFE V. MORGAN. 
 (Court of Exchequer, 1838. 4 Mees. & W. 270.) 
 
 Trover for a mare. Pleas, first, not guilty ; secondly, that the mare 
 was not the property of tlie plaintiff. At the trial before Parke, B., at 
 the last Assizes for the county of Suffolk, it appeared that the mare in 
 question had been sent on more than one occasion to the premises of 
 the defendant, who was a farmer, to be covered by a stallion belonging 
 to him, and the charge of lis. for the last occasion not having been 
 paid, the defendant refused on demand to deliver up the mare, claim- 
 's Ace: Saltus v. Everett, 20 Wend. (N. T.) 267, 32 Am. Dec. 541 (1838). 
 T» See Lehmanu v. Schmidt, 87 Cal. 15, 25 Pac. 161 (ISDO). II 
 
 1 1
 
 Sec. 2) BAILOR AND BAILEE 109 
 
 ing a lien not only for the lis., but for a further sum amounting alto- 
 gether to £9. 7s. ^-Yod., for covering other mares belonging to the plain- 
 tiff, and including also a small sum for poor-rates; on which demand 
 and refusal, the plaintiff, without making any tender of the lis., 
 brought the present action. * * * The learned Judge, on these 
 facts being proved, directed the jury to find a verdict for the plaintiff 
 for £25., the value of the mare, giving liberty to the defendant to move 
 to enter a nonsuit. * * * 
 
 Parke, B.^' * * * The court are unanimous in considering 
 that if the defendant had a lien, he did not waive it under the circum- 
 stances of this case, by claiming to hold the mare not merely for the ex- 
 pense of covering her, but also for the expense of covering other mares 
 belonging to the same plaintiff, and also for some pajTnents made in 
 respect of f)oor-rates which he had against him. The only way in 
 which such a proposition could be established, would be to shew that 
 the defendant had agreed to waive the lien, or that he had agreed to 
 waive the necessity of a tender of the minor sum claimed to be due. 
 Looking at the mode in which he made the claim, and at the ground on 
 which he considered it to be made, I think it is clear he has not waived 
 the lien, or excused the necessity of making a tender ; for when the de- 
 mand was made, he said, "I have a general account with you, on which 
 a balance is due to me of so much." and part of it was, particularly, a 
 charge of lis. for covering this mare. * * * In this case it would 
 be strange to say that the defendant meant to waive his lien of the lis., 
 when that was one of the things he said he would hold the mare for. 
 and it would be equally strange to say that he meant to excuse the ten- 
 der of that sum, when no tender was made of any sum at all. I do not 
 mean to say that such circumstances may not occur as would amount to 
 the waiver of a lien, and of the tender, but that a great deal more must 
 have passed than was proved to have passed on the present occasion. 
 If he had said, "You need not trouble yourself to make a tender of the 
 sum for which I have a lien, and I shall claim to hold the mare for it," 
 the plaintiff would then be in the same situation as if a tender had been 
 made : but we think the defendant cannot be deprived of his right of 
 holding the propertv' on which he had a lien, by any thing that has 
 passed on the present occasion. * * * 
 
 Aldt-rson". B. * * * I entirely concur. It seems to me a mon- 
 strous proposition, to saj' that a party who claims in respect of two 
 sums to detain a mare, is to be supposed to have waived his right to 
 detain her as to one." The more natural conclusion is, that the de- 
 fendant intended to act upon both ; if so, and if the other party is in- 
 formed of that, it then became his dut\' to consider whether he would 
 tender one or the other. * * * j(- «eems to me you cannot say, that 
 
 '' The statement of facts is ahridged. and parts of the opinions of Parke 
 and Alderson. BB.. and the opinion of Bolhind, B., are omitted. 
 " ' See Dirks v. Richards, note 81, post, p. 110.
 
 110 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 because the party claims more than it may be ultimately found he had 
 a right to, he would not have a right to a tender of the sum which the 
 other ought to pay. 
 
 Rule absolute to enter nonsuit." 
 
 DIRKS V. RICHARDS. 
 (Court of Common Pleas, 1S42. 4 Man. & G. 574.) 
 
 Detinue, for a picture. Pleas : non detinet, and not possessed ; upon 
 botli of which issue was joined. 
 
 At the trial before Alderson, B., at the last assizes for the county of 
 Surrey, it appeared that the picture had been placed in the hands of a 
 person named Bye for sale. Bye deposited it with the defendant, an 
 auctioneer, at the same time telling him that his charge for warehouse 
 rent must be moderate. The plaintiff subsequently demanded the pic- 
 ture, whereupon the defendant made a claim of 5s. for warehouse- 
 room. The plaintiff having made a second demand in writing, accom- 
 panied with an offer to pay the defendant any lien he might have on 
 the picture for warehouse-room, the latter stated that he would not de- 
 liver it up until he was paid a debt of £8. due to him from Bye. No 
 tender was made of any specific sum for warehouse-room. * * * so 
 
 MaulE, J. Did not the claim of the £8. by the defendant amount 
 to this? "I do not recognise your right to the picture; I claim a lien 
 on it for £8. due to me from Bye, who deposited it with me." If the 
 defendant set up an inconsistent claim, it was clearly a waiver of his 
 claim for warehouse-rent.®^ 
 
 Rule discharged.*' 
 
 '» Compare Thatcher v. Harlan, 2 Houst. (Del.) 178 (1S59). 
 
 80 The statement of facts is abridged. 
 
 81 Without supposing the party to waive his right to detain in respect of 
 the specitic lien, the assumption of the right to withhold the possessiou of 
 the mare [in Scarfe v. Morgan] from the owner, until performance of a con- 
 dition which the person detaining had no right to impose, would appear to 
 be a tortious conversion on the part of such person, notwithstanding any 
 other title to detain remaining in him. 
 
 In Scarfe v. Morgan, though there may have been a waiver (i. e., a dis- 
 pensation with the necessity) of a tender, there could have been no intention 
 to waive or abandon the right to detain for the particular charge, there hav- 
 ing been an express demand of both suras. In the principal case no mention 
 appears to have been made of the 5s. when the £8. was demanded. It would, 
 however, be, perhaps, too much to infer from that omission, that the defend- 
 ant really meant to give up his claim for warehouse rent. — Rep. 
 
 82ACC.: Lambert v. Robinson. 1 Esp. 119 (1793); Adams v. Clark, 9 Cush. 
 (Mass.) 215, 57 Am. Dec. 41 (lS.o2). As to the construction to be put on lan- 
 guage used by the lien holder, see Kerford v. Mondel, 28 L. J. (N. S.) Exch. 
 303 (1859) ; Munson v. Porter, 63 Iowa, 453, 19 N. W. 290 (1884).
 
 Sec. 2) BAILOR AND BAILEE 111 
 
 FOLSOM V. BARRETT. 
 
 (Supreme Judicial Court of Massachusetts, 1902. 180 Mass. 439, 62 N. E. 723, 
 
 91 Am. St. Rep. 320.) 
 
 [Contract on an account annexed for boarding and training a horse 
 called Sun Pointer, the property of the defendant.] 
 
 Hammoxd, J.*^ On July 27, 1899, the plaintiff had a lien upon the 
 horse Sun Pointer, to secure him for the payment of the expenses of 
 its keeping up to that time. The amount due as claimed by the plain- 
 tiff was $300.96, and, although requested by the defendant, he refused 
 to deliver up the horse except upon the payment of that sum. The 
 auditor has found that the balance due at that time was only $129.17. 
 
 The defendant requested the judge to rule in substance, that (1) if 
 the defendant demanded the horse of the plaintiff and the plaintiff re- 
 fused to deliver him up except upon the payment of a certain sum 
 which was larger than the sum actually due, then as matter of law the 
 [plaintiff wrongfully held the horse; and (2) if the defendant requested 
 of the plaintiff' a statement of the amount due, so tliat the defendant 
 could pay what was due and take his horse, and if upon that the plain- 
 tiff stated that he would not give up the horse e.xcept upon the payment 
 of a certain sum then named by him which was materially in excess of 
 the amount actually due, then the defendant was not bound to tender 
 any sum to the plaintiff, and the latter wrongfully held the horse. 
 
 The judge refused to rule as requested, but ruled in substajice, that 
 if the plaintiff fraudulently claimed more than was due for the purpose 
 of keeping possession of the horse, he wrongfully kept the horse; but 
 that if he believed the sum due to him to be as stated by him at the 
 time he refused to deliver the horse, then the fact that that sum was ex- 
 cessive would not work a discharge of the lien. No instructions were 
 given as to the subject of tender. 
 
 Where a lienor bases his refusal to surrender property upon some 
 right independent of or inconsistent with the lien, it is held that he has 
 waived his lien and he cannot afterwards set it up. Boardman v. Sill, 
 1 Camp. 410, note; Dirks v. Richards, 4 Man. & Gr. 574. But that is 
 not this case. Here the plaintiff expressly named his lien and insisted 
 upon it, and there was no question as to its nature. It was for the 
 keeping of the horse a certain definite time. He based his right to 
 hold the horse upon that lien and upon nothing else. His demand, 
 however, was excessive. He was right as to the existence of the lien 
 upon which right alone he was insisting, but wrong as to the amount 
 due. If he fraudulently claimed more than was due he lost his lien, 
 but if his claim was made in good faith, it was still in the power of the 
 defendant to discharge the lien by a payment of the sum actually due. 
 
 83 Part of the opinion is omitted.
 
 112 POSSESSOKY INTKItESTS IN CHATTELS (.Ch. 3 
 
 If such a payment had been made at that time, the lien would have been 
 destroyed and consequently the subsequent detention of the horse by 
 tlie plaintiff would have been wrongful; and that would have been so 
 whether or not the plaintiff honestly believed his claim to be correct. 
 The lien was simply a right to hold the horse until a certain sum was 
 paid, and when that sum was paid the right was gone. The good faith 
 of the plaintiff could not increase that sum. The same result would 
 have followed if a tender of the sum due had been made and refused. 
 Co. Lit. 207 a; Coggs v. Bernard, Ld. Raym. 909, 917; Bac. Abr. Bail- 
 ment (B) ; Jarvis v. Rogers, 15 Mass. 389, 409; Schayer v. Common- 
 wealth Loan Co., 163 Mass. 322, 39 N. E. 1110, and cases cited. 
 
 No payment or tender, however, was made; and where, as in this 
 case, there is a lien which is insisted upon by the creditor and his only 
 error is in making an excessive demand which he honestly believes to 
 be correct, the fact that the demand is excessive does not ordinarily 
 relieve the debtor from the necessity of making a tender. If the debt- 
 or desires to avail himself of this honest mistake of the creditor, he 
 must make or tender payment of the sum actually due, and neither tlie 
 ability, readiness or simple offer to pay is a tender. There must be an 
 actual production of the money, unless such production be dispensed 
 with by the express declaration of the creditor that he will not accept 
 it or by some equivalent declaration or act. Thomas v. Evans, 10 East, 
 101 ; Breed v. Hurd, 6 Pick. 356. See Chit. Cont. (10th Am. Ed.) 890, 
 891, and cases cited. 
 
 We are of opinion, that there is no evidence in this case of any dec- 
 laration or conduct of the plaintiff which would excuse the defendant 
 from making an actual tender. It is true that the bill recites, that the 
 plaintiff refused to deliver up the horse except upon the payment of 
 the $300.96, but it does not appear that the defendant ever desired or 
 attempted to make, or indeed that he ever was ready to make, any 
 tender whatever, or that the plaintiff ever had any reason to suppose 
 that in any of the interviews with the defendant the latter was thinking 
 of a tender, or was prepared then and tliere to make it or to make any 
 exhibition of money. Under these circumstances, the simple statement 
 made by the plaintiff at the time the horse was demanded, that he 
 would not deliver him up except upon payment of the whole sum, is 
 not enough to warrant a finding, that he had dispensed with the right 
 to an exhibition of the money of the defendant, or in other words, that 
 he had waived the right to a formal and complete tender; and the judge 
 presiding at the trial was right in declining to instruct as to the law of 
 tender. 
 
 The case is clearly distinguishable from Hamilton v. McLaughlin, 
 145 Mass. 20, 12 N. E. 424, upon which the defendant relies. There 
 being no tender and no lawful excuse for not making one, there was no 
 error in instructing the jury that in this case the lien was not lost by 
 the excessive demand made by the plaintiff in good faith. Kerford v.
 
 Sec. 2) BAILOB AND BAILEE ' 113 
 
 Mondel, 5 H. & N. 931 ; Alderson B., in Jones v. Tarleton, 9 M. & W. 
 675; Jones, Liens, §§ 1025, 1026, and cases therein cited. See also 
 Fowler v. Parsons, 143 Mass. 401, 9 N. E. 799. 
 
 That being so, the further question remains whether the plaintiff can 
 hold the defendant personally liable for the expense incurred after the 
 demand. * * * f j^g horse was left by the defendant in the hands 
 of the plaintiff without the latter's fault, and the plaintiff was bound to 
 take reasonable measures for its preservation. For this expense he 
 may hold the horse or recover against the defendant. See Great 
 Northern Railway v. Swaffield, L. R. 9 Ex. 132. 
 
 Exceptions overruled. *■* 
 
 HANNA V. PHELPS. 
 (Supreme Court of Indiana, ISuo. 7 Ind. 21, 63 Am. Dec. 410.) 
 
 Davison, J.*' Assumpsit. The complaint is that Phelps, the plain- 
 tiff below, on the first day of December, 1849, delivered to Hanna 
 and Burr, who were then engaged in the business of rendering lard 
 from hogs' heads by steam, and barreling the lard so rendered for 
 hire, at the town of Wabash, three thousand hogs' heads, which they 
 agreed to render into lard, and barrel the same for the plaintiff, with- 
 in a reasonable time, etc., for which service he agreed to pay them 
 a reasonable compensation, etc. It is averred that the defendants 
 have failed to perform the agreement on their part, etc. 
 
 Pleas: 1. The general issue. 2. Performance. 3. That the plain- 
 tiff was indebted to the defendants 200 dollars, for rendering lard and 
 barreling the same, etc., which sum exceeds in amount their indebted- 
 ness to him, etc. 
 
 Issues being made on these pleas, the cause was tried by the Court, 
 who found for the plaintiff. New trial refused, and judgment. 
 
 The Court, upon the defendants' motion, gave a written statement 
 of the facts on which its finding was based, and of the conclusions 
 of law arising on the facts. That statement is as follows : 
 
 1. The plaintiff delivered to the defendants, as bailees, two thou- 
 sand one hundred hogs' heads, out of which lard \vas to be rendered 
 by them for him, which heads each produced four pounds of lard, 
 making eight thousand four hundred pounds. 
 
 8* The master of a vessel claimed a lien of £6.500. for freight and £1.000. 
 for general average, and refused to deliver the cargo for less than f7..50O. 
 The claim for freight was excessive, and on a settlement of accounts there 
 was nothing due from the cargo on general avera.ge. Tlie owner of the cargo 
 had intended to tender an amount less than that actually due for the freight, 
 but in fact tendered nothing. Held, the owner of the cargo is entitled to 
 damages for its detention. The Norway, .3 Moo. P. C. (N. S.) 24.5 (1865). 
 CJompare Loewenl)erg v. Rallwav Co., 56 Ark. 4.39, 19 S. W. 1051 (1S92) ; Sut- 
 ton V. Stephan, 101 Cal. 545, 36 Tac. 100 (1894). 
 
 86 Part of the opinion is omitted. 
 Biq.Pers.Prop. — 8
 
 114 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 2. The defendants delivered to the plaintiff, at Jackson's warehouse, 
 in the town of Wabash, in twenty-three barrels, five thousand one 
 hundred and sixty-two pounds of lard leaving unaccounted for and 
 undelivered, three thousand two hundred and thirty-eight pounds. 
 The lard was worth 5 cents per pound, making for the last named 
 quantity, in money 161 dollars and 90 cents. As a compensation for 
 rendering said lard, the defendants were entitled to 84 dollars, leav- 
 ing a balance due the plaintiff of 77 dollars and 90 cents. 
 
 3. The plaintiff, after the delivery of the twenty-three barrels, and 
 before the commencement of this suit, notified the defendants to de- 
 liver to him all the lard made from said heads ; but they declined to 
 deliver any more lard. He did not, at any time before this suit, either 
 pay or tender to them any sum for their services, nor was any demand 
 made by them for such services. When the twenty-three barrels were 
 delivered, the lard was subject to their claim for rendering the same, 
 amounting to 51 dollars and 63 cents, which amount was never paid 
 to them. The delivery at Jackson's ware-house was witli his consent.. 
 
 These were all the facts proved in the cause ; and upon them the 
 Court, as a conclusion of law, decided that no payment or tender for 
 services in rendering the lard, was necessary before suit. 
 
 Was this decision correct? Generally speaking, if a chattel deliv- 
 ered to a party receive from his labor and skill an increased value, he 
 has a specific lien upon it for his remuneration provided there is noth- 
 ing in the contract inconsistent with the existence of the lien. And 
 .such lien exists equally whether there be an agreement to pay a stipu- 
 lated price, for "the labor and skill," or an implied contract to pay a 
 reasonable price. The present is one of the cases in which liens usu- 
 ally exist in favor of the party who has bestowed services on property 
 delivered to him for the purpose. And unless the record discloses 
 facts or circumstances sufficient to produce the inference that the de- 
 fendants waived their lien before the institution of this suit, they were 
 not compelled to give up the property, when the plaintiff demanded 
 it, without the payment or tender of a reasonable compensation for 
 rendering and barreling the lard. If the defendants, at the time of 
 the demand, had refused, on the ground of their lien, to part with the 
 property, the law of this case would be clearly in their favor; but here 
 the plaintiff's demand was answered by an absolute refusal to de- 
 liver any more lard. We are therefore to inquire whether that re- 
 fusal waived the lien. 
 
 Upon this subject the authorities are not uniform. In England, the 
 rule seems to be, that a person having a lien upon goods, does not 
 waive it by the mere fact of his omitting to state that he claims them in 
 that right, when they are demanded. But if a different ground of re- 
 tention than that of the lien be assumed, the lien ceases to exist. White 
 V. Gainer, 9 Moore, 41 ; 2 Bing. 23 ; 1 Carr. & P. 324 ; 1 Camp. 410. 
 It is, however, contended that the refusal of the defendants, to have
 
 Sec. 2) BAILOR AND BAILEE 115 
 
 shielded them, should have been qualified by their claim of a lien. 
 There is authority in support of that position. Dows v. Morewood, 
 10 Barb. (N. Y.) 183, was replevin for twenty-one cans of oil. In that 
 case, it was held "that the defendant having, upon demand made, re- 
 fused to deliver tjie oil to the plaintiff, without setting up any lien 
 thereon, waived his right to set up a lien afterwards for freight, etc. ; 
 that he could not be allowed to deny the plaintiff's title, before suit 
 brought, and afterwards defeat a recovery by setting up a lien." 
 
 We are inclined to adopt this rule of decision. An unqualified re- 
 fusal, upon a demand duly made, is evidence of a conversion ; because 
 it involves a denial of any title whatever in the person who makes the 
 demand. In the case before us, the defendants "declined to deliver 
 any more lard." This was, in effect, an assumption that they had in 
 their possession no more belonging to the plaintiff. At least he had 
 a right to infer from their answer to his demand, that they would de- 
 liver to him no more lard, unless compelled to do so by action at law. 
 And having thus assumed a position relative to the property inconsist- 
 ent with his title, he had, further, the right to infer that a tender to 
 the defendants for their services would be unavailing. We are of 
 opinion that the facts proved are sufficient to sustain the judg- 
 ment. * * * 86 
 
 MEXAL V. DEARBORN. 
 
 (Supreme Judicial Court of Massachusetts, 1859. 12 Gray, 3.36.) 
 
 [Action of tort for taking a quantity of calf skins. The declaration 
 in one count alleged title in the plaintiff ; and in another a lien for 
 work done upon them by the plaintiff' as a currier. Answer, that the 
 goods belonged to William Jameson, and were taken possession of 
 under a warrant issued in proceedings in insolvency against Jameson, 
 directed to the defendant as messenger.] 
 
 At the trial in the superior court of Suffolk at September term, 
 1857, the plaintiff oft'ered evidence that the calf skins were left with 
 him by Jameson to be curried ; and that when the work was partially 
 done, Jameson sold them to him in payment of a debt due him, a part 
 
 86 See Williams v. Smith, 153 Pa. 462, 25 Atl. 1122 (1S93). 
 
 "By their absolute refusal to deliver, without any qualification, they waived 
 the riyht to set up any lien which they had not previously communicated to 
 the plaintiffs. They cannot be allowed to deny the plaintiff's title before suit 
 brought and afterwards defeat a recovery by setting up a concealed lien." 
 Dows V. Morewood, 10 Barb. (N. Y.) 183, 187 (1850). Aec: Thompson v. Rose, 
 16 Conn. 71, 41 Am. Dee. 121 (1844). See Fowler v. Parsons, 143 Mass. 401, 
 406, 407, 9 N. E. 790 (1887). 
 
 A. stopped goods in transit while in B.'s warehouse. B. said he had no 
 lien. A. then replevied tlie noods from B. Held, B. has waived his lieu. 
 Blackman v. Pieree, 23 Cal. 508 (1803).
 
 lie POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 of which was for the work done on these skins, and gave a bill of sale 
 thereof to the plaintiff, in whose possession they then were. 
 
 It appeared that proceedings in insolvency were duly commenced 
 against Jameson soon after this sale ; and a warrant issued to the de- 
 fendant as messenger, on which he took the skins. The defendant of- 
 fered evidence that the sale to the plaintiff was fraudulent and void 
 as against Jameson's creditors. 
 
 The plaintiff claimed to recover the whole value of the skins, on 
 the ground that the sale was not fraudulent ; and also to recover, on 
 the second count the amount of work performed on the skins, on the 
 ground that he had a subsisting lien on them therefor. 
 
 Abbott, J., ruled, "that if the plaintiff bought the skins of Jameson, 
 taking a bill of sale of them, together with the possession, and this 
 purchase was good as between the parties, then if the jury were satis- 
 fied that the sale was fraudulent as against the creditors of Jameson, 
 and that when the defendant took them the plaintiff claimed under 
 said bill of sale to him, and not on the ground of having a lien on 
 them, and had so continued in his claim till the commencement of 
 this action, never demanding the amount of his lien of the defendant, 
 or notifying him that he claimed any, but persisting in his claim un- 
 der the sale to him, the plaintiff would not be entitled to recover on 
 the second count the amount of his lien." The jury returned a ver- 
 dict for the defendant, and the plaintiff alleged exceptions. 
 
 Merrick, J. By purchasing the calf skins, which had been put into 
 his possession to be curried, and by taking a bill of sale thereof, and 
 afterwards, to the time of the commencement of this action, claiming 
 them solely under that title, without having given notice of any other 
 to the defendant when he took them away in discharge of his duty 
 as messenger under the proceedings in insolvency against the vendor, 
 the plaintiff lost or waived the lien which he had previously acquired. 
 A good and sufficient consideration was paid for the transfer of the 
 property, and as between the parties to the contract the sale was ab- 
 solute and complete. The ownership thus obtained was entirely in- 
 consistent with the existence of the previous lien. A lien is an in- 
 cumbrance upon property, a claim upon it which may be maintained 
 against the general owner. But there is no foundation upon which he 
 who owns the whole can create a special right in his own favor to a 
 part. The inferior or partial title to a chattel necessarily merges in 
 that which is absolute and unconditional, when both are united and 
 held by the same individual. This is a general consequence. But in 
 the present instance, it is obvious tliat the parties extinguished, and 
 intended to extinguish, the lien which had been previously created 
 upon the calf skins ; for the value of the work and labour which had 
 previously been bestowed upon them by the vendor was by their ex- 
 press agreement made part of the consideration of the sale. After 
 such a transaction the rights of the parties were wholly changed. The
 
 Sec. 2) BAILOR AND BAILEE 117 
 
 vendor could no longer assert any claim to the property, and the work- 
 man had none against his employer. His debt had been paid, the 
 property had become his own, and a lien upon it in his own favor 
 thereby rendered both needless and impossible. 
 
 But the result is the same if the facts upon which the ruling ex- 
 cepted to in the superior court was made are considered in another 
 aspect. The law will not allow a party to insist upon and enforce in 
 his own behalf a secret lien upon personal property after he has claim- 
 ed it unconditionally as his own, and has thereby induced anothei to 
 act in relation to it, in some manner affecting his own interest, as 
 he would, or might, not have done if he had been openly and fairly 
 notified of the additional ground of claim. It would be fraudulent in 
 him to practise such concealment to the injury of others ; and to pre- 
 vent the possibility of attempts so unjust becoming successful, the 
 law implies that an intended concealment of that kind is of itself a 
 waiver of the lien. The authorities cited by the counsel for the defend- 
 ant, not less than in its intrinsic reasonableness, fully warrant the rul- 
 ing to which the plaintiflf objected. 
 
 Exceptions overruled.'^ 
 
 COWELL V. SIMPSON. 
 (Court of Chancery, 1S09. 16 Ves. 275.) 
 
 [The defendant's testate was indebted to his attorneys before his 
 death. The defendant as executor gave them two notes, due in three 
 years, for the amount of the debts. The attorneys claimed to retain 
 under their attorney's lien certain papers belonging to the deceased. 
 The defendant filed a motion to have them delivered to him.] 
 
 The Loe?d Chaxcellor [Eldon].*^ * * * Where by the us- 
 age of trade a person has a lien on goods in his hands for work per- 
 formed upon them, and farther, for work upon other goods, not then 
 in his possession, having been delivered over, according to the usages 
 of different trades, it is settled by modem decisions, that by taking 
 a security the lien is gone, even with regard to tlie goods in his pos- 
 session; and cannot accompany that special security: which deter- 
 mines the implied contract. It is necessary to see, upon what princi- 
 
 8 7 Compare Avery v. Hackley, 20 Wall. 407, 22 L. Ed. 385 (1874). 
 
 A. had a factor's lien on B.'s sheep. C, a creditor of B., attached them. 
 A. brought replevin, alleging his lien ; he amended his complaint during the 
 trial by also alleging ownership ; the jury found in favor of the lien, but 
 against ownership ; the amendment was subsequently withdrawn. Held, A. 
 has not lost his lien. Rosenhaum v. Hayes, S N. D. 461, 79 N. W. 987 (1S99). 
 Compare Hudson v. Swan, S3 N. Y. 552 (1881). 
 
 *8 Part of the opinion is omitted.
 
 118 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 pie that stands. I rather think, it is not regulated by the usage of 
 trade. It has been accounted for in this way ; that the lien is gone 
 by the effect of the intention to substitute tlie special contract for the 
 implied one ; the necessities of mankind requiring, that the goods 
 should be delivered for consumption, it is not to be presumed, that the 
 lien was to be extended through the whole period ; which would create 
 much difficulty in the usual course of dealing between tradesmen and 
 tlieir customers. I have however heard that denied ; and it has been 
 put upon a rule of law, that the special contract removes the implied 
 one : but, if that is the ground, this case would desen'e much con- 
 sideration. The solicitor taking a security, which has three years to 
 run, as the client may have occasion for his papers, there is as much 
 reason, that the lien should not accompany the security through that 
 period as in the instance of a trade ; and the conclusion is equally 
 difficult, that the papers, if the client has occasion for them, could be 
 withheld. I am not at present satisfied that this lien exists. 
 
 July 26th. The Lord Chancellor [Eldon]. * * * The prac- 
 tice with regard to the lien of an attorney upon papers is not very 
 ancient. Lord Mansfield states that expressly ; and that he had argued 
 the question in the Court of Chancer)'; and Sir James Burrow men- 
 tioned the first decision, which established it in a Court of Law by 
 analogy to other cases of lien. Looking through the general doctrine 
 of lien, as applicable to all cases, except the purchase of an estate, with 
 reference to which it has in a series of decisions been extended, it may 
 be described as prima facie a right accompanying the implied contract. 
 In the case of a factor, who has a lien both for his expenditure upon 
 the goods in his possession and his general balance upon former trans- 
 actions, entering into a special contract for a particular mode of pay- 
 ment he loses the lien. In various trades the demand being for work 
 and labor, applied in some instances upon the particular goods, in 
 others upon other goods also, though the possession had been given 
 up, it is universally laid down, that if that takes place under a spe- 
 cial agreement, there is no such lien; and if it commenced under an 
 implied contract, and afterwards a special contract is made for pay- 
 ment, in the nature of the thing the one contract destroys the other. 
 The exigencies of mankind requiring the goods to be delivered for con- 
 sumption, the implication from an engagement for security of an en- 
 gagement to deliver tlie goods without payment is necessary: other- 
 wise from a promissory note, payable in three years, a contract must 
 be implied, that tlie goods are to be retained during that period ; de- 
 stroying the other special contract. So, in this instance, if the solicitor 
 says, he will not proceed in tlie business, and will not deliver up the 
 papers, the consequence is, that he destroys the express contract to 
 postpone payment for three years. Therefore, unless from the fact, 
 that he has taken this security, you can imply, that he is to keep the
 
 Sec. 2) BAILOK AND BAILEE 119 
 
 papers three years, though the vital interests of the owners may de- 
 pend on the possession of tliem, the implication is necessary, that he 
 is to deliver them up, and rely on the other contract. * * * °* 
 
 III. PledgB 
 GOSS V. EMERSON. 
 
 (Supreme Court of New Hampshire, 1S51. 23 N. H. [3 Foster] 3S.) 
 
 Trover, for four promissory notes, gfiven by one Hatch to the plain- 
 tiff, on tlie 8th of April, 1S46, for fifty dollars each, and payable to 
 him, or order, in one, two, three and four years. The writ was dated 
 September 29, 1848; and was served on the same day, but not till 
 after the transactions hereinafter set forth. 
 
 Plea, the general issue. 
 
 It appeared in evidence tliat on the 29th of March, 1848, the plain- 
 tiff gave to the defendant tlie following note, or accountable paper, to 
 wit: 
 
 "Hartford, March 29th, 1848. 
 
 "Received of D. B. Emerson, the sum of two hundred and three 
 dollars and seventy-eight cents, which I promise to pay to him or or- 
 der, in six months from date, with interest. When the above sum of 
 two hundred and three dollars and seventy-eight cents is paid, four 
 notes of fifty dollars each, signed by W. Hatch, running to L. Goss, 
 are to be given up to him. [Signed] Levi Goss." 
 
 And on the same day the defendant gave to the plaintiff the fol- 
 lowing paper: 
 
 "Hartford, March 29th, 1848. 
 
 "Received of Levi Goss, four notes of fifty dollars each, signed by 
 Wm. Hatch, which I agree to return to him when he pays a note of 
 two hundred and three dollars and seventy-eight cents, signed this day, 
 running to me. [Signed] D. B. Emerson." 
 
 89 Ace: Au Sable Kiver Boom Co. v. Sanborn, 36 Mich. 358 (1S77), even 
 though the lienor still had possession of the property at the dishonor of the 
 notes. 
 
 A shipowner took two notes in payment of freight. One matured before 
 the vessel reached her destination: the other, after. Before the maturity of 
 either the maker became bankrupt. Held, since the mere acceptance of a note 
 does not Operate as a payment, the lien is lost only as to the amount covered 
 by the second note. The Bird of Paradise, 5 Wall. 545, IS L. Ed. CC2 (1S6G). 
 Compare Stevenson v. Blakelock, 1 M. & S. 535 (1813). 
 
 As to the effec-t on the lien of the taking of a demand note, see In re Tav- 
 lor [1S91] 1 Ch. 590; Hutchins v. Olcutt, 4 Vt. 54'J, 24 Am. Dec. 634 (1832). 
 See, also, Angus v. McLachlan, 23 Ch. Div. 330 (ISSo) ; In re Douglas, Norman 
 & Co. [ISas] 1 Ch. 199.
 
 120 . POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 It was admitted that the note referred to in the last receipt was the 
 above paper signed by said Goss. It appeared that when the above 
 papers were signed by the parties, the four notes were put into the 
 hands of the defendant, that they were negotiable, and of the descrip- 
 tion set forth in the plaintiff's writ, and that the plaintiff did not in- 
 dorse them, when he passed them to the defendant. * * * 
 
 On the next day, or day after, the defendant passed the note or ac- 
 countable paper, signed by the plaintiff, to one Kingsbury, who paid 
 him the amount due on the same, and also at the same time delivered 
 to him the four notes, with the understanding between himself and 
 Kingsbury, that he should hold the notes as security for the $203.78, 
 in the same manner as Emerson had. Witliin three or four days there- 
 after, Kingsbury went to Hatch and arranged with him to take up 
 the four notes and give four others of the same amount and dates, 
 payable to Kingsbury or bearer. This was done, and Hatch then took 
 up the notes for which this suit was instituted, and canceled the same, 
 and gave four, payable to Kingsbury or bearer. These last notes 
 Kingsbury immediately passed to one Tenny and received the cash 
 therefor. The transactions of Kingsbury with Hatch and Tenny were 
 not known to Emerson till after they were completed. 
 
 The plaintiff did not know of the transfer of the notes to Kingsbury, 
 nor of anything which Emerson, Kingsbury, Tenny or Hatch did till 
 long afterwards, nor did he in any way, at any time, assent to what 
 was done. 
 
 On the 29th of September, 1848, the plaintiff obtained in gold and 
 silver, mostly gold, what was paid to him as $210, by the bank at 
 Lebanon. On that day he subsequently demanded of the defcmlant 
 the four notes, stating at tlie time that he had the money with him to 
 pay the note of $203.78 and interest, which was the fact. The note 
 of $203.78, then amounted to $209.90. Before they separated, the 
 plaintiff made to the defendant a tender of the money received from 
 the bank, which the defendant declined to receive. * * * 
 
 PerlEy, J.*" The note given by the plaintiff to the defendant, 
 
 March 29, 1848, was negotiable. It was an absolute undertaking to 
 
 pay $203.78, to the plaintiff or order, in six months with interest. 
 * * * 
 
 The four notes for which this suit was brought, were delivered to 
 [sic] the plaintiff, in pledge, to secure payment of the plaintiff's note. 
 By the written agreement of tlie defendant, the plaintiff' was to have 
 these notes back when he paid his note of $203.78, and interest, to 
 the defendant or his indorsee, according to the tenor of the note. The 
 plaintiff', by the obvious construction of the contract, was to make 
 payment to the holder of the note, before he could entitle himself to 
 a return of the securities, pledged for its payment. The defendant 
 
 »o The statement of facts Is abridged and part of the opinion is omitted.
 
 Sec. 2) BAILOR AND BAILEE 121 
 
 did not agree to restore the pledge, when the plaintiff should pay him 
 $203.78 and interest, but when he should pay the note ; and payment 
 of the money to the defendant, after the note was indorsed, would not 
 pay the note. The note could only be paid to the holder. The tender, 
 therefore, to be available should have been made to the holder ; but 
 the tender was made in this case to the defendant, after he had in- 
 dorsed and transferred the note, and when he had no right to the money 
 due on it. 
 
 It is, therefore, unnecessary to consider whether the tender stated 
 in this case would have been sufficient, if it had been made to the 
 proper party. * * * 
 
 The general property in the four notes pledged, remained in the 
 plaintiff; but the defendant took them in pawn for the payment of 
 his debt, and thus gave him an interest in them, which, whether his 
 debt were negotiable or not, he could lawfully transfer to a third per- 
 son. He might assign all his interest in the pledge ; or he might assign 
 it conditionally, to secure payment of his own debt; or he might de- 
 liver it to a bailee, without consideration, to hold as a deposit for him. 
 The transfer of the notes in any one of these ways would be a legal 
 disposition of them, authorized by the nature of the defendant's in- 
 terest as pawnee. * * * 
 
 \\'here the pledge has been merely bailed to a third person, and 
 the whole interest remains in the original pawnee, payment or tender 
 may be made to him, and after tender to the pawnee, the bailee on 
 demand will be liable in trover. Ratcliffe v. Davis, Yelverton, 178. 
 
 But where the interest is assigned with the thing pledged, tender 
 should be made to the assignee. Demainbry v. Metcalfe, 2 Vernon, 
 690. * * * 
 
 The legal nature of the defendant's interest in the four notes, gave 
 him the right to transfer tliem to Kingsbury with the negotiable debt, 
 which they were pledged to secure. Of course he cannot be charged 
 with a wrongful conversion, by assigning the notes to Kingsbury. 
 
 If the act of Kingsbury in delivering up the notes to the maker was 
 a conversion, it was not the act of tlie defendant. He had legally 
 parted with his possession and all his interest. Kingsbury was sub- 
 stituted in his place as the lawful holder of the securities, and the de- 
 fendant cannot be charged with the wrongful act of another, over 
 which he had no control. A mortgagee might as well be held liable 
 for the destruction of the mortgaged property, after he had parted 
 with all his interest by a valid assignment. * * * 
 
 The case shews no conversion of the notes by the defendant ; and 
 the verdict must be set aside, and judgment entered for the defend- 
 ant.'i 
 
 «iAcc.: Bank of Forsyth v. Davis, 113 Ga. 341, 38 S. E. 836, 84 Am. St. 
 Rep. 24S (1901) : Waddle v. Owen, 43 Neb. 4S9, 61 N. TV. 731 (1895). See Mores 
 V. Conham, Owen 123 (1609).
 
 122 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 HOPPER V. SMITH. 
 (Supreme Court of New York, 1SS2. 63 How. Prac. 34.) 
 
 [March 10, 1874, the plaintiff dehvered a receiver's certificato to the 
 defendant as collateral for a debt due the defendant, apparently on de- 
 mand. The defendant sold the certificate in 1878. In 1879 the plain- 
 tiff tendered the amount of the debt, demanded the certilicate and on 
 the defendant's refusal brought trover. Judgment was rendered for 
 the plaintiff for the value of the certificate at the time of the refusal, 
 less the debt.] 
 
 Ru.MSEY, J.°- * * * Outside of authority, the rule that a sale 
 by the pledgee is not ipso facto, a conversion seems to be good sense. 
 The rights of the parties are based upon the contract. The sale by the 
 pledgee is wrongfid. If that sale in and of itself determines the con- 
 tract without more, then the pledgee, by his wrongful act, may rescind 
 his contract in spite of the wish of the other party to it. I am not 
 aware of any other case in which this can be done, and I can conceive 
 of no reason for permitting it in this case. It may be for the interest of 
 the pledgor to keep his contract alive, and, if it is so, I cannot see why 
 he may not do it. The maxim that no one shall take any advantage by 
 his own wrongful act, may fairly apply to this case, and we may hold 
 that, although the unlawful sale does not per se operate as a conversion, 
 yet the pledgor may, at his option so consider it, and that he may re- 
 gard the contract as at an end, tender or offer to pay his debt and de- 
 mand his pledge, or may sue for damages for the sale. I think the 
 cases sustain that rule, and that it reconciles the cases which otherwise 
 appear to conflict, but do not in fact. Strong v. Nat. Mich. Bkg. Ass'n, 
 45 N. Y. 718 ; Bryan v. Baldwin, 52 N. Y. 232. I do not think that the 
 plaintiff was called upon to notify defendant of his disaffirmance of the 
 sale at the time defendant told him of it at the depot. There is no 
 pretense of any estoppel. Nothing has occurred to give defendant 
 reason to believe that the contract was waived, and he took no action 
 afterwards on the strength of plaintiff's silence. As long as the con- 
 tract was in force both parties were bound by it. The plaintiff might 
 rely upon it, and the defendant must keep ready to perform it. Nei- 
 ther party by his own act simply could free himself from its obliga- 
 tions. The sale then by Ihe defendant in March, 1878, was not of itself 
 a conversion, and did not, against the will of the plaintiff, create a cause 
 of action in his favor against the defendant for the conversion of the 
 certificate, so as to require the plaintiff's damages to be the value of 
 the certificate at that time with interest. On the contrary, the cause of 
 action did not accrue until the demand and refusal, and the measure of 
 damages is the value at that time. * * * os 
 
 »2 Part of the opinion is omitted. 
 
 "3 A. pledged certificates of stoclc to B., who fraudulently and collusively 
 sold them to C, who held for B. A. brought trover against B. and C. Held
 
 Sec. 2) BAILOR AND BAILEE 123 
 
 BALTIMORE MARINE INS. CO. v. DALRYAIPLE. 
 
 (Court of Appeals of Maryland, 1SG6. 25 Md. 269.) 
 
 [Dalrj'inple deposited with the insurance company 770 shares of the 
 stock of the Baltimore & Ohio Railroad and other securities as col- 
 lateral to secure a loan payable on demand. The loan not being paid 
 on demand the insurance company on November 21, 1860, sold the 
 stock at private sale. December 17, 1862, Dalrymple tendered the in- 
 surance company the amount of the loan with interest and demanded 
 a return of the stock which was refused. He then brought action for 
 the conversion thereof and by stipulation it was agreed that he might 
 recover as on any count in tort that the facts would justify. Judgment 
 below was for the plaintiff. Both parties excepted.] 
 
 Bartol, ]."* * * * We * * * shall proceed to consider 
 the other questions presented, assuming that there was no evidence of 
 such acquiescence on the part of the plaintiff as to defeat this ac- 
 tion. * * * 
 
 The questions presented for our decision are: 1st. As to the plain- 
 tiff's right to recover. 2d. As to the measure of damages. 3d. As to 
 the right of the defendant to recoup from the damages the amount of 
 the loans. 
 
 We have virtually determined the first question in the case of Mary- 
 land Fire Insurance Company v. Dalrj'mple [25 Md. 242, 89 Am. Dec. 
 779] . As we have already said the attempted sale and purchase by the 
 defendant at the board was inoperative ; the possession of the stock re- 
 maining unchanged, the bailment continued thereafter as before. But 
 notice having been given ur '?r the contract, and the plaintiff being in 
 default, the power to sell continued, and if it had been legally exercis- 
 ed no action of tort could be maintained. But according to the rule 
 laid down in the former case, the defendant had not the legal right to 
 dispose of the stock at private sale. The sale so made to Denison on 
 the 21st of November, 1860, was therefore contrarj' to the dut}'- of the 
 defendant as pledgee and in law tortious, for which the plaintiff is en- 
 titled to maintain his action either in trover or case. 
 
 The next question is, what is the measure of damages? The plain- 
 tiff in his sixth prayer asked for an instruction to the jury that they 
 might in their discretion, assess the value of the stocks at their highest 
 market value on the day of trial, or on any other day before that time, 
 and after the day of the demand and refusal. 
 
 The Court rejected that prayer, and instructed the jury that "in es- 
 timating the damages they were bound to give to the plaintiff what they 
 
 A. falls because he made no tender. Schaaf, Adm'r, t. Fries et al., 90 Mo. 
 App. Ill (1901). 
 
 »* Part of the opinion is omitted.
 
 124 POSSESSORY II^TERESTS IN CHATTELS (Cll. 3 
 
 might find from the evidence to have been the marl<:et value of the 
 seven hundred and seventy shares of stock on the 17th of December, 
 18G2, with interest thereon, deducting tlierefrom the sum loaned and 
 interest." 
 
 After a mature consideration of this question and a careful examina- 
 tion of all the authorities cited in argument, we are of opinion that this 
 instruction was erroneous, and we consitler the proposition contained 
 in the plaintiff's sixth prayer as still more untenable. The tort com- 
 plained of here, and which is the ground of this action, was committed 
 on the 21st of November, 1860, by the sale and transfer of the stock 
 to Denison. The plaintiff, well knowing the fact, lay by until Decem- 
 ber, 1862, when he made the tender and demand, long after the stock 
 had been parted with, and when it was no longer in the defendant's 
 lX)\ver to return it, and then assuming to treat the refusal to comply 
 with the demand as the tortious act, attempts to make it the ground of 
 his action. This is not only contrary to reason, but in direct opposition 
 to the well settled principles of the law. 
 
 The sole object and design of tlie law in awarding damages to a 
 plaintiff, is to compensate him for the injury he has actually suffered, 
 from the wrongful act of the defendant. We leave out of view that 
 class of cases in which, by reason of the bad faith or moral turpitude 
 of the act complained of, exemplary or punitive damages by way of 
 smart money, are allowed. This is not a case of that kind. The tor- 
 tious act of the defendant was in the breach of legal duty arising out of 
 the contract, and the damages ought to be compensatory mere- 
 
 On what ground can the plaintiff' claim compensation on the basis 
 of the value of the stock in December, 1862 ? There was no tort com- 
 mitted at that time by the defendant, nor did the tender, demand and 
 refusal operate to give him a cause of action. They were merely nu- 
 gatory. It is settled that if there has been a wrongful sale of the 
 pledge, no tender of the debt due need be made before bringing an ac- 
 tion therefor. Story on Bailments, § 349; Stearns v. Marsh, 4 Denio 
 (N. Y.) 227, 47 Am. Dec. 248 ; Fenn v. Eittleson, 8 Eng. L. & E. Rep. 
 483 ; Edwards and Others, Assignees, v. Hooper and Another, 11 Mees. 
 & Wels. 362. In the case last cited the plaintiff's assignees in bank- 
 ruptcy relied on a demand and refusal as the ground of their action, 
 the conversion having taken place before the fiat in bankruptcy, it was 
 held tlie suit could not be maintained. Parke, Baron, said: "If the 
 goods were in possession of the defendants, a demand and refusal 
 would be evidence of a conversion. But it is not so in a case where 
 the goods have been previously parted with by sale. There cannot be 
 an effectual demand and refusal unless the party has at the time pos- 
 session of the goods and has the means of delivering them up." * * * 
 
 It follows from these authorities that the demand and refusal in this
 
 Sec. 2) BAILOR AND BAILEE 125 
 
 case could have no effect either in giving to the plaintiff a right of ac- 
 tion, or to fix the measure of damages.*^ 
 
 Treating this case as an action of trover, we consider the rule well 
 established, that the proper measure of damages is the actual value of 
 the stock at the time of the conversion, ^° deducting of course the 
 amount of the debt due the defendant by way of recoupment, of which 
 we shall speak presently. * * * 
 
 We consider it perfectly clear, that the view taken by the court be- 
 low on the question of recoupment was correct; and that in ascertain- 
 ing the damages, the amount of the debt due the defendant, to secure 
 which, the stock and other collaterals were pledged, ought to be deduct- 
 ed."' The law is so expressly stated by Story in his work on Bail- 
 ments, §§ 315, 349. It is supported by the authorities cited by him, and 
 is consistent with the general doctrine of recoupment, established in 
 modern cases, and recognized by this Court in Abbott v. Gatch, 13 Md. 
 314, 71 Am. Dec. 635. See, also, Stewart v. Rogers, 19 Md. 117, 118. 
 
 5 A. executed his note to B. and pledged shares of stock as collateral. B. 
 wrongfully repledged the stock to C., who in turn sold it. B. was subse- 
 quently adjudged a bankrupt. Thereafter, on the maturity of the note, A. 
 tendered B. the amount due and demanded a return of the collateral. Held. 
 A.'s claim arose prior to the bankruptcy proceedings, although not then 
 liquidated, aud is consequently barred bv the discharge in bankruptcy. Wood 
 V. Fisk, 215 X. Y. 23.3. 109 N. E. 177 (1915). See Walley v. Deseret Xat. 
 Bank, 14 Utah, 305, 47 Pac. 147 (1896). 
 
 90 "To allow merely the value [of stocks] at the time of conversion would. 
 In most cases, afford a very inadequate remedy, and, in the case of a broker, 
 holding the stocks of his principal, it would afford no remedy at all. The ef- 
 fect would be to give to the broker the control of the stock, subject only to 
 nominal damages. The real injury sustained by the principal consists, not 
 merely in the assumption of control over the stock, but in the sale of it at 
 an unfavorable time and for an unfavorable price. Other goods wrongfully 
 converted are generally supposed to have a fixed market value, at which they 
 can be replaced at any time ; and hence, with regard to them, the ordinary 
 measure of damages is their value at the time of conversion, or, in case of 
 sale and purchase, at the time fixed for their delivery. But the application 
 of this rule to stocks would, as before said, be very inadequate aud unjust. 
 * * * The English cases usually referred to are Cud v. Kutter. 1 P. Wms. 
 572 (4th Ed., London, 1777) note (3) ; Owen v. Routh, 14 C. B. 327 ; Loder v. 
 Kekule, 3 C. B. (N. S.) 128 ; France v. Gaudet, L. R. 6 Q. B. 199. It is laid 
 down iu these cases that, where there has been a loan of stock and a breach 
 of the agreement to replace it, the measure of damages will be the value of 
 the stock at its highest price on or before the day of the trial. * * » 
 The hardship which arose from estimating the damages by the highest price 
 up to the time of trial, which might be years after the transaction occurred, 
 was often so great that the Court of Appeals of New York was constrained to 
 introduce a material modification in the form of the rule, and to hold the 
 true and just measure of damages in these cases to be the highest inter- 
 mediate value of the stock between the time of its conversion and a reason- 
 able time after the owner has received notice of it to enable him to replace 
 the stock. » « * On the whole it seems to us that the new York rule, as 
 finally settled by the Court of Appeals, has the most reasons in its favor, and 
 we adopt it as a correct view of the law." Galigher v. Jones, 129 U. S. 193, 
 9 Sup. Ct. 335, 32 L. Ed. 658 (1S89). 
 
 9' Ace: Rosenzweig v. Frazer, 82 Ind. 342 (1882) ; Neller v. Kelley, 69 Pa. 
 403 (1871).
 
 126 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 In such a case as this, the appHcation of this doctrine does not rest 
 upon the principle of lien, and the cases of that description cited in 
 argument by the plaintiff's counsel are, in our opinion, inapplica- 
 ble. * * * 
 
 [Judgment reversed with leave to the plaintiff to take out a proce- 
 dendo.] 
 
 HALLIDAY v. HOLGATE. 
 
 (Court of Exchequer Chamber, 1868. L. R. 3 Exch. 290.) 
 
 Appeal from tlie judgment of the Court of Exchequer, discharging 
 a rule to enter a verdict for the plaintiff in an action of trover brought 
 by the creditors' assignee of one Bentley against the defendant to re- 
 cover the value of certain shares, the defendant pleading, amongst oth- 
 er pleas, not possessed. 
 
 On the 30th of April, 1866, Bendey bought of one Scholefield fifteen 
 shares in the Whitewell Mining Company, Limited, which, by the ar- 
 ticles of association of the company, were not transferable till the 2d 
 of January, 1867, and Scholefield at the same time, by a memorandum 
 in writing, agreed to execute a transfer of the shares to Bentley as 
 soon as he legally could. Bentley at the same time bought ten other 
 shares in the same company, and took a similar memorandum. 
 
 In June, 1866, Bentley borrowed of the defendant £350. on his own 
 promissory note payable on demand, and on the security of the twenty- 
 five shares above mentioned, and he at the same time handed to the 
 defendant the two agreements, promising to deliver to him the scrip 
 as soon as he received it. On the 16th of January, 1867, Bentley hand- 
 ed to the defendant the fifteen scrip certificates for the first fifteen 
 shares, and received back the agreement relating to the ten shares, on 
 paying £100. on account of the debt. 
 
 On the same day Bentley's firm stopped payment ; they were after- 
 wards adjudicated bankrupts, and the plaintiff was appointed creditors' 
 assignee, Bentley absconding before passing his final examination. The 
 defendant, after the bankruptcy, sold the scrip of ten of the fifteen 
 shares, but it did not appear that he had made any demand on, or given 
 notice to, either Bentley or the plaintiff, the assignee. The value of the 
 scrip for the ten shares was admitted to be i200. * * * 
 
 WiLLES, J.®* * * * fhg assignee seeks to recover either the 
 whole value or nominal damages in respect of the wrong done by the 
 sale. As to the claim for the whole value, it is certainly a strong con- 
 tention. The scrip certificates were in the hands of the defendant as a 
 security for money due, and the assignee has sustained no actual dam- 
 age, for the debt could have been paid no otherwise, yet the assignee 
 seeks to recover the whole value as if at the time the certificates wert 
 
 •8 Ttie statement of facts Is abridged and part of the orinion is omitted.
 
 Sec. 2) BAILOR AND BAILEE 127 
 
 his own. It does not require much argument to shew that there is no 
 principle for such a rule, and we should not be disposed to act upon it 
 unless we are compelled by some authority to do so. But the authori- 
 ties invite us to do the reverse, for Johnson v. Stear, 15 C. B. (N. S.) 
 330, shews that if any action lies at all in such a case, the verdict can 
 only be for nominal damages, and that an allowance must be made for 
 the amount of the debt which has been thus satisfied, that being the 
 amount which the pledgor or his assignee would have had to pay be- 
 fore he could have required the article to be delivered up. We are 
 quite satisfied to abide by that decision. 
 
 But it has been argued that the plaintiff is at any rate entitled to 
 nominal damages, for that a conversation was committed by the sale 
 of the certificates. That sale, it is contended, had the effect of putting 
 an end to the bailment of pledge ; the property of the pledgee was 
 thereby determined, so as to enable the assignee to say that at the mo- 
 ment when the sale took place he became entitled to the certificates by 
 virtue of the general property which then revested in him. This 
 reasoning proceeds upon a somewhat subtle and narrow ground, for it 
 is admitted that the assignee could only claim nominal damages. But 
 we cannot arrive at the conclusion that he is so entitled without getting 
 rid of the case of Donald v. Suckling, L. R. 1 Q. B. 585 ; and so far 
 from feeling disposed to overrule that case, we are satisfied of its good 
 sense, and think that it puts the whole matter on a plain and intelligible 
 footing. There are three kinds of security : the first, a simple lien ; 
 the second, a mortgage, passing the property out and out ; the third, a 
 security intermediate between a lien and a mortgage — viz., a pledge — 
 where by contract a deposit of goods is made a security for a debt, 
 and the right to the property vests in the pledgee so far as is necessary 
 to secure the debt. It is true the pledgor has such a property in the 
 article pledged as he can convey to a third person, but he has no right 
 to the goods without paying off the debt, and until the debt is paid off 
 the pledgee has the whole present interest. If he deals with it in a 
 manner other than is allowed by law for the payment of his debt, then, 
 in so far as by disposing of the reversionary interest of the pledgor he 
 causes to the pledgor any difficulty in obtaining possession of the pledge 
 on payment of the sum du,e, and thereby does him any real damage, he 
 commits a legal wrong against the pledgor. But it is a contradiction 
 in fact, and would be to call a thing that which it is not, to say that 
 the pledgee consents by his act to revest in the pledgor the immediate 
 interest or right in the pledge, which by the bargain is out of the pledg- 
 or and in the pledgee. Therefore, for any such wrong an action of 
 trover or of detinue, each of which assumes an immediate right to 
 possession in the plaintiff, is not maintainable, for that right clearly 
 is not in the plaintiff. The judgment must, therefore, be affirmed. °° 
 
 09 Ace: Whipple v. Dutton, 175 Mass. 365, 56 N. E. 581, 78 Am. St. Rep 
 501 (1900).
 
 128 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 MINOR V. BEVERIDGE. 
 
 (Court of Appeals of New York, 1894. 141 N. Y. 399, 36 N. B. 404, 38 Am. 
 
 St. Rep. 804.) 
 
 BartletT, J. The plaintiff, as assignee for the benefit of creditors 
 of P. W. Gallaudet & Co., stock brokers, sued the defendant to re- 
 cover a balance alleged to be due from her on a speculative account 
 which she had with Gallaudet & Co. at the time of their failure, No- 
 vember 10, 1890. The cause was brought on for trial at a circuit 
 court in the city of New York, and at the close of plaintiff's case the 
 complaint was dismissed, and the exceptions ordered to be heard, in 
 the first instance, at the general term. The general term overruled 
 the exceptions, and ordered judgment for defendant, dismissing com- 
 plaint, with costs. The plaintiff appeals from that judgment. 
 
 The question presented is whether the trial judge was justified in 
 taking the case from the jury. The defendant's contention is that P. 
 W. Gallaudet & Co. sold the stocks held in her account without no- 
 tice, and for that reason their assignee cannot recover. The plain- 
 tiff insists that demand and notice were duly given to defendant 
 through her son, as her agent, before sale of the stocks, and that she 
 is bound thereby and, even if there was a sale without notice, the de- 
 fendant can only be allowed her actual damages in reduction of plain- 
 tiff's claim. The evidence shows that Alven Beveridge, the son of 
 the defendant, was the son-in-law of P. W. Gallaudet, and from the 
 year 1881 to November 10, 1890, the day when the firm of P. W. 
 Gallaudet & Co. failed, was a clerk of said firm ; that on the 30th of 
 May, 1881, the defendant, represented by her son, opened a specula- 
 tive account with the firm, which, with additions and charges made 
 therein, remained open until the day of the failure. Our examination 
 of the record satisfies us there is a conflict of evidence as to whether 
 or not Alven Beveridge was the agent and representative of his mother, 
 and accustomed, for the nine years and more covered by her account, 
 to receive the statements, demands, and notices to which she was en- 
 titled, including the demand and notice in this action. We are of opin- 
 ion that the trial judge erred in not submitting to the jury, as re- 
 quested, the question of notice, and whether it was reasonable and le- 
 gal under the circumstances. 
 
 The plaintiff's counsel insists that he was entitled to submit still an- 
 other question to tlie jury. There was evidence in the case tending to 
 show that the stocks sold for defendant's account on the 10th day of 
 November, 1890, could have been repurchased in the open market, 
 within the next 15 days, below the prices realized upon the sale. The 
 plaintiff's counsel asked to go to the jury as to whether the defend- 
 ant sustained loss by reason of said sale, and as to whether the de- 
 fendant could not have replaced the stocks at the same price, or less
 
 Sec. 2) BAILOR AND BAILEE 129 
 
 price, than that for which they were sold, and within a reasonable time 
 after the sale. This request was refused. We think the trial judge 
 should have submitted these questions to the jury, under the settled 
 law of this court that even where a stock broker sells, without due 
 notice, stock purchased by him for a customer on a margin, and held 
 in pledge to secure the advance made by him for the purchase, he does 
 not thereby, as matter of law, extinguish all claim against the cus- 
 tomer for the advance, but the customer is entitled to be allowed as 
 damages the difference between the price for which the stock sold, 
 and for which he received credit, and its market price then, or within 
 such reasonable time after notice of sale as would have enabled him 
 to replace the stock in case the market price exceeded the price real- 
 ized. Grumann v. Smith, 81 N. Y. 25 ; Capron v. Thompson, 86 N. 
 Y. 418-420; Colt v. Owens, 90 N. Y. 368-371; Porter v. Wormser, 
 94 N. Y. 431-446; Wright v. Bank, 110 N. Y. 237-246, 18 N. E. 79, 
 1 L. R. A. 289, 6 Am. St. Rep. 356. 
 
 The defendant's counsel relies on Gillett v. Whiting, 120 N. Y. 402, 
 24 N. E. 790, decided by the second division of this court in June, 
 1890, as sustaining this last ruling of the trial judge. We are of opin- 
 ion that the jxiint actually decided in that case does not affect the cases 
 in this court to which we have already referred. In Gillett v. Whiting 
 the plaintiffs were stock brokers, and brought the action to recover 
 a balance alleged to be due on account of stock transactions between 
 the parties. In submitting the case to the jury the defendant's coun- 
 sel requested the court to charge that, in case the plaintiffs sold the 
 stock without notice to the defendant as to the time and place of sale, 
 by doing so they violated their duty to the defendant, and converted 
 the stock to their own use. The court refused to so charge, the de- 
 fendant excepted, and the jury found a verdict for the plaintiff'. The 
 sole question presented on the appeal was defendant's right to have 
 the jury charged that a sale of his stocks by the broker without no- 
 tice was a conversion. The second division of this court very prop- 
 erly held that the judge should have so charged the jury, and reversed 
 the judgment. The effect of the conversion, if found by the jury, 
 was not presented on the appeal. The remarks, therefore, of the court, 
 as to the effect upon plaintiff's course of action if conversion of the 
 stocks- should be established, were obiter. 
 
 The cases we have cited were neither referred to in the briefs of 
 counsel nor the opinion of the court. The judgment appealed from 
 is reversed, and a new trial granted, with costs to abide event. All 
 concur. Judgment reversed.^"" 
 
 100 Ace: Bulkeley v. Welch, 31 Conn. 339 (1863); Richardson v. Ashby, 
 132 Mo. 23S, 33 S. W. SOG (1S96) ; Dlmock v. United States Xat. Bank, o5 N. 
 J. T>aw, 296, 25 Atl. 926, 39 Am. St. Rep. 643 (1S93). 
 
 See Potter v. Tyler, 2 Mete. (Mass.) 58 (1840) ; Rush v. First Nat. Bank, 71 
 Fed. 102, 17 C. C. A. 627 (1S95). 
 
 In general, as to the right of the pledgee to sell the pledge in due course, 
 Biq.Pees.Pkop. — ^9
 
 130 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 SPROUL V. SLOAN. 
 
 (Supreme Court of renusylvauia, 1913. 241 Pa. 2S-1, 88 Atl. 501, Ann. Cas. 
 
 lOluC, 941.) 
 
 Brown, J. Henry Sproul & Co., stockbrokers, who were engaged 
 in business in the city of Pittsburgh, purchased for John Sloan, the ap- 
 pellee, in May, June, and August, 1907, 1,500 shares of the capital 
 stock of the United Copper Company. This stock was purchased at 
 prices varying from $61.50 to $54 per share, and the brokers agreed to 
 carry it for appellee on a margin of $20 per share, which he deposited 
 with them. As this stock was purchased from time to time, the brokers 
 mingled it with other securities under their control and pledged them 
 to a trust company and bankers as collateral for indebtedness of their 
 own amounting to more than a million and a half dollars. This was 
 without the authority or knowledge of Sloan. In April, 1908, Sproul 
 & Co. sold, at $6.25 per share, the stock which they had purchased 
 for the appellee, but which he refused to pay for and take off their 
 hands; and, after crediting him with the proceeds, the margins de- 
 posited, and the dividends received on the stock, this suit was brought 
 to recover the balance alleged to be due, amounting to $34,214.51, with 
 interest from the date of the sale of the stock. 
 
 A verdict was directed for the defendant, for the reason, as stated 
 in the opinion of the court denying a new trial and judgment for the 
 plaintiffs n. o. v., tliat, as Sproul & Co. had converted to their own 
 use the stock purchased for the appellee by hypothecating it for their 
 own indebtedness, they had broken their contract with him and were 
 in no position to demand performance by him. As an authority for 
 so holding, the learned trial judge cited and relied upon Gillett v. 
 Whiting, 120 N. Y. 402, 24 N. E. 790. What was there said sus- 
 tained him, though it was overlooked that subsequently the Court of 
 Appeals held that the remarks in that case, as to the effect of a broker's 
 conversion of his customer's securities upon his claim against the lat- 
 ter, were upon a question which was not before the court and were 
 therefore to be regarded as mere obiter dicta, in conflict with the set- 
 tled law of the state. Minor v. Beveridge, 141 N. Y. 399, 36 N. E. 
 404, 38 Am. St. Rep. 804. It is not necessary for us to review the 
 New York cases cited by counsel for appellant in support of their con- 
 tention that the plaintiff below ought to have recovered, for we are 
 of opinion that the view entertained by the court below was the cor- 
 rect one, without regard to the particular authority upon which it 
 seems to have relied. 
 
 When Sproul & Co. purchased the 1,500 shares of stock, the legal 
 title to it vested in Sloan, subject to the payment of the balance due 
 
 see Moses v. Grainger, 106 Tenn. 7, 58 S. W. 1067, 53 L. R. A. 857 (1900), 
 note. As to contracts increasing tlie common-law rights of tlie pledgee, see 
 29 Harvard Law Review, 277.
 
 Sec. 2) BAILOR AND BAILEE 131 
 
 by him for commissions and advances made by them. He became the 
 pledgor and they the pledgees of the stock. Learock v. Paxson, 208 
 Pa. 602, 57 Atl. 1097; Barbour v. Sproul, 239 Pa. 171, 86 Atl. 714. 
 
 Sproul & Co. might have used the stock in making a specific loan for 
 tht purpose of enabling them to carry the stock for the appellee, but, 
 when they used it for any other purpose, they made an improper use 
 of it, and when they pledged it, with other securities under their con- 
 trol, for their own indebtedness, they unlawfully converted it to their 
 own use. Douglas v. Carpenter, 17 App. Div. 329, 45 N. Y. Supp. 
 219; Strickland v. Magoun, 119 App. Div. 113, 104 N. Y. Supp. 425; 
 Id., 190 N. Y. 545, 83 N. E. 1132; German Savings Bank v. Renshaw, 
 78 Aid. 475, 28 Atl. 281. "One to whom stock has been pledged for 
 a loan has full power to hypothecate it so long as the original pledgor 
 may obtain possession of it upon payment of his debt; but if it has 
 been mingled with the otlier securities of the pledgee, or has been re- 
 hypothecated by him to secure a different or larger debt than that for 
 which it was pledged to him, or if the collaterals have been trans- 
 ferred, but the obligation they were given to secure retained, or if it 
 has been in any way placed beyond the control of the pledgee, this is 
 a conversion." Vide authorities cited in support of this in 31 Cyc. 
 837. But it is earnestly contended by learned counsel for the appel- 
 lant that, inasmuch as Sloan suffered no damage by the brokers' con- 
 version of his stock, he ought not to be permitted to defeat their claim. 
 
 This begs the question, for the moment the stock was converted by 
 the brokers to their own use, the customer was damaged, and the meas- 
 ure of his damages was the highest price of the stock between the date 
 of the conversion and that of the trial of a suit brought by the cus- 
 tomer for the unlawful conversion. Learock v. Paxson, supra. From 
 this there would, of course, have to be deducted the balance of the pur- 
 chase money due the brokers. "The pledgee of stock cannot legally 
 part with the possession of the stock by a sale or repledge of it, ex- 
 cept as he transfers the debt which the stock secures. If he does so 
 he is guilty of a conversion. * * * Even where, apparently, the 
 pledgor would not be injured by the pledgee's separating the stock 
 from the debt and transferring the stock pledged as collateral security, 
 yet the law rigidly protects the interests of the debtor and pledgor and 
 will not compel him to submit to the danger of such transfers by the 
 pledgee. There may, of course, be an express contract or understand- 
 ing to the contrary." Cook on Corporations (6th Ed.) § 471. 
 
 The contract of Sproul & Co., which the appellants, through their 
 receiver, would enforce against Sloan, was one to hold the stock for 
 him until he paid the balance of the purchase money and demanded 
 deliver)' of the securities, and in the interval thev had no right to re- 
 pledge the stock except for the debt which it secured. Instead of per- 
 forming their contract with Sloan, the brokers made ijse of his prop- 
 erty as if it was a part of their own capital to enable them to make
 
 132 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 enormous loans, not, however, for the purpose of carrj-ing his stock, 
 but that they might continue to carry on their business as stockbrok- 
 ers. They treated his stock as their own, and, the moment they did 
 so without his authority, they placed him in jeopardy. After thus hav- 
 ing broken their contract with him, why should they be permitted to 
 demand performance by him ? He was in entire ignorance, until a 
 short time before the trial, that his brokers had converted his stock to 
 their own use, and, as soon as he learned what they had done, he 
 promptly repudiated his contract with them. This was his undoubted 
 right. The tender of the stock to him before it was sold is imma- 
 terial, for, at the time of the tender, the contract had been broken by 
 the brokers, and therefore neither they nor their receiver could there- 
 after call for performance by their customer. It was for this reason 
 that the learned trial judge directed the verdict for the defendant, and 
 no sufficient answer has been given to it on this appeal. Nothing is 
 to be found in any of our cases in conflict with the view of the court 
 below. The main reliance of counsel for appellant seems to be placed 
 on Wynkoop v. Seal, 64 Pa. 361. In that case the broker bought stock 
 for a customer under a special contract, by the terms of wiiich the 
 customer was to have 30 days' credit in paying for it, and the title to 
 it did not pass at the time of the purchase from the seller. In addi- 
 tion to this, the writer finds from an examination of the paper books 
 in the case that it did not appear that the broker had h}-pothecated the 
 stock for any other indebtedness than that of his own customer. 
 
 The unauthorized pledging by a broker of his customer's securities 
 places the latter in jeopardy, and the only safe and sound rule, in the 
 absence of authority from the customer to pledge them as they were 
 pledged in the case now before us, is that the broker pledges them at 
 the peril of forfeiture of his right to call upon his customer for per- 
 formance. It was contended in the court below that what Sproul & 
 Co. did was a common usage among brokers, whose business would 
 be seriously interfered with if they were forbidden to repledge se- 
 curities of their customers. As to this the learned trial judge well 
 said: "Such a usage can never be shown, if it be in contravention of 
 a well-established rule of law. It is a rule of law in Pennsylvania that 
 the relation between a broker and his customer with respect to stocks 
 purchased upon margin is that of pledgor and pledgee. To permit the 
 broker to use the stock as capital in his own business is to shift the 
 risk of his business upon his customers, a thing never contemplated in 
 the contract. Such a usage, if it exists, is unreasonable. 'Malus usu-. 
 abolendus est.' " 
 
 The assignments of error are overruled, and die judgment is af- 
 firmed.
 
 Sec. 2) BAILOR AND BAILEE 133 
 
 TALTY V. FREEDMAN'S SAVINGS & TRUST CO. 
 (Supreme Court of the United States, 1S70. 93 U. S. 321, 23 L. Ed. SS6.) 
 
 Mr. Justice Swayne.'"^ This was an action of replevin, prosecuted 
 by the plaintiff in error. The judgment was against him. The 
 bill of exceptions discloses all the evidence given by both parties. The 
 facts lie within a narrow compass, and, except as to one point, which in 
 our view is of no consequence in this case, there is no disagreement 
 between them. 
 
 Talty had a claim against the city of Washington for work and 
 materials, amounting to $6,096.75. He submitted it to the proper 
 authority, and received the usual voucher. On the 4th of January, 
 1872, the claim was approved by the commissioners of audit, and a 
 certificate to that effect was given to him. On the 6th of that month 
 he employed Kendig, a broker, to negotiate a loan for him. With 
 that view he placed in Kendig's hands his own note for $3,000, having 
 sixty days to run, with interest at the rate of ten per cent, per annum, 
 payable to his own order, and indorsed by him in blank. He also placed 
 in the hands of Kendig, to be used as collateral, his claim against the 
 city, indorsed in blank also. The same day Kendig negotiated the loan 
 and paid Talty the amount of the note, less the discount. Kendig sold 
 the claim against the city to the defendant for ninety-six cents on the 
 dollar. The money was paid to him. The purchase was made in good 
 faith, and without notice of any right or claim on the part of Talty. 
 With the proceeds of this sale Kendig took up the note. A few days 
 before its maturity Talty called on Kendig and oft'ered to pay the note, 
 and demanded back the collateral. Kendig declined to accede to the 
 proposition. He insisted that the understanding between him and 
 Talty was that he was to receive no commission for negotiating the 
 loan, but that he was to have instead the right to sell or take the claim 
 against the city, if he chose to do so, at ninety cents on the dollar. He 
 offered to pay Talty for the claim, making the computation at that 
 rate, and deducting the amount of the note. This Talty refused, and 
 insisted that Kendig had no authority with respect to the claim but to 
 sell, in the event of default in the payment of the note at maturity. 
 Each party testified accordingly. Subsequently, and after the maturity 
 of the note, Talty demanded from the defendant in error the vouchers 
 relating to the claim. The defendant refused to give them up, and this 
 suit was thereupon instituted. The marshal took them under the writ 
 of replevin, and delivered them to the plaintiff. 
 
 No tender was made by Talty to the defendant in error, nor to Ken- 
 dig, and nothing was said by him upon the subject of paying his note 
 to either, except the oft'er to Kendig, as before stated. 
 
 101 The statemeut of facts and part of the opinion are omitted.
 
 134 POSSESSORY INTERESTS IN CHATTELS (Cll. 3 
 
 After receiving back the collateral, Talty was paid the full amount 
 of it by the commissioners of the sinking fund of the cit)^ The only 
 dispute between the parties as to the facts was that in relation to the 
 authority of Kendig touching the claim. 
 
 Upon this state of the evidence the court instructed the jury to find 
 for the defendant, and to assess the damages at the value of the claim. 
 This was done, and judgment was entered upon the verdict. The 
 instruction was excepted to. 
 
 Before entering upon the examination of the merits of the con- 
 troversy, it may be well to consider for a moment the situation of 
 the several parties. Talty has received and holds the proceeds of 
 his note and the full amount of the collateral. Kendig holds the 
 note and the amount of the collateral, less four per cent. The de- 
 fendant in error, the bona fide purchaser of the claim, is out of pocket 
 the amount paid for it to Kendig, and has the burden of this litigation 
 and the security afforded by the replevin bond of Talty. 
 
 The question to be determined is, whether a tender to the defendant 
 in error by Talty of the amount due on his note before bringing this suit 
 was indispensable to entitle him to recover. 
 
 Kendig was not a factor with a mere lien. He was a pledgee. The 
 collateral was placed in his hands to secure the payment of the note. 
 It was admitted by Talty that Kendig was authorized to sell it if the 
 note were not paid at maturit3\ Kendig had a special property in 
 the collateral. He was a pawnee for the purposes of the pledge. Judge 
 Story says (Bailm. §§ 324—327) : "The pawnee may by the common law 
 deliver over the pawn to a stranger for safe custody without considera- 
 tion ; or he may sell or assign all his interest in the pawn ; or he may 
 convey the same interest conditionally, by way of pawn, to another per- 
 son, without in either case destroying or invalidating his security. But 
 if the pawnee should undertake to pledge the property (not being ne- 
 gotiable securities) for a debt beyond his own, or to make a transfer 
 thereof as if he were the actual owner, it is clear that in such case he 
 would be guilty of a breach of trust, and his creditor would acquire 
 no title beyond that held by the pawjiee." 
 
 "Whatever doubt may be indulged in, in the case of a mere factor, 
 it has been decided, in the case of a strict pledge, that, if the pledgee 
 transfers the same to his own creditor, the latter may hold the pledge 
 until the debt of the original owner is discharged." 
 
 Numerous authorities are cited in support of these propositions. 
 The subject as to the point last mentioned was learnedly examined 
 in Jarvis's Adm'r v. Rogers, 15 Mass. 389. That was the case of a 
 re-pledge by the first pledgee. The rule of the text as to the rights 
 of the sub-pledgee was distinctly affirmed. 
 
 The case of Lewis v. Mott, 36 N. Y. 395, was in some of its lead- 
 ing jx)ints strikingly like the case before us. There, Brown had placed 
 certain collaterals in the hands of Howe to secure the payment of
 
 Sec. 2) BAILOR AND BAILEE 135 
 
 two promissory notes of Brown, held by Howe ; Howe sold the notes 
 and collaterals to Varnum ; Brown offered to pay Varnum the amount 
 of the notes, and demanded the collaterals; Varnum refused to give 
 them up, and Brown sued for them. The court said: "It must be 
 conceded that A^arnum, by the purchase of those securities from Howe, 
 acquired the lien and interest of Howe, whatever that may have 
 been; and the plaintiff's assignee, to have entitled himself to a re- 
 delivery of these securities, must have tendered the amount of the 
 lien. There was simply an offer to pay Varnum the amount due upon 
 these notes. It was unattended with any tender of the amount due, 
 and was insufficient to extinguish the lien and thus entitle Brown 
 to the return of the notes. * * * The offer to pay is not the 
 equivalent for an actual tender. Bakeman v. Pooler, 15 Wend. (N. Y.) 
 (iZ7 ; Strong v. Blake, 46 Barb. (N. Y.) 227 ; Edmonston v. McLoud, 
 16 N. Y. 543." See also Baldwin v. Ely, 9 How. 580. 13 L. Ed. 266; 
 Merchants' Bank v. State Bank, 10 Wall. 604, 19 L. Ed. 1008. 
 
 The English law is the same. In Donald v. Suckling, Law Rep. 
 1 O. B. 585, the case was this : A. deposited debentures with B. as 
 security for the payment of a bill endorsed by A. and discounted by 
 B. It was agreed, that, if the bill was not paid when due, B. might 
 sell or otherwise dispose of the debentures. Before the maturity of 
 the bill, B. deposited the debentures with C, to be held as security 
 for a loan by him to B. larger than the amount of the bill. The bill 
 was dishonored, and while it was unpaid, A. sued C. in detinue for 
 the debentures. It was hekl that A. could not maintain the suit with- 
 out having paid or tendered to C. the amount of the bill. The case 
 was elaborately considered by the court. See also Moore v. Conham, 
 Owen, 123; Ratclift'e v. Davis, Yelv. 178; Johnson v. Gumming, 
 Scott's C. B. n. s. 331. 
 
 A tender to the second pledgee of the amount due from the first 
 pledgor to the first pledgee extinguishes ipso facto the title of the 
 second pledgee; but that there can be no recovery against him with- 
 out tender of payment is equally well settled. Donald v. Suckling, 
 supra; Jarvis's Adm'r v. Rogers, supra; s. c, 13 Mass. 105. 
 
 But it is suggested that the note was in the hands of Kendig, and 
 that Talty could not, therefore, safely pay the amount due upon it to 
 the holder of the collateral. The like fact existed in Donald v. Suck- 
 ling. It is not adverted to in the arguments of counsel, nor in the opin- 
 ions of the judges in that case. It could not, therefore, have been 
 regarded by either as of any significance. The answer here to the 
 objection is obvious. The note, a few days before its maturity, was in 
 the hands of Kendig. There being no proof to the contrary, it is to be 
 presumed to have remained there. This suit was commenced after it 
 matured. Talty might then have paid the amount due UDon it to the de- 
 fendant in error, and could thereupon have defended successfully in 
 a suit on the note, whether brought by Kendig, or any indorsee taking
 
 13G POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 it after due. He might also, after making the tender, have filed 
 his bill in equity, making Kendig and the savings bank defendants, 
 and thus have settled the rights of all the parties in that litigation. 
 Having sued at law without making the tender, it is clear he was not 
 entitled to recover. 
 
 The instruction given by the court to the jury was, therefore, cor- 
 rect. * * * 102 
 
 WHITNEY V. PEAY, Receiver. 
 (Supreme Court of Arkansas, 1802. 24 Ark. 22.) 
 
 English, C. J-^"^ On the 1st of January, 1840, the state issued to 
 the Real Estate Bank, in pursuance of its charter, 500 bonds for $1,000 
 each, bearing interest, etc., to be sold at par, for the purpose of pro- 
 curing banking capital, etc. 
 
 On the 7th of September, 1840, the cashier of the bank, with the 
 approval of two of the bond commissioners, entered into a contract 
 with the North American Trust & Banking Company, of New York, 
 by which that company agreed to loan to the Real Estate Bank $250,- 
 000, upon a pledge or hypothecation of the bonds above referred to, 
 which sum was to be advanced by installments and repaid at stipu- 
 lated periods, with interest, etc. 
 
 In pursuance of this contract the bonds were delivered to the North 
 American Trust & Banking Company, and*it is admitted that the Real 
 Estate Bank received, through its agents, and appropriated to its use, 
 the sum of $121,336.59. No further sum was advanced. 
 
 102 Ace: Dnnald v. Sueklins, L. R. 1 Q. B. 5S.5 (ISfiG) ; Bradley v. Parks, 
 S3 111. 1C9 (1S7G). See Lewis v. Mott, 36 N. Y. 395 (1SG7). 
 
 A. pledged stock v?lth B. as collateral. B. wrongfully pledged it to C, who 
 took with notice. A. paid B. Held, A. may recover the full value of the 
 stock from C. German Sav. Bank of Baltimore City v. Renshaw, 78 Md. 475, 
 28 Atl. 2S1 (1894). See, also. Usher v. Van Vrauken, 48 App. Div. 413, 03 X. 
 T. Supp. 104 (1900). 
 
 Otherwise when 0. buys in good faith, and A. has merely tendered to B., 
 and B. is bankrupt. First Nat. Bank of Louisville v. Boyce, 78 Ky. 42, 3D 
 Am. Rep. 198 (1S79), semble. 
 
 A. pledged a horse to B., who wrongfully sold it to C. A. took the hor.se 
 from C. Held, C. may recover possession of the horse from A. Williams v. 
 Ashe, 111 Cal. ISO. 43 Pac. 595 (1896). 
 
 A. delivered a diamond ring to B. as collateral for a loan. B. changed the 
 setting of the stone and gave the ring to C. as a gift. Held, A. may replevy 
 the ring without paying or tendering the debt to 0. Sheridan v. Presas, IS 
 Misc. Rep. ISO, 41 N. Y. Supp. 451 (1896). 
 
 A. pledged corn to B. B. wrongfully sold it to C, who In turn wrong- 
 fully sold it. A. brought assumpsit for money had and received against C. 
 Held, A. may recover only the value of the corn less the debt which it was 
 pledged to secure. Beldon v. Perkins. 7S 111. 449 (1S75). See Boswell v. 
 Thigpen, 75 Miss. 308, 22 South. 823 (1897). 
 
 103 The statement of facts and part of the opinion are omitted.
 
 Sec. 2) BAILOR AND BAILEE 137 
 
 About the 1st of December, 1840, the North American Trust & 
 Banking Company pledged the same bonds to James Holford & Co., 
 bankers of London, for a loan of $325,000. Afterwards, Holford be- 
 came the sole owner of the debt, and holder of the bonds so pledged, 
 by transfer from his partner. 
 
 Afterwards, upon a bill filed in the chancery court of New York, 
 by George Manning Tracy, a stockholder and creditor, against Thomas 
 G. Talmage, president of the North American Trust & Banking Com- 
 pany, alleging its insolvency, etc., it was placed in liquidation ; and 
 David Leavitt was appointed by the court, a receiver in chancery, to 
 settle its affairs. 
 
 Pending the administration of the trust, James Holford prayed the 
 court, by petition, that the receiver might be ordered to unite with 
 him in a reference, pursuant to the statute of New York, of six claims 
 presented by him against the banking company ; and the claims were 
 accordingly referred to three referees, appointed by the court (two 
 counsellors at law and one merchant), with instructions to ascertain 
 and report, in case they found any thing due from the company upon 
 the claims, what collateral securities had been legally assigned for the 
 security of the sums so found due from the company, and the value 
 thereof ; and that the referees deduct from the amount so found due 
 to Holford, the ascertained value of all such collateral securities. 
 
 The referees, after a protracted and laborious investigation, re- 
 ported that the company was indebted to the American administrators 
 of Holford (he having died pending the investigation), upon the si.x 
 claims referred to them, for principal and interest, to 1st October. 
 1857, in the sum of $895,896.42. 
 
 Included in this sum was the amount advanced by Holford to the 
 company, upon the pledge of the 500 Arkansas bonds. 
 
 The referees further reported that certain collateral securities, par- 
 ticularly described by them, had been legally assigned by the com- 
 pany to Holford, to secure the payment of the sum found due to his 
 estate, as above ; the aggregate value thereof was ascertained to be 
 $456,200 (the separate value of each collateral security being ascer- 
 tained and stated), which being deducted from the sum found to be 
 due to his administrators from the company, left a balance in their 
 favor of $439,696.42. 
 
 Among the collateral securities reported by the referees as having 
 been legally assigned to Holford, by the companj', were the 500 Ar- 
 kansas bonds, for $1,000 each, which they ascertained to be of the 
 actual value of $425,000, on the 1st October, 1857. 
 
 The report of the referees was approved and confirmed by the court, 
 and a decree entered in favor of Holford's administrators for the bal- 
 ance found to be due them upon their claims, after deducting the re- 
 ported value of the collateral securities, to be paid by the receiver out 
 of the assets of the company. And it was further decreed "that the
 
 ins POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 value of the said collateral securities having been duly ascertained and 
 credited upon their said claim, pursuant to the directions contained in 
 the order of reference, the administrators, etc., have become, and are 
 the legal owners of, and legally and equitably possessed of, and well 
 entitled, as such administrators, to all and singular the following bonds, 
 notes, stock, etc., being the collateral securities in said report partic- 
 ularly mentioned and described, that is to say, 500 bonds of the state 
 of Arkansas, numbered, etc., issued to the Real Estate Bank, etc., for 
 $1,000 each," etc. 
 
 In the meantime Benjamin D. Whitney made a proposition to David 
 Leavitt, the receiver in chancery, etc., to give $2,500 for the debt of 
 the Real Estate Bank to the North American Trust & Banking Com- 
 pany, for moneys advanced by the latter to the former, under the 
 agreement of 7th Sept., 1840, above stated. The proposition of Whit- 
 ney was reported to the court superintending the administration of 
 the trust, and the court directed the receiver to accept the proposition, 
 and to assign the debt to Whitney upon his paying therefor the sum 
 proposed. A written assignment was accordingly made by the re- 
 ceiver. 
 
 Afterwards, Whitney filed a bill in the Pulaski chancery court, 
 against Peay, as receiver in chancery of the assets of the Real Estate 
 Bank, and the English executors and American administrators of 
 Holford, accompanied by voluminous exhibits, alleging and showing 
 the facts above stated, praying a decree against the receiver for the 
 amount of the debt, with interest, assigned to him as above, to be paid 
 out of the assets of the bank; and that the administrators, etc., of Hol- 
 ford be required to assert and litigate their claim, etc., to the 500 Ar- 
 kansas bonds, etc., and that they be compelled to produce and sur- 
 render them for cancellation, etc. , 
 
 Upon the answer of Peay, containing a demurrer to the bill, and a 
 demurrer interposed for the representatives of Holford, the bill was 
 dismissed, and Whitney appealed to this court. * * * 
 
 Assuming the contract between the Real Estate Bank and the North 
 American Trust & Banking Company, to have been in equity, a valid 
 one, the company held the bonds in pledge for the repayment of the 
 money advanced to the bank; and the bank was entitled to have the 
 bonds re-delivered to it on payment of the debt. 
 
 After the North American Trust & Banking Company transferred 
 the bonds in pledge to Holford & Co., for a larger sum of money than 
 it had advanced to the Real Estate Bank on the faith of the bonds, 
 did the company still continue to be the owner of the debt due from 
 the Real Estate Bank, so that it could be sold by the receiver of the 
 company, after it was placed in liquidation, to Whitney, and vest in 
 him a right to collect the debt? 
 
 The pawnee may sell or assign all his interest in the pawn. If he 
 transfers the pledge to his own creditor, the latter may hold the pledge,
 
 Sec. 2) BAILOR AND BAILEE 139 
 
 until the debt of the original owner is discharged. Story on Bail. §§ 
 324, 327. 
 
 The general rule is, that liens at law on personal property exist only 
 in cases where the party entitled to them has the possession of the 
 goods; and if he once part with the possession, after the lien attaches, 
 the lien is gone. Being in the nature of a security resting on property 
 for the payment of a debt, the pledgee's lien cannot be separated ei- 
 ther from the possession of the goods, or from the debt; it is col- 
 lateral to the debt, and it must accompany the possession. His inter- 
 est may be transferred: it will pass at his death to his personal rep>- 
 resentatives, or he may, it seems, assign over his interest in the pawn 
 so that the assignee will take his rights and responsibilities under the 
 contract of pledge. Edwards on Bail. 210: Tarvis v. Rogers, 15 Mass. 
 408; Curtis et al. v. Leavitt, 15 N. Y. 103." 
 
 It follows that when the North American Trust & Banking Com- 
 pany transferred the Arkansas bonds to Holford & Co., in pledge, the 
 debt due to the company from the Real Estate Bank, resting upon and 
 adhering to the bonds — the pledge — passed also to Holford & Co., by 
 the transfer. 
 
 After the transfer was made, the North American Trust & Bank- 
 ing Company could not have compelled the Real Estate Bank to pay 
 to it the money advanced upon faith of the bonds, because the com- 
 pany had parted with the bonds, and was not in a condition to sur- 
 render them to the Real Estate Bank, on payment, as by the terms of 
 the contract of pledge it was obliged to do. 
 
 In what better condition does Whitney stand, who purchased the 
 debt of the receiver of the company, in liquidation? Did he purchase 
 a greater right than the company had? We think not. 
 
 After the bonds were transferred in pledge to Holford & Co., the 
 Real Estate Bank had a right to redeem them by paying to them the 
 money advanced to the bank by the North American Trust & Bank- 
 ing Company, with interest, unless indeed Holford & Co., had a right 
 to claim a larger sum by virtue of circumstances connected with the 
 transfer of the bonds to them, which placed them in the attitude of 
 innocent holders, entitled to protection, which is not a question for' us 
 to decide in this case. 
 
 But the appellant, Whitney, who seems to have been an adventurer 
 in purchasing the debt due from the Real Estate Bank, and who pur- 
 chased it for a trifling sum compared to the magnitude of the debt 
 and interest, would, if the prayer of his bill was granted, compel the 
 representatives of Holford to surrender the bonds to the receiver of 
 the Real Estate Bank, and receive nothing, while he would receive the 
 full amount due from the bank, though the very court which ordered 
 his proposition to purchase the debt to be accepted, had charged Hol- 
 ford's administrators with the market value of the bonds, and de- 
 creed that they had been legally transferred to him, and that his ad-
 
 140 POSSESSORY INTERESTS IN CHATTELS (Ch. 3 
 
 ministrators were well entitled to hold them, etc. : and this decree was 
 made after the deed of assignment referred to in the bill, and sup- 
 posed by appellant's counsel to cut some figure in the case, had been 
 set aside for fraud. 
 
 The decree of the court below must be affirmed.*"* 
 
 10* A. made a note to B. and delivered a boat as pledge. B. Indorsed the 
 note to C, but made no delivery or mention of the boat, which had l)eon at- 
 tached by creditors of A. ITeld, G. gets no interest In the boat that he can 
 enforce against attaching creditors of A. Johnson v. Smith, 30 Tenn. (11 
 Humph.) 39G (1S50). 
 
 Where the collateral consists of a judgment against X., and only the debt 
 is assigned to C, he can compel B. to devote the proceeds of the judgment to 
 the payment of the debt so assigned. Painter v. Harding, 3 Phila. (Pa.) 50 
 (185S). 
 
 Compare Morgan v. Dugan (Md.) 30 Atl. 55S (1S94). 
 
 A. executed a note to B. or order. B. executed a note to C. or order, and 
 delivered the unindorsed A. note to C. as security. C. assigned the A. note 
 to D. Held, D. cannot collect the A. note. Van Eman v. Stauchtield, 13 
 Minn. 75 (Gil. 70) (IbtiS). 
 
 i
 
 Sec. 1) ACQUISITION OF OWNERSHIP 141 
 
 CHAPTER IV 
 ACQUISITION OF OWNERSHIP 
 
 SECTION 1.— MERE TAKING OF POSSESSION 
 
 PIERSON V. POST. 
 (Supreme Court of New York; 1S05. 3 Caines, 173, 2 Am. Dec. 264.) 
 
 This was an action of trespass on the case commenced in a justice's 
 court, by the present defendant against the now plaintiff. 
 
 The declaration stated that Post, being in possession of certain 
 dogs and hounds under his command, did, "upon a certain wild and 
 uninhabited, unpossessed and waste land, called the beach, find and 
 start one of those noxious beasts called a fox," and whilst there hunt- 
 ing, chasing and pursuing the same with his dogs and hounds, and 
 when in view thereof, Pierson, well knowing the fox was so hunted 
 and pursued, did, in the sight of Post, to prevent his catching the 
 same, kill and carry it off. A verdict having been rendered for the 
 plaintiff below, the defendant there sued out a certiorari, and now 
 assigned for error, that the declaration and the matters therein con- 
 tained were not sufficient in law to maintain an action. 
 
 Tompkins, J.^ This cause comes before us on a return to a certi- 
 orari directed to one of the justices of Queens county. 
 
 The question submitted by the counsel in this cause for our deter- 
 mination is, whether Lodowick Post, by the pursuit with his hounds 
 in the manner alleged in his declaration, acquired such a right to, or 
 property in the fox as will sustain an action against Pierson for kill- 
 ing and taking him away? 
 
 The cause was argued with much ability by the counsel on both 
 sides, and presents for our decision a novel and nice question. It is 
 admitted that a fox is an animal fer?e naturre, and that property in 
 such animals is acquired by occupancy only. These admissions nar- 
 row the discussion to the simple question of what acts amount to oc- 
 cupancy, applied to acquiring right to wild animals. 
 
 If we have recourse to the ancient writers upon general principles 
 of law, the judgment below is obviously erroneous. Justinian's In- 
 
 1 Part of the opinion of Tompkins, J., and the dissenting opinion of Livings- 
 ton, J.i are omitted.
 
 142 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 stitutes, lib. 2, tit. 1, s. 13, and Fleta, lib. 3, c. 2, p. 175, adopt the 
 principle, that pursuit alone vests no property or right in the hunts- 
 man ; and that even pursuit, accompanied with wounding, is equally 
 ineffectual for that purpose, unless the animal be actually taken. The 
 same principle is recognised by Bracton, lib. 2, c. 1, p. 8. 
 
 Puffendorf, lib. 4, c. 6, §§ 2 and 10, defines occupancy of beasts 
 ferae naturse, to be the actual corporal possession of them, and Bynker- 
 shock is cited as coinciding in this definition. It is indeed with hesita- 
 tion that Puffendorf affirms that a wild beast mortally wounded, or 
 greatly maimed, cannot be fairly intercepted by another, whilst the 
 pursuit of the person inflicting the wound continues. The foregoing 
 authorities are decisive to show that mere pursuit gave Post no legal 
 right to the fox, but that he became the property of Pierson, who in- 
 tercepted and killed him. 
 
 It therefore only remains to inquire whether there are any contrary 
 principles, or authorities, to be found in other books, which ought to 
 induce a different decision. Most of the cases which have occurred 
 in England, relating to property in wild animals, have either been 
 discussed and decided upon the principles of their positive statute 
 regulations, or have arisen between the huntsman and the owner of 
 the land upon which beasts fera; natura: have been apprehended ; the 
 former claiming them by title of occupancy, and the latter ratione 
 soli. Little satisfactory aid can, therefore, be derived from the Kng- 
 lish reporters. 
 
 Barbeyrac, in his notes on Puffendorf, does not accede to the defini- 
 tion of occupancy by the latter, but on the contrary affirms, that actual 
 bodily seizure is not, in all cases, necessary to constitute possession 
 of wild animals. He does not, however, describe the acts which, ac- 
 cording to his ideas, will amount to an appropriation of such animals 
 to private use, so as to exclude the claims of all other persons, by 
 title of occupancy, to the .'^anie animals ; and he is far from averring 
 that pursuit alone is sufficient for that purpose. To a certain extent, 
 and as far as Barbeyrac appears to me to go, his objections to Puffen- 
 dorf's definition of occupancy are reasonable and correct. That is 
 to say, that actual bodily seizure is not indispensable to acquire right 
 to, or possession of, wild beasts ; but that, on the contrary, the mortal 
 wounding of such beasts, by one not abandoning his pursuit, may, with 
 the utmost propriety, be deemed possession of him ; since, thereby the 
 pursuer manifests an unequivocal intention of appropriating the animal 
 to his individual use, has deprived him of his natural liberty, and 
 brought him within his certain control. So also, encompassing and 
 securing such animals with nets and toils, or otherwise intercepting 
 them in such a manner as to deprive them of their natural liberty, 
 and render escape impossible, may justly be deemed to give posses- 
 sion of them to those persons who, by their industry and labor, have 
 used such means of apprehending them. * * *
 
 Sec. 1) MERE TAKING OF POSSESSION 143 
 
 The case cited from 11 Mod. 74-130, I think clearly distinguishable 
 from the present; inasmuch as there the action was for maliciously 
 hindering and disturbing the plaintiff in the exercise and enjoyment 
 of a private franchise ; and in the report of the same case (3 Salk. 
 9) Holt, C. J., states, that the ducks were in the plaintiff's decoy pond, 
 and so in his possession, from which it is obvious the court laid much 
 stress in their opinion upon the plaintiff's possession of the ducks, ra- 
 tione soli. 
 
 I am the more readily inclined to confine possession or occupancy 
 of beasts ferte naturre, within the limits prescribed by the learned au- 
 thors above cited, for the sake of certainty, and preserving peace and 
 order in society. If the first seeing, starting, or pursuing such ani- 
 mals, without having so wounded, circumvented or ensnared them, so 
 as to deprive them of their natural liberty, and subject them to the 
 control of their pursuer, should afford the basis of actions against 
 others for intercepting and killing them, it would prove a fertile source 
 of quarrels and litigation. 
 
 However uncourteous or unkind the conduct of Pierson towards 
 Post, in this instance, may have been, yet his act was productive of no 
 injury or damage for which a legal remedy can be applied. We are 
 of opinion the judgment below was erroneous and ought to be re- 
 versed. - 
 
 Livingston, J., dissented. 
 
 YOUNG V. HICHENS. 
 (Queen's Bench, 1S44. 6 Q. B. 606.) 
 
 Trespass. The first count charged that defendant, with force etc., 
 seized and disturbed a fishing scan and net of plaintiff, thrown into 
 the sea for fish, wherein plaintiff had taken and inclosed, and then 
 held inclosed in his own possession, a large number of fish, to wit, 
 etc., and that defendant threw another fishing sean and net within and 
 upon plaintiff's sean and net, and for a long time, to wit, etc., pre- 
 vented plaintiff from taking the fish, so taken and inclosed, out of his 
 sean and net, as he could otherwise have done ; and drove, etc., the 
 fish; whereby part of them died, part were injured, and part escaped; 
 and the sean and net was injured. Second count, that defendant with 
 force, etc., seized, took, and converted fish of plaintiff. 
 
 Pleas: 1. Not guilty. Issue thereon. 
 
 2. To the first count, as to preventing plaintiff from taking the fish 
 alleged to be inclosed in his possession, and driving, etc., the said fish ; 
 
 2 Compare Buster v. Newkirk, 20 Johns, (X. Y.) 75 (1S22).
 
 144 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 that the fish were not plaintiff's fish, and he was not possessed of 
 them, in manner, etc. : conclusion to the country. Issue thereon. 
 
 3. To the second count, that the fish were not the plaintiff's fish, in 
 manner, etc. ; conclusion to the country. Issue thereon. 
 
 On the trial, before Atcherley Serjt, at the Cornwall Spring As- 
 sizes, 1843, it appeared that the plaintiff had drawn his net partially 
 round the fish in question, leaving a space of about seven fathoms open, 
 which he was about to close with a stop net ; that two boats, belong- 
 ing to the plaintiff, were stationed at the opening, and splashing the 
 water about, for the purpose of terrifying the fish from passing 
 through the opening; and that, at this time, the defendant rowed his 
 boat up to the opening, and the disturbance, and taking of the fish, 
 complained of, took place. The learned Serjeant left to the jury the 
 question of fact whether the fish were at that time in the plaintiff's 
 possession, and also other questions of fact on the other issues. Ver- 
 dict for plaintiff on all the issues, with damages separately assessed, 
 namely, £568 for the value of the fish, and £1 for the damage done 
 to the net. 
 
 Lord Denm.\n, C. J.' It does appear almost certain that the plain- 
 tiff would have had possession of the fish but for the act of the de- 
 fendant ; but it is quite certain that he had not possession. Whatever 
 interpretation may be put upon such terms as "custody" and "posses- 
 sion," the question will be whether any custody or possession has been 
 obtained here. I think it is impossible to say that it had, until the 
 party had actual power over the fish. It may be that the defendant 
 acted unjustifiably in preventing the plaintiff from obtaining such 
 power : but that would only shew a wrongful act, for which he might 
 be liable in a proper form of action. 
 
 Patteson, J. I do not see how we could support the affirmative 
 of these issues upon the present evidence, unless we were prepared 
 to hold that all but reducing into possession is the same as reducing 
 into possession. Whether the plaintiff has any cause of action at all 
 is not clear: possibly there may be a remedy under the statutes. 
 
 WiGHTMAN, J. I am of the same opinion. If the property in the 
 fish was vested in the plaintiff by his partially inclosing them but leav- 
 ing an opening in the nets, he would be entitled to maintan trover for 
 fish which escaped through that very opening. 
 
 Coleridge, J., was absent. 
 
 Rule absolute for reducing the damages to 20s., and entering the 
 verdict for defendant on the second and third issues.* 
 
 3 The statement of facts Is abridged and the secoud opinion of Lord Den- 
 man, C. J., is omitted. 
 
 * In the wliale fishery the English custom was said to be that the vessel 
 whose harpoon was first driven into the whale acquired title provided the 
 harpoon remained connected by rope to a boat. Littledale v. Scaith, 1 Taunt.
 
 Sec. 1) MERE TAKING OF POSSESSION 145 
 
 STATE V. SHAW et al. 
 (Supreme Court of Ohio, 1902. 67 Ohio St. 157, 65 N. E, 875, GO L. R. A. 4S1.) 
 
 [The defendants were indicted for the larceny of fish by taking them 
 from nets in Lake Erie.] 
 
 It also appears that the construction of these pound nets is such 
 that the entrance to the net was about thirty-five feet deep, eight rods 
 long, and terminated in an aperture leading into the net, which was two 
 feet and ten inches in diameter. This tunnel, as it is called, extended 
 into the net, or pot, some five or six feet, and the pot was about twenty- 
 eight feet square, reaching perhaps four feet above the water. The 
 evidence shows that the opening of the tunnel into the pot was the 
 place where the fish entered, and that it was at all times left open. 
 There is no evidence as to the quantity of fish escaping from the nets ; 
 it simply appears that it was possible for the fish to go out in the same 
 way they got in. It was also in evidence that these nets were frequent- 
 ly disturbed by wind and storm, and at such times so disordered that 
 fish escaped over the top. 
 
 Davis, J. Fish are fera^ naturae ; yet, "where the animals or other 
 creatures are not domestic, but are ferje naturae, larceny may, notwith- 
 standing, be committed of them, if they are fit for food of man and 
 dead, reclaimed (and known to be so) or confined. Thus * * * 
 fish in a tank or net, or as it seems in any other enclosed place which 
 is private property, and where they may be taken at any time at the 
 pleasure of the owner * * * the taking of them with felonious 
 intent will be larceny." 2 Russ. Cr. 83. "Fish confined in a tank or 
 net are sufficiently secured." 2 Bishop Cr. Law, § 775. 
 
 The trial judge seems to have directed the jury to return a verdict 
 of "not guilty" on the theorj' that the fish must have been confined so 
 that there was absolutely no possibility of escape. We think that this 
 doctrine is both unnecessarily technical and erroneous. For example, 
 bees in a hive may be the subject of larceny, yet it is possible for the 
 bees to leave the hive by tlie sam.e place at which they entered. To 
 acquire a property right in animals ferae naturse, the pursuer must 
 bring them into his power and control, and so maintain this control as 
 to show that he does not intend to abandon them again to the world 
 at large. When he has confined them within his own private enclosure 
 where he may subject them to his own use at iiis pleasure, and main- 
 tains reasonable precautions to prevent escape, tfiey are so impressed 
 
 243, note (17SS). Compare Fenuings v. Grenville, 1 Taunt. 241 (ISOS) ; Ho- 
 garth y. Jackson, Moo. & M. 58 (1827). 
 
 The American custom is that the first harpoon in the whale gives title. 
 Swift V. Gifford, 2 Uiw. 110, Fed. Cas. No. 13,696 (1872). Compare Ghen v. 
 Rich (D. C.) S Fed. 159 (18S1). 
 Big.Pers.I'kop. — 10
 
 146 ACQUISITION OF OWXEKSHIP (Cll. 4 
 
 with his proprietorship tliat a felonious taking of them from his en- 
 closure, whether trap, cage, park, net, or whatever it may be, will be 
 larceny. For such cases, as is clearly shown by the authorities above 
 quoted, the law does not require absolute security against the possi- 
 bility of escape, and none of the authorities cited for the defendants 
 in error, except Norton v. Ladd, 5 N. H. 203, 20 Am. Dec. 573, sus- 
 tain their contention. Young v. Hichens, 6 Ad. & Ell. N. S. 606, s. c, 
 51 E. C. L. 606, is not applicable to this case. That was an action for 
 the conversion of fish which were never in the plaintiff's net but had 
 been frightened away from entering into the plaintiff's net by the de- 
 fendant and caught in his own net. 
 
 In the present case the fish were not at large in Lake Erie. They 
 were confined in nets, from which it was not absolutely impossible for 
 them to escape, yet it was practically so impossible; for it seems that 
 under ordinary circumstances few, if any, of the fish escape. The fish 
 that were taken had not escaped, and it does not appear that they would 
 have escaped, or even that they probably would have escaped. They 
 were so safely secured that the owners of the nets could have taken 
 them out of the water at will as readily as the defendants did. The 
 possession of the owners of the nets was so complete and certain that 
 the defendants went to the nets and raised them with absolute assur- 
 ance that they could get the fish that were in them. We think, there- 
 fore, that the owners of the nets, having captured and confined the 
 fish, had acquired such a property in them that the taking of them was 
 larceny." 
 
 FERGUSON V. MILLER. 
 
 (Supreme Court of New York, 1S2.3. 1 Cow. 243, 13 Am. Dec. 519.) 
 
 Certiorari to a Justice's Court. Trespass, by Miller against Fergu- 
 son, for cutting a bee-tree, standing on the land of one Jenkins. The 
 plaintiff had discovered the tree, and marked it with the initials of his 
 name ; and a witness swore that Jenkins gave him liberty to cut the 
 tree, though Jenkins remembered nothing of this on the trial. The 
 defendant traced the swarm of bees to the same tree, cut out the initials 
 of the plaintiff's name, substituted his own, and felled and removed the 
 limb of the tree, where the bees were, under a subsequent license from 
 Jenkins, for which the defendant agreed to pay him 50 cents. On motion 
 for a nonsuit, because the plaintilt had not established a sufficient prop- 
 erty in himself, the Justice overruled the motion, and charged the jury, 
 that the plaintiff after getting permission from Jenkins to cut the tree, 
 
 6 A. caught fish and put them in a cove eight feet deep and covering aboui 
 two acres with a fence across its mouth. Held, A. cannot maintain trespass 
 against B. for talUng these fish. Pollers v. Sollers, 77 Md. 14S, 26 Atl. 188, 
 20 L. K. A. 94, 39 Am. St. Rep. 404 (1893).
 
 Sec. 1) MERE TAKING OF POSSESSION 147 
 
 had sufficient property in the bees to maintain trespass against any per- 
 son for taking them away. The jury found for the plaintiff, on which 
 judgment was given. 
 
 CuRiA.^ * * * Admit the fact that Jenkins gave MiUer hberty 
 to cut the tree and take the bees — that did not give him a title to the 
 bees till he had taken possession of them. The license was without 
 consideration, and liable to be revoked at pleasure. Suppose Jenkins, 
 himself, had cut the tree and taken the bees: can it be pretended that 
 the plaintiff could have maintained an action against him ? The plain- 
 tiff had neither die ownership nor the possession. The utmost extent 
 of his right, was that he had it in his power to become the owner, by 
 taking possession. The defendant had the same, and, perhaps, a great- 
 er right ; as the license to him may have been a revocation of the for- 
 mer license. But suppose it was not, then the two parties stood on an 
 equal footing ; and he who first reduced them to possession became the 
 owner. 
 
 Judgment reversed.' 
 
 GOFF V. KILTS. 
 (Supreme Court of New York, 1S36. 15 Wend. 550.) 
 
 Error from the Madison common pleas. Kilts sued Goff in a justice's 
 court in trespass for taking and destroying a swarm of bees and the 
 honey made by them. The swarm left the hive of the plaintiff, flew 
 off and went into a tree on the lands of the Lenox Iron Company. Th« 
 plaintiff kept the bees in sight, followed them, and marked the tree iu 
 which they entered. Two months afterwards the tree was cut down, 
 the bees killed, and the honey found in the tree taken by the defendant 
 and others. The plaintiff recovered judgment, which was affirmed by 
 the Madison common pleas. The defendant sued out a writ of error. 
 
 Nelson, J.* Animals ferse naturae, when reclaimed by the art and 
 power of man, are the subject of a qualified property; if they return 
 to their natural liberty and wildness, without the animus revertendi, it 
 ceases. During the existence of the qualified property, it is under the 
 protection of the law the same as any other property, and every inva- 
 sion of it is redressed in the same manner. Bees are ferse naturae, but 
 when hived and reclaimed, a person may have a qualified property in 
 them by the law of nature, as well as the civil law. Occupation, that 
 is, hiving or enclosing them, gives property in them. They are now a 
 
 8 Part of the opinion is omitted. 
 
 ■^ A. found a bee tree and was cutting it down. B. interposed, prevented A. 
 from completinj,' the felling, and himself completed the felling and took the 
 honey. Held, A. is entitled to judgment against B. iu an action of trespass 
 and case for the value of the honey. Adams v. Burton, 43 Vt. 36 (1S70). 
 
 8 Part of the opinion is omitted.
 
 14S ACQUISITION OF OWNERSHIP (Ch. i 
 
 common species of property, and an article of trade, and the wildncss 
 of their nature by experience and practice has become essentially sub- 
 jected to the art and power of man. An unreclaimed swarm, like all 
 other wild animals, belongs to the first occupant — in other words, to 
 the person who first hives them ; but if a swarm fly from the hive of 
 another, his qualified property continues so long as he can keep them 
 in sight, and possesses the power to pursue them. Under these cir- 
 cumstances, no one else is entitled to take them. 2 Black. Comm. 393; 
 2 Kent's Comm. 394. 
 
 The question here is not between the owner of the soil upon which 
 the tree stood that included the swarm, and the owner of the bees : 
 as to him, the owner of the bees would not be able to regain his 
 property, or the fruits of it without being guilty of trespass. But 
 it by no means follows, from this predicament, that tlie right to the 
 enjoyment of the property is lost; tliat the bees therefore become 
 again ferae naturae, and belong to the first occupant. If a domes- 
 tic or tame animal of one person should stray to the enclosure of 
 another, the owner could not follow and retake it, without being 
 liable for a trespass. The absolute right of property notwithstand- 
 ing, would still continue in him. Of this there can be no doubt. 
 So in respect to the qualified property in the bees. If it continued in 
 the owner after they hived themselves, and abode in the hollow tree, as 
 this qualified interest is under the same protection of law as if abso- 
 lute, the like remedy existed in case of an invasion of it. It cannot, I 
 think, be doubted, that if the property in the swarm continues while 
 within sight of the owner — in other words, while he can distinguish 
 and identify it in the air — that it equally belongs to him if it settles 
 upon a branch or in the trunk of a tree, and remains there under his 
 observation and charge. If a stranger has no right to take the swarm 
 in the former case, and of which there seems no question, he ought not 
 to be ftermitted to take it in the latter, when it is more confined and 
 within the control of the occupant. 
 
 It is said that owner of the soil is entitled to the tree and all within 
 it. This may be true, so far as respects an unreclaimed swarm. While 
 it remains there in that condition, it may, like birds or other game, 
 (game laws out of the question,) belong to the owner or occupant of the 
 forest, ratione soli. According to the law of nature, where prior occu- 
 pancy alone gave right, the individual who first hived tlie swarm would 
 be entitled to the property in it ; but since the institution of civil socie- 
 ty, and the regulation of the right of property by its positive law, the 
 forest as well as the cultivated field, belong exclusively to the owner, 
 who has acquired a title to it under those laws. The natural right to 
 the enjoyment of the sport of hunting and fowling, wherever animals 
 ferse naturae could be found, has given way, in tlie progress of society, 
 to the establishment of rights of property better defined and of a more 
 durable character. Hence no one has a right to invade the enclosure
 
 Sec. 1) MEEE TAKING OF POSSESSION 149 
 
 of anotlier for this purpose. He would be a trespasser, and as such 
 liable for the game taken. An exception may exist in the case of nox- 
 ious animals, destructive in their nature. Mr. Justice Blackstone says, 
 if a man starts game in another's private grounds, and kills it there, 
 the property belongs to him in whose ground it is killed, because it was 
 started there, the property arising ratione soli. 2 Black. Comm. 419. 
 But if animals ferae naturae that have been reclaimed, and a qualified 
 property obtained in tliem, escape into the private grounds of another 
 in a way that does not restore them to their natural condition, a differ- 
 ent rule obviously applies. They are then not exposed to become the 
 property of the first occupant. The right of the owner continues, and 
 though he cannot pursue and take them without being liable for a tres- 
 pass, still this difficulty should not operate as an abandonment of the 
 animals to their former liberty. The rights of both parties should be 
 regarded, and reconciled as far as is consistent with a reasonable 
 'protection of each. The cases of Heermance v. Vernoy, 6 Johns. 5, 
 and Blake v. Jerome, 14 Johns. 406, are authorities for saying, if any 
 were wanted, that the inability of the owner of a personal chattel to 
 retake it while on the premises of another, without committing a tres- 
 pass, does not impair his legal interest in the property. It only em- 
 barrasses the use or enjoyment of it. The owner of the soil, therefore, 
 acquiring no right to the property in the bees, the defendant below can- 
 not protect himself by showing it out of the plaintiff' in that way. It 
 still continues in him, and draws after it the possession sufficient to 
 maintain this action against a third person, who invades it by virtue of 
 no other claim than that derived from the law of nature. This case 
 is distinguishable from the cases of Gillet v. Mason, 7 Johns. 16, and 
 Ferguson v. Miller, 1 Cow. 243, 13 Am. Dec. 519. * * * For 
 these reasons I am of opinion that the judgment of the court below 
 should be affirmed. 
 Judgment affirmed.* 
 
 9 A. had in his possession a sea lion identifiable by certain marks. The 
 animal escaped. Two weelis later it was captured by B.. seventy miles away. 
 B. refused to redeliver it to A. Held, A. cannot maintain trover asainst B. 
 Mullett V. Bradley. 24 Misc. Rep. 695, 5.3 N. T. Supp. 7S1 (1S9S). Compare 
 Manning v. Mitcherson, 69 Ga. 447. 47 Am. Kep. 764 (1SS2) ; Bartlett v. Budd, 
 1 Low. 22.3, Fed. Cas. Xo. 1075 (18GS). 
 
 If A., without the license of B.. Ijill or trap wild animals upon the land of 
 B., the animals are the property of B. Blades v. Higgs, 11 H. of L. G21 (1865). 
 Compare Resroth v. Coon, 15 R. I. 35, 23 Atl. 37, 2 Am. St. Rep. 803 (1SS5). 
 
 As to the acquisition of ownership in wrecks, see Constable's Case, 5 Co. 
 106 a (1603) ; Hamilton v. Davis. 5 Burr. 2732 (1771) ; Baker 7. Hoag. 7 N. 
 T. 555. 59 Am. Dec. 431 (1853) ; Murphy v. Dunham (D. C.) 38 Fed. 503 (1SS9). 
 
 The acquisition of ownership in domestic animals which have strayed from 
 their owners is regulated by statute.
 
 150 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 SECTION 2.— ADVERSE POSSESSION 
 
 CHAPIN et al. v. FREELAND. 
 
 (Supreme Judicial Court of Massachusetts, 1S86. 142 Mass. 383, 8 N. E. 128, 
 
 56 Am. Rep. 701.) 
 
 Holmes, J.^° This is an action of replevin for two counters. There 
 was evidence that they belonged to the defendant in 1867, when one 
 Warner built a shop, put the counters in, nailed them to the floor, 
 and afterwards, on January 2, 1871, mortgaged the premises to one 
 De Witt. In April, 1879, De Witt's executors foreclosed, and sold 
 the premises to the plaintiffs. The defendant took the counters from 
 the plaintiff's' possession in 1881. The court found for the defendant. 
 Considering the bill of exceptions as a whole, we do not understand 
 this general finding to have gone on the ground either of a special 
 finding that the counters remained chattels for all purposes, and were 
 not covered by the mortgage. Carpenter v. Walker, 140 Mass. 416, 
 5 N. E. 160, or that there was a fraudulent concealment of the cause 
 of action, within the Gen. Sts. c. 155, § 12 (Pub. Sts. c. 197, § 14). But 
 we understand the court to have ruled or assumed that, although the 
 statute should have run in favor of Warner or De Witt before the 
 transfer to the plaintiffs, that circumstance would not prevent the de- 
 fendant from taking possession if she could, or entitle the plaintiffs to 
 sue her for doing so, if she was the original owner. 
 
 A majority of the court are of opinion that this is not the law, and 
 that there must be a new trial. We do not forget all that has been 
 said and decided as to the statute of limitations going only to the 
 remedy, especially in cases of contract. W^e do not even find it nec- 
 essary to express an opinion as to what would be the effect of a stat- 
 ute like ours, if a chattel, after having been held adversely for six 
 years, were taken into another jurisdiction by the originally wrongful 
 possessor, although all the decisions and dicta, so far as we know, agree 
 that the title would be deemed to have passed. Cockfield v. Hudson, 
 1 Brev. (S. C.) 311; Howell v. Hair, IS Ala. 194; Jones v. Jones, 
 18 Ala. 248, 253 ; Clark v. Slaughter, 34 Miss. 65 ; Winburn v. Coch- 
 ran, 9 Tex. 123; Preston v. Briggs, 16 Vt. 124, 130; Baker v. Chase, 
 55 N. H. 61, 63; Campbell v. Holt, 115 U. S. 620, 623, 6 Sup. Ct. 
 209, 29 L. Ed. 483. What we do decide is that, where the statute would 
 be a bar to a direct proceeding by the original owner, it cannot be de- 
 feated by indirection within the jurisdiction where it is law. If he 
 
 10 The statement of facts and part of Justice Field's dissenting opinion 
 are omitted.
 
 Sec. 2) ADVERSE POSSESSION 151 
 
 cannot reple\'y, he cannot take with his own hand. A title which will 
 not sustain a declaration will not sustain a plea. 
 
 It is true that the statute, in terms, only limits the bringing of an 
 action. But whatever importance may be attached to that ancient form 
 of words, the principle we lay down seems to us a necessary con- 
 sequence of the enactment. And a similar doctrine has been applied to 
 the statute of frauds. Carrington v. Roots, 2 M. & W. 248. See King 
 V. Welcome, 5 Gray, 41. 
 
 As we understand the statutory period to have run before the plain- 
 tiffs acquired the counters, we do not deem it necessary to consider 
 what would be the law if the plaintiffs had purchased or taken the 
 counters, within six years of the original conversion, from the person 
 who first converted them, and the defendant had taken them after the 
 action against the first taker had been barred, but within six years of 
 the plaintiff's' acquiring them. We regard a purchaser from one against 
 whom the remedy is already barred as entitled to stand in as good a 
 position as his vendor. Whether a second wrongful taker would stand 
 differently, because not privy in title, we need not discuss. See Leon- 
 ard V. Leonard, 7 Allen, 277; Sawyer v. Kendall, 10 Cush. 241 ; Nor- 
 cross V. James, 140 Mass. 188, 189, 2 N. E. 946; Co. Lit. 114 b, 121 b. 
 
 Exceptions sustained.^' 
 
 Field, J. I am unable to assent to the opinion of the court. * * * 
 
 As the plaintiff's first took possession of the counters as their own 
 some time after the foreclosure of the mortgage in 1879, the statute 
 of limitations would have been no defence to them if the defendant 
 had brought trover against them in 1881, when she took possession 
 of the counters; their only defence would have been title in themselves 
 derived from their vendors, and this title rests ultimately upon the 
 possession of Warner. The second request, as applicable to the case, 
 is in effect that, if Warner took the counters tortiously, and kept 
 them attached to his building more than six years, the defendant lost 
 her right of property in the counters. It is not stated in the request, 
 that Warner's possession, to effect a change of title, must have been 
 either known to the defendant or open and notorious, and must have 
 been under a claim of right; and that his possession was of this 
 character is not necessarily to be inferred from the evidence. The 
 eft'ect of the statute of limitations of real actions upon the acquisi- 
 tion of title to real property is carefully discussed in Langdell on Eq. 
 PI. § 119 et seq. Our statute of limitations of real actions provides 
 that "no person shall commence an action for the recovery of lands. 
 
 "Ace: Howell v. Hair, 15 Ala. 194 (1S49) : Hicks v. Fluit, 21 Ark. 4G3 
 (1S60) ; Smart v. Baugh, 3 J. J. Marsh. (Ky.) 303 (1830) ; Clark v. Slaughter, 
 34 Miss. 65 (1S57) ; Winburn v. Cochran, 9 Tex. IL'3 (1S52). 
 
 Contra, Miller v. Dell, [1891] 1 Q. B. 468; Goodwin v. Morris, 9 Or. 322 
 (ISSl). 
 
 See Kirkman v. Philips's Heirs, 54 Tenn. (7 Heisk.) 222 (1872).
 
 152 
 
 ACQUISITION OF OWNERSHIP 
 
 (Ch.4 
 
 nor make an entry thereon, unless within twenty years after the right 
 to bring such action or to make such entry first accrued, or within 
 twenty years after he, or those from, by, or under whom he claims, 
 have been seised or possessed of the premises, except as is herein- 
 after provided." Pub. Sts. c. 196, § 1. * * * It follows that, with 
 certain exceptions not necessary to be noticed, after a disseisin con- 
 tinued for twenty years, or in other words after twenty years from 
 the time when the right to bring a writ of entry or to enter upon the 
 land first accrued, the former owner of a freehold can neither main- 
 tain any action to recover possession, nor enter upon the land, nor, 
 without an entry, convey it; and as all remedy, either by action or 
 by taking possession, is gone, his title is held to have been lost. The 
 effect of the statute has been to extinguish the right, as well as to 
 bar the remedy, and this is the construction given to the English St. 
 of 3 & 4 Wm. IV, c. 27. Our statute of limitations of personal ac- 
 tions was taken from the St. of 21 Jac. I, c. 16, and this statute has 
 been held not to extinguish the right, but only to bar the remedy. Ow- 
 en V. De Beauvoir, 16 M. & W. 547, 5 Exch. 166; Dawkins v. Penrhyn, 
 6 -Ch. D. 318, 4 App. Cas. 51; Dundee Harbour v. Dougall, 1 ]\Iacq. 
 317, 321 ; In re Alison, 11 Ch. D. 284. 
 
 Section 1 of the Pub. Sts. c. 197, declares : "The following actions 
 shall be commenced within six years next after the cause of action ac- 
 crues, and not afterwards, * * * actions of replevin, and all other 
 actions for taking, detaining, or injuring goods or chattels." There is 
 no statute, and no law, prohibiting the owner of personal chattels from 
 peaceably taking possession of them wherever he may find them, and the 
 technical law of seisin and disseisin was never applied to personal chat- 
 tels. It is established in this commonwealth that a debt barred by the 
 statute of limitations of the place of the contract is not extinguished. 
 The statute only bars the remedy by action within the jurisdiction 
 where the defendant has resided during the statutory period. * * * 
 
 There is nothing in the statute which suggests any distinction be- 
 tween actions to recover chattels and actions to recover debts, and it 
 does not purport to be a statute relating to the acquisition of title to 
 property, but a statute prescribing the time within which certain ac- 
 tions shall be brought. There is not a trace to be found in our re- 
 ports of the doctrine that possession of chattels for the statutory period 
 of limitations for personal actions creates a title, and I can find no such 
 doctrine in the English reports, or in the reports of a majority of the 
 courts of the States of this country. * * * 
 
 These cases show that the statute of limitations of personal actions 
 is construed with reference to the particular action brought, and in- 
 dicate that there is no change of title in property, although the time 
 for bringing an action of trover has expired. I think that the subject 
 of the acquisition of title to personal chattels by adverse possession can 
 best be dealt with by the Legislature, if it is thought necessary to es-
 
 Sec. 2) ADVERSE POSSESSION 153 
 
 tablish such a rule of law ; and that it was not the intention of our 
 statute of ILmitations of personal actions to extinguish rights or titles. 
 
 There is much force in the suggestion, that, if the defendant could 
 not have recovered the counters by action at the time she took posses- 
 sion, she ouglit not to be permitted to take them from the possession 
 of the plaintiffs by force or fraud ; but it is not found in the case that 
 she took them by force or fraud, and the request does not assume this ; 
 and I think that the defendant, at the time she took possession, could 
 have recovered these counters of the plaintiff's by action, as the statute 
 of limitations did not begin to run in favor of the plaintiffs until 
 they took possession, which was at least as late as 1879; and it is not 
 found that the plaintiff's' vendors had any title which they could 
 convey to the plaintiffs. I think the second and third requests ought 
 not to have been given. 
 
 BEADLE V. HUNTER & GARRETT. 
 (Court of Appeals of South Carolina, 1S48. 3 Strob. 331.) 
 
 [One William Dollar in 1841 conveyed by deed certain slaves to 
 the plaintiff. Dollar kept possession and shortly thereafter denied 
 the plaintiff''s title and claimed ownership. In 1843 Dollar sold them 
 to the defendants. In 1846, the plaintiff' brought trover.] 
 
 The jury were told that if Dollar had been the defendant, it might 
 be, that notwithstanding his acknowledgment of the 20th of Sept., 
 1841, he would set up the statute of limitations. For he certainly 
 asserted an adverse claim to the property, and that too, within the 
 knowledge of the plaintiff, very soon afterwards, certainly before the 
 end o'f 1841. From that time, four years would have expired before 
 suit brought. But he was not the defendant, and the question was, 
 whether the statute would protect the present defendants. They got 
 possession in 1843 — the bar of the statute, four years, was not com- 
 plete when the suit was brought, February, 1846. They could not 
 connect their possession with that of Dollar, so that by linking one 
 with the other, the statutory period could be made out. 
 
 [Verdict was for plaintiff' and defendant moved for a new trial.] 
 
 O'Neall, J. This Court is satisfied with the ruling of the Judge 
 below, on all the points made in the case, and generally for the reason 
 which he has given. 
 
 The only matter on which it seems to be necessary to expand his 
 views, is in reference to the statute of limitations. 
 
 The case of King v. Smith, Rice, 10, is full to the point, that 
 possessions short of the statutory period cannot be linked together, 
 so as to make out time enough to complete the bar of the statute, 
 in an action for the recovery of land. I know no reason why there
 
 154 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 should be a difference in relation to personalty. It is true, a difference 
 between personal and real estate has been recognised, as to the pro- 
 tection which the infancy of some of the parties gives to the others. 
 But I regret that such a distinction was ever made. True policy re- 
 quires that there should be no difference between real and personal 
 estate. This is especially the case in this State, where personal prop- 
 erty is often so much more valuable than land. Indeed every day's 
 experience satisfies me, that land and slaves should be placed upon the 
 same footing, in every respect. 
 
 But our statute places the matter, when its words are attended to, 
 out of dispute. The action of trover is to be brought "within four 
 years next after the cause of such action, or suit, and not after." The 
 plea is "actio non accrevit infra quatuor annos." When did the plain- 
 tiff have cause of action against the defendants? Certainly not until he 
 demanded from them the slaves, or they had used or sold them. If 
 he had sued them, and relied upon the conversion by Dollar, in the 
 sale of them, he would have been nonsuited. For Dollar's conver- 
 sion would not have been their's. This is decisive of the question, 
 when did the statute begin to run? Again, suppose Dollar had con- 
 verted the slaves one year before he sold to defendant, that gave him no 
 title, and his conveyance could not confer any title to the defendants. 
 They stood in relation to the plaintiff', and his property thus coming 
 into their possession, as mere tort feasors, without title. There is 
 therefore no possible mode by which they can be benefited by Dollar's 
 possession, after he had informed the plaintiff that he claimed against, 
 and not under him. 
 
 It is possible, and even probable, if Dollar had retained possession 
 four years after such notice, that the statute would have protected 
 him ; and then, if he had sold to the defendants, his possession would 
 have protected them. For then it would have been title — a title con- 
 ferred by law from the lapse of time ; and to have the benefit of it, 
 it would not have been necessary for the defendants to plead the 
 statute. It could have been given in evidence under the general issue. 
 
 The motion for a new trial is dismissed.^^ 
 
 12 Ace. Miller v. Dell, [1891] 1 Q. B. 468.
 
 Sec. 2) ADVERSE POSSESSION 155 
 
 GATLIN V. VAUT et al. 
 
 (United States Court of Appeals for the Indian Territory, 1906. 6 Ind. T. 
 
 254, 91 S. W. 38.) 
 
 Action by Fannie Gatlin against A. Vaut and another. From a 
 judgment for defendants, plaintiff appeals. Reversed. 
 
 This is an action of replevin, instituted on September 19, 1904, by 
 the appellant, Fannie Gatlin, against the appellees for the recovery of 
 two mules. The amended complaint is as follows, omitting formal 
 parts: "That on the first day of March, 1901, plaintiff was the owner 
 and in the possession of said mules and residing near Foster, in the 
 Chickasaw Nation; that on said date said mules were stolen out of 
 the possession of said plaintiff and driven to the state of Texas, by 
 way of Ardmore, Indian Territory ; that plaintiff at once advertised 
 by postal card and public notice the fact that said mules had been 
 stolen. * * * Plaintiff further states that in the month of No- 
 vember, 1902, the defendants, A. Vaut, and Clarence Vaut, came into 
 the possession of the said span of mules at Ft. Worth, in the state of 
 Texas, but from whom the plaintiff is unable to state." A demurrer 
 was interposed to the complaint, on the ground that the complaint 
 .shows that the plaintiff has been out of possession of the property 
 for more than three years, and does not allege any fraud or conceal- 
 ment on behalf of the defendants, and especially pleading the statute 
 of limitations. At the hearing of the demurrer, the plaintiff' admitted 
 that there had boen no fraud or improper conduct on the part of the 
 defendants, and the court thereupon sustained the demurrer and en- 
 tered judgment for the defendants. 
 
 Clayton, J.'^ (after stating the facts). The only question presented 
 here is, did the court err in sustaining the demurrer? The demurrer 
 was sustained, on the ground that the complaint affirmatively shows 
 that the plaintiff had been out of possession of the property for more 
 than three years. Actions for the recovery of personal property must 
 be brought within three years. * * * As before stated, replevin 
 must be brought within three years. But section 4502, Mansf. Dig. 
 (Ind. Ter. Ann. St. 1899, § 2969), provides : "If any person by leav- 
 ing the county, absconding or concealing himself, or any other im- 
 proper act of his own, prevent the commencement of any action in this 
 act specified, such action may be commenced within the times respec- 
 tively limited after the commencement of such action shall have ceased 
 to be so prevented." 
 
 The complaint not only does not allege the nonexistence of any 
 ground for avoiding the bar, but avers that the property was stolen 
 and removed from the jurisdiction of the court, which fact, if estab- 
 
 13 I'art of tlie opinion is omitted.
 
 156 ACQUISITION OF OWNERSHIP (CIl. 4 
 
 lished, would avoid the bar during such time as the property was un- 
 lawfully concealed. Wood, Limitations, § 249. The reported cases 
 involving the question here raised are few; and none, so far as we 
 have been able to find, are exactly in point. In all of them where the 
 statute has been held to bar a recovery, the defendant (or tlie defend- 
 ant and his grantors) was shown to have been in the peaceable, open, 
 and notorious possession of the property for the time named by the 
 statute. In none of them was it held that tlie thief's possession, 
 especially where he secreted the property, could be tacked to that of 
 the defendant in order to complete the bar. We do not mean to sug- 
 gest that a thief could not, in any event, plead the statute in replevin. 
 If he had held the property openly and notoriously in the community 
 where the larceny occurred, he could undoubtedly do so, not so much 
 because he was entitled to the protection afforded by the statute, but 
 because of the laches of the plaintiff. But where he conceals the 
 property, and removes both it and his person from the jurisdiction 
 of the court, and so long as such acts continue, as against him the 
 running of the statute is certainly suspended. * * * 
 
 We therefore hold that the statute of limitations as to personal prop- 
 erty in the hands of a thief who has removed it from the vicinity of 
 the owner or secreted it from him does not begin to run until he re- 
 turns the property to that vicinity, or openly and notoriously holds 
 it, so that the owner may have a reasonable opportunity of knowing 
 its whereabouts and of asserting his title. And when he does this, 
 the statute begins to run, although tlie proof may show it to have been 
 stolen property, not on the theory that the thief is to be protected, 
 but because of the laches of the owner in not asserting his title for 
 so long a period as the statute gives him. A grantor can convey no 
 better title than he has himself ; and if the statute has not begun to 
 run, his grantee can claim nothing by virtue of possession. If the 
 thief, after having concealed the property, has done nothing in rela- 
 tion to it to start the statute in his favor, his grantee cannot tack the 
 thief's possession, or any part of it, to fill out his unexpired time. It 
 is otherwise if the statute began to run while the property was in the 
 hands of the thief. Then the purchaser may tack to his unexpired 
 time, the time the property was in the thief's possession after the 
 statute began to run.^* If the statute did not begin to run while the 
 property was in the possession of the thief, and if it were bought by 
 an innocent purchaser, it commenced at the time the purchaser took 
 possession by virtue of the sale. And if the buyer be not an innocent 
 purchaser, if he knew it to be stolen property, he was but the receiver 
 of stolen property, and the statute would not begin to run as to him 
 
 14 Ace: Hicks v. Fluit, 21 Ark. 4C3 (1S60) ; Dragoo v. Cooper, 9 Bush (Ky.) 
 629 (1873). Compare Girault v. Zuntz, 15 La. Ann. 6S4 (1860). See, also. 
 Bohannon v. Chapman, 17 Ala. 696 (1850) ; Kewcombe v. Leavitt, 22 Ala. 631 
 (1853).
 
 Sec. 2) ADVERSE POSSESSION 157 
 
 until he should have done with it what a thief is required to do in or- 
 der to bring it within the operation of the statute. 
 
 The deiTiurrer admits that the property was stolen ; that but for the 
 statute the title and right of possession is in the plaintiff; that the de- 
 fendant has not been in possession of it himself long enough to satisfy 
 the provision of the statute. Whether he bought from the thief or 
 some other person, and if from the thief whetlier or not he had done 
 the things necessary to start the statute, does not appear, and there- 
 fore, the complaint does not allege a case within the statute ; and it 
 is the law that the statute of limitations is defensive, and when from 
 the complaint it does not appear that the suit is barred, the defendant 
 must plead it. * * * 
 
 And therefore the demurrer should have been overruled, and the 
 defendants required to file answer, or judgment entered for plaintiff. 
 
 For the error above specified, the judgment of the court below is 
 reversed, and the cause remanded, with directions to overrule the de- 
 murrer, and proceed in accordance with this opinion. 
 
 BRYAN et ux. v. WEEMS. 
 (Supreme Court of Alabama, 1856. 29 Ala. 423, 65 Am. Dee. 407.) 
 
 [In 1844 certain slaves belonging to a trust estate of which the 
 plaintiff was a beneficiary were taken by the defendant as his own. In 
 1850, but after the expiration of the six year statute of limitations, the 
 plaintiff' brought this action in equity to recover the slaves and their 
 offspring born during the six years. The Chancellor dismissed the 
 plaintiff's bill. Appeal.] 
 
 Stone, J.^^ * * '•' It will be seen that we have assimilated the 
 complainant's right to relief in this case to the trustee's right to main- 
 tain detinue. If, at the time the bill in this case was filed, Green, the 
 trustee, had instituted his action of detinue or trover for the slaves, 
 against Sledge, the executor, the six years statute, if pleaded, would 
 have barred either action, not only as to the slaves bequeathed by the 
 will, but also as to the offspring of the females, born after the adverse 
 holding. Morris v. Peregoy, 7 Grat. (Va.) 373; White v. Martin, 1 
 Port. 215, 26 Am. Dec. 365. 
 
 \\'hen defendant's right to property is establislicd by a successful in- 
 terposition of the plea of the statute of limitations, it relates back to 
 the time of the first taking, and carries with it all the intermediate prof- 
 its, and the increase of the females while in the adverse possession of 
 such defendant, unless, as to such increase, some act be done before 
 the bar against recovery of the mother is perfected, which prevents the 
 
 15 Parts of the opinions of Rice, C. J., and Stone, J., are omitted.
 
 158 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 operation of this rule. Partus sequitur ventrem. To hold otherwise, 
 would lead to strange results in the case of female slaves. An adverse 
 holding of six years would vest the title in the holder. During the 
 time she was adversely held, she may, at intervals, have given birth 
 to children ; she and the children all the time remaining together, out 
 of the possession of the claimant. She may have given birth to an in- 
 fant within a very short time before the completion of the six years. 
 According to the argument, all claim to the mother would be forfeited, 
 while to bar the right to recover her child would require another pe- 
 riod of near six years. 
 
 Another illustration may serve to present this argument in a stronger 
 light. Suppose the property adversely held consist of domestic ani- 
 mals, who multiply at an early age, and rapidly. Before the six years 
 expire, the females, in all probability, will have increased abundantly ; 
 and perhaps at no point of coming time, will there be a female that 
 has reached the age of six years, without yielding her increase. If 
 the offspring do not follow the mother as an incident, but each suc- 
 cessive scion must itself be adversely held for the term of six years be- 
 fore the statute runs, unless, before its birth, the parent stock had ex- 
 isted and been adversely held for a like period, the entire interest of 
 the former owner would not probably be extinguished in any conceiva- 
 ble number of years. This point was not raised in argument ; but we 
 have felt it our duty to notice it, as the court is not unanimous. * * * 
 
 The decree of the chancellor is affirmed. 
 
 Rice, C. J. * * * The legal effect of that part of that statute, 
 is not, in my opinion, what my brethren have pronounced it to be in 
 the opinion just delivered. They hold, that it bars the complainants 
 as to slaves who were not six years old when this suit was commenced, 
 and who had not been held adversely for six years, and who were born 
 of a mother who had not been held adversely for six years at the time 
 of their birth. I cannot assent to that position. 
 
 Where slavery exists, the children of a female slave belong to him 
 who, at the time of their birth, was the general and absolute owner 
 of their mother. The children born of her whilst she is in the pos- 
 session of an adverse holder, but before the adverse holding has con- 
 tinued six years, are as completely the property of the person who, 
 at the time of their birth, is the absolute owner of their mother, as 
 if they had been born whilst she was in the actual possession of that 
 absolute owner. The children born of her after the adverse holder 
 has, by an adverse possession of six years, acquired the tide to her, 
 belong to the adverse holder. The statute of limitations has no ef- 
 fect whatever upon the title of the true owner to the mother, until 
 she has been in the adverse possession of another for the full period 
 of six years. So far as that statute is concerned her children, as soon 
 as they are born, are, in legal contemplation, as separate and distinct 
 from her, as if in fact they were not in any wise related to her. Each
 
 Sec. 2) ADVERSE POSSESSION 159 
 
 child, as soon as bom, is a personal chattel, separate and distinct from 
 its mother, and from every other child. The detention of each child 
 born before the mother has been adversely held for six years, is a new, 
 separate, and distinct cause of action, which the true owner may en- 
 force in a separate and distinct suit. W'ittick v. Traun, 27 Ala. 562. 
 62 Am. Dec. 778. The cause of action for the detention of a child 
 could not possibly accrue before it was born. The statute of limita- 
 tions does not commence running against a cause of action before it 
 accrues. One separate and distinct cause of action is not barr-ed by 
 that statute, merely because another, which accrued at a different time, 
 is barred. That statute does not give to the adverse possessor title to 
 a slave which has neither been held adversely for six years, nor been 
 born of a mother who had been held adversely for six years before 
 its birth. In other words, to give title to a slave to an adverse pos- 
 sessor, under the statute of limitations, it is at least essential that the 
 slave should have been held adversely for six years, or should have 
 been born of one who had been held adversely for six years prior to 
 its birth. If a child is born before its mother has been held adversely 
 for six years, it is legally impossible that the true owner can be barred 
 as to the child, by the mere operation of the statute of limitations of 
 six years, before the child is six years old. According to the opinion 
 of my brethren, that statute may bar the owner, as to the child, be- 
 fore the child is three days old ! They work out this strange result, 
 by what seems to me a very plain misapplication of the doctrine of 
 relation, and by overlooking the effect of the undeniable proposition, 
 that the detention of each child born before the mother has been held 
 adversely for six years, is in itself a cause of action, new, distinct, 
 and different, from that which arose from the detention of the mother. 
 Ivey V. Owens, 28 Ala. 641. 
 
 One illustration will be sufficient to demonstrate the unfitness of the 
 application of the doctrine of relation to any case like the present: 
 Suppose A. has held adversely, for four years, the female slave of B. 
 At the end of the four years, and whilst adversely held, she gives birth 
 to a child, \\hen the child is one year old, B., the real owner of the 
 mother and child, finds the child in the highway, takes it peaceably 
 into his possession, and keeps it until after the six years adverse pos- 
 session of its mother has run out, and the title to her has thereby be- 
 come vested in the adverse possessor. The adverse possessor, as soon 
 as he has thus acquired title to the mother, brings detinue for the child 
 against the owner who had taken the child in the highway as afore- 
 said ! He invokes the doctrine of relation, and calls upon the court to 
 apply the doctrine, and give him a judgment for the child. Would any 
 court, upon such facts, think of applying the doctrine of relation, or 
 giving to the adverse possessor a judgment for the child? If my breth- 
 ren are right in their opinion, the adverse possessor would recover the 
 child, upon the doctrine of relation. His title to the mother being
 
 160 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 clear, by adverse possession of six years, and the child having been 
 born whilst his adverse possession was continuing, although it had con- 
 tinued only four years at the birth of the child, — the law, as laid down 
 by my brethren, would give him the child, by making his title to the 
 mother relate back to the commencement of the adverse possession. 
 
 Without saying anything as to other parts of the opinion of my 
 brethren, I here record my dissent from the reasoning and conclusions 
 attained by them.^" 
 
 SECTION 3.— ACCESSION 
 
 EATON V. LANGLEY. 
 (Supreme Court of Arkansas, 1898. 65 Ark. 148, 47 S. W. 123, 42 L. R. A. 474.) 
 
 [Plaintiff alleged in his complaint that he was the owner of 5,000 
 ties of the value of $750, and that they were wrongfully in tlie posses- 
 sion of the defendant. The plaintiff asked for the possession thereof 
 or if that could not be obtained, for their value. 
 
 The court found as facts tliat the timber from which the ties were 
 made was cut by the defendant from land belonging to the plaintiff. 
 The defendant acted in good faith but without authority. At the be- 
 ginning of tliis action the defendant had 3,500 such ties in his pos- 
 session: the ties were worth 12% cents each; the timber from which 
 they were made was worth while standing, 2 cents per tie. 
 
 Upon these findings of facts the court rendered a judgment as fol- 
 lows: "It is therefore ordered, considered and adjudged by the court 
 that the plaintiff have and recover of and from the defendant the sum 
 of seventy dollars and all costs of this cause, and that, further, in 
 case the sums of money above mentioned, together with the said costs, 
 are not paid within ten days from this date, the plaintiff shall have 
 and recover of the defendant the possession of the 3,500 cross-ties." 
 
 Plaintiff appealed.] 
 
 Battle, J." * * * As a general rule, an owner cannot be de- 
 prived of his property without his consent or operation of law. "If 
 unauthorized persons have bestowed expense or labor upon it, that 
 fact cannot constitute a bar to his reclaiming it, so long as identifica- 
 tion is not impracticable. But there must be a limit to this right." 
 
 10 A. brought trover ag.iinst B. for the conversion of a female slave. Hold, 
 A. recovers the value both of the slave and of olfspriug born subsequent to 
 the conversion. McVaughters v. Elder, 2 Brev. (S. C.) 307 (1809). 
 
 1' Part of the opinion of Battle, J., and the dissenting opinion of Bunn, C. 
 J., are omitted.
 
 Sec. 3) ACCESSION 101 
 
 Mr. Justice Blackstone lays down the rule very broadly that if a thing 
 is changed into a different species, as by making wine out of another's 
 grapes, oil from his olives, or bread from his wheat, the product be- 
 longs to the new operator, who is only to make satisfaction to the for- 
 mer proprietor for the materials converted. 2 Bl. Comm. 404. * * * 
 The authorities generally agree in holding that when a party has 
 taken the property of another in good faith, and, in reliance upon a 
 supposed right, without intention to commit wrong, converted it into 
 another form, and increased its value by the expenditure of money 
 and labor, the owner is precluded from following and reclaiming the 
 property in its new form, if the transformation it has undergone has 
 converted it into an article substantially different. But they have not 
 agreed upon any rule by which it can in all cases be ascertained wheth- 
 er this transformation has or has not taken place. "If grain be taken 
 and made into malt, or money taken and made into a cup, or timber 
 taken and made into a house, it is held in the old English law that the 
 property is so altered as to change the title. * * * But cloth made 
 into garments, leather into shoes, trees hewn or sawed into timber, 
 and iron made into bars, it is said, may be reclaimed by their owner 
 in their new and original shape. * * * Some of the cases place 
 the right of the former owner to take the thing in its altered condition 
 upon the question whether its identity could be made out by the 
 senses." Wetherbee v. Green, 22 Mich. 318, 319, 7 Am. Rep. 653. 
 But the supreme court of Michigan (Mr. Justice Cooley delivering the 
 opinion of the court) said that the test of the senses is unsatisfactory, 
 and that "no test which satisfies the reason of the law can be applied 
 in the adjustment of questions of title to chattels by accession, unless 
 it keeps in view the circumstances of relative values." It said : It 
 may often happen that no difficulty will be experienced in determining 
 the identity of a piece of timber which has been taken and built into a 
 house ; but no one disputes that the right of the original owner is gone 
 in such a case. A particular piece of wood might perhaps be traced 
 without trouble into a church organ, or other equally valuable article ; 
 but no one would defend a rule of law which, because the identity 
 could be determined by the senses, would permit the owner of the 
 wood to appropriate a musical instrument a hundred or a thousand 
 times the value of his original materials, when the party who, under 
 like circumstance, has doubled the value of another man's corn by 
 converting it into malt, is permitted to retain it, and held liable for 
 the original value only. Such distinctions in the law would be with- 
 out reason, and could not be tolerated. When the right to the im- 
 proved articles is the point in issue, the question how much the prop- 
 erty or labor of each has contributed to make it what it is must al- 
 ways be one of first importance. The owner of a beam built into the 
 house of another loses his property in it, because the beam is insignif- 
 icant in value or importance as compared to that to which it has be- 
 Big.Peus.Phop. — 11
 
 1G2 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 come attached, and the musical instrument belongs to the maker rather 
 than to the men whose timber was used in making it, not because the 
 timber cannot be identified, but because, in bringing it to its present 
 condition, the value of the labor has swallowed up and rendered in- 
 significant the value of the original materials. The labor, in the case 
 of the musical instrument, is just as much the principal thing as the 
 house is in the other case instanced; the timber appropriated is in 
 each case comparatively unimportant." Wetherbee v. Green, supra, 
 22 Mich. 319, 320, 7 Am. Rep. 653. 
 
 Wetherbee v. Green, was an action of replevin by the appellee against 
 the appellant to recover a quantity of hoops made out of the timber of 
 the former by the latter in good faith, under what he supposed to be 
 good authority. The timber in the tree was worth only ^25, and the 
 hoops made out of it were worth $700. The court held that the owner 
 could not recover the hoops,'* but was entitled to the damages sus- 
 tained by reason of the unintentional trespass. This decision was 
 based upon the reason that the hoops were made in good faith, and 
 upon the fact that the value of the timber, as compared to the value 
 of the labor expended in making them, was insignificant. * * * 
 
 The value of the cross-ties in controversy was twelve and a half 
 cents a tie. The value of each in the tree was two cents. The value 
 of the labor expended upon them is not shown, but assuming it to 
 be the increased value of ten and a half cents a tie, the difference be- 
 tween it and the value of the original material is not so great as to 
 make the value of the latter, as compared with that of the former, in- 
 significant, and to make the appropriation of the cross-ties by the 
 original owner to his own use, without compensation, appear, under 
 the circumstances, gross injustice at the first blush. The disparity is 
 not so great as it was in Wetherbee v. Green, supra, in which trees of 
 the value of $25 were cut and taken by one from the land of another 
 and converted into hoops of the value of $700, which was twenty- 
 eight times the value of the trees, while the cross-ties in this case wei^e 
 about six times ; and yet the supreme court of Michigan, in Isle Roy- 
 ale Mining Co. v. Hertin, 37 Mich. 332, 26 Am. Rep. 520, said that 
 "perhaps no case has gone further than Wetherbee v. Green." 
 
 In considering the justice of permitting the appellant to appropri- 
 ate the cross-ties to his own use, the invasion of his rights and the in- 
 jury done to him by appellee should not be overlooked. The trees be- 
 longed to him. They were standing upon his land, and he had the 
 right to hold them as they were. No one had the right to take them 
 
 18 Ace.: Lewis v. Coiirtrigbt, 77 Iowa, 100, 41 N. W. 615 (1SS9), ratio, 30 
 to 1 ; Baker v. Meisch, 29 Neb. 227, 45 N. W. 085 (1S90), ratio high, liut not 
 given exactlv ; Werner Stave Co. v. Pickering, 55 Tex. Civ. App. 632, 119 S. 
 W. 333 (1909), ratio 3 to 1. 
 
 See I^ampton's Ex'rs v. Preston's Ex'rs, 1 J. J. Marsh. (Ky.) 454, 19 Am. 
 Dec. 104 (1S29) ; Carpenter v. Lingenfelter, 42 Neb. 728, 60 N. W. 1022, 32 L. 
 R. A. 422 (1894) ; State v. Goll, 32 N. J. Law, 285 (1867).
 
 Sec. 3) ACCESSION 163 
 
 from him, convert them into ties, and force him to accept their vakie 
 at the time of the conversion. He may have preferred to have them 
 to stand ; and, if left standing for a few years, they might yield him 
 great profit, and the enhancement of their value by the labor of ap- 
 pellee might be a poor compensation for the wrong done. But wheth- 
 er he wished to sell or not, it would be gross injustice to permit appel- 
 lee to force him to sell. He is entitled to the protection of the laws. 
 Deny to him the right to the cross-ties, and force him to accept the 
 value of his timber when appropriated by a trespasser, as it was at 
 the time of tlie conversion, and he has no adequate protection. The 
 injury inflicted by the trespasser, would be borne in part by the inno- 
 cent owner, and the guilty would escape. "Such a doctrine," as said 
 by Chief Justice Cooley, "offers a premium to heedlessness and blun- 
 ders, and a temptation by false evidence to give an intentional tres- 
 pass the appearance of an innocent mistake." 
 
 Assuming the trees to be the property of appellant, and taking into 
 consideration the great wrong committed by appellee in cutting them, 
 the deprivation to the appellant of the right to use the same as it might 
 please him, the probable loss occasioned thereby, the fact that the 
 identification of the original material was unaffected by the labor ex- 
 pended, the encouragement that would be afforded to trespassers by 
 allowing them to enjoy the fruits of their labor upon a mere show- 
 ing of mistake, the protection a contrary policy would afford to the 
 owner of standing trees against heedlessness, carelessness, pretend- 
 ed mistakes, and trespasses, and the importance of pursuing such 
 course to secure such protection, — and comparing the injury inflicted 
 upon the appellant by the appellee, and the injustice of taking from 
 the former his property against his will, with the hardship the latter 
 may suffer by the loss of his labor, we think it would be lawful and 
 right to allow appellant to recover the cross-ties, and to impose upon 
 the appellee the consequences of his own carelessness. 
 
 But appellant has not obtained possession of the cross-ties. In the 
 event he cannot do so, he is entitled to the value of the property he 
 has lost. How is this value to be estimated? This question is not 
 beset with the difficulties which attend the right of recaption. When 
 the appellant sued for the possession of the cross-ties, he was entitled 
 to their possession, unless he had lost his property by the wrongful- 
 act of another. If entitled to retake it in its new form, it must be 
 taken as he found it, though enhanced in value by the labor of appel- 
 lee. The ties cannot be restored to their original form. The appellee 
 cannot force the appellant to become a debtor to him' for the value of 
 his labor, nor demand compensation for his voluntary additions to 
 the value of the trees converted into ties, without the assent of the ap- 
 pellant. He cannot impose any conditions upwn the right to retake 
 them. The question, therefore, being whether the appellee shall lose 
 his labor or the appellant lose the right to take his property, the law
 
 KU ACQUISITION OF OWNEUSniP (Cll. 4 
 
 decides in favor of the latter. But, in determining the compensation 
 the appellant shall receive as the value of his property which has been 
 wrongfully converted, the difficulty does not arise. The value of the 
 property of the owner, which has been converted, can be ascertained 
 and fixed without including therein the labor expended upon it. Hence 
 the law protects the unintentional trespasser in such cases by limiting 
 the right of the owner to recover. * * * 
 
 According to this opinion, two errors appear in the record in this ac- 
 tion. One is in the form of the judgment. If the appellant was the 
 owner of the property in controversy, he was entitled to a judgment 
 for its possession, and for its value, according to the rule before stated, 
 "in case a delivery can not be had." Sand. & H. Dig. § 6398. On the 
 contrary, the judgment rendered is for the value of the property de- 
 termined by the court, and then for its possession in the event the 
 value is not paid. * * * 
 
 For these errors the judgment of the circuit court is reversed, and 
 the cause is remanded for a new trial. 
 
 BuNN, C. J., dissented. 
 
 HERDIC V. YOUNG. 
 (Supreme Court of Penns.vlvania, 1SG7. 55 Pa. 176, 0.3 .\m. Deo. T.^O.) 
 
 [Replevin for logs cut by the defendant in good faith but wrong- 
 fully upon the land of the plaintiff, floated down by the defendant to 
 the place where they were replevied. The defendant retained posses- 
 sion of the logs giving a bond to produce the logs or pay their value in 
 the event that judgment was rendered for the plaintiff.] 
 
 AgnEW, J.^° * * * The primary purpose of replevin is to re- 
 cover the property in specie ; not its value. 
 
 A change in its form will not prevent this, so long as its identity can 
 be established. Snyder v. Vaux, 2 Rawle, 425, 21 Am. Dec. 466, de- 
 cides tliat the converting of timber trees, cut by the defendant, into 
 posts and rails, is not such an alteration as to prevent a recovery in 
 replevin. * * * It is in the power of the defendant in replevin to 
 relinquish that proportion of its value which his labor or money has 
 added to it by suffering the sheriff to return it to the owner. 
 
 But this result depends on himself. If he claim the additional value, 
 it is always his right to retain the property by giving a property bond ; 
 and the effect of a verdict for damages in favor of the plaintiff is to 
 transfer the title to the defendant. If, therefore, he denies that his 
 trespass was wilful or wanton, and claims a right to the additional val- 
 ue given to the chattel by his labor and money in converting and trans- 
 it Part of the opiuion is uniitted.
 
 Sec. 3) ACCKSSiON 105 
 
 fwrting it to the place where it is replevied, he has it in his power to 
 bring the damages of the plaintiff to their true standard. * * * 
 
 The court below erred therefore in rejecting the plaintiffs' evidence 
 of the value of the logs in the boom ; the evidence being received, the 
 defendants would be left to rebut it, if their trespass was unintentional, 
 by showing how much it cost to cut and haul the logs and drive them 
 to the boom. 
 
 The judgment is reversed, and a venire facias de novo awarded.-" 
 
 TRUSTEES OF DARTMOUTH COLLEGE v. INTERNATION- 
 AL PAPER CO. 
 
 (Circuit Court of the United States, D. New Hampshire, 1904. 132 Fed. 92.) 
 
 LowELL,^^ District Judge. This is an action of trover. The dec- 
 laration alleges the conversion of spruce, fir, and hemlock timber, and 
 of pulp made therefrom. The defendant has suffered default, and the 
 court has only to assess damages. To ascertain their amount the case 
 has been submitted to a master. His findings concerning the amount 
 of timber cut are not in dispute. By its default, therefore, the defend- 
 ant has admitted conversion, and liability for the damage caused there- 
 by. By the undisputed findings of the master the amount of timber 
 cut has been ascertained, and it remains only to put tlie proper value 
 thereon. * * * 
 
 Where standing timber on the plaintiff's land is wrongfully cut, the 
 plaintiff's choice of remedies is extensive. (1) He may bring an action 
 of trespass quare clausum, wherein he will recover the damage done 
 to the real estate; that is to say, the diminution in die value of the 
 real estate caused by the cutting. If he alleges by way of aggravation, 
 a trespass upon his personal property, viz., the logs, after severance 
 from the realty, he may recover for that also, thus joining his two 
 causes of complaint in one action. (2) He may bring trespass de boms 
 asportatis, wherein he will recover the damage done by carrj'ing oft' 
 the logs wrongfully cut. (3) He may bring trover, in which case he 
 will recover tlie value of the personal property — the logs — at the time 
 and place of conversion. As to the three forms of action just men- 
 tioned, see Warner v. Abbey, 112 Mass. 355. (4) He may bring re- 
 
 20 Ace: State v. Shevlin-Carix-ntor Co., 62 Minn. 99, 64 N. W. 81 (lS9.j). 
 
 A. tortiously, but in good faith, cut timber on X.'s laud and transported it 
 to market. X. replevied, but failed to give the bond required from plaintiff 
 in order to protect defendant af;aiiist wrongful seizures. The lumber was 
 consequently returned to the defendant. Held, the plaintiff can recover only 
 damages, deducting defendants" labor. Gustin v. Embury-Clark Lumber Co., 
 145 Mich. 101, lOS N. W. 650 (1006). See dissenting opinion of Bunn. C. J., 
 in Katon v. Langley, 65 Ark. 448, 460, 47 S. W. 123, 42 L. R. A. 474 (189S). 
 
 -> I'art of the opinion is omitted.
 
 166 ACQUISITION OF OWNEHSHIP (Ch. 4 
 
 plevin. By this action he will, in some jurisdictions, recover the logs 
 themselves, and in others will recover their value variously estimated. 
 In some jurisdictions the action of replevin sounds altogether in dam- 
 ages, and differs but little from the action of trover. (5) He may physi- 
 cally retake his severed property. By this act he will recover the prop- 
 erty itself. Indeed, though he commit a breach of the peace in the 
 recovery, yet he will still recover his property. His civil or criminal 
 liability for his violence will not divest his title. See Pabst Brewing 
 Co. v. Greenberg, 117 Fed. 135, 55 C. C. A. 151. Other forms of ac- 
 tion, such as detinue, or a bill in equity, may be employed in some ju- 
 risdictions and under some circumstances; and the injured man may 
 sometimes pursue more than one remedy at once. It is plain that in 
 some instances the damages recovered in an action of trespass quare 
 clausum will be greater than those recovered in trover. In other in- 
 stances the damages in trover will be the larger. 
 
 This is an action of trover, the gist of which is the conversion by the 
 defendant of goods to which the plaintiff has the right of possession. 
 "The plaintiff is bound to prove a right of possession in himself at the 
 time of the conversion." U. S. v. Loughrey, 172 U. S. 206, 212, 19 
 Sup. Ct. 153, 43 L. Ed. 420. Mere refusal to deliver upon the plain- 
 tiff's demand is sufficient evidence of conversion ; a fortiori, any posi- 
 tive act of the defendant which substantially deprives the plaintiff' of 
 that possession of the goods to which he is entitled. The declaration in 
 this case alleges a conversion of timber and pulp. If at any time the 
 plaintiff had an unqualified right to possess that timber or pulp, and 
 the defendant refused to deliver the same upon proper demand, or 
 otherwise deprived the plaintiff of his lawful possession, these facts 
 are sufficient evidence of a conversion. See U. S. v. Loughrey, 172 
 U. S. 206, 216, 19 Sup. Ct. 153, 43 L. Ed. 420. The plaintiff will re- 
 cover as damages the value of the property at the time and place of 
 the conversion. Here the standing timber was the plaintiff's. Before 
 severance it was a part of the plaintiff's real estate. When severed by 
 the plaintiff" or defendant or a third person, the logs were chattels of 
 which the plaintiff" had the right of possession. * * * Northern 
 Pacific R. R. V. Lewis, 162 U. S. 366, 16 Sup. Ct. 831, 40 L. Ed. 1002; 
 Phillips V. Bowers, 7 Gray (Mass.) 21. * * * By their removal 
 from the plaintiff's land the plaintiff's right of possession was not di- 
 vested, and the plaintiff here contends that even the conversion of the 
 logs into pulp left the plaintiff with a right of possession to the product 
 manufactured exclusively from its own logs. It is true that many dicta 
 and some decisions may be found to the effect that the one and only 
 conversion is that which occurs when the plaintiff's right of possession 
 is first set at naught by the defendant; but without discussing these 
 cases in detail, it may be said generally that they are opposed, not only 
 to the weight of authority, but to fundamental principles of law. 
 
 But in Pine River Logging Co. v. U. S., 186 U. S. 279, at page 293,
 
 Sec. 3) ACCESSION 1 07 
 
 22 Sup. Ct. 920, at page 926, 46 L. Ed. 1164, the Supreme Court, in 
 substantial accord with most other courts, has said: "Where the tres- 
 pass is the result of inadvertence or mistake, and the wrong was not 
 intentional, the value of the property when first taken must govern. 
 Or, if the conversion sued for was after value had been added to it by 
 the work of the defendant, he should be credited with this addition. 
 Upon the other hand, if the trespass be willfully committed, the tres- 
 ])asser can obtain no credit for the labor expended upon it, and is liable 
 for its full value when seized." 
 
 As here applicable, the rule thus laid down comes to this: If the 
 defendant's admitted conversion was the result of inadvertence or mis- 
 take, it is liable only for stumpage, or at most for the value of the logs 
 immediately after their cutting. If the conversion was willful, the de- 
 fendant is liable for the value of the goods, however improved. This 
 rule, or one closely resembling it, is generally recognized, though courts 
 are not unanimous. See Baker \. Wheeler, 8 Wend. (N. Y.) 505, 24 
 Am. Dec. 66; Powers v. Tilley, 87 Me. 34, 32 Atl. 714, 47 Am. St. Rep. 
 304; Wing v. Milliken, 91 Me. 387, 40 Atl. 138, 64 Am. St. Rep. 
 238. * * * 
 
 To decide the case at bar it is important to know not only the gen- 
 eral rule thus declared, but its basis in our system of law. The dis- 
 tinction between the two measures of damages is spoken of in some 
 opinions as one between damages compensatory and damages exem- 
 plary. The second measure is sometimes described as if imposed by 
 way'of punishment. State v. Shevlin Co., 66 Minn. 217, 68 N. W. 973 ; 
 Beede v. Lamprey, 64 N. H. 510, 15 Atl. 133, 10 Am. St. Rep. 426. 
 But the analogy is misleading, as appears from this consideration 
 among others: The second measure of damages is imposed only where 
 the property converted has been enhanced in value. The defendant's 
 bad faith would be the same had the logs been burned, or converted 
 into pulp, and exemplary damages would be the same in both cases; 
 but in the former case no more than their value before burning could 
 be recovered in this action. From one point of view, indeed, the higher 
 measure of damages gives no more than compensation. If the wrong- 
 doer's improvements belong to the original owner, the latter gets no 
 more than compensation when their value is awarded to him. As be- 
 tween the two measures of damages, the choice depends upon the plain- 
 tiff's unqualified ownership of the property as improved by the defend- 
 ant's labor. If this unqualified ownership exists, the higher measure of 
 damages gives no more than compensation for a legal wrong. If the 
 defendant, by his labor, has gained a right of property in the goods he 
 has converted, the damages should be computed by a lower measure. 
 
 By what principle does the law give to a defendant a right to the 
 value of the improvements he has made in another's property, which 
 he has converted? Though he trespass innocently, yet he must make 
 good the plaintiff's loss, but he may be entitled under some circum-
 
 168 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 Stances, to an allowance from the owner by reason of the improvement 
 made. Sedgw^ick on Damages, 903, 915. This principle of justice, as 
 it is deemed to be, has obvious application where recovery is sought 
 for the wrongful cutting of timber. If the plaintiff is deemed to have 
 the right immediately to possess the logs through one or more trans- 
 formations which enhance their value, the ordinary rule of damages in 
 an action of trover will permit the plaintiff to state the defendant's 
 conversion as of any time the plaintiff is pleased to select, and so the 
 real damage done to the plaintiff may be enhanced many fold by includ- 
 ing therein the value added to his property by the defendant's opera- 
 tions. In some cases this is deemed unjust, not by reason of the form 
 of the plaintiff's action, but by a rule of substantive law. In some cases 
 the improvement gives to the trespasser a qualified right of property 
 in the goods improved. Here is to be found the basis of the two meas- 
 ures of damage above stated, and not in the theory of punishment. Not- 
 withstanding much confusion of language in many decisions, the prin- 
 ciple above stated is recognized in those cases which are best rea- 
 soned and most authoritative. See Silsbury v. McCoon, 3 N. Y. 379, 
 53 Am. Dec. 307 ; Powers v. United States, 1 19 Fed. 562, 56 C. C. A. 
 128 ; Anderson v. Besser, 131 Mich. 481, 91 N. W. 717. To obtain this 
 right the improvement must be made in good faith. -= * * * As 
 the allowance sought by the defendant involves an exception establish- 
 ed upon the ordinary measure of damages recoverable in an action of 
 trespass, the burden of proving the facts upon which the allowance is 
 based rests upon the defendant (United States v. Homestake Co., 117 
 Fed. 481, 54 C. C. A. 303; United States v. Baxter [C. C] 46 Fed. 
 350; United States v. Ordway [C. C] 30 Fed. 31 * * *): though 
 it seems that no specific allegation or claim for allowance need be made 
 in the pleadings. That the burden of proving good faith rests upon 
 the defendant shows that we are not here dealing with exemplary or 
 punitive damages, properly so called. The burden of showing a right 
 to these rests always upon the plaintiff. 
 
 Unfortunately, the precise measure of the allowance to the defend- 
 ant for his improvements has been stated by different courts — or by the 
 same court — in many ways. In theory the allowance should equal the 
 cost of the defendant's improvement, not to exceed the consequent en- 
 hancement of value in the property converted. But sometimes the 
 plaintiff has been limited to the recovery of (a) stumpage, or, in the 
 case of coal, of reasonable royalty (Hilton v. Woods, L. R. 4 Eq. 432 ; 
 
 * * * United States v. Homestake Co., 117 Fed. 481, 54 C. C. A. 
 303: * * * King v. Merriman, 38 Minn. 47, 35 N. W. 570; 
 
 * * * ) ; sometimes (b) the value after severance, less expense of 
 severing (see Durant Mining Co. v. Percy Mining Co., 93 Fed. 166, 167, 
 
 2 2 The part omitted is given in tlie footnote to Isle Eojale Mining Co. r. 
 Ilertin, post, p. 173.
 
 Sec. 3) ACCESSION Iti'J 
 
 35 C. C. A. 252 ; ♦ * * ) ; sometimes (c) stumpage plus profit (Win- 
 chester V. Craig, 33 Mich. 205 ; * * * ) ; sometimes (d) value at 
 severance, less what it would have cost the plaintiff to sever (see Mor- 
 gan V. Powell, 3 Q. B. 278) ; sometimes (e) value at time of action 
 brought, or at some other time after severance, less expense of im- 
 provement (see Jegon v. Vivian, L. R. 6 Ch. 742; * * * Powers 
 v. United States, 119 Fed. 562, 56 C. C. A. 128; * * *); some- 
 times (f) value immediately after severance, on the theory that there 
 can be no conversion of chattels until after severance from the realt\ 
 (see United States v. Van Winkle, 51 C. C. A. 533, 113 Fed. 903: 
 White V. Yawkey, 108 Ala. 270, 19 South. 360, 32 L. R. A. 199, 54 
 Am. St. Rep. 159; * * * Morgan v. Powell, 3 Q. B. 278; Martin v. 
 Porter, 5 M. & W. 351 ; * * *); sometimes (g) value when removed 
 from plaintiff's land because the conversion is not deemed complete 
 until then (Wright v. Skinner, 34 Fla. 453, 16 South. 335) ; sometimes 
 (h) defendant's profit received (Colorado Mining Co. v. Turck, 70 Fed. 
 294, 17 C. C. A. 128); sometimes (i) value at time of action brought, or 
 at some other time after severance, less value added by defendant 
 (Coal Co. V. Coal Co., 24 Colo. 116, 48 Pac. 1045; Peters Co. v. Lesh, 
 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367). Some of these rules 
 seem to have been adopted as rough and ready measures of conven- 
 ience, some without recognition of the difference between them. Each 
 and all are deemed to furnish an allowance for the value of improve- 
 ments made in good faith upon the property of another, and all show 
 that diminished damages are permitted by way of allowance to a de- 
 fendant, rather than are enhanced damages inflicted for his punish- 
 ment. 
 
 From what has been said it follows that, in order to reduce their lia- 
 bility, this defendant must show that its action in converting the plain- 
 tiff's propertT,' was in good faith. There has been considerable discus- 
 sion as to the meaning of the term "good faith" in this connection. 
 The good faith which will protect the defendant is not incompatible 
 with some degree of negligence. Almost any trespass upon the rights 
 of another which is not wilful arises, in whole or in part, from the de- 
 fendant's ignorance of something which he might have discovered had 
 he exercised a certain degree of care. "Trespasses on the land of an- 
 other, not wilful, alwavs imply some degree of negligence." Franklin 
 Coal Co. v. McMillan, 49 Md. 549, 559, 33 Am. Rep. 280. In most of 
 the cases in which the defendant has been given an allowance for the 
 enhancement of value which he had caused in the object converted he 
 had shown some degree of negligence. In not a few he had lacked the 
 care of ordinary' men under the circumstances. Yet this was not held 
 to prevent some allowance and a reduction of damages. See Gates v. 
 Comstock, 113 Mich. 127, 71 N. W. 515. All the language of the 
 courts cannot be reconciled (see Donovan v. Consol. Coal Co., 187 111. 
 28, 58 X. E. 290, 79 Am. St. Rep. 206), but, upon the whole, it seems
 
 170 ACQUISITION OF OWNERSHIP (Ch. i 
 
 that the defendant is bound only to negative willful injury to the known 
 property of another, and willful disregard of another's rights (King v. 
 Merriman, 38 Minn. 47, 35 N. W. 570). Some opinions require that 
 the defendant's mistake should be reasonable, but to require this would 
 call upon the defendant to negative negligence. See Mississippi River 
 Logging Co. V. Page, 68 Minn. 269, 71 N. W. 4. If the injury is caused 
 by negligence, as distinguished from willfulness, wantonness, or reck- 
 lessness it seems that the defendant is still entitled to his allowance. 
 In any case the plaintiff will recover complete compensation for his 
 actual damage in the ordinary sense of the words. * * * 
 
 [The court found in this case that tlie defendant acted in good faith.] 
 While the language used by the Supreme Court, upon the whole, ap- 
 proves as measure of damages the value of the logs immediately after 
 their separation from the freehold, it is plain that the difference be- 
 tween this value and stumpage has never been expressly considered by 
 that court. On technical grounds it is possible to argue with some 
 force that the plaintiff should be given the value immediately after sev- 
 erance, but the stumpage value better accords with the principles upon 
 which the allowance for improvements is made. Neither measure is 
 strictly accurate, as has been pointed out already, but, if the defend- 
 ant is to be allowed for any improvements, then to deprive him of the 
 value of tlie improvement first in time and most necessary, viz., that 
 arising from severance from the realty, is to make the technical differ- 
 ence between real property in tiie shape of a standing tree and personal 
 property in the shape of a felled tree the cause of a great dift'erence in 
 substantial rights. The weight of authority outside the Supreme 
 Court, on the whole, supports the allowance of stumpage only, and 
 with some doubt I have decided to allow only tliat in this case. 
 Judgment for $49,102.94 and interest." 
 
 23 See Livingstone v. Rawyards Coal Co., L. R. 5 A. C. 25 (ISSO) ; Maye v. 
 Yappen, 23 Cal. 306 (1863) ; Everson v. Seller, 105 Ind. 266, 4 N. E. 854 (188.S) ; 
 Winchester v. Craig, 33 Mich. 205 (1876) ; Beede v. Lamprey, 6-4 N. H. 510, 
 15 Atl. 133, 10 Am. St. Rep. 426 (1S8S) ; Trustees of Proprietors of Kingston 
 V. Lehigh Valley Coal Co., 241 Pa. 481, 88 Atl. 768 (1913). 
 
 "If * * * the defendant * * * mined coal from the plaintiffs' land 
 without his consent * * * and did so by mistake or inadvertence, * * * 
 the plaintiff * * * is to be allowed the value of the coal at the pit 
 mouth less the cost of carrying it there from the place where it was dug, al- 
 lowing the defendant nothing for the digging." This instruction held cor- 
 rect. The court said: "No necessity exists for one miner to trespass upon an 
 adjoining owner. If proper maps and plans of the mine are kept, and meas- 
 urements and surveys of the work made, as required by common prudence 
 and the statute, each miner will have no difiiculty in confining his operations 
 to his own estate. When, therefore, one miner, in disregard of his duty, in- 
 vades the property of another, he should not be permitted to profit by his un- 
 lawful act, which would be the case if the trespasser was only required to 
 pay the value of the coal as it existed in the mine before it was taken." 
 Illinois & St. Louis K. & Coal Co. v. Ogle, 82 111. 627, 628, 630, 25 Am. Rep. 
 342 (1876).
 
 Sec. 3) ACCESSION 171 
 
 ISLE ROYALE MINING CO. v. HERTIN et al. 
 
 (Supreme Court of Michigan, 1877. 37 Mich. 332, 26 Am. Rep. 520.) 
 
 Trover and assumpsit. Defendant brings error. 
 
 CooLEY, C. J.^* The parties to this suit were owners of adjoining 
 tracts of timbered lands. In the winter of 1873-74 defendants in 
 error, who were plaintiffs in the court below, in consequence of a 
 mistake respecting the actual location, went upon the lands of the 
 mining company and cut a quantity of cord wood, which they hauled 
 and piled on the bank of Portage Lake. The next spring the wood 
 was taken possession of by the mining company, and disposed of for 
 its own purposes. The wood on the bank of the lake was worth 
 $2.87V2 per cord, and the value of the labor expended by the plaintiffs 
 in cutting and placing it there was $1.8714 per cord. It was not clear- 
 ly shown that the mining company had knowledge of the cutting and 
 hauling by the plaintiffs while it was in progress. After the mining 
 company had taken possession of the wood, plaintiffs brought this 
 suit. * * * 
 
 The circuit judge instructed the jury as follows : "If you find that 
 the plaintiffs cut the wood from defendant's land by mistake and without 
 any willful negligence or wrong, I then charge you that the plaintiff's 
 are entitled to recover from the defendant the reasonable cost of cut- 
 ting, hauling and piling the same." 
 
 This presents the only question it is necessary to consider on this 
 record. The jury returned a verdict for the plaintiffs. 
 
 Some facts appear by the record which might perhaps have war- 
 ranted the circuit judge in submitting to the jury the question whether 
 the proper authorities of the mining company were not aware that 
 the wood was being cut by the plaintiff's under an honest mistake 
 as to their rights, and were not placed by that knowledge under ob- 
 ligation to notify the plaintiffs of their error. But as the case was put 
 to the jury, the question presented by the record is a narrow question 
 of law, which may be stated as follows : Whether, where one in an 
 honest mistake regarding his rights in good faith performs labor on 
 the property of another, the benefit of which is appropriated by the 
 owner, the person performing such labor is not entitled to be compen- 
 sated therefor to the extent of the benefit received by the owner there- 
 from? * * * 
 
 We understand it to be admitted by the plaintiffs that no authority 
 can be found in support of the proposition thus stated. It is con- 
 ceded that at the common law when one thus goes upon the land of 
 another on an assumption of ownership, though in perfect good faith 
 and under honest mistake as to his rights, he may be held responsible 
 
 2* Part of the opiuion is omitted.
 
 172 ACQUISITION OF OWNERSHIP (CI). 4 
 
 as a trespasser. His good faith does not excuse him from the pay- 
 ment of damages, the law re(]uiring him at his peril to ascertain what 
 his rights are, and not to invade the possession, actual or constructive, 
 of another. * * * 
 
 It is said, however, that an exception to this rule is admitted under 
 certain circumstances, and that a trespasser is even permitted to make 
 title in himself to the property of another, where in good faith he has 
 expended his own labor upon it, under circumstances which would 
 render it grossly unjust to permit the other party to appropriate the 
 benefit of such labor. * * * 
 
 Where the appropriation of the property of another was accidental 
 or through mistake of fact, and labor has in good faith been ex- 
 pended upon it which destroys its identity, or converts it into some- 
 thing substantially different, and the value of the original article is 
 insignificant as compared with the value of the new product, the title 
 of the property in its converted form must be held to pass to the 
 person by whose labor in good faith the change has been wrought, 
 the original owner being permitted, as his remedy, to recover the value 
 of the article as it was before the conversion. This is a thoroughly 
 equitable doctrine, and its aim is so to adjust the rights of the par- 
 ties as to save both, if possible, or as nearly as possible, from any loss. 
 But where the identity of the original article is susceptible of being 
 traced, the idea of a change in the property is never admitted, unless 
 the value of that which has been expended upon it is sufficiently great, 
 as compared with the original value, to render the injustice of permit- 
 ting its appropriation by the original owner so gross and palpable as 
 to be apparent at the first blush. Perhaps no case has gone further 
 than Wetherbee v. Green, 22 Mich. 311, 7 Am. Rep. 653, in which it 
 was held that one who, by unintentional trespass, had taken from the 
 land of another young trees of the value of $25, and converted them in- 
 to hoops worth $700, had thereby made them his own, though the 
 identity of trees and hoops was perfectly capable of being traced and 
 established. 
 
 But there is no such disparity in value between the standing trees 
 and the cord wood in this case as was found to exist between the trees 
 and the hoops in Wetherbee v. Green. The trees are not only suscepti- 
 ble of being traced and identified in the wood, but the difference in 
 value between the two is not so great but that it is conceivable the 
 owner may have preferred the trees standing to the wood cut. The 
 cord wood has a higher market value, but the owner may have chosen 
 not to cut it, expecting to make some other use of the trees than for 
 fuel, or anticipating a considerable rise in value if they were allowed 
 to grow. It cannot be assumed as a rule that a man prefers his trees 
 cut into cord wood rather than left standing, and if his right to leave 
 them uncut is interfered with even by mistake, it is manifestly just 
 that the consequences should fall upon the person committing the
 
 Sec. 3) ACCESSION 173 
 
 mistake, and not upon him. Xothing could more encourage careless- 
 ness than the acceptance of the principle that one who by mistake per- 
 forms labor upon the property of another should lose nothing by his 
 error, but should have a claim upon the owner for remuneration. Why 
 should one be vigilant and careful of the rights of others if such were 
 the law? Whether mistaken or not is all the same to him, for in 
 either case he has employment and receives his remuneration ; while 
 the inconveniences, if any, are left to rest with the innocent owner. 
 Such a doctrine offers a premium to heedlessness and blunders, and a 
 temptation by false evidence to give an intentional trespass the af)- 
 pearance of an innocent mistake. 
 
 A case could seldom arise in which the claim to compensation could 
 be more favorably presented by the facts than it is in this ; since 
 it is highly probable that the defendant would suffer neither hardship 
 nor inconvenience if compelled to pay the plaintiffs for their labor. 
 But a general principle is to be tested, not by its operation in an in- 
 dividual case, but by its general workings. If a mechanic employed to 
 alter over one man's dwelling house, shall by mistake go to another 
 which happens to be unoccupied, and before his mistake is discovered, 
 at a large expenditure of labor shall thoroughly overhaul and change 
 it, will it be said that the owner, who did not desire his house disturbed, 
 must either abandon it altogether, or if he takes possession, must pay 
 for labor expended upon it which he neither contracted for, desired, 
 nor consented to? And if so, what bounds can be prescribed to which 
 the application of this doctrine can be limited? The man who by 
 mistake carries off the property' of another will next be demanding 
 payment for the transportation ; and the only person reasonably se- 
 cure against demands he has never assented to create, will be the per- 
 son who, possessing nothing, is thereby protected against anything be- 
 ing accidentally improved by another at his cost and to his ruin. 
 
 The judgment of the circuit court must be reversed, with costs, and 
 a new trial ordered.-^ 
 
 2 5 Ace: Gaskins v. Davis, 115 N. C. So, 20 S. E. ISS. 25 L. R. A. 813. 
 44 Am. St. Rep. 4.39 (1894). Compare Arpin v. Burch, 68 Wis. 619. 32 N. W. 
 681 (1887). 
 
 •This substantial rlsht of the defendant [to have the plaintiff's daniajies 
 rediK-ed by the amount to which the property has been Improved by the de- 
 fendant's bona fide worli] must be available to him whatever be the form of 
 remedy selected by the plaintiff. An action of trespass quare clausum hardly 
 calls for an exercise of the rule. An action of trespass de bonis ordinarily 
 calls for a more limited exercise of the rule than does the action of trespass 
 sur trover. If the rule is to have its full effect, it must be applicable also 
 where the plaintiff recovers the property without recourse to law. This is 
 especially desirable, indeed, for if the plaintiff can hold his improved and 
 transmuted property which he has physically retaken without allowance to 
 the defendant, while in an action he -can recover but a small part of the 
 value of this improved property, the plaintiff will be disposed to resort to 
 physical recovery without the aid of the law, even if force and a breach of 
 the peace be the result. That a plaintiff may recover more in one form of 
 action than in another ordinarily involves no serious hardship. The plaintilT
 
 17i ACQUISITION OF OWNERSHIP (Ch. 4 
 
 SILSBURY V. McCOON. 
 (Court of Appeals of New York, 1850. 3 N. Y. 379, 53 Am. Dec. 307.)t 
 
 [Trover for a quantity of whiskey. 
 
 The facts proved by the plaintiffs to establish their title were as fol- 
 lows: On the 18th of February, 1842, a sheriff levied upon five hun- 
 dred bushels of grain by virtue of a fi. fa. against one Wood in favor 
 of one Tymason. The grain was in Wood's distillery at the time and 
 the sheriff did not remove it. After the levy, the plaintiffs who suc- 
 ceeded Wood in the possession of the distillery converted the grain into 
 whiskey. The plaintiffs informed the sheriff of the conversion of tlie 
 grain into whiskey and gave him their note for the value of the grain 
 which was accepted by Tymason as so much paid on the fi. fa. On the 
 22d day of March, 1842, after the grain had been manufactured into 
 whiskey, a deputy sheriff levied on the whiskey by virtue of a fi. fa. 
 against the said Wood in favor of the defendants. The whiskey was 
 sold against the objections of the plaintiffs and purchased by the de- 
 fendants who converted it to their own use. 
 
 The plaintiffs having rested the defendants offered to prove that 
 the whiskey was made from grain belonging to the said Wood, that 
 this conversion was made by the plaintiffs without any authority from 
 Wood and that they knew of the time that the grain belonged to Wood. 
 This evidence was objected to on the ground that Wood's title was ex- 
 tinguished by the conversion. The objection was sustained, and the 
 defendant's counsel excepted. There was a verdict for the plaintiff. 
 A motion was made for a new trial on bill of exceptions to the Su- 
 preme Court. The motion was denied and the defendants brought writ 
 of error to the Court of Appeals.] 
 
 RuGGLES, J.''" It is an elementary principle in the law of all civil- 
 ized communities, that no man can be deprived of his property, except 
 by his own voluntary act, or by operation of law. The thief who steals 
 a chattel, or the trespasser who takes it by force, acquires no title 
 
 ordinarily has his choice among different forms of action. But that a man 
 may lawfully retain property which he has retaken by unlawful violence, 
 many times the value of that which he could have recovered by the form of 
 action most favorable to him, cannot be allowed by any system which calls 
 itself law." Trustees of Dartmouth College v. International Paper Co. (C. C.) 
 132 Fed. 92, 97 (1904). 
 
 A. in good faith tortiously cut timber on X.'s land, increasing the value 
 one and one-fourth times. A. delivered the timber to B. as his bailee ; B. 
 delivered it to X. on X.'s demand. Held, A. cannot maintain trover against 
 B. for the timber so delivered. Gates v. Kifle Boom Co., 70 Mich. 309, 38 
 N. W. 245 (ISSS). 
 
 See Woodward, The Law of Quasi Contracts, c. 13. 
 
 t The case was twice before the Supreme Court ; the opinions of that court 
 being reported in 6 Hill, 425, 41 Am. Dec. 753 (1844), and in 4 Denio, 332 (1847). 
 
 2 8 Part of the opinion is omitted.
 
 Sec. 3) ACCESSION 17a 
 
 by such wrongful taking. The subsequent possession by the thief or 
 the trespasser is a continuing trespass ; and if during its continuance, 
 the wrongdoer enhances the value of the chattel by labor and skill 
 bestowed upon it, as by sawing logs into boards, splitting timber into 
 rails, making leather into shoes, or iron into bars, or into a tool, the 
 manufactured article still belongs to the owner of the original ma- 
 terial, and he may retake it or recover its improved value in an action 
 for damages. And if the wrongdoer sell the chattel to an honest pur- 
 chaser having no notice of the fraud by which it was acquired, the 
 purchaser obtains no title from the trespasser, because the trespasser 
 had none to give. The owner of the original material may still retake 
 it in its improved state, or he may recover its improved value. The 
 right to the improved value in damages is a consequence of the con- 
 tinued ownership. It would be absurd to say that the original owner 
 may retake the thing by an action of replevin in its improved state, 
 and yet that he may not, if put to his action of trespass or trover, re- 
 cover its improved value in damages. Thus far, it is conceded that the 
 common law agrees with the civil. 
 
 They agree in another respect, to wit, that if the chattel wrongfully 
 taken, afterwards come into the hands of an innocent holder who be- 
 lieving himself to be the owner, converts the chattel into a thing of 
 different species so that its identity is destroyed, the original owner 
 cannot reclaim it. Such a change is said to be wrought when wheat 
 is made into bread, olives into oil, grapes into wine. In a case of this 
 kind the change in the species of the chattel is not an intentional wrong 
 to the original owner. It is therefore regarded as a destruction or con- 
 •sumption of the original materials, and the true owner is not permitted 
 to trace their identity into the manufactured article, for the purpose 
 of appropriating to his own use the labor and skill of the innocent 
 occupant who wrought the change; but he is put to his action for 
 damages as for a thing consumed, and may recover its value as it was 
 when the conversion or consumption took place. 
 
 There is great confusion in the books upon the question what con- 
 stitutes change of identity. In one case (5 Hen. 7, fol. 15), it is said 
 that the owner may reclaim the goods so long as they may be known, 
 or in other words, ascertained by inspection. But this in many cases 
 is by no means the best evidence of identity ; and the examples put 
 by way of illustration serve rather to disprove than to establish the • 
 rule. The court say that if grain be made into malt, it can not be re- 
 claimed by the owner, because it can not be known. But if cloth be 
 made into a coat, a tree into squared timber, or iron into a tool, it 
 may. Xow as to the cases of the coat and tlie timber they may or 
 may not be capable of identification by the senses merely ; and the 
 rule is entirely uncertain in its application ; and as to the iron tool, 
 it certainly cannot be identified as made of the original material, with- 
 out other evidence. This illustration therefore, contradicts the rule.
 
 176 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 In anotlier case (Moore's Rep. 20), trees were made into timber and 
 it was adjudged that the owner of the trees might reclaim the timber, 
 "because the greater part of the substance remained." But if this 
 were the true criterion it would embrace the cases of wheat made into 
 bread, milk into cheese, grain into malt, and others which are put in 
 the books as examples of a change of identity. Other writers say 
 that when the thing is so changed that it can not be reduced from its 
 new form, to its fonner state, its identity is gone. But this would 
 include many cases in which it has been said by the courts that the 
 identity is not gone; as the case of leather made into a garment, logs 
 into timber or boards, cloth into a coat, etc. There is therefore no 
 definite settled rule on this question ; and although the want of such 
 a rule may create embarrassment in a case in which the owner seeks 
 to reclaim his property from the hands of an honest possessor ; it pre- 
 sents no difficulty where he seeks to obtain it from the wrongdoer; 
 provided the common law agrees with the civil in the principle applica- 
 ble to such a case. 
 
 The acknowledged principle of the civil law is that a wilful wrong- 
 doer acquires no property in the goods of another, either by the 
 wrongful taking or by any change wrought in them by his labor or 
 skill, however great that change may be. The new product, in its 
 improved state, belongs to the owner of the original materials, pro- 
 vided it be proved to have been made from them; the trespasser loses 
 his labor, and that change which is regarded as a destruction of the 
 goods, or an alteration of their identity in favor of an honest posses- 
 sor, is not so regarded as between the original owner and a willful vio- 
 lator of his right of property. 
 
 These principles are to be found in the Digest of Justinian (lib. 10, 
 tit. 4, leg. 12, § 3). "If any one shall make wine with my grapes, oil 
 with my olives, or garments with my wool, knowing they are not his 
 own, he shall be compelled by action to produce the said wine, oil 
 or garments." So in Vinnius' Institutes, tit. 1, pi. 25. "He who 
 knows the material is another's ought to be considered in the same 
 light as if he had made the species in the name of the owner, to whom 
 also he is to be understood to have given his labor." 
 
 The same principle is stated by Pufifendorf in his Law of Nature 
 and of Nations, (h. 4, c. 7, § 10), and in Wood's Institutes of the Civil 
 Law, p. 92, which are cited at large in the opinion of Jewett, J., de- 
 livered in this case in the supreme court (4 Denio, 338), and which it 
 is unnecessary here to repeat. In Brown's Civil and Admiralty Law, 
 p. 240, the writer states the civil law to be that the original owner of 
 any thing improved by the act of another, retained his ownership in 
 the thing so improved, unless it was changed into a different species ; 
 as if his grapes were made into wine, the wine belonged to the maker, 
 who was only obliged to pay the owner for the value of his grapes. 
 The species however must be incapable of being restored to its ancient
 
 Sec. 3) ACCESSION 177 
 
 form ; and the materials must have been taken in ignorance of their 
 being the property of another. 
 
 But it was thought in the court below that this doctrine had never 
 been adopted into the common law, either in England or here ; and the 
 distinction between a willful and an involuntary wrongdoer herein be- 
 fore mentioned, was rejected not only on that ground but also be- 
 cause the rule was supposed to be too harsh and rigorous against the 
 w-rongdoer. 
 
 It is true that no case has been found in the English books in which 
 that distinction has been expressly recognized; but it is equally true 
 that in no case until the present has it been repudiated or denied. The 
 common law on this subject was evidently borrowed from the Roman 
 at an early day; and at a period when the common law furnished 
 no rule whatever in a case of this kind. Bracton in his treatise com- 
 piled in the reign of Henry III, adopted a portion of Justinian's In- 
 stitutes on this subject without noticing the distinction ; and Black- 
 stone, in his commentaries, vol. 2, p. 404, in stating what the Roman 
 law was, follows Bracton, but neither of these writers intimate that on 
 the point in question there is any difference between the civil and the 
 common law. The authorities referred to by Blackstone in support of 
 his text are three only. The first in Brooks' Abridgment, tit. Property, 
 23, is the case from the Year Book 5 H. 7, fol. 15 (translated in a 
 note to 4 Denio, 335), in which the owner of leather brought trespass 
 for taking slippers and boots, and the defendant pleaded that he was 
 the owner of the leather and bailed it to J. S. who gave it to the plain- 
 tiff, who manufactured it into slippers and boots, and the defendant 
 took them as he lawfully might. The plea was held good and the title 
 of the "owner of the leather unchanged. The second reference is to 
 a case in Sir Francis Moore's Reports, p. 20, in which the action was 
 trespass for taking timber, and the defendant justified on the ground 
 that A. entered on his land and cut down trees and made timber there- 
 of, and carried it to the place where the trespass was alleged to have 
 been committed, and afterwards gave it to the plaintiff, and that the 
 defendant therefore took the timber as he lawfully might. In these 
 cases the chattels had passed from the hands of the original trespasser 
 into the hands of a third person ; in both it was held that the title 
 of the original owner was linchanged, and that he had a right to the 
 property in its improved state against the third person in possession. 
 They are in conformity with the rule of the civil law; and certainly 
 fail to prove any difference between the civil and the common law 
 on the point in question. The third case cited is from Popham's Re- 
 ports, p. 38, and was a case of confusion of goods. * * * 
 
 So long as property wrongfully taken retains its original form and 
 substance, or may be reduced to its original materials, it belongs, ac- 
 cording to the admitted principles of the common law, to the orig- 
 inal owner, without reference to the degree of improvement, or the 
 Big.Pers.Proj?. — 12
 
 178 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 additional value given to it by the labor of the wrongdoer. Nay more,- 
 this rule holds good against an innocent purchaser from the wrong- 
 doer, although its value be increased an hundred fold by the labor of 
 the purchaser. This is a necessary consequence of the continuance 
 of the original ownership. 
 
 There is no satisfactory reason why the wrongful conversion of the 
 original materials into an article of a difterent name or a different 
 species should work a transfer of the title from the true owner to the 
 trespasser, provided the real identity of the thing can be traced by evi- 
 dence. The difficulty of proving the identity is not a good reason. It re- 
 lates merely to the convenience of the remedy, and not at all to tlie right. 
 There is no more difficulty or uncertainty in proving that the whiskey 
 in question was made of Wood's corn, than there would have been 
 in proving that the plaintiff had made a cup of his gold, or a tool of 
 his iron ; and yet in those instances, according to the English cases, 
 the proof would have been unobjectionable. In all cases where the 
 new product can not be identified by mere inspection, the original 
 material must be traced by the testimony of witnesses from hand to 
 hand through the process of transformation. 
 
 Again. The court below seem to have rejected the rule of the civil 
 law applicable to this case, and to have adopted a principle not hereto- 
 fore known to the common law ; and for the reason that the rule of 
 the civil law was too rigorous upon the wrongdoer, in depriving him 
 of the benefit of his labor bestowed upon the goods wrongfully taken. 
 But we think the civil law in this respect is in conformity not only with 
 plain principles of morality, but supported by cogent reasons of public 
 policy ; while the rule adopted by the court below leads to the absurdity 
 of treating the wilful trespasser with greater kindness and mercy 
 than it shows to the innocent possessor of another man's goods. A 
 single example may suffice to prove this to be so. A trespasser takes a 
 quantity of iron ore belonging to another and converts it into iron, 
 thus changing the species and identity of the article; the owner of the 
 ore may recover its value, in trover or trespass; but not the value 
 of the iron, because under the rule of the court below it would be 
 unjust and rigorous to deprive the trespasser of the value of his 
 labor in the transmutation. But if the same trespasser steals the iron 
 and sells it to an innocent purchaser, who works it into cutlery, the 
 owner of the iron may recover of the purchaser the value of the cutlery, 
 because by this process the original material is not destroyed, but re- 
 mains, and may be reduced to its former state ; and according to the 
 rule adopted by the Court below as to the change of identity the orig- 
 inal ownership remains. Thus the innocent purchaser is deprived of 
 the value of his labor, while the guilty trespasser is not. 
 
 The rule adopted by the court below seems, therefore, to be ob- 
 jectionable, because it operates unequally and unjustly. It not only 
 divests the true owner of his title, without his consent; but it ob-
 
 Sec. 3) ACCESSION 179 
 
 literates the distinction maintained by the civil law, and as we think by 
 the common law, between the guilty and the innocent, and abolishes a 
 salutary check against violence and fraud upon the rights of property. 
 
 We think, moreover, that the law on this subject has been settled by 
 judicial decisions in this country. In Betts v. Lee, 5 John. 349, 4 Am. 
 Dec. 368, it was decided that as against a trespasser the original owner 
 of the property may seize it in its new shape, whatever alteration of 
 form it may have undergone, if he can prove the identity of the orig- 
 inal materials. That was a case in which the defendant had cut 
 down the plaintiff's trees, and made them into shingles. The property 
 could neither be identified by inspection, nor restored to its original 
 form; but the plaintiff recovered the value of the shingles. So in 
 Curtis v. Groat, 6 John. 169, 5 Am. Dec. 204, a trespasser cut wood 
 on another's land and converted it into charcoal. It was held that 
 the charcoal still belonged to the owner of the wood. Here was a 
 change of the wood into an article of different kind and species. No 
 part of the substance of the wood remained in its original state; its 
 identity could not be ascertained by the senses, nor could it be re- 
 stored to what it originally was. That case distinctly recognizes the 
 principle that a wilful trespasser can not acquire a title to property 
 merely by changing it from one species to another. And the late Chan- 
 cellor Kent, in his Commentaries (vol. 2, p. 363), declares that the 
 English law will not allow one man to gain a title to the property of 
 another upon the principle of accession, if he took the other's property 
 wilfully as a trespasser: and that it was settled as early as the time 
 of the year books, that whatever alteration of form any property had 
 undergone, the owner might seize it in its new shape, if he could prove 
 the identity of the original materials. 
 
 The same rule has been adopted in Pennsylvania. Snyder v. Vaux, 
 2 Rawle, 427, 21 Am. Dec. 466. And in Maine and Massachusetts it 
 has been applied to a wilful intermixture of goods. Ryder v. Hatha- 
 way, 21 Pick. (Mass.) 304, 305 ; Wingate v. Smith, 20 Me. 287; Willard 
 V. Rice, 1 1 Mete. (Mass.) 493, 45 Am. Dec. 226. 
 
 We are therefore of opinion that if the plaintiff's below in convert- 
 ing the corn into whiskey knew that it belonged to Wood, and that 
 they were thus using it in violation of his right, they acquired no title 
 to the manufactured article, which although changed from the original 
 material into another of different nature, yet being the actual product 
 of the corn, still belonged to Wood. The evidence offered by the de- 
 fendants and rejected by the circuit judge ought to have been admitted. 
 
 The right of Wood's creditors to seize the whiskey by tlieir execu- 
 tion is a necessary consequence of Wood's ownership. Their right 
 is paramount to his, and of course to his election to sue in trover or 
 trespass for the corn. 
 
 The judgment of the supreme court should be reversed and a new 
 trial ordered.
 
 ISO ACQUISITION OP OWNERSHIP (Ch. i 
 
 Gardiner, Jewett, Hurlbut, and Pratt, JJ., concur. 
 
 Bronson, C. J. (dissenting). Two very able arguments here, against 
 the opinion which I dehvered when the case was before the supreme 
 court (4 Denio, 332), have only served to confirm me in the conclusion 
 at which I then arrived. I shall add but little now to what I said on 
 the former occasion. 
 
 The owner may, as a general rule, follow and retake the property 
 of which he lias been wrongfully deprived so long as the same thing 
 remains, though it may have been changed in form and value by the 
 labor and skill of the wrongdoer. Eut when, as in this case, the iden- 
 tity of the thing has been destroyed by a chemical process, so that the 
 senses can no longer take cognizance of it — when it has not only 
 changed its form and appearance, but has so combined with other ele- 
 ments that it has ceased to be the same thing, and become something 
 else, the owner can, I think, follow it no longer: his remedy is an ac- 
 tion for damages. Such I take to be the rule of the common law; 
 and that is our law. 
 
 The rule for which the defendants contend, that in the case of a 
 wilful trespass, the owner may follow and retake his property after it 
 has been changed into a tiling of a different species — that he may trace 
 corn into whiskey, and take the new product — is open to several objec- 
 tions. First : it would be nearly or quite impossible to administer such 
 a rule in trials by jury. Second: the rule would often work injus- 
 tice, by going beyond the proper measure of either redress or punish- 
 ment; while an action for damages would render exact justice to both 
 parties. It is very true that a wilful trespasser should be punished : 
 but that proves nothing. All agree that he should be made to sufifer; 
 but the mode and measure of punishment are cpiestions which still re- 
 main. If one has knowingly taken six pence worth of his neighbor's 
 goods as a trespasser, he should neither be imprisoned for life, nor 
 should he forfeit a thousand dollars. We should not lose sight of the 
 fact, that the rule now to be established is one for future, as well as 
 present use; and it may work much greater injustice in other cases 
 than it can in this. Third : there is no authority at the common law 
 for following and retaking the new product in a case like this. I 
 make the remark with the more confidence, because the very diligent 
 counsel for the defendants, after having had several years, pending 
 this controversy, for research, has only been able to produce some 
 dicta of a single jurist, without so much as one common law adjudica- 
 tion in support of the rule for which he contends. He is driven to the 
 civil law ; and tlien the argument is, that because we, in common with 
 the civilians, allow the owner to retake his property in certain cases, 
 we must be deemed to have adopted the rule of the civil law on this 
 subject in its whole extent. But that is a non sequitur. It often hap- 
 pens that our laws and those of the Romans — and, indeed, of all civ- 
 ilized nations — are found to agree in some particulars, while they are
 
 Sec. 3) ACCESSION 181 
 
 widely different in others ; and this is true of laws relating to a single 
 subject. There is no force, therefore, in the argfument, that because 
 our law touching this matter is to some extent like the civil law, it may 
 be presumed that the two systems are alike in every particular. And 
 clearly, the burden of showing that the Roman law is our law, lies on 
 those who affirm that fact. There is not only the absence of any com- 
 mon law adjudication in favor of the rule for which the defendants 
 contend, but in one of the earliest cases on the subject to be found 
 in our books (Year Book, 5 H. 7, fo. 15, 4 Denio, 335, note), the court 
 plainly recognized the distinction which has been mentioned, and ad- 
 mitted that the owner could not retake the property after its identity 
 had been destroyed ; and "grain taken and malt made of it" was given 
 as an example. 
 
 There are many cases where the title to a personal chattel may be 
 turned into a mere right of action, without the consent of the owner, 
 although the thing was taken by a wilful trespasser, or even bv a thief. 
 If a man steal a piece of timber, and place it as a beam or rafter in 
 his house ; or a nail, and drive it into his ship ; or paint, and put it 
 upon his carriage, the owner can not retake his goods, but is put to his 
 action for damages ; and this is so in the civil, as well as at the com- 
 mon law. If a thief take water from another's cistern, and use it in 
 making beer ; or salt, and use it in pickling pork ; or fuel, and use it 
 in smoking hams, I suppose no one will say, that the owner of the 
 water, the salt or the fuel may seize the beer, the pork or the hams. 
 And there is no better reason for giving him the new product, where 
 sand is made into glass, malt into beer, coal into gas, or grain into 
 whiskey. In the case now before us, the civilians would not go so far 
 a9 to say, that the owner of the grain might take the swine which 
 were fattened on the refuse of the grain after it had gone through the 
 process of distillation. And yet that would liardly be more unjust or 
 absurd than it would be to give him the whiskey. There must be a 
 limit somewhere ; and I know of none which is more safe, practical 
 and just than that which allows the owner to follow a chattel until it 
 has either been changed into a different species, or been adjoined to 
 something else, which is the principal thing; and stops there. Thus 
 far our courts have gone, and there they have stopped. We have nei- 
 ther precedent nor reason in favor of taking another step ; and I 
 can not take it. 
 
 Judge Harris agrees with me in the ojiinion that the judgment of 
 the supreme court is right, and should" be affirmed. 
 
 Taylor, J., did not hear the argument, and gave no opinion. 
 
 Judgment reversed.^' 
 
 27 Ace: Davis v. Easley, 13 111. 192 (1S51), semble; Burris v. Johnson, 1 J. 
 J. Marsh. (Ky.) 190 (1829). 
 
 A. caused a chain to be made from several broken links, some of which be- 
 longed to him and some to X. This was done without X.'s consent. X. took 
 the chain. A. brings trespass. An instruction that, if A. had incorporated
 
 182 ACQUISITION OP OWNERSHIP (Ch. 4 
 
 ELLIS V. WIRE. 
 
 (Supreme Court of Indiana, 1870. 33 Ind. 127, 5 Am. Rep. 189.) 
 
 Appeal from the Huntington Common Pleas. 
 
 Frazer, J. This was a suit, begun before a justice of the peace, 
 by the appellant, for the taking and cor.version of wheat and straw 
 of the appellant by the appellee. 
 
 There seems to have been no controversy in the evidence, concern- 
 ing the plaintiff's title to the property. The defendant, however, forci- 
 bly took possession of it as it stood in the field, driving the plaintiff 
 away, harvested and sold the grain for one dollar and seventy-five 
 cents per bushel, and on the trial was permitted, over the plaintiff's 
 objection, to prove the value of his own labor in harvesting and thresh- 
 ing the crop, for the purpose of reducing the damages. The question 
 before us is as to the admissibility of this evidence. It was not ad- 
 missible. The general rule in trover is, tliat the measure of the plain- 
 tiff's damages is the value of the property at the time of conversion, 
 without any deduction for labor voluntarily bestowed upon it by the 
 wrong doer. Ewart v. Kerr, 2 McMull. (S. C.) 141 ; Jenkins v. Mc- 
 Conico, 26 Ala. 213. The time of conversion is not, it seems, always 
 fixed by the same circumstances. Thus, a tortious taking is sufficient 
 proof of a conversion, but yet it appears from many of the cases that 
 the plaintiff may elect to consider the property as still his own and 
 treat a sale of it by the wrong doer, or a refusal to deliver on demand, 
 as the conversion. Or it has been held, that the law will, upon the 
 principle of natural justice, that a wrong doer ought not to be allowed 
 to make a profit by his own wilful tort, treat the conversion of prop- 
 erty of fluctuating value as occurring at such time between the taking 
 and the trial as the property bears the highest price in the market. 
 The confusion in the cases seems in part to have arisen out of the form 
 of the action, some courts and judges holding that by bringing trover 
 the plaintiff precludes himself from showing that the taking was wil- 
 ful, and hence that the inquiry concerning damages must in all such 
 cases, in that form of action, be confined to the value of the prop- 
 erty at the time of conversion, without reference to the manner of 
 the taking. In trespass, however, no such technical reason stood in 
 the way, and, so far as we know, there is no conflict in the cases, 
 where that was the form of action. 
 
 only two or three links of X.'s chain in this chain. It would not thereby be- 
 come X.'s property, held correct. Pulcifer v. Page, 32 Me. 404, 54 Am. Dec. 
 582 (1851). 
 
 A. cut grass on X.'s land, knowing that he had no authority to do so, and 
 made it into hay. The hay was negligently burned by B. Held, A. cannot 
 recover from B. Murphy v. S. C. & P. R. Co., 55 Iowa, 473, 8 N. W. 320, 39 
 A m. Rep. 175 (1881). 
 
 See Betts v. Lee, 5 Johns. (N. Y.) 348, 4 Am. Dec. 308 (1810).
 
 Sec. 3) ACCESSION 183 
 
 Some loose ideas in reference to the time of conversion have also 
 tended to darken counsel as to the measure of damages m trover where 
 the general rule that the value of the property at the time of conversion 
 has been held to be a universal rule. A wrongful taking and a de- 
 mand and refusal are each held in trover to be, not a conversion, but 
 merely sufficient evidence of it. And yet nothing can be clearer than 
 that these things do not change the title to the property; it still re- 
 mains in the plaintiff, and may, by action of replevin, be recovered in 
 specie, so long as its identity is perceptible to the senses. It may be so 
 recovered, though its form has been changed and its value greatly in- 
 creased by the labor of the defendant, as in the case of logs converted 
 into plank, wool into cloth, cloth into clothing, leather into boots and 
 shoes, and the like. It may in the new form be replevied, because it 
 is, in that form, still the property of the plaintiff, and the defendant 
 is not entitled to compensation for the labor bestowed upon it, for 
 that was his own folly, and, indeed, he was a wrong doer in the very 
 act of adding such value to the property of another. The sale of the 
 wheat was its actual conversion by the defendant, and its value at that 
 time, in the form in which he sold it, was the measure of damages, if 
 the plaintiff was content therewith ; though we think he was entitled 
 to the highest price of the property at any time between the taking and 
 the sale. So are the English cases. Greening v. Wilkinson, 1 C. & P. 
 625. And such seems to have been the doctrine of the common law 
 since the Year Books. See Brown v. Sax, 7 Cow. (N. Y.) 95 ; Betts 
 V. Lee, 5 Johns. (N. Y.) 348, 4 Am. Dec. 368; Baker v. Wheeler, 8 
 Wend. (N. Y.) 505, 24 Am. Dec. 66; Silsbury v. McCoon, 3 N. Y. 
 379, 53 Am: Dec. 307. 
 
 It is held otherwise in Massachusetts, but the ruling is maintained 
 there to preserve consistency of decision, and not because it was the 
 doctrine of the common law. We do not like the Massachusetts rule, 
 and if the question were res integra we would not adopt it, for the rea- 
 son that it is too tender of the interests of the wilful tort feasor. 
 
 Reversed, with costs; cause remanded for a new trial. ^* 
 
 SINGLE V. SCHNEIDER. 
 
 (Supreme Court of Wisconsin, 1S72. 30 Wis. 570.) 
 
 [Replevin for lumber. The defendant gave the bond required by 
 statute and retained possession of the lumber. The facts appear in the 
 opinion, and in the former report of the same case. 24 Wis. 299. The 
 jury found for the plaintiff', and found that 58,000 feet of the logs 
 were cut by the defendants in good faith, by mistake, and 59,350 were 
 
 2 3 Acc: Barton Coal Co. v. Cox, 39 Md. 1, 17 Am. Rep. 525 (1S73) ; Cheeney 
 V. NebrasUa & C. Stone Co. (C. C.) 41 Fed. 740 (l&OO).
 
 184 ACQUISITION OF OWNEUSniP (Ch. 4 
 
 cut wilfully, and not by mistake. A motion for a new trial being over- 
 ruled, defendants appealed from the judgment.] 
 
 Cole, J.'° This case has been before this court at a previous term, 
 and will be found reported in 24 Wis. 299. The facts as developed on 
 the second trial, were substantially the same as are the first. Among 
 other things, the court charged, in respect to the rule of damages as 
 follows : "When a person cuts logs upon the land of another, without 
 a lawful right so to do, but in good faith, believing that he has the 
 right to, he is entitled to have deducted from the value of the property 
 replevied, such cost and expense and labor as he has bestowed upon 
 the property to get it into its enhanced value. But on the other hand, 
 if knowingly and wilfully, without color or claim of right, he cuts logs 
 upon the land of another, the owner is entitled to recover the enhanced 
 value of the property in whatever shape he may put it, provided he re- 
 claims the specific property." 
 
 The sole question in the case arises upon the last paragraph of this 
 charge, which was excepted to on the trial. The jury found under this 
 charge that 58 M feet of the logs were cut by the defendants in good 
 faith by mistake, and that a little over 59 M feet were cut wilfully and 
 not by mistake; and the plaintiff had judgment for the improved value 
 of the property on that quantity. 
 
 The counsel for the defendant contends that, so far as the measure of 
 damages is concerned, it is quite immaterial whether the logs were cut 
 intentionally or through mistake — that the damages given in law as 
 compensation for an injury should be precisely commensurate with the 
 injury neither more or less; and that the plaintiff is not entitled to re- 
 cover the value of the property in its improved state, under the circum- 
 stances of this case. He concedes that, if there was anything tending 
 to show that the trespass was wanton or malicious — committed under 
 circumstances of insult or aggravation — then, upon the authorities, ex- 
 emplary damages might be allowed in the discretion of the jury, which 
 might exceed or fall below the value of the property enhanced by the 
 labor of the defendants. But he claims that when a person, though 
 intentionally, cuts pine logs upon the wild, unoccupied land of another, 
 to say, as a matter of right, the owner shall recover the enhanced val- 
 ue of the property manufactured into lumber, or into the most ex- 
 pensive furniture, is a rule contrary to the principles of natural jus- 
 tice, and not in accordance with the doctrine of the common law. 
 
 We are inclined to adopt this view of the matter, although we are 
 well aware that by so doing we lay down a rule in conflict with some 
 adjudications, which may be found. But it seems to us that, if the 
 owner is entirely indemnified for the injury he has sustained, it is quite 
 immaterial whether the logs were cut by mistake or intentionally, un- 
 less in the latter case the trespass was of such a character as to make 
 
 2 8 I'art of the opiuion is omitted.
 
 Sec. 3) ACCESSION 185 
 
 the doctrine of exemplary damages applicable. This was the view ex- 
 pressed by Mr. Justice Paine in Weymouth v. Chicago & Northwestern 
 R. R. Co., 17 Wis. 550, 555, 84 Am. Dec. 763, and it seems to us that it 
 is consonant with sound principle and natural justice. It is true, that 
 was an action of trover, and this is an action of replevin. But here the 
 defendants gave the undertaking under the statute, and retained pos- 
 session of the property. The judgment was in the alternative, for the 
 delivery" of the property to the plaintiff in case deliver}' could be had, 
 or for its value. The plaintiff does not really expect to recover the spe- 
 cific property, and therefore there is no valid reason for a distinction 
 between this case and that of trover, as regards the rule of damages ; 
 it should be the same in both cases. And consequently, whether the 
 logs were cut by mistake or intentionally is immaterial as affecting the 
 amount of the recover}-, unless the element of exemplary damages en- 
 ters into the case, which is not contended for by the counsel for the 
 plaintiff. But he insists that it is the settled rule of the common law 
 in the case of a voluntary trespass, that the owner may retake the 
 property in its improved state, or recover its enhanced value, so long 
 as its identity remains. 
 
 This was the great question discussed in the celebrated case of Sils- 
 bury V. McCoon, reported in 6 Hill, 425, 41 Am. Dec. 753, 4 Denio, 
 332, and 3 N. Y. 379, 53 Am. Dec. 307. * * * The majority of 
 the Court of Appeals held to the doctrine that one man could not gain 
 any title to the property of another upon the principle of accession, if 
 he took the other's property wilfully as a trespasser, though he might, 
 by his skill and labor, increase its value a thousand fold. But it seems 
 to us, to allow the owner to appropriate the labor of the wrongdoer in 
 this way is an unjust measure of redress. * * * 
 
 So, in this case before us, the rule seems rigorous and unnecessarily 
 severe, which says the defendants muSt lose all their labor bestowed up- 
 on the logs, providing they knew at the time they cut them that they 
 did not own the land. Let the plaintiff have full compensation for the 
 .trespass, which ordinarily is the value of the stumpage. Hungerford 
 V. Redford, 29 Wis. 345. But it is inconsistent, as it appears to us, 
 with the general principles and policy of the law, to allow the plaintiff 
 to recover the value of the logs manufactured into lumber. [The 
 plaintiff knew of the defendant's wilful trespass shortly after it was 
 committed. He took no steps to recover the logs, but marked them 
 and kept watch of them at the mills until they were sawed.] He wait- 
 ed until this was done, and now seeks to secure for himself the labor 
 and expense of another. And he invokes the aid of the principle that 
 a wilful trespasser can acquire no title or rights in the property of an- 
 other, however much he may have added to its value by his labor and 
 workmanship. There were no circumstances of fraud, malice or wan- 
 ton injury attending the trespass, and the value of the logs cut— or, as 
 it is sometimes called, the value of the stumpage — would seem to be the
 
 186 ACQUISITION OF OWNERSHIP (Ch. i 
 
 measure of just compensation. In this case that is readily ascertained 
 from the verdict of the jury. The plaintiff must remit the value of the 
 labor bestowed ujxjn 59,350 feet of logs as found by the jury, or there 
 must be a new trial. 
 Ordered accordingly.^" 
 
 RAILWAY CO. V. HUTCHINS. 
 (Supreme Court Commission of Oliio, 1S77. 32 Oliio St. .571, 30 Am. Rep. 620.) 
 
 [Action to recover damages for the conversion of wood. The judg- 
 ment below was for the plaintiff and defendant brings error.] 
 
 Wright, J.^"^ We have not deemed it necessary to solve all the 
 nice and difficult questions that relate to the plaintiff's' (Barbours') title 
 to this land. Whether or not they had the legal, they did also claim 
 an equitable title, and there was some evidence to sustain the claim. 
 This question of fact was left to the jury, who found upon it for 
 plaintiffs below. We are not clear that this finding was so palpably 
 against the weight of evidence as to justify interference by us. We 
 therefore assume that plaintiffs had title sufficient to maintain the ac- 
 tion in that respect, and proceed to the second point, the rule of dam- 
 ages. 
 
 The petition, it will be noticed, is not as for a trespass to real estate, 
 but to recover the value of the wood and timber stolen ; the action 
 throughout was treated as one to recover that value, and the case is 
 so treated here. 
 
 Upon the point now to be determined, the case is thus : A large 
 amount of wood was cut down upon plaintiffs' land, and stolen. The 
 thieves work it up into cord-wood and ties, thus increasing its value 
 three-fold. The depredators then sell it to the railroad company, who 
 is entirely innocent in the whole matter. The real owner now sues 
 the railroad company for the property taken from his land. Shall he 
 recover one dollar or three? 
 
 It is said upon the one hand to be an universal rule of law that a 
 ^ man's property can not be taken from him without his consent, unless 
 by law, and that stealing can convey no title to the thief. In Silsbury 
 V. McCoon, 3 N. Y. 381, 53 Am. Dec. 307, it is said: "It is an ele- 
 mentary principle in the law of all civilized communities, that no man 
 can be deprived of his property, except by his own voluntary act, or 
 by operation of law. The thief who steals a chattel, or the trespasser 
 who takes it by force, acquires no title by such wrongful taking." It 
 is then argued that the thief, having none himself, could convey no 
 
 30 Compare Heard v. James, 49 Miss. 236 (1S73) ; Tuttle v. Wilson, 52 Wis. 
 643, 9 N. W. S22 (1^81). See St. Wis. 1S9S, § 42U9. 
 
 31 Part of the opinion is omitted.
 
 Sec. 3) ACCESSION 187 
 
 title to any other person taking it however innocently. Hence when 
 the railroad company obtained the property they obtained what was 
 the plaintiffs', and they could have replevied it, increased in value as 
 it was, by the labor of the thief. If this were so, then it is argued 
 that the company were liable for the value of the wood in its improved 
 condition, enhanced to the extent of three-fold. 
 
 If the owners were bringing this action against the thieves, perhaps 
 it might be conceded that the full amount could be recovered. This 
 we understand to be upon the principle "in odium spoliatoris." The 
 thief will not be allowed to have anything by virtue of his own wrong, 
 and if he has spent his labor upon stolen goods, he shall not profit by 
 it. It is his own loss. 
 
 "The English law will not allow one man to gain a title to the prop- 
 erty of another, upon the principle of accession, if he took the other's 
 property willfully as a trespasser." 2 Kent, 363. 
 
 But it seems to be well understood that the rights of the parties are 
 made to depend, to a great extent, upon the intent with which the con- 
 version of property has been brought about. If it was taken mala 
 fide, by theft, or with a willful purpose to do wrong, the consequences 
 are different from those which follow upon the act done under an hon- 
 est mistake, and perhaps it is as wise to punish the robber as to protect 
 the innocent. * * * 
 
 That the intent of the defendant is material in regard to damages, 
 has always been recognized in our law. Upon this is founded the 
 whole idea of exemplary damages. We know it has been strenuously 
 urged in what has been called "the speculative notions of fanciful 
 writers" (McBride v. McLaughlin, 5 Watts (Pa.) 375 ; Sedgw. 463), 
 that punishment belongs only to the administration of criminal law, 
 and has no proper place in that civil procedure which adjusts only the 
 rights of parties; but the principle is too firmly settled to be contro- 
 verted now. Pratt v. Pond, 42 Conn. 318; Walker v. Fuller, 29 Ark. 
 448; Grund v. Van Vleck, 69 111. 478. And yet the rule should be 
 carefully applied, as it may leave to courts and juries to detennine 
 the extent of punishment unrestricted by the well-defined limits of 
 statutory enactment. Therefore it is that there are authorities hold- 
 ing that even in cases of willful trespass, if the trespasser has made a 
 large increase in the value of the property by his labor, it will not be 
 allowed that it shall all go to the original owner, because it is said to 
 be unjust. 
 
 The fact that the trespasser is to lose the labor and expense he has 
 put upon property he has wrongfully taken, results as a punishment to 
 him for what he has done ; on this ground the original owner recovers 
 the increased value, not because of any rights in him, but because the 
 law gives this infliction, as a terror to offenders. Yet the punishment 
 must be proportioned in some way to the circumstances of the case.
 
 ISS _ ACQUISITION OF OWNERSHIP (Ch. 4 
 
 and a proper inquiry is, in what manner and to what extent should the 
 trespasser suffer, and conversely what should be the kind and meas- 
 ure of redress to the injured party. 
 
 Brown, [Bronson] J., puts this case (Silsbury v. McCoon, 4 Denio 
 [N. Y.] 337) : A trespasser who takes iron ore and converts it into 
 watch-springs, by which its value is increased a thousand fold, should 
 not be hanged ; nor should he lose the whole of the new product. Ei- 
 ther punishment would be too great. Nor should the owner of the 
 ore have the watch-springs, for it would be more than a just measure 
 of redress. 
 
 The Supreme Court of Wisconsin adopts the same idea. The case 
 of Single v. Schneider, 30 Wis. 570, is a case where logs were will- 
 fully cut from the premises of another, they say it is unnecessarily 
 severe that defendant should lose the value of all their labor. S. c. 24 
 Wis. 299; Weymouth v. C. & N. W. R. R., 17 Wis. 550, 84 Am. Dec. 
 763 ; Hungerford v. Redford, 29 Wis. 345. An interesting discussion 
 of the question of damages by Judge Cooley is to be found in Wether- 
 bee V. Green, 22 Mich. 311, 7 Am. Rep. 653, the syllabus of which 
 is : "No test which satisfies the reason of the law can be applied in 
 the adjustment of questions of title to chattels, by accession, imless 
 it keeps in view the circumstances of relative values. The purpose 
 of the law will not be gained by establishing arbitrary distinctions 
 based upon physical reasons; but its object must be to adjust the re- 
 dress aft'orded to one party and the penalty inflicted on th& other, as 
 near as the circumstances will permit, to rules of substantial justice, if 
 very great increase in value in the change of property from one form 
 to another, is of more importance in determining the rights of par- 
 ties in it, than any inexpensive chemical change of mechanical trans- 
 formation, however radical. And where timber of the value of $25 
 had been, in the exercise of what was supposed to be proper authority, 
 converted into hoops, of the value of $700, the title to the property, 
 in its converted form, passed to the party by whose labor, in good 
 faith, the change had been wrought." In this case it was a conceded 
 fact that the taking of the timber was in good faith, defendant sup- 
 posing that he had a license so to do from the owner of the land. In 
 this, however, it appears he was mistaken. Judge Cooley discusses 
 very fully the distinction between cases where property is taken inno- 
 cently, and where it is taken dishonestly, and recognizes the proposi- 
 tion that the rule of damages is varied accordingly. He also discusses 
 the rule already so frequently spoken of, that when the owner can 
 trace the identity of his property, he may reclaim it however it may 
 be increased in value. But this he seems to think an unsatisfactory 
 test, tlie purpose of the law being to adjust the redress afforded to the 
 one party, and the penalty inflicted upon the other, as near as the cir- 
 cumstances will permit, to the rules of substantial justice. If one had
 
 Sec. 3) ACCESSION 189 
 
 a stick of timber stolen, and could distinctly trace it into a house be- 
 ing newly built, the identification might be beyond peradventure, yet 
 no one would claim that the owner of the stick could recover the 
 whole house, either in ejectment or its value in damages. Or a par- 
 ticular piece of wood might be followed into an organ, but the owner 
 of the wood could not replevy the organ. Where the right to the im- 
 proved articles is the point in issue, certainly the question should be 
 considered, how much the property or labor of each has contributed 
 to make it what it is, at least in those cases where no bad faith ex- 
 ists. 
 
 It can not therefore be true, in every instance, that because a man 
 can trace his property, he can always recover it, regardless of the 
 circumstances under which it has come into the hands of the present 
 holder, regardless of its improved condition, and regardless of the 
 injury an absolute and unconditional recaption may occasion. The 
 law as Judge Cooley says, endeavors to do what is right and just be- 
 tween the parties, and while it will seek to compensate the real owner, 
 will not occasion outrage to one who has been innocent. 
 
 It may be that if these owners had found their wood in the hands 
 of the trespassers, it might have been retaken, or its value as cord 
 wood recovered ; but if so it would be upon the principle "in odium 
 spoliatoris" ; the thief could gain nothing by his own wrong, and 
 therefore the results of his labor go to the owner of the property. But 
 this principle can not apply where an innocent purchaser comes into 
 the case, for the simple reason that he has done no wrong. 
 
 It is very true that die willful trespasser or thief can convey no title 
 to one to whom he sells, however innocent the purchaser may be. But 
 the question right here is, what does "title" in this connection mean? 
 The original owner has the "title" to his timber, and, as against the 
 thief, the title to the results of the thief's labor. The wrong-doer as 
 it were, being estopped from setting up any claim by virtue of the 
 wrong he has done. Against the innocent purchaser from the thief, 
 the original owner still has the "title" to his timber, but by virtue of 
 what does he now have "title" to the thief's labor? The estoppel, so 
 to call it, being created by fraud or wrong, exists only against the 
 one guilty of that fraud or wrong, which the purchaser is not, and 
 while it is effectual against the wrong-doer, the reason of it does not 
 exist as against the innocent man, as to whom it therefore fails. As 
 Judge Cooley says, it does not comport with notions of justice and 
 equity, that against those who have done no wrong, these owners 
 should recover three times the value of what they have lost. They 
 have never spent one cent of money, nor one hour of labor, in chang- 
 ing this timber worth one dollar, into cord wood worth three. All 
 this was done by some one else, and why should the owners recover 
 for it? If they are compensated for what they have lost, and all
 
 190 ACQUISITION OF OWXEHSHIP (CIl. 4 
 
 they have lost, they are certainly fully paid. Woolsey v. Seeley, 
 Wright, 360. And this is all they should be allowed to recover. 
 
 For this error, in the charge on the subject of damages, tlie judg- 
 ment is reversed.'^ 
 
 WOODEN-WARE CO. v. UNITED STATES. 
 
 (Supreme Court of tbe United States, 1SS2. 106 L'. S. 432, 1 Sup. Ct. 39S, 27 
 
 L. Ed. 230.) 
 
 [Action in the nature of trover brought by the United States for 
 the value of 242 cords of ash timber. The timber was knowingly 
 and wrongfully cut by Indians on government land, taken by them to 
 the town of Depere and sold to the defendant company. The latter 
 is not chargeable with any intentional wrong or bad faith. The value 
 of the timber on the ground after it was felled was $60.71 for the 
 whole amount; at the town where the defendant bought it, $850.00 
 for the whole amount. Judgment was rendered against the defendant 
 for the latter sum. Defendant brought error.] 
 
 Miller, J.^^ * * * \Yq cannot follow counsel for the plaintiff 
 in error through the examination of all the cases, both in England and 
 this country, which his commendable research has enabled him to place 
 upon the brief. In the English courts the decisions have in the main 
 grown out of coal taken from the mine, and in such cases the principle 
 seems to be established in those courts, that when suit is brought for 
 the value of the coal so taken, and it has been the result of an honest 
 mistake as to the true ownership of the mine, and the taking was not 
 a wilful trespass, the rule of damages is the value of the coal as 
 it was in the mine before it was disturbed, and not its value when dug 
 out and delivered at the mouth of the mine. Martin v. Porter, 5 Mee. 
 & W. 351 ; Morgan v. Powell, 3 Ad. & E. N. S. 278; Wood v. More- 
 wood, 3 Id. 440; Hilton v. Woods, Law Rep. 4 Eq. 432; Jegon v. 
 Vivian, Law Rep. 6 Ch. App. 742. 
 
 The doctrine of the English courts on this subject is probably as 
 well stated by Lord Hatherley in the House of Lords, in the case 
 of Livingstone v. Rawyards Coal Co., 5 App. Cas. 25, as anywhere else. 
 He said: "There is no doubt that if a man furtively, and in bad faith, 
 robs his neighbor of his property, and because it is underground is 
 probably for some little time not detected, the court of equity in this 
 country will struggle, or, I would rather say, will assert its authority 
 to punish the fraud by fixing the person with the value of the whole 
 of the property which he has so furtively taken, and making him no 
 
 3 2 Ace.: Wright v. E. E. Bolles Wooden Ware Co., 50 Wis. 167, 6 N. W. SOS 
 (ISSO). 
 
 33 Part of the opinion is omitted.
 
 Sec. 3) ACCESSION 191 
 
 allowance in respect of what he has so done, as would have been just- 
 ly made to him if the parties had been working by agreement." But 
 "when once we arrive at the fact that an inadvertence has been the 
 cause of the misfortune, then the simple course is to make every just 
 alk)wance for outlay on the part of the person w'ho has so acquired 
 the property, and to give back to the owner, so far as is possible 
 under the circumstances of the case, the full value of that which can- 
 not be restored to him in specie." 
 
 There seems to us to be no doubt that in the case of a wilful tres- 
 pass the rule as stated above is the law of damages both in England 
 and in this country, though in some of the State courts the milder rule 
 has been applied even in this class of cases. Such are some that are 
 cited from Wisconsin. \\^eymouth v. Chicago & Northwestern Rail- 
 wav Co., 17 Wis. 550, 84 Am. Dec. 763 ; Single v. Schneider, 24 Wis. 
 299. 
 
 On the other hand, the weight of authority in this country as well 
 as in England favors the doctrine that where the trespass is the result 
 of inadvertence or mistake, and the wrong was not intentional the 
 value of the propert)' when first taken must govern; or if the con- 
 version sued for was after value had been added to it by the work of 
 the defendant, he should be credited with this addition. 
 
 Winchester v. Craig, 33 ^lich. 205, contains a full examination of the 
 authorities on the point. Heard v. James, 49 Miss. 236; Baker v. 
 Wheeler, 8 Wend. (N. Y.) 505, 24 Am. Dec. 66 ; Baldwin v. Porter, 
 12 Conn. 484. 
 
 While these principles are sufficient to enable us to fix a measure 
 of damages in both classes of torts where the original trespasser is 
 defendant, there remains a third class, where a purchaser from him is 
 sued, as in this case, for the conversion of the property to his own 
 use. In such case, if the first taker of the property were guiltv of 
 no W'ilful wrong, the rule can in no case be more stringent against 
 the defendant who purchased of him than against his vendor. 
 
 But the case before us is one where, by reason of the wilful wrong 
 of the party who committed the trespass, he was liable, under the 
 rule we have supposed to be established, for the value of the timber 
 at Depere, the moment before he sold it, and the question to be de- 
 cided is whether the defendant who purchased it then with no notice 
 that the property belonged to the United States, and with no inten- 
 tion to do wrong, must respond by the same rule of damages as his 
 vendor should if he had been sued. 
 
 It seems to us that he must. The timber at all stages of the con- 
 version was the property of plaintiff. Its purchase by defendant 
 did not divest the title nor the right of possession. The recovery 
 of any sum whatever is based upon that proposition. This right, at 
 the moment preceding the purchase by defendant at Depere, was per-
 
 192 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 feet, with no riglit in any one to set up a claim for work and labor 
 bestowed on it by the wrong-doer. It is also plain that by purchase 
 from the wrong-doer defendant did not acquire any better title to the 
 property than his vendor had. It is not a case where an innocent pur- 
 chaser can defend himself under that plea. If it were, he would be 
 liable to no damages at all, and no recovery could be had. On the 
 contrary, it is a case to which the doctrine of caveat emptor applies, 
 and hence the right of recovery in plaintilf. 
 
 On what ground, then, can it be maintained that the right to re- 
 cover against him should not be just what it was against his ven- 
 dor the moment before he interfered and acquired possession? If 
 the case were one which concerned additional value placed upon the 
 property by the work or labor of the defendant after he had pur- 
 chased, the same rule might be applied as in case of the inadvertent 
 trespasser. 
 
 But here he has added nothing to its value. He acquired posses- 
 sion of property of the United States at Depere, which, at that place, 
 and in its then condition, is worth $850, and he wants to satisfy the 
 claim of the government by the payment of $60. He founds his right 
 to do this, not on the ground that anything he has added to the prop- 
 erty has increased its value by the amount of the difference between 
 these two sums, but on the proposition that in purchasing the prop- 
 erty he purchased of the wrong-doer a right to deduct what the labor 
 of the latter had added to its value. 
 
 If, as in the case of an unintentional trespasser, such right existed, 
 of course defendant would have bought it and stood in his shoes ; 
 but as in the present case, of an intentional trespasser, who had no 
 such right to sell, the defendant could purchase none. * * * 
 
 To establish any other principle in such a case as this would be very 
 disastrous to the interest of the public in the immense forest lands of 
 the government. It has long been a matter of complaint that the 
 depredations upon these lands are rapidly destroying the finest forests 
 in the world. Unlike the individual owner, who, by fencing and vigi- 
 lant attention, can protect his valuable trees, the government has no 
 adequate defence against this great evil. Its liberality in allowing 
 trees to be cut on its lands for mining, agricultural, and other specified 
 uses has been used to screen the lawless depredator who destroys 
 and sells for profit. 
 
 To hold that when the government finds its own property in hands 
 but one remove from these wilful trespassers, and asserts its right 
 to such property by the slow processes of the law, the holder can set 
 up a claim for the value which has been added to the property by the 
 guilty party in the act of cutting down the trees and removing the tim- 
 ber, is to give encouragement and reward to the wrong-doer, by pro- 
 viding a safe market for what he has stolen and compensation for the
 
 Sec. 3) ACCESSION 19.3 
 
 labor he has been compelled to do to make his theft effectual and 
 profitable. 
 
 We concur with the circuit judge in this case, and the judgment of 
 the Circuit Court is affirmed.^* 
 
 PEIRCE V. GODDARD. 
 
 (Supreme Judicial Court of Massachusetts, 1839. 22 Pick. 559, 33 Am. 
 
 Dec. 764.) 
 
 Wilde, J.^° This action is submitted on an agreed statement of 
 facts, by which it appears that one Davenport, being the owner of a lot 
 of land with a dwellinghouse thereon, mortgaged the same to the plain- 
 tiff; that afterwards he took down the house, and with the ma- 
 terials partly, and partly with new materials, built a new house on 
 another lot of his at some distance; and that after the new house 
 was completed, he for a valuable consideration, sold the last mentioned 
 lot and house to the defendant. 
 
 There are two counts in the declaration, one, for the conversion of 
 the newly erected house, and the other, for the conversion of the ma- 
 terials with which it was built, belonging to the old house. 
 
 The plaintiff's counsel insist, that the old house was the property 
 
 3* Ace: Tuttle v. Wliite. 46 Jlicli. 4S.5, 9 N. W. 528, 41 Am. Rep. 175 (ISSl). 
 
 Ace, in alternative judaments for damages in actions of replevin: Peters 
 Box & Lumlier Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367 
 (ISsn) ; Strubbee v. Trustees of Cincinnati Ry., 78 Ky. 481, 39 Am. Rep. 251 
 (1880). 
 
 Ace, where the defendant bought with the knowledge of the original con- 
 vertor's bad faith and had not added value since his purchase. Pine River 
 Logging & Improvement Co. v. United States, 186 U. S. 279, 22 Sup. Ct. 920, 
 46 L. Ed. 1164 (1002). 
 
 A. in good faith, but tortiously, converted X.'s timber, cut it into boards, 
 and sold them to B., who bought in good faith. Held, X. recovers from B. 
 the value at the time of A.'s original conversion. Whitnev v. Huntington, 37 
 Minn. 197, ZZ X. W. 561 (1887) ; Wall v. HoUoman. 156 X. C. 275, 72 S. E. 
 369 (1911). Compare Glaspy v. Cabot, 135 Mass. 435 (1SS.3). 
 
 A. tortiously and in bad faith cut X.'s timber, and sold it to B., who bought 
 in good faith. B. transported it to a city and sold it to C, who bought in good 
 faith. Held. X. may recover from C. the value at the time of his purchase. 
 Nesbitt V. St. Paul Lumber Co., 21 Minn. 491 (187.5). 
 
 A. tortiously and in bad faith cut timber on X.'s land. A. purported to sell 
 the logs to B., who in good faith made advances to A. on the logs. A. subse- 
 quently delivered them to B. Held, X. recovers from B. the value at the 
 time the advances were made. Fisher v. Brown, 70 Fed. 570, 17 C. C. A. 225 
 (1895). 
 
 A. tortiously and in bad faith took crude gum from X.'s land, B. bought it 
 in good faith, mixed it with other gum, distilled from it turpentine, and sold 
 the turpentine to C, who bought in good faith. Held, X. cannot maintaiu 
 trover against C. TJ. S. v. Waters-Pierce Oil Co. (C. C.) ISO Fed. 309 (1910). 
 
 See, also. Dolliff v. Robbins, S3 Minn. 498, 86 X. W. 772, 85 Am. St. Rep. 466 
 (1001). 
 
 35 The statement of facts and part of the opinion is omitted. 
 Bio.Pebs.Pkop. — 13
 
 194 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 of the plaintiff, and that Davenport had no right to take it down, 
 and could not therefore acquire any property in the materials by such 
 a wrongful act; that the new house, being built with the materials 
 from the old house in part, became the property of the plaintiff, al- 
 though new materials were added, by right of accession ; and that 
 Davenport, having no property in the house, as against the plaintiff', 
 could convey no title to it to the defendant. 
 
 That Davenport is responsible for taking down and removing the 
 old house, cannot admit of a doubt; but it does not follow, that the 
 property in the new house vested in the plaintiff. 
 
 The rules of law, by which the right of property may be acquired 
 by accession or adjunction, were principally derived from the civil 
 law, but have been long sanctioned by the courts of England and of 
 this country as established principles of law. 
 
 The genera! rule is, that the owner of property, whether the prop- 
 erty be movable or immovable, has the right to that which is united 
 to it by accession or adjunction. But by the law of England as well 
 as by the civil law, a trespasser, who wilfully takes the property of 
 another, can acquire no right in it on the principle of accession, but the 
 owner may reclaim it, whatever alteration of form it may have under- 
 gone, unless it be changed into a different species and be incapable of 
 being restored to its former state ; and even then the trespasser, by 
 the civil law, could acquire no right by the accession, unless the ma- 
 terials had been taken away in ignorance of their being the property of 
 another. 2 Kent's Comm.'362; Betts v. Lee, 5 Johns. (N. Y.) 348, 4 
 Am. Dec. 368. But there are exceptions to the general rule. 
 
 It is laid down by Molloy as a settled principle of law, that if a 
 man cuts down the trees of another, or takes timber or plank prepared 
 for the erecting or repairing of a dwellinghouse, may, though some of 
 them are for shipping, and builds a ship, the property follows not 
 the owners but the builders. Mol. de Jure Mar. lib. 2, c. 1, § 7. 
 
 Another similar exception is laid down by Chancellor Kent in his 
 Commentaries, which is directly in point in the present case. If, he 
 says, A. builds a house on his own land with the materials of another, 
 the property in the land vests the property in the building by right 
 of accession, and the owner of the land would only be obliged to an- 
 swer to the owner of the materials for the value of them. 2 Kent's 
 Comm. 360, 361. This principle is fully sustained by the authorities. 
 In Bro. tit. Property, pi. 23, it is said, that if timber be taken and made 
 into a house, it cannot be reclaimed by the owner ; for the nature of it 
 is changed, and it has become a part of the freehold. In Moore, 20, 
 it was held, that if a man takes trees of another and makes them into 
 boards, still the owner may retake them, but that if a house be made 
 with the timber it is otherwise. * * * 
 
 The case of Russell v. Richards, 10 Me. 429, 25 Am. Dec. 254, cit- 
 ed by the plaintiff's counsel, was decided on the ground, that the
 
 Sec. 4) CONFUSION 195 
 
 building in controversy was personal property and had never become 
 a part of the freehold. In the present case it cannot be questioned, 
 that the newly erected dwellinghouse was a part of the freehold, and 
 was the property of Davenport. The materials used in its construc- 
 tion ceased to be personal property, and the owner's property in them 
 was divested, as effectually as though they had been destroyed. It is 
 clear, therefore, that the plaintiff could not maintain an action even 
 against Davenport, for the conversion of the new house. And it is 
 equally clear, that he cannot maintain the present action for the con- 
 version of the materials taken from the old house. The taking down 
 that house and using the materials in the construction of the new 
 building, was the tortious act of Davenport, for which he alone is 
 responsible. 
 
 Plaintiff nonsuit.^* 
 
 SECTION 4.— CONFUSION 
 
 CARPENTER v. GRIFFIN. 
 
 (Court of Chancery of New York, 1841. 9 Paige, 310, 37 Am. Dec. 396.) 
 
 Theodosius O. Fowler, in October, 1836, leased to the defendant 
 Spencer a farm, with the sheep then on it, and thirty cows for the 
 term of five years from the first of January, 1837, for the rent of 
 $350 annually. And the lease contained the following clause relative 
 to the cows and sheep, which was the only provision in the lease re- 
 specting the same: "Cows of equal age and quality to be returned at 
 the end of the said term, and also the sheep." On the 5th of July, 
 1839, Fowler sold the farm to the complainant, with all his interest 
 in the personal property, stock, farming utensils, etc. In 1837, Spen- 
 cer purchased and put upon the farm thirteen cows in addition to those 
 mentioned in the lease, and in 1839, seven other cows ; all of which, 
 as stated in the answer, were purchased with his own funds. These 
 twenty cows, together with eight of the cows mentioned in the lease, 
 and nine others which were raised on the farm or procured with the 
 proceeds of cows and sheep sold, were remaining on the premises in 
 December, 1839, when they were levied on by executions in favor of 
 the defendant Griffin against Spencer. .\nd the hay, farming tools, 
 and dairy utensils, of Spencer, on the farm, were also levied on by 
 
 36 Ace: Eicketts v. Dorrel, 55 Ind. 470 (1S7C). 
 
 A. tortiously and In bad faith removed a small house from X.'s land, and 
 sold it to B., who bought with notice of the facts. B. put the house on a 
 foundation on other laud l)elouging to B. Held, X. may replevy the house 
 from B. Central Branch R. Co. v. Fritz, 20 Kan. 430, 27 Am. Rep. 175 (1S7S).
 
 19G ACQUISITION OF OWNERSHIP (Ch. 4 
 
 virtue of such executions. The complainant thereupon filed his bill 
 in this cause, and procured an injunction to restrain the defendant 
 Griffin from selling the property under his executions or removing the 
 same, from the farm ; and to restrain Spencer from selling or dispos- 
 ing of the cows. 
 
 The ChaJtcellor =^ [Reuben H. Walworth]. * * * The 
 only question * * * which remains for consideration relates to 
 the cows. * * * 
 
 I infer from the terms of the lease, however, that it was not con- 
 templated by the parties to that instrument that the same cows which 
 were leased with the farm should be returned at the end of the five 
 years; but that the lessee should return to his landlord, at the end of 
 the term, thirty cows, of the same age, and equal in value to those 
 which were received at the commencement of the term. If such was 
 the intent and meaning of the contract, I do not see how this case 
 can be distinguished from that of Hurd v. West, 7 Cow. R. 752. In 
 that case the supreme court decided that where a certain number of 
 sheep were hired by A. to B. at a pound of wool a head per annum, 
 and at the expiration of the time limited, B. was to return to him the 
 same number of sheep and of as good quality, the title to the sheep 
 did not continue in A. ; but that the lessee might dispose of the sheep 
 let, and return other sheep of the same value at the time appointed for 
 the fulfilment of the contract on his part. 
 
 In the present case the stipulation in the lease is, to return, at the 
 end of the five years, cows of equal age and quality ; which necessarily 
 excludes the idea that the identical cows put on by the landlord were 
 to be returned to him at the expiration of the term. For those cows 
 could not be of equal age, although they might possibly be of equal 
 value, with the thirty cows when they were put on to the farm in 
 January, 1837. * * * 
 
 Without any stipulation on the subject, it is impossible to discover 
 upon what principle the complainant, in the present case, can claim 
 the right to the cows which have been purchased by the tenant with 
 his own funds. * * * As to the eight cows remaining of those 
 which were put on to the farm at the commencement of the term, and 
 those which have been bought with the avails of cows or sheep which 
 have since been sold by the tenant, there might have been some room 
 for resisting the claim of the creditor to a preference, by virtue of his 
 execution, if the term had expired before the property was levied on; 
 so as to have entitled the complainant to an immediate return of the 
 cows and sheep mentioned in the lease, according to the stipulation 
 therein contained. But applying the well established principles of law 
 to the written contract between the landlord and his tenant, in this 
 case, I am bound to decide that the legal title to the cows and sheep 
 
 3' The statement of facts is abridged and part of tlie opinion is omitted.
 
 Sec. 4) CONFUSION 197 
 
 put on the farm at the commencement of the term passed to the ten- 
 ant, so as to give him the right to dispose of them, and to subject 
 them to seizure and sale for his debts. By the lease the landlord has 
 not secured to himself any legal or equitable lien upon those cows and 
 sheep, or upon others that may be brought on to the farm by the ten- 
 ant, but which shall not belong to him at the expiration of the lease. 
 And he has only the right to compel Spencer, at the end of the term, 
 to restore to him an equal number of cows and sheep of the same ages 
 as those leased with the farm at the time the tenancy commenced, and 
 of the same value. 
 
 The injunction must therefore be dissolved as to both defend- 
 ants.'« * * * 
 
 SOUTH AUSTRALIAN INS. CO. v. RANDELL et al 
 (Judicial Committee of the Priry Council, 1869. L,. R. 3 P. C. 101.) 
 
 This was an action on a fire policy of insurance, in which the re- 
 spondents were plaintiffs, and the appellants were defendants. 
 
 The appellants were an insurance company, carrying on business in 
 the province of South Australia, and having their principal place of 
 business at Adelaide, in that province. The respondents were millers, 
 carrying on business at Blumberg, in the same province. 
 
 The facts were these: 
 
 On the 4th of July, 1866, application was made to the appellants by 
 the respondents, to insure the current stock in their mill, namely, 
 wheat, flour, sacks, etc., to the amount of £1,250. against loss or dam- 
 age by fire, and on the same day an insurance was eft'ected in the terms 
 of such application, and subject to the conditions indorsed on the 
 policy ; one of which was that "goods held in trust or on commis- 
 sion must be insured as such, otherwise the policy will not extend to 
 cover them." 
 
 On the 17th of February, 1867, a fire occurred, whereby the re- 
 spondents' mill, with the stock therein, was destroyed. A claim was 
 made by the respondents for the loss, but the amount being disputed 
 by the appellants, an action was brought by them to recover the value 
 of the stock. 
 
 3 8 Compare Bellows t. Denison, 9 N. H. 293 (1S3S). 
 
 "I agree to take all the wheat that A. has in B.'s storehouse and give him 
 1 barrel of flour at my mill for every 4 bushels of wheat. X." A. delivered 
 4.000 bushels of wheat to X., who delivered 200 barrels of flour. The rest of 
 the wheat was burned without X.'s fault. Held, he is liable for failure to 
 deliver the other barrels of flour. Xorton v. Woodrufif, 2 N. Y. 153 (1&49). 
 
 X. delivered logs to A. under a contract whereby A. was to saw them into 
 boards and have half the boards. A. sawed part of the logs and appropriated 
 to his own use both the boards and logs. Held, X. may maintain trover for 
 Loth boards and logs. Pierce v. Schenck, 3 Hill (X. T.)"28 (1S42.)
 
 198 • ACQUISITION OF OWNERSHIP (Ch. 4 
 
 The plaintiffs declared upon the policy, and the defendants pleaded, 
 that the plaintiffs were not interested in the stock, and also that in their 
 proposals for the insurance they represented that tlie stock was to be 
 insured for themselves, whereas it was held by the plaintiffs in trust 
 for other persons. Issue was joined on the pleas, and the action was 
 tried before the Chief Justice and a jury. 
 
 Upon the trial it was admitted by the plaintiffs, that the stock which 
 had been destroyed by the fire had been paid for by the defendants, 
 except such portion as the defendants alleged was held by the plain- 
 tiffs in trust for others; and the question was, whether such portion, 
 consisting of wheat, was held by the plaintiffs in trust, within the 
 meaning of the above condition, and was therefore not covered by the 
 policy. 
 
 The evidence, so far as it was material to this question, shewed that 
 according to the plaintiffs' custom and course of business wheat was 
 received by them from farmers to whom such course of business and 
 dealing was known, and on receipt, shot out of bags in the presence 
 of the farmers who brought it into large hutches, where it became 
 mixed with other wheat which had been received in a similar man- 
 ner, and on part of which advances had been made to the farmers by 
 the plaintiffs. The wheat thus mixed lost its identity and became the 
 current stock of the plaintiffs, which, according to their course of deal- 
 ing, known to the fanners, was either sold as wheat by the plaintiffs 
 or ground in their mill. The plaintiffs could do what they liked with 
 it. If ground, the flour produced from such stock was sold and oth- 
 erwise dealt with by the plaintiffs as they thought fit, and as their 
 own property. It never was intended by the parties that the identical 
 wheat delivered by the farmers should be returned to them. On de- 
 livery of the wheat to the plaintiffs they gave to the farmer a receipt 
 in these terms: "Received," etc., "to store," and it was shot to be 
 stored or taken on storage. The farmer could at any time demand 
 an equal quantity of wheat of like quality with that delivered by him 
 to the plaintiff's, or the market price of an equal quantity, fixing the 
 price as of the day on which he made his demand. The plaintiffs 
 had the option of delivering wheat of like quality or paying such mar- 
 ket price. Advances were frequently made to the farmers by the plain- 
 tiffs in respect of the wheat so delivered to them. No charge was 
 made by the plaintiffs in respect of the wheat until after the lapse of 
 a certain time, when the charge was one farthing per bushel per month. 
 The wheat in question had been brought by farmers to the plaintiffs 
 in manner aforesaid, and in the course of business, and had been 
 mixed with other wheat, and treated in the manner aforesaid, and a 
 portion of it had been paid for by the plaintiffs. No evidence was 
 adduced on the part of the defendants, but their counsel applied for 
 a nonsuit on the ground that the wheat was held in trust, and was not 
 the property of the plaintiffs.
 
 Sec. 4) CONFUSION 199 
 
 The Chief Justice declined to nonsuit the plaintiffs, and by consent 
 the verdict was entered for them for £698., including interest, with 
 leave to the defendants to move to enter a verdict for them if the 
 court should be of opinion, that the wheat so taken on storage was 
 held in trust within the terms of the conditions in the policy. 
 
 A rule nisi was granted calling on the plaintiffs to shew cause why 
 the verdict for the plaintiffs should not be set aside and a verdict en- 
 tered for the defendants, pursuant to leave reserved, upon the follow- 
 ing grounds : First, that the goods stored had not been assured by the 
 plaintiffs ; and secondly, that the wheat taken on storage was held 
 upon trust within the terms of the conditions of the policy. 
 
 This rule came on to be argued before the Chief Justice and Mr. 
 Justice Gwynne, when the Court was divided in opinion, Mr. Justice 
 Gwynne being of opinion, that the property in the wheat when deliv- 
 ered was vested in the plaintiffs beneficially, as their own property, 
 and was not property held in trust ; the Chief Justice being of the con- 
 trary opinion, and Mr. Justice Wearing being precluded from taking 
 part in the judgment, the rule was discharged. 
 
 From this judgment the present appeal was brought. 
 
 Their Lordship's judgment was pronounced by 
 
 Sir Joseph Napier. ^° The question in this case is, whether the 
 wheat that was taken in storage by the respondents, under the circum- 
 stances stated in the Chief Justice's notes of the evidence at the trial 
 before him, is to be considered as property held by the respondents in 
 trust, or whether it is correctly described in the proposal and in the 
 policy of insurance as property in which the respondents were inter- 
 ested for themselves? According to the case that* was cited by Mr. 
 Thesiger in his very able argument, the words of the policy as to prop- 
 erty held in trust ought not to receive a technical chancery construc- 
 tion (if I may so call it) ; but the substantial question is, whether the 
 respondents were the beneficial owners of the wheat insured, or had 
 merely the possession as bailees, whilst the property remained in the 
 farmers who delivered the wheat, so long at least as it was not actually 
 appropriated by use or payment on the part of the respondents? 
 
 Looking to the evidence, in order to ascertain the conditions upon 
 which this wheat was delivered and taken in storage, we find in the 
 evidence of Randell fone of the plaintiffs) the following passage : "At 
 the time of the fire the whole of the wheat, excepting a few bags — not 
 more than twenty — was in bulk. It had been shot out of bags into 
 large hutches. Have been a miller twelve years. The wheat was ours 
 to do what we thought proper. We might grind or sell ; and when 
 any one came who had brought us wheat, we had to pay market price 
 of equal quality." Again, the foreman of the plaintiffs, in his evi- 
 dence, says: "Farmer brings the wheat, and he can sell it when he 
 pleases to the miller. Miller can do what he likes with it, grind it or 
 
 3 9 Part of tbe opinion is omitted.
 
 200 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 sell it. All wheat when brought was emptied at once into a storing- 
 place in presence of farmer who brought it." 
 
 The evidence of the only farmer who was examined does not throw 
 any light upon the question, but rather obscures it. The substance 
 and effect of all the evidence that bears on this part of the case is 
 ♦his. When wheat was brought by the farmer to the miller, he deliv- 
 ered it to the miller to be stored with his current stock that was used 
 for the known purpose of his trade. It was, with the consent of the 
 farmer, put into storage with this consumable stock of the miller ; the 
 farmer got a storage receipt for it, and might afterwards come at any 
 time he thought fit to claim the price of the same quantity of wheat 
 of equal quality according to the market price of the day on which 
 he claimed payment. 
 
 The evidence is somewhat confused and inconsistent on the surface 
 in one or two places, but it sufficiently appears that the fanner had 
 the right to select his time for demanding payment for the wheat, 
 which, with his consent, was stored at the time of delivery, as part 
 of the current consumable stock which the miller might grind or sell 
 or use at his will and pleasure for his own profit. 
 
 There is no direct evidence that the farmer had the option of claim- 
 ing an equal quantity of wheat of the like quality, instead of the value 
 in money ; and from the very nature of the dealing he could not get 
 back the identical wheat delivered, as it was mixed in the common 
 stock with his consent. 
 
 A bailment on trust implies, that there is reserved to the bailor the 
 right to claim a redelivery of the property deposited in bailment. No 
 doubt the cases that are referred to are generally cases of a bailment 
 without a question of mixture. Mr. Thesiger in his argument put it as 
 if there was some distinction in the case, in favour of the appellants, on 
 account of the mixture ; but the facts as they appear on the evidence 
 exclude the applicability of such a distinction. Taking the view of it 
 most favourable to his argument, that the farmer could claim as of 
 right an equal quantity of the like quality, this must be without ref- 
 erence to any specific bulk from which it should be taken, for the stock 
 with which he consented to allow his wheat to be mixed might all have 
 been used for the benefit of tlie miller before the claim of the farmer 
 would be put forward. 
 
 The law seems to be concisely and accurately stated by Sir William 
 Jones in the passages cited by Mr. Mellish from his treatise ort- Bail- 
 ments, pp. 64 and 102 (3d Ed.). Wherever there is a delivery of prop- 
 erty on a contract for an equivalent in money or some other valuable 
 commodity, and not for the return of his identical subject-matter in 
 its original or an altered form, this is a transfer of property for value — 
 it is a sale and not a bailment. 
 
 Chancellor Kent in his Commentaries, vol. II, § 589, p. 781 (Uth 
 Ed.), where he refers to the case of Seymour v. Brown, of which he
 
 Sec. 4) CONFUSION 201 
 
 disapproves in common with Mr. Justice Story, adopts the test, wheth- 
 er the identical subject-matter was to be restored either as it stood or 
 in an ahered form ; or whether a different thing was to be given for it 
 as an equivalent ; for in the latter case it was a sale, and not a bailment. 
 This is the true and settled doctrine according to his opinion. Now, 
 the farmers do not appear on the evidence to have contracted for more 
 than to be paid for an equal quantity of the like quality of wheat, de- 
 livered at the market price of the day, on which a settlement should be 
 demanded. Supposing that there was an implied option to claim an 
 equal quantity of the like quality at any time after deliver}^, there could 
 be no right of claiming an aliquot part of the identical bulk with which 
 his wheat was mixed up at the time of delivery, for this was consum- 
 able at the will and pleasure of the miller, as part of the current stock, 
 hable to fluctuation, from time to time, both in quantity and quality. 
 
 Moreover, it appears to their Lordships, that there is no sound dis- 
 tinction, in principle, between this and the case of money deposited 
 with a banker on a deposit receipt. It may have been deposited in ne- 
 gotiable paper, in bank-notes, or in sovereigns, but it is paid in upon 
 the known course and conditions of the banker's dealings. A man is 
 supposed to intend the natural consequence of his acts. He knows the 
 course of dealing, he hands in the money ; he gets a deposit receipt : 
 he knows that the money is taken by the banker to be dealt with as part 
 of his current capital, to be used as his own for his own purposes. 
 By the deposit, it is placed in the disposing power of the banker ; and 
 surely he who has acquired the disposing pKDwer over property for his 
 own benefit, without the control of another, has the beneficial owner- 
 ship. 
 
 In the banker's case in the House of Lords, the case of Foley v. Hill, 
 2 H. L. C. 28, the question w^as fully discussed, whether a banker, un- 
 der such circumstances, could be considered and dealt with as a trus- 
 tee : Lord Cottenham says, at page 36 : "Money, when paid into a 
 bank, ceases altogether to be the money of the principal. See Parker 
 V. Marchant, 2 Phillips, 360. It is then the money of the banker, who 
 is bound to return an equivalent by paying a similar sum to that de- 
 posited with him, when he is asked for it. The money paid in to the 
 banker's is money known by the principal to be placed there for the 
 purpose of being under the control of the banker; it is then the bank- 
 er's money; he is known to deal with it as his own; he makes what 
 profit of it he can, which profit he retains to himself, paying back only 
 the principal, according to the custom of bankers in some places, or the 
 principal and a small rate of interest, according to the custom of 
 bankers in other places. The money placed in the custody of a banker 
 is, to all intents and purposes, the money of the banker, to do with it 
 as he pleases; he is guilty of no breach of trust in employing it; he is 
 not answerable to the principal if he puts it in jeopardy, if he engages 
 in a hazardous speculation ; he is not bound to keep it, or deal with it
 
 202 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 as the property of his principal, but he is, of course, answerable for the 
 amount, because he has contracted, having received that money, to re- 
 pay to the principal, when demanded, a sum equivalent to that paid into 
 his hands." 
 
 An indelible incident of trust property is that a trustee can never 
 make use of it for his own benefit. An incident of property, that is in 
 bailment, is that the bailor may require its restoration. This right of 
 recalling the deposit is relied on by Lord Cottenham (p. 39), as a test 
 to try the principle on which the fiduciary relation was sought to be 
 maintained. But in this case, no right seems to exist on the part of 
 the depositor to get back either his identical wheat, or a share of the 
 specific bulk in which his wheat was mixed with his consent ; there is 
 no such right on the one side, while, on the other, there is the power 
 in the miller of doing what he liked with the wheat after it became part 
 of his current stock. This is an inverted order of right that is wholly 
 inconsistent with the relation of trustee and cestui que trust that is con- 
 tended for in this case. * * * 
 
 As to the charge for storage, it is to be observed, that it is not the 
 storage of the wheat that was actually delivered, or of an equal quan- 
 tity of the specific stock with which it was mixed up at the time of de- 
 livery, but storage for an equal quantity which is assumed to have been 
 kept in the current stock of the mill. It seems to be an equitable term 
 of the final settlement, in which the farmer has the benefit of selecting 
 the time that is most advantageous for himself to claim payment at the 
 market price of the day for the same quantity of like quality of wheat 
 that he delivered. 
 
 The charge of deduction for storage of so much in quantity as was 
 delivered may be set off against the farmer's privilege of selecting his 
 own time for payment at the market rate of the day. This is the 
 more reasonable if there was an option on the part of the miller to give 
 the farmer a like quantity of a like quality, because he might then be 
 supposed to have kept a quantity in storage for the purpose of having 
 it in his power to exercise this option; or if the farmer had a corre- 
 sponding option of claiming an equal quantity of like quality, instead 
 of the money value. But, however this may be, it does not vary the 
 general nature of the case any more than where deposits are made with 
 a banker for a given time, and he allows a small rate of interest on the 
 money. 
 
 Putting the insurance out of view, let us see on whom would the loss 
 fall of the stored wheat destroyed by this fire. Would it be any answer 
 for the miller to say to the farmer when he came to claim the price of 
 the wheat according to contract : "All this wheat has been destroyed 
 by a fire?" The farmer might well reply: "It was delivered to you, 
 and at once put into your current stock, to be used as you saw fit for 
 your own use and benefit. You acquired complete dominion over it, 
 and you must, therefore, bear the loss." It is not upwn the exercise of
 
 Sec. 4) CONFUSION 203 
 
 a dominion not subject to control, but upon having such dominion, that 
 beneficial ownership depends. The party who has acquired such do- 
 minion over property is not bound to exercise it in any particular way 
 or at any particular time, but the having the power to use property as 
 his own for his own purposes is wholly irreconcilable with the notion 
 of his being a trustee of the property, holding it for the benefit of his 
 cestui que trust. * * * 
 
 Therefore, it appears to their Lordships, that the description in the 
 proposal and in the policy is a correct and honest description of the 
 subject of the insurance. As the question reserved at the trial, was, 
 whether the wheat taken in storage should be considered as trust prop- 
 erty, within the terms of the conditions of the policy, and as their 
 Lordships think, that it should not be so considered, they will humbly 
 advise Her Majesty that the order of the Court below, discharging the 
 rule nisi to set aside the verdict, ought to be affirmed and the appeal 
 dismissed with costs. 
 
 SEXTON & ABBOTT v. GRAHAM et al. 
 
 (Supreme Court of Iowa, 1880. 53 Iowa, 181, 4 N. W. 1090.) 
 
 Action in equity to determine the respective rights of plaintiffs and 
 others as warehouse receipt holders in a common mass of grain. The 
 defendant James R. Graham was for many years a dealer in grain at 
 Davenport, Iowa. He received grain belonging to other parties on 
 storage, and bought and sold on his own account, and in the course 
 of his business he issued from time to time a large number of ware- 
 house receipts. He transacted his business at a building called Bazar 
 Block, in which there was an elevator which was used for the purpose 
 of receiving grain, and distributing it in the various apartments of 
 the building. On the 20th day of October, 1875, the said Graham, be- 
 ing largely in debt, absconded, leaving his warehouse or grain eleva- 
 tor in charge of his son, who had been for some time before that his 
 clerk and book-keeper. There were then in the warehouse nearly 7,- 
 000 bushels of oats, and about 8,900 bushels of wheat. There were 
 outstanding warehouse receipts for more than 60,000 bushels of wheat, 
 and for 38,000 bushels of oats, which receipts had been issued to the 
 several parties hereto. The plaintiffs. Sexton & Abbott, held a wheat 
 receipt for 13,000 bushels which was in these words : 
 
 "No. 33. Elevator, Davenport, April 1, 1875. 
 
 "Received in store from Sexton & Abbott thirteen thousand bushels 
 of wheat, subject only to the order hereon of Sexton and Abbott, and 
 the surrender of this receipt and the payment of charges. 
 
 "It is hereby agreed by the holders of this receipt that the grain 
 herein mentioned may be stored witli other grain received about the
 
 204 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 date hereof, of the same quality by inspection. Loss by fire or heat- 
 ing at owner's risk. 
 "13,000 bush. James R. Graham, per F. Graham." 
 
 [The defendant, the Davenport National Bank also held wheat re- 
 ceipts amounting in the aggregate to 28,000 bushels, which had been 
 issued by Graham to the bank as collateral security for loans made 
 by the bank to him at various times. At the time of Graham's failure 
 he was indebted to the bank in the sum of $20,000 and the bank had 
 no security but the receipts. 
 
 No relief was given to the bank by the court below and the bank 
 appealed.] 
 
 Adams, C. J.''" * * * The appellant claims that, while Sexton 
 & Abbott may at one time have owned the grain described in their 
 receipts, they sold the same to Graham at the time of the issuance of 
 the receipts, or, if not, that their title to the grain became extinguished 
 by reason of what afterwards transpired. * * * 
 
 Where a warehouseman merely receives grain from several depos- 
 itors, with the understanding that it may be mixed in a common mass, 
 and it is so mi.xed, the transaction is a bailment, and the depositors 
 are tenants in common. Gushing v. Breed, 14 Allen (Mass.) 3(S0, 
 92 Am. Dec. 777 . But it is said that where the warehouseman is him- 
 self a depositor, and it is understood by the other depositors that their 
 grain is to be mixed with his, with the right, on his part, to draw from 
 the mass to the amount of his deposit, then the depositors do not be- 
 come tenants in common, but the title to all the grain passes at once, 
 upon deposit, to the warehouseman. * * * It is claimed by appel- 
 lant, and we think the evidence so shows, that at the time of the trans- 
 action in question Graham was depositing, upon his own account, 
 grain in his warehouse or elevator in common mass, and shipping there- 
 from, and that the plaintiffs knew it. We have then the question 
 whether, such being the fact, the title to plaintiff's grain under their 
 receipts passed to Graham. * * * 
 
 It is a common thing, we believe, for proprietors of elevators to 
 employ them for the deposit of their own grain, if they have any, in 
 common mass with others' grain. Depositors, we think, generally 
 know this, and consent that their grain may be mixed not only with 
 grain belonging to third persons, but with grain belonging to the pro- 
 prietor, if he should have any. This mode of doing business seems 
 to be demanded by considerations of economy. Now we are asked 
 to hold that such depositors lose title to their grain immediately upon 
 its being deposited, and that the receipts issued to them, though ex- 
 pressly calling for grain, are no evidence of a claim for grain, but 
 at best are merely evidence of a claim for money, and are good or 
 
 ■»o Part of the opinion of Adams, C. J., and the dissenting opinion of Kotli- 
 rocli, J., are omitted.
 
 Sec. 4) CONFUSION 205 
 
 otherwise, according as the maker is or is not responsible. It is con- 
 tended that such deposits of grain are Hke general bank deposits of 
 money. In our opinion, however, there is a very important difference. 
 In case of a general bank deposit it is understood that the bank will 
 use it in its own way. It is from the use of deposits that the bank is 
 to receive its compensation for receiving the deposits and accounting 
 for the same. It is true that as grain has a definite and well recog- 
 nized market value it would not, ordinarily, make much difference to 
 the receipt holder whether he received the grain which his receipt 
 called for, or was paid its market value in cash. But the rule con- 
 tended for would make a great dift'erence in the safety of the receipt 
 holder. In our opinion it cannot be sustained either upon principle 
 or authority. * * * Such an understanding does not exist upon 
 the part of grain receipt holders by reason of a mere agreement that 
 the warehouseman may mix his own grain with theirs and draw out 
 and sell the same amount. In such case the warehouseman becomes 
 a tenant in common like any other depositor, and may be permitted 
 to enjoy the same right of severance without affecting the title of his 
 co-tenants. 
 
 Again, upon looking into the plaintiffs' receipts, we find that thev 
 are something more than mere receipts. They contain what appears 
 to us to be an express contract of bailment. * * * 
 
 The transaction, then, being a bailment in the outset, we come to 
 inquire whether the relation of the parties became changed by reason 
 of what afterwards transpired. The appellant, contends that it did. 
 It is insisted that the evidence shews that the grain in controversy, is 
 entirely different grain from that in store when the plaintiff's receipts 
 were issued. 
 
 The business which Graham was doing was an ordinary grain ware- 
 house or elevator business. Grain received from different depositors 
 was put in at the top of the elevator and delivered to them at the bot- 
 tom. Grain of like kind and grade was mi.xed in a common mass. De- 
 livery was made to each depositor without the slightest reference to 
 identity of grain deposited. It was not only useless but impracticable 
 to respect the identity of the deposit. * * * The process may be 
 continued from day to day, and so long as the change of mass is a 
 partial one, though approximating day by day to completeness, the 
 value of the outstanding receipts remains unchanged. Possibly it 
 would be admitted by appellant that the value of a receipt would re- 
 main unchanged when next to the last kernel originally covered by 
 it was withdrawn. Pos.-sibly somewhat more than that amount might 
 be deemed necessary to uphold the receipt. But according to the ap- 
 pellant's theory, as we understand it, whatever the amount may be, 
 whether one kernel or one bushel, its withdrawal, although in the ordi- 
 nary and necessary conduct of business, renders the receipt worth- 
 less as evidence of a claim to grain, and what a moment before was
 
 206 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 a valid title in the receipt-holder, to all tlic grain called for by his re- 
 ceipt becomes transferred from the receii)t-holder to the warehouse- 
 man, and that; too, in the absence of any agreement or understanding 
 of that kind between the parties. It will be seen at once that the rule 
 contended would result in the most painful uncertainty and intermina- 
 ble confusion. No receipt-holder who had held his receipt even for 
 a short time during a period of active business would know, or could 
 possibly ascertain, what his rights are. This result, so undesirable in 
 every respect, is reached by appellant upon the purely technical view 
 that unless a portion of the original grain, at least a kernel or two, 
 remains, the receipt must, in the nature of things, fail. In our opin- 
 ion, a complete answer is that as the receipt attaches upon each new 
 deposit the receipt-holder becomes and remains a tenant in common 
 at all times of the mass which is being added to and subtracted from. 
 
 At this point a question arises as to what is to be deemed a com- 
 mon mass. * * * When grain is deposited in an elevator with 
 the understanding that it may be mixed with all grain of that kind 
 and grade in the elevator, and the grain of that kind and grade is 
 distributed upon different floors or in different compartments merely 
 because the weight of the grain, or prevention from heating, or con- 
 venience in handling, or some other reason of that kind requires it, 
 and not at all for the preservation of identity, all the grain of that 
 kind and grade is to be deemed a common mass within the view of 
 thfe law as applicable to such a case. This must be so, because the 
 grain is practically treated as a common mass. When grain passes 
 into the elevator with the understanding that it may be mixed with 
 other grain of the same kind and grade it passes beyond the control 
 of the depositor, so far as identity is concerned. What the parties 
 have agreed to treat as a common mass, is such for the purpose of 
 determining the rights of the parties. We think, then, that a depositor 
 becomes a tenant in common of all the grain in the elevator with 
 which his grain may properly be mixed, and he may demand the sat- 
 isfaction of his receipt out of any or all such grain. Of course if 
 grain is wrongfully abstracted there would not be enough to meet all 
 the receipts. In such case the loss should be borne pro rata. 
 
 In this case grain was wrongfully abstracted. Graham after ex- 
 hausting his own deposits drew largely in excess. The amount wrong- 
 fully taken by him exceeded the amount left on hand when he ab- 
 sconded. It is contended by the appellant that the amount thus left 
 belonged to Graham. The appellant's theory is, as we understand it, 
 that the amount on hand must be solely the result of Graham's de- 
 posits. The assumption that this grain belonged to Graham at the 
 time he absconded involves the assumption that when grain was wrong- 
 fully abstracted by Graham, and afterwards a deposit was made by 
 him, the law would not, in the absence of an agreement to that ef-
 
 Sec. 4) CONFUSION 207 
 
 feet, apply the subsequent deposit toward making good the previous 
 wrongful abstraction. 
 
 Whether, if Graham's deposits had all been made subsequent to 
 his wrongful taking, he could in a controversy between the receipt- 
 holders and himself, in respect to the grain left on hand, be heard to 
 say that they had no interest in it, because he had before the deposit 
 of this grain wrongfully taken all their grain, is a question perhaps 
 not fully settled by adjudication. As tending to support the rule 
 that he would be estopped in such case, see Gardiner v. Suydam, 7 
 N. Y. 363. But we need not go into this question. There is nothing 
 to show that Graham's wrongful shipments were all made prior to 
 his deposits. To the extent of his deposits at the time of his ship- 
 ments they were not wrongful. And his shipments altogether never 
 equalled the amount of his deposits, and the amount called for by the 
 outstanding receipts. They lacked precisely the amount left on hand. 
 That, we think, must be deemed to belong to the receipt-holders. 
 
 [The court held that since the receipts to the bank were not issued 
 for grain owned by the bank but only by way of collateral security 
 they were invalid under Sec. 2172 of the Iowa Code that no ware- 
 houseman should issue receipts for personal property unless such 
 property was in store.] 
 
 The judgment of the circuit court must be affirmed.*^ 
 
 RoTHROCK, J., dissenting. 
 
 JAMES & NEER v. PLANK. 
 
 (Supreme Court of Ohio, 1891. 48 Ohio St. 255, 26 N. E. 1107.) 
 
 Spear, J.*^ The question is: did the court of common pleas etr 
 in directing a verdict for the plaintiff below? 'If, as was assumed by 
 that court, the undisputed evidence established that the transaction was 
 a sale, then the direction was right, but if the whole evidence left 
 
 ^1 A., B. and C. each deposited grain with X. a warehouseman which was 
 mixed in a common mass with X.'s grain. X. drew off more than his propor- 
 tion and became insolvent. A. drew off the full amount called for by his 
 receipt. Held, A. is liable to account to B. and C. for the excess drawn off 
 by him above his proportionate part of the diminished supply. Brown v. 
 Northcutt, 14 Or. 529, 13 Pac. 485 (1SS7). 
 
 On the above facts A., B. and C. may recover from X.'s vendee the amount 
 sold by X. in excess of his proportionate interest in the grain. Hall v. Pills- 
 bury, 43 Minn. 33, 44 N. W. 673, 7 L. K. A. 529, 19 Am. St. Rep. 209 (1S90) ; 
 Young y. Miles, 23 Wis. 643 (18C9). Compare Preston v. Witherspoon, 109 Ind. 
 457, 9 N. E. 585. 58 Am. Rep. 417 (1886). 
 
 X. had two adjacent granaries. A. deposited wheat with him, which he 
 stored in mass in the south granary. X. subsequently converted all the wheat 
 in the south granary, and then became insolvent and made an assignment to 
 Y., who sold all the grain in the north granary. Held, A. has no claim be- 
 cause of the sale of the grain in the north granary. Adams v. Meyers, 1 
 Sawyer, 306, Fed. Cas. No. 62 (1870). 
 
 *' The statement of facts and part of the opinion are omitted.
 
 208 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 a fair question as to whether it was a sale or a bailment, then the ques- 
 tion should have been submitted to the jury. 
 
 It was shown by the evidence, that the wheat was delivered by an 
 employee of the plaintiff, at the warehouse of the defendants, on the 
 17th and 18th days of August, 1886, and received by a clerk or 
 foreman employed at the warehouse, who, as the loads came, issued 
 receipts, in substance like the following : 
 
 "No. 1721. De Graff, O., August 17, 1886. 
 
 James & Neer. 
 "Received of J. C. Plank (Administrator) load of wheat, 11 bushels, 
 5 pounds. 
 
 "Not transferable. Present this at office. 
 
 "J. H.McKinnie, Weigher." 
 
 The wheat, when deposited, was mixed with other like wheat in 
 the warehouse, some belonging to the defendants and some to others 
 for whom it had been received in store. 
 
 On the 26th day of August, 1886, a fire occurred which consumed 
 the warehouse and nearly all the wheat there at the time. The fire 
 was without fault on the part of the defendants. At that time none 
 of the receipts had been presented at the office. Shortly after the fire 
 Plank demanded of James & Neer pay for all the wheat delivered, 
 which was refused. They however, tendered $36.16, as his share of 
 damaged wheat which had been sold after the fire. 
 
 Within the previous year Plank had delivered to the defendants at 
 the same warehouse from eleven to twelve hundred bushels of wheat, 
 for which he took the weigher's receipts in form similar to the copy 
 given, which he subsequently presented at the office and received in 
 exchange storage receipts, a copy of one of which is as follows: 
 
 "James & Neer, Dealers in Grain & Seeds. 
 "No. 240. De Graff, O., January 5, 1886. 
 
 "Received of Joseph C. Plank, four hundred and fifty-two bushels 
 and 35 pounds of wheat (452 35-100 bushels). Subject to the fol- 
 lowing rules : 
 
 "Storage free until June 1, 1886. One cent per bushel per month or 
 any part thereafter. All grains stored at owner's risk. We will not 
 be responsible for loss or damage in any way. Grain taken out of 
 house by owners, five cents per bushel and usual storage. 
 
 "James & Neer." 
 
 This wheat was subsequently sold to the defendants. 
 
 The evidence further tended to show that James & Neer were at 
 the time, and had been for several years, engaged in storing wheat as 
 warehouseman, as well as in buying and selling; that they sold and 
 withdrew from the common mass, but never so much but that there
 
 Sec. 4) CONFUSION 209 
 
 was left sufficient to return to each depositor his proper quantity; and 
 that, when the fire occurred, they had in the warehouse between 200 
 and 300 bushels of wheat in excess of the quantity necessary to satis- 
 fy all depositors, including Plank. 
 
 The evidence further tended to show the existence of a custom of 
 dealing in vogue for many years at that and other warehouses in the 
 neighborhood, of which Plank had knowledge, to the effect that grain 
 deposited in the warehouse, for which weigher's receipts were given, 
 was regarded as grain in store until such receipts were presented at the 
 office, when the owner had the option to exchange the weigher's re- 
 ceipts for a storage receipt and continue the storage upon the terms 
 specified in that form of receipt, or to sell at the price ruling the day 
 such weigher's receipts were presented ; and that the receiving of 
 the wheat and the giving of the weigher's receipts did not constitute a 
 sale of the wheat, but that it remained the property of the depositor un- 
 til the weigher's receipts were presented at the office and an election 
 to sell made. 
 
 Let us examine and ascertain the effect of this evidence in order 
 to determine the duty of the trial court with respect to it. The naked 
 fact of the delivery of the wheat and the terms of the weigher's re- 
 ceipts are consistent with either a sale or a bailment. It being shown 
 further, however, by plaintiffs' evidence that James & Neer were buy- 
 ers and sellers only of grain, it might well be claimicd that the delivery 
 and the receipts imported a sale. But the added character of ware- 
 housemen presented a new question. This question would have been 
 removed, and the plaintiff's claim again sustained, had it appeared that 
 James & Neer appropriated the grain to their own use by shipping, 
 so as not to leave a quantity sufficient to satisfy depositors, for, in 
 such case, it might fairly be presumed that the owner and receiptor 
 had agreed upon a sale to the latter. Besides, while the mere option to 
 elect to treat a bailment as a sale at some future time does not deprive 
 it of its character of a bailment (Colton v. Wise, 7 111. App. 395 ; Plow 
 Co. V. Porter, 82 Mo. 23; Ledyard v. Hibbard, 48 Mich. 421, 12 N. 
 W. 637, 42 Am. Rep. 474), yet, where the depositary appropriates 
 to his own use more than his proportion of the common mass the 
 depositor may elect to treat the transaction as a sale, and demand 
 pay for the wheat delivered. So that if at all times James & Neer left 
 enough to return to each depositor, including Plank, his proper quan- 
 tity, the depositors remained tenants in common of the mixed mass, 
 each erititled to such proportion as the quantity placed there by him 
 bore to the whole mass, and Plank, if a depositor originally, would 
 remain such, because the mere fact that the warehouseman mi.xed the 
 wheat of all of like quality in one common mass and shipped and sold, 
 from time to time, from the mass, their proportion only, would not 
 work a change in the ownership of the wheat, and it would follow that 
 Big.Peks.Pkop. — 14
 
 210 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 the fact of mingling and of such shipping and sale would not determine 
 that the transaction was a sale, rather than a bailment. * * * 
 
 The trial court assumed, that, upon the undisputed facts, a sale was 
 conclusively shown, and that a question of law only remained. In this, 
 we think, the court erred. Upon the whole evidence intelligent minds 
 might reach a different conclusion, and wherever that state of the 
 evidence exists it presents a case for the jury, under proper instruc- 
 tions. If the jury should find, from the evidence, that the understand- 
 ing between the parties was that James & Neer were to mingle the 
 wheat received of Plank with other wheat and sell and ship at their 
 pleasure, and that the direction in the weigher's receipts to "present 
 this at office," was for the purpose only of indicating to the holder 
 where he could get his pay, or, if the understanding was that they 
 were to mingle the wheat with other wheat of like kind and sell only 
 their own proportion, keeping enough for all depositors, and yet, in 
 disregard of this, they actually did sell at their pleasure, not leaving 
 enough on hand for depositors, then the verdict for the plaintiff, as 
 rendered, would have been justified. But if, on the other hand, the 
 jury should be satisfied from the evidence that the custom as claimed 
 by defendant, actually existed, was known to plaintiff, and from it and 
 other facts appearing, that the understanding was that though the 
 wheat might be mingled with other wheat belonging in part to deposi- 
 tors and in part to defendants, yet that defendants were to sell from 
 the common mass from time to time, their proportion only, leaving 
 sufficient on hand to satisfy all depositors and the defendants observed 
 this understanding; and especially if, in addition to the foregoing, they 
 found further that the distinct understanding of the parties was, by 
 virtue of said custom, that the wheat was to be regarded as in store 
 until Plank should elect to make a sale of it, then, it appearing that 
 no demand for the pay had been made by presentation of receipts at 
 the office, or otherwise, before the fire, the jury would have been jus- 
 tified in finding for the defendants. * * * 
 
 Judgment reversed.*^ 
 
 43 Grain was delivered to a warehouseman, stored In a common mass and 
 the following receipt given: "Received of A. SOO bushels of wheat at owner's 
 risk from elements at 10 cents less Detroit quotations when sold to us. Stored 
 for days. X." Held a bailment, with an option on the part of the 
 
 depositor to convert it into a sale. Ledyard v. Hibbard, 48 Mich. 421, 12 N. 
 W. 637, 42 Am. Rep. 474 (1SS2). 
 
 A., with others, delivered milk to X., who mixed it, and made from It but- 
 ter, which he sold. He credited the proceeds proportionately to the persons 
 who supplied the milk, less a charge of two cents a pound. Held, A. and the 
 others were the owners of the butter. First Nat. Bank of Elgin v. Schweeu. 
 127 111. 573, 20 N. E. 681, 11 Am. St Rep. 174 (1889). Compare Butterfleld v. 
 Lathrop, 71 Pa. 225 (1872).
 
 Sec. 4) CONFUSION 211 
 
 PICKERING V. MOORE. 
 
 (Supreme Court of New Hampshire, 1893. 67 N. H. 533, 32 Atl. 828, 31 L. R. 
 A. G9S, 68 Am. St. Rep. 693.) 
 
 Trover, for manure. Facts found by the court. March 31, 1883, the 
 defendant leased his farm for the term of three years to tlie plaintiff, 
 who covenanted to carry on the place in a "husband-like manner," and 
 to consume and convert into manure, to be used or left upon the prem- 
 ises, all hay and fodder raised thereon. The plaintiff occupied the 
 farm and performed all his covenants contained in the lease, without 
 any new or further contract, until May 30, 1892. During the last year 
 of his occupancy he fed out upon the farm a large quantity of fodder 
 not produced on the place. He put twenty-five cords of the manure 
 made from this fodder, and manure of the same quality and value 
 made from fodder raised on the place, together in a heap, where they 
 were so intermixed that they could not be distinguished. The defend- 
 ant prevented him from taking away the twenty-five cords. 
 
 Carpenter, J.** The plaintiff held the farm after the expiration 
 of three years, as tenant from year to year, upon the terms expressed 
 in the lease. Russel v. Fabyan, 34 N. H. 218, 223; Conway v. Stark- 
 weather, 1 Denio (N. Y.) 113. Manure made upon the farm by the 
 consumption of its product in the ordinary course of husbandry is a 
 part of the realty. It cannot be sold or carried away by a tenant with- 
 out the landlord's consent. * * * However that may be, no rule of good 
 husbandry requires a tenant to buy hay or other fodder for consump- 
 tion on the farm. If, in addition to the stock maintainable from its 
 products, he keeps cattle for hire and feeds them upon fodder procured 
 by purchase or raised by him on other lands, the landlord has no more 
 legal or equitable interest in the manure so produced than he has in 
 the fodder before it is consumed. It is not made in the ordinary course 
 of husbandry. It is produced "in a manner substantially like making 
 it in a liverj- stable." Hill v. De Rochemont, 48 N. H. 87, 90; Corey 
 V. Bishop, 48 N. H. 146, 148. It is immaterial whether the additional 
 stock is kept for hire, or is the tenant's property. Needham v. Allison, 
 24 N. H. 355. 
 
 The plaintiff did not lose his property in the manure by intermixing 
 it with the defendant's manure of the same quality and value without 
 his consent. It is not claimed that the plaintiff' mixed the manure with 
 any fraudulent or wrongful intent. "The intentional and innocent in- 
 termixture of property of substantially the same quality and value 
 does not change the ownership. And no one has a right to take the 
 whole, but in so doing commits a trespass on the other owner. He 
 should notify him to make a division, or take his own proportion at 
 
 *• Part of the opinion Is omitted.
 
 '212 ACQUISITION OF OWXKKSIIIP (Cll. 4 
 
 his peril, taking care to leave to the other owner as much as belonged 
 to him." Ryder v. Hathaway, 21 Pick. (Mass.) 298, 306. * * * 
 
 Whether the parties were tenants in common of the manure is a 
 question that need not be determined. Gardner v. Dutch, 9 Alass. 427, 
 430, 431 ; Ryder v. Hathaway, 21 Pick. 298, 305 ; Chapman v. Shep- 
 hard, 39 Conn. 413, 425; Kimberly v. Patchin, 19 N. Y. 330, 341, 75 
 Am. Dec. 334. Assuming that they were, the action may be main- 
 tained. A tenant in common has the same right to the use and enjoy- 
 ment of the common property that he has to his sole property, except 
 in so far as it is limited by the equal right of his co-tenants. Where 
 two have each an equal title to an indivisible chattel, "as of a horse an 
 c.ce or a cowe," neither, without actual and exclusive possession of the 
 , Aattel, can enjoy his moiety. Simultaneous enjoyment by each of his 
 jqual right is impossible. Hence, neither can lawfully take it from the 
 possession of the other. The one excluded from possession has no le- 
 gal remedy except to take it "when he can see his time." Lit. S, 323 ; 
 Southworth v. Smith, 27 Conn. 355, 359, 71 Am. Dec. 72. 
 
 A tenant in common of personal as well as real property has a right 
 to partition if partition is possible, and if not, to a regulation of its use 
 equivalent to partition or to a sale. Co. Lit. 164 b, 165 a ; Stoughton v. 
 Leigh, 1 Taunt. 402, 411. 412; IMorriU v. Morrill, 5 N. H. 134, 135; 
 Crowell V. Woodbury, 52 N. H. 613. On partition he is entitled to no 
 particular part of the property, but only to his due proportion in value 
 and quality of the whole. When it consists of chattels differing in 
 quality and value, an appraisal of the value and a consideration of the 
 qualities of the several chattels are essential to an assignment to each 
 of his just share. In this case, as in that of a single indivisible chat- 
 tel, if the parties cannot agree upon the use, sale, or division, judicial 
 intervention is necessary. Until an adjudication of their rights, neither 
 can assert a title in severalty to any portion of the property. When 
 the common property is divisible by weight, measure, or number into 
 portions identical in quality and value, as corn and various other ar- 
 ticles, a different case is presented. There is no question of legal or 
 equitable right. There is and can be no dispute that a court of law or 
 equitj' can settle. Counting, weighing, and measuring are not judicial, 
 but ministerial functions. Equity could do no more than decree that 
 each might take so many pounds, bushels, or yards, or so many of. the 
 articles in number, and enforce its decree by process, in other words, 
 enforce the conceded right. One may in general do without a decree 
 what equity would decree that he might do. Neither law nor equity 
 allows one in the exercise of his own rights to do an unnecessary and 
 avoidable injury to another. One is entitled to the possession of the 
 whole in those cases only where it is necessary to his enjoyment of his 
 moiety. Here it is not necessary. There is no more difficulty in sep- 
 arating one portion from another, than there is in selecting A.'s marked 
 sheep from B.'s flock. Eitber may make the division. The law is not
 
 Sec. 4) CONFUSION 213 
 
 so unreasonable as to compel a resort to the courts in order to obtain a 
 partition which either may make without expense and without danger 
 of injustice to his co-tenant. Except in Daniels v. Brown, 34 N. H. 
 454, 69 Am. Dec. 505, it has never been held, so far as observed, that a 
 tenant in common is liable to his co-tenant in any form of proceeding 
 for taking from the latter's possession and consuming or destroying his 
 just proportion only of the common prof>erty. The conveyance by a 
 tenant in common of a part of the common land by metes and bounds 
 may effect a partition and will if it does no injustice to his co-tenants, 
 — if their just share can be assigned to them out of the remaining land. 
 Holbrook v. Bowman, 62 N. H. 313, 321. No reason is perceived why 
 a similar doctrine should not be applied in the case of a common ten- 
 ancy of chattels. If A and B own in common 100 horses, and B sells 
 10 of them to C, why should A be permitted to take them "when he 
 can see his time," if he has possession of and can have his full share 
 assigned to him from the remaining 90? However that may be, a ten- 
 ant in common of goods divisible by tale or measure may, without the 
 consent and against the will of his co-tenant, rightfully take and ap- 
 propriate to his sole use, sell, or destroy so much of them as he pleases, 
 not exceeding his share, and by so doing effect pro tanto a valid parti- 
 tion. To this extent Daniels v. Brown, supra, is overruled. Haley v. 
 Colcord, 59 N. H. 7, 8, 47 Am. Rep. 176; Gage v. Gage, 66 N. H. 282, 
 288. 29 Atl. 543, 28 L. R. A. 829; Seldon v. Hickock. 2 Gaines (N. Y.) 
 166: Lobdell v. Stowell, 51 N. Y. 70, and cases cited: Stall v. Wilbur, 
 77 N. Y. 158, 164: Cooley, Torts, 455; 6 Am. Law Rev. 455-459, and 
 cases cited. The defendant by preventing the plaintiff from taking his 
 part of the manure, exercised a dominion over it inconsistent with the 
 plaintiff's rights. Evans v. Mason, 64 N. H. 98, 5 Atl. 766. 
 Judgment for the plaintiff. ■•= 
 
 ■45 A. mortgaged 90 bushels of wheat to X. He then in good faith confused 
 It with 120 bushels of his own wheat. He sold 51 bushels to B., a bona fide 
 purchaser, and later delivered the rest to other third persons. Held, X. cannot 
 maintain trover against B. Stone v. Quaal, 36 Minn. 46, 29 X. W. 326 (1SS6). 
 
 X. sold his standing timber to A., the title to remain in X. until paid for. 
 and with the right to re.sume possession if the conditions of the contract were 
 broken. A. mixed the lumber from this timber with his own of the same 
 quality, and sold part to B., a bona fide purchaser. A. not having paid X.. 
 X. seized the lumber sold to B. Held, he is liable to B. in trover, except as 
 to the identical lumber that he can show was cut from his land. Foster v. 
 Warner, 49 Mich. 641, 14 X. W. 673 (1SS3). 
 
 X. knew that A., her husband, was mixing corn grown on X.'s land b.v A. 
 with mortgaged com grown by A. on his own land. Held, the amount from 
 the respective pieces not being known, it is all subject to the mortgage 
 Wells V. Batts, 112 N. C. 283, 17 S. E. 417, 84 A/B. St. Rep. 506 (1S93). 
 
 See Pratt v. Bryant, 20 Vt. 333 (1S4S).
 
 214 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 BEACH et al. v. SCHMULTZ. 
 (Supreme Court of IlUnois, 1858. 20 111. 185.) 
 
 [Replevin by Schmultz against the plaintiffs in error who as credi- 
 tors of one Oscar Gray had attached the property in question.] 
 
 The defendant offered in evidence the two depositions of Oscar 
 Gray. * * * Jn the first deposition taken, the witness, Oscar Gray, 
 states in answer to the first interrogatory, that he acted as agent for 
 Schmultz during the summer and fall of 1856, in manufacturing and 
 shipping lumber to him. That he shipped from Green Bay about 75 to 
 100 M. feet of lumber on the schooner Main, to Milwaukee, on or 
 about the 29th of September, 1856, and that it arrived at Milwaukee, 
 but the captain of the schooner, without unloading, went, as witness 
 was informed, to Chicago. * * * 
 
 In the second deposition, the said witness, Oscar Gray, states * * * 
 that he shipped a cargo of lumber, about seventy-five to one hundred 
 M. feet of lumber, consisting of plank, boards, and scantling and shin- 
 gles, but cannot tell how much of each, on the 29th of September, 1856, 
 on the schooner Main. I was the owner of tlie shingles, and Schmultz 
 and myself were tlie owners of the balance of the lumber. Schmultz 
 and myself owned said cargo separately ; Schmultz owned probably 
 one-half of said cargo, and I the other half ; it consisted of plank, 
 boards, joists and scantling. I can't tell the number of feet belonging 
 to each of us. That he understood, and such were his instructions, if 
 he had any from Schmultz, to ship his lumber to him at Chicago. No 
 person could have identified Schniultz's lumber from his on the vessel ; 
 said lumber was taken to Milwaukee by his direction, without author- 
 ity from Schmultz. * * * 
 
 BreesE, J.''" * * * The question of real moment in the case 
 brings up the doctrine of confusion of goods, so far as the principal 
 cargo is concerned, which the proof shows consisted of dift'erent kinds 
 and qualities of lumber, of different grades — "of plank, boards and 
 scantling," and some shingles. As to the lumber. Gray swears that he 
 owned one-half and Schmultz the other half of the cargo, separately, 
 and were so mixed together as that the several parts were incapable 
 of identification. Besides this, som.e lumber was borrowed of others 
 to make up the cargo, and the vessel ordered to I\Iilwaukee,- against 
 the directions of Schmultz, that she should deliver her cargo at Chica- 
 go. There are circumstances in the case tending to show an intention 
 on the part of Gray, to dispose of the cargo at Milwaukee, and thus de- 
 fraud Schmultz ; and for this bad purpose, the several portions belong- 
 ing to Schmultz and Gray, and that borrowed, were mixed up, without 
 
 46 The statement of facts is abridged and part of tlie opinion is omitted.
 
 Sec. 4) CONrosiON 215 
 
 the knowledge or consent of Schmultz, so as to deprive him of his 
 share, as it would appear. 
 
 The doctrine on tliis subject is thus stated by Blackstone at page 405, 
 vol. 2 of his Commentaries. After treating of title to goods by acces- 
 sion, he says: "But in the case of confusion of goods, where those of 
 two persons are so intermixed that the several portions can be no long- 
 er distinguished, the English law partly agrees with and partly differs 
 from the civil. If the intermixture be by consent, I apprehend that, in 
 both laws, the proprietors have an interest in common, in proportion to 
 their respective shares. But if one willfully intermixes his money, corn 
 or hay with that of another man, without his approbation or knowledge, 
 or casts gold in like manner, into another's melting pot or crucible, the 
 civil law, though it gives the sole property of the whole to him who has 
 interfered in the mixture, yet allows a satisfaction to the other for 
 what he has so improvidently lost. But our law, to guard against 
 fraud, gives the entire property, without any account, to him whose 
 original dominion is invaded, and endeavored to be rendered uncertain,' 
 without his own consent." 
 
 This doctrine, as thus laid down, is not disputed any where in courts 
 where the common law is the rule of decision. 
 
 Gray, then, having wrongfully produced this confusion, by an unau- 
 thorized intermixture, necessarily forfeits his right to the whole, and 
 the plaintiffs in error, his creditors, can have no right or claim to levy 
 an attachment upon it. The court could do no otherwise than to find 
 for Schmultz, the defendant in error, that it was his property. 
 
 The case shows that shingles were a part of the cargo, and were 
 Gray's separate property, and as they can be readily distinguished and 
 separated, and as they belonged to Gray when shipped, it is contended 
 they are yet his, and subject to the attachment. It is a sufficient answer 
 to this to say, that the facts show the whole cargo was consigned to 
 Schmultz, and that he paid the freight on it. He, as consignee, had, 
 therefore, a right to the possession of the shingles. 
 
 The merits of the case are wholly with the defendant in error, and 
 the judgment of the Circuit Court is affirmed. 
 
 Judgment affirmed.*^ 
 
 4'Acc. : Ward v. Ayre, Cro. Jac. 366 (1615); Wingate v. Smith, 20 Me. 
 287 (1841) ; Stephenson v. Little, 10 Mich. 433 (1S62). Compare Levyeau v. 
 aements, 175 Mass. 376, 56 N. E. 735, 50 L. R. A. 397 (1900).
 
 216 ACQUISITION OF OWNEItSniP (Ch. 4 
 
 JENKINS V. STEANKA. 
 (Supreme Court of Wisconsin, 1S65. 19 Wis. 126, 88 Am. Dec. 675.) 
 
 The action below was by Jenkins and others against Steanka, to re- 
 cover possession of certain lumber, or the value thereof (alleged to be 
 $400), with damages for the detention. The plaintiffs obtained pos- 
 session under the statute. Steanka was master of a sloop in which 
 the lumber was found when seized by the sheriff; and claimed by his 
 answer that the title to the lumber was in one Wright (for whom he 
 was carrying the same on said sloop), subject to a lien for freight in 
 favor of the owner of said sloop, and that said defendant, at the time 
 of such seizure, was entitled to the possession as agent of said owner. 
 
 The jury found that defendant had the right of possession at the 
 commencement of the action; that Wright owned the lumber; and 
 that the value was $360 ; and nominal damages. Judgment according- 
 ly ; and plaintiffs sued out their writ of error. 
 
 Downer, J.** This is an action to recover forty thousand feet of 
 pine lumber, alleged in the complaint to be wrongfully detained by 
 the defendant, and of the value of $400. * * * 
 
 Questions were put to different witnesses by the plaintiffs during 
 the progress of the trial, as to what the kind or quality of the lumber 
 in dispute was. The court below refused to permit these questions to 
 be answered. It seems to us the answers should have been received. 
 They were competent as bearing on the question of the value of the 
 lumber; also for another purpose. Testimony was given tending to 
 prove that some part of the lumber in dispute was manufactured by 
 one Wright in his mill, at Fremont, out of logs belonging to the plain- 
 tiffs and cut on streams above Fremont, and that tliere was a great 
 difference in the quality of lumber sawed out of logs cut at or near 
 Fremont and that cut out of the plaintiffs' logs, the latter being much 
 superior in quality to the former. The defendants' witnesses, or some 
 of them, testified that this lumber was made out of logs cut at Fre- 
 mont. After this testimony was in, the plaintiffs renewed their in- 
 quiry as to the quality of the lumber in dispute, and the court again 
 ruled the evidence inadmissible. It seems to us that it was clearlv ad- 
 missible as tending to prove whether the lumber in dispute was manu- 
 factured out of the plaintiffs' or Wright's logs. 
 
 The circuit court also erred in instructing the jury that "if they 
 found for the plaintiffs, they could only recover the amount of lumber 
 which they have proved to have been wrongfully taken by Wright, al- 
 though it may have been commingled with the lumber of Wright 
 wrongfully." The law, we think, is that if Wright wilfully or in- 
 discriminately intermixed the lumber sawed from the logs of the j>lain- 
 tiffs with his own lumber, so that it could not be distinguished, and 
 
 *8 Part of the opinion is omitted.
 
 Sec. 4) CONFUSION 217 
 
 the lumber so mixed was of different qualities or value, then the plain- 
 tiffs would be entitled to hold the whole. Willard v. Rice, 11 Mete. 
 (Mass.) 493, 45 Am. Dec. 226; 2 Kent's Com. (3d Ed.) 364; Ryder 
 V. Hathaway, 21 Pick. (Mass.) 298. * * * 
 
 Judgment of the court below reversed, and a new trial ordered.*' 
 
 WEIL & BRO. V. SILVERSTONE et al. 
 (Court of Appeals of Kentucky, 1869. 69 Ky. [6 Bush] 698.) 
 
 [One Lipman owned a stock of goods, he sold them to the defend- 
 ant who mixed them with other goods of his own in his store and re- 
 plenished the stock from time to time. The plaintiffs, creditors of 
 Lipman, attached the stock in an action against Lipman. Judgment 
 was for the defendant and plaintiff's appealed.] 
 
 H.^RDiN, T.^" * '■''■ * It is further objected for the appellants 
 that, with reference to the evidence conducing to prove the purchase 
 of Silverstone of the goods of Lipman to have been fictitious and fraud- 
 ulent and that to prevent identification of these goods Silverstone 
 wrongfully mixed and confused them with others which belonged to 
 him. the court erred both in instructing the jury at the instance of 
 Silverstone, and in refusing to give an instruction asked by the appel- 
 lants. The instruction so given is as follows : 
 
 "The court instructs the jury that none of the goods of defendant 
 Silverstone are liable to this attachment, except those that he bought 
 of Lipman; and if they believe from the evidence that the sale was 
 fraudulent, and that Silverstone took part in the fraud, and should 
 also believe that none of the identical goods sold by Lipman to Silver- 
 stone were actually attached in this action, they must find for defend- 
 ant: and if the jury believe that any of the identical goods sold by 
 Lipman to Silverstone were actually attached in this case, they must 
 say how much, and only find against Silverstone for that amount : 
 and the burden of proof is on plaintiffs to identify the goods attached 
 as the goods sold by Lipman to Silverstone, or what part of them was 
 so sold.'' And said instruction asked by the plaintiffr, and refused is 
 as follows : "The court instructs the jury that if they believe from the 
 evidence that the goods attached in this action, or any part of them, 
 were sold by Lipman to Silverstone with the fraudulent intent to hin- 
 der or delay the creditors of Lipman from the collection of their debts, 
 and this intent was known to Silverstone at the time, and that he par- 
 ticipated in the fraud, and that Silverstone, after he got the goods in 
 his possession, so mixed the goods with his own that they might not 
 
 <6 Ace, semble, The Idaho, 93 D. S. 575, 23 L. Ed. 978 (1876). 
 s" Part of the opinion is omitted.
 
 218 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 be identified, then the law is for the plaintiffs, and the jury should 
 so find." 
 
 The point of objection to the action of the court in relation to these 
 instructions is, that the court virtually excluded from the jury the prin- 
 ciples of law applicable to the evidence importing a willful mixing of 
 the goods in controversy by Silverstone with others, for the fraudu- 
 lent purpose of preventing their identification. 
 
 The doctrine of the confusion of goods, in its effects on the rights 
 of immediate owners, may be considered as clearly and distinctly set- 
 tled. If a party wilfully so confounds the property of another with 
 his own that the line of distinction can not be traced, all the inconven- 
 ience of the confusion is thrown upon the party who produces it, and 
 generally it is for him to distinguish his own property or lose it. Hart 
 V. Ten Eyck, 2 Johns. Ch. (N. Y.) 62, 513; 2 Blackstone's Commen- 
 taries, 405 ; 2 Kent's Commentaries, 365 ; Loomis v. Green, 7 Me. (7 
 Greenl.) 386. And in the case of the levy of an execution or attach- 
 ment against a debtor on his property, which another person has fraud- 
 ulently confounded with his own, if the latter would reclaim his own 
 property, the burden of proof is on him to distinguish it from that of 
 the debtor. Drake on Attachment, § 199; Treat v. Barber, 7 Conn. 
 274; Robinson v. Holt, 39 N. H. 557, 75 Am. Dec. 233; Smith v. 
 Sanborn, 6 Gray (Mass.) 134. It needs scarcely to be suggested, how- 
 ever, that these principles do not apply where the property of a debtor 
 is intermingled with that of another from casualty or accident, or with- 
 out any design of covering the property of the debtor. 
 
 Testing the action of the court below by the foregoing views of 
 the law, which we regard as applicable to this case, the decision of the 
 court, in effect, that although the sale to Silverstone may have been 
 fraudulent and invalid, and although he may have fraudulently con- 
 founded the goods with his own, the burden was nevertheless on the 
 plaintiffs to distinguish the goods which belonged to Lipman, was in 
 our opinion clearly erroneous. On the contrary, the court should have 
 instructed the jury, in substance, that if they believed from the evi- 
 dence that the sale and transfer of the goods from Lipman to Silver- 
 stone were made with the intent to delay, hinder, or defraud Lipman's 
 creditors, and were at the time so known to be by Silverstone, the law 
 was for the plaintiffs as to all the property attached which was so sold 
 and transferred by Lipman ; and if so, and before the levy the goods 
 had been by Silverstone wilfully mixed with others, the burden was 
 on him to identify his own goods from those embraced by the sale 
 from Lipman, in order to exempt the goods so owned by him from 
 sale under the attachments. * * * 
 
 The judgment is reversed, and the cause remanded for a new trial, 
 and further proceedings not inconsistent with this opinion. °^ 
 
 61 Ace: James v. Burnet, 20 N. J. Law, 635 (1846). 
 
 A. mortgaged a flock of sheep to X., the sheep remaining in A.'s posses-
 
 Sec. 4) coNFnsioN 219 
 
 ST. PAUL BOOM CO. v. KEMP. 
 (Supreme Court of Wisconsin, 1905. 125 Wis. 138, 103 N. W. 259.) 
 
 [The boom company had in its possession a brail of sixty three logs. 
 One Hackett tortiously and willfully took possession of the logs and 
 sold them to the defendant who bought with knowledge of all the 
 facts. The defendant sawed three quarters of the logs into lumber 
 which he mixed with his own lumber. The logs so cut yielded about 
 6,000 feet of lumber. The whole brail of logs would yield 8,000 feet 
 of lumber. The plaintiff replevied and the officer took possession of 
 some of the uncut logs and of 20,000 feet of lumber. Judgment be- 
 low was for the plaintiff for all the logs and lumber so seized. The 
 defendant appealed.] 
 
 SiEBECKER, J.^^ * * * 'j'lig court awarded judgment in re- 
 spondent's favor for the recovery of the logs and lumber seized by the 
 officer, and for costs. It is contended that this is error. The jury 
 found that the brail of logs contained 8,000 feet of manufactured lum- 
 ber, that the total value of the logs was $120, and that the quantity re- 
 covered by respondent was worth $30, which, on the basis of valuation 
 found by the jury, would be one fourth of the whole amount; thus 
 showing that three-fourths of the logs had been manufactured into lum- 
 ber, which, upon this calculation, amounted to 6,000 feet. The officer 
 seized 20,000 feet of the manufactured lumber, or 14,000 feet in ex- 
 cess of the amount the logs yielded. The trial court awarded judg- 
 ment for the recovery of the whole amount seized by the officer, upon 
 the ground that a wrongful confusion of goods operates as a forfei- 
 ture of the interest of the wrongdoer in all of the goods so intermixed. 
 To operate such a forfeiture it must appear that the lumber manufac- 
 tured out of the respondent's logs and that of appellant with which it 
 was mixed were so different in description, quality, and value that 
 the whole mass could not be ratably apportioned in proportion to the 
 quantities contributed to the whole mass by the original owners. The 
 evidence does not tend to show that there was a difference in descrip- 
 
 sion. Subsequently he Intentionally added to the flock other sheep of the 
 same kind. Held, since neither the individual sheep nor the proportion sub- 
 sequently added by A. can be discovered, the entire flock is subject to X.'s 
 mortgage. Ayre v. Hixson, 53 Or. 19. 98 Pac. 515, 133 Am. St. Rep. 819, Ann. 
 Cas. 1913E, 659 (1908). Accord: Hawkins v. Spokane Hydraulic Slin. Co., 3 
 Idaho. 650, 33 Pac. 40 (1893) ; Robinson v. Holt, 39 N. H. 557, 75 Am. Dec. 
 233 (1859). 
 
 A. intentionally, but in good faith, drew gas from B.'s well and mingled 
 the gas of 60 wells together, keeping practically no accounts of the amount 
 taken from B.'s well. Held, B. is entitled to one-sixtieth of the amount for 
 which the product of all the wells sold during the time in question. Great 
 Southern Gas & Oil Co. v. Logan Natural Gas & Fuel Co.. 155 Fed. 114, 83 
 C. C. A. 574 (1907). Compare Stone v. Marshall Oil Co., 208 Pa. 85, 57 Atl. 
 183, 65 L. R. A. 218, 101 .Vm. St. Rep. 904 (1904). 
 
 »2 Part of the opinion is omitted.
 
 "220 ACQUISITION OF OWNKItSIIIP (Ch. 4 
 
 tion, quality, and value of the lumber so mixed. There is nothing to 
 show that such an apportionment could not be made, and that respond- 
 ent would not be fully compensated for its damage by having its pro- 
 portion of the whole mass restored to it. * * * 
 
 We are constrained to hold that the judgment is erroneous, in that 
 it awarded to respondent the right to hold and retain the logs and 
 20,000 feet of lumber seized by the officer under the writ of replevin. 
 Respondent was entitled to the logs seized, and to its full proportion 
 out of the entire quantity of lumber seized, namely, 6,000 feet, and 
 the costs of the action ; and appellant was entitled to a return of the 
 excess of the lumber so seized, or, if the lumber could not be returned, 
 to its value, without any damages for the seizure of such excess un- 
 der the writ of replevin. * * * 
 
 Judgment reversed.'^* 
 
 HESSELTINE v. STOCKWELL. 
 
 (Supreme Judicial Court of Maine, 1849. 30 Me. 237, 50 Am. Dee. C27.) 
 
 [One Preble wilfully and tortiously cut 100 M feet of timber upon 
 land of the plaintiff and 600 M feet of the same quality on his own 
 land, and purposely mixed the two lots. Part was marketed ; part was 
 sold to the defendant. The defendant sold all but 100 M feet. This 
 amount was seized by the plaintiff. The defendant retook it from the 
 plaintiff who brings trover.] 
 
 The Court instructed the jury, that the plaintiff must prove that the 
 logs for which he claimed damages, in this action, had been cut on 
 his land, and had been taken by the defendant; and that the plaintiff 
 was entitled to recover for any logs cut by said Preble on the plaintiff's 
 land, and which were taken by the defendant, unless said Preble had 
 paid the plaintiff therefor; and that it did not appear that any ques- 
 tion of confusion of property arose in the action. 
 
 68 A. and B. had intersecting veins of ore. A. intentionally mined lioth from 
 liis and B.'s vein. B. sued for the value of the ore so converted. The court, 
 in reversing an instruction given in the trial court, said: "The instruction 
 told the jury, in effect, that if the appellants toolc some ore which belonged 
 to them, and some which belonged to respondents, and mixed the same, re- 
 sijondents could recover the value of the whole, unless appellants separated 
 the same by testimony, and proved the amount which rightfully belonged to 
 each. The principle of the Instruction, curried to its loglcnl result, might 
 malie appellants liable for vastly more ore than was ever extracted from re- 
 spondent's ground, and cannot be supported. In the first lusUuire it was in- 
 cumbent upon the respondents to mal^e at least a prima facie showing of the 
 amount of ore which appellants had extracted from the ground descril)ed In 
 the complaint, and under no theory of the case could resixindents recover 
 more than the value of that amount of ore. If appellants claim that a por- 
 tion of the ore which respondents say the appellants took away was in fact 
 extracted from some place other than the ground in disinite, that was a mat- 
 ter of defense which it was for the appellants to prove." Maloney v. King. 
 30 Mont. 158, 170, 76 Pac. 4 (1904).
 
 Sec. i) CONFUSION 221 
 
 A verdict was returned for the defendant ; plaintiff excepted. 
 
 SheplEy, C. J.^* * * * j£ Preble wrongfully cut any logs on 
 land owned by the plaintiff, and mixed them with logs cut on his own 
 land, so that they could not be distinguished, a question respecting con- 
 fusion of goods, might properly have arisen. The admixture might 
 have been of such a character, that the whole lot of logs, including 
 those in the possession of the defendant, might have become the prop- 
 erty of the plaintiff. Or it might have been of such a character, the 
 logs being of equal value, that the plaintiff would have been entitled 
 to recover from any one in possession of those logs or of a part of 
 them, such proportion of them, as the logs cut upon his land bore to 
 the whole number. * * * 
 
 Exceptions sustained, verdict set aside, and new trial granted.'" 
 
 BRYANT V. WARE. 
 (Supreme Judicial Court of Maiue, 1849. 30 Me. 29.5.) 
 
 Howard, J.'* This was an action of trespass de bonis asportati^ 
 for a quantity of cedar railroad sleepers, juniper knees, shingles and 
 juniper timber. There was evidence, as stated in the exceptions tend- 
 ing to show that the lumber was cut in the winter of 1840—41, by Sam- 
 uel Potter, a trespasser, on two contiguous tracts of land, and hauled 
 into a brook, to be floated down to a market. That one of the tracts of 
 land was owned by the defendant, and that the other, called the college 
 land, was owned by Timothy Boutelle. That in the spring following, 
 the timber was run down to the Penobscot river and rafted into eleven 
 rafts, six of which were run to Bangor, immediately after by Potter, 
 and "delivered to the plaintiff to pay him what Potter owed him, and 
 the balance to be paid to Potter (the plaintiff having supplied Potter 
 while cutting the lumber)." "That Potter was a trespasser on both 
 lots, on which he cut the timber ;" and that "there was no other inter- 
 mingling of the timber cut from both tracts, except that the logs 
 were hauled into the same brook, at the same landing, and afterwards 
 rafted into the same rafts, there being no marks on any of the timber." 
 
 The defendant took the five rafts at Oldtown, as his property, and 
 soon after took the remaining six rafts out of the possession of the 
 plaintiff', at Bangor. 
 
 The instructions to the jury, to which exceptions were taken and 
 urged in the argument, were : 
 
 1. That, if a part of the lumber was cut on the defendant's land, and 
 a part on the college land, and the whole was mixed together in such 
 
 6* Part of the opinion is omitted. 
 
 5 5 See Norris v. U. S. (C. C.) 44 Fed. 7.35 (1S91). 
 
 66 Tlie statement of facts and part of tlie Dpininn are omitted.
 
 222 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 a manner, by those who cut it, that it could not be distingnished, the 
 defendant had a right to take the whole, and that this action of tres- 
 pass could not be maintained. 
 
 2. That if the defendant did take the five rafts at Oldtown, and 
 if they amounted to more than all of the timber cut from his land, 
 it would make no difference where he took it, if he intended to seize 
 all of the timber cut as before mentioned, if they found that it was 
 intermingled, and could not be distinguished as before stated. 
 
 If one take the goods of another, as a trespasser, he does not there- 
 by acquire a title to them, and cannot invest another with a title; but 
 the original owner may follow his property and reclaim it from the 
 trespasser, or any other person claiming through him, so long as the 
 identity can be established. 
 
 If the timber taken by Potter, as a trespasser, from the land of the 
 defendant, was so mingled with the other timber taken by him from 
 the college land, that it could not be distinguished, it would produce 
 what is denominated a confusion of goods. * * * 
 
 Where the confusion or commixture of goods, is made by consent of 
 the owners, or by accident, and without fault, so that they cannot be 
 distinguished, but the identity remains, each is entitled to his propor- 
 tion. 
 
 This was also the doctrine of the civil law. Just. Inst. Lib. 2, tit. 
 1, §§ 27, 28. 
 
 But if such intermixture be wilfully or negligently effected by one, 
 without the knowledge or approbation of the other owner, the latter 
 would be entitled by the common law, to the whole property, without 
 making satisfaction to the former, for his loss. The civil law, however, 
 required the satisfaction to be made. Browne's Civil Law, 243 ; Ward 
 V. Ayre, Cro. Jac. 366; 2 Black. Com. 405; 2 Kent, Com. 363, 364, 
 where the civil law is stated differently by the learned Chancellor, 
 page 364; Story's Com. on Bailments, § 40; Lupton v. White, 15 
 Vesey, 440 ; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62, 513. 
 
 If the defendant found his timber, which has been wrongfully taken 
 from his land, mingled with other timber, in the manner stated in the 
 evidence, so that it could not be distinguished, he had clearly a right 
 to take possession of the whole, without committing an act of trespass, 
 even if he may be held to account to the true owner for a portion of it. 
 He had, at least, a common interest in the property, and in taking pos- 
 session, he asserted only a legal right. Inst. lib. tit. 1, § 28; Story's 
 Com. on Bailments, § 40. 
 
 In any view of the case, upon the facts presented, the instructions 
 were correct. 
 
 Exceptions overruled.
 
 Sec. 5) JUDGMENT 223 
 
 SECTION 5.— JUDGMENT 
 
 ARMROYD et al. v. WILLIAMS et al. 
 
 (Circuit Court of the United States [Pa.], 1811. 2 Wash. C. O. 508, Fed. 
 
 Cas. No. 538.) 
 
 Appeal from the District Court. The schooner Fortitude, belonging 
 to Williams and others, the libeilants, citizens of the Uhited States, 
 with a cargo taken in at Martinico, and a part of her outward cargo 
 carried from the United States, sailed on the 20th of August, 1809, 
 from the said island to New London, consigned to one of the libeilants. 
 On the next day, she was captured on the high seas by a French 
 privateer, and carried into St. IMartin's. The cargo and vessel were 
 sold, by order of the governor of St. Martin's at public auction. Nine- 
 ty-seven hogsheads of molasses, part of the cargo, were sold on the 
 15th of October, and sent to Philadelphia, consigned to Armroyd & Co., 
 restitution of which was demanded by the libeilants, and refused ; upon 
 which this libel was filed. 
 
 The molasses was claimed as the bona fide property of Richardson 
 & Cardy, of St. Martin's and others. The claim states, that at the 
 time of the capture, and before war existed between England and 
 France, the Fortitude, on her return from Martinico, a colony under 
 the dominion of Great Britain, where she had been trading with the 
 enemies of France, contrary to the decrees of France, was captured 
 by a French privateer as prize, carried into St. Martin's, a French pos- 
 session, and, with her cargo, sold by order of the governor ; that the 
 molasses claimed was purchased, bona fide by certain persons, and 
 afterwards sold by them to those for whom the claim is made : that 
 on the 12th of October, 1S09, the Court of Prize, established at Guada- 
 loupe, a French Island, condemned t'ne said schooner Fortitude and her 
 cargo. 
 
 The sentence of the Court at Guadaloupe, after setting forth the 
 purport of the papers of the schooner, proceeds thus : "It results 
 from these papers, that the schooner is the property of a citizen of the 
 United States ; that she sailed from New London, bound to Martinico, 
 where she sold her cargo, and took in another cargo for New London, 
 and therefore she has incurred the penalty pronounced by the Milan 
 Decree, dated September 17, 1807 (which is set out), and after hear- 
 ing the opinion of the inspector, etc., we declare the said schooner to 
 have been duly captured, and to be forfeited to the captors. Conse- 
 quently, she and her cargo are awarded to the captors, to be sold, if the 
 sale has not already taken place," etc. 
 
 A pro forma decree having been made by the District Court in fa- 
 vour of the libellant, an appeal was prayed to the Circuit Court.
 
 224 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 Washington, J.°' The question is, is the sentence of the Prize 
 Court at Guadaloupe conchisive to divest the right of the original own- 
 ers of the property, condemned by tliat sentence, and to vest it in the 
 purchaser under it? The doctrine of the British Courts, acknowledged 
 and adopted by the Courts of the United States, is that the sentence 
 or decree of a Court of exclusive jurisdiction, operating directly on 
 the thing itself, is conclusive between the same parties, upon the same 
 matter coming directly or incidentally in question, in another Court of 
 co-ordinate jurisdiction, not only of the right which it establishes, but 
 of the fact which it directly decides. * * * 
 
 As to the direct effect of the sentence upon the thing condemned, no 
 doubt has ever been entertained, that it is conclusive to work a change 
 of the property, so long as that sentence remains in force, unreversed 
 by a superior and appellate tribunal. If the principle be thus general 
 and inflexible, it is unimportant whether the foreign sentence be er- 
 roneous or not, or whether the error consist in the mistake of the 
 Court in matter of fact, or a misconception of the acknowledged law 
 of nations, or is founded upon foreign laws avowedly repugnant to 
 the law of nations. * * * 
 
 The rule of law which governs the Court in deciding this case, is, 
 in our opinion, a wise one ; and it has appeared otherwise only during 
 a few years past, because the regular order of things has been dis- 
 turbed and disfigured by the violence and rapine of the belligerents. 
 We confess that we sicken with disgust, in giving to the appellees 
 the benefit of a general principle of law, which compels submission to 
 so daring an outrage upon our neutral rights. But we must obey the 
 law, and leave to our government the task of protecting its citizens. 
 
 Sentence reversed.^* 
 
 GRIFFITH v. FOWLER. 
 
 (Suprpine Com-t of Vermont, 1S46. IS Vt. P.OO.) 
 
 Trespass for taking a shearing machine. The case was submitted 
 upon a statement of facts, agreed to by the parties, from which it 
 appeared, that in 1836 the defendant, being the owner of the machine 
 in question, lent it to one Freeman, to use in his business as a clothier, 
 who was to pay a yearly rent therefor, and in whose possession it re- 
 mained until the year 1841, when it was sold at sheriff's sale, on ex- 
 ecution, as the property of Freeman, and one Richmond became the 
 purchaser; that Richmond, in January, 1842, sold the machine to the 
 plaintiff, who at the same time purchased of Freeman the building,- in 
 which the machine was situated, and took possession thereof ; and that 
 
 6' I'art of the opinion is omitted. 
 
 5 8 Ace: Hughes v. Cornelius, 2 Show. 232 (16S0).
 
 Sec. 5) JUDGMENT 225 
 
 the defendant, in February, 1842, took the machine from the plaintiff's 
 possession, claiming it as his property. The value of the machine was 
 admitted to be fifty dollars. 
 
 Upon these facts the county court— -Hebard, J., presiding — rendered 
 judgment for the defendant. Exceptions by plaintiff. 
 
 RedfiEld, J.°* The only question reserved in this case is, whether 
 a title to personal property, acquired by purchase at sheriff's sale, is 
 absolute and indefeasible against all the world, or whether such sale 
 only conveys the title of the debtor. 
 
 There has long been an opinion, very general, I think, in this state, 
 not only among the profession, but the people, that a purchaser at 
 sheriff's sale acquires a good title, without reference to that of the 
 debtor, that such a sale, like one in market overt in England, conveys 
 an absolute title. But, upon examination, I am satisfied that this opin- 
 ion acts upon no good basis. 
 
 So far as can now be ascertained, this opinion, in this state, rests 
 mainly upon a dictum in the case of Heacock v. Walker, 1 Tyler 338. 
 * * * 
 
 There are sufficient reasons why the dictum should not be re- 
 garded if the thing were new. And we do not esteem the long stand- 
 ing of the dictum of any importance, unless it can be shown, that i: 
 has thus grown into a generally received and established law, or usage : 
 which, we think, is not the case in regard to this. For this court has, 
 within the last ten years, repeatedly held, that a sheriff's sale was of 
 no validitj' to pass any but the title of the debtor, when no actual de- 
 livery of the tiling sold tvas made by the sheriff, at the time of sale. 
 .A.ustin V. Tilden et al., 14 Vt. 325; Boynton v. Kelsey, Caledonia 
 County, 1836; S. P., Lamoille County, 1841. Since the first of these 
 cases was decided, the main question, involved in this case, has been 
 considered doubtful in this state, and we now feel at liberty to decide 
 it, as we think the law should be, that is, as it is settled at common 
 law. 
 
 But the idea, that some analog}' existed between a sheriff's sale and 
 a sale in market overt is certainly not peculiar to the late Chief Jus- 
 tice Tyler. This opinion seems at one time to have prevailed in West- 
 minster Hall, to some extent, at least; for in the case of Farrant v. 
 Thompson, 5 B. & A. 826 (7 E. C. L. 272), which was decided in the 
 King's Bench in 1822, nearly twenty years later than that of Heacock 
 V. W'alker, one of the points raised in the trial of the case before Chief 
 Justice Abbott was, that the title of the purchaser, being acquired at 
 sheriff's sale, was good against all the world, the same as that of a 
 purchaser in market overt. This point was overruled, and a verdict 
 passed for tlie plaintiff, but with leave to move to set it aside, and to 
 enter a nonsuit, upon this same ground, with one other. This point 
 
 B> Part of the opinion is omitted. 
 Bio.Pees.Pbop. — 15
 
 226 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 was expressly argued by Sir James Scarlet — who was certainly one of 
 the most eminent counsel, and one of the most discriminating men 
 of modern times — in the King's Bench, and was decided by the court 
 not to be well taken. Since that time I do not find, that the question 
 has been raised there. 
 
 It seems to be considered in Massachusetts, and in New York, and 
 in many of the other states, that nothing, analogous to markets overt 
 in England, exists in this country. Dame v. Baldwin, 8 Alass. 518; 
 Wheelwright v. De Peyster, 1 Johns. (N. Y.) 480, 3 Am. Dec. 345 ; 2 
 Kent, 324, and cases there cited. Nothing of that kind, surely, exists 
 in this state, unless it be a sheriff's sale. And if the practice of hold- 
 ing sales in market overt conclusive upon the title existed in any of 
 the states, it would be readily known. I conclude, therefore, that 
 Chancellor Kent is well founded in his opinion, when he affirms, that 
 the law of markets overt does not exist in this country. Id. 
 
 It seems probable to me, that the idea of the conclusiveness of a 
 sheriff's sale upon the title is derived from the effect of sales under 
 condemnations in the exchequer, for violations of the excise or revenue 
 laws, and sales in prize cases, in the Admiralty courts, either provi- 
 sionally, or after condemnation. But these cases bear but a slight 
 analogy to sheriff's sales in this country, or in England. Those sales 
 are strictly judicial, and are merely carrying into specific execution 
 a decree of the court in rem, which, by universal consent, binds the 
 whole world. 
 
 Something very similar to this exists, in practice, in those coun- 
 tries, which are governed by the civil law ; which is the fact in one 
 of the American states, and in the provinces of Canada, and in most, 
 if not all, the continental states of Europe. The property, or what is 
 claimed to be the property, of the debtor is seized and libelled for 
 sale, and a general monition served, notifying all having adversary 
 claims to interpose them before the court by a certain day limited. In 
 this respect the proceedings are similar to proceedings in prize courts, 
 and in all other courts proceeding in rem. If no claim is interposed, 
 the property is condemned, by default, and sold ; if such claims are 
 made, tliey are contested, and settled by the judgment of the court, 
 and the rights of property in the thing are thus conclusively settled 
 before the sale. 
 
 But with us nothing of this character exists in regard to sheriff's 
 sales. Even the right to summon a jury to inquire into conflicting 
 claims de bene esse, as it is called in England, and in the American 
 states, where it exists, has never been resorted to in this state. And 
 in England, where such a proceeding is common, — Impey, 153; Dal- 
 ton, 146; Farr et al. v. Newman et al., 4 T. R. 621, — it does not avail 
 the sheriff, even, except to excuse him from exemplary damages. Lat- 
 kow V. Earner, 2 H. Bl. 437; Glassop v. Poole, 3 M. & S. 175. It 
 is plain, then, that a sheriff's sale is not a judicial sale. If it were.
 
 Sec. C) SATISFACTIOX OF JUDGMENT 227 
 
 no action could be brought against the sheriff, for selling upon execu- 
 tion property not belonging to the debtor. 
 
 With us an execution is defined to be the putting one in possession 
 of that, which he has already acquired by judgment of law. Co. Lit- 
 154 a (Thomas' Ed. 405). But the judgment is of a sum in gross 
 "to be levied of the goods and chattels of the debtor," which the sher- 
 iff is to find at his peril. The sale upon the execution is only a trans- 
 fer, by operation of law, of what the debtor might himself transfer. 
 It is a principle of the law of property, as old as the Institutes of 
 Justinian, Ut nemo plus juris in alium transferre potest, quam ipse 
 habet. 
 
 The comparison of sheriff's sales to the sale of goods lost, or estrays, 
 in pursuance of statutory provisions, which exist in many of the states, 
 does not, in my opinion, at all hold good. Those sales undoubtedly 
 transfer the title to the thing, as against all claims of antecedent prop- 
 erty in any one, if the statutory provisions are strictly complied with ; 
 but that is in the nature of a forfeiture, and is strictly a proceeding 
 in rem, wherein the finder of the lost goods is constituted the tribunal 
 of condemnation. 
 
 There being, then, no ground, upon which we think we shall be 
 justified in giving to a sheriff's sale the effect to convey to the pur- 
 chaser any greater title, than that of the debtor, the judgment of the 
 court below is affirmed. 
 
 SECTION 6.— SATISFACTION OF JUDGMENT 
 
 Ex parte DRAKE. 
 
 In re WARE. 
 (High Court of Justice, Chancery Division, 1877. 1>. R. 5 Ch. Div. S66.) 
 
 This was an appeal from a decision of Mr. Registrar Pepys, sitting 
 as Chief Judge in Bankruptcy. 
 
 In March, 1875, James Ware, a carrier and carman, hired a grey 
 mare of Daniel Drake. He neglected to return the mare when requir- 
 ed by Drake to do so, and in May, 1876, Drake commenced an action 
 in the Exchequer Division against Ware for the recovery of the mare. 
 The action was tried on the 2d of December, 1876, when a verdict was 
 found for the plaintiff for £60., the value of the mare, such amount to 
 be reduced to Is. if the mare was returned to the plaintiff on the 4th of 
 December, and £25. damages for the wrongful detention. And the
 
 228 ACQUISITION OF OWNEUSHIP (Ch. i 
 
 Judge directed judgment for £85., and the costs of the action. Tlie de- 
 fendant did not return the mare, and on the 6th of December, the 
 plaintiff's solicitor's bill of costs was taxed at £70. 10s. 2d. At an 
 earlier hour on the same day Ware had filed a liquidation petition, and 
 notice of the petition was given to the plaintiff's solicitor by Ware's 
 solicitor when they attended the taxation. Un the same day Drake 
 signed judgment in the action for £155. 10s. 2d. and issued and 
 lodged with the sheriff of Middlesex a writ of fi. fa. on the judg- 
 ment. On the 7th of December the sheriff levied on the goods of 
 Ware, not including the mare. An order was afterwards made by the 
 Court of Bankruptcy restraining the proceedings under the execution, 
 and the sheriff' withdrew. The first meeting of the creditors was held 
 on the 5th of January, 1877, when Drake tendered a proof. His affi- 
 davit stated the verdict in the action, the signing of the judgment, the 
 taxation of the costs, and that the mare had not been delivered to him, 
 nor the £85., or the amount of the taxed costs paid to him. The affi- 
 davit went on to state that Ware was also, at the date of the institu- 
 tion of the liquidation proceedings, and still was, indebted to him in 
 the sum of £264. for hire of the mare from the 25th of March, 1875, 
 to the 2d of December, 1876, for which sum he had not received any 
 satisfaction or security. He further said that he had not received any 
 satisfaction or security for the amount recovered by him under the 
 judgment, except so far as the same was secured by the goods levied 
 upon by the sheriff. * * * The proof afterwards was objected to 
 by the trustee in the liquidation, as to the £264., on the ground that no 
 contract for hire was ever entered into by the debtor. On the 10th of 
 January, 1877, Drake applied to the Court in the liquidation for an 
 order that the trustee should deliver to him the goods which had been 
 seized by the sheriff, or that he should, out of the first assets belonging 
 to the estate of Ware which should come to his hands, pay to Drake 
 the £155. 10s. 2d. due to him under the judgment, with interest until 
 payment. This motion was by consent turned into a special case. Up- 
 on the hearing of the case on the 13th of February, the Registrar de- 
 cided that Drake was not entitled to any relief. At this time Drake did 
 not know where the mare was. But on the 13th of March he acciden- 
 tally discovered her in the possession of the debtor, whose servant was 
 driving her. The debtor was, with the permission of the trustee, using 
 her in his business. Drake thereupon instructed the sheriff to seize the 
 mare under the writ of fi. fa. and the sheriff on the same dav forcibly 
 removed her from the debtor's possession. On the 14th of March the 
 trustee obtained in the Court of Bankruptcy an interim injunction re- 
 straining the sheriff' and Drake from selling the mare, and on the 27th 
 of March the Registrar made this injunction perpetual, and ordered 
 that the mare should be forthwith delivered up to the trustee. 
 Drake appealed.
 
 Sec. 6) SATISIACTION OF JUDGMENT 229 
 
 JessEL, M. R.°° * * * The first question is, in whom was the 
 property in the mare when she was seized by the sheriff's officer? I 
 am of opinion that, after the decision in Brinsmead v. Harrison, L. R. 
 7 C. P. 547, we are bound to hold tliat the property was never divested 
 from Drake. He had the property unless something which he did un- 
 der the judgment divested it from him. It is clear that the judgment 
 itself did not divest the property. Did the execution divest it? Upon 
 that question the authority of Brinsmead v. Harrison is distinctly in 
 point. It shews that the execution does not divest the property unless 
 there is satisfaction of the judgment. There are several ways in which 
 an execution might produce nothing. One way would be if the amount 
 produced by the sale of the goods seized did not cover the expenses of 
 the sale. Another way would be if, as happened in the present case, 
 there was a prior act of bankruptcy which nullified the execution. The 
 judgments in Brinsmead v. Harrison, and especially that of Mr. Jus- 
 tice Willes, shew that the theory of the judgment in an action of detin- 
 ue is that it is a kind of involuntary sale of the plaintiff's goods to the 
 defendant. The plaintiff wants to get his goods back, and the court 
 gives him the next best thing, that is, the value of the goods. If he 
 does not get that value, then he does not lose his property in the goods. 
 On the appeal to the Exchequer Chamber, in Brinsmead v. Harrison, 
 the only two Judges who expressed any opinion on the point confirmed 
 the view of Mr. Justice Willes. Mr. Justice Blackburn said (L. R. 7 C. 
 P. 554) : "I observe that the Court of Common Pleas, in their judg- 
 ment upon the demurrer to the new assignment, which is not now be- 
 fore us, held that by the recovery in the first action without satisfac- 
 tion the property in the chattel did not pass. I should be inclined to 
 agree to this, but it is unnecessarv' to express an opinion it." And Mr. 
 Justice Lush said (L. R. 7 C. P. 555) : "The Judges who decided those 
 American cases seem to have thought that, by holding that recovery 
 against one of two wrongdoers was a bar to an action against the other, 
 they would be deciding that the property in the chattel passed by the 
 recovery ; but I do not think that by any means follows ; and, as at 
 present advised, I am prepared to adhere to the judgment of the Court 
 below upon both points." Therefore one Judge entirely agreed with 
 Mr. Justice Willes, and the other was inclined to agree with him. Un- 
 der these circumstances we must consider it established that the prop- 
 erty in the mare remained in the plaintiff Drake. That being so, he had 
 a right to obtain possession of his property either by taking it peace- 
 ably or by means of proper legal process. As I understand the provi- 
 sions of section 78 of the Common Law Procedure Act, 1854, the 
 plaintiff (assuming that there had been no liquidation petition), if the 
 value of the mare had not been paid to him under the judgment and if 
 
 00 The statement of f.icts is abridged and a rart of the opinion of Jessel, 
 11. E., and the concurring opinion of James, L. J., are omitted.
 
 230 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 he could have found out where the mare was, might have appHed to a 
 Judge at Chambers for an order that the defendant should deliver her 
 to him. The liquidation petition prevented him from doing that, but 
 the power of the Judge at Chambers became then vested in the Court 
 of Bankruptcy, which could do complete justice in the matter. The 
 plaintiff Drake, therefore, if he had applied to the Court of Bank- 
 ruptcy, might have obtained an order for the delivery of the mare to 
 him. But it is said tliat he cannot do this now, because he is bound by 
 the proof which he made in the liquidation. If that means anything it 
 means this, that the plaintiff has deliberately elected to take his chance 
 of a dividend in the liquidation in substitution for his right to recover 
 possession of his mare. It would be very extraordinary if he had done 
 this, but of course it is possible that he may have done it, and we must 
 examine what he actually did in order to see whether he has really 
 made this election. He has done nothing beyond bringing in a proof. 
 The proof has not been formally admitted by the trustee, though, on 
 the other hand, it has not been rejected. But, before a reasonable time 
 had elapsed after the proof was taken in, the plaintiff made a claim 
 to be paid in full the whole amount of his judgment, that is, he made a 
 claim for the full value of the chattel. This was a proceeding wholly 
 inconsistent with the notion that he had finally elected to take the divi- 
 dend instead of the mare, and I am of opinion that he had made no 
 such election. The result is that the order of the registrar must be dis- 
 charged and we must now make the order, etc., the order which he 
 ought to have made, that is, that the mare be delivered to or retained 
 by tlie appellant. But, inasmuch as his proceedings in directing the 
 sheriff to seize the mare were not such as can be viewed with approba- 
 tion by the Court, the proper order as to costs will be that there be no 
 costs on either side, either of the hearing before the registrar or of the 
 appeal.*^ 
 
 MILLER V. HYDE. 
 
 (Supreme Judicial Court of Massachusetts, 1894. 161 Mass. 472. 37 N. E. 
 760, 25 L. R. A. 42, 42 Am. St. Rep. 424.) 
 
 [Replevin of a horse; submitted on agreed statement of fact] 
 The horse in question was purchased in July, 1890, by Herbert W. 
 Miller, a resident of Boston, through his agent, George Bryden, of 
 Hartford, in the State of Connecticut, who thereafter kept it for him 
 
 61 A. pledged bonds with B. to secure a debt. B. converted by wrongfully 
 repledging to C. A. brought trover against B. for the difference between the 
 value of the bonds and the debt, and got judgment, which was not satisfied. 
 B. became bankrupt, and recovered part of the bonds from C. Held, A. can- 
 not replevy these bonds from B. Deitz v. Field, 10 App. Div. 42.5, 41 N. Y. 
 Supp. 1087 (1896). Compare Union Pac. Ry. Co. v. Schiff (C. C.) 78 Fed. 216 
 (1897).
 
 Sec. 6) SATISFACTION OF JUDGMENT 231 
 
 in Hartford. INIiller died in September, 1890, and in the following 
 November the plaintiff, who was his widow, having been appointed 
 administratrix of his estate, demanded the horse of Bryden, who re- 
 fused to deliver it to her, claiming to own a half interest therein. In 
 March, 1891, Bryden sold and delivered the horse as his own prop- 
 erty to Joseph C. Davenport and Ada L- Hyde, both residents of Con- 
 necticut. 
 
 Ancillary administration was subsequently granted to the plaintiff 
 in Connecticut, and in November, 1891, she brought an action in that 
 State against Bryden, Davenport, E. A. Hyde, and one Shillinglaw, 
 for the conversion of the horse, which was in the possession of the 
 three last named defendants, and attached the horse upon mesne pro- 
 cess. She recovered judgment against Bryden only, on which execu- 
 tion was issued and delivered to an officer, who, after an ineffectual 
 demand on Bryden for its payment, levied on the horse and adver- 
 tised it for sale, but before he had sold it it was replevied from him 
 by Davenport. 
 
 In August, 1892, Davenport intrusted the horse to the defendant, 
 who brought it into this Commonwealth, where it was replevied by 
 the plaintiff. When this action was begun, the judgment recovered 
 in trover against Bryden, who was financially worthless, remained un- 
 satisfied, and the replevin suit of Davenport against the officer was 
 still pending in Connecticut. * * * 
 
 Barker, J."- The plaintiff may maintain replevin if she is the 
 owner of the horse, and if she is not estopped from asserting her own- 
 ership against the defendant. As administratrix of her husband's es- 
 tate, she was the owner when she brought trover in Connecticut against 
 Bryden, the bailee, who had wrongfully usurped dominion, and sold 
 and delivered the horse to Davenport. As the horse was in Connecti- 
 cut and the action of trover was in the courts of that State, the ef- 
 fect of the suit upon her title would be determined by the law of the 
 forum. But as the law of Connecticut is not stated as an agreed fact, 
 we must apply our own. Whether a plaintiff's title to the chattel is 
 transferred upon the entry in his favor of judgment in trover has not 
 been decided by this court. Assuming that in early times title to the 
 chattel was transferred to the defendant upon the entry of judgment 
 for the plaintiff in trover, at present a different doctrine is generally 
 applied, and it is now commonly held that title is not transferred by 
 the entry of judgment, but remains in the plaintiff until he has re- 
 ceived actual satisfaction. See Atwater v. Tupper, 45 Conn. 144, 29 
 Am. Rep. 674; Turner v. Brock, 6 Heisk. (Tenn.) 50; Lovejoy v. 
 Murray, 3 Wall. 1, 18 L. Ed. 129; Ex parte Drake, 5 Ch. D. 866: 
 Brinsmead v. Harrison, L. R. 7 C. P. 547 ; 1 Greenl. Ev. § 533, and 
 
 «2 The statement of facts Is abridged and parts of the opinious of Barker, 
 Holmes, and Knowlton, JJ., are omitted.
 
 232 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 note; and the law has been commonly so administered by our own 
 trial courts. We tliink this doctrine better calculated to do justice 
 and see no reason why we should not hold it to be law. 
 
 Whenever the title passes, as there has been no sale or gift, and no 
 title by prescription or by pKJSsession taken upon abandonment by the 
 true owner, the transfer is made by his inferred election to recognize 
 as an absolute ownership the qualified dominion wrongfully assumed 
 by the defendant. The true owner makes no release in terms and no 
 election in terms to relinquish his title; but the election is inferred by 
 the law, to prevent injustice. Formerly this election was inferred 
 when judgment for the plaintiff was entered, because his damages, 
 measured by the value of the chattel and interest, were then author- 
 itatively assessed, and the judgment brought to his aid the power of 
 the court to enforce its collection out of the wrongdoer's estate or by 
 taking his person ; and this was deemed enough to insure actual satis- 
 faction. If so, it was just to infer that when he accepted these rights 
 he elected to relinquish to the wrongdoer the full ownership of the 
 chattel. An election was not inferred when the suit was commenced, 
 although the plaintiff then alleged that the defendant had converted 
 the chattel, and although the writ might contain a capias, because, ow- 
 ing to the uncertainties attendant upon the pursuit of remedies by ac- 
 tion, it was not just to infer such an election while ultimate satisfac- 
 tion for the wrong was but problematical. Forms of action are a 
 means of administering justice, rather than an end in themselves. 
 When it is seen that the practical result of a form of action is a fail- 
 ure of justice, the courts will make such changes as are necessary to 
 do justice. If the entry of judgment in trover usually gave the judg- 
 ment creditor but an empty right, it was not just to infer that upon 
 acquiring such a right he relinquished the ownership of the chattel, and 
 the rule that required the inference to be then drawn was properly 
 changed. The ground for inferring such an election was that upon 
 the entry of judgment he acquired an effectual right in lieu of his 
 property and the doctrine that without some actual satisfaction the 
 inference of an election would not be drawn has been shown bv e.K- 
 perience to be necessary to the administration of justice, and has been 
 generally acted upon, and the modern rule adopted that the plaintiff's 
 title is not transferred by the entry of judgment, but is transferred 
 by actual satisfaction. Trover is but a tentative attempt to obtain jus- 
 tice for a wrong, and until pursued so far that it has given actual satis- 
 faction ought not to bar the plaintiff from asserting his title. * * * 
 \\'hether the holder of an unsatisfied judgment in trover can without 
 a fresh taking maintain replevin against the same defendant, or is re- 
 stricted to one action against the same person for a single tort, we do 
 not now decide. See Bennett v. Hood, 1 Allen, 47, 79 Am. Dec. 705 ; 
 Trask v. Hartford & New Haven Railroad, 2 Allen, 331 ; Bliss v. 
 New York Central & Hudson River Railroad, 160 Mass. 447, 36 N.
 
 Sec. 6) SATISFACTION OF JUDGMENT 233 
 
 E. 65, 39 Am. St. Rep. 504. If he is so restricted, it is not because 
 the ownership of the chattel has been transferred. 
 
 But the present plaintiff has done more than to take judgment in 
 trover. In her action of trover she caused the horse to be attached 
 upon mesne process, and since obtaining judgment she has caused the 
 horse to be seized as property of Bryden in execution on the judg- 
 ment as his property, and to be kept and offered for sale on the execu- 
 tion until, as it was about to be so sold, it was replevied, by Davenport 
 from the officer in a suit between them which is still pending in Con- 
 necticut. That suit is not a bar to this action, because it is not be- 
 tween the same parties. White v. Dolliver, 113 Mass. 400, 18 Am. 
 Rep. 502; Newell v. Newton, 10 Pick. 470. But we must still inquire 
 whether, assuming that the plaintiff's property in the horse was not 
 transferred by her judgment in trover, it was transferred by that judg- 
 ment taken in connection with the facts of the attachment and levy, 
 and also whether she is estopped by the attachment and the levy from 
 asserting her title in this action. 
 
 In the first place, the doctrine that a mortgagee of personalty who 
 attaches the mortgaged goods on a writ against the mortgagor cannot 
 afterwards enforce his mortgage, is not in point. The mortgagee is 
 not the owner, but has merely a lien, and may well be held to relin- 
 quish that lien when by the attachment he establishes another. But if 
 the plaintiff has actual ownership, and thus the full right to do with 
 his own property as he may choose, merely procuring it to be attached 
 on mesne process or seized on execution as the property of another 
 does not work a change of ownership. The owner does not sell or 
 give away his goods. In cases which are likely to occasion such con- 
 duct, there usually is, as in the present case, a disputed title; and it 
 is with the hope of avoiding litigation over it that the real owner con- 
 sents that the chattel shall for a special purpose only be treated as the 
 property of another. This is "consistent with an intention ultimately 
 to assert title should circumstances render it desirable for him so to 
 do" ; and he may well wait to see the issue, which may be such as to 
 avoid the litigation of the question of title. See Mackav v. Holland, 
 4 Mete. 69, 74; Dewey v. Field, 4 Mete. 381, 384, 38 Am. Dec. 376, 
 Johns V. Church, 12 Pick. 557, 23 Am. Dec. 651; Bursley v. Ham- 
 ilton, 15 Pick. 40, 43, 25 Am. Dec. 423; Edmunds v. Hill, 133 Mass. 
 445, 446. Nor is there any good reason why such a use of his own 
 property by a plaintiff' in trover should be held to devest him of his 
 ownership when it would not have that effect in other forms of ac- 
 tion. In trover he is in legal eiifect asserting by his suit that the title 
 is and will remain in himself until he receives satisfaction on a judg- 
 ment, and his subjection of the chattel to attachment or to seizure on 
 execution is simply a use which he chooses to make of his own prop- 
 erty which does not devest him of title or hamper him in the subse-
 
 234 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 quent assertion of his ownership except by the rules of estop- 
 pel. * * * 
 
 Upon the question of estoppel, it is material to the decision of the 
 present case to consider only whether she is estopped as to the pres- 
 ent defendant or his principal Davenport. Whether she has rendered 
 Bryden, or the officer who made the attachment or the levy in the Bry- 
 den suit, liable to costs, expenses, or chance of loss, is not material 
 upon the question whether she is barred by the doctrines of estoppel 
 from maintaining the present action. She is now prosecuting one of 
 several successive wrongdoers for a fresh interference with the pos- 
 session of her property; and neither the present defendant, Hyde, nor 
 Davenport, for whom he claims to be acting as agent, has done or 
 suffered anything, or been put to any liability by reason of which the 
 plaintiff' should be estopped from asserting her title. Upon the facts, 
 Davenport in taking the horse in replevin did not rely upon the attach- 
 ment or levy, but acted in denial of their validity ; and Hyde is not 
 shown to have been influenced by them in consenting to become Dav- 
 enp>ort's agent in keeping the horse, or in any manner. Neither Hyde 
 nor Davenport is shown to have changed his position or course of 
 conduct relying upon the plaintiff's action in causing the attachment 
 or the levy, and the plaintiff' is not estopped by it from maintaining 
 the present action. In the opinion of a majority of the court, the re- 
 sult must be. 
 
 Judgment set aside, and judgment for the plaintiff ordered. °' 
 
 Holmes, J. As the judges are not unanimous it becomes necessary 
 for me to state my views, which otherwise I should not do, as they 
 have not persuaded my brethren. 
 
 I am of opinion that the plaintiff ought to be barred in this action 
 by her recovery of judgment in trover for the same horse. I am 
 aware that the doctrine that title passes by judgment without satisfac- 
 tion is not in fashion, but I never have been able to understand any 
 other; It always has seemed to me that one whose property has been 
 converted has an election between two courses, that he may have the 
 thing back or may have its value in damages, but that he cannot have 
 both ; that when he chooses one he necessarily gives up the other, 
 
 63 The obtaining of a judgment for the value of the converted chattel is 
 no bar to an action: As against a subsequent convertor, Spivey v. Morris, IS 
 Ala. 254, 52 Am. Dec. 224 (IJJoO) ; Dow v. King, 52 Ark. 282, 12 S. W. 577 
 (1889) ; Atwater v. Tupper, 45 Conn. 144, 29 Am. Rep. 674 (1877) : Jolm A. 
 Tolman Co. v. Waite, 119 Mich. 341, 78 N. W. 124, 75 Am. St. Rep. 400 (1899) ; 
 Matthews v. Menedger, 2 McLean, 145, Fed. Cas. No. 9,289 (1840) ; as against 
 a joint convertor, Elliot v. Hayden, 104 Mass. ISO (1870) ; Sanderson v. Cald- 
 well, 2 Aikens (Vt.) 195 (1826) ; contra, Hunt v. Bates, 7 R. I. 217, 82 Am. 
 Dec. 592 (1862). Compare Brinsmead v. Harrison, L. R. 6 C. P. 584 (1871). 
 
 B., C. and D. converted A.'s chattel. A. sued B. and C. in an action sound- 
 ing In contract and got judgment for the value of tlie chattel. Held, A. cannot 
 bring an action against D. for the conversion of the chattel based on the same 
 transaction. Terry v. Jlunger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, IS 
 Am. St. Rep. 803 (1890).
 
 Sec. 6) SATISFACTION OF JUDGMENT 235 
 
 and that by taking a judgment for the value he does choose one con- 
 clusively. He cannot have a right to the value of the thing, effectual 
 or ineffectual, and a right to the thing at the same time. The defend- 
 ant is estopped by the judgment to deny the plaintiff's right to the 
 value of the thing. Usually estoppels by judgment are mutual. It 
 would seem to follow that the plaintiff also is estopped to deny his 
 right to the value of the thing, and therefore is estopped to set up an 
 inconsistent claim. In general an election is determined by judgment. 
 Butler V. Hildreth, 5 Mete. 49; Bailey v. Hervey, 135 Mass. 172, 174; 
 Goodyear Dental Vulcanite Co. v. Caduc, 144 Mass. 85, 86, 10 N. E. 
 483; Raphael v. Reinstein, 154 Mass. 178, 179, 28 N. E. 141. I know 
 of no reason why a judgment should be less conclusive in this case 
 than any other. Of course, I am speaking of a judgment for the value 
 of the chattel, not of one giving nominal damages for the taking."* 
 The argument from election is adopted in White v. Philbrick, 5 Greenl. 
 (5 Me.) 147, 150, 17 Am. Dec. 214, which so far as I know is still the 
 law of Maine, notwithstanding the remark in Murray v. Lovejoy, 2 
 Cliff. 191, 198, Fed. Cas. No. 9,963. See also Shaw, C. J., in Butler v. 
 Hildreth, 5 Mete. 49, 53. 
 
 The most conspicuous cases which have taken a different view speak 
 of the hardship of a man's losing his property without being paid 
 for it, and sometimes cite the dictum in Jenkins, 4th Cent., Case 88. 
 Solutio pretii emptionis loco habetur, which is dogma, not reasoning, 
 or if reasoning, is based on the false analogy of a sale; but they leave 
 the argument which I have stated unanswered, not, as I think, because 
 the judges deemed it unworthy of answer or met by paramount con- 
 siderations of policy, but because they did not have either that or a 
 clue to the early cases before their mind. Lovejoy y. I\Iurray, 3 Wall. 
 1, 17, 18 L. Ed. 129; Brinsmead v. Harrison, L. R. 6 C. P. 584, 587; 
 S. C. L. R. 7 C. P. 547, 554. It is not the practice of the English 
 judges to overrule the common law because they disapprove it, and 
 to do so without discussion. In Brinsmead v. Harrison, Mr. Justice 
 Willes thought he was proving that the common law always had been 
 in accord with his position. So far as the question of policy goes, it 
 does not seem to me that the possibility — it is only the possibility — of 
 an election turning out to have been unwise, is a sufficient reason for 
 breaking in upon a principle which must be admitted to be sound on 
 the whole, and for overthrowing the doctrine of the common law by 
 a judicial fiat. I am not informed of any statistics which establish 
 that judgments for money usually give the judgment creditor only an 
 empty right. 
 
 That the view which I hold is the view of the common law I think 
 may be proved by considering what was the theory on which the reme- 
 dies of trespass and replevin were given. In Y. B. 19 Hen. VI, 65, 
 
 6* See Lacon v. Barnard, Cro. Car. 35 (1623) ; Barb v. Fish, 8 Blackf. (Ind.) 
 48 (1846).
 
 236 ACQUISITION OF OWNEUSIIIP (Ch. 4 
 
 pi. 5, Newton says: "If you had taken my chattels it is at my choice 
 to sue replevin, which shows that the property is in me, or to sue a 
 writ of trespass, which shows that the property is in the taker ; and 
 so it is at my will to waive the property or not." In 6 Hen. VII, 8, 
 pi. 4, Vavisor uses similar language, and adds, "And so it is of goods 
 taken, one may divest the property out of himself, if he will, by pro- 
 ceedings in trespass, or demand property by replevin or writ of det- 
 inue," if he prefers. There is no doubt that the old law was that 
 replevin affirms prooerty in the plaintiff and trespass disaffirms it, 
 and that the plaintiff has election. Bro. Abr. Trespass, pi. 134; 18 
 Vin. Abr. 69 (E) ; Anderson and Warberton, JJ., in Bishop v. Mon- 
 tague, Cro. Eliz. 824. The proposition is made clearer when it 
 is remembered that a tortious possession, at least if not felonious, car- 
 ried with it a title by wrong in the case of chattels as well as in the 
 case of a disseisin of land, as appears from the page of Viner just 
 cited, and as has been shown more fully by the learned researches 
 of Mr. Ames and Mr. Maitland, 3 Harv. Law Rev. 23, 326. See 1 
 Law Quarterly Rev. 324. I do not regard that as a necessary doc- 
 trine, or as the law of Massachusetts, but it was the common law, and 
 it fixed the relations of trespass and replevin to each other. Trespass, 
 and on the same principle trover, proceed on the footing of affirming 
 property in the defendant, and of ratifying the act of the defendant 
 which already has affirmed it. I do not see on what other ground a 
 judgment for the value can be justified. If the title still is in doubt, 
 or remains in the plaintiff, the defendant ought not to be charged for 
 anything but the tortious taking. Again, cannot the plaintiff take the 
 converted chattel on execution? And on what principle can he do so 
 if it does not yet belong to the defendant? * * * 
 
 If I am right in my general views, they apply to this case. The 
 plaintiff recovered her judgment in Connecticut, to be sure, as ancil- 
 lary administrator there, but the horse was there, and she was entitled 
 to it there, so that her judgment recovered there passed the title. Like 
 any other transfer of a chattel valid in the place where it was made 
 and where the chattel was situated, it will be respected elsewhere. The 
 Connecticut law was not put in evidence, and therefore we must pre- 
 sume that a judgment there has whatever effect we attribute to it on 
 the principles of the common law. It is not argued that the defend- 
 ant stands any worse than Bryden, against whom the judgment was 
 recovered and from whom the defendant's bailor bought horse. "^ 
 
 Knowlton, J. I am of opinion that the judgment in this case should 
 be for the defendant. It is a general rule of law that when one is 
 
 85 A. recovered judgment against B. for the value of a slave converted by 
 B. Thereupon C, a creditor (rf B., levied upon the slave as B.'s propert.v. 
 Held, A. cannot compel a redelivery of the slave by C. Foreman v. Xeilsou, 
 2 Rich. Eq. (S. C.) 287 (1S46). See, also, Norrill v. Corley, 2 Rich. Eq. (S. C.) 
 2S8, note (1828) ; Rogers v. Moore, Rice (S. O.) 60 (1838).
 
 Sec. ()) SATISFACTION OF JUDGMENT 237 
 
 entitled to either of two inconsistent remedies for a wrong done him, 
 the pursuit of one of them so far as to affect the interests of the other 
 party is a conclusive election, and a waiver of the other. * * * 
 The principal question in cases of this kind is at what stage of the pro- 
 ceedings the owner shall be deemed to have made an election that 
 binds him. On principle, and as a general rule, he should be bound by 
 the election he makes, if in making it he goes so far as to affect the 
 rights or interests of the other party. It would be unjust, when he 
 may proceed only in one or the other of two opposite directions, that 
 he should go forward in one direction in such a way as materially to af- 
 fect the other party, and then turn backward and go on in the other, 
 and compel his adversary to satisfy him in a different way. * * * 
 
 In taking judgment he merely puts in form and settles by adjudica- 
 tion a claim for the value of the property, to which he was entitled 
 from the beginning if he chose to enforce it. He does not otherwise 
 disturb the defendant or his property, and, while it would doubtless 
 be more logical to say that he is concluded by his election as soon as 
 he has recovered judgment, it is perhaps a practical rule which will 
 more generally work out justice to hold that if he does nothing more 
 to collect the money, and if he proceeds within a reasonable time, he 
 may still take the property as his own. But, if having fixed the lia- 
 bility of the defendant for a debt by taking judgment, he says by his 
 conduct that he intends to collect the debt, and does that which af- 
 fects the interests of the defendant in that particular, he should be 
 deemed to have made his election conclusive. * * * 
 
 It seems to me there is good ground for holding that, when one un- 
 dertakes to collect the value of his property by making an attachment 
 to secure the judgment he may obtain, and then prosecutes his claim 
 to judgment, he has done that which affects the rights of the otlier 
 party far more than the mere recovery of a judgment on an unsecured 
 claim. But however, that may be, when after judgment the plaintiff 
 proceeds to obtain satisfaction by a levy on the defendant's property, 
 and much more when he levies on the property for the value of which 
 he obtained judgment, and advertises it for sale as the property of 
 the defendant, he should be held to have fixed his rights and the rights 
 of the other party in regard to the title beyond his power to change 
 them. By taking the defendant's property to satisfy the execution 
 he subjects him to the legal costs and expenses attendant upon the 
 levy, and deprives him of what otherwise he would have. Even if 
 he afterwards returns the property he puts upon him the risk of loss 
 or depreciation in the value while it is held. * * * 
 
 The case of Ex parte Drake, 5 Ch. D. 866, cited in die opinion of 
 the majority of tlie court, was an action of detinue, where by the 
 terms of the judgment the plaintiff was to have either the property 
 or the ascertained value of it.
 
 238 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 If the plaintiff cannot abandon her judgment and levy, and reclaim 
 the horse as against Bryden, she cannot as against this defendant, who 
 is in privity with Bryden through Davenport, who is a bona fide pur- 
 chaser from Bryden. So far as the pending proceedings in Connecti- 
 cut under the levy and the subsequent replevin suit there afifect the 
 title, they are binding on the plaintiff here, for the officer was acting 
 in enforcement of her rights by her direction, and she is therefore in 
 privity with him. His relation to her is very different from that of 
 a mere bailee. 
 
 The Chibi' Justice concurs in this opinion."" 
 
 WHITE V. MARTIN. 
 (Supreme Court of Alabama, 1834. 1 Port. 215, 26 Am. Dec. 365.) 
 
 Saffold, J."^ The action was trover, by Martin against tlie plain- 
 tiff in error, in the Circuit Court of Greene county, for the conversion 
 of two negro children. 
 
 The suit was tried on an agreed case, as follows: In 1824, Martin 
 brought trover against White for the permanent conversion of sev- 
 eral slaves, alleged to be the property of Martin. Among them was 
 a woman, Charity. In 1831, ]\Tartin recovered the full value of the 
 slaves sued for, and that judgment has been satisfied. Pending that 
 suit, the young negroes, the subject of this action were born. These 
 children not being included in that suit, no recovery was had for 
 their value. A demand was made of all the slaves first sued for, in- 
 cluding Charity, before the commencement of the former action. No 
 other demand was made for these now sued for. White took the ne- 
 groes first sued for, wrongfully. If on these facts the Circuit Court 
 should be of opinion the plaintiff was entitled to recover, it was agreed 
 that there should be an inquiry of damages — otherwise, judgment for 
 the defendant. * * * 
 
 That a recovery in an action of trover, for the permanent conver- 
 sion of chattels, operates as a transfer, vesting the legal title in the 
 defendant, is a principle of law now well settled, and not recently con- 
 
 3 Taking out execution on a judgment against one joint convertor for the 
 value of the article converted has been held to bar an action against the oth- 
 er joint convertors for the same conversion. White v. Philbrick, 5 Greenl. (5 
 Me.) J47, 17 Am. Dec. 214 (1827); Kenyon v. Woodruff, 33 Mich. 310 (1S76). 
 Compare Livingston v. Bishop, 1 Johns. (N. Y.) 290. 3 Am. Dec. 330 (1806). 
 Contra, Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129 (1865). 
 
 A. recovered judgment in trover against B. for the conversion of a watch 
 and imprisoned B. for thirty days in execution. Held, this ds no bar to 
 trover against C. claiming under I?, for a subsequent conversion of the same 
 watch. GofE V. Craven, 34 Hun (N. Y.) 150 (1884). See Hopkins v. Hersey, 
 20 Me. 4-19 (1841) ; Osterhout v. Roberts, S Cow. (N. Y.) 43 (1827). 
 
 67 The statement of facts and part of the opinion is omitted.
 
 Sec. 6) SATISFACTION OF JUDGMENT 239 
 
 tested. The doctrine is the same in relation to trespass, when the 
 property is destroyed, or the owner deprived of its value. In either 
 case, "the damages recovered are the price of the chattel so trans- 
 ferred by application of law — "solutio pretii emptionis lex habiter" 
 [sic]. Chancellor Kent so treats the subject, and says, "the books 
 either do not agree, or do not speak with precision on the point, 
 whether the transfer takes place in contemplation of law, upon the 
 final judgment merely, or whether the amount of the judgment must 
 first be actually paid or recovered by execution," he reviews various 
 authorities, tending to different conclusions on the point. * * * 
 
 As the judgment in question was satisfied before the institution of 
 this suit, the principle alluded to, is no further material to this case, 
 than it can influence the question as to the point of time to which the 
 change of title relates — whether to the conversion, the judgment, or 
 the satisfaction. Admitting the latter to be necessary to the consum- 
 mation of the transfer, it does not follow that the relation is not to 
 the former. That such should be the relation, appears a necessary 
 consequence of the principle- — that the plaintiff seeks redress alone, 
 for the damages arising from the conversion — and that the death or 
 the destruction of the article by any casualty after^vards, is the loss 
 of the defendant. Having done the act, which the plaintiff may treat 
 as a purchase, if he choose to elect that remedy, the defendant must 
 abide the consequences of the purchase, if the remedy be prosecuted 
 with success. Even in the action of detinue, as the plaintiff is entitled 
 to recover the alternate value of the property, if the specific article 
 cannot be obtained, the plaintiff, in the event of the death or destruc- 
 tion of the property, pending the suit, may still recover the value. It 
 was so held by this court, in White v. Ross, 5 Stew. & P. 123, and 
 by the Supreme Court of Kentucky, in Carrel v. Early, 4 Bibb, 170. 
 In the latter case, Chief Justice Boyle, observes, "were the recovery 
 of the specific thing the absolute and sole object of the action of deti- 
 nue, the destruction or annihilation of the thing would necessarily 
 defeat the action ; but as the object of the action is to recover the 
 thing only on condition that it can be had, and if not, then its alternate 
 value, it results that tlie action cannot be defeated by the destruction 
 of the thing, unless it were under circumstances that would excuse 
 the defendant from being responsible for its value." * * * 
 
 It is contended, that justice will not permit White to retain the 
 children under his judicial title to the mother, because he has paid 
 damages only for her; and that these furnish a subsequent cause of 
 action. We would incline to admit, that the plaintiff might, at any 
 time before the former trial, unless barred by the statute, have dis- 
 missed that suit, and renewed his action, including the children. 
 Whether in diat event a demand of the children also would have been 
 necessary, is not a question in this view of the case. But we think, 
 after having the benefit of a judgment, and satisfaction in that ac-
 
 -40 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 tion, he has, in legal contemplation, full redress for all the conse- 
 quences of the original injury. He is presumed to have recovered 
 the full value of the slaves, converted at the time of the taking, with 
 interest thereon ; that this is as much as he could have sold them for ; 
 and he has elected to convert the taking into a purchase by the de- 
 fendant. * * * All the qualities of the article converted, are prop- 
 er for the consideration of the jur\', in determining their value; and 
 doubtless, a jury would place a higher value on a female slave prom- 
 ising issue, than on one of a contrary description; if she has proved 
 the issue, between the conversion and the trial, she has furnished the 
 best evidence of that quality. These circumstances, it is believed, are 
 entitled to their influence with the jury ; and while increasing the dam- 
 ages on account of the development of the prolific nature of the fe- 
 male, they would of course consider the expense of nurturing and 
 raising the offspring. In this way, we believe, ample justice can be 
 done without infringing any rule of law. We think that the Circuit 
 Court erred, as supposed in the first assignment of error. 
 
 The disposition of the first point, supersedes the necessity of any 
 inquiry into the second. 
 
 Let the judgment be reversed."* 
 
 BACON et al. v. KIMMEL. 
 (Supreme Court of Michigan, 1S66. 14 Mich. 201.) 
 
 [Trespass de bonis by the defendant in error against the plaintiff in 
 error. Bacon and others owned the chattels in question. They mort- 
 gaged them to one Wheeler who in 1857 took possession. In 1858 
 Kimmel began an action against Bacon and attached the chattels thus 
 converting them. No sale took place and Wheeler regained possession. 
 In May, 1860, Bacon wrongfully took the property from the possession 
 of one Howe who was taking care of the property for Wheeler. In 
 September, 1860, Wheeler began an action of trespass de bonis against 
 Kimmel. In April, 1861, Kimmel began the present action against 
 Bacon. In 1863 Wheeler obtained judgment against Kimmel which 
 judgment was satisfied.] 
 
 Christiancy, J."' * * * As to the second ground upon which 
 the plaintiff sought to maintain his action, the judgment against him- 
 self in favor of Wheeler, in an action of trespass for taking and car- 
 rj'ing away the same property, and the satisfaction of that judgment, 
 
 «8 Ace.: Hepburn v. Sewell, 5 Har. & J. (Md.) 211, 9 Am. Dee. 512 (1821); 
 Smith V. Smith, 51 N. H. 571 (1872). 
 8 8 Part of the opinion is omitted.
 
 Sec. 7 GIFT 241 
 
 we think it equally unavailable against these defendants in an action of 
 trespass, whatever might have been its effect in an action of trover. 
 
 Admitting, for the purposes of this case, that the recovery of that 
 judgment by Wheeler and its satisfaction by the plaintiff had the effect, 
 as between them, to vest the right of property and the possession in 
 the plaintiff; and that, as between them, it related back so as to perfect 
 the plaintiff's title from the time of the trespass for which that judg- 
 ment was obtained, still it could not aff'ect the defendants in this suit 
 so as to make them trespassers as against the plaintiff, as the declara- 
 tion was for a taking which occurred more than two years before that 
 judgment was obtained. There is no evidence in the case tending to 
 show that at any time during the period covered by the declaration, or 
 for two years after this suit was commenced, the plaintiff had any right 
 whatever to the property or its possession, nor tending to show that 
 in obtaining the possession of the property the defendants were guilty 
 of a trespass against any one, much less against the plaintiff. And 
 whatever effect the recovery and satisfaction of Wheeler's judgment 
 against the plaintiff' may have had, as between them, by relation back, 
 it cannot by such relation make the defendants trespassers for acts 
 which did not constitute a trespass as against the plaintiff at the time 
 they were committed. Liford's Case, 11 Coke. 51; Menvill's Case, 
 13 Coke, 21 ; Case v. De Goes, 3 Caines (N. Y.) 261 ; Smith v. Rlilles, 
 1 T. R. 480; Balme v. Hutton, 9 Bing. 471 ; Jackson v. Bard, 4 Johns. 
 f N. Y.) 234. 4 Am. Dec. 267 ; Jackson v. Douglass, 5 Cow. (N. Y.) 
 458. 
 
 The court below was requested, but refused, to charge in accord- 
 ance with the principles above expressed. The judgment must be re- 
 versed, with costs, and a new trial granted.''" 
 
 SECTION 7.— GIFT 
 
 COCHRANE v. MOORE. 
 
 (Court of Appeal. 1S90. 25 Q. B. Div. 57.) 
 
 [One Benzon owned a race horse, the horse being in the stables 
 of one Yates. Benzon made a verbal gift to Moore of a one-fourth 
 interest in the horse, and a few days later notified Yates of this gift. 
 Subsequently Benzon executed a bill of sale of the horse to Cochrane 
 to pay for advances made by the latter. Moore's interest was men- 
 
 '0 See Tliird Nat. Bank v. Rice, 161 Fed. 822, 88 C. C. A. 640, 23 L. B. A 
 (N. S.) 1167, 15 Ann. Cas. 450 (1908). 
 Big.Pebs.I'rop. — 16
 
 242 ACQUISITION OP OWNERSHIP (Cll. 4 
 
 tioned at the time and Cochrane undertook that it should be "all right." 
 The horse was subsequently sold and an interpleader was filed to set- 
 tle the right to one fourth of the proceeds. Appeal from the judg- 
 ment of Lopes, ly. J.] 
 
 Fry, L. J." * * * On these facts it was argued that there was 
 no delivery and receipt of the one-fourth of the horse, and conse- 
 quently, that no property in it passed by the gift. The learned judge 
 has, however, held that delivery is not indispensable to the validity of 
 the gift. 
 
 The proposition on which the Lord Justice proceeded may perhaps 
 be stated thus: that where a gift of a chattel capable of delivery is 
 made per verba de prassenti by a donor to a donee, and is assented to 
 by the donee, and that assent is communicated to the donor by the 
 donee, there is a perfect gift, which passes the property without de- 
 livery of the chattel itself. This proposition is one of much impor- 
 tance, and has recently been the subject of some diversity of opinion. 
 We therefore feel it incumbent upon us to examine it, even though it 
 might be possible in the present case to avoid that examination. 
 
 The proposition adopted by the Lord Justice is in direct contradic- 
 tion to the decision of the Court of King's Bench in the year 1819 in 
 Irons v. Smallpiece, 2 B. & A. 551. That case did not proceed upon 
 the character of the words used, or upon the difference between verba 
 de przesenti and verba de futuro, but upon the necessity of delivery 
 to a gift otherwise sufficient. The case is a very strong one, because 
 a Court consisting of Lord Tenterden, C. J., and Best and Holroyd, 
 JJ., refused a rule nisi, and all held delivery to be necessary. The 
 Chief Justice said : "I am of opinion that, by the law of England, in 
 order to transfer property by gift there must either be a deed or in- 
 strument of gift, or there must be an actual delivery of the thing to 
 the donee," and he went on to refer to the case of Bunn v. Markham, 
 2 Marsh. 532, as a strong authority. 
 
 These observations of the Chief Justice have created some difficulty. 
 What did he mean by an instrument as contrasted with a deed? If 
 he meant that an instrument in writing not under seal was different 
 from parol in respect of a gift inter vivos, he was probably in error; 
 but if in speaking of the transfer of property bv gift, he included gifts 
 by will as well as gifts inter vivos, then by instrument he meant testa- 
 mentary instrument, and his language was correct. 
 
 Holroyd, J., was equally clear on the principal point: "In order to 
 change the property by gift of this description" (by which we under- 
 stand him to mean, a gift inter vivos) "there must be a change of pos- 
 session." 
 
 The correctness of the proposition thus laid .down has been asserted 
 in many subsequent cases of high authority. * * * 
 
 ' 1 Part of the opinion of Fry, L. J., and the opinion of Lord Esher are 
 omitted.
 
 Sec. 7) GIFT 243 
 
 The first note of dissent was sounded in the year 1841, or twenty- 
 two years after the decision of the case of Irons v. Smallpiece, 2 B. 
 & A. 551, by Serjeant Manning in a note on the case of the London 
 and Brighton Ry. Co. v. Fairclough, 2 Man. & G. 674, at p. 691, in 
 which he impugned the accuracy of Irons v. Smallpiece, and asserted 
 that after the acceptance of a gift by parol the estate is in the donee 
 without any actual delivery of the chattel. The authorities cited in 
 that note we shall hereafter consider. * * * 
 
 There is thus some difference of judicial opinion as to the rule 
 stated in Irons v. Smallpiece. We cannot think that the few recent 
 decisions to which we have referred are enough to overrule the au- 
 thority of that decision, and the cases which have followed it, but they 
 make it desirable to inquire whether the law as declared before 1819 
 was in accordance with that decision, or with the judgment of Pol- 
 lock, B., in Danby v. Tucker, 31 W. R. 578. * * * 
 
 This inquiry into the old law on the point is one of some difficulty, 
 for it leads into rarely-trodden paths, where (as is very natural) we 
 have not had the assistance of counsel, and where the materials for 
 knowledge are for the most part undigested. 
 
 The law enunciated by Bracton in his book "de acquirendo rerum 
 dominio," seems clear to the efifect that no gift was complete without 
 tradition of the subject of the gift. "Item oportet," he says (vol. 1, 
 p. 128), "quod donationem sequatur rei traditio, etiam in vita donatoris 
 et donatorii ; alioquin dicetur talis donatio potius nuda promissio quam 
 donatio, et ex nuda promissione non nascitur actio, non magis quam 
 ex nudo pacto, non enim valet donatio imperfecta, nee chartae con- 
 fectio, nee homagii captio cum omni solemnitate adhibita, nisi sub- 
 sequuta fuerit seysina et traditio in vita donatoris." And again (p. 
 300) : "Item non sufhcit chartam esse factam et signatam nisi probetur 
 donationem esse perfectam, et quod omnia, quae donationem faciunt, 
 rite praecesserunt, et subsequutam esse traditionem, alioqui nunquam 
 transferri potest res donata ad donatorium. Poterit enim homagium 
 praecessisse, et quod charta rite facta sit, et vera et bona et cum 
 solemnitate recitata et audita, tamen nunquam valebit donatio nisi 
 tunc demum cum fuerit traditio subsequuta, et sic poterit charta esse 
 vera, sed sine facta seysina, nuda." And to the same eflfect is another 
 passage in chapter xviii, p. 310. 
 
 In Bracton's day, seisin was a most important element of the law 
 of property in general ; and, however strange it may sound to jurists 
 of our day and country, the lawyers of that day applied the term 
 as freely to a pig's ham (Select Pleas in Manorial Courts, p. 142 ; see 
 also Professor Maitland's papers on the Seisin of Chattels, the Beati- 
 tude of Seisin, and the Mystery of Seisin, Law Quarterly Rev. i, 324 ; 
 ii, 484; iv, 24, 286) as to a manor or a field. At that time the dis- 
 tinction between real and personal property had not yet grown up : the 
 distinction then recognised was between things corporeal, and things
 
 244 ACQUISITION OF OWXEIiSHIP (Cll. 4 
 
 incorporeal: no action could then be maintained on a contract for 
 the sale of goods, even for valuable consideration, unless under seal: 
 the distinction so familiar to us now between contracts and gifts had 
 not fully developed itself. The law recognised seisin as the common 
 mcident of all property in corporeal things, and tradition or the de- 
 livery of that seisin from one man to another as essential to the 
 transfer of the property in that thing, whether it were land or a 
 horse, and whether by way of sale or of gift, and whether by word 
 of mouth or by deed under seal. This necessity for delivery of seisin 
 has disappeared from a large part of the transactions known to our 
 law ; but it has survived in the case of feoffments. Has it also sur- 
 vived in the case of gifts ? 
 
 It has been suggested that Bracton, whilst purporting to enunciate 
 the law of England, is really copying the law of Rome. But by the 
 law of Rome, at least since the time of Justinian, gift had been a 
 purely consensual transaction, and did not require delivery to make it 
 perfect (Inst, ii, vii). 
 
 Coming next to the great law-writers of the reign of Edward I, 
 they hold language substantially the same as that of Bracton, except in- 
 deed that the difference between transactions purely voluntary, or for 
 pecuniary consideration, appears to be growing somewhat more im- 
 portant. "Donatio," says Fleta, "est qusedam institutio, quae ex mera 
 liberalitate, nullo jure cogente, procedit, ut rem a vero ejus possessore 
 ad alium transferatur. Dare autem est rem accipientis facere cum effec- 
 tu, alioquin inutilis erit donatio, cum irritari valeat et revocari" (Lib. iii, 
 c. 3). He then proceeds to discuss various kinds of gifts, and says: 
 "Alia perfecta, et alia inccpta et non perfecta: ut si donatio lecta 
 fuerit et concessa, et homagium captum, ac traditio nondum fuerit 
 subsecuta" (loc. cit. ; see also Lib. iii, c. 15). 
 
 In Lib. iii, c. 7, he discusses the necessary elements of donations, 
 and, amongst other things, the effect of duress on a gift; and here 
 the necessity of delivery is again clearly shewn, because, according to 
 Fleta, a promise made without duress followed by delivery under 
 duress is not a valid gift. "Refert tamen," he says, "utrum metus 
 prseveniat donationem vel subsequatur, quia si primo coactus, et per 
 metum compulsus promisero, et postea gratis tradidero, talis metus 
 non excusat; sed si gratis promisero et compulsus tradidero tunc ex- 
 cusat metus." 
 
 Britton held substantially the same language. In citing him we shall 
 prefer tlie translation of Mr. Nichols to the Norman-French of the 
 original. In his chapter on Gifts (Lib. ii, c. 3), he gives a very clear 
 description of the nature of a gift. "A gift," he says, "is an act 
 whereby anything is voluntarily transferred from the true possessor 
 to another j>erson, with the full intention that the thing shall not re- 
 turn to the donor, and with full intention on the part of the receiver to 
 retain tlie thing entirely as his own without restoring it to the giver.
 
 Sec. 7) GIFT 245 
 
 For the gift cannot be properly made, if the thing given does not so 
 belong to tiie receiver, that the two rights, of property and of pos- 
 session, are united in his person, so that the gift cannot be revoked 
 by the donor, or made void by another, in whom the lawful property 
 is vested" (pp. 220, 221). 
 
 And again (Lib. ii, c. 3) : 
 
 "Some gifts are complete, where both rights unite in the purchaser; 
 others are begun, but not completed; and such titles are bad, as in 
 case of gifts granted, whereof no livery of seisin follows" (pp. 225-6). 
 
 Passages of similar import will be found in Lib. i, c. 29, and Lib. 
 ii, c. 8. 
 
 The third writer of the age of Edward I is one of a very different 
 character from Fleta and Britton — we mean Horn, the author of 
 the Mirror of Justices; he attacked the judges and the administra- 
 tion of the law in his days with a vehemence which it is to be hoped 
 was undeserved. But though amongst the 155 abusions or abuses of 
 the law which stirred his soul to wrath, some relate to seisin, yet he 
 has nothing to say at variance with his contemporaries on the necessity 
 of delivery ; but, on the contrary, expressly affirms that "the law re- 
 quires but three things in contracts: L The agreement of the wills: 
 2. Satisfaction of the donor; 3. Delivery of the possession and gift" 
 (Chap, v, sect. I, para. 75). 
 
 In the reign of Edward IV a step seems to have been taken in the 
 law relative to gifts which resulted in this modification: that whereas 
 under the old law a gift of chattels by deed was not good without the 
 delivery of the chattel given, it was now held that the gift by deed 
 was good and operative until dissented from by the donee. 
 
 Thus in Michaelmas Term, 7 Edw. 4, pi. 21, fol. 20, it was held by 
 Choke and other justices that if a man executes a deed of gift of his 
 goods to me that this is good and effectual without livery made to 
 me, until I disagree to the gift, and this ought to be in a Court of 
 Record. 
 
 In Hilary Term, 7 Edw. 4, pi. 14, fol. 29, it was alleged by counsel 
 (Catesby and Pigot), that if a man give to me all his goods by a deed, 
 although the deed was not delivered to the donee, nevertheless the 
 gift is good, and if he chooses to take the goods he can justify this 
 by the gift, although notice has not been given to him of the gift ; and 
 further, that if the donee commit felony before notice, &c., still the 
 king will have the goods, and although notice may be material, never- 
 theless when he has notice, this would have relation to the time of the 
 gift, &c. But the Court said that such a gift is not good without no- 
 tice, for a man cannot give his goods to me against my will. 
 
 An earlier case in the same reign has been cited as bearing on the 
 present question. In Michaelmas Term, 2 Edw. 4, pi. 26, fol. 25, a 
 case arose on trespass of goods, in which Laicon was counsel for the 
 defendant, and the Court was engaged in considering the sufficiency of
 
 24 G ACQUISITION OF OWNERSHIP (Ch. 4 
 
 his pleas. In the course of the discussion Laicon put this question, 
 "Suppose I give to you my goods, which are at Everwike, and be- 
 fore that you are seized of them, a stranger takes them away, have 
 you not a writ of trespass against the stranger?" Which he then pro- 
 ceeds to answer. "Yes, sir, for by the gift at once the property was in 
 you and the possession by the writ is adjudged in you presently. Dan- 
 by, the Chief Justice of the Common Pleas, seems to have assented, 
 apparently on the ground that pleading to such a writ by way of 
 justification would confess the possession of the plaintiff and the tak- 
 ing by the defendant (car la si vous pled. vr. matter accord et justif, 
 et vous confess, prisel hors de son poss.). But immediately after this 
 discussion Laicon found his argument so hopeless (videns opinionem 
 curias contra eum) that he seems to have amended his pleadings. 
 
 This case seems to us of no authority on the point under investiga- 
 tion. What was said was not in discussion of what really passed by 
 the gift, but only of the effect of pleading in preventing the denial of 
 the plaintiff's possession. The question seems to relate to an effectual 
 gift of goods without possession, but there is nothing to shew whether 
 the parties to the discussion had in contemplation a gift by deed or 
 not. The cases already referred to which occurred a few years later 
 seem to shew that the effect of a deed in passing the property without 
 delivery of the chattel was claiming the attention of the lawyers of that 
 day. 
 
 Brooke, in his Abridgment (Trespass, 303), cites this case of the 
 2 Edw. 4, and seems to put it upon a somewhat different ground to 
 the Year Book itself. He says that Danby agreed in Laicon's argu- 
 ment, "for by the gift the property is in him, and then the law ad- 
 judges possession, which was not denied, and it seems to be the law, 
 because goods are transitory whilst land is local." We can find no 
 authority for these reasons in the entry which he professes to be ab- 
 stracting. 
 
 This case, as explained by Brooke, seems to underlie the proposition 
 asserted twice in the case of Hudson v. Hudson (1), discussed in 2 
 Wms. Saunders, 47, a, to illustrate the right of an executor to sue 
 in trover before actual possession. If, it was said, a man in London 
 gives to me his goods in York and another take tliem I can bring tres 
 pass ; for property, it was added, draws possession in chattels per- 
 sonal. The Court were not considering what gift of chattels did car- 
 ry the property, but only illustrating the proposition that where the 
 property has passed, as by the will to the executor, there the law 
 attracts to it possession. This would be perfectly illustrated by the 
 case of chattels in York transferred by deed executed in London. The 
 whole supposition that this case lends any countenance to the notion 
 that chattels can pass without delivery seems to be derived from the 
 silence of the case as to the way in which the gift was made: and this 
 point was not material to the matter under consideration by the Court.
 
 Sec. 7) GIFT 247 
 
 Moreover, where a legal result could only be produced by a deed, our 
 elder law-writers were, we believe, less apt to mention the deed than 
 their less technical descendants. 
 
 One other case in the reign of Edward IV must be mentioned. In 
 Michaelmas Term, 21 Edw. 4, pi. 27, fol. 55, it was said by Brian, J., 
 that in detinue of chattels it was a good plea to say that the plaintiff 
 after the bailment gave them to the defendant and then he could have 
 his law — quod fuit concessum. The case appears to go only to this, 
 that if A. after bailing a chattel to B. then gives it to B., B. might de- 
 fend himself by his suit in an action of detinue. If good law, it 
 seems to establish that delivery first and gift afterwards is as effectual 
 as a gift first and delivery afterwards. 
 
 One case in the reign of Henry VII perhaps requires considera- 
 tion (Hilary Term, 21 Hen. 7, pi. 30, fol. 18). The question seems 
 to have been whether the use of land was presently transferred by a 
 bargain and sale, and in the course of the report the following pas- 
 sage occurs : "If I give to a man my cow or my horse, he may take the 
 one or the other at his election : and the cause is that immediately by 
 the gift the property is in him, and that of the one or the other at 
 his will ; but if the case were that I will give to him a horse or a 
 cow in future time, then he cannot take either the one or the other, 
 for then it is in my election to choose which of them I will give him." 
 The case is interesting as the first one which we have found which 
 emphasizes the distinction in gifts between words in the present and in 
 the future tense. But the passage we have cited appears to have no real 
 weight of authority. It is only part of the argument of the Attorney- 
 General, and the argument does not appear tenable ; for surely it is 
 open to question whether the gift, even a grant for valuable considera- 
 tion, of one or other of two things at the election of the donee or gran- 
 tee can pass the property in one or other or both of these things im- 
 mediately and before the election of the grantee. It is further to be 
 observed that the question before the Court turned on the doctrine of 
 election; and whether the supposed gift was to be by deed or not is a 
 point on which the report is silent. This silence i.s the only reason why 
 the passage has been thought by some persons relevant to the present 
 inquiry. 
 
 It was in the reigns of the early Tudors that the action on the case 
 on indebitatus assumpsit obtained a firm foothold in our law ; and 
 the effect of it seems to have been to give a greatly increased impor- 
 tance to merely consensual contracts. It was probably a natural re- 
 sult of this that, in time, the question whether and when property 
 passed by the contract came to depend, in cases in which there was 
 a value consideration, upon the mind and consent of the parties, and 
 that it was thus gradually established that in the case of bargain and 
 sale of personal chattels, the property passed according to tliat mind
 
 248 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 and intention, and a new exception was thus made to the necessity 
 of delivery. 
 
 This doctrine that property may pass by contract before delivery 
 appears to be comparatively modern. It may, as has been suggested, 
 owe its origin to a doctrine of the civil law that tlie property was at 
 the risk of the purchaser before it passed from the vendor ; but at any 
 rate the point was thought open to argument as late as Elizabeth's 
 reign (see Plowd. lib, and see a learned note, 2 Man. & Ry. 566). 
 
 Flower's Case, Noy, 67 (which seems to have been decided in 39 
 Elizabeth, see p. 59), appears to shew that the necessity of delivery 
 was then upheld by the Court. The case is thus stated by Noy (p. 67) : 
 
 "A. borrowed one hundred pound of B. and at the day brought it 
 in a bagg and cast it upon the table before B. and B. said to A. being 
 his nephew, I will not have it, take it you and carry it home again 
 with you. And by the Court, that is a good gift by paroll, being cast 
 upon the table. For then it was in the possession of B. and A. might 
 well wage his law. By the Court, otherwise it had been, if A. had 
 only ofifer'd it to B. for then it was chose in action only, and could not 
 be given without a writing." 
 
 The Court seems to have held that delivery was necessary, but 
 that by the casting of the money on the table it came into the pos- 
 session of the uncle, and that the nephew taking the money in his 
 uncle's presence and by his direction, there was an actual delivery by 
 the uncle to the nephew — so that the nephew might wage his law, i. e., 
 might conscientiously swear that he was not indebted to his uncle 
 (see the case discussed in Douglas v. Douglas, L. T. [N. S.] 127). 
 
 In Jenkins's Centuries (3d Century, Case i.x), it is said: "A gift of 
 anything without a consideration is good ; but it is revocable before the 
 delivery to the donee of the thing given. Donatio perficitur possessione 
 accipientis. This is one of the rules of law" : — a statement made with 
 little reference to the other matters treated of in the case. We know 
 of no other authority exactly to the same efifect as this, nor is it stat- 
 ed as having the authority of any judicial decision. 
 
 Blackstone's discussion of the subject of gifts of chattels is perhaps 
 not so precise as might be desired ; but his language does not seem to 
 us essentially to differ from the earlier authorities : "A true and proper 
 gift or grant is," he says, "always accompanied with delivery of pos- 
 session and takes efifect immediately." "But if the gift does not take 
 efifect by delivery of immediate 'possession, it is then not properly a 
 gift, but a contract : and this a man cannot be compelled to perform" 
 (Book 2, c. 30). 
 
 In 1818 the year before Irons v. Smallpiece, 2 B. & A. 551, was de- 
 cided, the then Master of the Rolls, Sir Thomas Plumer, in Hooper v. 
 Goodwin, 1 Sw. 485, 491, said: "A gift at law or in equity supposes 
 some act to pass the property: in donations inter vivos * * * if 
 the subject is capable of delivery, delivery."
 
 Sec. 7) GIFT 249 
 
 These are, so far as we can find, all the relevant authorities before 
 the decision in Irons v. Smallpiece, 2 B. & A. 551, though they are not 
 all the authorities that have been cited as relevant. But several that 
 have been relied upon appear to us to have no real bearing on the point 
 at issue. Thus in Wortes v. Clifton, Roll. 61, Mich. 12 James 1, Coke 
 arguendo uses as an illustration of the difference between the Civil 
 law and ours — that in the Civil law a gift is not good without tradition 
 — but that it is otherwise in our law. Here for aught that appears, the 
 gift which the learned counsel referred to as good without delivery is a 
 gift by deed. 
 
 In like manner several authorities which affirm that a gift of chattels 
 may be good without deed and are silent as to delivery (Perkins' Prof- 
 itable Book, Grant, 57 ; 2 Shep. Touchs. 227 ; Comyn, Digt. Biens, D, 
 2) have been cited as if they likewise asserted that a gift was good 
 without delivery — a proposition which they do not affirm, or, as we 
 think, imply. 
 
 This review of the authorities leads us to conclude that according to 
 the old law no gift or grant of a chattel was eft'ectual to pass it whether 
 by parol or by deed, and whether with or without consideration unless 
 accompanied by delivery: that on that law two exceptions have been 
 grafted, one in the case of deeds, and the other in that of contracts of 
 sale where the intention of the parties is that the property shall pass 
 before delivery: but that as regards gifts by parol, the old law was in 
 force when Irons v. Smallpiece, 2 B. & A. 551, was decided: that that 
 case therefore correctly declared the existing law : and that it has not 
 been overruled by the decision of Pollock, B., in 1883, or the subse- 
 quent case before Cave, J. 
 
 We are therefore unable in the present case to accept the law on 
 this jioint as enunciated by Lopes, L. J., in deference to the two latest 
 decisions. 
 
 But assuming delivery to be necessary in the case of the gift of an 
 ordinary chattel, two questions would remain for consideration in the 
 present case — the first, whether the undivided fourth part of the horse 
 admits delivery, or whether on the other hand it is to be regarded as 
 incorporeal and incapalile of tradition ; the other, whether the letter 
 written, by Benzon to Yates was either a constructive delivery of this 
 undivided fourth part of the horse, or an act perfecting the gift of 
 this incorporeal part so far as the nature of the subject-matter of the 
 gift admits. On these points we do not think it needful to express any 
 decided opinion, because in our judgment what took place between 
 Benzon and Cochrane before Benzon executed the bill of sale to Coch- 
 rane, constituted the latter a trustee for Moore of one- fourth of the 
 horse Kilworth.
 
 250 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 HILLEBRANT v. BREWER et ux. 
 (Supreme Court of Texas, 1851. 6 Tex. 45, 55 Am. Dec. 757.) 
 
 [The appellant, defendant below, was the father of the female ap- 
 pellee. When the latter was a child the father had caused a cattle 
 brand to be recorded in the name of the child and had branded cer- 
 tain cattle with the brand and had spoken of them as his daughter's 
 cattle. He subsequently sold them and this action is brought for their 
 value. Verdict below was for the plaintiffs.] 
 
 WheulER, J.'^ * * * 'pj^g evidence relied on by the plaintiffs 
 to establish their title by gift to the property in question consisted of 
 the acts and declarations of the donor. These were numerous and con- 
 tinuous, and were, we think, of a character to warrant the jury in find- 
 ing the fact of a gift. But it is insisted that the gift was incomplete 
 and ineft'ectual for the want of a delivery of the possession of the 
 prop>erty by the donor to the donee ; and we are referred to the decision 
 of this court in the case of Chevallier v. Wilson and Wife, 1 Tex. 161. 
 There can be no doubt that by the common law delivery of possession 
 is essential to the validity of a parol gift, and so this court held in the 
 case cited. The necessity of a delivery, says Oiancellor Kent, has been 
 maintained in every period of the English law. 2 Kent, Com. 438; 2 
 Bl. Com. 441 ; Grangiac v. Arden, 10 Johns. (N. Y.) 293. 
 
 But what will amount to a delivery must depend upon the nature of 
 the thing and the circumstances of the case. Actual manual delivery 
 is not in all cases, necessary. Where the thing is incapable of actual 
 delivery, or where the situation of the parties or the circumstances of 
 the case will not admit of it, it may be symbolical or constructive. 2 
 Kent, Com. 439; Carradine v. Collins, 7 Smedes & M. (Miss.) 428; 
 Blakey v. Blakey, 9 Ala. 391. There may be circumstances under 
 which a gift may be complete and valid, as between donor and donee, 
 without delivery, and the possession of the former will not be incon- 
 sistent with the right of the latter. * * * 
 
 Upon the principle of these authorities the gift in the present case 
 ought perhaps, to be supported without a delivery or any equivalent 
 act if it had been made clearly to appear in evidence that the donee 
 was a minor, living with her father, the donor. Such probably was the 
 fact, but it does not so appear conclusively from the evidence embodied 
 in the record. 
 
 The branding and recording of the brand, however, used as evidence 
 of ownership, considered in reference to the character of the property 
 and the circumstances of the case, was, it is conceived, such a symboli- 
 cal or constructive delivery in respect to this property as was equiva- 
 lent to actual delivery. These acts afforded, perhaps, as satisfactory 
 
 '2 Tart of the opinion is omitted.
 
 Sec. 7) GIFT 251 
 
 evidence of the intention of the donor to part with the dominion and 
 ownership of the property as the nature of the case would admit of. 
 It is analogous to a gift by deed or writing, which, as between donor 
 and donee, has been held tantamount to a delivery. McCutchen v. 
 McCutchen, 9 Port. (Ala.) 650; Caines v. Marley, 2 Yerg. (Tenn.) 582; 
 2 B. & Aid. R. 351. On the question of title, therefore, the evidence 
 was, we think, sufficient to authorize the verdict.'' * * * 
 
 DEVOL et al. v. DYE et al. 
 (Supreme Court of Indiana, 1890. 123 Ind. 321, 24 N. E. 246, 7 L. R. A. 439.) 
 
 [William C. Devol, deceased, was prior to his death president of 
 a bank. He had a private drawer in the vault of the bank, to which 
 drawer he alone had access. Becoming very ill and realizing the prob- 
 ably fatal termination of his illness, he intrusted the key of his drawer 
 to one Lane, the cashier of the bank. Three days before his death he 
 told Lane that he wished to make Dye, his cousin, a present of $5,000, 
 and that he had put $2,000 in gold in a bag for him. He then di- 
 rected Lane to put $3,000 more in a bag and mark it with Dj^e's name 
 as the first one was marked. Lane did so, told Devol, and the latter 
 approved. The bags containing the gold remained in Devol's drawer 
 until after his death ; Lane retaining the key. This contest is by Dye 
 and another similar donee against certain residuary legatees under 
 Devol's will.] 
 
 Mitchell, C. J.'* * * * ^^ gjft^ causa mortis is consummated 
 when a person in peril of death, and under the apprehension of ap>- 
 proaching dissolution from an existing disorder, delivers, or causes to 
 be delivered, to another, or affords the other the means of obtaining 
 possession of any personal goods for his own use, upon the express or 
 implied condition that in case the donor shall be delivered from the 
 peril of death the gift shall be defeated. Blackstone defines donatio 
 
 "3 A. owned and had in his possession a colt. He told B., his son, that he 
 made him a present of this colt The colt continued to remain in the pos- 
 session of A. About six months later A. offered to B. to supply hay for the 
 colt at cost, but none was furnished until three or four days before A.'s death, 
 which was about a year after the verbal gift of the colt. Held, B. cannot 
 maintain trover for the colt against A.'s executrix, who refused to give it 
 up. Irons V. Smallpiece, 3 B. & Aid. 551 (1S19). 
 
 A., in the presence of B. his wife, bought a horse from C, declaring that he 
 bought it as a gift for B. and that it was hers. The horse was shipped to A.'s 
 stable and kept with his other horses until his death a week later. Held a 
 valid gift. Wheeler v. Wheeler, 43 Conn. 503 (ISTti). 
 
 It was intimated in Noble v. Smith, 2 Johns. (N. T.) 52, 3 Am. Dec. 399 
 (1806), that an effectual delivery of a gift of growing grain can be made 
 only bv putting the donee in possession of the laud. Compare Shaffer v. 
 Stevens, 143 Ind. 295, 42 X. E. 620 (1896). 
 
 '* Part of the opinion is omitted.
 
 252 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 causa mortis to be a gift in prospect of death, "when a person in his, 
 last sickness, apprehending his dissohition near, delivers or causes to 
 be delivered to another, the possession of any personal goods to keep 
 as his own in case of his decease." 
 
 The chief distinction between gifts inter vivos and those of the char- 
 acter here in question, is that while the former are consummated by 
 delivery the title to the property is irrevocably vested, while in the lat- 
 ter the title is ambulatory and inchoate until the death of the donor oc- 
 curs. 
 
 The concurrence of three things is essential to the consummation 
 of a gift causa mortis: (1) The thing given must have been of the 
 personal goods of the donor; (2) it must have been given while the 
 latter was in peril of death, or while he was under the apprehension 
 of impending dissolution from an existing malady,'^ and (3) the pos- 
 session of the thing given must have been actually, or constructively, 
 delivered to the donee, or to some one for his use, with the intention 
 that the title should then vest conditionally upon the death of the 
 donor, leaving sufficient assets in addition to pay his debts. A mere 
 unexecuted purpose, however clearly or forcibly expressed, so long 
 as it rests merely in intention, is not effectual. The intention must 
 not only have been manifested, but, in addition, in order to consum- 
 mate the gift, the donor must have transferred the possession of the 
 thing to the donee in person, or to some one for his use, under such 
 circumstances as that the person to whom delivery is made is thence- 
 forward affected with a trust or duty in the donee's behalf. * * * 
 
 It clearly appears from the facts found in the present case that the 
 sacks containing the gold coin, as well as the package in which the 
 currency was sealed, were delivered to the cashier of the bank for the 
 use of the intended donees. Each parcel of money contained written 
 upon it, what, in effect, amounted to the declaration of a trust in favor 
 of the person who was indicated to be the owner of its contents. The 
 money was carefully counted and placed in packages, thus separating 
 It from all the other money and valuables of the donor. Upon each 
 parcel, or package, appeared a written declaration made by, or at the 
 request of the donor, indicating as plainly as language could the inten- 
 tion of the latter in respect to the title and ownership of the property. 
 The character of the property was such that no prudent person would 
 
 '5 A. was going to the hospital for an operation." He delivered a bo.x to 
 B., sa.ving that he feared the operation might be fatal and that, if he did 
 not return from the hospital, the contents of the box were for P.. The op- 
 eration was successful, but while A. was still at the hospital he died from 
 heart disease. Held, B. took title. Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 
 627, 11 L. R. A. 684, 21 Am. St. Rep. 758 (ISOl). 
 
 A. Ijeing in general 111 health, but not immediately anticipating death, de- 
 livered a bag of gold to the cashier of a bank, telling him to deliver it only 
 to A. or W., A.'s wife, and in the event of A.'s death only to W. Held not a 
 gift, either eausa mortis or inter vivos. Sheegog v. Perkins, 4 Baxt. (G3 
 Tenn.) 273 (1874).
 
 Sec. 7) GIFT 253 
 
 have directed its removal from the vault of the bank. The donor had 
 relinquished the key to his private drawer and tin box to the cashier 
 of the bank, thereby effectually surrendering, so far as could be, all 
 dominion over the property, and affording to the donees the means of 
 obtaining possession of it.^" 
 
 Without pausing to review the authorities, it is sufficient to say that 
 where property is delivered to a third person for the use of another, 
 as a gift causa mortis, and its delivery is accompanied by a .written 
 declaration clearly indicating that it is delivered for the use, or upon 
 a trust for an intended donee, or where a death-bed delivery is made 
 in the presence of witnesses, who are disinterested and called for the 
 purpose, the intention of the donor should not be permitted to fail by 
 a narrow and illiberal construction, in case a delivery corresponding 
 with the condition of the donor and the situation of the property was 
 actually made. Ellis v. Secor, 31 Mich. 185, 18 Am. Rep. 178: Wil- 
 liams V. Guile, 117 N. Y. 343, 22 N. E. 1071, 6 L. R. A. 366; 2 
 Schouler, Per. Prop. § 179. 
 
 Our conclusion is that the facts found show a valid delivery to the 
 cashier for the use of the donees, and that the delivery was made in 
 view of impending death. * * * 
 
 It may not be amiss to say that it was not necessary that the donees 
 should have constituted the cashier of the bank their bailee, or trus- 
 tee, nor that they should have known of the intended gift, or of the 
 delivery, in order to make it an effectual delivery to him as their trus- 
 tee. The gift being beneficial to them, their acceptance of it is pre- 
 sumed until the presumption is removed. Blasdel v. Locke, 52 N. H. 
 
 '« Tlie delivery of the key of a box or drawer to the donee him.^elf with 
 intent thereljy to pass title to the contents will constitute a valid delivery: 
 Inter vivos, Marsh v. Fuller, IS N. H. 360 (1846) ; Cooper v. Burr, 4.5 Barb. 
 (X. Y.) 9 (1865); causa mortis, Thomas' Adm'r v. Lewis, 89 Va. 1, 15 S. E. 
 380. 18 L. R. A. 170, 37 Am. St. Rep. 848 (1892). Contra, Hatch v. Atkinson. 
 56 Me. 324, 96 Am. Dec. 464 (1868). Compare Goulding v. Horbury, 85 
 Me. 227, 27 Atl. 127. 35 Am. St. Rep. 357 (1892). 
 
 "Delivery of the key of bulky goods has been allowed as delivery of the 
 possession, because it is the way of coming at the possession or to make use 
 of the thing; and therefore the kev is not a symbol, which would not do." 
 Ward V. Turner, 2 Ves. Sr. 431, 443 (1752). 
 
 A. had been a roomer in B.'s house. B. claimed the furniture of A. as a 
 gift, and proved that when A. came there he said B. was to have the furni- 
 ture, and on several occasions when he went away had left the kev of the 
 room with B. Held a valid gift. Smith v. Smith. 2 Strange, 9.55 (1733). 
 
 A. marked two packages of bonds, one for X.. one for Y.. stating that they 
 were to he delivered after his death. He placed the packages in an iron 
 chest, which was locked by his directions and the key of w-hich was delivered 
 to him. He kept it for a few days, then gave it to X. to keep, and a week 
 later took it back from X. and kept it until he died. Held no gift. Bunn v. 
 Markham, 7 Taunt. 224 (1816). 
 
 A. was feeble and almost unable to walk. He had secretly buried money in 
 various places in his yard. He pointed out these places to B., and told B. 
 that he made her a gift of the money. Held, B. thereupon acquired title. 
 V\aite V. Grubbe, 43 Or. 406, 73 Pac. 206, 99 Am. St. Rep. 764 (1903).
 
 254 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 238; Darland v. Taylor, 52 Iowa, 503, 3 N. W. 510, 35 Am. Rep. 
 285 ; Trowell v. Carraway, 10 Heisk. (Tenn.) 104. 
 The judgment is affirmed, with costs.^' 
 
 DREW V. HAGERTY. 
 
 (Suprem* Judicial Court of Maine, 1SS9. SI Me. 231, 17 Atl. 63, 3 L. R. A. 
 230, 10 Am. St. Rep. 255.) 
 
 Wai.ton, J.'* The most important question is whether the gift of 
 a savings-bank book, from husband to wife, causa mortis, is valid 
 without delivery, provided the book is at the time of the alleged gift 
 already in the possession of the wife. The action was tried before 
 the Chief Justice, and he ruled that to constitute a valid gift, causa 
 mortis, there must be a delivery ; that if the property "be at the time 
 already in the possession of the donee, the donor's saying to the donee, 
 'You may have it,' or 'You may keep it — it shall be yours,' does not 
 pass the property in the case of a gift causa mortis." 
 
 We think this ruling was correct. If the act of delivery was for no 
 other purpose than to invest the donee with possession, no reason is 
 perceived why it might not be dispensed with, when the donee al- 
 ready had possession. But such is not its only purpose. It is essen- 
 tial in order to distinguish a gift, causa mortis, from a legacy. With- 
 out an act of delivery, an oral disposition of property, in contempla- 
 tion of death, could be sustained only as a nuncupative will ; and in 
 the manner and with the limitations provided for such wills. Deliv- 
 ery is also important as evidence of deliberation and intention. It is 
 a test of sincerity and distinguishes idle talk from serious purposes. 
 And it makes fraud and perjury more difficult. Mere words are easily 
 misrepresented. Even the change of an emphasis may make them con- 
 vey a meaning different from what the speaker intended. Not so of 
 an act of delivery. Like the delivery of a turf, or the delivery of a 
 twig in the ancient mode of conveying estates or the delivery of a 
 kernel of corn, or the payment of one cent of the purchase money, to 
 make valid a contract for the sale of a cargo of grain, an act of de- 
 livery accomplishes that which words alone can not accomplish. Gifts, 
 causa mortis, ought not to be encouraged. They are often sustained 
 bv fraud and perjury. It was an attempt to sustain such a gift by 
 fraud and perjury that led to the enactment of the statute for the pre- 
 vention of fraud and perjury. * * * 
 
 We are aware that some text writers have assumed that when the 
 property is already in the possession of the donee, a delivery is not 
 necessary. But the cases cited in support of the doctrine nearly all 
 
 " See Reynolds' Adm'r v. Reynolds, 92 Ky. 556, IS S. W. 517 (1S92). 
 '8 The statement of facts and part of the opinion are omitted.
 
 Sec. 7) GIFT 255 
 
 relate to gifts, inter vivos, and not to gifts, causa mortis. A gift inter 
 vivos, may be sustained witliout a distinct act of delivery at the time 
 of the gift, if the property is then in the possession of the donee, and 
 the gift is supported by long acquiescence of the donor, or other 
 entirely satisfactory evidence. * * * " But the question we are 
 now considering is not whether a gift, inter vivos, can be sustained 
 without a distinct act of delivery, but whether such a relaxation of the 
 law can be allowed in the case of a gift causa mortis. We think not. 
 Reason and the weight of authority are opposed to such a relaxa- 
 tion. * * * 
 
 It is the opinion of the court that the gift of a savings-bank book, 
 causa mortis, to be valid, must be accompanied by an actual delivery 
 of the book from the donor to the donee, or to some one for the donee : 
 and that the delivery must be made for the express purpose of con- 
 summating the gift ; and that a previous and continuing possession by 
 the donee is not sufficient; and that in this, and in all particulars, the 
 rulings in the court below were correct ; and that no cause exists for 
 granting a new trial. 
 
 Motion and exceptions overruled.'* 
 
 LIEBE v. BATTMANN. 
 (Supreme Court of Oregon, 1898. 33 Or. 241, 54 Pac. 179, 72 Am. St. Eep. 705.) 
 
 [Bill of mortgage foreclosure by the plaintiff as executor of R. G. 
 Closter, deceased, against Battmann as maker of the note and mort- 
 gage and Charles A. Schutz who claimed tlie note by virtue of a gift 
 thereof to him by the said Closter.] 
 
 WoLVERTOx. J.'^ * * * f^he facts upon which it is sought to 
 establish the gift are, in substance, as follows : Closter and Schutz 
 had been intimate friends for many years, and on Friday, August 21, 
 1896, were living in a house which they had rented together, and where 
 they ate at the same table. There was a large room in the building, 
 opening out of which was a bedroom on the east and another on the 
 south. Closter occupied the east room, and Schutz the one on the south. 
 Schutz, who had been out the night before, came home about 5 o'clock 
 in the morning, and, after a brief but friendly conversation with Clos- 
 ter, retired to his room, and about 6 o'clock heard the report of a pistol 
 shot coming from Closter's room, to which he hastened, and found 
 that Closter had shot himself in the left side of the head, near the 
 temple. A physician being called Closter requested him "to make short 
 
 '9 Ace: Winter v. Winter. 4 L. T. R. 639 (1861) ; Wing v. Merchant 57 Sle. 
 383 (1869) ; Providence Institution for Savings v. Taft, 14 R. I. 502 (1884). 
 
 80 Contra, Cain v. Moon, [1896] 2 Q. B. 283. 
 
 81 The statement of facts Is abridged and parts of the opinions are omitted.
 
 25G ACQUISITION OF OWNERSHIP (Cll. 4 
 
 work of it, that he wanted to die" ; but shortly he passed into a coma- 
 tose state, from which he never ralhed, and died four days thereafter. 
 On a small table at the head of his bed was found a couple of large 
 envelopes, both sealed and addressed, one to Charles A. Schutz, Esq., 
 and the ether to Mrs. Bertha Vierea. Schutz handed these envelopes 
 to the plaintiff, who kept them until the death of Closter, when the 
 one addressed to Schutz was opened, and found to contain the said 
 note for $1,175, indorsed "R. G. Closter" in ink. * * * 
 
 Is there in this testimony sufficient to establish a gift of the note and 
 mortgage by Closter to Schutz? The transaction is not supported by 
 any valuable consideration, nor does anybody pretend that it is ; so 
 that, if there is no gift, Schutz's title must fail. Nor can it make any 
 material difference what may be the quality of the gift, whether inter 
 vivos or causa mortis, as the essential elements which go to establish 
 it in either case are the same, in so far as the pivotal facts give cast 
 to the transaction. There must be an intention in the donor to give, 
 and a delivery, to pass the title. If causa mortis, these things must 
 have been done under the apprehension of death from some present 
 disease or some impending peril, but it is revocable and becomes void 
 by recovery, escape from such peril, or the death of the donee before 
 the donor; Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11 L. R. A. 
 684, 21 Am. St. Rep. 758. We need only to consider the intention and 
 the alleged delivery. That there was an intent to give we think is per- 
 fectly manifest from the evidence adduced. * * * 
 
 There must be a parting with the dominion over the subject mat- 
 ter of the pretended gift, with a present design that the title shall pass 
 out of the donor and to the donee, and this so fully and completely, to 
 all intents and purposes, that, if the donor again resumes control over 
 it without the consent of the donee, he becomes a trespasser, for which 
 he incurs a liability over to the donee except after revocation of a gift 
 causa mortis. And so essential is delivery as a factor in the transac- 
 tion that it is said: "Intention cannot supply it; words cannot sup- 
 ply it ; actions cannot supply it. It is an indispensable requisite, with- 
 out which the gift fails, regardless of the consequences." * * * 
 
 Measured by the requirements of law, there was no delivery of 
 the note to Schutz, nor does the fact that the note was indorsed dis- 
 pense with its necessity. Such an indorsement, without consideration, 
 could not have stronger force or operation than a parol gift or by 
 writing not under seal. Whatever might have been Cluster's inten- 
 tion in writing his name on the back of the note, he could revoke the 
 gift before delivery simply by retaining the note, and Schutz could 
 not assert title thereto until something else had been done to com- 
 plete the transaction. It cannot be said that Closter ever parted with 
 his dominion. If so, when did it occur? Assuredly not before he 
 made the attempt upon his life, for Schutz was not present to re- 
 ceive it. Placing the note upon his table in the sealed envelope ad-
 
 Sec. 7) GIFT 257 
 
 dressed to Schutz was not a relinquishment of possession, bec*use it 
 remained with him and under his complete and absolute control. He 
 could, at any instant, while conscious and in his right mind, have 
 bestowed it upon any other person, at his liking, and Schutz could not 
 have prevented, nor would it have been an invasion of any rights 
 acquired by reason of the indorsement and ensealment within the ad- 
 dressed envelope. And there could have been none after the shooting, 
 for the note was not taken from the table nor mentioned by the de- 
 ceased. The case can be no stronger than if the sealed envelope had 
 been found among his other effects, for it was upon his table and 
 within a room occupied solely by him. It was his intention, no doubt, 
 that Schutz should find and appropriate it, but the right to make an 
 appropriation did not accrue within the lifetime of Closter, and Schutz 
 cannot now claim the property as against Closter's personal represen- 
 tative. The decree of the court below will therefore be reversed, and 
 the one here entered foreclosing the mortgage. 
 Reversed. 
 
 On Petition for Rehearing. 
 
 WoLVERTON, C. J. An elaborate and exhaustive petition for re- 
 hearing has been filed in this case, and we are constrained to review 
 to some extent the salient points involved. Counsel say the gift was 
 not consummated until the subject thereof reached the hands of Schutz, 
 but that, having acquired possession of it prior to the death of Closter, 
 it became his property at the instant of his taking possession. This 
 view overlooks the fact that Closter was not then in a mental condition 
 to bestow anything. It was Closter's purpose , no doubt, to make the 
 donation in contemplation of death, not that he understood the dis- 
 tinction between a donatio mortis causa and a gift inter vivos, but 
 such was the nature of the plan adopted, which he supposed would 
 effect a change of ownership in the property. Death was absolutely 
 necessary to render the gift in that form irrevocable upon his part, 
 for it must be remembered that such a gift is always conditional un- 
 til the event in contemplation of which it is made has actually come to 
 pass. This, as we have shown in the main opinion, is the distinctive 
 element which determines the nature of the gift. The object was 
 to make the gift, but to retain the title while living. None other is 
 manifest from his acts. This becomes apparent from the fact of his 
 leaving the subject thereof on the table in his own room for the donee 
 to discover and appropriate after he had put an end to his own exist- 
 ence. But tlie gift must fail as a gift causa mortis simply because 
 there was no delivery. It is said that the donee discovered the property 
 and appropriated it while Closter was yet living, but it was not his 
 intention that the donee should thus or otherwise appropriate it while 
 he lived, so that its possession prior to Closter's death was obtained 
 contrary to his manifest intention. True, there was an ultimate inten- 
 Bic .Pers.Pbop. — 17
 
 258 ACQUISITION OF OWNERSHIP (Ch. 4 
 
 tion to give, but none of executing the gift at that specific time, or 
 that it should be consummated in the particular manner which it is 
 claimed is sufficient to complete the transaction and pass the title. 
 The ultimate intention is plain enough, but the manner adopted for 
 the consummation of the gift was legally insufficient, as it contemplat- 
 ed no change in title, either conditionally or unconditionally, prior to 
 his decease. When Mr. Schutz possessed himself of the envelope and 
 its contents he did that which the donor did not purpose should be 
 done, — for it was designed, as we have said, that he should have them 
 only after his death, not before; so that he took them without the 
 donor's consent, and there could be no delivery in the absence of such 
 consent. If the note indorsed and inclosed in the envelope, addressed 
 as it was, had been handed by Closter to Schutz without saying any- 
 thing, the act would have disclosed the purpose of the donor, and 
 the gift would have been complete, as the delivery would have been 
 accomplished. So, it may be admitted that if Closter had left the 
 note upon a stump, or a by-way, to use the illustration of counsel, 
 intending that Schutz should come along and discover and appro- 
 priate it, when he had possessed himself of it, if within the lifetime 
 of Closter, the delivery would have been completed and the gift con- 
 summated.*^ 
 
 But suppose, in the first instance, Closter had subjoined a condition, 
 when he handed the note to Schutz, that it should be and remain the 
 property of the donor while living, and when dead it should pass to 
 the donee ; there would be no gift, because there would be no purpose 
 of passing title within the lifetime of the donor. The transaction would 
 partake of the nature of a testamentary disposition, but could not op- 
 erate as a donatio mortis causa, or a gift inter vivos, as in either case, 
 the title must pass within the lifetime of the donor, although in the 
 former it is subject to revocation. Basket v. Hassell, 107 U. S. 602, 2 
 Sup^ Ct. 415, 27 L. Ed. 500. So, in the second instance, suppose it 
 was intended, and in some way made clearly apparent, that Schutz 
 should, subsequent to the death of the donor, and in that event only, 
 have possessed himself of the property, and then appropriated it, 
 could it be said that there had been a delivery, if he had come by and 
 obtained it prior to Closter's demise? In such case, like the one at 
 bar, there would have been no intention that the title should thus pass, 
 and without the intention there could have been no delivery prior to 
 
 82 A. said to B., his daughter, "I give you the carriage." This was said 
 in the house, the carriage being in a nearby shed. Thereafter B. continued to 
 talve care of the c-arrlage as she had formerly done, and it was used by the 
 family as before, except that 'A.'s permission was no longer aslied. Held a 
 valid gift. Fletcher v. Fletcher, 55 Vt. 325 (1883). 
 
 A. and B. occupied an office together. A. killed himself at his house, and, 
 while dying, said to B., "I give you all the contents of the office.' B. did 
 not go to the office until two days later, after A.'s death. Held no gift Al- 
 len V. Allen, 75 Minn. 116, 77 N. W. 567, 74 Am. St. Rep. 442 (1S9S). 
 
 See Coleman v. Parker, 114 Mass. 30 (1S73).
 
 Sec. 7) GIFT 259 
 
 his death. A mere passing of the naked possession does not come 
 up to the requirements of a good deHvery. It must be a transfer of 
 the property with a purpose on the part of the donor to rehnquish his 
 dominion over it, and thereby to part with and divest himself of the 
 title. * * * 
 
 The quotation from Caldwell v. Wilson, 2 Speers (S. C.) 75, does not 
 seem to be understood. Two methods of delivery are defined — one, 
 by actual tradition from hand to hand ; the other, by an expression of 
 the donor's willingness that the donee should take when the chat- 
 tel was present and in a situation to be taken by either party. In the 
 latter there is involved no actual transfer of possession. The donor 
 says, "there is the chattel (it being present) ; take it ;" and tlie donee 
 assents. This, the authority holds, would be equivalent to an actual 
 manual transfer of possession from hand to hand. Hence we said 
 the definition implied the mutual presence of the donor and donee. 
 Of course, the assent or acceptance of the donee may be through an 
 agent. But in this case, there being no agent for either party, there 
 could have been no delivery until Schutz took manual possession, and 
 it is the delivery accomplished by actual tradition from hand to hand 
 that the counsel is contending for. The vice of the argument, however, 
 lies in supposing that title passed at the instant the donee came into 
 possession of the note and mortgage, it being before the donor had 
 ceased to breathe, notwithstanding the fact that he was then irrational, 
 and made no mention, either directly, or indirectly, touching the prop- 
 erty, or of its further disposal by him. It was the purpose of Closter 
 to take his life instantly. If he had thus accomplished his purpose, 
 it is admitted there would have been no delivery by reason of the 
 donee's subsequently finding and appropriating the property. Although 
 he lived some four days, he never manifested any other or further 
 intention respecting it; so that we are relegated to the primary mani- 
 festation of his ultimate intention, and it leaves no new or addition- 
 al act by which to signalize the transaction as a gift in any aspect. The 
 petition will be denied. 
 
 Rehearing denied. ^^ 
 
 83 Ace: Jones v. Crisp, 109 Md. 30, 71 Atl. 515 (190S); Leonard v. Adm'r 
 of Kebler, 50 Ohio St. 444, 34 N. E. 659 (1893). See Howe v. Ripka, 199 Mass. 
 359, 85 N. E. SS (1908). 
 
 For an elaborate discussion of the intent and delivery necessary to a gift, 
 see Parker v. Copland, 70 N. J. Eq. 685, 64 Atl. 129 (1906).
 
 2G0 ACQUISITION OF OWNERSHIP (Cll. 4 
 
 McEWEN V. TROOST et al. 
 (Supreme Court of Tennessee, 1S53. 1 Sneed [33 Tcnn.] isG.) 
 
 [Bill of interpleader by the administrator of the estate of Gerard 
 Troost, deceased, to determine the title to certain property.] 
 
 ToTTEN, J.** It appears from the bill that Dr. Gerard Troost died 
 intestate at Nashville, August 15, 1850, and that plaintiff was appoint- 
 ed the administrator of his estate. It consists of funds, negro slaves 
 and other effects. The bill then states that intestate died possessed 
 of a very valuable collection of natural and scientific specimens, 
 * * * also of a large * * * library. * * * 
 
 That on the 22d of June, 1840, the intestate executed to his two 
 children, Lewis Troost and Caroline Stein, a deed of gift for said 
 cabinet and library ; that the deed was duly acknowledged and regis- 
 tered, a certified copy whereof is exhibited with the bill ; that said 
 cabinet and library were not delivered into the actual possession of 
 the donees, but remained in the possession and use of said intestate to 
 the time of his death, and are now in the possession of his administra- 
 
 ■(-/-v*" "T- 'K "1* 
 
 The answers of defendants admit, substantially, the facts stated in 
 the bill, except that the donees say that the cabinet, library and ar- 
 ticles narped in said deed of gift, were, in legal efifect, delivered to 
 them; and that they permitted the same to remain with Gerard Troost 
 as a depository for them. * * * 
 
 Counsel for the plaintiff insist that the deed was void, because the 
 cabinet and library were not, at the time, delivered to the donees. 
 
 It is true, that delivery is essential to the validity of a parol gift 
 of a chattel or chose in action, whether it be a gift inter vivos, or 
 causa mortis; and without delivery and a transfer of the possession, 
 the title does not pass to the donee. The delivery must be according 
 to the nature of tlie thing, as the actual delivery of a sum of money, 
 the delivery of the key of a trunk, of a room, and the like. The ef- 
 fect of a valid delivery is to place the subject of the gift under the 
 control and dominion of the donee, and his title and right to pos- 
 session become absolute and irrevocable. * * * 
 
 The execution and delivery of the deed are considered to be equiva- 
 lent to the delivery of tlie subject of the gift. By our law the deed of 
 gift is required to be registered, by which notice of the gift is given to 
 creditors and purchasers. 1831, c. 90, § 1. No inconvenience, there- 
 fore, can result in the practical operation of the rule. As between the 
 parties, there can be no reason why the deed should not be conclusive 
 as to the intention of the donor, and the fact that the gift was made. 
 Its execution is a deliberate act, indicating the purpose of the donor as 
 
 8* Tart of the opinion is omitted. 
 
 1
 
 Sec. 7) GIFT 261 
 
 clearly as if there had been an actual delivery of the subject of the gift. 
 Now, in the present case there was no actual delivery of the cabinet 
 and library; they remained in the possession and use of the donor 
 until the time of his death ; but the donees say it was with their con- 
 sent. If the gift were in parol it would be clearly invalid. But the 
 gift is by deed, and may, therefore, be valid without actual delivery 
 of the subject of the gift.'" * * * 
 
 MAHONEY V. MARTIN et al. 
 (Supreme Court of Kansas, 100.5. 72 Kan. 406, S3 Pac. 9S2.) 
 Graves, J.'* The question involved in this case is whether or not 
 the property in controversy was transferred to the plaintiff in error by 
 virtue of a completed gift. Mary A. Martin, the alleged donor of the 
 property, was at the time of her death the wife of Peter Martin, who 
 was insane, and he would take by descent whatever property his wife 
 might have at the time of her death. Peter Martin had property in his 
 own right sufficient for his comfortable support, and his wife did not 
 want her property to go to the relatives of her husband, which result 
 would follow if she should not outlive him. In the month of March. 
 1903, she was very sick, and expected to die. Her nearest relatives were 
 a brother, the plaintiff in error, who lived in North Dakota, and a sister, 
 who resided in Canada. The brother was present during her last sick- 
 ness, and she desired to leave her property to him. She knew that she 
 could not by will prevent one-half of it from going to her husband, and 
 at his death to his relatives, and she therefore sought the advice of a 
 lawyer for some legal way to carry out her wish. Upon such advice she 
 executed and delivered to her brother the bill of sale hereinafter set 
 forth. Soon afterwards she died. A controversy thereafter arose be- 
 tween her brother and the guardian of her insane husband concerning 
 the ownership of the property, which resulted in the bringing of this 
 suit by the brother. Among the assets of Mary A. Martin was a claim 
 against the estate of her insane husband. The guardian of Peter Mar- 
 tin reduced all of the property of Mary A. Martin to possession, and 
 claimed that his ward was the owner thereof. This suit was brought 
 for an accounting and for the value of the property. 
 
 86 Ace: McRae, Adm'r v. Pegues, Adm'r, 4 Ala. 158 (1842). Contra, Mc- 
 Willie V. Van Vaeter, 35 Miss. 42S, 72 Am. Dec. 127 (1858). 
 
 A. executed the following deed: "I give to B. the principal of a note for 
 $700 signed by X., * * * said sum to be given to B. when the said note 
 falls due." A. died before the note fell due, and it was collected by his ad- 
 ministrator. Held, B. has no claim against the administrator for the pro- 
 ceeds of the note. Gammon Tlieological Seminary v. Robbins, 128 Ind. 85, 
 27 N. E. 341, 12 L. R. A. 506 (1891). 
 
 Where by statute seals have been abolished in deeds of land, an Instrument 
 of gift, not under seal, has been held to pass title. Walker v. Crews, 73 Ala. 
 412 (1882). Compare Ball, Ex'r v. Wallace, 32 Ga. 170 (1S61). 
 
 8» Part of the opinion is omitted.
 
 262 ACQUISITION OP OWNERSHIP (Ch. 4 
 
 Upon the trial, which was had without a jury, the court found and 
 filed findings of fact and its legal conclusions as follow : " * * * 
 (10) That such instrument was in words and figures as follow, to wit: 
 'Bill of Sale of Personal Property. Know all men by these presents, 
 that Mary A. Martin, in consideration of one dollar and other consider- 
 ation dollars paid by J. J. Mahoney, the receipt whereof is hereby ac- 
 knowledged, does hereby grant, sell, transfer, and deliver unto the said 
 J. J. Mahoney the following goods and chattels, viz. : One promissory 
 note for $1,100, or more, secured by real estate mortgage, executed by 
 Thos. Holmes and wife, and all property of every kind and description 
 now owned by me or in which I am in any wise interested, and wher- 
 ever situated to be held by him absolutely. To have and to hold, all and 
 singular, the said goods and chattels, to the said J. J. Mahoney and his 
 executors, administrators, and assigns, forever. And the said grantor 
 hereby covenants with the said grantee that she is the lawful owner of 
 said goods and chattels ; that tliey are free from all incumbrances ; that 
 she has good right to sell the same as aforesaid, and that she will war- 
 rant and defend the same against the lawful claims and demands of all 
 persons whomsoever. In witness whereof, the said grantor has here- 
 unto set her hand this 5th day of March, A. D. 1903. Mary A. Martin. 
 Signed and delivered in presence of W. T. Greenwood.' (11) That no 
 consideration was paid to Mrs. Martin for such transfer, and that, if 
 it operated at all, it was as a gift, and not a sale. (12) That at the time 
 of the execution of said written instrument, Mary A. Martin was of 
 sound mind and in the full use of her mental faculties, and was able 
 to read the English language. (121-0) That at the time of the execution 
 of such gift, said Mary A. Martin expected to die within a short time, 
 and such gift was made by her in contemplation of approaching death. 
 (13) That Mahoney did not fully make up his mind whether to accept 
 such gift or not until after the death of Mrs. Martin ; but it does not 
 appear that he repudiated it or expressed any active dissent. (14) That 
 finding No. 13 is based entirely on the testimony of J. J. Mahoney 
 viewed in the light of the surrounding circumstances, as disclosed by 
 the other findings of fact. * * * 
 
 "Conclusion of Law. 
 
 "That said written instrument purporting to be a gift of all her 
 property from Mary A. Martin to J. J. Mahoney is void and of no 
 effect, and that the judgment of this court should be for the defend- 
 ant." 
 
 It is apparent from these findings of fact, that Mary A. Martin, felt 
 that her death was at hand, and in contemplation of this fact, she 
 wanted to dispose of her property so diat her brother would have it 
 after her death. In case of her death the brother intended to take the 
 property. It is easy to deduce these conclusions from the findings of 
 the court, but they do not constitute a completed gift. The court evi- 
 dently based his conclusion of law upon finding of fact No. 13, which
 
 Sec. 7) GIFT 263 
 
 finding is vigorously attacked by the plaintiff in error. It is urged that 
 this finding is not sustained by the evidence, is contrary to the evidence, 
 and inconsistent with the other findings of fact. No gift can be com- 
 plete without the acceptance thereof by the donee. Calvin v. Free, 66 
 Kan. 470, 71 Pac. 823 ; 14 Am. & Eng. Ency. of Law, 1015. The law 
 presumes such acceptance in the absence of evidence to the contrar}'. 
 When this fact is disputed its determination will depend like any other 
 question of fact upon the evidence. In this case, the question of ac- 
 ceptance was one of the important points in dispute. The court found 
 from the evidence that the done© did not accept the gift during the life 
 of the donor. 
 
 The evidence upon this subject, as it appears in the record, seems 
 to be strongly against this finding, and if it were an original question 
 here depending upon the testimony presented to us, we would be in- 
 clined to decide otherwise. At the same time there is some reason for 
 the conclusion that only a gift causa mortis, was intended by both par- 
 ties. There was no reason why Mrs. Martin should wish to part with 
 all of her property, while living, and it seems probable that her brother 
 did not expect to take it if she recovered. It appears more reasonable 
 that they each intended the gift to become absolute, upon her death, 
 and not before. It also appears from the record that the plaintiff, up- 
 on a former trial involving this same question, gave testimony incon- 
 sistent with his evidence at the trial of this case. In view of the fact 
 that the witness was present in court during his examination and cross- 
 examination, as to this discrepancy in his testimony, and the court had 
 an opportunity to note his appearance and demeanor, on the witness 
 stand, which at times furnishes strong evidence of the good faith and 
 honesty of a witness, or the want of it, not discoverable from the writ- ' 
 ten testimony given, we feel bound to adhere to the oft-repeated rule, 
 that a finding of fact, resting upon conflicting or inconsistent evidence 
 cannot be disturbed by this court, and therefore the finding is sustained. 
 
 This conclusion makes it necessary to affirm the judgment. * * * 
 All the Justices concurring.*^ 
 
 87 See Bangs v. Browne, 149 Mich. 478, 112 N. W. 1107 (1007). 
 
 A. deposited $100 with a banli in B.'s name, A, retaining the bank boolj. 
 In an action to determine the right to the deposit tlie court said: "The In- 
 tention of the donor to malie a gift is open to inquiry, and the acceptance of 
 it by the donee completes a contract between her and the baiili. and cannot be 
 presumed, but must be shown." Scott v. Berlishire Co. Sav. Banli. 140 Mass. 
 157, 165, 2 N. E. 925 (ISSo). 
 
 In Malone v. Lebus, 116 Ky. 975, 77 S. W. ISO (1903), it was said that no 
 acceptance was necessary where the donee was insane. The same rule has 
 been laid down in England as to all donees. Standing v. Bowring, L. R. 31 
 Ch. Div. 2S2 (1SS5). See, also, L. & C. Banking Co. v. L. & R. P. Bank, L. R. 21 
 Q. B. D. 535 (1888). 
 
 The transfer of choses in action is dealt with in the subjects of contracts, 
 trusts, and negotiable instruments. In general, on gifts of choses in action 
 in addition to cases already cited, see Telford v. Patton. 144 111. Oil, 33 N. B. 
 1119 (1892); Cook v. Lum, Adm'r, 55 N. J. Law, 373, 26 Atl. 803 (1803); 
 Basket v. Hassell, 107 U. S. C02, 2 Sup. Ct. 415, 27 L. Ed. 500 (1SS2).
 
 204 FIXTURES (Ch. i 
 
 CHAPTER V 
 FIXTURES 
 
 SECTION 1.— WHEN CHATTELS BECOME FIXTURES 
 
 LIPSKY V. BORGMANN 
 
 (Supreme Court of Wisconsin, ISSl. 52 Wis. 256, 9 N. W. 158, 
 38 Am. Rep. 735.) 
 
 [Action against the defendant for entering upon the land of tlie 
 plaintiff and taking away and converting to the use of the defendant 
 a wooden building situate thereon. The defendant justified as sheriff 
 by virtue of a levy against the personal property of the plaintiff, and 
 contended that the building in question was personal property. 
 
 The trial court ruled that the building was realty; and a verdict 
 was given for the plaintiff. Defendant appealed.] 
 
 Orton, J.i * * * There is a dwelling-house on the land, oc- 
 cupied by the plaintiff and his family as a residence, and used also as 
 a saloon. The building in question is erected on one side of this main 
 building, and next to the saloon, and built there by the plaintiff for the 
 purpose of being used in connection with the saloon as a dancing hall. 
 It is thirty-two feet square, the sills are fastened together at the ends 
 with nails or spikes, the studding is fastened to the sills in the same 
 way, and four or five feet apart, and on the top of the studding are 
 fastened the plates in the same way ; and the sills and plates are 
 thirty-two feet in length, and two by eight or two by ten inches square. 
 The sills rest at some places on die ground, and at other places on 
 cedar posts set into the ground, and on cedar railroad ties and stones. 
 A floor is laid over the whole space, in the center of which stands a 
 post eight feet high, and six by eight inches square, from the top 
 of which extend four rafters to the plates. The roof is intended to 
 be square and four-cornered, and now consists of brush. There is 
 a space between the buildings, and in it are constructed seats for the 
 musicians, twelve feet long, upon cross pieces fastened to both build- 
 ings, and a door is intended to open from the saloon into the dancing 
 
 I Part of the opinion is omitted.
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 265 
 
 hall. It is in an unfinished condition, but used for the purpose in- 
 tended ; and it is intended to be made more complete and permanent, 
 and to permanently remain, to be used in connection with the main 
 building for domestic purposes, and, in connection with the saloon 
 business, as a dancing hall. The testimony on behalf of the defend- 
 ant as to the frail character of this building, and the testimony of- 
 fered by him and rejected, as to similar structures and how they were 
 regarded, do not in the least militate against this statement of the evi- 
 dence. As the circuit court virtually took the question from the jury, 
 and decided that from this evidence this building was a fixture, the 
 question here is. Would the jury have been justified in finding other- 
 wise? or, in other words. Would the verdict be allowed to stand, on 
 motion for a new trial, if they had so found? If not, the circuit court 
 committed no error in taking the question from the jury and so de- 
 ciding. From the character, situation and intended use of this build- 
 ing, as disclosed by this evidence, there can be no question that it 
 was, affixed to the soil and is a part of the realty. By the current of 
 authorities it has all the requisites to make it such. It was constructed 
 by the owner of the land. It has sufficient actual physical attachment 
 to the main building and tlie soil, and was intended to be permanent, 
 and to be always used, not only with the main building, but for sim- 
 ilar purposes, and not intended ever to be removed. * * * 
 Judgment affirmed. - 
 
 McREA V. CENTRAL NAT. BANK OF TROY. 
 (Court of Appeals of Xew York, 1S7G. 66 N. X. 4S9.) 
 
 This action was brought by plaintiff as mortgagee, and claiming un- 
 der a mortgage upon real estate against defendants, who are judg- 
 ment creditors of the mortgagor, and the sheriff holding executions, 
 issued on their judgments, to restrain them from selling on said ex- 
 ecutions certain machinery advertised to be sold as personal property, 
 which plaintiff claimed to be part of the realty. 
 
 The premises were fonnerly owned by plaintiff, and he erected 
 thereon a building as a twine factory, specially adapted for the ma- 
 
 2 Ace: Salter v. Sample, 71 111. 430 (1S74) ; Madigan v. McCarthy, lOS 
 Mass. 376, 11 Am. Rep. 371 (1S71). 
 
 Contra, The King v. Otley, 1 B. & Ad. 161 (1S30). 
 
 Small sheds, merely resting upon the soil, are personalty. Carlin v. Rltter, 
 68 Md. 47S, 13 Atl. 370, 16 Atl. 301, 6 Am. St. Rep. 467 (18SS). So a col- 
 lapsible house. O'Donnell v. Hitchcock, IIS Mass. 401 (1875). Compare State 
 Savings Bank v. Kercheval, 65 Mo. 682, 27 Am. Rep. 310 (1877),
 
 266 FIXTURES (Ch. 5 
 
 chinery used in the business of manufacturing twine, and placed there- 
 in the machinery in question, as he testified, "for permanent use." The 
 machinerj^ consisted of the various machines necessary for and adapt- 
 ed to that business. The plaintiff carried on the business of manu- 
 facturing twine for several years, using the building and operating the 
 macliinery. 
 
 On the 14th day of November, 1872, he contracted to sell the prem- 
 ises to one George Catlin for $28,000. The contract described the 
 property as follows : 
 
 "All that real estate situated in said Johnsonville : First, the twine 
 factory and flax mill, and blacksmith shop bounded as follows : 
 * * * Togetlier with all the machinery, tools and fixtures belong- 
 ing to the party of the first part, and all water privileges deeded to 
 him on his purchase of said real estate." 
 
 On the 1st day of January, 1873, the premises were conveyed by 
 McRea to Catlin by two deeds, and a mortgage executed and delivered 
 back by Catlin to McRea for $21,100, the balance of the purchase- 
 money. 
 
 The deeds and mortgages were drawn by a Mr. Merrill. After they 
 were finished Mr. Catlin read over the deeds, and saw no mention 
 was made of the machinery, and asked McRea if he did not intend 
 that should pass. To this McRea replied he did. Mr. Merrill then 
 suggested that the "easiest way" or the "best way" to fix it was to 
 make a separate bill of sale, which was done. No separate mortgage 
 of the machinery was taken. Some time after this, in January, 1873, 
 Catlin conveyed one-half of the premises to Christopher A. Banker, 
 and also gave to him a bill of sale for one-half of the machinery. De- 
 fendant The Central Bank of Troy recovered judgment against Catlin 
 & Banker, and issued executions to the defendant Quackenbush, as 
 sheriflf, who seized the property described in the complaint. 
 
 The action seeks to restrain that sale. 
 
 The court found, in reference to the character of the machinery, as 
 follows : 
 
 "That the machinery mentioned and enumerated in the complaint 
 and located in the twine mill, were and are fixtures and part of the 
 freehold conveyed by the plaintiff to George O. Catlin, and is not per- 
 sonal property ; and as facts showing that these are fixtures, I further 
 find (a) that the building in which the machinery was, was erected for 
 the purpose of a twine factory, and the manufacturing specially adapt- 
 ed to it and used with it; (b) that the original intention of annexation 
 was to make this machinery permanently a part of the building and 
 this freehold; (c) that the mortgage under which the plaintiff claims 
 title, was to secure to him the payment of the purchase-money of the 
 premises described therein, and w^as taken by him and given to him
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 207 
 
 with the intention of holding the machinery in question as part of the 
 realty and not as personal property." 
 
 And as conclusion of law, that plaintiff was entitled to the relief 
 sought. * * * I ■ 
 
 The court was requested to find : "That each of the machines men- 
 tioned in the complaint, with the exception of the two 'iron softeners' 
 was a machine complete in itself, which received no support from the 
 walls, ceiling or roof of the building, and would operate with the prop- 
 er power applied to it wherever it was placed." 
 
 The court so found, with the addition of the words, "but the sev- 
 eral machines were attached to the building by nails, bolts and cleats, 
 and the gearing and shafting." 
 
 The court found : "That all the machines mentioned in the com- 
 plaint could be taken apart without injury to themselves or to the 
 building in which they were placed, except such injury as would result 
 from the loosening of the fastenings, and could, without injury, be put 
 together again and operated in any place where there was sufficient 
 room for them to stand, and where the necessary power could be ap- 
 plied. That each of these machines, with the exception of the iron 
 softener above mentioned, stood upon the floor of the mill, and was 
 not in any manner attached to or supported by the walls or ceiling, and 
 that it was, in each case, operated by a belt actuated by the gearing of 
 the mill and passing over a pulley on the machine and that it was not 
 connected with the gearing in any other way." 
 
 "That none of said machines, with the exception as aforesaid of the 
 said two iron softeners, were ever in any manner attached or fastened 
 to the building except as hereinafter stated, to wit : Some of the ma- 
 chines were, before the sale by plaintiff to Catlin, fastened to the floor 
 at the end where the belt went on, by angle bolts made for the purpose, 
 which held the feet of the machines to the floor. These bolts went 
 down through the floor and were held by nuts screwed on below the 
 floor. Other machines were held by nails of a similar construction — 
 that is, the upper part bent over the foot of the machine, while the lower 
 part was driven into the floor. Others were held by common nails, 
 and one or two by cleats of wood nailed down on each side of the ma- 
 chine ; they were also attached to the gearing." 
 
 The court was requested to find : "That whenever these bolts, nails, 
 or cleats were used they were placed only at the end of the machine 
 where the pulley was located, and they were placed there for the pur- 
 pose of steadying the machine, and preventing it from being moved 
 or lifted by the action of the belt." The court so found — but added 
 thereto the words, "but I do not find that that was the only purpose." 
 
 The court also found, that there were tools and machinery in the mill 
 or factory, other than those enumerated in tlie complaint. Further 
 facts appear in tlie opinion.
 
 2G8 FIXTURES (Ch. 5 
 
 Rapallo, J.' * * * On these findings, assuming them to be 
 sustained by evidence, I think it clear on all the authorities cited, that 
 the conclusion that, as between the present parties, the machines were 
 fixtures and part of the freehold was correct. The rule declared by- 
 statute (2 R. S. p. 83, §§ 6 and 7), as between the personal representa- 
 tives and the heirs of a deceased party, is not controlling in cases be- 
 tween vendor and a vendee. Potter v. Cromwell, 40 N. Y. 287, 100 
 Am. Dec. 485 ; Voorhees v. McGinnis, 48 N. Y. 278 ; House v. House, 
 10 Paige, 158. That enactment makes the mode of annexation the 
 test whether the property retains its character of personalty, and 
 gives to the executor or administrator 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. But, 
 as between vendor and vendee, the mode of annexation is not the con- 
 trolling test. The purpose of the annexation, and the intent with which 
 it was made, is in such cases the most important consideration. The 
 permanency of the attachment does not depend so much upon the de- 
 gree of physical force with which the thing is attached as upon the 
 motive and intention of the party in attaching it. If the article is at- 
 tached for temporary use with the intention of removing it, a mortga- 
 gee cannot interfere with its removal by the mortgagor. If it is placed 
 there for the permanent improvement of the freehold he may. Crane 
 v. Brigham, 11 N. J. Eq. (3 Stockton) 29; Potter v. Cromwell, 40 N. Y. 
 296, 297, 100 Am. Dec. 485. The mode of annexation may, it is true, 
 in the absence of other proof of intent, be controlling. It may be in 
 itself so inseparable and permanent as to render the article necessarily 
 a part of the realty, and in case of less thorough annexation the mode 
 of attachment may afford convincing evidence that the intention was 
 that the attachment should be permanent; as, for instance, where the 
 building is constructed expressly to receive the machine or other arti- 
 cles, and it could not be removed without material injury to the build- 
 ing, or where the article would be of no value except for use in that 
 particular building, or could not be removed therefrom without being 
 destroyed or greatly damaged. These are tests which have been fre- 
 quently applied in determining whether the annexation was intended to 
 be temporary or permanent, but they are not the only ones, nor is it in- 
 dispensable that any of these conditions should exist. In the case of 
 Potter V. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485, before referred 
 to, this court, after a full examination of the numerous authorities, 
 gave its approval to the criterion of a fixture as stated in Teaff v. 
 Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634, viz.: The union of three 
 requisites. First. Actual annexation to the realty or something appur- 
 tenant thereto. Second. Application to the use or purpose to which 
 
 s The statement of facts Is abridged, part of the opinion of Rapallo, J., the 
 opinion of Folger, J., and the dissenting opinion of Allen, J., are omitted.
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 20)9 
 
 this part of the realty with which it is connected is appropriated. 
 Third. The intention of the party making the annexation to make a 
 permanent accession to the freehold. By the application of that criteri- 
 on this court, with only one dissenting voice, decided that a portable 
 grist-mill for grinding flour, placed in a building which had been used 
 as a tannery, and was provided with steam power previously placed in 
 the building to grind bark for the tannery, becaine part of the freehold, 
 as between a judgment creditor and a purchaser of the realty. It was 
 found by the referee that the grist-mill was placed there by the owner 
 of the realty for the purpose of being used as a permanent struc- 
 ture for a custom grist-mill for the neighborhood, and on that ground 
 it was held by this court to have become part of the realty, notwith- 
 standing the fact that it was not attached to the walls of the building, 
 but annexed as in the present case, only to the floor. It had been built 
 elsewhere and was constructed in such a manner as to be readily taken 
 apart without injury to itself or to the building, and moved from place 
 to place. There was a very slight dift'erence in the mode of annexation 
 from that in the present case, to wit: That to support the floor, up- 
 right posts were placed under it resting on the cellar floor, while in the 
 present case the building was constructed expressly for the purpose 
 of receiving machinery of the description which was placed there, and 
 of sufficient strength to render additional support unnecessary, al- 
 though, in the present case, some of the machines weighed three or 
 four times as much as the portable grist-mill. * * * 
 
 The finding of the court that, in the present case, the original inten- 
 tion of the annexation was to make the machinery permanently a part 
 of the building is, not, I think, unsupported by evidence. The building 
 was proved to have been erected especially for the purpose of a twine 
 factory, and with reference to holding this description of machinery. 
 The machines were of great weight, many of them weighing from one 
 to four tons. They were all permanently fastened to the floor of the 
 building, and it is conceded that they were adapted to the purposes for 
 which the building was erected. The plaintiff testified that tliey were 
 placed there for permanent use. The fair interpretation of this evi- 
 dence is, that they were placed there for permanent use in that build- 
 ing; they constituted part of the twine factory, and about two-fifths in 
 value of the entire establishment; and it appeared in evidence that al- 
 though they were capable of removal they would be of less value if 
 taken out and sold than if they remained where they were, as part of 
 the factory. From this evidence the court was, I think, justified in 
 finding that they were intended as a permanent part of the structure, 
 quite as much so. as the portable grist-mill in the case of Potter v. 
 Cromwell, 40 N. Y. 287, 100 Am. Dec. 485. The dealings between the 
 plaintiff and his vendee, also, showed that they were regarded as fix- 
 tures which passed with the land ; and although, if the property had
 
 270 FIXTURES (Ch. 5 
 
 in its own nature a determinate legal character, either as realty or per- 
 sonalty, the manner in which the parties treated it would not change 
 that character ; yet when, as in this case, the character of the property 
 is not so fixed, but depends upon the intention with which it was an- 
 nexed, the conduct of the party who annexed it has an important bear- 
 ing, as throwing light upon that intention. He evidently understood 
 that it was part of the realty, which he could not have done if he had 
 placed it on the premises for temporary use merely and with the inten- 
 tion that it should remain personalty. * * * 
 
 After it has been so repeatedly declared by the courts that the char- 
 acter of articles of tiie description now in controversy attached to a 
 building, whether they are to be regarded as realty or personalty, is to 
 be determined by the intent of the party attaching them, it would be 
 peculiarly unjust to depart from that doctrine in a case like the pres- 
 ent, where the owner of the land and buildings, who himself made the 
 annexation, and necessarily knows the intent with which it was made, 
 afterwards sells the whole establishment and takes for the purchase- 
 money a mortgage manifestly intended to cover all the property sold, 
 but which would be a totally inadequate security if the property which 
 he had annexed were not treated as a part of tlie realty. There can 
 be no equity in such a case in favor of a mere judgment creditor of 
 the vendee, as against the mortgagee. 
 
 On the whole case I think the findings of fact are sustained by evi- 
 dence, and that the decision of the court below should be afiirmed, with 
 costs. 
 
 For affirmance: Church, C. J., Rapali.o, Folger and Miller, 
 JJ. For reversal: Allen, Andrews and Earl, JJ. 
 
 Judgment affirmed.'' 
 
 i See Holland v. Hodgson, L. R. 7 C. P. 328 (1872) ; Ottumwa Woolen 
 Mill Co. V. Hawley. 44 Iowa, 57, 24 Am. Rep. 719 (1870) ; Hinkley & E?ery 
 Iron Co. V. Black, 70 Me. 473, 35 Am. Rep. 346 (1880); Hopewell Mills v. 
 Taunton Savings Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. 
 St. Rep. 235 (1890) ; Feder v. Van Winkle, 53 N. J. Eq. 370, 33 Atl, 309, 51 
 Am. St. Rep. 628 (1895). 
 
 A. owned two lots, an opera house on one, a factory on the other. For the 
 purpose of lighting the opera house A. installed in the factory a 3,000-pound 
 dynamo and a 35 horse power engine, the latter bolted to a stone foundation 
 6 feet deep and square. The engine was supplied with steam from the facto- 
 ry boiler, and drove the dynamo. In a contest between the real mortgagee of 
 the factory lot and a creditor attaching the engine and dynamo as personalty, 
 a verdict for the creditor will be sustained. Vail v. Weaver, 132 Pa. .363, 19 
 Atl. 138, 19 Am. St. Rep. 598 (1890). See, also, Randolph v. Gwynne, 7 N. J. 
 Eq. 88, 51 Am. Dec. 265 (1848).
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 271 
 
 LANGDON V. BUCHANAN. 
 (Supreme Court of New Hampshire, 1883. 62 N. H. 657.) 
 
 Trespass, qu. cl., and a second count in trespass de bonis. Facts 
 found by a referee. August 8, 1879, the plaintiff conveyed to George 
 C. Cox a tract of land, with the building thereon, used as a grist mill. 
 In it were a portable grist-mill, steam engine, and boiler. Besides 
 the main shafting, there was a counter-shaft, suspended and held in 
 place by hangers, and on the counter-shaft were seven iron pulleys, 
 over which passed belts connecting with the machinery, of the value 
 of $75. There was a rubber belt seventy-five feet in length, used for 
 driving the machinery, twenty-five feet of which was subsequently 
 disposed of as hereinafter stated. The value of the remaining fifty 
 feet was $20. There was also a set of Fairbanks scales, used in the 
 business. On the same day Cox reconveyed the same property to the 
 plaintiff, in mortgage, to secure the sum of $1,600 — part of the pur- 
 chase-money. The mortgage is still outstanding and unpaid. Cox im- 
 mediately fitted up the building for the manufacture of window frames, 
 sash, blinds, etc., and brought from Franklin and placed in the mill 
 machinery valued as follows : 1 jointing-saw, $30 ; 1 swing-saw, $40 
 1 buzz-planer, $140 ; 1 band saw, $75 ; 1 saw bench with saws, $40 
 1 turning lathe, $20; 5 counter shafts, with hangers and pulleys, $50 
 belting for driving machinery, $100 — total, $495. * * * He ex- 
 changed the portable grist-mill, scales, and twenty-five feet of rubber 
 belting, with the plaintift"'s consent for a Lee's patent moulding ma- 
 chine of the value of $150, and placed it in the mill. 
 
 All the above machines were fastened to the floors of the building 
 in a manner to render them firm and steady for use — the saw bench, 
 by iron rods, passing through the floor, with nuts on their lower ends ; 
 the others, either by common wood screws, passing through the base 
 posts of the machine into the floor, and driven in by a screw driver, 
 or by what are called "lag screws" having square heads for the pur- 
 pose, and turned with a wrench instead of a screw driver; in the lat- 
 ter cases, instead of the screws passing through holes in the base of 
 the machines, there were slots into which they were received, so that, 
 by removing two of the screws and loosening the other two, the ma- 
 chine could, by sliding it to one side, be removed. The hangers, by 
 means of which the shafting throughout the building was suspended 
 and held in place, were fastened by means of bolts passing through 
 the timbers of the building, with nuts to make them secure. This ma- 
 chinery was all operated by means of belts passing from pulleys at- 
 tached to the shafting. All the above machines could be removed, by 
 withdrawing the screws and rods, without injury to the building, and 
 when removed would .be equally capable of use in the same business
 
 FIXTURES 
 
 (Ch. 5 
 
 in any other building adapted thereto. The shafting could also be re- 
 moved without injury to the building, by withdrawing the bolts hold- 
 ing tlie hangers. 
 
 [The defendant claimed under a chattel mortgage on the machinery, 
 belting and shafting executed March 15, 1882.] 
 
 A referee found for the plaintifi'. 
 
 Smith, J.' The portable grist-mill, steam engine, boiler, shafting, 
 pulleys, belts, and scales passed with the mill to Cox as fixtures. The 
 understanding of the parties was that they were fixtures, their under- 
 standing being shown by the fact that they passed at once into the pos- 
 session of Cox without question, and that subsequently a portion of 
 them were exchanged by him for a moulding machine. The same 
 fixtures were embraced in the mortgage from Cox to the plaintiff, al- 
 though not mentioned as such in it. The parties manifestly intended 
 the mortgage to cover tlie same property that passed by the deed. 
 McRea v. Bank, 66 N. Y. 489; 1 Jones Mort., s. 435. The effect of 
 the exchange was, to make the moulding-machine a fixture in place of 
 the property for which it was exchanged. The intention of the par- 
 ties is shown by the fact that the machine was annexed to, and used 
 with, the building upon the mortgaged premises; and it does not ap- 
 pear that the plaintiff released or was asked to release his mortgage 
 lien, or that Cox undertook to make the exchange without his con- 
 sent. * * * 
 
 The machinery brought from Franklin became fixtures as between 
 the mortgagee and mortgagor. * * * They were such fixtures as 
 are regarded as permanent in their nature, and necessary for doing 
 the work of the mill. The buzz-planer, and saw bench were annexed 
 to the building in the usual manner, and the counter-shafting by means 
 of the hangers, the belting connected the saws and lathe with the pul- 
 leys on the counter-shafting, and operated them and the other machin- 
 ery. The purposes of the annexation and the intent with which it is 
 made are the important considerations. The owner turned his grist- 
 mill into a sash, door, and blind factory. Such a shop without the 
 machinery would be as useless as a grist-mill without mill-stones, or 
 a saw-mill without saws (Burnside v. Twitchell, 43 N. H. 390), or a 
 paper mill without machinery for the manufacture of paper (Lathrop 
 V. Blake, 23 N. H. 46). In New York, machinery attached to the 
 realty is presumed to have been attached with a view to the permanent 
 improvement of the freehold, in the absence of proof that the annexa- 
 tion was not intended to be permanent. Potter v. Cromwell, 40 N. 
 Y. 287, 100 Am. Dec. 485 ; McRea v. Bank, 66 N. Y. 489. Whether 
 machines become a part of the realty does not depend so much upon 
 the character of the fastening — whether it be slight or otherwise — as 
 it does upon the nature of the article and its use, as connected with 
 
 6 Tart of tlie opiuiou is omitted.
 
 Sec. 1) WHEN CHATTELS BECOME FIXTDEES 273 
 
 the use of the freehold. Despatch Line v. Bellamy Mfg. Co., 12 N. 
 H. 232, 233, 37 Am. Dec. 203. A mill-stone, resting upon the iron 
 work fixed to the top of the perpendicular shaft which turns it, and 
 is kept there by the force of gravity, may be a fixture. Burnside v. 
 Twitchell, 43 N. H. 390, 394. A steam boiler or looms, used in a mill 
 as part of it, and necessary for doing its work and carrying on its busi- 
 ness, mav be a part of it, though held in position only by their own 
 weight. 'Cavis v. Beckford, 62 N. H. 229, 13 Am. St. Rep. 554. 
 
 The facts in this case show an actual annexation of the machiner}% 
 and its applicability to the use to which the real estate was appropri- 
 ated. The fact that Cox subsequently mortgaged the machinery is not 
 material. It was after it had been annexed to the building and used 
 in its business. * * * 
 
 Case discharged." 
 
 McCONNELL v. BLOOD. 
 
 (Supreme Judicial Court of Massachusetts, 1877. 123 Mass. 47, 25 Aid. 
 
 Rep. 12.) 
 
 Tort for the conversion of machinery. The case was submitted to 
 the Superior Court, and, after judgment for the defendant, to this 
 court, on appeal, on an agreed statement of facts in substance as fol- 
 lows: 
 
 The plaintifl:' claims title as assignee of one Cunningham, under a 
 composition with his creditors ; the defendant, as mortgagee of certain 
 real estate used by Cunningham as a shoe-shop, in which the machinery 
 was situated and used by Cunningham. The only question at issue 
 is whether the machines enumerated below are personal property and 
 passed to the plaintiff as against the defendant, who has foreclosed 
 his mortgage ; or fixtures which the defendant, as mortgagee, can 
 hold. The machines, and the manner of their attachment to the build- 
 ing, are as follows : 
 
 "1. A Baxter upright steam-engine and boiler, ten horse power, 
 resting on a layer of brick on the lower floor ; the floor rests upon 
 blocks which rest upon the brick walls of a tank built into the soil 
 for the purpose of supplying the engine with water, the engine above 
 the boiler being bolted through the timbers of the floor above by 
 two iron bolts. The total height of the boiler and engine is eight 
 feet and two inches, the height of the boiler is five feet, the circumfer- 
 ence of the boiler twelve feet eight and one-half inches, the diameter 
 of the balance wheel thirty inches, and the diameter of the driving 
 
 6 See Fifield v. Farmers' Nat. Bank, 148 111. !(«. So N. E. S02. 39 Am. St. 
 Rep. 166 (1S93) : Parsons v. Copeland, 38 Me. 5;i7 (1854). 
 
 Bui.l'ERS.I'KOP. — IS
 
 FIXTURES 
 
 (Ch. 5 
 
 wheel twenty inches. Steam pipes for heating the building are con- 
 nected with the boiler, and the exhaust pipe and blow pipe pass oflf 
 through the floor below the boiler. The engine and boiler could be de- 
 tached from the building, for use elsewhere, without damage to the 
 building, but in order to remove them from the building it would be 
 necessary to enlarge two doorways, one of them being the outer door. 
 
 "2. A steam gauge, connected with the engine by an iron pipe, 
 and fastened to a piece of plank nailed to the flooring timbers above. 
 
 "3. A steam pump, bolted to a plank bench, which bench is nailed 
 to the studding of the building and to the floor, and is connected by 
 pipes with a tank, upon the floor above, that furnishes water for the 
 boiler, and with another tank in the attic, that furnishes water for 
 general uses. 
 
 "4. One sole-leather stripping machine. 5. One sole leather splitting 
 machine. 6. One sole cutting machine. These three machines are 
 heavy iron machines, not fastened to the floor by bolts or screws, but 
 belted downward to the shafting under the floor ; being so belted down- 
 ward, it is unnecessary to bolt them to the floor for use. 
 
 "7. One sole leather rolling machine, attached in the same manner 
 as the last three machines, except that in addition a small wooden table 
 is attached to the machine, and is nailed to a post of the building and 
 to the floor, so that to take down the machine it would be necessary to 
 remove the table. 
 
 "8. One small iron welt splitting machine, bolted to a bench which 
 is nailed to tlie floor and to the walls of the building, and is bolted 
 downward to shafting below the floor. 
 
 "9. A buffing machine, consisting of a wooden frame with buffing- 
 wheels and iron pulleys, the pulleys being belted through the floor 
 to shafting below, and the frame being nailed to the floor and the wall 
 of the building. * * * 
 
 "19. One water-tank, in the attic, a section of an iron boiler resting 
 by its own weight, fed by a pipe from the steam pump, and distribut- 
 ing water by other pipes through the building for general use. 
 
 "20. All the shafting in the building. This runs in iron hangers bolt- 
 ed to the floor timbers." 
 
 For such of the machinery held by the court to be personalty, the 
 plaintiff was to recover, the damages to be assessed by an assessor.'' 
 
 SouLE, J. The rights of these parties are determined by the rules 
 which apply between mortgagor and mortgagee. Many things which 
 as between landlord and tenant, would be removable as chattels, are 
 regarded as part of the realty, in favor of the mortgagee. In as- 
 certaining what articles have become part of the realty, regard must 
 be had to the manner in which, the purpose for which, and the ef- 
 
 1 The statement of facts is abridged.
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 275 
 
 feet with which, they are annexed. McLaughlin v. Nash, 14 Allen, 
 136. 92 Am. Dec. 741; Pierce v. George, 108 Mass. 78, 11 Am. Rep. 
 310. Whatever is placed in a building by the mortgagor to carry out 
 the obvious purpose for which it was erected, or to permanently in- 
 crease its value for occupation, becomes part of the realty, though 
 not so fastened that it cannot be removed without serious injury either 
 to itself or to the building. On the other hand, articles which are 
 put in merely as furniture are removable, though more or less substan- 
 tially fastened to the building. So, too, machines, not essential to 
 the enjoyment and use of a building occupied as a manufactory nor 
 especially adapted to be used in it, are removable, though fastened 
 to the building, when it is clear that the purpose of fastening them 
 is to steady them for use, and not to make them a permanent part of 
 or adjunct to the building. Winslow v. Merchants Ins. Co., 4 Mete. 
 306, 38 Am. Dec. 368; Hellawell v. Eastwood, 6 Exch. 295; The 
 Queen v. Lee, L. R. 1 Q. B. 241 ; Pierce v. George, above cited. 
 
 The engine and boiler, which were put in to supply the premises 
 with power; the steam gauge, which is essential to the safe use of 
 the same; the water tank, for supplying the building with water for 
 general use ; the steam pump connected therewith, and the shafting, are 
 evidently designed as permanent additions to the realty, and could 
 not be removed without seriously injuring the value of the building 
 for use. 
 
 The other articles named in the agreed facts are in no way essential 
 to the enjoyment of the estate; they are incidental merely to the par- 
 ticular business carried on at the time ; .and, though some of them are 
 affixed to the building by nails or bolts, it is clear that the object of 
 affixing them is only to secure them so that they may be advantageous- 
 ly used, and not to make them permanent parts of the building. They 
 are therefore chattels; and for their value, to be ascertained by an 
 assessor, there must be 
 
 Judgment for the plaintiff.' 
 
 8 See Wade v. Johnson, 25 Ga. 331 (1S.5S) ; TeaCf v. Hewitt, 1 Ohio St. 
 511, 59 Am. Dec. 634 (1S53) ; Sweetzer v. Jones, 35 Vt. 317, 82 Am. Dec. 030 
 (1SG2) ; Neufelder v. Third St. & S. Ry., 23 Wash. 470, 03 Pac. 197, 53 L. R. A. 
 600, S3 Am. St. Rep. 831 (1900).
 
 276 FixTuuES (Ch. 5 
 
 Ex parte ASTBURY. 
 (Court of Appeal in Chancery, 1S69. L. R. 4 Ch. App. 630.) 
 
 This case came before the Court on appeal from an order of Mr. 
 Registrar Tudor, acting for the Commissioner of the Birmingham 
 Court of Bankruptcy, made on a special case submitted for his de- 
 cision. 
 
 It appeared from the special case that on the 28th of June, 1867, the 
 firm of Messrs. Job Richards & Co., iron manufacturers at Smeth- 
 wick, which comprised the present bankrupts, Job Richards and Rich- 
 ard Hill, and also T. and L. Jenkins, being at that time indebted to 
 Lloyd's Banking Company, Limited, deposited with them the lease 
 of their rolling mills at Smethwick, accompanied by a memorandum 
 in the following terms : 
 
 "Memorandum. We, the undersigned Job Richards, L. Jenkins, 
 Richard Hill, and Thomas Jenkins, trading together as iron-masters 
 at Smethwick, in the county of Stafford, under the style or firm of 
 Job Richards & Co., have this day deposited with Lloyd's Banking 
 Company, Limited, the deed mentioned in the schedule hereunder 
 written, to be retained by the company by way of a continuing se- 
 curity to them for payment on demand of all moneys and liabilities 
 already paid or incurred, or which the company may at any time ad- 
 vance, pay, or incur to or for the said firm of Job Richards & Co., 
 whether on current account or by the discount of or otherwise in re- 
 spect of bills of exchange, promissory notes, or other negotiable se- 
 curities drawn, accepted, or indorsed by the said firm, together with 
 interest, commission, banking charges, law and other costs, charges, 
 and expenses ; and for a more effectual security we undertake at our 
 own expense, when required by the company, that we and all other 
 necessary parties will execute to the said company, or as they shall 
 direct, a mortgage of all our estate and interest in the said deed, which 
 mortgage shall contain a power of sale and all usual clauses." 
 
 The account was continued as an open account with the four partners 
 up to the month of August, 1867, when the partnership between the 
 bankrupts and Messrs. Jenkins was dissolved, and the bankrupts took 
 the assets and debts of the old firm, including a balance of upwards of 
 £10,000. due to Lloyd's Banking Company. 
 
 On the 11th of January, 1868, the bankrupts executed to the bank- 
 ing company a legal mortgage of the mills; and on the 18th of Jan- 
 uary the banking company took possession under the mortgage. On 
 the 30th of January a petition of bankruptcy was filed against them, 
 and they were declared bankrupts, and Messrs. Astbury, Bloomer, and 
 Dickenson were appointed assignees. 
 
 The mortgage deed had a schedule annexed to it, containing a list
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 277 
 
 of certain chattels used in the rolling mills, which were the sub- 
 ject of the present dispute between the assignees and the mortgagees. 
 These chattels consisted of a considerable number of iron rollers de- 
 scribed as finishing rolls, colting rolls, guide rolls, hard rolls, and 
 bolting down rolls ; and also four patent weighing machines, and four 
 straightening plates. 
 
 It was admitted in the special case that the rolls and other chattels 
 comprised in the last-mentioned schedule were necessary to the car- 
 rying on of the bankrupts' business. If they had been removed, others 
 of a similar description must have been substituted. 
 
 The assignees contended that the mortgage security was void against 
 them so far as related to the duplicate rolls and other unfixed ma- 
 chinery and chattels. 
 
 It was admitted in the argument that the mortgage deed of the 11th 
 of January, 1868, could not be supported against the assignees, by 
 reason of its having been made on the eve of bankruptcy; but the 
 mortgagees claimed the chattels as fixtures attached to the iron mills, 
 under the equitable mortgage and deposit of the 2Sth of June, 1867. 
 The assignees admitted that one set of rolls passed with the machine 
 to the equitable mortgagees. Evidence was adduced before the Regis- 
 trar as to the nature of the chattels, in which the following facts were 
 proved : 
 
 The rolls were loose iron rollers, which were fitted into the rolling 
 machine. The machines, when made, were fitted with one set of roll- 
 ers, and others were ordered and supplied according to the work re- 
 quired, different sized rolls being used for different descriptions of 
 iron. When the rolls first came from the manufacturer they had to 
 be fitted to their bearings in the machines by filing their ends, and when 
 so fitted they were grooved according to the size of the iron which 
 they were intended to roll. At the date of the equitable mortgage 
 there were several duplicate rolls which had been used or were ready 
 for use, and others which had been supplied by the manufacturers, but 
 had never been fitted to the machine. 
 
 There were four weighing machines, which were placed in holes dug 
 in the ground and faced with brickwork. The machines rested on 
 the brickwork at the bottom of the holes, the weighing plates being 
 on a level with the surface of the ground. It was stated in the evi- 
 dence that the machines might be removed without injuring the brick- 
 work, and that similar machines were often placed upon wheels in- 
 stead of resting on the ground. 
 
 The straightening plates were broad plates of iron for straightening 
 the bars of iron when taken out of the furnace. They were laid on 
 brickwork and bedded in the earth of the floor, and the rest of the 
 flooring was composed of iron plates, which fitted round them so as 
 to make an even surface.
 
 278 FIXTURES (Ch. 5 
 
 The Registrar was of opinion that the rolls passed with the mills 
 to the mortgagees, as being part of the machinery; from this deci- 
 sion the assignees appealed. But he held that the weighing machines 
 and straightening plates did not pass; and the mortgagees appealed 
 from this decision. 
 
 Sir G. M. Giffard, L. J. The questions in cases of this descrip- 
 tion are, for the most part, much more questions of fact than of law, 
 for to my mind the law has been settled, but the facts necessarily dif- 
 fer more or less in each particular case. 
 
 With respect to the law, it is admitted that where there is a mort- 
 gage of a manufactory, and part of the machinery used in it is a fix- 
 ture, that part passes. We have, therefore, to determine what, ac- 
 cording to the law, are, in a proper sense fixtures. There are two 
 dicta which will be sufficient to guide us for the present purpose. In 
 Mather v. Fraser it was decided that the article must be an essential 
 part of the machine. I think that was all that it was necessary to lay 
 down in that case. The dictum of Lord Cottenham in Fisher v. Dix- 
 on, 12 CI. & F. 312, was that all "belonging to the machine" would 
 pass, and I should say in this case the proper test to lay down would 
 be that the chattel must be "something which belongs to the machine 
 as part of it." 
 
 Now, these machines were rolling machines, and there appear to 
 be connected with rolling machines parts which, beyond all doubt, are 
 not fixed, in the strict sense of the term ; but it is in evidence that if 
 a machine is ordered, it is sent with one set of rolls, and it is quite 
 manifest that without rolls the machine could not do any part of the 
 work for which it is made. One set of rolls clearly passes. But we 
 have here duplicate rolls, and with reference to them — I am not now 
 speaking of rolls which can be considered as, in any sense, unfinished, 
 but of duplicate rolls which have been actually fitted to the machine — 
 — I cannot see why, if one set of rolls passes, the duplicate rolls should 
 not pass also. It comes, in fact, to this, that the machine with one set 
 of rolls is a perfect machine, but the machine with a duplicate set is 
 a more perfect machine. I think, therefore, that each set of rolls 
 necessarily belongs to the machine as part of it. I do not think that 
 this is at all affected by the dictum of Fitzherbert; but if it was, my 
 answer would be, that this subject has been considered much more of 
 late years than it was in ojden times, and that the matter decided was 
 with regard to a question of distress. If it were desired to reduce the 
 question to an absurdity, it would be by supposing a case of duplicate 
 latch keys to a door, and holding that one only should pass, and not 
 the other. The fact is, that whether there is one set of rolls or a 
 duplicate set, they are each part and parcel of the machine, and come 
 within the term "belonging to the machine as part of it." 
 
 Then comes the case as to the different sizes of rolls. But if tlie
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 279 
 
 duplicates of the same size pass, it follows that the rolls of different 
 sizes pass, if they render the machine still more perfect than if the 
 rolls were all of the same size. 
 
 Then we come to another and different class of rolls, and there I 
 confess I differ from the Registrar who has given his opinion in this 
 case. I allude to those rolls which had been made for the purpose of 
 being used in this machine, and had been sent to the mill for that pur- 
 pose, but had never been fitted to the machine, and which required 
 something more to be done to fit them to the machine in order that 
 they might be used in it. I think that if a man mortgages a machine, 
 and afterwards, the machine itself being perfect, and fitted with rolls 
 and everything else connected with it, other rolls are sent for to be 
 used with the machine, but those rolls cannot be used unless and un- 
 til they are fitted to the machine, it would be going a long way to say 
 that the mortgagor should be compelled to fit those rolls to the ma- 
 chine, and should be precluded from saying that they do not form a 
 part of the machine. 
 
 Therefore I am of opinion that, as regards the duplicate rolls, as 
 regards the rolls of different sizes, as regards all the rolls which have 
 been actually fitted to the machine, they belong to the machine as part 
 of the machine— they are, in fact, essential parts of the machine. But 
 I cannot hold that the rolls which have never been fitted to the ma- 
 chine, and have never been used in the machine, and which require 
 something more to be done to them before they are fitted to the ma- 
 chine, belong to the machine, or that they are essential parts of it. 
 Therefore, in that respect, the order will be varied. 
 
 The second appeal was tlien argued. 
 
 Sir G. M. Giffard, L. J. The two points which remain to be dis- 
 posed of in this question are, first, as to the straightening plates ; ana, 
 secondly, as to the weighing machines. I cannot agree to the sugges- 
 tion of Mr. Jessel that because the mortgagor in this case was a lease- 
 holder and not a freeholder the articles which are fixtures will not 
 pass to the mortgagee. Whether he is a freeholder or a leaseholder, 
 the same rule clearly and indubitably would apply, and the only ques- 
 tion is, whether the straightening plates and the weighing machines 
 are fixtures. 
 
 With regard to the straightening plates, two cases were cited, one 
 of the Metropolitan Counties Society v. Brown, and another of Bates 
 V. Duke of Beaufort. The latter case clearly has no application, for 
 that was a case in which, there being chattels which, as between the 
 lessor and lessee, the lessee might remove, an execution creditor of 
 the lessee was held entitled to take them. As regards the former case, 
 the point was wholly different from the point in this case, because 
 there the straightening plates certainly were not fixed in the mode in 
 which these straightening plates appear from tlie evidence to be fixed.
 
 280 FIXTURES (Ch. 5 
 
 It is only necessary to read some portions of the evidence to shew that 
 these straightening plates are clearly fixtures, and, in fact, just as 
 much part of the floor as any pavement would be, and, certainly, it 
 would be astonishing to me if an ordinary pavement were regarded 
 as a thing that could be removed by a mortgagor as against his mort- 
 gagee. [His Lordship then referred to the evidence, and continued:] 
 Upon this evidence I must assume that the plates round the straight- 
 ening plates are part of the ordinary floor of the place, and that the 
 straightening plates are just as much part of the ordinary floor as the 
 plates around them. I look upon these straightening plates as in the 
 same positiori as a flagstone laid down and let in, and certainly if any- 
 thing in the world is a fixture I should conceive that a flagstone laid 
 down and let in would be a fixture. In fact, the Registrar seems to 
 have fallen into this mistake by laying rather too much stress on what 
 was said in the case of Mather v. Fraser, 2 K. & J. 536, as to noth- 
 ing being a fixture which could stand by its own weight. No doubt 
 a flat plate will rest by its own weight, but if you have it laid in, em- 
 bedded, and overlaid with that which is part of the permanent floor, 
 and the permanent floor cannot be removed without damage to the 
 freehold, as it clearly cannot be here, I can have no doubt whatever 
 but that the straightening plates are fixtures. 
 
 But, then, with regard to the weighing machines I think the case 
 is wholly different. The evidence is clear that weighing machines of 
 this description are frequently put upon wheels, and are,so used. As 
 regards these weighing machines, it appears that where they are placed 
 inside the building the floor is prepared for them, and where they are 
 placed outside the soil is prepared for them; that is to say, a square 
 receptacle is made and is bricked, and when that square receptacle is 
 made and bricked the weighing machine is placed in it, and may, of 
 course, be taken out again, for it is not fixed by nails, or by screws, or 
 in any other way. One of the witnesses says: "I took a piece of thin 
 iron about half an inch thick, and trickled around the outside of it, 
 and from that I could see there was some brickwork put up in order 
 to secure the outside ; there was a space all round of from five-eighths 
 to three-fourths of an inch." Mr. Fry argued that the brickwork was 
 the same thing as if there had been a frame, and that the brickwork 
 is part and parcel of the machine. To that argument I cannot assent. 
 Suppose in this case a number of brick places had been made, into 
 which it had been convenient to put weights, beyond all doubt the 
 weights would not have been fixtures. In the same way, if there has 
 been a foundation of granite for a cannon or a large telescope, neither 
 the cannon nor the large telescope would be a fixture. The prepara- 
 tion of the soil does not make the machine a fixture, nor does the fact 
 of its being put into the receptacle so prepared for it make it a fixture. 
 
 Therefore, as regards the straightening plates the decision below
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 2S1 
 
 will be reversed, and as regards the weighing machines it will be af- 
 firmed. There will be no costs of the appeal, and the deposit will be 
 returned. 
 
 WINSLOW V. BROMICH. 
 
 (Supreme Court of Kansas, 1894. 54 Kan. 300, 38 Pac. 275, 45 Am. St 
 
 Rep. 285.) 
 
 HoRTON, C. J.° This was a controversy in the court below over 
 sugar wagons. They were furnished by Joseph Bromich to the Ameri- 
 can Sugar Company, manufacturing sugar at Minneola, in this state. 
 They were constructed of sheet and cast iron, being 4 feet long, 3 feet 
 wide, and 26 inches deep, with three adjustable wheels on each wagon. 
 They were used in the mill for the purpose of holding the syrup and 
 conveying it from place to place on the floor of the mill until it was 
 converted into sugar. The wheels of the sugar wagons were low, 
 about eight inches in diameter, and the wagons, when in use, were 
 pushed by hand from place to place within the mill. These wagons 
 were of the same character as other similar wagons used in other su- 
 gar mills, and such mills cannot be successfully operated without such 
 wagons or other vessels of like character. 
 
 [Bromich claimed them by virtue of a judgment under a mechanics 
 lien; Winslow claimed them under a contract of purchase made after 
 the judgment in die lien case.] 
 
 The question for our determination is whether the sugar wagons 
 were personal property, or fixtures. If personal property, then C. W. 
 Winslow is entitled to judgment for costs ; but if fi.xtures, the judginent 
 in favor of Joseph Bromich and the Densmore Brothers must be af- 
 firmed. * * * 
 
 In Railroad Co. v. Morgan, 42 Kan. 23, 21 Pac. 809, 4 L. R. A. 284, 
 16 Am. St. Rep. 471, it was observed: "One of the tests of whether 
 personal property retains its character or becomes a fixture is the uses 
 to which it is put. If it is placed on the realty to improve it and make 
 it more valuable, it is some evidence that it is a fixture ; but if it is 
 placed there for a use that does not enhance the value of the realty, 
 this is some evidence that it is personal property. * * * f\-^Q ^■^^y^_ 
 pie fact of annexation to the realty is not the sole and controlling test 
 of whether a certain article is a fixture or not, is very well illustrated 
 by the fact that trees growing in a nursery and kept there for sale are 
 personal property, while trees no larger, if transplanted to an orchard, 
 become real estate. On the other hand, there are very many things 
 
 " The statement of facts and part of the opinion are omitted.
 
 2S2 FIXTURES (Ch. 5 
 
 although not attached to the realty which become real property by their 
 use — keys to a house, blinds and shutters to the windows, fences and 
 fence rails, etc." 
 
 The sugar wagons, as we understand the agreed facts, were placed 
 in the mill for use, not to enhance the value. They are movable and if 
 taken out will not disturb the mill or in any way injure the building. 
 They do not run upon wooden or iron rails attached to the building, 
 nor are they connected in their operation by bands or in any other way 
 with the permanent machinery. They are not like the wheels or 
 stones to a mill, or the keys to a house, or tlie blinds and shutters to 
 windows. Being adapted to convey syrup from place to place in the 
 mill, they must be considered in the same class as buckets, kettles, bar- 
 rels, and similar vessels, used for like purposes. As the sugar wagons 
 were not actually or constructively annexed to the realty, or something 
 appurtenant thereto, but merely furnished for necessary use in the mill, 
 and not intended to enhance the value of the realty, we must hold them 
 to be personal propert)' and not fixtures. Walker v. Sherman, 20 
 Wend. (N. Y.) 636; Haeussler v. Glass Co., 52 Mo. 452; Graves v. 
 Pierce, 53 Mo. 423; Ex parte Astbury, 4 Ch. App. 630; Ewell, Fixt. 
 (1876) 22, 23; 1 Jones, Mort. 444-449. 
 
 The judgment of die district court will be reversed and the cause re- 
 manded with direction to the court below to render judgment for C. W. 
 Winslow.'" 
 
 10 Ace.: Large tubs, ice tools, and other appliances used in a brewery, 
 Wolford V. Baxter, 33 Minn. 12, 21 N. W. 7«, 53 Am. Rep. 1 (1SS4) ; movalile 
 piping, blacksmith's tools, furniture, carts used in and about a mine, Scudder 
 V. Anderson, 54 Mich. 122, 19 N. W. 775 (18S4) ; a boat used in connection 
 with a summer cottage, Dana v. Burke, 62 N. H. 627 (1SS3). 
 
 Contra: Crates in a canning factory, Dudley v. Hurst, 67 Md. 44, 8 Atl. 
 901, 1 Am. St. Rep. 368 (1887). 
 
 Cars with flanged wheels ininning on rails, used in a brickyard and essen- 
 tial thereto, are subject to a mechanic's lien. Curran v. Smith, 37 111. App. 
 69 (1890). 
 
 For the arguments that rolling stock of a railroad is realty, see Williamson 
 V. New Jersev Southern Railway, 28 N. J. Eq. 277 (1877) ; Palmer v. Forbes, 
 23 111. 237 (1860), changed by Illinois Const. 1870, art. 11, § 10. 
 
 That rolling stock is personalty, Neilson, Benton & O'Donnel v. Iowa East 
 Railroad Co., 51 Iowa, 184, 1 N. W. 434, 33 Am. Rep. 124 (1S79) ; Williamson 
 V. New Jersey Southern Ry., 29 N. J. Eq. 311 (1878) ; Hoyle v. Plattsburgh 
 & M. R. Co., 54 N. Y. 314, 13 Am. Rep. 595 (1873) ; State v. Martin, 141 N. C. 
 832, 53 S. E. 874 (1906).
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 283 
 
 FECHET V. DRAKE. 
 (Supreme Court of Arizona, 1SS7. 2 Ariz. 239, 12 Pac. 604.) 
 
 [An electric light company executed a mortgage of the land on 
 which stood its powerhouse "together with all machinery includmg the 
 boiler, engine, and dynamo now situated on the said land and together 
 with all and singular the tenements, hereditaments and appurtenances 
 thereunto belonging or in any wise appertaining." The plaintiff claims 
 title under the mortgage : the defendant is the assignee in bankruptcy 
 of the mortgagor. The action is to quiet title to the electric light wires 
 strung on poles about the city and running from the mortgaged prop- 
 ert>'.] 
 
 Barnes, J.'^ * * * The only question here is whether, by this 
 mortgage, there passed to the mortgagee the wires so strung along said 
 masts. Defendant insists that the same did not pass, and that he may 
 cut such wires, and treat the same as the personal property of the mort- 
 gagor. Plaintiff insists that the whole plant, including the wires so 
 strung, passed by the mortgage. 
 
 This raises a very important question. It is urged that the said 
 wires are a fixture to the lot, and as such pass by the mortgage. There 
 is a great confusion in the books in the definition of the term "fix- 
 tures."' It is held to denote "such articles of a chattel nature as, when 
 once annexed to the realty, may not be removed by the party annexing 
 them, as against the owner." Ewell, Fixt. 1, and cases cited. On the 
 other hand, just the reverse is held to be the true definition; that is, 
 chattels annexed that may be removed, etc. Ferrard, Fixt. 2, and cases 
 cited. It is difficult to determine in which of the above senses it is 
 most frequently employed. * * * 
 
 Whichever definition may be regarded best, all concur tliat, where 
 the chattel is "fixed" or "annexed" physically to the soil, it becomes a 
 part of the realty. 
 
 The electric light current was affixed to the soil as firmly as the na- 
 ture thereof would permit. It was attached physically to it, and be- 
 came a part of the fixed machinery. To that extent this electric light 
 current is a fixture. But it is contended that, while this is so, yet that a 
 fixture must be on the land, and that that may not be a fixture which 
 is off the land. 
 
 A case is cited holding that, where an engine was on one lot, and 
 connected with a machine on another lot, that the machine on each lot 
 is a fixture on the lot on which it is constructed. ^McDonald v. Minne- 
 apolis Lumber Co., 28 Minn. 262, 9 N. W. 765. That is not this case. 
 Here one lot is devoted to the maintenance of an electric light plant. 
 
 II Part of the opiniou is omitted.
 
 284 FIXTURES (Ch. 5 
 
 Upon it are erected buildings, and in them are placed motive power 
 and dynamo by which an electric current is to be created, and from the 
 same led by means of wires annexed thereto, and running out of the 
 building, strung on poles set up in the streets of the city, through the 
 city, to points where this light is needed, and, returning by the same 
 means, are so connected with the dynamo as to complete the circuit, 
 and so make effectual the operation of a machine of which it is an in- 
 tegral and necessary part. It has a "right of way" along the streets 
 of the city, which is no more than a mere license, and the license is sub- 
 ject to the public use of the streets, and in no way affects the fee to the 
 same. Such use of the streets is a public use, and the power to grant 
 such use is to be found in the same powers that grant the use of the 
 streets to railway companies, gas companies, water companies, and the 
 like. The mortgage or sale of a railway would carry its tracks laid in 
 or across a highway annexed to its tracks, on its exclusive right of way, 
 or even its locomotives and cars thereon. Rolling stock of a railway 
 is a part of the realty where a railroad is mortgaged, though used on 
 lines not included in the mortgage. Minnesota Co. v. St. Paul Co., 2 
 Wall. 609, 17 L. Ed. 886; and see note to this case. 
 
 The later, and wo think the better, doctrine does not require an ac- 
 tual fastening to the soil as essential to making a chattel a fixture. 
 The third rule stated by IVIr. Carpenter (2 Wall. 646) is sustained by 
 these authorities: "If the thing be essential to the use of the real es- 
 tate, and has uniformly been used with it, then it passes, though not 
 fastened to it." Farrar v. Stackpole, 6 Greenl. 157, 19 Am. Dec. 201 ; 
 Snedeker v. Warring, 12 N. Y. 170; Pierce v. Emery, 32 N. H. 484; 
 Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. Ed. 886; Peoria, etc., 
 R. R. Co. V. Thompson, 103 111. 209. 
 
 The electric current, including wires, poles, insulators, and applianc- 
 es, was an essential part of the machine. To sever it was to destroy it. 
 The object of the law is to preserve, and not to destroy. A machine 
 made of many parts, operated for a useful purpose may have great 
 value. Sever the parts and they are each comparatively worthless. 
 And it is the duty of die courts, so far as may be, to so construe the 
 law that the usefulness and value of such property be maintained. In 
 Regina v. North Staffordshire Ry. Co., 3 El. & El. 392, Lord Cockburn 
 held that telegraph apparatus, consisting of posts, driven into the 
 ground, and wires passing through sockets annexed to the posts, but 
 which wires might be disconnected from the posts without injury, or 
 displacing them, were a part of the appliances of the defendant rail- 
 way company, and were fixtures, as they were so attached that it was 
 intended that they should remain permanently coimected with the rail- 
 way, or the premises used with it, and remain permanent appendages 
 to it as essential to its operation. Such is this case. 
 
 We have so far considered this as though it were an ordinary con-
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 285 
 
 veyance of the lot, but the mortgage conveyed the lot, "together with 
 all the machinery, including the boiler, engine, and dynamo now situat- 
 ed on said lot, and together with all and singular the tenements, her- 
 editaments, and appurtenances thereto belonging, or in any wise apper- 
 taining." 
 
 In Pickerell v. Carson, 8 Iowa, 544, a sale of "the fixtures and ap- 
 purtenances contained in the daguerreian rooms," etc., embraced all 
 such property as was used in carrying on the business, such as maps, 
 pictures, stove, carpet, apparatus, and furniture, machines and stock, 
 as appurtenances, and sky-light, balcony, partition, etc., as fixtures. 
 
 The electric current is, then, an appurtenance to the machinery situ- 
 ated on that lot, and is therefore covered by the language of the mort- 
 gage, even if not a fixture. Extra rolls in a rolling-mill removable at 
 pleasure, were held to be a part of the realty as appurtenant to it. 
 Pyle v. Pennock, 2 Watts & S. (Pa.) 390, 37 Am. Dec. 517. A statue 
 and a sun-dial also. Snedeker v. Warring, 12 N. Y. 170; Wadleig'.i 
 v. Janvrin, 41 N. H. 503, 77 Am. Dec. 780. A mortgage of a railway, 
 with its appurtenances and franchises, includes its rolling stock, tools, 
 and all moveable property used in its operation. Peoria, etc., R. R. 
 Co. V. Thompson, 103 III. 209. 
 
 The ingenuity of invention, creating new appliances for usefulness, 
 constantly brings new facts for the consideration of the courts ; and 
 to these established principles must be applied. To determine whether 
 a particular chattel has become a "fixture" or an "appurtenance" we 
 must be guided by authority. A consideration of the authorities leads 
 to the conclusion that in each case it is a mixed c|uestion of law and 
 fact, largely to be determined by the intention of the parties, and the 
 uses to which the chattel is devoted. In this case it was the evident 
 intention of the parties to malve this electric current a part of the ma- 
 chine mortgaged and attached to the land — to become a part of the real- 
 ty. We hold, therefore, that the chattel so attached passed with the 
 mortgage. 
 
 The judgment is affirmed. '- 
 
 12 Wires strung along a highway have been held subject to a mechanic's 
 lien as part of the power plant with which they were connected. Hughes v. 
 r^raljertville Kl.'ctric I-ight, Heat & Power Co., 53 N. J. Eq. 435, 32 Atl. G9 
 
 (1895).
 
 286 FIXTURES (Ch. 5 
 
 CAPEHART V. FOSTER. 
 
 (Supreme Court of Minnesota, 1895. 61 Minn. 132, 63 N. W. 257, 52 Am. St. 
 
 Rep. 5S2.) 
 
 Canty, J. Plaintiff was the owner of certain hotel property, which 
 he mortgaged to defendant. At tlie time the mortgage was made the 
 hotel contained 268 gas fixtures, consisting of gas chandeliers and 
 burners, 184 steam radiators, an office desk, a cigar counter, and an 
 electric annunciator. Defendant foreclosed his mortgage, purchased 
 the property at the foreclosure sale, and the time to redeem expired. 
 Plaintiff, being still in possession, threatened to remove all of these 
 articles; whereupon defendant procured a temporary writ of injunc- 
 tion restraining him from doing so. Defendant also obtained posses- 
 sion of the hotel by an action of forcible entry and detainer, and the 
 action in which the injunction was issued was then dismissed by stip- 
 ulation. Thereafter plaintiff brought this action for damages for the 
 conversion of said property. The jury returned a verdict for defend- 
 ant, and on motion of plaintiff the court below granted a new trial. 
 From the order granting tlie same, defendant appeals. The defend- 
 ant claims that the articles in question are and always were a part 
 of the realty, while plaintiff claims that they are and always were per- 
 sonal property. 
 
 1. During all of said time these gas fixtures were screwed to the 
 ends of the gas pipes projecting from the walls and ceilings, and can 
 be readily unscrewed. It is held by the great weight of authority that, 
 under such circumstances, such gas fixtures are not a part of the 
 realty, even as between vendor and vendee or mortgagor and mort- 
 gagee; that they are merely a part of the furniture of the room, — 
 a substitute for the lamp and lampholders, candlesticks and chande- 
 liers formerly used to hold candles. McKeage v. Hanover Ins. Co., 
 81 N. Y. 38, Z7 Am. Rep. 471 ; Jarechi v. Philharmonic Soc, 79 Pa. 
 403, 21 Am. Rep. 78; Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 
 353; Montague v. Dent, 10 Rich. (S. C.) 135, 67 Am. Dec. 572; Rog- 
 ers V. Crow, 40 Mo. 91, 93 Am. Dec. 299; Ewell, Fixt. 299. While 
 this doctrine is rather doubtful in principle, it is too well established 
 as the law of the country generally to be now overturned. 
 
 2. The steam radiators were attached to the steam pipes at the floor 
 on which they rested, by being screwed to those pipes. We are of the 
 opinion that these radiators should be held to be a part of the realty. 
 The distinction thus' made between them and the gas fixtures is not 
 clear in principle. But tlie rule applied to gas fixtures must be
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 287 
 
 regarded as rather an arbitrary exception to the general rule, and 
 should not be extended to such fixtures as radiators. These radiators 
 were put in immediately after the building was erected. There is no 
 reason for holding that the owner did not intend them to be perma- 
 nently annexed to the steam plant, and therefore permanently annexed 
 to the realty. He might remove or change them, and so might he re- 
 move or change the boiler or the furnace, which is also a part of the 
 steam plant. Such radiators are an essential part of such plant, and 
 are rarely furnished by tenants or temporary occupants of buildings 
 as a part of the furniture brought with them or carried away with 
 them, but the owner who furnishes the rest of such plaiit usually fur- 
 nishes the radiators also. When, under ordinary circumstances, tlie 
 owner of the building attaches such radiators to his steam plant, it 
 should be held that he intended them to be permanently annexed to the 
 realty. We are cited to National Bank v. Nortli, 160 Pa. 303, 2S 
 Atl. 694, which holds to the contrary. This case holds that such 
 radiators are analogous to gas fixtures, and therefore not a part of ■ 
 the realty. By following the same process of reasoning by analogy 
 you would strip a house of all modern improvements, and by continu- 
 ing the process you would overturn the greater part of the law of 
 fixtures. A correct rule should not, in this manner, be overturned by 
 an inconsistent exception. 
 
 3. The electric annunciator was attached to the wall, and to all 
 the wires of the electric call or electric bell system of the hotel. It 
 was also a part of the realty. 
 
 4. The office desk is about 25 feet long, and is so placed that the 
 ends fitted against projections in the wall in such a manner that the 
 space behind the desk forms the hotel office. This desk rests on the 
 tile floor and is fastened to the wall at each end by means of short 
 pieces of board, which are fastened to the wall and to the desk by 
 means of screws. We are of the opinion that this desk is a part of 
 the realty. Woodham v. First N. Bank, 48 Minn. 67, 50 N. W. 1015, 
 31 Am. St. Rep. 622. 
 
 5. The evidence was somewhat conflicting as to whether the cigar 
 counter was fastened to the floor, and as to whether it was specially 
 designed for the hotel. There was at one end of it a gate, which was 
 attached to the wall, and swung against the cigar stand, to which it at- 
 tached itself by some sort of a latch or catch. There was evidence 
 tending to prove that it stood in a different part of the hotel lobby 
 during a part of the time since the hotel was erected. We are of the 
 opinion that, under these circumstances, it was a question for the 
 jury whether or not this counter was a part of the realty. The acts 
 of the defendant were such as to make him guilty of conversion of 
 those articles which were not a part of the realty. This disposes of
 
 288 FIXTURES (Ch. J 
 
 all the questions in the case. As to the gas fixtures, the verdict was 
 contrary to law, and the order granting a new trial should be af- 
 firmed. 
 
 So ordered." 
 
 HOOK V. BOLTON. 
 
 (Supreme Judicial Court of Massachusetts, 190S. 199 Mass. 244, 85 N. E. 175, 
 17 L. R. A. [N. S.] 099, 127 Am. St. Rep. 487.) 
 
 Tort for the conversion of certain articles alleged by the plaintiff to 
 be chattels but claimed by the defendant as fixtures annexed to a 
 dwelling house numbered 86 on Bloomfield street in Boston which she 
 had purchased at a foreclosure sale. Writ in the Municipal Court of 
 the City of Boston dated June 27, 1904. 
 
 On appeal to the Superior Court the case was tried before White, 
 J. At the close of the evidence the plaintiff asked the judge to give 
 to the jury the following instructions: 
 
 "1. I rule that the gas fixtures and gas chandeliers in the house were 
 personal property as matter of law, and did not pass by the mortgage, 
 and that the plaintiflf is entitled to recover damages for their value 
 on June 13, 1904. 
 
 "2. Ordinary steam radiators, detachable from the pipes, and suita- 
 ble for use in any building, are personal property as matter of law. 
 If you find that the radiators in question were radiators of this sort, 
 I rule that they did not pass by the mortgage and the defendant got 
 no title to them, and that the plaintiff is entitled to recover as dam- 
 ages their value on June 13, 1904. 
 
 "3. Gas stoves of the kind described in the testimony in this case 
 are personal property as matter of law ; they did not pass by the mort- 
 gage : the defendant got no title to these stoves, and the plaintiff is 
 entitled to recover as damages their value on June 13, 1904. 
 
 "4. Ordinary portable kitchen stoves or ranges, used principally for 
 cooking, with hot water fronts, and with stovepipes running into the 
 
 IS Ace: Shelvins; and counters, Bri.^ham v. Over.street, 128 Ga. 447. 57 S. 
 E. 484, 10 L. R. A. (N. S.) 452. 11 Ann. Cas. 75 (1907). See Johnson v. Mosher, 
 82 Iowa, 29, 47 N. W. 99G (1891). 
 
 Large .<;howcases, that could not be removed without being tal^en apart, 
 racks, and hangers, fastened to floor and ceiling respectively, were installed 
 in a harness shop by the owner. Held, an injunction against removal will 
 issue in favor of the purchaser of the land as against the purchaser of the 
 tools and fixtures. Owings v. Estes. 256 111. 553, 100 N. E. 205, 43 L. R. A. 
 (N. S.) 075, Ann. Cas. 1913E, 305 (1912). 
 
 Whether three large saloon bars passed to a mortgagee of the realty held 
 a (luestiou for the jury. Smith v. Bay State Sav. Bank, 202 Jlass. 482, 88 
 N. E. 1086 (1909).
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 2SS 
 
 chimneys, are personal property as matter of law ; and stoves or ranges 
 of this character did not pass to the mortgagee or the defendant under 
 the mortgage, but the plaintiff is entitled to recover as damages for 
 their conversion their value on June 13, 1904. 
 
 "5. Ordinary window shades, running on rollers and detachable 
 from their sockets, are personal property as matter of law; and win- 
 dow shades of this character do not pass to the mortgagee or the de- 
 fendant under the mortgage, but the plaintiff is entitled to recover as 
 damages for their conversion their value on June 13, 1904. 
 
 "6. Window screens and screen doors of the ordinary kind, made 
 for temporary use during the summer months to keep out flies and 
 other insects, bought ready made without being specially manufactured 
 to fit this house, and suitable for use on any other house of a gen- 
 erally similar character, are personal property as matter of law ; and 
 window screens and screen doors of this character did not pass to 
 the mortgagee or the defendant under the mortgage, but the plaintiff 
 is entitled to recover as damages for their conversion their value on 
 June 13, 1904." 
 
 The judge refused to give the instructions requested, and left it to 
 the jury to determine whether the articles referred to in the requests 
 for instructions had become a part of the real estate by being annexed 
 thereto, or remained personal property. 
 
 The jury returned a verdict for the plaintiff in the sum of $23.40, 
 including interest since June 13, 1904; and the plaintiff alleged ex- 
 ceptions. 
 
 Knowlton, C. J. This is an action of tort to recover the value of 
 certain articles annexed to a dwelling house and used with it. The 
 defendant claimed title under the foreclosure of a mortgage of the 
 real estate. The plaintiff requested the presiding judge to rule as to 
 several classes of these articles that they were personal property and 
 not fixtures. 
 
 The principles of law applicable to cases of this kind have been 
 stated many times in recent opinions of this court. In Hopewell Mills 
 v. Taunton Savings Bank, 150 Mass. 519, 521, 522, 23 N. E. 327, 6 
 L. R. A. 249, 15 Am. St. Rep. 235, is this language: "A machine 
 placed in a building is found to be real estate or personal property 
 from the external indications which show whether or not it belongs 
 to the building as an article designed to become a part of it and to 
 be used with it to promote the object for which it was erected or to 
 which it has been adapted and devoted, an article intended not to be 
 taken out or used elsewhere, unless by reason of some unexpected 
 change in the use of the building itself. The tendency of the modem 
 cases is to make this a question of what was the intention with which 
 the machine was put in place [citing cases]. Of course the rule is the 
 same as to articles attached to a dwelling house as it is as to ma- 
 Big.Pebs.Pbop. — 19
 
 290 FIXTURES (Ch. 5 
 
 chines put into a factory. As bearing upon the question, "the nature of 
 the article and the object, the effect, and the mode of annexation are 
 all to be considered." Generally, the question whether an article at- 
 tached to a building belongs to the real estate is a mixed question of 
 law and fact. 
 
 The application of these principles to the facts of the present case 
 require us to sustain the rulings of the judge as to all the articles ex- 
 cept the gas stoves and the curtains. 
 
 It is contended that the gas fixtures should have been held to be 
 personal property as matter of law, on the authority of Guthrie v. 
 Jones, 108 Mass. 191, and Towne v. Fiske, 127 Mass. 125, 34 Am. 
 Rep. 353. In the opinion in each of these cases there is language 
 which goes beyond the decision and tends to support the plaintiff's 
 contention. The later case merely adopts the language of the earlier 
 one. But in each of the cases the question before the court was 
 whether the gas fixtures, upon the evidence, could be ruled as matter 
 of law to be a part of the realty. The decision was simply that they 
 could not. We have not been referred to any case in which the court 
 has decided that gas fixtures attached to a building and used with it 
 are, as matter of law, personal property. They may or may not be, 
 according to the facts and circumstances which tend to show that they 
 do or do not belong to the building, and were or were not intended 
 to remain with it as a part of it. As to the gas fixtures, the steam 
 radiators, the kitchen range and the window screens and the door 
 screens the judge was right in submitting the questions to the jury, 
 with proper instructions. Allen v. Mooney, 130 Mass. 155; Ridge- 
 way Stove Co. v. Way, 141 Mass. 557, 6 N. E. 714; Jennings- v. 
 Vahey, 183 Mass. 47, 66 N. E. 598, 97 Am. St. Rep. 409. 
 
 The gas stove and the window shades, running on rollers, stand 
 differently. It may be that certain apartment houses, or other dwell- 
 ing houses designed for occupation by tenants, are constructed in 
 some of our cities and intended to be used in such a way that the in- 
 troduction of such gas stoves and window shades by the owner, to go 
 with the house as a part of it, for use by the tenants, may hereafter 
 be proved at a trial. See Jennings v. Vahey, 183 Mass. 47, 66 N. E. 
 598, 97 Am. St. Rep. 409. It is entirely possible that the mode of 
 construction and use of certain kinds of houses may be such that arti- 
 cles of this kind will be made a part of the house for permanent re- 
 tention and use in the places where they are put. If it becomes a 
 practice to build and use houses in such a way these articles may be 
 put in as fixtures. As to the application of the law, we agree with 
 Lord Halsbury in what he said in Leigh v. Taylor, [1902] App. Cas. 
 157, 161, in regard to the decisions of the courts: "The facts have 
 been regarded in different aspects, according to the fashion of the 
 times, the mode of ornamentation, and the mode in which houses
 
 Sec. 1) -WHEN CHATTELS BECOME FIXTURES 291 
 
 were built, and the degree of attachment which from time to time be- 
 came necessary or not, according to the nature of the structure which 
 was being dealt with." 
 
 In the present case we discover no evidence to warrant the jury in 
 finding that the gas stove and window shades were a part of the realty. 
 
 50 far as appears, the building in question was an ordinary dwelling 
 house for a single family, and there is nothing to show that it was 
 intended to be occupied or used differently from common dwelling 
 houses. These were ordinary articles of merchandise, not peculiarly 
 fitted for use in this house, were of a standard pattern, loosely affixed, 
 and easily removed, and were of the nature of personal property. They 
 were put into the house by the mortgagor, and were of a kind of arti- 
 cles which usually are carried away by an outgoing occupant. There 
 was nothing to show that the owner intended to annex them as a per- 
 manent addition to the real estate. We think upon the evidence, the 
 judge was wrong in submitting to the jury the question whether tliey 
 were a part of the realty. 
 
 Exceptions sustained.^* 
 
 1* Storm doors and windows used on a house for several years go to the 
 real mortgagee. Roderick v. Sanboru, 106 Me. 159, 70 Atl. 203, 30 L. R. A. 
 (X. S.) 11^^9, 20 Ann. Cas. 4C0 (1909) : so screens and screen doors, E. M. Fish 
 Co. V. Young, 127 Wis. 149, 106 N. W. 795 (1906). I 
 
 Ranges and stoves were treated as not part of the realty in Lambard v. 
 Pilie, 33 Me. 141 (18.51); Jennings v. Vahey, 1S3 Mass. 47, 66 X. E. 59S, 97 
 Am. St. Rep. 409 (1903) ; Cosgrove v. Trosscher, 62 App. Div. 123, 70 X. Y. 
 Supp. 704 (1901) ; Harrison v. Women's Homeopathic Ass'n, 134 Pa. 558, 19 
 Atl. S04, 19 Am. St. Rep. 714 (1S90). They were treated as part of the realty 
 in Mouti v. Barnes, [1901] 1 Q. B. 205; Schaper v. Bibb, 71 -Md. 145, 17 Atl. 
 935 (1S!^9) ; Erdman v. Moore, 58 N. J. Law, 445, 33 Atl. 958 (1S9C) ; Union 
 Stove Works v. Klingman, 20 App. Div. 449, 46 X. Y. Supp. 721 (1)597). 
 
 Hot air, steam, and hot water heating apparatus \^ere treated as part of 
 the realty in Thielman v. Carr, 75 111. 3S5 (1S74); West v. Farmers' Mut. 
 Ins. Co., 117 Iowa, 147, 90 X. W. 523 (1902); Stebbins v. Culbreth, 86 Md. 
 056, 39 Atl. 321 (1898) ; United States Xat Bank v. Bonacum, 33 Xeb. 820, 
 
 51 X. W. 233 (1S92). 
 
 Ice bo.'ces were treated as not part of the realty in Griffin v. Jansen, 39 
 S. W. 43, 19 Ky. Law Rep. 19 (1897) ; as part of the realty, depending on size, 
 method of annexation, and purpose, in Scheifele v. Schmitz, 42 X. J. Eij. 700, 
 1 Atl. 698, 11 Atl. 257 (1887); Williams v. London, 61 Mi.sc. Rep. 494. 115 
 N. Y. Supp. 547 (1908) ; Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 
 255, S6 S. W. 310 (1904). 
 
 A mortgage of certain real estate, upon which was a theater was held, as 
 against cue claiming under the mortgagor to cover 1,500 theater chairs regu- 
 larly arranged and screwed in place in the theater, and ten large mirrors 
 imbedded in the plaster and held in place by wooden strips so molded as to 
 form a part of the general scheme of decoration. It was held not to cover 
 an engine and dynamos with their belting and piping, also wiring and switch- 
 boards, all of which had been installed to supply electricity as a temporary 
 substitute for the city supply, a very large electric chandelier, electric fans 
 screwed to the wall, and the stage scenery. Xew York Life Ins. Co. v. Al- 
 lison, 107 Fed. 179, 46 C. C. A. 229 (1901). 
 
 See U'Eyntouit y. Gregory, L. R. 3 Eq. 382 (1866); In re De Falbe, [1901] 
 1 Ch. 523.
 
 292 FIXTURES (Ch. 5 
 
 MILLER V. WILSON. 
 (Supreme Court of Iowa, 1SS7. 71 Iowa, 610, 33 N. W. 12S.) 
 
 [One Kinnersly owned land on which was a mill run by water power. 
 He sold it to Lee and Wilson reserving by contract a vendor's lien. 
 They determined to install steam power and bought machinery for 
 this purpose. They gave a first mortgage on the machinery to Miller 
 and a second mortgage on it to Fowler. This action is to settle the 
 rights of Kinnersly, Miller and Fowler in the machinery.] 
 
 SeevErs, J.^° * * * 'j'j-jg YiQxt question discussed by counsel is 
 whether, at the time Miller's mortgage was executed, the property 
 therein described was personal property. We find the fact to be that, 
 at the time the IMiller mortgage was executed, Wilson and Lee had 
 commenced a building on the real estate purchased of Kinnersly, and 
 about forty feet distant from the mill, in which the engine and boiler 
 were to be placed, and the former connected by a shaft with the ma- 
 chinery in the mill. We further find that, at the time the mortgage 
 was executed, none of the machinery was attached to the real estate, 
 nor had it been put in place. It seems to us that there is a preponder- 
 ance of evidence in favor of the proposition just stated. Counsel for 
 appellant have separated the act of annexation into five parts, and in- 
 sist — First, that the machinery was purchased to be annexed ; sec- 
 ond, it was the intention to annex it; third, it was shipped and de- 
 livered on the ground for that purpose ; fourth, commencement of 
 the work on its actual annexation ; fifth, actually connecting or put- 
 ting it together. The first three propositions will be conceded ; but 
 the last two, under the facts, we find cannot be regarded as having 
 occurred when Miller's mortgage was executed. That work had been 
 commenced for the purpose and with the intention of annexation will 
 be conceded, but the machinery, all of it, at that time, as we find, was 
 lying on the ground near the mill, or in it ; but none of it, as we have 
 said, was attached or put in place; and therefore, in accord with the 
 rule established in Sowden v. Craig, 26 Iowa, 156, 96 Am. Dec. 125, 
 and First Nat. Bank of Waterloo v. Elmore, 52 Iowa, 541, 3 N. W. 547, 
 the machinery and property described in the Miller mortgage must 
 be regarded as personal property, and said mortgage is the prior lien 
 thereon. The Fowler mortgage was executed about twenty days after 
 the one given to Miller; and, while there had in the mean time been 
 some work done in the direction of annexing such machinery to the 
 real estate, we think tliat under the cases above cited, and particularly 
 
 i» tart of tlie opinion is omitted.
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 293 
 
 the first one, such machinery cannot be regarded as real estate, and 
 therefore the judgment of the district court in giving Fowler the sec- 
 ond hen thereon is correct.^ ° * * * 
 
 RAHM V. DOMAYER. 
 
 (Supreme Court of Iowa, 1908. 137 Iowa, 18, 114 N. W. 5iG. 
 15 L. R. A. [N. S.] 727.) 
 
 Suit in replevin to recover building material. A demurrer to the pe- 
 tition was overruled, and, the defendant electing to stand on his de- 
 murrer, judgment was entered on the petition. The defendant appeals. 
 Affirmed. 
 
 Sherwin, J.^' The plaintiflF alleged in his petition that he was the 
 owner of certain finishing lumber, doors, and transoms which had 
 been placed by the defendant in an unfinished building for the purpose 
 of completing and finishing the same; that suitable and proper open- 
 ings for the doors and transoms in question had been left in the build- 
 ing ; and that said material, including the finishing lumber, was neces- 
 sary for the completion of the same, and that he became the owner of 
 such material by purchase of the real estate on which the building 
 was located. 
 
 The demurrer made the point that no cause of action was stated in 
 the petition, because it showed on its face that the lumber and ma- 
 terial was in no manner fastened to the building, and was therefore no 
 part thereof, and did not pass with the realty. The petition does state 
 that the material described was in no manner fastened to the building, 
 and the sole question for determination is whether it passed with the 
 general conveyance of the land. The question is an interesting one, 
 and the decisions thereon in the several jurisdictions are far from har- 
 monious. * * * 
 
 In Fletcher v. Kelly, 88 Iowa, 475, 55 N. W. 474, 21 L. R. A. '347, 
 Judge Kinney, speaking for the court, said : "The trend of modem 
 decisions is that, subject to the manner of annexation to the realty, 
 and to the use and purpose of the realty with which the thing in con- 
 troversy is connected, its character as a fixture or not is to be deter- 
 mined by the intention of the party making the annexation." The sub- 
 ject was again discussed in Thomson v. Smith, 111 Iowa, 718, 83 N. 
 W. 789, 50 L. R. A. 780, 82 Am. St. Rep. 541, and the same general 
 rule adhered to. See, also. Congregational Society v. Fleming, 11 
 Iowa, 533, 79 Am. Dec. 511. 
 
 18 Contra, Patton v. Moore, 16 W. Va. 428, 37 Am. Rep. 7S9 (ISSO). 
 1' Part of the opinion Is omitted.
 
 294 FIXTURES (Ch. 5 
 
 It is the undoubted holding of these and others of our own deci- 
 sions that the intention of the party making the annexation is the ques- 
 tion of controlling importance in all cases of this kind, and that physi- 
 cal attachment need be of no particular kind or degree, and that any 
 annexation which, however slight it may be, indicates the intent, is 
 sufficient to meet the demands of the rule. In 19 Cyc. 1036, atten- 
 tion is called to the diversity of opinion on the question, and it is said : 
 "But as physical annexation of a chattel alone is not always necessary 
 to its becoming part of the realty, and as physical annexation alone 
 does not necessarily make a part of the realty, but in either case other 
 circumstances may combine to prevent the one or the other, it is be- 
 lieved that the true rule is that articles not otherwise attached to the 
 realty than by their own weight are prima facie personalty, and arti- 
 cles affixed to the land in fact, although only slightly, are prima facie 
 realty, and that the burden of proof is on the one contending that 
 the former is realty or the latter is personalty." It seems to us that 
 such a rule would more nearlj' cover all cases than any other, and that 
 under it the actual intent would always be the controlling question, re- 
 gardless of where the burden of proof rested. This controlling in- 
 tention is that which the law deduces from all the circumstances of 
 the annexation, and not the secret intention with which it is annexed. 
 In the instant case the defendant owned an incomplete and unfinished 
 building. He bought and placed therein the material fitted and neces- 
 sary for the completion thereof, and with the intent to so use it. He 
 did not finish the building before he sold it with the land on which 
 it stood, and, when sold, the material was still in the building; and, 
 while it was only annexed thereto by its location and its own weight, 
 we think it passed with the conveyance. The following cases in other 
 jurisdictions sustain this view: Byrne v. Werner, 138 Mich. 328, 101 
 N. W. 555, 69 L. R. A. 900, 110 Am. St. Rep. 315; McLaughlin v. 
 Johnson, 46 111. 163; Hackett v. Amsden, 57 Vt. 432; 1 Kerr on 
 Real Prop. 154. And see cases cited in 19 Cyc. 1036, 1045. 
 
 We think the demurrer rightly overruled, and the judgment is af- 
 firmed.'* 
 
 18 Ace: Bvrne v. Werner, 138 Mich. 328, 101 N. W. 555, 69 L. R. A. 900, 
 110 Am. St. Rep. 315 (1904). 
 
 Contra: Blue v. Gunn, 114 Tenn. 414, S7 S. W. 40S, G9 L. R. A. 892, 108 
 Am. St Rep. 912, 4 Aim. Cas. 1157 (1904). 
 
 A. prepared storm windows for his house and put them in place for a 
 winter, without putting hooks on them or otherwise fastening them, and then 
 took them down. Held, they do not pass by a eonveyanfo of the house. Peck 
 V. Batchelder, 40 Vt. 233, 94 Am. Dec. 392 (1867). See Woodman v. Pease, 17 
 N. H. 282 (1845) ; Manchester v. Rundlett, 23 N. H. 271 (1851). 
 
 Material brought on the land to make a fence cannot be attached as per- 
 sonalty. Hackett v. .\msden, 57 Vt. 432 (1SS5). See Conklln v. Parsons, 2 
 Pin. (Wis.) 264 (1849). Contra : Cook v. Whiting, 16 III. 480 (1855) ; Longino 
 V. Wester (Tex. Civ. App.) 88 S. W. 445 (1905).
 
 Seel) WHEN CHATTELS BECOME FIXTURES 235 
 
 NOBLE V. BOSWORTH. 
 (Supreme Judicial Court of Massachusetts, 1837. 19 Pick. 314.) 
 
 Sh.wv, C. J. It will probably not be necessary to go much at lar^e 
 into the facts of this case, to explain the only material principle of 
 law on which it is decided. The action is trespass for taking and car- 
 rying away one iron kettle and two copper kettles. There are two 
 counts ; one, quare clausum, charging the taking away of the kettles 
 as aggravation ; the other, de bonis asportatis, in which tlie gravamen 
 is, the taking away and converting the same kettles. 
 
 The defendant, by deed of June 4, 1835, duly executed, acknowl- 
 edged and delivered, conveyed to the plaintiff a parcel of real estate, 
 on which was a dye-house, and in that dye-house were the kettles in 
 question. They were firmly set in brick work, and constituted a valua- 
 ble part of the estate, and were a part of the realty. By mutual agree- 
 ment, the grantor retained possession till April, 1836, at about which 
 time the kettles were taken down by the defendant and removed. The 
 deed conveys the premises, including the dye-house and appurtenances, 
 but making no mention of the kettles, either by expressly excepting 
 or including them. The deed was not delivered at the time of its date, 
 and probably not till some months after, but this is not material. 
 
 The defence relied upon was, that at the time the bargain was made 
 for a sale of the premises, by the defendant to the plaintiff, June 4, 
 1835, it was agreed by Bosworth, the owner of the dye-house with 
 one Chapin, to sell him the three kettles, that this was known to Noble, 
 and it was understood and agreed, that by the deed from Eosworth 
 to Noble, the kettles were not intended to be conveyed, and that al- 
 though the agreement between Bosworth and Chapin, from accidental 
 causes fell through and was not executed, yet that the property in the 
 kettles remained in the defendant, and did not pass by his deed to the 
 plaintiff. 
 
 This presents two questions: First, whether the deed, by its ordi- 
 nary effect and operation, transferred the property in these dye-ket- 
 tles ; and if so, then secondly, whether that effect can be controlled by 
 the parol agreement made before or at the time of the delivery of 
 the deed, that the kettles should not be considered as included in the 
 deed. 
 
 As to the first, whatever doubt there might be, if kettles were erected 
 in like manner by a tenant on the leased premises, for the purposes of 
 his trade, or by a mortgagor after the estate had been mortgaged, we 
 have no doubt, that where an owner erects a dye-house on his own land, 
 and sets up dye-kettles therein, firmly secured in brick work, they be- 
 come part of the realty, and pass by a deed of the land without ex-
 
 296 FIXTURES (Ch. 5 
 
 press words. The legal effect and operation of such a deed is to vest 
 tlie entire right and property in the kettles in the grantee. Union Bank 
 V. Emerson, 15 Mass. 159. 
 
 2. Then is it competent for the grantor to control or restrain this 
 legal effect, by proof of a parol agreement, made previously to or at 
 the time of the delivery of the deed? The Court are all of opinion, 
 that it is not. It would be as well contrary to the general rule of the 
 common law, which provides that the terms of an instrument in writ- 
 ing shall not be altered or controlled by a parol agreement, as against 
 the provision of the statutes, which requires that all rights and inter- 
 ests in real estate, shall be manifested by some instrument in writing, 
 and that no action shall be brought on any agreement for the sale of 
 lands, or any interest in or concerning the same, unless in writing. 
 St. 1783, c. 37, §§ 1, 2, 3. It is as much against these rules to admit 
 parol evidence, to prevent or restrain the legal inferences and conse- 
 quences of a deed, as to control and alter its express provisions. Pat- 
 tison V. Hull, 9 Cow. (N. Y.) 754. A deed passes all the incidents to 
 the land as well as the land itself, and as much when not expressed as 
 when they are. If the parol agreement were made before the execu- 
 tion and delivery of the deed, it is to be regarded as part of the nego- 
 tiation and discussion respecting the terms of the purchase and sale, 
 which is considered as merged and embodied in the deed itself as the 
 final and authoritative expression of the agreement and determination 
 of the parties on the subject. If it was made at the time of the de- 
 livery of the deed, then it must be deemed an exception, reservation or 
 defeasance, and being repugnant to the terms and effect of the deed, 
 it is void. 
 
 For tliese reasons, the Court are of opinion that the verdict, which 
 was for the defendant, must be set aside, and a new trial granted.'" 
 
 19 Ace. as to an attempted parol reservation of a barn. Leonard v. Clough, 
 133 N. Y. 292, 31 N. E. 93, 16 L. R. A. 305 (1802). Contra, Fiederick v. Devol, 
 15 Ind. 357 (1S60). 
 
 A. severed a large slab of stone from a ledge on his land intending to 
 remove the slab. He was unable to do so at the time but never abandoned 
 his intention. Later he conveyed the land to B. by deed excepting the slab 
 by parol. B. subsequently sold the slab to C. A. brought trover against C. 
 Held, the parol exception is admissible and the plaintiff may recover in 
 trover. Noble v. Sylvester, 42 Vt. 146 (1869). See, where there was no parol 
 exception, Fulton v. Norton, 64 Me. 410 (1875).
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 297 
 
 DAVIS V. EMERY. 
 
 (Supreme Judicial Court of Maine, 1870. 61 Me. 140, 14 Am. Rep. 553.) 
 
 ApplEton, C. J.^° This is an action of trover to recover the value 
 of a building to which the plaintiff claims title by a bill of sale in the 
 following words : 
 
 "$40.00 Newfield, Nov. 6, 1865. 
 
 "J. B. Davis bought of Elizabeth Emery one building 23 feet wide 
 and 50 feet long, now standing west of my house and barn. Said 
 building is to be moved off from where it now stands by the first of 
 May next. Price forty dollars. Received pay. 
 
 "Elizabeth Emery." 
 
 The building was not removed within the time specified. Upon the 
 foregoing writing the justice presiding instructed the jury that if they 
 found that the term limited in said writing was not extended prior to 
 the first of May, A. D. 1866, by the defendant, that the title to the 
 building would revest in the defendant, and that the plaintiff would not 
 have a right to go on and remove the same. 
 
 The plaintiff bought the barn and paid for it. As between the par- 
 ties to this suit it must be deemed personal property. The defendant 
 having sold it as such and received the price agreed upon cannot claim 
 it as a part of the realty. It stands precisely as if it had been a sale 
 of a cart or a wagon, which was to be stored by the seller for a specific 
 time, and which was not removed by the buyer within that time. The 
 title to the article sold and paid for would not be changed by the neg- 
 lect of the purchaser to remove it at the stipulated day. * * * 
 
 The law relating to fixtures, whether as between grantor and gran- 
 tee, mortgagor and mortgagee, or landlord and tenant, has no bearing 
 upon the question under consideration. As between the buyer and 
 seller the building was a personal chattel, which the purchaser was to 
 remove in a given time, and until that time it was to remain on the 
 seller's land. It was the simple case of a merchant storing goods for 
 a limited time for the purchaser, who had paid the price there- 
 
 Ty-\*« ^ '^ 'is 
 
 Exceptions sustained.-^ 
 
 Cutting, Ke\t, Dickerson, and Tapley, JJ., concur. Barrows, 
 Walton, and Danforth, JJ., dissent. 
 
 20 Tlie statement of facts, part of the opinion of Appleton, C. J., and the 
 dissenting opinion of Barrows, J., are omitted. 
 
 21 Ace. as to a parol sale of millstones to be removed from the mill. Bost- 
 wick V. Leach, 3 Day (Conn.) 476 (1S09). 
 
 Contra, brick wall of a building destroyed by fire. Meyers v. Sehemp, 67 
 111. 469 (1873) ; hay scales. Dudley v. Foote, 63 N. H. 57, 56 Am. Rep. 489 
 (1SS4). See, also, Davis v. Eastbam, SI Ky. 116 (1SS3). 
 
 A. erected a house on B.'s land under such circumstances that it became 
 a part of B.'s realty. B. agreed by parol that the house should be A.'s per-
 
 298 FIXTURES (Ch. 5 
 
 TYSON V. POST. 
 
 (Court of Appeals of New York, 1SS8. 108 N. Y. 217, 15 N. E. 316, 2 Am. St. 
 
 Rep. 409.) 
 
 Appeals from orders of the General Term of the Supreme Court 
 in the second judicial department, made May 14, 1885, which reversed 
 judgments in favor of plaintiffs, entered upon decisions of the court on 
 trial at Special Term. 
 
 These actions were brought to foreclose two purchase-money mort- 
 gages executed by defendant Cooney upon certain premises situate in 
 Queens county. 
 
 There was attached to the premises at the time of the sale and con- 
 veyance by the mortgagees and the execution of the mortgage the 
 plant and machinery of two marine railways, the use of which had 
 been abandoned. The controversy was as to these fixtures, of which 
 defendant Post claimed to be the owner. The negotiations for the 
 purchase were between plaintiffs and one Carroll, ' the conveyance 
 was made to Cooney as the nominee of Carroll. Defendant Post claim- 
 ed that he advanced the money to complete the cash payment required 
 by the contract of purchase under the understanding and oral agree- 
 ment of all the parties that he should have the title to said plant and 
 machinery and the right to remove them at any time from the premises. 
 
 Further facts appear in the opinion. 
 
 Andrews, J."^ The question whether the defendant Post acquired 
 title to the plant and machinery of the marine railways embraced in 
 the plaintift''s mortgage, as security for the $6,200 paid by him to the 
 plaintiff's at the request of Carroll, to enable the latter to complete 
 the first payment on the contract with the plaintiffs for the purchase of 
 the land, does not depend upon the character of the property, whether 
 real or personal, when placed upon the mortgaged premises. There 
 can be little doubt, however, that the machinery, shafting, rollers and 
 other articles became as between vendor and vendee and mortgagor 
 and mortgagee, fixtures and a part of the realty. McRea v. Central 
 Nat. Bk., 66 N. Y. 489. But, as by agreement, for tlie purpose of 
 protecting the rights of vendors of personalty, or of creditors, chattels 
 may retain their character as chattels, notwithstanding their annexa- 
 tion to the land in such a way as in the absence of an agreement would 
 
 sonal property. A. sold the house to C. as personal property. The land was 
 conveyed by B. to D., the latter knowing of A.'s understanding with 13. C. 
 removed the house. Held, D. may maintain an action of tort against C. for 
 this removal. Gibbs v. Estey, 15 Gray (Mass.) 587 (IStJO). Ace: Beeler v. C. 
 C. Mercantile Co., S Idaho, 614, 70 Pac. 9-13, 60 L. R. A. 2S3, 1 Ann. Cas. 310 
 (1902). Contra, Fuller v. Tabor, 39 Me. 519 (1855). 
 22 Part of the opinion is omitted.
 
 Sec. 1) WHEN CHATTELS BECOME FIXTURES 299 
 
 constitute them fixtures (Ford v. Cobb, 20 N. Y. 344 ; Sisson v. Hib- 
 bard, 75 N. Y. 542), so, also, it would seem to follow, that by conven- 
 tion, the owner of land may reimpress the character of personalty on 
 chattels which, by annexation to the land, have become fixtures ac- 
 cording to the ordinary rule of law, provided only that they have 
 not so incorporated as to lose their identity and the reconversion* does 
 not interfere with the rights of creditors or third persons. The plant 
 and machinery in question were personal property when placed on the 
 land, and the only issue presented is, did the plaintiffs agree with Post 
 that he might take the title to the plant and machinery for his se- 
 curity, free of the mortgage, and remove them at any time from the 
 mortgaged premises, thereby reimpressing the property with the char- 
 acter of personalty. In determining this question it does not seem to 
 us to be very material to inquire whether the deed from the plaintiffs 
 to Cooney (the nominee of Carroll), and the mortgage back embraced, 
 or was intended to embrace the plant and machinery. Post was not 
 a party to the instruments and is not concluded by them. The rights 
 of Post depend wholly upon his agreement with the plaintiffs, and if 
 they received his money upon the agreement that he should have the 
 plant and machinery, with the right to remove tliem without restriction 
 as to time, the agreement was valid although by parol, and even if it 
 contradicts the legal import of the mortgage, it being an agreement be- 
 tween different parties, it is not within the rule which forbids parol evi- 
 dence to contradict a written instrument. * * * 
 
 The orders of the General Term, should, therefore, be affirmed, and 
 judgments absolute directed in accordance with the stipulations. 
 
 GUERNSEY v. PHINIZY. 
 
 (Supreme Court of Georgia, 1901. 113 Ga. 898, 39 S. E. 402. 84 Am. St. 
 
 Rep. 270.) 
 
 Simmons, C. J.-" It appears from the record that 'Mrs. Guernsey 
 and Mervey S. Hoadley owned a lot of land in the city of Augusta. 
 On the lot was a brick building. They offered the property for sale 
 through an agent, and by him it was sold to Phinizy at the price of 
 $16,000. Prior to this the vendors had given a security deed to Stet- 
 son, the latter giving them a bond for titles to reconvey upon the pay- 
 ment of the money loaned. By the contract of sale this security deed 
 was to be paid off and the property reconveyed before Phinizy was 
 to pay for it in full. Considerable delay occurred by reason of the 
 loss of the bond for titles made by Stetson, the latter refusing to re- 
 
 23 Part of the opinion is omitted.
 
 300 FIXTURES (Ch. 5 
 
 convey until the bond was produced or a bond of indemnity given him. 
 Pending the negotiations the house was accidentally destroyed by fire. 
 After the fire it appears that the vendors undertook to rescind the 
 contract of sale. Phinizy refused to rescind, and tendered for tlie 
 lot a certain amount of money, less than the original contract price. 
 This' was refused, the vendors demanding the full contract price. 
 Thereupon the vendee filed an equitable petition, setting out these facts, 
 and praying a specific performance of the contract, and that a deduc- 
 tion be made because of the destruction by fire of the improvements 
 upon the lot. Upon the trial the jury found that, at the time the 
 contract was entered into, the land itself, without the improvements 
 was worth $8,000, and that since the fire the vendee had tendered 
 that amount for the land. The court decreed that the plaintiff should 
 pay to the vendors the sum of $8,000, and that they should make him 
 a deed to the land and remove therefrom certain incumbrances, in- 
 cluding that of Stetson. This verdict and decree were not excepted 
 to by either party, but, between the rendition of the verdict and the 
 making of the decree, a dispute arose as to the ownership of the brick 
 left upon the lot after the fire. It .appears that some of these brick 
 constituted a part of the remaining foundations of the building, while 
 the remainder were part of the debris which had fallen and which 
 remained on the land after the fire. The defendants amended their 
 answer, after verdict, by setting out these facts and praying that the 
 brick be decreed to belong to them. Phinizy resisted this by a de- 
 murrer and by an answer. The court decided that the brick belonged 
 to Phinizy. * * * The defendants excepted to the decree as to 
 the ownership of the brick. * * * 
 
 1. Whatever may be the law of fixtures with regard to articles not 
 firmly annexed to the soil, it is clear that when the owner of land 
 uses brick, lumber, and other personalty for the construction of a sub- 
 stantial and permanent building upon his land, they become a part of 
 the realty. Brick, though personal property before they are put in 
 the house, become afterwards attached to and a part of the land and 
 so remain until severed and reconverted into personalty by the own- 
 er. If a' house of brick be destroyed by accident and the walls fall, 
 the brick may be converted into personalty by any act of the owner 
 which evidences his intention to so sever them. As long, however, as 
 tlie owner leaves them as they have fallen, some of them in the founda- 
 tion walls and some scattered over the land, they remain real property 
 and a part of the land. In the case of Rogers v. Gilinger, 30 Pa. 185, 
 72 Am. Dec. 694, it appeared that a house was blown down by a storm, 
 the lumber of which it had been composed falling upon the land. Sub- 
 sequently the land was sold, and a contest arose over the ownership 
 of this lumber. It was held that the lumber remained realty and a 
 part of the land, and passed, with the land, to the vendee. In the
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 301 
 
 opinion Mr. Justice Strong said : "What, then, is the criterion by which 
 we are to determine whether that which was once part of the realty has 
 become personalty on being detached ? Not capability of restoration to 
 the former connection with the freehold, as is contended, for the tree 
 prostrated by the tempest is incapable of re-annexation to the soil, 
 and yet it remains realty. The true rule would rather seem to be that 
 that which was real shall continue real until the owner of the free- 
 hold shall, by his election, give it a different character." This deci- 
 sion was cited, approved, and followed in Leidy v. Proctor, 97 Pa. 
 486, the court holding that timber which had fallen but which had not 
 been converted into rails, etc., by the owner, passed to the purchaser 
 as a part of the realty. The case of Rogers v. Gilinger is also cited 
 with approval in Washb. Real Prop. (5th Ed.) 16; 4 Shars. & Budd, 
 Lead. Cas. Real. Prop. 518; 1 Kerr, Real Prop. 96. In the present 
 case the record does not disclose that the vendors of the premises sev- 
 ered the bricks from the land or did any act evincing an intention to 
 reconvert them into personalty. We think that the brick remains, 
 therefore, a part of the realty, and that the judge did not err in holding 
 that they belonged to the purchaser. * * * 
 Judgment affirmed.^* 
 
 SECTION 2.— ANNEXATION TO THE LAND OF ANOTHER 
 I. Landlord and Tenant 
 
 WYSTOW'S CASE. 
 (Court of Common Pleas, 1523. Y. B. 14 Hen. VTII. 2.5 b.) 
 
 In trespass brought by Wystow de Graces June for the taking of a 
 mill stone. To which the defendant says that the Abbott of Saint 
 Albons was seised of the manor of Redbome in the County, etc., be- 
 fore the trespass and at the time was seised of the said manor in fee 
 ut in jure Domus, and that the said Wystow held a building of the 
 said Abbott as of the said manor by certain service and suit at the mill 
 of the said Abbott within tlie said manor, and for non feasance of the 
 
 2* Ace: Rogers v. Gilinger, 30 Pa. 185, 72 Am. Dec. 694 (1858); Patton v. 
 Moore, 16 W. Va. 428 (ISSO). 
 
 See BuclJout v. Swift, 27 Cal. 433, 87 Am. Dec. 90 (1865) ; Triplett v. Mays, 
 13 Ky. Law Rep. 874 (1892).
 
 302 FIXTURES (Ch. 5 
 
 suit he distrained the said millstone. To which the plaintiff says, the 
 said millstone was affixed to a large piece of timber by nails and strips, 
 etc., so as to his claim, he could not take it as a distress. 
 
 Brundel. Your plea is not good. Notwithstanding that it was 
 affixed to a piece of timber still he could take them as a distress ; 
 but if you wish to help yourself upon your matter you ought to show 
 that within the said building you had a horse mill which was annexed 
 to the said building and that the said millstone was parcel of the mill 
 for which he so made it. To which the defendant said that the stone 
 was severed from the mill, that is to say, that the mill [sic] was pick- 
 ing the stone at the time of the distraint. Wherefore, etc. And it 
 was held that notwithstanding that it was severed he can not distrain 
 for this remains parcel of the mill, for all the time it was lying on the 
 other stone, and notwithstanding that it was taken up to be picked and 
 improved it is still parcel of the mill ; as one may distrain windows but 
 not doors altho they hang upon hooks and are renioveable. 
 
 And FiTZHERBERT said that altho they brought the millstone into 
 the house to be picked and so separated from the hearth and floor, still 
 the lord could not distrain it because it is a matter for the common 
 welfare ; but if it was another millstone laid there he could distrain this 
 well enough and so of the windows and doors, etc. Query as to the 
 anvil of a smith for it seems all one if it be that he is using it altho it 
 may be out of the base.^° 
 
 POOLE'S CASE. 
 (Nisi Prius, 1703. 1 SallJ. 3GS.) 
 
 Tenant for years made an under-lease of a house in Holborn to J. S., 
 who was by trade a soap-boiler. J. S., for tlie convenience of his trade, 
 put up vats, coppers, tables, partitions, and paved the back-side, etc. 
 And now upon a fieri facias against J- S., which issued on a judgment 
 in debt, the sheriff took up all these things, and left the house stripped, 
 and in a ruinous condition ; so that the first lessee was liable to make 
 it good, and thereupon brought a special action on the case against the 
 sheriff, and those that brought the goods, for the damage done to the 
 house. Et per Holt, C. J., it was held — 
 
 1st, That during the term the soap-boiler might well remove the vats 
 he set up in relation to trade, and that he might do it by the common 
 law (and not by virtue of any special custom) in favor oi trade and to 
 encourage industry: But after the term they become a gift in law to 
 him in reversion, and are not removable. 
 
 26Aec.: Darby v. Harris, 1 Q. B. S95 (1841); Turner v. Cameron, L. R. 
 5 Q. B. 306 (1870) ; Kassing v. Keoliane, 4 111. App. 460 (1S79). Contra, Spen- 
 cer V. Darlington, 74 Pa. 286 (1873).
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 303 
 
 2dly, That there was a difference between what the soap-boiler did 
 to carry on his trade, and what he did to complete the house, as hearths 
 and chimney-pieces, which he held not removable. 
 
 3dly, That the sheriff might take them in execution, as well as the 
 under-lessee might remove them, and so this was not like tenant for 
 years without impeachment of waste ; in that case he allowed the sher- 
 iff could not cut down and sell, though the tenant might : And tlie rea- 
 son 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 pow- 
 er, as tenant for 3'ears hath in standing-corn, in which case the sheriff 
 can cut down and sell.-" 
 
 ELWES V. MAW. 
 
 (Court of King's Bench, 1802. 3 East, 38.) 
 
 Lord EllEnborough, C. J.,^' now delivered the opinion of the 
 Court: This was an action upon the case in the nature of waste by a 
 landlord, the reversioner in fee, against his late tenant who had held 
 under a term for 21 years a farm consisting of a messuage, and lands, 
 outhouses, and barns, etc., thereto belonging, and who, as the case re- 
 served stated, during the term and about fifteen years before its expi- 
 ration, erected at his own expence a beasthouse, carpenter's shop, a 
 fuel house, a cart house, a pump house, and fold yard. The buildings 
 were of brick and mortar, and tiled, and the foundations of them were 
 about a foot and half deep in the ground. The carpenter's shop was 
 closed in, and the other buildings were open to the front and supported 
 by brick pillars. The fold yard wall was of brick and mortar, and its 
 foundation was in the ground. The defendant previous to the expira- 
 tion of his lease pulled down the erections, dug up the foundations, and 
 carried away the materials ; leaving the premises in the same state as 
 when he entered upon them. The case further stated that these erec- 
 tions were necessary and convenient for the occupation of the farm, 
 which could not be well managed without them. And the question for 
 the opinion of the Court was. Whether the defendant had a right to 
 take away these erections? Upon a full consideration of all the cases 
 cited upon this and the former argnment, which are indeed nearly all 
 that the books afford materially relative to the subject, we are all of 
 opinion that the defendant had not a right to take away these erections. 
 
 Questions 'respecting the right to what are ordinarily called fixtures, 
 
 2 6 Compare Peniberton v. Kinj?. 2 Dev. (13 N. C.) 376 (18.30). 
 
 A. owned a house in fee. He built therein set pots, ovens, and ranges. 
 Held, these articles could not be taken under a fieri facias in a judgment ob- 
 tained against A. Winn v. Ingleby, 5 B. & Aid. 625 (1822). 
 
 2' The statement of facts and part of the opinion are omitted.
 
 304 FIXTURES (Ch. 5 
 
 principally arise between three classes of persons. 1st. Between differ- 
 ent descriptions of representatives of the same owner of the inherit- 
 ance ; viz. between his heir and executor. In this first case, i. e., as be- 
 tween heir and executor, the rule obtains with the most rigour in fa- 
 vour of the inheritance, and against the right to disannex therefrom, 
 and to consider as a personal chattel, any thing which has been affixed 
 thereto. 2dly, Between the executors of tenant for life or in tail, and 
 the remainder-man or reversioner; in which case the right to fixtures 
 is considered more favourably for executors than in the preceding case 
 between heir and executor. The 3d case, and that in which the great- 
 est latitude and indulgence has always been allowed in favour of the 
 claim to having any particular articles considered as personal chattels 
 as against the claim in respect of freehold or inheritance, is the case 
 between landlord and tenant. 
 
 But the general rule on this subject is that which obtains in the first- 
 mentioned case, i. e., between heir and executor; and that rule * * * 
 is that where a lessee, having annexed any thing to the freehold during 
 his term, afterguards takes it away, it is waste. But this rule at a very 
 early period had several exceptions attempted to be engrafted upon it, 
 and which were at last effectually engrafted upon it, in favour of trade 
 and of those vessels and utensils which are immediately subservient to 
 the purposes of trade. * * * Wg find Lord Holt, in Poole's Case, 
 Salk. 368, laying down, (in the instance of a soap-boiler, and under ten- 
 ant, whose vats, coppers, etc., fixed had been taken in execution, and 
 on which account the first lessee had brought an action against the 
 sheriff,) that during the term the soap-boiler might well remove the 
 vats he set up in relation to trade ; and that he might do it by tlie com- 
 mon law, and not by virtue of any special custom, in favour of trade, 
 and to encourage industry; but that after the term they became a gift 
 in law to him in reversion, and were not removable. He adds, that 
 there was a difference between what the soap-boiler did to carry on his 
 trade, and what he did to complete his house, as hearths and chimney 
 pieces, which he held not removeable. The indulgence in favour of 
 the tenant for years during the term has been since carried still fur- 
 ther, and he has been allowed to carry away matters of ornament, as 
 ornamental marble chimney pieces, pier glasses, hangings, wainscot 
 fixed only by screws and the like. Beck v. Rebow, 1 P. Wms. 94 ; Ex 
 parte Quincey, 1 Atk. 477; and Lawton v. Lawton, 3 Atk. 13. But no 
 adjudged case has yet gone the length of establishing that buildings 
 subservient to purposes of agriculture, as distinguished from those of 
 trade, have been removeable by an executor of tenant for life, nor by 
 the tenant himself who built them during his term. * * * 
 
 In the case in Buller's Nisi Prius, 34, of Culling v. Tuffnell, before 
 Lord Ch. J. Treby, at Nisi Prius, he is stated to have holden that the 
 tenant who had erected a barn upon the premises, and put it upon pat-
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER J?0o 
 
 tens and blocks of timber lying upon the ground, but not fixed in or to 
 the ground, might by the custom of the country take them away at the 
 end of his term. To be sure he might, and that without any custom ; 
 for the terms of the statement exclude them from being considered as 
 fixtures; "they were not fixed in or to the ground." * * * As to 
 the case of Penton v. Robart, 2 East, 88, it was the case of a varnish 
 house, with a brick foundation let into the ground, of which the wood 
 work had been removed from another place, where the defendant had 
 carried on his trade with it. It was a building for the purpose of trade ; 
 and the tenant was entitled to the same indulgence in that case, which, 
 in the cases already considered, had been allowed to other buildings 
 for the purposes of trade ; as furnaces, vats, coppers, engines, and the 
 like. And though Lord Kenyon, after putting the case upon the 
 ground of the leaning which obtains in modern times in favour of the 
 interests of trade, upon which ground it might be properly supported, 
 goes further, and extends the indulgence of the law to the erection of 
 green houses, and hot houses by nurserymen, and indeed by implica- 
 tion to buildings by all other tenants of land ; there certainly exists no 
 decided case, and, I believe, no recognized opinion or practice on either 
 side of Westminster Hall, to warrant such an extension. The Nisi 
 Prius case of Dean v. Allaly (reported in Mr. W'oodfall's book, p. 207, 
 and Mr. Espinasse's, 2 Vol. 11) is a case of the erection and removal 
 by the tenant of two sheds, called Dutch barns, which were, I will as- 
 sume, unquestionably fixtures. Lord Kenyon says, "the law will make 
 the most favourable construction for the tenant, where he has made 
 necessary and useful erections for the benefit of his trade or manufac- 
 ture, and which enable him to carry it on with more advantage. It has 
 been so holden in the case of cyder mills, and other cases; and I shall 
 not narrow the law, but hold erections of this sort made for the benefit 
 of the trade, or constructed as the present, to be removable at the end 
 of the term." Lord Kenyon here uniformly mentions the benefit of 
 trade, as if it were a building subservient to some purposes of trade ; 
 and never mentions agriculture, for the purposes of which it was 
 erected. He certainly seems, however, to have thought that buildings 
 erected by tenants for the purposes of farming, were, or rather ought 
 to be. governed by the same rules which had been so long judicially 
 holden to apply in the case of buildings for the purposes of trade. 
 But the case of buildings for trade has been always put and recognized 
 as a known, allowed exception from the general rule, which obtains as 
 to other buildings; and the circumstance of its being so treated 
 and considered establishes the existence of the general rule to which it 
 is considered as an exception. To hold otherwise, and to extend the 
 rule in favour of tenants in the latitude contended for by the defend- 
 ant, would be, as appears to me, to introduce a dangerous innovation 
 into the relative state of rights and interests holden to subsist between 
 Big.Pess.Prop. — 20
 
 306 FIXTURES (Ch. 5 
 
 landlords and tenants. But its danger or probable mischief is not so 
 properly a consideration for a court of law, as whether the adoption of 
 such a doctrine would be an innovation at all : and, being of opinion 
 that it would be so, and contrary to the uniform current of legal au- 
 thorities on the subject, we feel ourselves, in conformity to, and in suf>- 
 port of those authorities, obliged to pronounce that the defendant had 
 no right to take away the erections stated and described in this case. 
 Postea to the plaintiff.^* 
 
 WHITEHEAD v. BENNETT. 
 
 (Court of Chancery, 1S58. 27 L. J. N. S. Cb. 474.) 
 
 This suit was instituted for the administration of the estate of W. 
 Barker. A portion of the property consisted of certain plots of land 
 near Manchester, upon which there was a building that had been used 
 as a lunatic asylum. The receiver who had been appointed by the 
 Court, entered into an agreement, dated the 19th of September, 1852, 
 with W. Ireland, whereby it was agreed that a lease of the "buildings 
 and premises should be granted to W. Ireland for the term of twenty- 
 one years, at a rent of £42 per annum, with a covenant on the part 
 of the said W. Ireland to repair the premises. Under this agreement 
 Ireland took possession of the premises, and converted the building 
 thereon into a cotton-mill, and he also erected on the land a bleaching- 
 house, a drying stove, a dye-house, an engine-house, and a lime-house, 
 and also a building erected upon cross beams, resting upon two walls, 
 and forming a passage. A dispute aftenvards arose as to the terms 
 of the lease, and the lessee claimed a right to remove the buildings 
 which he had erected, on the ground that they were trade fixtures, 
 used for the purpose of his business. An injunction was obtained 
 to restrain the removal of the buildings ; and upon a reference to 
 chambers, evidence was obtained as to the nature of the buildings, and 
 from the report of a gentleman competent in such matters, who had 
 been sent down by the Court to examine the premises, it appeared 
 that tlie various buildings erected by the lessee were made of brick, 
 with brick foundations let into the soil to the depth of from five inches 
 to five feet. The question now came on upon an adjournment from 
 chambers, as to the right of the tenant to remove the buildings. 
 
 KiNDERSLEY, V. C. My opinion is, that these are not trade build- 
 ings, removable at tlie pleasure of the tradesman. It is extremely dif- 
 
 28 A tenant, a market gardener, planted 1,200 fruit trees and erected glass 
 houses for the purpose of raising fruit and vegetables. Held, he may remove 
 the glass houses, but not the trees. Mears v. Callender, [1901] 2 Ch. 3SS. 
 See Van Ness v. Pacard, 2 Pet. 137, 7 L. Ed. 374 (1S29).
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 307 
 
 ficult to come to a conclusion upon the authorities as to any principle 
 which can be safely enunciated. I have carefully considered the sub- 
 ject as to the possibility of deducing any rule from the cases cited, 
 but have been unable to do so. Still there are, no doubt, general prin- 
 ciples upon which these cases are founded. In the first place, the ques- 
 tion has arisen between the executor and the heir ; and, secondly, be- 
 tween the tenant for life and the remainderman ; and, lastly, between 
 the landlord and tenant. Again, there have been dififerent views taken 
 by the Court with reference to agricultural buildings, trade buildings 
 and the ordinary fixtures which a tenant puts in for his own con- 
 venience. In this case the most favourable instance arises, namely, 
 the right of removal as between landlord and tenant; and, moreover, 
 the things sought to be removed are of the most favourable character, 
 as being trade fixtures in the sense that they are buildings erected for 
 the exclusive purposes of trade. With respect to anything in the 
 nature of machiner}', engines, or plant, or things substantial and solid, 
 such as vats, utensils, etc., these are all clearly within the right of 
 removal as between landlord and tenant. In all these cases, the things 
 sought to be removed might either be taken away bodily, where they 
 are capable of being set up again elsewhere, or if, by reason of their 
 bulk or complexity, it should be necessary to take them to pieces, they 
 could be put together in the same form in some other place. There 
 is no dispute about the right of the tenant to remove such fixtures 
 when they retain the general character of trade fixtures. Take the 
 case, for instance, of a large steam-engine, which it is impossible to 
 remove in its integral -condition, yet the right of removal will apply 
 to such an article, notwithstanding that you must take it to pieces. 
 It certainly may be metaphysically argued from this, that a building 
 of the most substantial and solid character, let ten feet into the ground, 
 with cement, is capable of removal, brick by brick, and of being put 
 together in another place in the same form; but the common sense 
 of mankind would determine that an engine is a very different thing 
 from a house, although every stone, brick, tile and chimney-pot might 
 be removed ; one, however, is the case of removal of materials, and 
 the other of taking to pieces and restoring to their former state, actual 
 portions of tlie engine. It would be impossible to admit the validity 
 of such an argument without laying down a rule never intended to 
 be enunciated, and which would alter the broad distinction between 
 trade fixtures and buildings used in trade. Suppose tlie case of a 
 building or utensil which, by the rule of law, a tenant might remove 
 as a trade fixture, if there is anything which is a mere accessory or 
 adjunct to it, and has no other existence or purpose, then if you may 
 remove tlie principal thing, you may also remove the accessory. 
 
 Among the many cases upon this subject, there is not one which 
 has determined that even in the most favourable circumstances of
 
 ;{0S FIXTURES (Ch. 5 
 
 landlord and tenant, a tenant has a right to remove any building which 
 he has erected, merely because it is used only for the purpose of 
 trade; and if the argument used in this case is allowed to prevail, 
 it can only do so in such a manner as may be followed up to its legiti- 
 mate consequences, and it would be laying down a rule that whatever 
 a tradesman erected, however substantial, and however firmly let into 
 the freehold, yet if the identity is preserved, the tenant might remove 
 it. Such a rule is established nowhere. Not only is there no such de- 
 cision, but there is not even a dictum that can bear any such construc- 
 tion. The strongest authority is the case of Elwes v. Maw, which 
 was a case of agricultural fixtures, and certainly in that case there 
 are dicta which appear distinct at first sight, and if it could be found 
 that Lord Ellenborough ever laid down such a rule of law as that 
 which has been contended for in this case on behalf of Mr. Ireland, 
 I should gladly have followed it, but I can find no such decision. It 
 is evident that those dicta refer only to the particular case in ques- 
 tion. 
 
 Assuming, then, that these buildings were erected solely for the pur- 
 poses of trade, has the tenant a right to remove them ? and are they 
 capable of removal ? There is no law, practice or authority, having 
 regard to the nature of these buildings, to justifv the Court in say- 
 ing that they come within the description of trade fixtures so as to 
 bring them within the cases cited. If they are to be considered, it 
 w-ould be laying down a verv alarming rule, not only generally, but 
 particularly with respect to that district of the north of England, in 
 Lancashire and Yorkshire, where the most valuable structures, involv- 
 ing enormous expense, and constituting the whole value of the land, 
 are built for the sole purpose of trade. No doubt great favour has 
 been shewn, and should always be shewn, towards trade, and the 
 modern cases have relaxed the rigour of the old authorities in this re- 
 spect, but some limit must be put to this indulgence, and tlie cases seem 
 to me to have gone quite as far as they ought to go. The question, 
 then, turns upon the nature of these particular buildings. With re- 
 spect to that which is erected upon the walls forming a passage, it 
 is incapable of being removed in an integral condition, and the same 
 observation applies to the engine-house, although it may in some sense 
 be called an accessory to the engine. But it is not a mere shed ; on 
 the contrary, it is a brick building, let into the soil. Take the common 
 case of those gigantic buildings which are raised story after story, fitted 
 with spinning- jennies, drums, wheels, &c., which can only be used in 
 such a building. It is clear, ex concessis, that you might remove the 
 machinery, or the engine, however large, which is usually in the lower 
 portion, and which works the whole machinery; but if the argument 
 as to accessories were carried out, you might allow the entire build- 
 ing to be removed, and it is impossible to see where such a doctrine
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 309 
 
 would stop. The present case is precisely the same on a smaller scale ; 
 and with respect to all and each of tliese buildings, my opinion is, 
 that they cannot be brought within the proper legal definition of trade 
 fi.xtures, removable by the tenant. "'' 
 
 BROWN V. RENO ELECTRIC LIGHT & POWER CO. 
 
 (Circuit Court of the United St<ites, District of Nevada, 1S93. 55 Fed. 229.) 
 
 Hawley, District Judge. ^° This action was brought to recover $5,- 
 000 damages, alleged to have been sustained by plaintiff by the breach 
 of certain covenants in a lease. On May 1, 1887, the plaintiff, being 
 the owner of certain land bordering on the Truckee river, in Washoe 
 county, contracted with one J. L. Stevenson to put a dam in the river, 
 to construct a flume, ditch, and tail race, and to dig and construct at 
 the end of said ditch a "penstock of the dimensions required for a 
 48-inch Left'el wheel," and to "put in place in full working order in 
 said described penstock one Left'el water wheel, 48 inches in size, and 
 sufficient to develop not less than 60 horse power." This work was. 
 in due time, completed by Stevenson, and paid for by plaintiff. On 
 May 2, 1887, plaintiff gave a lease to Stevenson of said land, including 
 "the appurtenances which comprise the water power, ditch flumes, 
 dams, Leffel turbine wheel of 48 inches diameter, and tail-race ditch 
 now about to be made and erected," by said Stevenson, for the term of 
 five years, at a fi.xed monthly rental. It was, among other things, cov- 
 enanted in said lease that if Stevenson at any time during the first 
 three years of the lease should desire to purchase the leased premises 
 for $13,000. the plaintiff would convey the same to him, "together with 
 all the appurtenances, inclusive of water-power ditch, flumes, dams, 
 wheel, tail-race ditch, and all buildings and erections of what kind or 
 nature soever in and upon the said demised premises, excepting such 
 
 -■' Ace. as to a baiter's oven. Collamore v. Gillis, 149 Mass. 578, 22 N. 
 E. 46. 5 L. R. A. 150, 14 Am. St. Rep. 460 (1SS9). Contra, Baker v. McClurg. 
 19S 111. 28, 64 N. E. 701. 59 L. R. A. 131, 92 Am. St. Rep. 261 (1902). See 
 Onibou.v V. Jones. 19 N. Y. 2.34 (1859). 
 
 A tenant erected a small one-story bricU building for trade purposes, sa.v- 
 ing, inter alia, that he knew that it would belong to the landlord at the close 
 of the lease. Held, he cannot remove it. Linahan v. Barr. 41 Conn. 471 
 (1874). 
 
 .\ tenant cut away part of the floors in a five-story building and tilled the 
 space with a large cold-storage chamber. Held, this is not taxable as per- 
 sonal propertv belonging to the tenant. Squire & Co. v. City of Portland, 106 
 Me. 234. 76 Atl. 679, .30 L. R. A. (N. S.) 576, 20 Ann. Cas. 003 (1909). 
 
 A stair case, inserted by cutting away part of the floor, is removable by 
 the tenant. Seeger v. Pettit, 77 Pa. 437, IS Am. Rep. 452 (1S75). 
 
 "■0 Part of the opinion is omitted.
 
 310 FIXTURES (Ch. 5 
 
 buildings as may be erected by tenants of the lessee during the cur- 
 rency of this lease." It was furtlier covenanted that said Stevenson 
 would "keep all buildings, erections, water wheels, flumes, dams, ditch- 
 es, tail-race ditches, etc., upon the demised premises in good substan- 
 tial repair during the whole term of this lease, and that at the expira- 
 tion of said term, * * * will quit and surrender the said premises 
 and all appurtenances (repeating here the words in italics above) in as 
 good state and condition as reasonable use and wear thereof will per- 
 mit." When the lease was executed it was understood by the parties 
 thereto that the leased premises were to be used in the nighttime for the 
 purpose of producing or creating water power to be used in running 
 and operating an electric light plant for the purpose of lighting lamps 
 in the town of Reno. The clause in italics was not in the original draft 
 of the lease, but was inserted at the request of Stevenson, so as to en- 
 able him to sublet the premises in the daytime for other purposes, and 
 to enable such tenants to remove such buildings and erections as they 
 might construct or put upon said premises for their own uses. The 
 lease was assigned to defendant on the 20th day of October, 1888, and 
 the leased premises were never used for any other purpose than that 
 of operating an electric light plant. The defendant is entitled to the 
 same rights and privileges, and is subject to the same conditions and 
 liabilities, as the original lessee. 
 
 Prior to the assignment of the lease Stevenson erected upon the 
 premises a substantial dynamo house, boarded up at the ends, and ceil- 
 ed on the inside with dressed ceiling lumber. This building stood upon 
 a solid stone wall foundation laid with mortar, and within the building 
 were placed two dynamos. A boiler house was constructed of rough 
 lumber, the sills being laid on stone and blocks, and an engine and 
 boiler were placed therein. A shaft house or shed was built mostly of 
 old lumber taken from old buildings that were on the leased premises. 
 Connecting the dynamos with the Leftel wheel was a line shaft 29 feet 
 long and 4% inches in diameter, upon which wheels pulleys, belts, etc., 
 were placed so as to transmit the water power for tlie purpose of run- 
 ning the machinery and generating the electric light. This shaft rested 
 upon five trestles, the bottom timbers of which were solidly imbedded 
 in the earth about two feet deep. All of these buildings, with the ma- 
 chinerj' therein, were removed by the defendant. The work of tearing 
 down the buildings and displacing the machinery commenced about the 
 25th of April, 1892, and continued daily until all the buildings were 
 torn down and the machinery removed from its connections. The 
 lease expired ]\Iay 1st. There is considerable conflict in die evidence 
 as to when the work of tearing down the buildings was completed. I 
 think the evidence shows that the buildings were torn down, and the 
 machinery loosened from its connections, and portions thereof removed 
 from the premises, prior to Uie expiration of the lease. The main
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 311 
 
 shaft and one of the driving wheels attached to it was not taken out 
 until May 2d or 3d and portions of the materials, lumber, etc., from 
 the buildings, and portions of the machinery that had been taken out 
 of the buildings, were not removed from the premises until the 4th or 
 5th of Alay. 
 
 The first, and most important, question is whether the defendant had 
 the right to remove the buildings and machinery erected, constructed, 
 and placed upon the leased premises by the lessee, as trade fix- 
 tures. * * * 
 
 That the buildings and machinery removed by the defendant were 
 what are known as "trade fixtures" seems to me very clear. They 
 were part of the electric plant, separate from and independent of tlie 
 penstock and Leffel wheel, which were placed upon the premises at the 
 expense of the owner of the land. The dam, ditch, flume, penstock, 
 Lefifel wheel, and tail race were constructed, and put in place under 
 the contract for the purpose of creating a water power sufficient to 
 run and operate an electric plant. Without that power it is fair to as- 
 sume that neither Stevenson nor the defendant would have leased the 
 premises. With it they were willing to rent the premises, and at their 
 own expense they put in such machinery and erected such buildings as 
 enabled them to run and operate the electric plant, and supply the town 
 of Reno with electric lights. It is not reasonable to believe, in the ab- 
 sence of any express covenant to the contrary, that the lessee would 
 have incurred the expense of erecting the buildings and procuring the 
 necessary machinery to connect with die water power furnished by the 
 lessor, unless he had the privilege of removing the same during the 
 term or at the expiration of the lease. The right of removing trade 
 fi.xtures should be liberally construed in favor of the tenant. There is 
 no presumption that the tenant intended to make the buildings and ma- 
 chinery erected and put in place by him at his own expense a permanent 
 accession to the freehold. On the other hand, if inferences and pre- 
 sumptions are to be indulged in, it is manifest that such was not the in- 
 tention of the tenant. As was said by the supreme court of New York 
 in Watts-Campbell Co. v. Yuengling, 51 Hun, 302, 3 N. Y. Supp. 869, 
 affirmed in 125 N. Y. 1, 25 N. E. 1060, and quoted with approval in 
 Havens v. Electric Light Co., 17 N. Y. Supp. 580, where it was held 
 that machinery placed by an electric light company in a building erect- 
 ed by it on the leased lands does not become part of the realty : 
 
 "It is largely a question of intention whether machinery' placed in a 
 building is to be considered as attached to the freehold or not. There 
 are numerous cases where the controversy has arisen between landlord 
 and tenant, in which the principle has been laid down that fixtures 
 erected by a tenant, in a building for the convenience of his trade may 
 be removed by him at any time during his term ; and this conclusion is 
 arrived at upon the principle that they were necessary for the carrying
 
 312 FIXTURES (Ch. 5 
 
 out of his trade, and that, as he was not the owner of the fee, there 
 was no presumption that he intended to make tliem part thereof. So it 
 was held as early as the case of Holmes v. Tremper, 20 Johns. 29, 
 tliat a cider mill and press erected by a tenant at his own expense and 
 for his own use, though fixed to the soil, are his own property, and re- 
 movable by him at die end of the term." * * * 
 
 The plaintiff admitted upon the oral argument that defendant had 
 the right to remove the engine, boilers, and the dynamos, but denied the 
 right to remove the buildings in which they were placed. The buildings 
 were erected for the sole purpose of protecting the machinery. It 
 would seem upon sound reason that if this portion of the machinery 
 could be removed the right to remove the dynamo house and the boiler 
 house ought not to have been questioned unless there is some express 
 covenant reaching them, for, as we have already stated, the right to 
 claim the buildings as a part of the freehold on the ground that they 
 were firmly affixed to the soil is not the only question to be considered. 
 Regard is always to be had to the object, effect, and intent as well as to 
 the mode of annexation. Seeger v. Pettit, 77 Pa. 437, 18 Am. Rep. 
 452. An examination of the authorities will show that, as regards 
 trade fixtures, it is now the well-settled rule that the tenant may take 
 away whatever he erects, at his own expense, for the purpose of carry- 
 ing on his trade or business, whether it be machinery, or buildings, 
 even though affixed to the soil or freehold, provided it can be done 
 without material injury to the land. * * * 
 
 Under this rule, and upon the undisputed facts of this case, the re- 
 moval of the fixtures was not unlawful, and plaintiff is not entitled to 
 any damages therefor. It is proper to add that there was no material 
 damage to the freehold by the act of removal. 
 
 [The plaintiff recovered judgment for $425 for breach of the cove- 
 nant to leave the premises in good repair, subject to reasonable wear.] 
 
 WALL V. HINDS. 
 (Supreme Judicial Court of Massachusetts, 1855. 4 Gray, 256, 64 Am. Dec. 64.) 
 
 [Action for breach of covenant against waste. The alleged waste 
 consisted in the removal by an assignee of the lessee shortly before the 
 expiration of his term of a cistern, sinks, and water and gas pipes.] 
 
 The cistern, water pipes, and sinks were put into the house at an 
 expense of about $500, by Wood, an assignee of the defendant, dur- 
 ing the term. The cistern was of wood, lined with lead, and rested 
 upon the floor of the attic, and was filled with water by a supply pipe, 
 which passed from the city aqueduct into the cellar of th'e building, 
 and up through the floors of the other stories, to the cistern. The
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 313 
 
 pipes, which conducted the water to sinks in various parts of the build- 
 ing, terminated with faucets affLxed by metal tacks to boards nailed 
 to the walls, and were fastened by hooks driven into the plasterins; 
 and walls, and passed through holes, which were cut for the purpose 
 in the flooring and partitions, when the pipes were put in, and were 
 not filled up when they were taken away. One of the sinks was of 
 marble, and four of wood, three of which were fastened to the floors 
 by nails, and one set into the floor by cutting away the boards. Pipes 
 carrying away the waste water from the sinks passed down through 
 the floors. The plastering was somewhat rent by removing the fasten- 
 ings of the pipes. 
 
 The gas pipes also were placed in the house by an assignee of the 
 defendant during the term. They passed from the street into the 
 cellar, and thence up through the floor and branched into the various 
 rooms, passing along inside of the partitions, and through holes cut 
 in the partitions for the purpose, and were kept in place by bands or 
 hoops of metal fastened to the walls. In a few of the rooms the pipes 
 passed through ornamental centre pieces of wood, attached to the ceil- 
 ing, which were cut through for their removal. * * * 
 
 BiGELOW, J.^' * * * 'j^j^g j^g^^ point involves a question of 
 more difficulty and importance. The plaintiffs claim to recover on 
 the covenant in the lease, by which the lessee stipulates that he will 
 not make or suffer any waste upon the premises during the term, and 
 to prove a breach they rely mainly upon the removal therefrom of the 
 gas and water ]Mpes, which were put into the building by tenants 
 thereof holding the same as assignees of the lessee. The defendant, 
 on the other hand, contends that these articles having been placed on 
 the premises by the tenants, did not belong to the plaintiffs, and that 
 their removal does not constitute waste for which this action can be 
 maintained against him. This raises the question, whether, under the 
 circumstances proved in this case, the pipes annexed to the building 
 for the purpose of conducting water and gas into the various rooms, 
 can be regarded as "tenant's fixtures," which term, in its strict legal 
 definition, is to be understood to signify things which are fixed to the 
 freehold of the demised premises, but which nevertheless the tenant 
 is allowed to disannex and take away, provided he seasonably exert 
 his right to do so. * * * 
 
 Fixtures, which a tenant is allowed to disannex and take away, are 
 comprehended within two classes, or are of a mixed nature, falling 
 partly within and partaking of the nature of both. These classes are, 
 first, those which are put up for ornament or the more convenient 
 use of the premises, and are called domestic fixtures ; second, those 
 which are put up for the purposes of trade, and are known as trade 
 
 31 The statement of facts is abridged and part of the opinion is oinitted.
 
 314 FIXTURES (Ch. 5 
 
 fixtures. Gibbons on Fixtures, 22, 32; Smith, Landl. & Ten. 264; 
 Amos & Ferard on Fixtures, pt. 1, c. 2, §§ 1, 3, 4. In order to deter- 
 mine, whether in any particular case chattels annexed to the freehold 
 come within these classes, so that the tenant has the right to remove 
 them, several considerations are to be regarded. One of the chief 
 of these is the mode of their annexation to the building; that is, 
 whether they are annexed to the fabric of the house, and the extent 
 to which they are so united, and whether they can be taken down 
 and removed integre, salve et commode, without substantial injury to 
 the building or to themselves. Another important consideration is 
 the intention with which they were annexed by the tenant, and the pur- 
 poses which they were designed to answer ; that is, whether they were 
 intended for a permanent and substantial improvement to the realty, 
 perpetui usus causa, or as it is sometimes said, pour un profit del 
 inheritance ; or whether they were put up and used for a temporary' 
 object, or for the more convenient occupation and enjoyment of the 
 premises for the particular purpose for which the tenant used them, 
 , so that they were useful and necessary rather to the comfortable and 
 convenient occupation of the building than to the building itself. Amos 
 & Ferard on Fixtures, pt. 1, c. 2, § 1 ; Smith, Landl. & Ten. 270, note; 
 Buckland v. Butterfield, 2 Brod. & Bing. 54; Hellawell v. Eastwood, 
 6 Exch. 295. 
 
 The application of these rules and principles to the case at bar is 
 decisive of the nature and character of the articles which were re- 
 moved from the demised premises by the tenants. They were but 
 slightly annexed to the building, and were removed without any sub- 
 stantial injury to the building, and without essential injury to them- 
 selves. The premises were intended for and demised as a tavern and 
 boarding-house. The articles were themselves of a mixed nature, 
 and may well be regarded as combining the qualities of both domestic 
 and trade fixtures. They were designed by the tenants to be used in 
 carrying on the business for which the premises were occupied, and 
 they were also adopted for the more easy and comfortable use and 
 enjoyment of the building. They were useful and convenient, rather 
 than essential and permanent additions to the premises. At the time 
 of the demise, the house was supplied with water and furnished with 
 light by other means. The pipes were not necessary therefore to the 
 complete enjoyment of the premises. They were only added to sub- 
 serve the domestic purposes to which they were applied, and to render 
 the premises more suitable for the particular use to which they were 
 appropriated. 
 
 It would be quite useless to multiply authorities or seek out analo- 
 gies, in support of the view we have taken of this part of the case. 
 We must be governed in questions of this nature very much by the 
 circumstances of each case. But it may not be inappropriate to refer
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 315 
 
 to tlie case of Grjines v. Boweren, 6 Bing. 437, in which it was held 
 that a tenant might remove a pump which was attached to a per- 
 pendicular plank resting on the ground at one end and at the other 
 end fastened to the wall by an iron pin, which had a head at one end 
 and a screw at the other, and which went entirely through the wall. 
 If this was not a part of the realty, it can hardly be contended that 
 water pipes, slightly affixed to the ceiling, and passing through holes 
 in the floors, are so far fixed, that they cannot be removed by the ten- 
 ant, but belong to the owner of the premises. So too in a recent case, 
 already cited Mr. Baron Piatt, said : "If a landlord demised a house 
 with grates or gas fittings at an entire rent, they would belong to him 
 at the expiration of the term. But if he had let the house unfurnished 
 with these conveniences, and tiie tenant, for the enjoyment of his oc- 
 cupation, fixes them in the house, the tenant, unless he had contracted 
 to leave them behind, might undoubtedly remove them during the 
 term." ElHott v. Bishop, 10 Exch. 512. 
 
 Upon the facts proved in this case, we are therefore of opinion that 
 the plaintiffs fail to prove any breach of the covenant against waste. ^^ 
 For the unavoidable injury resulting to the premises from the removal 
 of the fixtures, the plaintiffs may perhaps have a remedy either against 
 the defendant or those who severed the fixtures from the building. 
 See Amos & Ferard on Fixtures (2d Amer. Ed.) 89. But it is clear 
 that it cannot be enforced in this action. * * * 
 
 [Judgment for plaintiffs on other covenants in the lease.] 
 
 LOUGHRAN v. ROSS. 
 
 (Court of Appeals of New York, 1S71. 43 N. Y. 792, 6 Am. Rep. 173.) 
 
 Appeal from an order of the General Term of the Supreme Court, 
 in the First District, affinning a judgment dismissing tlie complaint, 
 with costs. 
 
 Action for breach of covenant of seizin and quiet enjoyment in a 
 deed of two lots on Seventh avenue and Fifty-Fifth street. New York, 
 "with the corner house, and the house on the adjoining lot." The deed 
 was made January 11, 1866, the premises then being in the occupancy 
 of tenants under the defendant. Up to May 1, 1865, the premises had 
 been under lease for a term of years, and the buildings on the lots 
 
 32 Ace: McLain Investment Co. v. Cunningham, 113 Jlo. App. 519, 87 S. 
 W. 605 (1905), furnace. 
 
 A tenant built a servant's room, gutters, and underground water pipes, in- 
 tending at the time to remove them at the expiration of his term. Held, the 
 lessor may enjoin their removal. Wright v. Du Bignon, 111 Ga. 705, 10 S. 
 E. 717, 57 L. R. A. 609 (1901).
 
 :{1G FIXTURES (Ch. 5 
 
 had been erected by the tenants. On the expiration of these leases, 
 and on the 1st of JMay, 1865, the defendant had leased one of the lots 
 to the former tenant, or to one occupying under or by assignment from 
 the former tenant, for one year, by parol, rent payable quarterly in 
 advance ; and on the 4th of April had demised the other lot, by written 
 lease, to the former tenant, for three years, at a specified rent, payable 
 quarterly in advance, with a provision that, in case of a sale of the 
 premises, the lease should, at the option of the purchaser, be converted 
 into a lease from month to month, and the lessee covenanted, at the ex- 
 piration of the time, to surrender the premises in as good state and 
 condition as reasonable use and wear would permit, damages by the 
 elements excepted. After the conveyance to the plaintiff, and before 
 the 1st of May thereafter, the buildings were removed by the tenants, 
 or some one claiming under them, they claiming the right to remove 
 them. The plaintiff' taking the same view of the rights of the tenants, 
 brought this action to recover the value of the buildings, and on the 
 trial at the circuit in New York City, was nonsuited ; and the nonsuit 
 being sustained, by the Supreme Court in banc, the plaintiff' has appeal- 
 ed to this court. 
 
 Allem, J.^^ It is not claimed by the defendant that the tenants oc- 
 cupying the premises for the terms ending on the 1st of May, 1865, 
 having erected the buildings during their tenancy, might not, during 
 the continuance of their terms and their occupancy under the first leas- 
 es, have removed the buildings; and the plaintiff does not deny, that 
 after the expiration of the terms, and the tenants had ceased to occupy 
 as tenants, their right to remove the buildings would have been lost; 
 that a surrender of the premises would have been an abandonment of 
 the claim to the buildings, and they would have become the property 
 of the landlord as a part of the realty. The material question in the 
 case is, as to the eff'ect of the second letting and occupation untler it, 
 after the expiration of the first leases, upon the rights of the tenants 
 and the ownership of the buildings. The rule is, that whatever fixtures 
 the tenant has a right to remove must be removed before his term ex- 
 pires, except when the time at which the term will end is uncertain, de- 
 pending upon a contingency, and it may be determined unexpectedly to 
 the tenant, in which case he may be entitled to a reasonable time for 
 removing fixtures after the expiration of the tenancy. Ellis v. Paige, 
 1 Pick. 43 ; Reynolds v. Sbuler, 5 Cow. (N. Y.) 323. The rule may^be 
 subject to the further qualification, that the right to remove the fixtures 
 is not lost to the tenant so long as his possession as tenant continues ; 
 and the claim of tlie plaintiff is, that this qualification includes and 
 saves the right of a tenant continuing in possession under a new lease. 
 The right of the tenant to remove is a privilege conceded to him for 
 
 as Part of the opinion is omitted.
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 317 
 
 reasons of public policy, and may be waived by him, and will be re- 
 earded as abandoned bv anv acts inconsistent with a claim to the build- 
 ings as distinct from the land, and upon abandonment of the right by 
 the tenant, fixtures erected by him immediately become the property of 
 the landlord as a part of the land. A surrender of the premises, after 
 the expiration of the lease, is such an abandonment as vests the title 
 in the landlord. In reason and principle the acceptance of a lease of 
 the premises, including the buildings, without any reservation of right, 
 or mention of any claim to the buildings and fixtures, and occupation 
 under the new letting, are equivalent to a surrender of the possession 
 to the landlord at the expiration of the first term. The tenant is in 
 under a new tenancy, and not under the old ; and the rights which ex- 
 isted under the former tenancy, and which were not claimed or exer- 
 cised, are abandoned as effectually as if the tenant had actually remov- 
 ed from the premises, and after an interval of time, shorter or longer, 
 had taken another lease and returned to the premises. A lease of lands 
 and premises carries with it the buildings and fixtures on the premises, 
 and the tenant, accepting a lease of the premises without excepting the 
 buildings, takes a lease of the lands with the buildings and fixtures, 
 and acknowledges the title of the landlord to both, and is estopped from 
 controverting it: In respect to the lot of which there was a written 
 lease for the new term, the tenant expressly covenanted to surrender 
 the premises, at the end of the term, "in as good state and condition as 
 a reasonable use and wear thereof will permit, damages by the elements 
 excepted ;" and this covenant relates to and includes the buildings then 
 on the premises, and if they are excluded from its operation it can have 
 no eftect. It follows that the tenant becoming a party to that lease, 
 and occupying under it, is estopped from claiming the buildings as his 
 own, for he has covenanted to surrender them, as a part of the premis- 
 es and included within the general description, to the landlord at the 
 end of the term, in good repair. Such is also the implied undertaking 
 of the tenant taking a new lease by parol. Elementary writers are very 
 well agreed that, when a tenant continues in possession under a new 
 lease or agreement, his right to remove fixtures is determined, and he 
 is in the same situation as if the landlord, being seized of the land with 
 the fixtures, had demised both to him. Taylor's L. and T. 91 ; Gibbons' 
 Law of Fixtures, 42 : and Grady's Law of Fixtures, 98. And it would 
 seem that the position is warranted by authority. \\'hen the tenant 
 continues in possession after ejectment brought by the landlord under 
 an arrangement with him, and with his assent to a stay of execution, 
 the tenant's right to remove buildings from the premises, erected by 
 himself during his lease, is gone. Fitzherbert v. Shaw, 1 H. Black. 258. 
 The court held that there was an implied agreement that the tenant 
 should deliver up the premises in the same condition as they were in 
 when the agreement was made. The same was held in Heap v. Bar-
 
 318 FIXTURES (Ch. 5 
 
 ton, 12 C. B. 274, Jervis, C. J., saying: "If the tenants meant to avail 
 themselves of their continuance in possession to remove the fixtures, 
 they should have said so." The general form of expressing the right 
 of the tenant to remove fixtures, is that they must be removed within 
 the term ; tliat is, the term during which they were erected, and unless 
 the lessee uses, during the lease, the privilege to sever them he cannot 
 afterwards do it. Lee v. Risdon, 7 Taunt. 188; Lyde v. Russell, 1 B. 
 & Ad. 394. But it may be done so long as the possession continues, 
 although the term may have ended, if there has been no new agreement. 
 Penton v. Robart, 2 East, 88. * * * 
 
 The difficulty is, that the conceded right was abandoned and lost by 
 its non-exercise during the tenancy under which the buildings were 
 erected. The remedy of the plaintiff was against the persons wrong- 
 fully removing the buildings, and not on the defendant's covenant. 
 
 The judgment should be affirmed.^* 
 
 KERR V. KINGSBURY et al. 
 (Supreme Court of Michigan, 1S7S. 39 Mich. 150, 3.3 Am. Rep. 3C2.) 
 
 CooLEY, J.*° The controversy in this case concerns certain build- 
 ings which are claimed by complainant under a real estate mortgage 
 given March 13, 1874, by defendant Solomon C. Kingsbury to their 
 testator. The defendant Lyon, on the other hand, claims them as ten- 
 ant's fixtures under a lease of tlie lands mortgaged. 
 
 The facts appear to be that tlie defendant, S. O. Kingsbury, on the 
 25th day of January, 1871, being then the owner of certain premises 
 situated on Calder and Almy streets in the city of Grand Rapids, leased 
 
 34 Ace. : Wadman v. Burke, 147 Cat. 351, SI Pac. 1012, 1 L. R. A. (N. S.) 
 1192, 3 Ann. Cas. 330 (1905); Carlin v. Ritter, 6S Md. 478, 13 Atl. 370, 16 
 Atl. 301, 6 Am. St. Rep. 467 (ISSS) ; Spencer v. Commercial Co., 30 Wash. 
 520, 71 Pac. 53 (1902). 
 
 To the same effect, emphasizing the fact that the second lease varied in 
 its terms from the first, Hedderich v. Smith, 103 Ind. 203, 2 N. E. 315, 53 
 Am. Rep. 509 (188.5); Watriss v. First Banlv of Cambridge, 124 Mass. 571, 
 26 Am. Rep. 694 (1S7S) ; or that it contained a stipulation that the lessee 
 would deliver up the premises in as good condition as when received. Thresher 
 V. East London Water-Works, 2 B. & C. 60S (1S24) ; Sanitary District of 
 Chicago V. Cook, 169 111. 184, 48 N. E. 461, 39 L. R. A. 369, 61 Am. St. Rep. 
 161 (1897). See Hurd's Rev. St. 111. 1913, c. SO, § 33a. 
 
 A. leased to B., the lease expiring in November. B. stayed in after that 
 date, pending negotiations for a new lease. A. regained possession by sum- 
 mary proceedings. Held, B. may maintain an action for conversion against 
 
 A. for his subsequent refusal to permit B. to remove a building erected by 
 
 B. Lewis V. Ocean Nav. & Pier Co., 125 N. Y. 341, 20 N. E. 301 (1891). See 
 Penton v. Robart, 2 East, SS (ISOl). See, also, Bernheimer v. Adams, 70 App. 
 Div. 114, 75 N. Y. Supp. 73 (1902) ; Id., 175 N. Y. 472, 67 N. E. 1080 (1903). 
 
 so Part of the opinion is omitted.
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 319 
 
 the Calder street lots for ten years from June 1, 1871, to John S. Long 
 and Samuel P. Bennett, constituting the copartnership of Long & Ben- 
 nett, who took possession and occupied the same for the purposes of a 
 coal and wood 3'ard. The lease contained a provision allowing the les- 
 sees thirty days on its termination for the removal of the buildings 
 they might erect. June 1, 1872, a further lease of a portion of the 
 Almy street lots was made by Kingsbury to Long & Bennett, to termi- 
 nate at the same time with the other, and containing a similar provision 
 respecting the removal of buildings. 
 
 In September, 1873, S. O. Kingsbury purchased of Long his interest 
 in the copartnership of Long & Bennett, and assumed his place in the 
 business, which was thereafter carried on in the name of Kingsbury & 
 Bennett. In February, 1874, S. O. Kingsbury conveyed all the lots on 
 the two streets to Gaius P. Kingsbury. This conveyance does not se^m 
 to have been understood by the parties as a transfer to G. P. Kings- 
 bury of anything more than the fee subject to the leases, and the busi- 
 ness of Kingsbury and Bennett went on as before. In March, 1874, 
 the deed to G. P. Kingsbury in the mean time not having been record- 
 ed, S. O. Kingsbury gave to Henry A. Kerr, whom the complainants 
 represent, the mortgage under which they claim. In January, 1876, 
 G. P. Kingsbury gave to Kingsbury & Bennett a new lease of all the 
 lots for five years and five -months. This would make the lease termi- 
 nate at the same time as the former leases, and upon the face of the 
 transaction no reason appears for giving it, unless it was to obtain for 
 the purposes of the business the copartnership was engaged in, the lots 
 on Almy street which were not covered by the second lease. 
 
 The buildings the right to which is in dispute in this case, had all 
 been put up as tenant's erections previous to the giving of the Kerr 
 mortgage, and were occupied by the copartnership of Kingsbury & 
 Bennett for the purposes of their business at that time. That firm 
 subsequently became insolvent and made an assignment for the benefit 
 of their creditors to the defendant Lyon, who undertook to remove the 
 buildings as personalty. It is not disputed that, as between landlord 
 and tenant, the buildings would in general have been removable, but it 
 is insisted that under the facts of this case tliey are covered by the lien 
 of the real estate mortgage. 
 
 1. In brief the claim on the part of the complainants [is] that when 
 Kingsbury & Bennett, in January, 1876, accepted from G. P. Kingsbury 
 a new lease, they in contemplation of law surrendered the existing 
 leases, and not having asserted and exercised a right to remove the 
 erections made previously, they thereby abandoned them to their land- 
 lord, and could not assert or transfer to any one else the right to re- 
 move them afterwards. This is the principal question in the case. 
 
 The right of a tenant to remove the erections made by him in fur- 
 therance of the purpose for which the premises were leased, is con-
 
 320 FIXTURES (Ch. 5 
 
 ceded. The principle which permits it is one of public policy, and has 
 its foundation in the interest which society has that every person shall 
 be encouraged to make the most beneficial use of his property, the cir- 
 cumstances will admit of. On the other hand, the requirement that 
 the tenant shall remove during his term whatever he proposes to claim 
 a right to remove at all, is based upon a corresponding rule of public 
 policy, for the protection of the landlord, and which is that the tenant 
 shall not be suffered, after he has surrendered the premises, to enter 
 upon the possession of the landlord or of a succeeding tenant, to re- 
 move fixtures which he might and ought to have taken away before. 
 A regard for the succeeding interests is the only substantial reason for 
 the rule which requires the tenant to remove his fixtures during the 
 term ; indeed, the law does not in strictness require of him that he 
 shall remove them during the term, but only before he surrenders pos- 
 session, and during the time that he has a right to regard himself as oc- 
 cupying in the character of tenant. Penton v. Robart, 2 East, 88; 
 Weeton v. Woodcock, 7 M. & W. 14. 
 
 But why the right should be lost when the tenant, instead of sur- 
 rendering possession, takes a renewal of his lease, is not very a|)parent. 
 There is certainly no reason of public policy to sustain such a doctrine; 
 on the contrary, the reasons which save to the tenant his right to the 
 fixtures in the first place are equally influential to save to him on a re- 
 newal what was unquestionably his before. What could possibly be 
 more absurd than a rule of law which should in eff^ect say to the ten- 
 ant who is about to obtain a renewal : "If you will be at the expense 
 and trouble, and incur the loss, of removing your erections during the 
 term, and of afterwards bringing them back again, they shall be yours ; 
 otherwise you will be deemed to abandon them to your landlord." 
 
 There are some authorities which lay down this doctrine. Merritt 
 v. Judd, 14 Cal. 59, is directly in point. That case is decided in re- 
 liance upon previous decisions which do not appear to us to warrant 
 
 ji. * :tt * 
 
 The case of Loughran v. Ross, 45 N. Y. 792, 6 Am. Rep. 173, is 
 in accord with the case in California. In that case I\Ir. Justice Allen 
 speaking for the majority of the court says : "In reason and principle 
 the acceptance of a lease of the premises, including the buildings, with- 
 out any reservation of right, or mention of any claim to the buildings 
 and fixtures, and occupation under the new letting, are equivalent to 
 a surrender of the possession to the landlord at the expiration of the 
 first term. The tenant is in under a new tenancy, and not under lb? 
 old; and the rights which existed under the former tenancy, and 
 which were not claimed or exercised, are abandoned as effectually as 
 if the tenant had actually removed from the premises, and after an 
 interval of time, shorter or longer, had taken another lease and re- 
 turned to the premises." This is perfectly true if the sec(jnd lease in-
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER ' 321 
 
 eludes the buildings ; but unless it does so in terms or by necessary 
 implication, it is begging the whole question to assume that the lease 
 included tlie buildings as a part of the realty. In our opinion it ought 
 not to be held to include them unless from the lease itself an under- 
 standing to that effect is plainly inferable. 
 
 In Davis v. Moss, 38 Pa. 346, 353, it is said by Mr. Justice Wood- 
 ward, that "if a tenant remain in possession after the expiration of 
 his term, and perform all the conditions of the lease, it amounts to a 
 renewal of the lease from year to year, and I take it he would be 
 entitled to remove fixtures during the year." This in our opinion is 
 perfectly reasonable, and it is as applicable to other tenancies as it is 
 to those from year to year which are implied from mere permissive 
 holding over. * * * 
 
 W'e think the decree below was correct, and it must be affirmed with 
 costs. ^^ 
 
 RAY v. YOUNG. 
 
 (Supreme Court of Iowa, 1913. 160 Iowa, 613, 142 N. W. 393, 46 L. R. A. 
 [N. S.] 947, Ann. Cas. 1915D, 258.) 
 
 [Bill in equity for an injunction. 
 
 One L. E. Ray owned the premises for life, and on November 1, 
 1909, leased them to Young for one year with the privilege of re- 
 newal for five years. The lease provided the lessee to have "the priv- 
 ilege of adding to this building and removing tlie same at the expira- 
 tion of the lease." Young went into possession and erected an ad- 
 dition. L. E. Ray died June 8, 1911. Young had paid the rent in 
 
 3c Ace. where the second lease declared itself to be an "extended and re- 
 newed" lease of the orisinal date. Radey v. McCurdy, 209 Pa. 306, 5S Atl. 
 .558, 67 L. R. A. 359, 103 Am. St. Rep. 1009 (1904). 
 
 That the acceptance of a second lease does not destroy the tenant's right 
 to remove fixtures, see Daly v. Simonsou. 126 Iowa, 716. 102 N. W. 780 (1905) ; 
 'Hiouuis V. J. W. Gayle & Co.. 134 Ky. 330. 120 S. W. 290, 28 L. R. A. (X. S.) 
 7(i7. 135 Am. St. Rep. 412, 20 Ann. Cas. 766 (1900). Compare Unz v. Price's 
 Adiur. 58 S. W. 705, 22 ICy. Law Rep. 791 (1900). 
 
 "The right of a tenant to remove trade fi.xtures may doubtless be qualified 
 liy the covenants in the lease. But we are of ojunion that the covenant to 
 deliver up in good order 'all future erections or additions' to or upon the 
 premises is limited, in purpose and effect, to new buildings erected or old 
 Imildings added to, putting such erections and additions upon the same foot- 
 ing, in respect of the obligation to Iceep in repair, as the buildings upon 
 the premises at the time of the execution of the lease; and cannot be ex- 
 tendetl so as to deprive the tenants of the right to remove trade fixtures, 
 mut-h less personal property, put up by them upon the premises during the 
 term." Holbrook v. Chamberlin, 116 Mass. 1.55, 162, 17 Am. Rep. 146 (1874). 
 
 See Fox v. Lynch, 71 X. J. Eq. 537, 64 Atl. 439 (1906); Brown v. Reno 
 Electric Light Co., ante, p. 309. 
 
 Biq.Peb3,Pbop. — 21
 
 322 FIXTURES (Ch. 5 
 
 advance to January, 1912. He continued in possession through 1911 
 with the knowledge and consent of the plaintiff and his guardian, 
 meanwhile negotiating for a new lease. In January, 1912, he began 
 to remove the building erected by him and the plaintiff filed this bill 
 for an injunction against such removal. The injunction was granted 
 and Young appealed.] 
 
 Evans, J.^' * * * fj^j^g equity of good conscience is not with 
 the plaintiff in this case. If he is entitled to the decree awarded be- 
 low, it must be upon the ground of absolute legal right unaffected by 
 equitable considerations. The argument on behalf of the plaintiff' is 
 that he is not bound by the terms of the contract between the defend- 
 ant and his lessor ; that the rights of the defendant under his contract 
 terminated with the death of such lessor; that the death of such 
 lessor terminated not only the defendant's right of occupancy but his 
 right of removal of the building; that the right of removal provided 
 for by tlie terms of the lease could only be exercised during the term 
 of the tenancy; and that at the death of the lessor the building passed 
 to tlie remainderman as a part of the real estate. It is also contended 
 that after the death of the lessor the defendant entered into a new 
 oral lease with the plaintiff, and that he became thereby estopped from 
 claiming ownership of the building. We will consider these conten- 
 tions in the order stated. 
 
 It must be conceded that the terms of the contract between the de- 
 fendant and his lessor are not binding as such upon the plaintiff as 
 remainderman. Stewart v. Matheny, 66 Miss. 21, 5 South. 387, 14 
 Am. St. Rep. 538; Jones v. Shufflin, 45 W. Va. 729, 31 S. E. 975, 72 
 Am. St. Rep. 848. This contract can be considered only as bearing 
 upon the rights of the defendant as they were up to the time of the 
 death of his lessor. It is the contention of the plaintiff that such con- 
 tract cannot be considered for any purpose. 
 
 In view of such contention, we may as well inquire first whether, 
 independent of the provision of the contract for the right of removal, 
 the defendant had a right as between him and his lessor to remove the 
 building erected by him. And this depends upon the furdier question 
 whether or not the building should be classified as a trade fixture. 
 
 Witliout dispute the building was built and used for garage and 
 repair-shop purposes. * * * 
 
 Beyond question the building under consideration in this case was 
 built by the defendant and used by him strictly for trade purposes 
 within tlie meaning of the law on that subject. Regardless, tlierefore, 
 of the particular provision in the defendant's contract with his lessor, 
 he had a right to remove his building as between him and his lessor 
 
 S7 Part of the opinion is omitted.
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 323 
 
 as a "trade fixture," provided, of course, that he could do so without 
 substantial injury to the premises. 
 
 Taking such right as it then was immediately preceding the death 
 of the lessor, the question is then projected whether his right of re- 
 moval of his own property from the leased premises terminated in- 
 stanter by the death of his lessor or whether he was entitled to a rea- 
 sonable time to remove his property from the premises. There are 
 cases which hold to the strict rule of forfeiture against the tenant in 
 such a case. Stewart v. Matheny, Jones v. Shufflin, supra. We have 
 never followed such a rule of forfeiture in this state; neither have 
 we had occasion to pass upon the exact question now before us. The 
 principle or theory upon which such rule is said to be based is that 
 the fixtures erected by a tenant become a part of the realty as soon 
 as erected, and that there is no right of property therein to the ten- 
 ant, his right being in the nature of a privilege or license to sever the 
 same from the realty and repossess himself thereof, and that a fail- 
 ure to exercise such right or privilege during the term of the tenancy 
 is in legal effect a complete abandonment or "dereliction" to the land- 
 lord. This theory of the nature of the right of the tenant to fixtures 
 erected by him has been repudiated in many jurisdictions, including 
 our own, as will be hereinafter noted. The previous holdings of this 
 court in that respect have been that the tenant has a right of property 
 in the fixtures so erected by him, although he may lose his right of 
 property on the theory of abandonment by the failure to make timely 
 removal thereof. While such right remains the property is deemed 
 as the personal property of the tenant as between him and the land- 
 lord. 
 
 We think the weight of authority and reason is that the right of 
 removal is not necessarily lost by the mere expiration of the term. An 
 active duty devolves upon the tenant to exercise the right promptly, 
 in view of all the circumstances of the case, and ordinarily, he is re- 
 quired to exercise it before an actual surrender of the possession of 
 the premises. But, as long as he continues in possession, with the 
 acquiescence of the owner, his right of removal continues accord- 
 ingly. * * * 
 
 We are disposed to follow the more equitable rule which allows 
 the lessee of a tenant for life a reasonable time after the death of 
 his lessor to surrender his possession and remove his property. This 
 is not only equitable as between all the parties, but the contrary rule 
 tends greatly to the unnecessary depreciation of the rental value of a 
 life estate by tlie constant menace of forfeiture. 
 
 II. Was the defendant guilty of undue delay in the removal of his 
 property in this case ? This is largely a question of fact under tlie evi- 
 dence in this record. No objection was ever made to his continued 
 possession. On the contrary, in August negotiations were entered into
 
 324 FIXTURES (Ch. 5 
 
 between the defendant and the plaintiff's guardian looking to a con- 
 tinuance of the tenancy. It is the testimony of the plaintiff's guard- 
 ian that they did agree orally to a one-year lease at $75 rental. As 
 will be seen later, a part of the plaintiff's case is based upon this al- 
 leged new lease. rThe defendant denies that they ever reached an 
 agreement for a new lease but admits that negotiations were pend- 
 ing between them. Manifestly an immediate removal of the build- 
 ing pending the negotiations for a continuance of the tenancy would 
 of itself tend to render such negotiations futile. The negotiations 
 of themselves manifestly contemplated the maintenance of the status 
 quo while tliey were pending. Whether, therefore, an agreement was 
 actually reached, as contended by appellant, or whether the negotia- 
 tions were simply pending, in either case the delay of removal was 
 in harmony therewith and was therefore necessarily reasonable. On 
 this branch of the case, therefore, we must find that the defendant 
 acted with reasonable promptness in the proposed removal of the 
 building. * * * 
 
 It follows that the decree below must be reversed, the plaintiff's 
 petition and the writ of injunction dismissed. The defendant will be 
 awarded a reasonable time after the final disposition of this case to 
 remove his building and to put the property of the plaintiff in proper 
 condition. Reversed.^' 
 
 38 A., tenant for life, leased to B. for three years. A. died before the ex- 
 piration of the term. B. paid rent to X., the reiiiaiiulenniin, and continued 
 In for more than two years thereafter. In ;\n action for the final quarter's 
 rent by X. a;j;:iinst B., B. set up a counterclaim based upon the fact that 
 A. had contracted with B. to purchase the inuirovements (a stalile and two 
 shops), and that X. had sold them to Y., who had dispossessed B. The court 
 refused to allow the counterclaim, saying: "It nui.st be remarked that the 
 agreement does not purport to bind Arndt, the owner of the remainder in 
 fee, and seems to have been made under the belief, and with the wish, that 
 the life interest would last as long as the lease, which was but for three 
 years. But, if the intention were to bind him, the objection arises that it is 
 not competent for them to make an agreement to affect the inheritance. On • 
 the falling in of the particular estate, the remainderman or reversioner is 
 entitled to all the improvements, whicli the law denominates fixtures, with- 
 out regard to the manner they are constructed, the persons who may have 
 erected them, or whether they may contribute to enhance the value of the 
 property or not. If the tenant for life, or the person with whom he con- 
 tracts, wishes to avoid the consequences, the improvements must be removed 
 during the continuance of the tir.st estate, or the assent of the remainderman, 
 or reversioner, must be obtained." White v. Arndt, 1 Whart. (Pa.) 91 (1S.3()). 
 See, also, Stewart v. Jlatheny, 66 Miss. 21, 5 South. .387, 14 Am. St. Rep. 5.3S " 
 (1SS8) ; Haflick v. Stober, 11 Ohio St. 482 (1860) ; Jones v. Schufflin, 45 W. 
 Va. 729, 31 S. E. 975, 72 Am. St. Rep. 84S (1898).
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 325 
 
 GUTHRIE et al. v. JONES 
 (Supreme Judicial Court of Massacliusetts, 1871. 108 Mass. 191.) 
 
 Tort by Roger C. Guthrie and Daniel McLeod, partners under the firm 
 name of Guthrie & McLeod, for the conversion of "one case of draw- 
 ers, one glass case, one oyster and trench counter, one other counter 
 known as and called a bar, one mirror, and gas-pipes and gas-fixtures." 
 Writ dated May 28, 1870. The answer, besides a general denial, al- 
 leged "that the plaintififs occupied a tenement of the defendant's as his 
 tenants, and while in such occupation affixed to said tenement, and to 
 the realty of the defendant, certain fixtures which were not removed 
 by them while they so occupied said tenement, and said fixtures became 
 the property of the defendant by force of law." 
 
 At the trial in the superior court, before Pitman, J., it appeared that, 
 for several years before March, 1868, the plaintiff [defendant] owned 
 and let to McLeod a building in Taunton, which John Coyle occupied 
 under McLeod as an eating room and for the sale of intoxicating liq- 
 uors ; "that Coyle put up partitions in the building, also bought, car- 
 ried in, and fastened to the walls by nails or screws, the case of draw- 
 ers, the glass case, and the mirror which was about six feet long and 
 two feet or more wide ; that the oyster counter and bar were also 
 bought and carried in by him, and fastened to the floor by nails or 
 screws, as usually done by tenants ; that the gas-pipes were put in by 
 him, and fastened by him to the walls and ceilings of the building, and 
 the gas-fixtures, so called, to the number of about sixteen, were screw- 
 ed upon the gas-pipes on the ceiling by him in the usual manner; and 
 that all these articles were purchased by Coyle to use in his said busi- 
 ness ; that while Coyle was in possession of the premises, about the 1st 
 of March, 1868, he sold these articles, together with a large number 
 of other articles, to the plaintiffs for $800, with the knowledge of the 
 defendant; and that the plaintiffs immediately entered upon the prem- 
 ises under a written lease from the defendant to McLeod for three 
 years from March 1, 1868, in the usual form," and carried on therein 
 the same business which Coyle had (Jpne. 
 
 [During the term Guthrie and McLeod attempted to remove the 
 above mentioned articles. Jones forbade their so doing, claiming them 
 as his own, and ordered the plaintiffs to leave the premises, which thev 
 did.] 
 
 Morton, J.''* We are of opinion that some of the articles claimed 
 in the plaintiff's' writ are personal chattels, for the conversion of which 
 an action of tort may, upon the facts proved at the trial, be maintained. 
 The glass case, the case of drawers, the mirror and the gas-fixtures, 
 
 38 Part of ttie opinion is omitted.
 
 326 FIXTURES (Ch. '5 
 
 though fastened to the walls, were not annexed to the realty so as to 
 become part of it. They are in their nature articles of furniture, and 
 the fact that they were fastened to the walls, for safety or convenience, 
 does not deprive them of their character as personal chattels and make 
 them a part of the realty. Winslow v. Merchants' Insurance Co., 4 
 Mete. 306, 38 Am. Dec. 368. The nature of the articles, the circum- 
 stances under which they were placed in the building, the mode of 
 their connection, and the relation which they bear to the use of the 
 freehold, are not such as to give them the character of fixtures or ad- 
 ditions to the real estate. For the value of these, the plaintiffs, having 
 shown title in themselves and a conversion by the defendants, can 
 maintain this action. 
 
 The other articles claimed by tlie plaintiflfs may stand upon different 
 grounds. The report does not fully state the mode in which they were 
 attached to the building, so as to enable us to determine whether they 
 were personal chattels or fixtures. If, as was claimed by both parties 
 at the argument, they were trade fixtures, it would seem that this ac- 
 tion of tort for their conversion cannot be maintained. Such an action 
 cannot be maintained except upon proof of such facts as would have 
 been necessary to maintain an action of trover at common law. Robin- 
 son V. Austin, 2 Gray, 564. In the case at bar, the fixtures have not 
 been severed from the building; they therefore remain a part of the 
 realty, for which an action of trover will not lie. Roffey v. Henderson, 
 17 Q. B. 573; Wilde v. Waters, 16 C. B. 637; Stockwell v. Marks, 17 
 Me. 455, 35 Am. Dec. 266. The plaintiffs, therefore cannot recover for 
 trade fixtures under their declaration, although the defendant illegally 
 refuses to permit them to sever and remove such fixtures. * * * 
 
 New trial ordered. ■"" 
 
 io Ace: Mackintosh v. Trotter, 3 M. & W. 1S4 (1S3S). Contra, Watts v. 
 Lehman, 107 Pa. 106 (18S4). 
 
 Same facts as Guthrie v. Jones, but with an agreement between the lessor 
 and les.see that trade fixtures (a bake oven) erected by the lessee should re- 
 main personal property. Held, the lessee may maintain trover against the les- 
 sor for the latter's refusal to permit the removal of the oven. Korbe v. Bar- 
 bour, 130 JIass. 255 (ISSl). 
 
 A sale of trade fixtures held to be within neither the fourth nor the seven- 
 teenth section of the statute of frauds. Hallen v. Runden, 1 C, M. & B. 
 266 (1834).
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 327 
 
 HORN V. CLARK HARDWARE CO. 
 
 (Supreme Court of Colorado, 1913. 54 Colo. 522, 131 Pac. 405, 45 L. R. A. 
 
 [N. S.] 100.) 
 
 [The Pewabic Mines Company leased to one Horn a certain build- 
 ing for a term of 10 years to be fitted up as an ore working mill. The 
 lease provided that the lessee should have the right upon the surrender, 
 termination or forfeiture of the lease "to remove all machinery, furni- 
 ture and fixtures placed upon said premises" by the lessee. This lease 
 was assigned with the consent of the lessor to the Denver Mining & 
 Reduction Company. The latter company fitted up the mill, installing 
 extensive machinery, with boiler and engines. Further facts are stated 
 in the opinion of the court.] 
 
 Gabbert, J.*^ * * * Jj^ fitting up the mill, the company pur- 
 chased material from the defendant in error, the Clark Hardware 
 Company, consisting of tools, brasses, nails, and other materials which 
 were used in the construction and operation of the mill. In July, 1911, 
 the plaintifif in error recovered a personal judgment against the Den- 
 ver Mining & Reduction Company. A few days later the sherifif of 
 Gilpin county, under an execution issued on this judgment, levied upon 
 and took into his possession, as the personal property of the judgment 
 debtor, the tables, engines and other equipment of the mill, which was 
 a part and parcel of it, as installed in the building; and also some tools 
 and supplies, and advertised the same for sale as personal property. 
 Prior to the date fixed for the sale of this property under execution, 
 the defendants in error, joining as plaintififs, brought suit against the 
 Denver Mining & Reduction Company, the plaintiff in error, and the 
 sheriff' of Gilpin county, the purpose of which was to foreclose a me^ 
 chanic's lien upon the mill, including the structure and the machinery 
 and equipment therein, which embraces the property levied upon by 
 the sheriff under the execution issued on the plaintiff' in error's judg- 
 ment, and to restrain the latter and the sheriff' from selling this proper- 
 ty under the execution by virtue of which it had been levied upon. 
 A temporary injunction was issued, restraining the execution sale. 
 The trial of tlie case resulted in a judgment, making the temporary' in- 
 junction perpetual, and adjudging the plaintiff's entitled to liens upon 
 the property levied upon by the sheriff, the building in which it was 
 situated, the land upon which the building stands, and decreed that all 
 this property should be sold in satisfaction of the liens so established. 
 To review this judgment, Horn, the judgment creditor, has brought the 
 case here on error. 
 
 *i Tart of the opinion is omitted.
 
 328 FIXTURES (Ch. .J 
 
 The first point urged by counsel for plaintiff in error to consider, is, 
 that under the present statute of Colorado a lien will not lie against a 
 leasehold interest in real estate. Section 4027, R. S. 1908, provides, 
 inter alia, that "any lien provided for by this act * * * sh^ll ex- 
 tend to any assignable, transferable or conveyable interest of such own- 
 er, or reputed owner, in the land upon which such building, structure, 
 or other improvement shall be erected or placed." The act of 1889, 
 Session Laws of that year, page 247, provided that "except when other- 
 wise indicated, any person having an assignable, transferable, or con- 
 veyable interest or claim in or to any land, building, structure or other 
 property mentioned in this act, shall be deemed an owner." * * * 
 We think the leasehold interest of the Denver Mining & Reduction 
 Company could be subjected to a lien under our present lien act. To 
 hold otherwise, would be directly contrary to the terms of this act. 
 
 The next proposition urged on behalf of the plaintiff in error is that 
 the plant of machinery in the mill was trade fixtures, and therefore, 
 personal property, against which a mechanic's lien would not lie, and 
 hence subject to be levied upon under the execution issued on the judg- 
 ment obtained by plaintiff' in error. In support of this proposition, it 
 is contended that the Denver Mining & Reduction Company was mere- 
 ly a tenant, and had the right to remove the machinery on the expira- 
 tion or forfeiture of its lease. This question is not really material in 
 determining whether or not the lien claimed by the plaintiff's attached 
 to the machinery. In other words, what the rights of the lessee may 
 be, with respect to removing the machinery, as against the lessor, is 
 of no particular moment in ascertaining the rights of the lien claim- 
 ants. The lessor and lessee might agree between themselves that the 
 machinery could be removed by the latter when the lease expired, or 
 was forfeited, or by reason of the relation between them, it might be 
 that, independent of any agreement, the machinery could be removed 
 by the lessee on the happening of either of these events, and that, as 
 between them, the machinery, in determining their rights, would not 
 be regarded as a fixture or part of the realty, but their private agree- 
 ment, or their respective rights in the machinery by operation of law, 
 would not change the character of this property, so far as the rights 
 of third persons are concerned, who claimed a lien thereon, as realty. 
 Mollie Gibson C. M. & M. Co. v. McNichols, 51 Colo. 54, 116 Pac. 
 1041; Dobschuetz v. Holliday, 82 111. 371; Hathaway v. Davis, 32 
 Kan. 693, 5 Pac. 29. 
 
 The vital question, than, is whether or not, as between the lien claim- 
 ants and the lessee, the machinery in the building was a part of the 
 leasehold interest of the latter. In determining this question the test 
 is whether the lessee placed the machinery in the building and attached 
 it either to that structure, or the ground therein, in whole or in part, 
 with the intention that it should become a part of the plant intended, 
 as a whole, to constitute a mill or reduction works, the purpose of
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 329 
 
 which was to extract the values from tailings and crude ores. If that 
 was the object, and its use was necessary or essential for the success- 
 ful operation of the mill for the purposes designed, then the machinery 
 so placed became a part of the leasehold interest of the lessee. Alollie 
 Gibson C. M. & M. Co. v. McNichols, supra; Cary Hardware Co. v. 
 McCarty, 10 Colo. App. 200, 50 Pac. 744. 
 
 That such was the purpose of the lessee, that the machinery was 
 necessary, and essential to accomplish the object for which it was in- 
 stalled, and that each article was a component part of the whole, the 
 evidence established beyond question. * * * Had the Denver 
 Mining & Machinery Company been the owner of the fee of mill-site 
 No. 39, and as such owner had placed the machinery in the building 
 in the same manner and for the same purpose it did, as lessee, it 
 would hardly be contended that such machinery could be -levied upon 
 under execution as personal property, either as affecting its rights or 
 the rights of others having a prior lien upon the building in which it 
 was placed. In such circumstances the machinery would admittedly be 
 a fixture. In the case at bar the situation and rights of the parties are 
 no different from what they would be in the supposed case, for the ob- 
 vious reason that the question of whether the machinery was or was 
 not a fixture must be determined by the same rule in each case. We 
 have determined tliat a leasehold estate may be the subject of a lien, 
 and logically, it must follow that whatever is a fixture of that estate 
 can be subjected to the same lien. That such is the purpose of the act 
 is made clear by a consideration of another portion of section 4027, 
 supra, whereby it is provided : "The liens granted by this act shall ex- 
 tend to and cover so much of the land whereon such building, struc- 
 ture, or improvement shall be made as shall be necessary for the con- 
 venient use and occupation of such building, structure, or improvement. 
 * * * and shall attach to all machinery and other fixtures used in 
 connection with any such lands, buildings, mills, structures, or im- 
 provements." Suppose the lessee should sell its leasehold interest with- 
 out any reservation ; the machinery with which the mill is equipped 
 would pass to the purchaser without being specially mentioned, or if 
 it should sell the mill with a clause conveying its appurtenances and 
 fixtures, such machinery would have been conveyed to tlie vendee ; or 
 suppose the Denver Mining & Reduction Company had seen fit to raise 
 the question that its mill could not be dismantled by the execution cred- 
 itor levying upon and removing the machinery therein as personal 
 property, for the reason that such machinery was a part of its estate 
 in the premises, would it not be held, without question, that it was not 
 personal property? * * * 
 
 The judgment of the district court is affirmed. 
 
 Judgment affirmed. ■*- 
 
 <2 Ace. as to the right to hold tixtures under a iueohanic"s lien. McCarty 
 V. Burnet, S4 Ind. 23 (1S82) ; Zabriskie t. Greater America Exposition Co!,
 
 330 FIXTURES (Ch. 5 
 
 WHITE ENAMEL REFRIGERATOR CO. v. KRUSE. 
 (Supreme Court of Minnesota, 1913. 121 Minn. 479, 140 N. W. 114.) 
 
 Philip E. Brown, J.*' When the Radisson Hotel, in Minneapolis, 
 was erected, its owner, the defendant Mrs. Edna Kruse, left a front 
 comer of the building, especially suitable for a store, in a rough state, 
 with plain plaster walls, rough cement floors, no door or window cas- 
 ings, and no decorations, top flooring, wall wainscoting, or paneling. 
 Thereafter the defendant leased the entire building to the Radisson 
 Hotel Company, a corporation formed at her instance and of which 
 she was secretary, to carry on the business of conducting the hotel 
 for an extended period. This company, with her approval, leased the 
 front comer to the Radisson Shop Company for 10 years; the lease 
 providing, among other things, that the storeroom should be used 
 during the term by the lessee "for the purpose of conducting therein 
 a candy, flower, ice cream, and soda water business, and business akin 
 thereto, and for no other business whatsoever." The lessee covenant- 
 ed to install the usual and necessary fixtures, fountains, and installa- 
 tion customarily installed in high-class candy and soft drink refresh- 
 ment parlors ; "it being understood and agreed that all fixtures so in- 
 stalled shall be held as collateral security by said lessor for the pay- 
 ment of rents due, or to become due, on this lease, the same to be 
 used and controlled by the lessee during the term of this lease, with 
 the right to repair and exchange for other fixtures of equal value." 
 By the terms of the lease the lessor agreed to plaster the room, to lay 
 a floor of a certain kind, and to paint tlie side walls and ceiling, and 
 to install electric light ceiling fixtures at the outlet boxes, which were 
 to be the property of the lessor. The lessee assumed the. obligation 
 of installing and maintaining electric lamps and lights and reflectors, 
 and also the necessary wiring for window and wall illumination. The 
 lessor agreed to install a balcony in the rear of the store to the satis- 
 faction of the lessee in both detail and design, at a cost of not more 
 than $600, the same, however, to be considered the property of the 
 lessor, provided that, in the event that the lessee desired a more ex- 
 pensive balcony, it should have the option to accept the amount stated 
 and install such balcony as it might prefer. The lessor agreed to bring 
 to the floor level of the store sewer and water pipes ; the lessee agree- 
 ing to make all plumbing and sewer connections at its expense. 
 
 The shop company fitted up the room with walnut paneling and 
 finish, putting in a marble base, window display ledges, and a "U"- 
 
 67 Neb. 581, 93 N. W. 958, G2 L. R. A. .369, 2 Ann. Cas. 687 (1903). Com- 
 pare Asheville Woodworking Co. v. Soutlawick, 119 N. C. 611, 20 N. K. 253 
 (1896). 
 
 ■»3 Part of the opinion is omitted.
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 331 
 
 shaped balcony around the rear of the room, building it by channeling 
 the supporting joists into the masonry of the building, and attaching 
 it to the ceiling by expandable bolts. All the exposed parts of the 
 balcony were covered with walnut, including the under side of the ceil- 
 ing, except above the refrigerator as hereinafter mentioned. The 
 lessee also laid a tiled floor. The plaintiff, at the instance and request 
 of the shop company, built in the storeroom a florist's refrigerator, 
 made upon a special order, 16 feet and 9 inches wide, 3 feet and 6 
 inches deep, and 7 feet and 3 inches high, together with a tiled floor 
 and drawers separately constructed to fit in, and tliis refrigerator was 
 installed between two of the supporting pillars of the building, which 
 projected into the store space. Extra strong posts were used in its 
 construction, in order "to help support the balcony under which it 
 stood, against the side of the building," thus increasing the expense 
 of its construction, and the underside of the balcony ceiling was omit- 
 ted in the space occupied by the top thereof. It was built especially 
 for flowers, and weighed from 4,000 to 6,000 pounds. It was designed 
 to match the finish of the room and the wall paneling and balcony, 
 having the appearance of being a continuation of the wall paneling. 
 The marble base of the room was continued around the base of the 
 refrigerator, inclosing it against the wall. Likewise, the molding in 
 the angle formed by the under side of the balcony and the wall of the 
 room, and vv^hich was 4 or 5 inches each way in size, ran along one 
 side and the front of the refrigerator, inclosing it against the wall 
 of the building. It was not attached to the floor or to the vertical 
 walls of the building, but was connected with the balcony by a mold- 
 ing, and contained electric lights, current being supplied from the 
 lighting plant of the building, and a sink connecting with the city 
 sewer was supplied to collect the drip. The tiled floor of the room 
 abutted against its base, and the room was decorated after the re- 
 frigerator was placed in position, but the space behind it remained 
 undecorated. 
 
 Subsequently the plaintiff duly filed a statement setting forth a 
 claim of lien for the value of the refrigerator, and this action for its 
 foreclosure followed. The trial was to the court, which made findings 
 substantially in accordance with the facts stated, but in greater detail, 
 omitting, however, the provisions of the lease between the hotel and 
 shop companies and some undisputed facts which we have recited. 
 Judgment was ordered in favor of the plaintiff and against the shop 
 company, and also for a lien on the hotel property for the value of the 
 refrigerator. In addition to the facts recited, the court found that 
 the refrigerator, its floor, etc., and its installation, were reasonably 
 worth $856.56, but did not find that it was a fixture, refusing, how- 
 ever, to find, on the defendant's application, that it was not such, and 
 also to make amended and additional findings. While the findings
 
 332 FIXTURES (Ch. 5 
 
 are criticised by the defendant, none of them are challerged, except 
 those relating to value, and that the lease to the shop company was 
 made with Mrs. Kruse's approval. She appealed from the order of 
 the court refusing to find as aforesaid, and from its order denying her 
 a new trial. 
 
 1. The only C|uestion we find necessary to determine in this case is 
 whether the refrigerator was an "improvement" or "fixture," within 
 R. L. 1905, § 3505, providing that : "Whoever contributes to the im- 
 provement of real estate by performing labor, or furnishing skill, ma- 
 terial, or machinery, for any of the purposes hereinafter stated, wheth- 
 er under a contract with the owner of such real estate or at the in- 
 stance of any agent, trustee, contractor, or subcontractor of such 
 owner, shall have a lien upon said improvement, and upon the land on 
 which it is situated or to which it may be removed, for the price or 
 value of such contribution ; that is to say, for the erection, alteration, 
 repair, or removal of any building, fi.xtures, bridge, wharf, fence, or 
 other structure thereon," etc. In other words, the question is whether 
 this refrigerator was a fixture in the legal sense of that word, or was 
 a mere so-called trade fixture. Pond v. Robinson, 38 Minn. 272, 
 276, 7>7 N. W. S)9. If it was the former, then the trial court's decision 
 was right; otherwise, not. We will assume that Mrs. Kruse must 
 be deemed to have consented to the erection of the refrigerator in the 
 store, and also that the fact that such was done by a lessee or sub- 
 lessee is immaterial, except as bearing upon the question stated. 
 
 What, then, is a fixture under the statute? The nearest approach to 
 a satisfactory definition of this .term we find in Wolford v. Baxter, 
 il Minn. 12, 21 N. W. 744, 53 Am. Rep. 1. The question there was 
 between mortgagor and mortgagee, but the discussion covers the con- 
 stituent features of fixtures generally ; and if the refrigerator here 
 involved was not a fixture as between the owner and the tenant it 
 was not lienable. Such is the general rule. Rockel on Mechanics' 
 Liens, 14. Indeed, what is laid down in Wolford v. Baxter, supra, 
 has been applied by this court in determining whether machinery con- 
 stituted a fixture, within the mechanic's lien law. See Pond Alacliine 
 Tool Co. V. Robinson, supra. 
 
 We will therefore first quote the pertinent part of the opinion in 
 the Wolford Case, from which the rule here to be applied is to be de- 
 duced, for it cannot be said that the case categorically declares a rule. 
 "It has often been remarked," said Mr. Justice Mitchell {ii Minn. 
 at page 17, 21 N. W. at page 744 [53 Am. Rep. 1]), "that the law of 
 'fixtures' is one of the most uncertain titles in the entire body of 
 jurisprudence. The lines between personal property and fixtures are 
 often so close and so nicely drawn that no precise and fixed rule can 
 be laid down to control all cases. It is difficult, if not impossib'e, to 
 give a definition of the term which may be regarded of universal ap-
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 333 
 
 plication. Each case must be more or less dependent upon its own 
 jieculiar facts. Whether a thing is a fixture or not has been some- 
 times said to be a question partly of law and partly of fact. Almost 
 every court and every text-vi'riter has attempted to define the term. 
 Xone of these definitions are infallible or of universal application; 
 but they are of service in determining whether an article is or is not, 
 in a given case, a fi.xture. These definitions may be found collected 
 in almost any law dictionary or text-book on the subject. We shall 
 neither quote them nor attempt to give a definition of our own, but 
 simply say that they all agree that 'fixtures,' in the primary meaning 
 of the term (and distinguished from movable or tenants' fixtures), 
 mean chattels annexed to the realty, so as to become a part of it. 
 
 "While not agreeing as to the necessity for, or the degree of im- 
 portance to be attached to, the fact of actual physical annexation, yet 
 the authorities generally unite in holding that, to constitute a fixture, 
 the thing must be of an accessory character, and must be in some way 
 in actual or constructive union with the principal subject, and no; 
 merely brought upon it ; that in determining whether the article is 
 personal property, or has become a part of the realty, there should be 
 considered the fact and character of annexation, the nature of the 
 thing annexed, the adaptability of the thing to the use of the land, the 
 intent of the party in making the annexation, the end sought by an- 
 nexation, and the relation of the party making it to the freehold." 
 "To make it a fixture," the opinion continues (31 Minn, on page 18, 
 21 N. W. on page 745 [53 Am. Rep. 1]), "it must not merely be es- 
 sential to the business of the structure, but must be attached to it in 
 some way, or, at least, it must be mechanically fitted, so as, in ordi- 
 nary understanding, to constitute a part of the structure itself. It 
 must be permanently attached to, or the component part of, some erec- 
 tion, structure, or machine which is attached to the freehold, and with- 
 out which the erection, structure, or machine would be imperfect or 
 incomplete." 
 
 We have quoted thus lengthily from this case, because it is a ruling 
 one, containing a well-nigh complete commentary, and the part of the 
 opinion quoted furnishes the most workable rule that we have been 
 able to find. Let us, now, apply this rule to the case before us, re- 
 membering that its major premise is that each case must be determined 
 upon its own facts. See, also, Elwell on Fixtures (2d Ed.) 35, 47. 
 
 The attachment of the refrigerator might, perhaps, be held sufficient 
 to satisfy the requirement of annexation, but was not of such char- 
 acter as of itself to warrant a finding of a fixture, or to import the 
 other essential elements thereof ; for it was but slightly attached to 
 the building, and was readily removable with slight, if any, injury to 
 the building. It appears that it was in fact removed by the lessee's 
 assignee in bankruptcy; and since it was put in before the room was
 
 334 FIXTURES (Ch. 5 
 
 completed, and nothing in the way of further finish was done to the 
 space behind it, or occupied by it, except to extend the molding and the 
 marble baseboard around it, its removal left this part of the room in 
 practically the same condition in which it was before it was put in. 
 That a so-called fixture is removable with little injury to the building 
 is an important consideration in this connection. Northwestern Mu- 
 tual Life Ins. Co. v. George, 77 Minn. 319, 326, 328, 79 N. W. 1028, 
 1064; Medicke v. Sauer, 61 Minn. 15, 16, 63 N. W. 110; Pioneer 
 
 .Savings & Loan Co. v. Fuller, 57 Minn. 60, 63, 58 N. W. 831. So, 
 also, the fact that the refrigerator was installed by a tenant tends to 
 the conclusion that it was a trade fixture. Shapira v. Barney, 30 Minn. 
 59, 14 N. W. 270. That it was not removable without being taken to 
 pieces, and was worth less when removed, are circumstances to be 
 considered, but are not conclusive. Elwell on Fixtures (2d Ed.) 151. 
 Nor is the fact that it was built extra strong, so as to strengthen the 
 balcony under which it stood, determinative. This was merely an in- 
 cidental matter, only very slightly connected with the purpose of the 
 installation, which would doubtless have been made, even if there had 
 been no balcony, and, in any event, the use of the one was not depend- 
 
 ■ ent upon that of the other. 
 
 The nature of the thing annexed and its adaptability to the use of 
 the realty — which in this case we will consider to be the storeroom — 
 constitute the next element to be considered. It cannot be questioned 
 that the refrigerator was adapted to the use of the room as a flower 
 store, for it was built for use in such business while being conducted 
 in this room; but no less certain it is that this adaptability was of lim- 
 ited scope, whereas there is nothing to show that the room was not 
 fitted for many purposes other than those for which it was leased. 
 We tliink it fair to assume that the room was suited to any of the pur- 
 poses for which one of its size and similar location might ordinarily 
 be used. In the matter of character and adaptability, therefore, we 
 think the refrigerator partook of the nature of a .mere trade fixture. 
 "The intent of the party in making the annexation and the relation 
 of the party making it to the freehold" constitute the third test under 
 the rule which we are applying, and these elements may be considered 
 together. In the tenns of the lease, the substance of which we have 
 set forth in the statement of facts, we find no indication that it was 
 the intent of the parties that the refrigerator should be the property 
 of the lessor. It was not specifically mentioned in the lease; but it 
 was a proper installation for a flower store, bearing, we might say, 
 the same relation thereto that the soda fountain bore to the soft drink 
 refreshment parlor. It must, therefore, be classed with the "necessary 
 fixtures, fountains, and installation customarily installed in high-class 
 candy and soft drink refreshment parlors," all of which, under the 
 terms of the lease, were clearly regarded by the parties as trade fix-
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 335 
 
 tures, as distinguished from the wall decorations, floor covering, bal- 
 cony, etc., which the lessor undertook to furnish ; it being, further- 
 more, expressly stipulated in the contract that "said balcony at all times 
 is to be considered as tlie property of the lessor," thus indicating that 
 the installations to be made by the lessee were not so to be considered. 
 Moreover, is it reasonable to assume that the lessee intended to make 
 the lessor, or the owner of the building, a present of so expensive a 
 structure at the end of the term, even though the same was for a long 
 period, when the parties so carefully stipulated as to whom the bal- 
 cony, of lesser cost, was to belong? See Shapira v. Barney, supra. 
 We think it was the intent of the parties that any such so-called fixture 
 as this refrigerator should be deemed to be a trade fixture. 
 
 Finally, was the storeroom complete without the refrigerator? We 
 might readily answer this question in the negative, were we to con- 
 sider the room as suitable only for a flower store ; but, since we can- 
 not so conclude, the contrary answer must follow. We hold that this 
 refrigerator was a mere trade fixture, and hence that the hotel prop- 
 erty is not lienable therefor. See Shapira v. Barney, supra ; Pioneer 
 Savings & Trust Co. v. Fuller, supra ; Medicke v. Sauer, supra ; 
 Northwestern Mut. Life Ins. Co. v. George, supra; Stout v. Stoppel, 
 30 Minn. 56, 14 N. W. 268. * * * 
 
 Order reversed. 
 
 II. Other Relations 
 WESTGATE v. WIXON. 
 
 (Supreme Judicial Court of Massachusetts, ISSO. 128 Mass. 304.) 
 
 Tort. The declaration contained two counts. The first was in the 
 nature of trover for the conversion of a barn. The second was for 
 breaking and entering the plaintiff's close, removing a barn annexed 
 to the freehold, and converting it to the defendant's use. The answer 
 contained a general denial ; and alleged that the barn was the property 
 of John H. Abbott, and was duly attached by the defendant, a deputy 
 sheriff, on a writ against Abbott in favor of Benjamin Barker and 
 others. The case was submitted to the Superior Court on an agreed 
 statement of facts, which, after stating that the pleadings were made 
 a part thereof, proceeded as follows : 
 
 On April 2, 1877, the plaintiff executed to John H. Abbott, a bond 
 for a deed of a parcel of land in Fall River, the condition of which 
 recited that the plaintiff had bargained and sold to Abbott a certain 
 parcel of land for the sum of $3,700, and that Abbott had agreed to pay 
 $30 a month, on tlie first of each month until the whole sum with in-
 
 336 FIXTURES (Ch. 5 
 
 terest was paid, and was to pay taxes and insurance, with the privilege 
 of paying the principal sum at any time and demanding a deed ; and on 
 breach of any of the conditions, the obligation was to be void. 
 
 Abbott was in actual occupancy of the premises at the time of the al- 
 leged tortious acts of the defendant. The defendant seized the building 
 as the property of Abbott, on a writ in favor of Benjamin Barker and 
 others against Abbott. No question is made as to the legality of the 
 writ and service, or that Abbott was indebted to the plaintiffs in the 
 writ. At the time of the attachment, Abbott had defaulted in the obli- 
 gations imposed upon him in the bond, for a deed, in that he had not 
 paid the taxes on the estate ; but no measures had been taken by the 
 plaintiff to evict him, or to assume possession of his estate in any 
 way. * * * 
 
 When the defendant made the attachment, the plaintiff made a prop- 
 er demand for it [the barn] upon him, and the building was moved off 
 the premises by the defendant after this demand. The attachment was 
 made and building moved on March 7, 1878. 
 
 On the above facts and pleadings, if the plaintiff could maintain the 
 action judgment was to be entered for him in the sum of $330 with in- 
 terest from the date of writ; otherwise, judgment for the defendant. 
 
 The Superior Court ordered judgment for the plaintiff; and the de- 
 fendant appealed to this court.''* 
 
 Morton, J. Upon the facts of this case, the Superior Court was 
 justified in finding that the barn, for the removal of which this suit 
 was brought, was a part of the realty, and was therefore not attachable 
 as the personal property of Abbott. 
 
 As a general rule, buildings are a part of the realty, and belong to 
 the owner of the land on which they stand. Even if built by a person 
 who has no interest in the land, they become a part of the realty, un- 
 less there is an agreement by the owner of the land, either ex];ress or 
 implied from the relations of the parties, that tliey shall remain per- 
 sonal property. Webster v. Potter, 105 Mass. 414, and cases above 
 cited. The facts of this case do not take it out of this general rule. 
 There was no express agreement by the plaintiff' that Abbott might re- 
 move the barn ; and the relations of the parties were not such as that 
 the law will imply such an agreement. Abbott was in the occupancy 
 of the land under a bond, by which the plaintiff agreed to convey the 
 land to him upon the performance of certain conditions stipulated 
 therein. \\'hile he thus occupied, Abbott built the barn in question. 
 The legal title to the land was in the plaintiff, but Abbott had an equi- 
 table interest in it, a right to obtain a title to the soil upon perform- 
 ance of the conditions of the bond. He was not therefore a mere 
 stranger, who erected a building upon land of another with the con- 
 
 ** Tbe statement of facts is abridged.
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 337 
 
 sent of the owner, in which case an agreement that he could remove it 
 might more easily be implied. Nor can he be regarded as a tenant of 
 the plaintiff, so that the liberal rules in regard to fixtures, which pre- 
 vail between a lessor and lessee can be applied. The essential features 
 of a tenancy upon which those rules rest are wanting; he was not un- 
 der any liability to pay rent, and he was not compelled to surrender the 
 estate at a fixed time, as upon the expiration of the term ; but, upon 
 performing the conditions of the bond, all the additions and improve- 
 ments made by him would enure to his own benefit. King v. Johnson, 
 7 Gray, 239. The relations between Abbott and the plaintiff more near- 
 ly resemble those existing between mortgagor and mortgagee, in which 
 case any additions made or fixtures annexed to the realty enure to the 
 benefit of the mortgagee. 
 
 The barn in question was a substantial structure. It is clear from 
 the facts agreed that Abbott built it, not for any temporary purpose, 
 but for the permanent improvement of the land, which he expected to 
 become his property according to the terms of the bond. When built, 
 it became a part of the realty, and enured to the benefit of the plaintiff 
 as additional security for the performance of the conditions of the 
 bond. Abbott had no right to remove it, and his creditors had no right 
 to attach it as his personal property. Milton v. Colby, 5 j\Ietc. 78; 
 Eastman v. Foster, 8 Mete. 19; Murphy v. Marland, 8 Cush. 575. 
 
 The defendant contends that the plaintiff cannot maintain his action 
 in the present form, because at the time he removed the barn Abbott 
 was in the occupancy of tlie premises. 
 
 To maintain an action of tort in the nature of trover or trespass de 
 bonis asportatis, it is sufficient if the plaintiff' proves a title to, and the 
 right to the immediate possession of the goods converted or carried 
 away. Woodruff v. Halsey, 8 Pick. 333, 19 Am. Dec. 329; Aver v. 
 Bartlett, 9 Pick. 156; Fairbank v. Phelps, 22 Pick. 535; Codnian v. 
 Freeman, 3 Cush. 306. In the case at bar, the bond does not contain 
 any stipulation that Abbott, the obligee, is to enter into the present 
 possession of the premises, and the facts agreed do not state how he 
 came into the occupancy. But we assume, as fairly to be inferred, 
 that he entered under the bond, by virtue of the license implied from its 
 terms, and not by virtue of any independent license or title. This be- 
 ing so, his right to the possession ceased when there was a breach of 
 the condition of the bond, and the plaintiff had an immediate right of 
 possession. There had been a breach of the conditions before the de- 
 fendant removed the barn. It follows that, at the time the defendant 
 unlawfully removed the barn, the plaintiff was the owner of the land 
 and barn, with the right of immediate possession. When tlie barn 
 was severed from the realt)% it ceased to be real estate and became per- 
 sonal. The plaintiff' still remained the owner of it, entitled to the im- 
 mediate possession, and could maintain an action of tort in tlie nature 
 Big .Pees.Pbop. — 22
 
 338 FIXTURES (Ch. 5 
 
 of trover, either against the person who unlawfully severed it, or any 
 other person who, after it was severed, converted it to his own use. 
 Riley v. Boston Water Power Co., 11 Cush. 11; Phillips v. Bowers, 7 
 Gray, 21. 
 
 Judgment affirmed.*' 
 
 McCULLOUGH v. IRVINE'S EX'RS. 
 (Supreme Court of Pennsylvania, ISoO. 13 Pa. 43S.) 
 
 This was a suit by iVIcCullough, plaintiff in error, against Irvine's 
 executors. It was an action on the case, in the nature of waste in 
 which the injury complained of was cutting down and destroying the 
 timber growing upon a tract of land of 139 acres, and pulling down 
 and removing a two story brick house and bank barn, the under part 
 of which was stone, and the upper part frame, which buildings had 
 been erected by defendant's testator, and removed by him in his life 
 time. 
 
 The land in question was the property of John Dunbar, who died 
 prior to 1830, and on the 30th November, 1830, this land was taken 
 upon proceedings in partition in the Orphans' Court, by Samuel Irvine, 
 husband of Rosanna, eldest daughter of said Dunbar, in right of his 
 wife, at $3,945. He paid out one-third to the other heirs, the two- 
 tliirds he retained in right of his wife being her share of her father's 
 estate. 
 
 In 1832, he erected on said land a two story brick house, worth $600 ; 
 also a bank barn, wagon shed, and corn cribs, worth $1,000, according 
 to the evidence. 
 
 Samuel Irvine had issue by his wife, two children. One died in in- 
 fancy ; Mary, his other child, died 7th January, 1833, aged 3 years, and 
 his wife died 4th April, 1834. 
 
 Samuel Irvine, upon the death of his wife, was tenant in fee of one 
 undivided third, and tenant by the curtesy of the remaining undivided 
 two-thirds. The remainder in fee in three-fourths of the remaining 
 two-thirds (or half of the whole) became vested in John McCullough, 
 the plaintiff, who was married to Jane Dunbar, after the death of Mrs. 
 Irvine, and previous to the removal of the buildings. The house and 
 
 *5Aec. : Seiberling v. Jliller, 207 111. 443, G9 N. E. SOO (1904); Dustin 
 V. Crosby, 75 Me. 75 (1SS3) ; Seatoff v. Anderson, 2S Wis. 212 (1S71). 
 
 A. and B. made a contract of sale of a mining property. B. took possession 
 and erected macliinery to prcspect the mine and see if it was worth develop- 
 ing. He then defaulted in his contract. Held, he may remove the machinery. 
 Gasaway v. Thomas, 56 Wash. 77, 105 Pac. 16S, 20 Ann. Cas. 1337 (1909). 
 See Curtis v. Leasia, 78 Mich. 480. 44 N. W. 500 (1889). 
 
 The principle of the main case applies as to annexations by the mort- 
 gagor. Walmsley v. Milne, 7 C. B. (N. S.) 115 (1S59).
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHEB 339 
 
 barn were thrown down and removed from the land by Samuel Irvine, 
 in May, 1847. He removed them to land of his own. * * * 
 
 Coulter, J.*° * * * j ^link it may be safely asserted, that any 
 act which does permanent injury to the freehold or inheritance is 
 waste. The main question to be resolved in the case on hand, is there- 
 fore, whether the brick house, two stories high, and the bank bam 66 
 feet long by 33 feet wide and 7 feet of an overshot, with corn crib and 
 wagon shed erected by the tenant for life during the life of his wife 
 and child, who were the owners of the remainder in fee of two thirds, 
 did become part of the freehold and inheritance or not. The tenant 
 for life, Irvine, was the owner of the other third in fee; and after the 
 death of his wife and child he threw down the house and barn, and 
 hurled the materials away, because the remainder man would not give 
 the price he asked for the whole inheritance. This suit is instituted by 
 the remainder man against the executors of Irvine, who held the life 
 estate in two thirds of the freehold. The defendants alleged that not- 
 withstanding Irvine pulled down the house and barn and its adjuncts 
 and sold off a large quantit}' of timber, leaving but a small portion of 
 woodland, that yet he is not answerable in damages, because the land 
 at the death of Irvine, in its denuded state, was worth as much and 
 more tlian it was valued at, when the life estate first accrued, and he 
 took possession. And the court below sustained this ground, summing 
 up their instructions to the jury in these comprehensive words : "But 
 if the inheritance was left as valuable by the tenant for life, independ- 
 ent of the consideration of his own acts and conduct respecting it, as 
 when he entered upon it, and more so, then we think the plaintiff is 
 not entitled to recover." I cannot assent to this view of the case. It 
 is attempted to be sustained by those exceptions to the general rule 
 of permanent improvements becoming part of the freehold, which in 
 favor of trade permit fixtures or machinery to be severed from the in- 
 heritance by a tenant. Agriculture is denominated a trade, and a 
 brick house and a barn are alleged to be the implements and instru- 
 ments by which it is carried on, and which are essential to its com- 
 fortable prosecution. The hypothesis has a bold and dashing novelty 
 about it, and is not without plausibility. Hu.sbandry has been consid- 
 ered a more primitive and simple occupation than handy work or 
 mechanism and it is by some called a science. But call it a trade ; still 
 its success and its products depend upon the showers of heaven and 
 the nutriment of the earth. A cider press is an instrument by which 
 cider is made, and like a plough and a harrow or a threshing machine, 
 is an implement of agriculture and belongs to the tenant. But a two 
 story brick house and a large bank barn, are not instruments or imple- 
 ments of any trade. But they are great conveniences which enable 
 
 «8The statement of facts is abridged and part of the opinion is omitted.
 
 340 FIXTURES (Ch. 5 
 
 men of all sorts to enjoy the fruits of their labor or trade. If you 
 make these an exception the rule itself is obliterated, and nothing is 
 essentially of the realty, except the earth itself and that which is in its 
 bowels. 
 
 The exceptions have been carried very far by some decisions in the 
 Eastern States, particularly in Whiting v. Brastow, 4 Pick. (Mass.) 
 310; Holmes v. Tremper, 20 Johns. (N. Y.) 29, 11 Am. Dec. 238, and 
 also in Van Ness v. Pacard, 2 Pet. 138, 7 L. Ed. 374. It is however, in 
 somewhat loose expressions of the court in those cases, and not from 
 the cases themselves, that the principle asserted by the court below de- 
 rives some countenance. The first, where the dicta is the most latitudi- 
 narian, was merely the removal of a padlock and some loose boards, 
 about which there never could have been any reasonable doubt. The 
 second was the removal of a cider press by the tenant, and there no 
 reasonable doubt of its being an implement for the manufacture of 
 cider would be entertained. The last case runs to a little more magni- 
 tude, for it was removing a sort of a house. But a house erected for 
 the purpose of manufacturing a commodity ; it was more properly, a 
 shop for making oil ; and the decision goes expressly on the ground of 
 its not being a dwelling house. But none of these cases either express- 
 ly or by implication overrule or impeach the case of Elwes v. Maw, 3 
 East, 28, in which it was held that an agricultural tenant could not re- 
 move during the continuance of his lease, a beast house, carpenter shop 
 and fuel house, etc., erected for the use of the farm, even tliough he 
 left the premises as he found them. In that case the whole law on 
 that subject was ably reviewed; and although it is an English case, I 
 believe it to be the law of Pennsylvania, and for the very same reason 
 that the court below give for a contrary opinion. 
 
 In my judgment that is a rule which tends to promote the interests 
 of agriculture, whilst its converse would tend to retard and impede its 
 progress. We must have many tenancies for life in Pennsylvania, by 
 will, by deed, and by descent; and if the tenant after having enjoyed 
 the fruits of the land during perhaps a long life, may, just before his 
 death, strip it of the fences he has built, and the house and barn he 
 has erected, because the advance in the improvement and commerce of 
 the country would leave the land of as much intrinsic value as when he 
 took possession, and convert it into a solitary waste for the winds to 
 moan over; the tenant of a new generation will have to take the land 
 as it was a generation before, and commence improvements de novo. 
 This, I apprehend, would be a slovenly mode of promoting the inter- 
 ests of agriculture. 
 
 There is a debt due to the land in return for its fruits and products, 
 and a good tenant for life always pays it. He manures it, fences it, 
 and builds a habitation on it, and they become part of the freehold, 
 and thus the interest of agriculture is promoted. These exertions are
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 341 
 
 the voluntary gift of the Hfe tenant to the inheritance. He dedicates 
 them to the inheritance when he has enjoyed the fruits of his labor. 
 A good farmer creates, but does not destroy ; and I may add, that this 
 rule, just in itself, has a tendency to liberalize the social affections as 
 well as to promote agriculture. 
 
 It banishes that sordid and selfish spirit which would destroy what 
 the individual can no longer enjoy. 
 
 All fixtures and erections which the law allows a tenant for years 
 to remove, are put up for the avowed purpose of a temporary occu- 
 pancy. He pays a suitable compensation under contract for liberty to 
 erect them for the uses of his particular trade or calling. They are 
 designed for his use and his alone. Not so with the tenant for life 
 in tlie case on hand. He was himself owner of one-third of the inherit- 
 ance, his wife and child were owners of the reversionarj' interest in the 
 other two-thirds. Who then can doubt his intention of making these 
 buildings with a view of benefiting the inheritance, for himself, for his 
 wife and child ; by that intent and act he dedicated them to the free- 
 hold, and so incorporated them with the inheritance as to foreclose his 
 power of recall after the death of his wife and child, to the disherison 
 of their heirs. * * * 
 
 With regard to the house and barn, they having become part of the 
 inheritance by the intent and act of the defendant's testator, the rule 
 of damages is the same, to wit: How much was the inheritance injur- 
 ed by their destruction? In regard to both, however, it must be ob- 
 served that Irv'ine was the owner of one-third of the inheritance. 
 
 To that extent the defendants are protected ; I presume the claim is 
 only for two-thirds : all that can be recovered is two-thirds of the 
 amount of damages for waste committed by Irvine, in the destruction 
 of the house and barn and an undue proportion of timber. 
 
 Judgment reversed and venire de novo awarded.''^ 
 
 *'! The lessee of a life tenant erected portable buildinss of one and two 
 stories on brick foiindntions. They were plastered, provided with chimneys 
 and used for sliops of various iNinds, some of them in connection with an ad- 
 joining hotel o^Tied by the lessee. Held, the remainderman may. after the 
 death of the life tenant, enioin the lessee from removing these buildings. 
 Cannon v. Hare. 1 Tenn. Ch. 22 (1S72). 
 
 .\ tenant for life of a colliery placed a fire enrfne there for use In connec- 
 tion therewith. Held, his executors may remove it as against the remainder- 
 man. I.awton V. Lawton. 3 Atli. 12 (1743). Ace: Ward v. EHidley, 57 L. T. 
 (N. S.) 20 (1887). See D'Eyncourt v. Gregory, L. R. 3 Eq. 382 (1866).
 
 342 FIXTURES (Ch. 5 
 
 KING V. MORRIS. 
 
 (Court of Errors and Appeals of New Jersey, 1907. 74 N. J. Law, 810, 68 
 Atl. 162, 14 L. R. A. [N. S.] 439, 12 Ann. Cas. 1086.) 
 
 Reed, J.*' This action was brought by Charles S. King, as trustee, 
 in bankruptcy for Justice C. Paschall, the bankrupt, to recover dam- 
 ages, from Artemesia Morris for the taking of a frame factory build- 
 ing and the machinery and fixtures therein, alleged to have been the 
 property of the said bankrupt. * * * 
 
 The subject of the action was a frame factory building situated upon 
 ground owned by the defendant in common with others. This struc- 
 ture, placed upon a concrete foundation without a cellar, was erected 
 by Mr. Paschall, the bankrupt, some time in 1901, and the machinery 
 in question was afterwards placed by him in it. Mrs. Morris, the de- 
 fendant, is the mother-in-law of Mr. Paschall, and lives in his fam- 
 ily. In telling how he came to place this structure upon the land of 
 his mother-in-law he said that he asked and received her permission 
 to put the building upon her ground, and that he had never paid rent 
 for it. He also said that the understanding was that just as soon as 
 the building was finished it was to be turned over to Mrs. Morris. 
 He also said she was to have the machinery and fixtures. 
 
 Mrs. Morris was not a witness, but her testimony, previously taken 
 before a referee in bankruptcy, was introduced by the plaintiff as ad- 
 missions by her as defendant. In her testimony she said that Mr. 
 Paschall merely asked her permission to erect a factory building upon 
 her ground, and she told him, "Yes ; that was the best tiling he could 
 do." She says he did not agree to pay her any rent, and she did think 
 she was the owner of the factory because she was the owner of the 
 land. 
 
 The trial judge charged the jury that "if from the testimony you 
 believe that the building and machinery were put upon this land in 
 pursuance of an agreement between Mrs. Morris and Mr. Paschall 
 by which the building and machinery were to become her property, 
 your verdict should be for the defendant. If you believe * * * 
 that the building and machinery were placed there by Mr. Paschall to 
 remain his own personal property, and it was understood that he should 
 have the right to remove them, then you would be justified in finding 
 that they were personalty and the property of Mr. Paschall, and the 
 plaintiff would be entitled to a verdict." The jury found a verdict for 
 the trustee in bankruptcy, the plaintiff'. 
 
 In the third request proffered by the counsel for the defendant the 
 court was requested to charge that prima facie all buildings and espe- 
 
 - *8 Part of the opinion is omitted.
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 343 
 
 cially dwelling houses belonged to the owner of the land on which 
 they stand as part of the realty, and the burden of proof is upon those 
 who claim that they are personal property to show that they retain that 
 character. This request was refused. 
 
 The court, in the body of the charge, had given, as a test to deter- 
 mine the ownership of this property, the following, namely, whether 
 there was an agreement when the property was placed upon the prem- 
 ises that it should belong to the former or to the latter. This left the 
 jury, in case it failed to find any agreement whatever respecting the 
 ownership of the property, without legal direction, and the third re- 
 quest was designed to have the jury informed that in the absence of 
 any agreement the inference would be that the building belonged to 
 the owner of the land upon which it was standing. 
 
 The maxim respecting the ownership of structures placed upon 
 the land is quicquid plantatur solo, solo cedit. Broom, Max. 354 
 (marg.). But the maxim that whatever is placed upon the land be- 
 longs to the land is subject to numerous exceptions. One of the most 
 conspicuous modifications of this rule is exhibited in the instance of 
 fixtures put upon property by a tenant. Had Paschall been a tenant 
 of Mrs. RIorris, and as such had placed the structure in question upon 
 her ground, it, from its character and use, would have been removable 
 before or at the end of his term. Paschall was not a tenant, but it 
 conclusively appears that he entered, erected and maintained this fac- 
 tor}' by the permission of Mrs. Morris. The query is presented wheth- 
 er, as a licensee of Mrs. Morris, the presumption would arise, with- 
 out proof of any agreement that a right to remove the factory ex- 
 isted, and so the factory retained its character of personalty. 
 
 The doctrine that a structure, however costly, if placed upon the 
 land of another by permission, which permission may be recalled at 
 any time, becomes, in the absence of specific agreement, irrevocably 
 attached to the land upon which it is placed, is manifestly opposed to 
 the intention implied in the very transaction. The inference springing 
 out of such a license is that the land used is to be lef-t as found, and 
 the property so placed therein shall remain the property of the user, 
 and be removable as such. * * * 
 
 In the present case, therefore, the fact which conclusively appears, 
 namely, that the factory was put upon the land of the defendant by. 
 her permission, created a situation which rendered the third request 
 entirely irrelevant. In view of the facts as they existed the trial judge 
 properly covered the point in question by charging the second request 
 of the plaintiff. He charged that where there was no other circum- 
 stance, and merely an erection, with the permission of the landowner, 
 of a factory building of the character of the one involved in this suit, 
 the more reasonable inference is that the builder had designed not to 
 part with his property, and the landowner had consented to that un- 
 derstanding. * * *
 
 344 FIXTURES (Ch. 5 
 
 The judgment of the Supreme Court reversing the judgment of the 
 Circuit Court should itself be reversed, and the judgment of tlie Cir- 
 cuit Court should be affirmed.*' 
 
 SALTER V. SAMPLE. 
 
 (Supreme Court of Illinois, 1S74. 71 111. 430.) 
 
 BrbesE, C. J. The facts in this case are substantially these: One 
 Singleton purchased a lot in the town of Waverly, in the county of 
 Morgan, of appellant, on time, at one hundred and fifty dollars, the 
 agreed price. Singleton took possession of the lot, and erected on it 
 a small frame house, on pillars, as a residence. In the absence of the 
 vendor, who had contributed some money towards the plastering and 
 carpenter work of the house, Singleton sold the house to one Ranz, 
 about the time the purchase money became due, and Ranz sold it to 
 one Dennis. Dennis and Ranz removed the house to a lot belonging 
 to Dennis, placing it on brick pillars sunk in the ground, with the in- 
 tention of making a residence of it, for the purpose of sale. A pur- 
 chaser was found in appellee, Sample, who paid them six hundred dol- 
 lars and over for the house and lot, and, to fit it for a dwelling, built 
 an addition to it for a kitchen, attached to the main building by rest- 
 ing the frame on pieces of scantling, 2x4, nailed to the corner posts 
 of the main building. 
 
 The purchase money from Singleton for the lot was not then due, 
 nor has it ever been paid or demanded, and no deed made b)^ appellant. 
 
 On appellant's return home, finding the lot he had contracted to sell 
 Singleton vacant, the house having been removed, and tracing it to 
 the possession of appellee, he demanded a return of it, claiming the 
 right of possession, which, being refused, appellant sued out a writ 
 of replevin for the house, which the sheriff executed by removing the 
 brick pillars, on which the house had been placed by Ranz and Den- 
 
 <9 A structure or article annexed by the licensee to the land of the li- 
 censor retains its character as personalty so that it may be made the subject 
 of a chattel mnrt^ase, IMalott v. Price, "l09 Ind. 22, 9 N. E. 71S (ISSr,) ; or 
 conveyed by a bill of sale. Aldrich v. Parsons, 6 N. H. ooo (1S34) ; if tlie li- 
 censor refuses to permit the licensee to remove it the latter may maintain 
 trover, O.sgood v. Howard, 6 Greenl. (C Me.) 452, 20 Am. Dec. 322 (1S.30) ; or 
 replevin. District Tp. of Corwin v. Moorehead, 43 Iowa, 406 (1S7C), even 
 thonsh the licensee has for two years voluntarily been out of possession of 
 the land and structure, Western North Carolina it. Co. v. Deal, 90 N. C. 110 
 (1SS4). 
 
 A father gave his son permission to erect a house and barn on the father's 
 land and to occupy it, telling him that he would ultimately give him the land. 
 The son so built. He later died ; the father refused to allow the e.'^ecutor 
 to remove the building. Held, this is not a conversion. lyeland v. Gassett. 17 
 Vt, 403 (1845). Ace: Humphreys v. Newman, 51 Me. 40 (1863). Compare 
 Washburn v. Sproat, 16 Mass. 449 (1820).
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 345 
 
 nis, and detaching the "addition" erected by appellee, and removed it 
 from appellee's lot, but to what place it was taken by the sheriff, or 
 what became of it, the record does not disclose. 
 
 The question in the case is : Was this house, when moved by Den- 
 nis and Ranz to Dennis' lot, and there placed on brick pillars sunk in 
 the ground, and to which appellee, after his purchase, built the addi- 
 tion fixed to the building by nails, and occupied it as his dwelling, 
 |)ersonal or real property? If the former, the action of replevin would 
 lie, on the authority of Ogden v. Stock, 34 111. 522. That case does 
 not show the building was fixed to, and had become a part of, the soil 
 of another lot, after it was removed, as in this case. It was built on 
 blocks, resting on planks, but how it was fastened to the soil after re- 
 moval, is not disclosed. In that case, also, the contract of sale pro- 
 vided, that, if the vendee should make default in any of the payments, 
 the vendor should have the right to consider the agreement terminated, 
 and to treat the purchaser, his representatives, or assigns, as tenants 
 at will, at a specified rent. Nothing of this appears in this case, nor 
 is it shown that any written contract existed for the sale and convey- 
 ance of this lot, by appellant, to Singleton, nor that it was any part 
 of the bargain that Singleton was to build upon the lot. The proof is, 
 appellant sold the lot to him for one hundred and fifty dollars, on one 
 year's time, at ten per cent. No note taken — no contract providing for 
 a deed executed — -no stipulation as to forfeiture on non-payment, and 
 from aught that does appear, Singleton can yet perform his contract, 
 and demand a deed. He may be able to satisfy a court of equity he 
 has equitable rights, and may yet obtain a title to the lot. 
 
 But we are clear in the opinion that, if this house, being placed on 
 pillars on appellant's lot, for permanency, for a residence, not to serve 
 a temporary purpose, it became a part of the realty, and its removal 
 to another lot, and there fixed to the soil for permanency, it was on 
 that lot a part of the lot, and could not be taken from it by a writ of 
 replevin. For the trespass in removing the structure from appellant's 
 lot, an action of trespass might lie ; replevin would not, for there the 
 building was a part of the realty. There can be no question, if Single- 
 ton had the title to the lot, he could have severed the house from it, 
 and sold it as personal property ; but when the same house was re- 
 moved, and became a part of another lot — a part of the realty — it then 
 ceased to be personalty, and for a damage to it an action of replevin 
 can not be maintained. This is much like the case of Dooley v. Crist, 
 25 111. 551, where it was said to be a fundamental rule, that all improve- 
 ments or additions placed upon land, of a permanent nature, adapted 
 to its use and better enjoyment, became a part of the land. The ex- 
 ception is, in trade fixtures, and such erections as a tenant may make 
 for his own convenience, with no regard to permanency. By express 
 agreement of parties, even structures designed to be permjinent, placed
 
 346 FIXTURES , (Ch. 5 
 
 by a tenant upon land or by a vendee, may be removed as personal 
 property ; or, if the owner of the soil, by deed, sells a tenement erected 
 upon the land, it would become dissevered, and be converted from real 
 to personal property. But, as a general rule, when a building is erected 
 on the land, the presumption is, it is a part of the real estate, and not 
 personalty, and to take it out of the operation of this rule, a state of 
 facts must be shown which rebuts the presumption. And the court 
 further say, even when a stranger constructs a building upon the land 
 of another, without his consent, it becomes a part of the land, and 
 he would become a trespasser by removing it. 
 
 Testing this case by what is there said, if it was Singleton's inten- 
 tion, when he built the house on the lot, to render the improvement per- 
 manent when erected, there can be no question it became a part of the 
 freehold, and no subsequent change of intention changed its character 
 to that of personal property. Not being the owner of the lot, he could 
 not sever the building from it, if the intention at the time of erecting 
 it was to render it a part of the realty, and this fact is found by the 
 court trying the cause. 
 
 This being so, the lot being the property of appellant, the building 
 became a part of it, not as a chattel, but as part and parcel of the 
 realty, and any one meddling with it, to disturb it, would be a tres- 
 passer on the realty. So, when, by means of a trespass, the building 
 was placed on the Dennis lot, upon brick pillars sunk in the ground, 
 it became a part of that lot, it was incorporated into the realty, and 
 was not the subject of a writ of replevin. In its transit from one lot 
 to the other, it might be regarded as personalty, but when it became at- 
 tached to the soil, it lost that character. 
 
 As to the advances made by appellant, for plastering and carpenter's 
 work, it appears a large part of that has been arranged by the services 
 of Mrs. Singleton. But there is no proof these advances were made 
 at Singleton's request, and if they were, they do not change the na- 
 ture of the property. In equity, perhaps, appellant might establish a 
 lien for the amount. 
 
 Holding these views, we must affirm the judgment. 
 
 Judgment affirmed.
 
 'Sec. 2) ANNEXATION TO THE LAND OF ANOTHEK 347 
 
 SHOEMAKER v. SIMPSON. 
 
 (Supreme Court of Kansas, 1876. 16 Kan. 43.) 
 
 Valentine, J."" This was an action of replevin brought by Shoe- 
 maker, Miller & Co. against Wm. A. Simpson and others, for the re- 
 covery of twenty-six bars of railroad iron. The facts, stated briefly, 
 are substantially as follows : Originally Shoemaker, Miller & Co. 
 owned a large lot of railroad iron (including said twenty-six bars) at 
 the state line, near Wyandotte. They intended to use said iron in 
 building a railroad, which they had previously agreed to build for the 
 Kansas Pacific Railway Company, (then Union Pacific Railway Com- 
 pany, Eastern Division,) from Junction City, westwardly. They em- 
 ployed said Kansas Pacific Railway Company to transport said iron 
 from the state line westwardly to the place where they expected to 
 use it. At the same time William A. Simpson (one of the defendants) 
 owned certain town lots in the city of Lawrence, on the north side of 
 the Kansas river, and between the said river and the Kansas Pacific 
 Railway. Previously a railroad track had been constructed across said 
 lots from the Kansas Pacific railway to said river. But at this time, the 
 iron which had originally been put on said track had been removed 
 therefrom, and only the road-bed and cross-ties then remained. About 
 this time the Kansas Pacific Railway Company, or its agents, took said 
 twenty-six bars of iron from the iron of Shoemaker, Miller & Co. at 
 the state line, transported them to Lawrence, and then spiked them 
 down on the said cross-ties on the lots of said William A. Simpson. 
 This was done by the Kansas Pacific Railway Company, or its agents, 
 for the temporary purpose of obtaining some ninety car-loads of sand 
 from the Kansas river, and it was intended to remove said iron as soon 
 as the sand was obtained. This was all done without the knowledge or 
 consent of either Shoemaker, Miller & Co., or said Simpson. The 
 railway company had however taken other iron from Shoemaker, Mil- 
 ler & Co. for which they subsequently settled, but the parties never 
 settled for this particular iron, and Shoemaker, Miller & Co. objected 
 to the railway company taking or using their iron in any such manner. 
 Afterward, said Simpson through his agents removed said twenty-six 
 bars of iron from his said lots, claiming the same to be his own. Shoe- 
 maker, Miller & Co. then commenced this action, and replevied said 
 twenty-six bars of iron from said Simpson and his agents, the other de- 
 fendants. The action was tried in the court below by the court with- 
 out a jury. The court made separate and special findings of fact and 
 of law. Upon these findings the court rendered judgment for the de- 
 fendants and against the plaintiffs. 
 
 50 Part of the opinion is omitted.
 
 348 FIXTURES (Ch. 5 
 
 We think the court below erred. We know of no way by which an 
 innocent person can be permanently and legally deprived of his prop- 
 erty against his will by the wrongs and trespasses of others, so long as 
 it remains within the power of such innocent person to reclaim his 
 property without committing any serious or substantial injury to the 
 person or property of any other person. * * * The theory upon 
 which the defendants claim that the property of the plaintiffs became 
 their property is as follows: The said iron was spiked down to said 
 cross-ties. It then became a part of the realty; and as the defendants 
 owned the realty, they therefore owned the iron. And they further 
 claim that the subsequent removal of the iron from said cross-ties did 
 not have the effect to change the property back from themselves to the 
 plaintiffs. The whole question in this case therefore depends upon 
 whether said twenty-six bars of iron became a part of the defendants' 
 real estate as between the plaintiff's and the defendants. If it did not 
 become real estate at all, or if it did not become real estate as between 
 the plaintiffs and defendants, then the plaintiffs must recover. It be- 
 ing real estate as between the defendants and the railway company, or 
 as between the defendants and every other person in the World except 
 the plaintiffs, would not enable the defendants to recover. Now we 
 suppose, that where one person or one corporation owns both the road- 
 bed of a railroad and the iron attached to it, the iron is unquestionably 
 a part of the realty. And where a trespasser, not owning the road-bed, 
 attaches his own iron to the road-bed, the iron immediately becomes a 
 part of the realty, and belongs to the owner of the road-bed. But nei- 
 ther of these cases is the present case. It is sometimes very difficult 
 under the peculiar circumstances of a particular case to determine 
 whether a particular thing is a part of the realty or not. It does not 
 depend upon one fact alone, but generally upon several facts. And 
 among these facts are those of attachment to the soil, the intention of 
 the parties, and those facts which enter in to show where the equities 
 and justice of the case are. Even the nature and extent of the attach- 
 ment have much weight in determining whether a given thing is a part 
 of the realty or not. Even a trespasser may place his personal prop- 
 erty on the soil of another, where no connection exists, without it be- 
 coming real estate, or without it becoming the property of the owner of 
 the soil. While on the other hand, the owner of the soil might even 
 steal the personal property of another, and so incorporate it into his 
 real estate that it would become a part thereof, and could never be re- 
 claimed by the owner. And between these two extremes there are in- 
 finite degrees and modes of attachment and connection of various 
 things with the soil. Where the connection is slight, property is often 
 considered personal property ; whereas, if the connection were close 
 and intimate it would be considered real estate. * * * 
 
 In the present case the connection between the iron and the real es-
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHER 349 
 
 tate to which it was attached is not very close or intimate. The iron 
 may be removed without substantial injury to either the iron or the 
 real estate. And railroad iron, fastened down to the road-bed, as this 
 was, does not necessarily become a part of the real estate. It may re- 
 main personal property. Hunt v. Bay State Iron Co., 97 Mass. 279; 
 Haven v. Emery, 33 N. H. 66. It was never the intention of the plain- 
 tiffs that this iron should become a part of the defendants' real estate. 
 Indeed, no person ever had any such intention except the defendants 
 themselves. The plaintiffs never intended to give this iron to the de- 
 fendants. They never intended to abandon it to any person who might 
 take possession of it. They never committed any trespass or wrong to- 
 ward the defendants. And it would be against justice and equity to 
 deprive them of their property. * * * ^ wrongdoer may lose his 
 personal property by voluntarily attaching it to the land of another. A 
 person not a wrongdoer, may, by his own consent, lose his personal 
 property by attaching it or allowing it to be attached to the land of an- 
 other. A person may even lose his personal property by wholly aban- 
 doning it to any person who may pick it up, although it may never be 
 attached to any person's real estate. And an innocent person may 
 sometimes against his consent lose his personal property by the same 
 being incorporated into the real estate of some other person, so that it 
 cannot be separated without great inconvenience and loss. But we do 
 not think that any innocent person can be deprived of the title to his 
 personal property against his consent by having it attached without 
 his consent to the real estate of another by a third person, where such 
 personal property, can be removed without any great inconvenience, 
 and without any substantial injury' to the real estate. * * * 
 
 The judgment of the court below will be reversed, and cause re- 
 manded with the order that judgment be rendered on the findings of 
 the court below in favor of the plaintiffs, and against the defendants.'^ 
 
 51 Aec: Eisenhauer v. Quinn, 36 Mont 368, 93 Pac. 38, 14 L. R. A. (N. S.) 
 435. 122 Am. St. Rep. 370 (1907). 
 
 Compare Keese v. Jared, 1.5 Ind. 142, 77 Am. Dec. 88 (1860) ; Michigan Mut. 
 Life Ins. Co. v. Cronk, 03 Mich. 49, 52 N. W. 1035 (1S92). 
 
 A. mortgaged to B. a house and lot. A. then tortiously removed the house 
 and annexed it to another piece of land. Held, the house is still subject to 
 B.'s mortgage. Hamlin v. Parsons, 12 Minn. 108 (GU. 59), 90 Am. Dec. 284 
 (1SG7).
 
 350 FIXTURES (Ch. 5 
 
 MITCHELL V. BRIDGMAN. 
 (Supreme Court of Minnesota, 1898. 71 Minn. 360, 74 N. W. 142.) 
 
 Start, C. J."" Action to quiet title, and permanently to enjoin the 
 defendant from removing a dwelling house from lot 9, block 3, Stearns' 
 addition to the city of St. Cloud. 
 
 The answer alleged that the defendant built the house upon lot 9 by 
 mistake, and in the belief that he was erecting it upon his own lot, 
 which adjoined the lot upon which the house was so placed, and prayed 
 judgment that he be allowed to remove the hduse, or be decreed a lien 
 on the premises for the value of the house. The trial court made its 
 findings of fact and conclusions of law, and ordered judgment for the 
 plaintiff for the relief asked, and defendant appealed from the judg- 
 ment. The assignments of error raise the question whether the facts 
 found by the trial court justify its conclusion of law and order for 
 judgment, which in effect deny the defendant any compensation for 
 the house, and enjoin him from removing it. 
 
 The material facts, as found by the court, are: The defendant, in 
 the spring of 1890, supposing that he was building the house here in 
 question upon his own adjoining lot, in fact built it by mistake upon 
 lot 9; but such mistake was the result of his own negligence and care- 
 lessness, and the fault of no one else. Lot 9 was then owned by 
 George H. Sheldon, W. C. Wren, and Henry T. Elliott. After the 
 erection of the house upon lot 9 the defendant discovered his mistake, 
 and entered into negotiations with the resident agent of the owners for 
 the purchase of the lot, and it was agreed between them that the de- 
 fendant should pay $300 for the lot. The agent procured from the 
 landowners a deed of the lot, and had it ready to deliver to the defend- 
 ant upon the payment of the purchase price. Though requested and 
 urged by the agent to pay the money and take the deed, he neglected 
 to do so; and the deed was thereafter withdrawn from the agent by 
 W. B. Mitchell, acting for the owners of the lot, and the name of 
 Jane H. Whittlesey was by him substituted and inserted in the deed as 
 the grantee (the name of the grantee having been left blank), and 
 thereupon she paid to the grantors tlie purchase price for the lot, and 
 the deed was delivered to her on August 3, 1892, and duly recorded. 
 
 Ever since this date, until her death, which occurred after the com- 
 mencement of this action, in 1894, Jane H. Whittlesey was the owner 
 in fee of lot 9, and in possession by her tenant of it and the house 
 thereon. She died pending this action, and her administrator, William 
 B. Mitchell, was substituted as plaintiff. The trial court also found 
 
 £^2 Part of tlie opinion of Start, C. J., and the opinion of Canty, J., are 
 omitted.
 
 Sec. 2) ANNEXATION TO THE LAND OF ANOTHEB 351 
 
 that Jane H. Whittlesey acquired title to the house and lot without any 
 intention on her part to wrong or defraud the defendant, who claims 
 an interest in the house, and threatens to move the same from the lot, 
 but that he has no right or interest therein. Judged by the record, this 
 seems to be a hard case, and that tliere ought to be some relief for the 
 defendant; but upon the facts found, and the settled rules of law, there, 
 is none. * * * 
 
 There is neither evidence nor finding in this case that the owners of 
 the lot had any notice at any time that the defendant was building the 
 house on their lot, or that there was any license from them, express or 
 implied, that he might do so. The case stands upon the specific finding 
 that the defendant built the house upon the lot of another by mistake, 
 supposing that he was erecting the same upon his own adjoining lot, 
 but that such mistake was the result of his own negligence, and the 
 fault of no one else. That the house became a part of the lot upon 
 which it was built, and the absolute property of the owners thereof, is 
 a proposition too well settled to admit of discussion. Our occupying 
 claimants' statute has modified the rigor of the common law in many 
 cases, but none of its provisions are applicable to a case like the one 
 at bar. 
 
 Judgment affirmed.'' 
 
 63 Ace: Goddard v. Bolster, 6 Greenl. (6 Me.) 427, 20 Am. Dec. 320 (1S30); 
 DoscLer v. BlacUiston, 7 Or. 143 (1879). So where the mistnke was not neg- 
 ligent. Stillman v. Hauler, 7 How. (S Miss.) 421 (1843) ; Huebschnianu v. Mc- 
 Henry, 20 Wis. G55 (1872). Contra, McDaniel v. Llpp, 41 Keb. 713, 00 N. W. 
 SI (1894), senilile. 
 
 A railroad company, having the right of eminent domain, constructed a 
 roadbed and lahl its rails across A.'s land without first condemning it. In a 
 .subsetiuent action to fix the amount to lie paid for the land by' the railroad, 
 held, the value of the rails and ties should not be included. Newgass v. 
 Kailway Co., 54 Ark. 140, 15 S. W. 188 (1891) ; San Francisco & N. P. R. 
 Co. V. Taylor, 86 Cal. 246, 24 Pac. 1027 (1890) ; Justice v. Nesquelioning Val- 
 ley B. Co., 87 Pa. 28 (1878). Compare Trimmer v. Pennsylvania, P. & B. E. 
 Co., 55 N. J. Law, 46, 25 Atl. 932 (1892).
 
 352 FIXTURES (Ch. 5 
 
 SECTION 3.— CONFLICTING RIGHTS ARISING FROM THE 
 AMBIGUOUS NATURE OF FIXTURES 
 
 BRENNAN et al. v. WHITAKER et al. 
 (Supreme Court of Ohio, 1S64. 15 Ohio St. 446.) 
 
 [The plaintiff sold a boiler and engine to Farley and Ketcham who 
 executed to the plaintiff a purchase money chattel mortgage. This 
 latter was duly recorded as such. The boiler and engine were incor- 
 porated in a factory owned by the mortgagors. They subsequently 
 executed to the defendants a real mortgage upon the mill to secure an 
 indebtedness owing by them to the defendants. This mortgage was 
 duly recorded, and the defendants subsequently took possession of the 
 mill. The plaintiffs demanded possession of the machinery. The de- 
 fendants refused and the plaintiffs brought action for conversion. 
 Judgment for defendants. Plaintiffs appealed.] 
 
 White, J.^* I. The plaintiff's seek to recover for a tort arising 
 from the conversion of the property in controversy; and, in order to 
 establish their title to such property, as against the defendants Whit- 
 aker and Phillips, rely upon the chattel mortgage. In order to ascer- 
 tain the relation in which Whitaker and Phillips stand to this mort- 
 gage, it is proper, in the first place, to determine whether they had 
 notice of its existence at the time they received their real estate mort- 
 gage. The issue, upon this question of notice, has been twice found in 
 favor of the defendants, by the court of common pleas, and this find- 
 ing we are now asked to review, on the ground that it is against the 
 evidence. On this point, we only deem it necessary to state, that the 
 testimony in the court below was conflicting; and while, as original 
 triers of fact, we would have been inclined to find differently, yet we 
 can not say that the finding is so manifestly wrong as to warrant this 
 court in reversing the judgment on this ground. 
 
 II. The next question is whether as between Farley & Ketcham, the 
 mortgagors, and Whitaker and Phillips, the mortgagees, in the real es- 
 tate mortgage, the property in controversy, became a part of the free- 
 hold. We are of opinion that it did. * * * 
 
 III. The remaining question is, whether the chattel mortgage to the 
 plaintiffs, as against the real estate mortgagee, deprives the property in 
 controversy of the character of fixtures. The plaintiffs claim that this 
 is the effect of the chattel mortgage ; and that they have the same right 
 to recover the property from the mortgagees (Whitaker and Phillips), 
 
 «* Part of the opinion is omitted.
 
 Sec. 3) CONFLICTING EIGHTS 353 
 
 without notice, as they would have had against Farley & Ketcham, if 
 the real estate mortgage had not been given. 
 
 It is not necessary to inquire what, as against mortgagees without 
 notice, would have been the rights of a party, other than the owner of 
 the freehold, who might have placed, in the same manner upon the 
 premises, the property in question, under some agreement with the 
 owner, for a temporary purpose, and with the right of removal ; nor 
 as to what would have been the effect if the property had been an- 
 nexed by the tortious act of Farley & Ketcham. The facts in this case 
 raise neither of these questions, and we forbear entering into an ex- 
 amination of the authorities cited bearing upon them. Here it was 
 not only the intention of Farley & Ketcham to annex the property to, 
 and make it a part of, the freehold, but their so doing was according 
 to the understanding of the parties when the mortgage to the plain- 
 tiffs was executed. In the mortgage it said the boilers are "designed 
 to be used in their (F. & K.'s) saw-mill," and power is given the plain- 
 tiffs on default of payment, "to take possession thereof (mortgaged 
 property) whether the same shall be attached to the freehold and in 
 law become a part of the realty or not." The right given to the plain- 
 tiffs, by the mortgage, to enter upon the premises and sever the prop- 
 erty would, doubtless, have been effectual as between the parties. But 
 the defendants were purchasers without notice of this agreement. 
 The filing of chattel mortgages, is made constructive notice, only, of 
 incumbrances upon goods and chattels. The defendants purchased, 
 and took a conveyance of real estate, of which the property now in 
 question was, in law, a part ; and, in our opinion, it devolved upon the 
 plaintiffs who sought to change the legal character of the property, and 
 create incumbrances upon it, either to pursue the mode prescribed by 
 law for incumbering the kind of estate to which it appeared to the 
 world to belong, and for giving notice of such incumbrance, or, other- 
 wise, take the risk of its loss in case it should be sold and conveyed 
 as part of the real estate to a purchaser without notice. It is true that 
 in the case of Ford v. Cobb, 20 N. Y. 344, it was held that an agree- 
 ment which was evidenced by a chattel mortgage was effectual against 
 a subsequent purchaser of the land, without notice. But it seems to 
 us to be the sounder rule, and more in accordance with principle, and 
 the policy of our recording laws, to require actual severance, or notice 
 of a binding agreement to sever, to deprive the purchaser of the right 
 to fixtures or appurtenances to the freehold. Fortman v. Goepper, 14 
 Ohio St. 565 ; 2 Smith's L. C. 259 ; Fryatt v. Sullivan Co., 5 Hill (N. 
 Y.) 116; Richardson v. Copeland, 6 Gray (Mass.) 536, 66 Am. Dec. 
 424: Frankland et al. v. MouUon et al., 5 Wis. I. * * * " 
 
 Judgment affirmed. 
 
 56 Ace.: Pierce v. George, lOS Mass. 78, 11 Am. Rep. 310 (1S71) ; Ice, Light 
 & Water Co. v. Lone Star Engine & Boiler Works, 15 Tex. Civ. App. 694, 41 
 S. W. 835 (1S97). 
 
 Big.Pehs.Pbop.— 23
 
 334 FIXTURES (Ch. 5 
 
 SOWDEN V. CRAIG. 
 (Supreme Court of Iowa, 1868. ' 26 Iowa, 156, 96 Am. Dec. 125.) 
 
 [Replevin for engines, boilers, and other machinery. They were 
 sold by the plaintiffs to one Burris in 1856, who gave a chattel mort- 
 gage back which was duly recorded in the same year. The articles 
 were erected in a mill owned by Burris so that they could not be sev- 
 ered without partly destroying the mill. This erecting was done under 
 the plaintiff's supervision. In 1857 one Druse worked in the erection 
 of the mill, he had no actual knowledge of the plaintiff's mortgage un- 
 til after completing his work in June, 1857. He later established his 
 mechanic's lien by judgment, bought in the property, dismantled the 
 mill and sold the machinery to the defendant who bought without 
 knowledge of die facts.] 
 
 Cole, J.^'* * * * 'pj^g defendant's vendor (Druse) acquired his 
 title to the property under a mechanic's lien claim. By our law then 
 in force (Code of 1851, § 981), it was provided, that the mechanic had 
 "a lien upon the land, including the building, with its appurtenances, 
 for the amount due him for work or material, against all persons ex- 
 cept incumbrancers by judgment rendered, and by instrument record- 
 ed, before the commencement of the work or the furnishing of the ma- 
 terial." From the facts proven in the case, which are shown by the 
 statement preceding this opinion, it appears that the plaintiff's mort- 
 gage or bill of sale upon the property in controversy, as chattels, was 
 duly recorded at the time tlie mechanic commenced his work. The 
 notice imparted by the due and proper record of such an instrument, 
 though called a constructive notice, is just as effectual for the protec- 
 tion of the rights of the parties as an actual notice by the word of 
 mouth, or otherwise. Any other construction of our registry laws 
 would effectually nullify them. 
 
 The property in controversy was not, so far as the evidence shows, 
 attached to the real estate at the time the mechanic commenced work. 
 The record of the mortgage upon it, as chattels, was, therefore, no- 
 tice to him of the rights of the plaintiffs therein. Having notice 
 then of plaintiff's' rights, he could not, by his own act and labor, take 
 their property, and, by making the same fixtures upon the real estate, 
 subordinate their rights to his. Nor would the fact that the plaintiffs 
 had sold the property for the purpose of having the same made fix- 
 tures, and had sent their own agent or employee to aid and direct in 
 the putting up of the machinery, operate to defeat their right. This 
 property, it will be borne in mind, is the legitimate subject for fix- 
 tures, and is that class of property about which the law permits par- 
 ies Part of the opinion of Cole, J., and the dissenting opinion of Dillon, C. 
 J., are omitted.
 
 Sec. 3) CONFLICTING EIGHTS 355 
 
 ties to contract so as to control, as between themselves, its character, 
 after being affixed, making it either personal property or real estate. 
 The mortgaging of it as personal property would, as between the par- 
 ties, and those having notice thereof, make it such. Of course, a dif- 
 ferent rule would obtain, in relation to bricks, lime, boards, beams, etc., 
 used in constructing a house; these, by such use, lose their individ- 
 uality, and become absorbed in, and made a part of, rather than simply 
 annexed to, the real estate. 
 
 The precise point we rule in this case is, that where the owner of 
 real estate executes a mortgage upon chattels, which may properly 
 be made fixtures, and subsequently affixes them to tlie real estate, that 
 no person having knowledge of such facts can, by purchase of the real 
 estate or otherwise, acquire from the mortgagor any title to such chat- 
 tels paramount to the mortgagee thereof. 
 
 ^^'hat would be the rights of the parties in case the chattels were 
 affixed before die mortgage, or where the third party acquired his ti- 
 tle without notice of it, we do not determine. 
 
 It may not be improper for us to state that we have given to this 
 case the most deliberate consideration, and in the light of able and 
 searching arguments. We have also examined in detail the numerous 
 cases cited by counsel in their respective briefs, but we do not deem it 
 necessary for us to review them herein. We ground our decision upon 
 well settled principles, and are strengthened in our conclusion by the 
 fact that none of the cases cited are in necessary conflict with it. 
 
 Reversed. ^^ 
 
 Dillon, C. J., dissents. 
 
 HOBSON v. GORRIXGE. 
 
 (Court of Appeal. [1S97] 1 Ch. 182.) 
 
 This was an appeal from a decision of Kekewich, J., upon a motion 
 to restrain the defendant from selling or disposing of to any person 
 other than the plaintiff an 11 horse power Stockport gas engine, erect- 
 ed at the South Coast Steam Saw Mills, \\'orthing, lately in the occu- 
 pation of J. G. King, the hirer of the engine from the plaintiff. The 
 defendant claimed as mortgagee of the saw mills to be entitled to the 
 engine as a fixture. On the hearing of the motion, it appearing that 
 negotiations were pending for the sale of the mortgaged premises, a 
 sum of £55. was deposited by agreement in the joint names of the 
 
 57 Ace. : Ford v. Cnbh, 20 X. Y. 344 (ISiiOl ; Lnwton Pressed Brick & Tile 
 Co. V. Ross-Kellar Triple Pressure Brick Mach. Co., 3.3 Okl. 59, 124 Pac. 43, 
 49 L. R. A. (X. S.I 39.5 (1912) ; Monarch Laundry v. Westbrook, 109 Va. 3S2, 
 63 S. E. 1070 (1909). To same effect, see language of court in Sword y. tow, 
 122 111. 4S7, 13 N. E. 826 (1SS7).
 
 356 FIXTURES (Ch. 5 
 
 plaintiff's and defendant's solicitors, as representing the value of the 
 engine, to abide the result of the motion, which was to be treated as 
 the trial of the action. Kekewich, J., decided that the defendant was 
 entitled to the money. The plaintiff appealed. 
 
 The facts were as follows : 
 
 By a contract in writing dated January 7, 1895, Hobson, thereinafter 
 called the owner, let to King, a builder, thereinafter called the hirer, 
 the gas engine in question upon what is known as the hire and pur- 
 chase system for the purpose of being fixed upon King's land at 
 Worthing, of which King was the owner in fee, and on which a saw 
 mill had been erected. By clause 3 the hirer agreed to pay the owner 
 for the hire and use of the gas engine the sum of il8. before delivery, 
 and the sum of £3. 10s. per month after delivery for a period of ten 
 months. Clause 4 provided that if, during the continuance of the hir- 
 ing, the hirer failed to pay the hire or any part thereof the agreement 
 should forthwith determine, and the owner should be at liberty to re- 
 possess himself of and to remove the gas engine, and the hirer should 
 have no claim whatever against the owner, either for money he had 
 paid for the use of the gas engine or for any damage sustained by rea- 
 son of the retaking thereof. By clause 6 the owner agreed that at the 
 expiration of ten months, if the hirer should in all things have per- 
 formed his part of the agreement, the rent or hire named in clause 3 
 should cease, and the gas engine should become the absolute property 
 of the hirer on the further payment of £3. Clause 7 provided that 
 the agreement should not be construed to operate in any way as a con- 
 tract for the sale of the gas engine, but only as an arrangement for 
 the hire thereof, and unless and until the hiring terminated under the 
 provisions of clause 6 the hirer should have no right or property in the 
 gas engine at law or in equity save as bailee thereof for hire. 
 
 This gas engine, as was known to Hobson, was required by King to 
 drive his saw mill, and the way in which it was to be erected and was 
 in fact erected was as follows : In the first place a bed of concrete was 
 prepared in which were embedded two iron plates, out of each of the 
 four outside corners of which an iron bolt projected upwards in a ver- 
 tical position, having a screw at its uppermost end. The base-plate of 
 the engine was fitten with four holes, one at each outside corner, so 
 that when the engine was placed in position upon the concrete bed the 
 four bolts projected through the four holes in the base of the engine, 
 and nuts were then screwed down tightly upon the tops of the bolts, 
 and thus the engine was kept in position and prevented from rocking 
 and shifting, as it would have done if merely placed upon the concrete 
 foundation without the aid of the projecting bolts. There was aftixed 
 to the engine when delivered to King a plate called a "hire plate," bear- 
 ing the inscription, "This engine is the property of Wilfred Hobson, 80 
 Queen Victoria Street, E. C."
 
 Sec. 3) CONFLICTING RIGHTS 357 
 
 King paid some of the monthly instalments to Hobson and then fell 
 into arrear, and he never completed the stipulated payments so as to 
 become the owner of the gas engine as a chattel. 
 
 By a deed of transfer and further charge dated July 24, 1895, a 
 mortgage debt of £400. secured on King's land by a deed dated March 
 26, 1894, was assigned to the Rev. Mr. Gorringe, and King and his 
 mortgagee conveyed to him the land in question (together with the 
 saw mill, engine-house, warehouses, and other building erected thereon, 
 and the fixed machinery and fixtures) in fee simple to secure the said 
 sum of i400., and a further advance of i200., making a total of £600., 
 subject to the usual proviso for redemption. 
 
 On January 17, 1896, King was adjudicated a bankrupt, and in 
 March, 1896, the mortgagee, Mr. Gorringe, entered and took possession 
 of the mortgaged premises, together with the gas engine, which he 
 found in its place as before mentioned. 
 
 A. L. Smith, L. J.'" [The Lord Justice stated the facts substan- 
 tially as above set out, and continued as follows:] 
 
 The question is whether Mr. Gorringe is entitled, under the above 
 circumstances, to the gas engine. It is not disputed that he is entitled 
 to the land ; but the plaintiiT, Mr. Hobson, denies that he is entitled to 
 the gas engine upon the ground that it had never become King's and 
 had always remained a chattel belonging to him. Hobson. There can 
 be no doubt, upon a mortgage in fee of the land, that, as between the 
 mortgagor and mortgagee, the mortgagee is entitled to all fixtures 
 which may be upon the land, whether placed there before or after the 
 mortgage. If North, J., in the passage in his judgment which has 
 been referred to in Cumberland Union Banking Co. v. Maryport Hae- 
 matite Iron & Steel Co., [1892] 1 Ch. 425, meant to hold otherwise, 
 in our opinion he was in error ; but we doubt if he intended so to hold. 
 The case of Gough v. Wood & Co., [1894] 1 Q. B. 713, decided in this 
 court, in no way assists the plaintiff, and has no application to the 
 present case. That case was decided solely upon the ground that the 
 mortgagee had acquiesced in the removal by the mortgagor during his 
 tenancy of trade fixtures. For additional confirmation of the ratio 
 decidendi of this case what was said by Lindley, L. J., and by Kay, 
 L. J., in the case of the Huddersfield Banking Co. v. Henry Lister & 
 Son, [1895] 2 Ch. 273, 282, 286, may be referred to. Even if in the 
 present case a license had been granted by Gorringe to King to remove 
 the gas engine during the continuance of a term, neither of which con- 
 ditions in fact existed Gorringe, by entering and taking possession of 
 the land and engine, would have determined such license. 
 
 We now come to the real point made on behalf of the plaintiflf, 
 Hobson. It is this. It is said that this gas engine never was a fixture, 
 
 5 8 Part of the opinion is omitted.
 
 358 FIXTURES (Ch. 5 
 
 but always remained a chattel, and consequently never passed to Gor- 
 ringe as mortgagee of the land. It obviously did not pass to him as a 
 chattel under the mortgage to him of "fixed machinery," for, if a chat- 
 tel, it ever remained Hobson's, and never was the property of King; 
 and unless Mr. Gorringe takes the engine as part of the land mort- 
 gaged to him he does not take it at all. Now, leaving out of consider- 
 ation for the present the hire and purchase agreement of Jaimary 7, 
 1895, there is a sequence of authorities which establish that the gas 
 engine, affixed as it was and for the purpose for which it was to King's 
 freehold, ceased to be a chattel and became part of the freehold. * * * 
 
 But it was argued that the terms of the hiring and purchase agree- 
 ment caused this engine to remain a chattel, notwithstanding its annex- 
 ation to the soil, for it was said that the intention of the parties who 
 placed it where it was must be considered, and if this consideration 
 shewed tliat the intention was that the chattel was not to be a fixture, 
 though actually fixed to the freehold, it still remained a chattel. In 
 support of this argument a passage in the judgment of Lord Black- 
 burn (then Blackburn, ].), when delivering the judgment of the Ex- 
 chequer Chamber in Holland v. Hodgson, L. R. 7 C. P. 328, was 
 quoted. That learned judge, when dealing with what were or were 
 not fixtures, says, L. R. 7 C. P. 335 : "Perhaps the true rule is, that 
 articles not otherwise attached to the land than by their own weight 
 are not to be considered as part of the land, unless the circumstances 
 are such as to shew that they were intended to be part of the land, the 
 onus of shewing that they were so intended lying on those who assert 
 that they have ceased to be chattels, and that, on the contrary, an ar- 
 ticle which is affixed to the land even slightly is to be considered as 
 part of the land, unless the circumstances are such as to shew that it 
 was intended all along to continue a chattel, the onus lying on those 
 who contend that it is a chattel." The question in each case is wheth- 
 er the circumstances are sufficient to satisfy the onus. 
 
 It is said on behalf of the plaintifl^ that the hire and purchase agree- 
 ment shews an intention on Mr. Hobson's part, as also on King's part, 
 that the gas engine should remain a chattel until King had paid the 
 stipulated instalments, which he never did. Now, if the engine had 
 been a trade fixture, erected by King as tenant, with a limited interest, 
 we apprehend that when affixed to the soil, as it was, it would have be- 
 come a fixture — i. e., part of the soil, and would immediately have 
 vested in the owner of the soil, subject to the right of King to remove 
 it during his term. "Such," says Lord Chelmsford, in Bain v. Brand 
 (1876) 1 App. Cas. 762, 772, "is the general law. But an exception has 
 been long established in favour of a tenant erecting fixtures for the 
 purposes of trade, allowing him the privilege of removing them dur- 
 ing the continuance of the term. When he brings any chattel to be 
 used in his trade and annexes it to the ground it becomes a part of the
 
 Sec. 3) CONFLICTING RIGHTS 359 
 
 freehold, but with a power as between himself and his landlord of 
 bringing it back to the state of a chattel again by severing it from the 
 soil. As the personal character of the chattel ceases when it is fixed 
 to the freehold, it can never be revived as long as it continues so an- 
 nexed." 
 
 It seems to us that the true view of the hiring and purchase agree- 
 ment, coupled with the annexation of the engine to the soil which took 
 place in this case, is that the engine became a fixture — i. e., part of the 
 soil — when it was annexed to the soil by screws and bolts, subject as 
 between Hobson and King to this, that Hobson had the right by con- 
 tract to unfix it and take possession of it if King failed to pay him the 
 stipulated monthly instalments. In our opinion, the engine became a 
 fixture — i. e., part of the soil — subject to this right of Hobson which 
 was given him by contract. But this right was not an easement created 
 by deed, nor was it conferred by a covenant running with the land. 
 The right, therefore, to remove the fixture imposed no legal obligation 
 on any grantee from King of the land. Neither could the right be en- 
 forced in equity against any purchaser of the land without notice of 
 the right, and the defendant Gorringe is such a purchaser. The plain- 
 tiff's right to remove the chattel if not paid for cannot be enforced 
 against the defendant, who is not bound either at law or in equity by 
 King's contract. The plaintiff's remedy for the price or for damages 
 for the loss of the chattel is by action against King, or, he being bank- 
 rupt, by proof against his estate. 
 
 This, in our judgment, is sufficient to determine this case in favour 
 of the defendant j but as another point has been stoutly argued on be- 
 half of the plaintiff, we will deal with it. It is said that the intention 
 that the gas engine was not to become a fixture might be got out of the 
 hire and purchase agreement, and, if so, it never became a fixture and 
 jiart of the soil, and it was said that the case of Holland v. Hodgson, 
 L. R. 7 C. P. 328, had so decided. For this point it must be assumed 
 that such intention is manifested by the hiring and purchase agreement, 
 though, as before stated, we think it is not. Now, in Holland v. Hodg- 
 son, L. R. 7 C. P. 328, Lord Blackburn, when dealing with the "cir- 
 cumstances to shew intention," was contemplating and referring to ■ 
 circumstances which shewed the degree of annexation and the object 
 of such annexation which were patent for all to see, and not to the cir- 
 cumstances of a chance agreement that might or might not exist be- 
 tween an owner of a chattel and a hirer thereof. This is made clear 
 by the examples that Lord Blackburn alludes to to shew his meaning. 
 He takes as instances (a) blocks of stone placed in position as a dry 
 stone wall or stacked in a builder's yard ; (b) a ship's anchor affixed to 
 the soil, whether to hold a ship riding thereto or to hold a suspension 
 bridge. In each of these instances it will be seen that the circum- 
 stance to shew intention is the degree and object of the annexation
 
 SCO FIXTURES (Ch. 5 
 
 which is in itself apparent, and thus manifested the intention. Lord 
 Blackburn in his proposed rule was not contemplating a hire and pur- 
 chase agreement between the owner of a chattel and a hirer or any oth- 
 er agreement unknown to either a vendee or mortgagee in fee of land, 
 and the argument that such a consideration was to be entertained, in 
 our judgment, is not well founded. * * * 
 
 The point made upon the hire plate on the gas engine when delivered 
 comes to nothing, for it is no more than an indication of what the 
 agreement was between Hobson and King, and as there is no evidence 
 whatever that Mr. Gorringe was ever made aware of it, it cannot af- 
 fect his right as mortgagee in fee of King's land. 
 
 In our judgment Kekewich, J., was right when he gave judgment 
 as he did for the defendant, and this appeal must be dismissed with 
 costs.°* 
 
 ADAMvS MACHINE CO. v. INTERSTATE BUILDING, ETC., 
 
 ASS'N. 
 
 (Supreme Court of Alabama, 189S. 119 Ala. 97, 24 South. 857.) 
 
 The bill was filed by the appellee to foreclose a mortgage on real es- 
 tate, made by respondent, A. B. Jones, and to enjoin the removal of 
 certain fixtures alleged to have been conveyed by the mortgage. The 
 property to which appellant claims title, retained on a conditional sale 
 to Jones, consists of an engine, boiler, and hot wat€r heater, with at- 
 tachments, used in connection with and part of an electric light plant 
 
 5 Ace.: Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 86 S. W. 
 310 (1904) ; Washburn v. Inter-Mountuin Mining Co., 56 Or. 578, 109 Pac. 
 382, Ann. Cas. 1912C, 357 (1910). 
 
 A. leased to B., who built a heavy platform with the agreement that he 
 could remove it at the expiration of the lease. At the expiration A. prevent- 
 ed B. from removing and leased the premises as the.v stood to C, who knew 
 nothing of the agreement, and made repairs on the platform. Held, C. may 
 enjoin B. from removing it during C.'s term. Trask v. Little, 182 Mass. 8, 
 G4 N. E. 206 (1902). 
 
 A. conveyed to B. by chattel mortgage, duly recorded, spinning machines 
 kept in place by cleats, a steam engine, and shafting. A. later gave to C, who 
 took in good faith, a real mortgage of "the mill and all the machinery and 
 fixtures" therein. Held, B. can hold the spinning machines as against C. 
 Keeler v. Keeler, 31 N. J. Eq. ISl (1S79)-. 
 
 C. bought A.'s mill. B. claimed a piece of the machinery, and offered evi- 
 dence that he had delivered it to A. for him to buy if he was satisfied with 
 it after trial. Held, the evidence is admissible. Causey v. Empire Plaid 
 Mills, 119 N. C. ISO, 25 S. E. SC3 (189G). 
 
 A sul)sequent grantee or real mortgagee, who takes with notice of the prior 
 mortgage or conditional bill of sale, is subject thereto. Wood v. Hollv Mfg. 
 Co., 100 Ala. 326, 13 South. 948, 40 Am. St. Rep. 56 (1893); Ingersoll v. 
 Barnes, 47 Mich. 104, 10 N. W. 127 (ISSl). 
 
 The cases are collected in 49 L. It. A. (N. S.) 396.
 
 Sec. 3) CONFLICTING EIGHTS 3'<1 
 
 for lighting the buildings of a girls' boarding school. The appeal is 
 taken from a decree overruling appellant's demurrers, and a motion to 
 dismiss the bill for want of equity as to appellant. 
 
 Brickell, C. J. There is but a single question presented by this 
 appeal, and that is whether a vendor of chattels intended for annexa- 
 tion to the freehold, retaining in himself the title, and expressly stipu- 
 lating that it is not to pass except upon the condition of full payment 
 of the price by the vendee, the chattels having been, as was contem- 
 plated, annexed to the freehold, the condition remaining unperformed, 
 can assert and maintain his title against a subsequent bona fide mort- 
 gagee of the vendee, upon a present consideration, without notice of 
 the right and title of the vendor. 
 
 The question has been of such frequent discussion and decision in 
 this court that controversy ought to be silenced, and we deem it neces- 
 sary only to refer to the cases, extending through a period of nearly 
 20 years, which uphold the title of the vendor, and cast upon the sub- 
 sequent mortgagee the duty of inquiring and ascertaining for himself, 
 as must ever)- purchaser of chattels (statutes of registration not afford- 
 ing protection nor providing otherwise), the title of the vendor or 
 mortgagor. Fairbanks v. Eureka Co., 67 Ala. 109; Summer v. Wood, 
 67 Ala. 139, 42 Am. Rep. 104; Harmon v. Goetter, 87 Ala. 325, 6 
 South. 93; Fields v. Williams, 91 Ala. 502, 8 South. 808; Boulden v. 
 Oregon Co., 92 Ala. 182, 9 South. 283 ; Weinstein v. Freyer, 93 Ala. 
 257, 9 South. 285, 12 L. R. A. 700; Bingham v. Vandegrift, 93 Ala. 
 283, 9 South. 280; Wood v. Manufacturing Co., 100 Ala. 351, 13 
 South. 948, 46 Am. St. Rep. 56; Warren v. Liddell, 110 Ala. 232, 20 
 South. 89. The last-cited case is a full review of the authorities, and 
 an elaborate, and e.xhaustive discussion of the question in all its as- 
 pects. Opposing authority may be found elsewhere, but the courts of 
 this state must be governed by this long line of decisions. 
 
 We find no averment in the bill of any fact or facts taking the case 
 without the operation of the principle. The city court erred in over- 
 ruling the demurrer and the motion to dismiss the bill for want of eq- 
 uity as to the appellant, and the decree must be reversed, the demurrer 
 and motion to dismiss sustained, and as to the appellant the bill dis- 
 missed. 
 
 Reversed and rendered."" 
 
 60 A., with B.'s consent, erected a sawmill on B.'s land; it being agreeil 
 that it should remain A.'s personal property. It was later sold to C. as A.'s 
 personal property with B.'s consent. B. later took possession of it and the 
 land, and executed a conveyance thereof to D., who took in ignorance of 
 C.'s claim. Held, C. mav recover in an action of trover against V. the value 
 of the sawmill. Russell v. Richards, 10 Me. 429, 25 Am. Dee. 254 (1S33). 
 See Rev. St. Me. 1903, c. 75, § 32. Compare Case v. L'Oeble (C. 0.) &1 Fed. 5S2 
 (1S97).
 
 362 FIXTURES (Ch. 5 
 
 CAMPBELL V. RODDY. 
 
 (Court of Errors and Appeals of New Jersey, 1SS8. 44 N. J. Eq. 244, 14 
 Atl. 279, 6 Am. St. Rep. SS9.) 
 
 Reed, J." * * * The facts, then, present the bare question: 
 What is the position of a mortgagee of real estate into which mort- 
 gaged chattels have become incorporated by the act of the mortgagor, 
 subsequent to the execution of the real estate mortgage? 
 
 The elementary rule of the common law was quicquid plantatur solo 
 solo cedit. It may be stated, as a rule of great antiquity, that what- 
 ever is affixed to the soil becomes, in contemplation of law, a part of it, 
 and is, consequently, subjected to the same rights of property as the 
 soil itself. Broom's Maxims, 268. But many exceptions have become 
 engrafted upon this rule. 
 
 "The law of fixtures," says Kent, "is in derogation of the original 
 rule of common law which subjected everything affixed to the freehold 
 to the law governing the freehold, and it has grown into a system of 
 judicial legislation, so as almost to render the right of removal of fix- 
 tures a general rule instead of being an exception." 2 Kent's Com. 343. 
 
 The question whether property is or is not a fixture arises most fre- 
 quently between the tenant of a particular estate and those in reversion 
 or remainder. As between these parties it is held by a well-settled line 
 of cases, that the intention of the tenant making the annexation is one 
 of the three tests to be resorted to in ascertaining the nature of the 
 property. It is equally well settled that, in instances aside from those, 
 the mental attitude of the person making the annexation cannot modify 
 the legal effect resulting from an incorporation into the realty of that 
 which was personal property. Thus a structure erected on the land of 
 another will become the property of the owner of the land, although 
 built with a view of enforcing an adverse right in the land. Sudbury 
 V. Jones, 8 Cush. (Mass.) 184; Lee v. Risdon, 7 Taunt. 188; Wilde v. 
 Waters, 16 C. B. 637; Overton v. Williston, 31 Pa. 155. 
 
 An intent existing alone in the mind of him who makes the annexa- 
 tion, however, differs from another feature, which is recognized in the 
 cases as preserving the personal character of the property annexed. 
 That feature consists in the existence of a mutual agreement, express 
 or implied, between the owner of the real estate and the chattels, in 
 respect to the manner in which chattels shall be regarded after their 
 annexation. Such an agreement seems to be entirely efficacious in 
 preserving the personal character of the annexed chattels as between 
 the parties thereto. Pope v. Skinkle, 45 N. J. Law, 39; Harlan v. 
 Harlan, 20 Pa. 303 ; Ewell on Fix. 66. 
 
 «i Part of the opinion is omitted.
 
 Sec. 3) CONFLICTING BIGHTS 363 
 
 This rule, which seems simple enough when applied to a cause aris- 
 ing between the respective real and chattel owners, becomes more dif- 
 ficult of application when the rights of persons other than these own- 
 ers are involved. The additional question then arises, how far such 
 an agreement between these parties can affect purchasers, mortgagees, 
 or judgment creditors of the owner of the real estate on the one hand, 
 or of the chattels on the other hand. * * * 
 
 Whether the chattel mortgage in the present cause was registered or 
 unregistered, it, as between the parties thereto, created a lien in favor 
 of the mortgagee upon the engines and machinery mortgaged. The 
 interest of the mortgagee of the chattels as well as that of the prior 
 mortgagee of the real estate, under the doctrine respecting mortgages, 
 both real and personal, which obtains in this state, were mere securi- 
 ties. Woodside v. Adams, 40 N. J. Law, 417. 
 
 The inquiry naturally arises how far this lien of the chattel mortga- 
 gee can be preserved after the annexation. 
 
 It will be observed that the question now presented differs radically 
 from that which would have arisen, had the real estate mortgage been 
 executed subsequent to the annexation of the chattels. As between a 
 lienor who consents to have the subject-matter of his lien transmuted 
 into a shaf>e by which subsequent purchasers and mortgagees are liable 
 to be subjected to deceptive dealings, there seems to be no equitable 
 ground upon which the lien should be recognized against an innocent 
 subsequent mortgagee or purchaser for value. The entire spirit of our 
 registry acts is opposed to the notion that, in such a juncture of affairs, 
 the real estate purchaser would not be regarded as a bona fide pur- 
 chaser against whom the chattel mortgage would be void. But, as al- 
 ready observed, the real estate mortgagees, in the present case, held 
 their lien before the attachment to the realty of the mortgaged chattels. 
 It is true that by force of the annexation they would become subjected 
 to the lien of the real estate mortgage absolutely, unless the lien of the 
 chattel mortgagee inter\-enes. Any property belonging to the mortga- 
 gor, which he chooses to annex to the mortgaged premises, becomes 
 realty. But it is difficult to perceive any equitable ground upon which 
 the property of another, which the mortgagor annexes to the mortgag- 
 ed premises should inure to the benefit of a prior mortgagee of the 
 realty. The real estate mortgagee had no assurance at the time he 
 took his mortgage that there would be any accession to tlie mortgaged 
 property. He may have believed that there would be such an acces- 
 sion, but he obtained no right, by the terms of his mortgage, to a lien 
 upon anything but the property as it was conditioned at the time of its 
 execution. He could not compel the mortgagor to add anything to it. 
 So long therefore as he secured the full amount of the indemnity which 
 he took, he has no ground for complaint. There is therefore no inequi- 
 ty towards the prior real estate mortgagee, and there is equity toward
 
 364 FIXTURES (Ch. 5 
 
 the mortgagee of the chattels, in protecting the lien of the latter to its 
 full extent so far as it will not diminish the original security of the 
 former. As already remarked, the real estate mortgagee is entitled to 
 any annexation made by his mortgagor of his own property, but is not 
 entitled to the property of others. The property of the mortgagor in 
 these chattels, when he made the annexation, was an equity of redemp- 
 tion. So far as this interest had a value it became subjected to the 
 lien of the prior real estate mortgagee, but the value of his interest was 
 the value of the property subjected to the lien. 
 
 The supreme court of the United States has enunciated a rule which 
 I regard as analogous to the one now propounded. It is in respect to 
 the acquisition of property by a railroad company which has already 
 given a mortgage upon its road and franchises and upon future ac- 
 quired property. The doctrine announced is, that the mortgage attach- 
 es itself to the property in the condition in which it comes to the mort- 
 gagor's hands. In the language of Justice Bradley, in the case of Unit- 
 ed States v. New Orleans R. R. Co., 12 Wall. 362, 20 L. Ed. 434, it 
 only attaches to such interest as the mortgagor acquires, and if he pur- 
 chase property and give a mortgage for the purchase-money the deed 
 which he receives and the mortgage which he gives are regarded as one 
 transaction, and no general lien impending over him, whether in the 
 shape of a general mortgage or judgment or recognizance, can displace 
 such mortgage for purchase-money. This rule was followed in Fos- 
 dick v. Schall, 99 U. S. 235, 25 L. Ed. 339. It is true that, in the opin- 
 ions in these cases, there is a statement that the rule would be different 
 if the articles upon which the lien existed became incorporated into the 
 road itself. Instances may be imagined where the exception so indi- 
 cated would be proper. Where the articles are of such a character that 
 their detachment would involve the dismantling of an important fea- 
 ture of the realty, their annexation might well be regarded as an aban- 
 donment of the lien by him who impliedly assented to the annexation. 
 .Shingles, lumber, brick to be used in a building, railroad iron or ties to 
 be used in constructing a railroad, are apparent samples of such a class 
 of chattels. I am not prepared to say, however, that even in such in- 
 stances there may not be an equitable method of awarding to a prior 
 mortgagee of the realty all his rights, while preserving in some degree 
 the interest of the lienor of the chattels. For, in my view, the equitable 
 way of dealing with the property is, to preserve the right of the prior 
 real estate mortgagee to the same degree of security which he would 
 have enjoyed had the property remained as when mortgaged. The 
 preservation of that right in its full measure would, in some instances, 
 be entirely inconsistent with the recognition of any remaining adverse 
 right in an indistinguishable portion of the realty. The question in- 
 volves merely the practical application of equitable principles to the 
 diverse interests. I regard the case above cited as relevant, because I
 
 Sec. 3) CONFLICTING EIGHTS 30j) 
 
 see no greater legal difficulty, in preserving the lien upon property 
 which would otherwise become subjected absolutely to the lien of a 
 prior real estate mortgage by way of accretion or estoppel, than if it 
 became subject to such mortgage by an express agreement that the 
 mortgage should cover after-acquired property. 
 
 In the practical application of the equitable rule that the lien on the 
 chattels must give way to the previous lien upon the real property in 
 the degree already indicated, there is no difficulty where the annexed 
 chattels, as in the present case, are a distinguishable and separable part 
 of the realty. If the detachment of the articles so annexed will occa- 
 sion no damage to the realty, then the lien upon them can be enforced 
 in the same degree as if they had remained chattels. If the detach- 
 ment would occasion some diminution in the value of the freehold, as it 
 would have stood had the attachment not been made, then the deprecia- 
 tion must first be made whole to the real estate mortgagee before the 
 right of the chattel mortgagee can be recognized. So far as appears, 
 in the present case there can be no appreciable injury to the realty oc- 
 casioned by the removal of the engines and chattels. 
 
 It is perceived that the view above indicated does not rest upon an 
 agreement which presei^ves the chattel nature of the engines. It rests 
 upon an equitable preservation of the lien upon chattels after they are 
 transmuted into realty. The limitation upon the otherwise legal effect 
 of the annexation, is merely to this extent. The mortgagor's interest 
 in the chattels is not relieved from the legal result arising from the an- 
 nexation. If an engine worth $10,000 is attached by the mortgagor of 
 land so as to become a part of the land, I see no reason why it should 
 retain its character as personalty because there happens to be a pre- 
 vious chattel mortgage upon it for $500. The equity of redemption 
 is covered by the prior real estate mortgage. 
 
 This view maA" lead to an inquiry, when the occasion arises, whether 
 such annexation will cause a modification of the legal remedy of the 
 chattel mortgagee. It may also, where, as in this case, only a part of 
 the chattels covered by one chattel mortgage are annexed, call for a 
 marshaling of securities for the purpose of ascertaining whether the 
 portion annexed is still liable for any or what portion of the sum still 
 due upon the chattel mortgage. When, however, as seems to be proba- 
 ble in this case, the totality of the mortgaged chattels will be needed 
 to answer the claims secured, the application of the rule is simple. 
 
 The conclusion is that the decree below should be reversed, and the 
 cause remitted to the court of chancery. If it there appears that the 
 equity of redemption in the chattels -is valueless, that court can ex- 
 clude them from the sale under the foreclosure decree. If it appears 
 that there is some valuable interest in the equity of redemption, the 
 court can then either confine the sale to that interest so far as the 
 sale concerns these chattels, or can order them to be sold absolutely
 
 366 FIXTURES (Ch. 5 
 
 and leave the rights which the parties have in them to be adjusted in 
 making a disposition of the money arising from the sale."" 
 
 For affirmance: Van Syckul, Brown, Paterson, Whitaker. 
 For reversal : Thb Chancellor, Chief Justice, Depue, Knapp, 
 Magie, Reed, Scudder, Clement, Cole, McGregor. 
 
 TIPPETT 5: WOOD v. BARHAM. 
 
 (Circuit Court of Apiieals of the United States, Fourth Circuit, 1910. ISO 
 Fed. 76, 103 C. 0. A. 430, 37 L. R. A. [N. S.] 119.) 
 
 The question at issue upon this appeal arises between the holders 
 of bonds of the Peninsular Pure Water Company issued under and se- 
 cured by a mortgage to the Knickerbocker Trust Company and Tip- 
 pett & Wood, the appellants. 
 
 By deed bearing date February 1, 1906, and recorded in the clerk's 
 office of Elizabeth City county, Va., February 16, 1906, the Peninsula 
 Pure Water Company conveyed to the Knickerbocker Trust Company 
 of New York City all of its property, rights, and franchises to secure 
 an issue of $300,000 of first-mortgage bonds. This deed contains what 
 is generally known as the "after-acquii'ed property clause," the lan- 
 guage being : "Does grant, bargain, sell and convey * * * ^11 oth- 
 er property, real, personal or mixed, of whatsoever kind or descrip- 
 tion, and wheresoever situated now owned or possessed by it, or which 
 may hereafter be acquired by it, the said Peninsula Pure Water Com- 
 pany; also all corporate and other franchises, privileges, rights, bene- 
 fits, immunities, and exemptions * * * either by legislative grant 
 or contract, or otherwise." By deed bearing date March 18, 1906, 
 and recorded March 29, 1906, Thomas Harmond and wife conveyed 
 to the Peninsula Pure Water Company a certain tract of land located 
 in the town of Hampton, in the county of Elizabeth City. And by a 
 contract bearing date March 9, 1906, but which was actually executed 
 some time after that date, Tippett & Wood, the intervening petition- 
 ers, entered into an agreement with the Peninsula Pure Water Com- 
 pany and Whetstone & Company by which they agreed to erect for 
 
 «2Acc.: Chattel inorts.iae, Anderson v. Croamerv Paclvase Mfg. Co.. S 
 Idaho. 200. G7 Pac. A9?,. 50 L. R. A. 5.54, 101 ^Vin. St. Rep. ISS (190:;) ; First 
 Nat. Rank of Waterloo y. Elmore. 52 Iowa, 541, 3 N. W. .547 (1S79) ; condition- 
 al sale. Hendv v. 1 >inkerlioff. 57 Cal. 3. 40 Am. Rep. 107 (ISSOi : Blanchard v. 
 Eureka Planing Mill Co., 5S Or. 37, 113 Pac. 5.5, 37 L. R. A. (N. S.) 1.33 (1911). 
 
 A. mortgaged a mill and its machinery to B. He later bought from C. by 
 conditional sale new machinery, which he sulistituted for the old. Held, C. 
 may claim the new machinei-j- as against B. Page v. Edwards, 04 Vt. 124, 23 
 Atl". 917 (1S91). Contra. Bass Foundry & Machine Works v. Oallentine, 1)9 
 Ind. 525 (1884). Compare Cox v. New Bern Lighting & Fuel Co., 151 N. C. 
 62, 65 S. E. 648, 134 Am. St. Rep. 966, 18 Ann. Cas. 936 (1909).
 
 Sec. 3) CONFLICTING EIGHTS 3G7 
 
 the use of the Peninsula Pure Water Company a certain standpipe 
 for the price of $8,148, and according to plans and specifications re- 
 ferred to in said contract, said contract being under the corporate seal 
 of all parties. This standpipe was subsequently erected on the tract 
 of land purchased of Thomas Harmond and wife, and was completed 
 according to plans and specifications, although the water company was 
 placed in the hands of tlie receivers before there was a formal accept- 
 ance of the standpipe by it. The water company prepared a concrete 
 foundation upon which the standpipe was constructed, and to which 
 it was attached by bolts and taps. This contract which was never re- 
 corded contained the following clauses: "No right, or title to said 
 standpipe, or to the material of which the same is composed, shall pass 
 to Whetstone & Company or Peninsula Pure Water Company, or to 
 any other persons or companies until all the payments above men- 
 tioned shall be fully made; and, if in any case all the payments are 
 not made, Tippett & Wood may enter upon the property and remove 
 the material or standpipe as furnished by them." "If said Whetstone 
 & Company and Peninsula Pure Water Company shall keep and per- 
 form all the terms of this agreement and make no default in any of 
 said payments as they become due, and in that case said Tippett & 
 Wood will make, execute and deliver to Whetstone & Company or 
 Peninsula Pure Water Company a good and sufficient bill of sale for 
 said standpipe." Said standpipe was built and completed according 
 to plans and specifications prior to receivership proceedings ; but de- 
 fault was made in the paymerits provided for leaving a balance unpaid 
 of $2,548, with interest from February 1, 1907, and $97.78, with in- 
 terest from March 1, 1907 (this latter sum was for repairs and labor 
 caused by the alleged delay of the water company to make proper tests 
 after completion of the work), whereupon Tippett & Wood filed its 
 petition setting up its contract and praying leave of court to enter 
 upon the premises and remove the said standpipe according to the 
 terms of its contract. * * * 
 
 The report of the special master filed on September 29, 1909, al- 
 lowed the claim of Tippett & Wood as an unsecured debt, and disal- 
 lowed the priority of tlie same over tlie first mortgage bonds. Tippett 
 & Wood, by counsel, filed exceptions to said report of the special mas- 
 ter, which exceptions were overruled by the court. 
 
 Keller, District Judge "^ (after stating the facts as above). In the 
 argument it was admitted that if the standpipe which was the subject 
 of the contract between appellants, Whetstone & Co. (the general sub- 
 contractors) and Peninsula Pure Water Company, became a fixture, 
 so as to become annexed to the freehold, it would pass under the lien 
 of the mortgage by virtue of the "after-acquired property" clause ; 
 but it was strenuously insisted that by the terms of the contract it is 
 
 6 3 The statement of facts is abridged and part of the opinion is omitted.
 
 368 FIXTURES (Ch. 5 
 
 apparent that no such annexation was contemplated by the parties to 
 that contract. We do not so understand this contract that the sub- 
 ject of it was never to become annexed to the freehold, but rather that 
 there was an attempt to so preserve the status of the subject of the 
 contract as that, in the event of necessity, it might be reclaimed as per- 
 sonal property the title whereto had not been parted with by the appel- 
 lants. The standpipe was to be erected "for the use of the Peninsula 
 Pure Water Company," and when erected in accordance with specifi- 
 cations attached to and made a part of the agreement was to be "ac- 
 cepted by Whetstone & Co. and Peninsula "Pure Water Company." 
 
 The special master found : That the standpipe in question was erect- 
 ed upon a foundation which is supposed to be 25 feet in diameter and 
 10 feet in depth, and is attached to this foundation by anchor bolts 
 10 feet in length and 2 inches in diameter. These anchor lx)lts are 
 imbedded in the foundation. The standpipe is 18 feet in diameter and 
 140 feet high above the top of the foundation. That the standpipe is 
 a part of the original construction work of the system of waterworks 
 intended to be constructed, and an indisi>ensable part of such system, 
 as without such a standpipe it would have been impossible for the wa- 
 ter company to have furnished its consumers with water. That it is 
 one of the integral parts of the property, which as a whole was to 
 constitute the security of the mortgage creditors. 
 
 As between the parties to the contract doubtless the rights reserved 
 to Tippett & Wood would be binding, but as the question here is be- 
 tween the appellants, on the one side, and the trustee under the mort- 
 gage and the bondholders, on the other, it is pertinent to inquire wheth- 
 er tliere is any reason or principle upon which the interest of these lat- 
 ter parties who were not parties to this contract can be affected by it. 
 There is a line of cases which, with more or less unanimity, holds that 
 where a mortgage exists on real estate, and an accession is subsequent- 
 ly made of property agreed between the vendor and the mortgagor to 
 be treated as personalty and a reservation of title until paid for agreed 
 upon between vendor and mortgagor-purchaser, such accession, if it 
 can be severed from the realty without injury to the latter or to the 
 value of the security for the mortgage debt as it stood before the im- 
 provement was made, will be impressed with the same character as 
 between the vendor and the mortgagee as between the vendor and 
 mortgagor; in other words, that it does not become real estate, and 
 may be removed without invading the rights of the mortgagee. Of 
 this class are Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. 
 St. Rep. 889, Binkley v. Forkner, 117 Ind. 185, 19 N. E. 753, 3 L. R. 
 A. 33, Gennan Sav. & L. Soc. v. Weber, 16 Wash. 95, 47 Pac. 224, 
 38 L. R. A. 267, and Northwestern Mut. L. Ins. Co. v. George, 77 
 Minn. 319, 79 N. W. 1028, 1064, and these cases and some others sup- 
 port this doctrine more or less completely.
 
 Sec. 3) CONFLICTING RIGHTS 309 
 
 L'pon the other hand, there are many cases (some of which will be 
 hereinafter referred to) which hold that personal property incorpo- 
 rated into or affixed to real estate in such manner that it would be sub- 
 ject to the hen of an existing; mortgage thereon as between the mort- 
 gagor and mortgagee will be so subject to the lien of the mortgage, 
 notwithstanding the existence of an agreement between the vendor 
 and the mortgagor, that it shall retain its character as personal prop- 
 erty, unless the mortgagee be also a party to such agreement. This 
 is what is generally known as the Massachusetts rule, and it has been 
 affirmed by many other courts of last resort, and particularly by the 
 Supreme Court of the United States in several cases hereinafter sep- 
 arately referred to. 
 
 W'e think this latter doctrine announces the correct principle, espe- 
 cially where the application is, as in the present case, confined to a 
 case wherein the mortgage (containing an after-acquired property 
 clause) has been drawn for the purpose of embracing the entire work- 
 ing plant of the corporation, including its franchises, as in such cases 
 it is usually true that the mortgage is given at a time when the real 
 estate is but very insufficient security for the debt, and the subsequent 
 accessions are very generally made by the expenditure of the funds 
 derived by reason of the negotiation of the bonds secured by such a 
 mortgage, and the mortgage is made and received in contemplation of 
 such accessions. In such cases the equities of the beneficiaries under 
 the mortgage should and must attach to such accessions as, under the 
 description contained in the mortgage, are included within it, unless 
 some higher equity or a legal title intervenes. * * * 
 
 Under an after-acquired property clause such as that contained in 
 the mortgage executed to secure the bondholders in the case at bar, 
 any property acquired by the mortgagor subsequent to the date of ex- 
 ecution and delivery of the mortgage, and which is within the general 
 description contained therein, will become as fully subject to the lien 
 of the mortgage in equity as if such property had been owned by the 
 mortgagor at the date of the execution and delivery of the mortgage. 
 Pennock v. Coe, 23 How. 117, 16 L. Ed. 436; Galveston, etc., R. R. 
 Co. V. Cowdrev, 11 Wall. 459, 20 L. Ed. 199; Branch v. Jesup, 106 
 U. S. 478, 1 Sup. Ct. 495, 27 L. Ed. 279; Thompson v. White Water, 
 etc., R. R. Co., 132 U. S. 68, 10 Sup. Ct. 29, 33 L. Ed. 256. As a mat- 
 ter of course, such subsequently acquired real estate comes under the 
 lien of the mortgage subject to such limitations as are imposed upon 
 it when acquired by the mortgagor — in other words, only such in- 
 terest passes as passed to the mortgagor — and hence, had the prop- 
 erty conveyed by Thomas Harmond and wife to the Peninsula Pure 
 Water Company been subject to a lien (for purchase money or other- 
 wise) on March 8, 1906, when it was acquired, such lien would have 
 been, preserved as against any claims of bondholders or trustee. Of 
 Biq.Pebs.Prop. — 24
 
 370 FIXTURES (Ch. 5 
 
 this nature were the facts in the cases of Wood v. Holly Mfg. Co., 
 100 Ala. 326, 13 South. 948, 46 Am. St. Rep. 56, and Holly Mfg. Co. 
 V. New Chester Water Co. (C. C.) 48 Fed. 879, cited by appellants. 
 So also if personal property, which is not and never becomes a part 
 of the freehold mortgaged, is acquired by the mortgagor after the ex- 
 ecution and delivery of the mortgage, the interest of the mortgagor 
 may pass under the after-acquired property clause of the mortgage if 
 the general description in that clause will cover it, but it must pass 
 burdened by whatever restrictions were imposed upon it in respect to 
 the mortgagor, because only such title can pass to the trustee as was 
 vested in the mortgagor through whom it passed. This was the situa- 
 tion in New Orleans, etc., Ry. Co. v^. United States, 12 Wall. (79 U. S.) 
 362, 20 L. Ed. 434; Fosdick v. Schall, 99 U. S. 235, 25 L. Ed. 339, 
 and Meyer v. Car Co., 102 U. S. 1, 26 L. Ed. 59, cited by the appel- 
 lants, and the situation is readily distinguishable from that existing in 
 the case at bar. In the case at bar the structure in issue, having be- 
 come affixed to a part of the freehold, which, at the time it was so 
 affixed, was subject to the lien of the mortgage in equity, thereby be- 
 came (except as to parties to the contract), a part of the real estate, 
 and, by operation of law, became subject to the mortgage without re- 
 gard to any agreement between the mortgagor and the person furnish- 
 ing or erecting such property or structure. * * * 
 
 In Hunt V. Bay State Iron Company and Others, 97 Mass. 283, the 
 court expressed the same view, saying: "Nor do we suppose that the 
 mortgagor in possession is competent to bind existing mortgagees by 
 any agreement to treat as personalty annexations to the freehold. The 
 legal character of the rails when once laid down is determined by the 
 law to be that of real estate. Mortgagees as well as all other parties 
 in interest are entitled to this rule of law which can be taken from 
 them only by their own waiver." * * * 
 
 We think the rule as enunciated by all these cases is applicable to 
 the case at bar, and that there was no error in the decree entered by 
 the Circuit Court on the 27th day of January, 1910, overruling the 
 exceptions of the appellants to the report of the special master filed 
 on the 29th day of September, 1909, and the same is accordingly af- 
 firmed, with costs.'* 
 
 6 4 Contra, Davis v. Bliss, 1S7 N. Y. 77, 79 N. E. S51, 10 L. R. A. (N. S.) 458 
 (1907). 
 
 Ttie result of the principal case was reached without the after-acquired 
 property clause in Reynolds v. Ashby, [19041 A, C. 466 ; Watertown Steam 
 Engine Co. v. Davis, 5 Houst. (Del.) 192 (1S77) ; Fuller-Warren Co. v. Harter, 
 110 Wis. SO, 85 N. W. 698, 53 L. R. A. 003, 84 Am. St. Rep. 867 (1901). See 
 Ekstrom v. Hall, 90 Me. 186, 38 Atl. 106 (1897). 
 
 0. conditionally sold machinery to A. A. thereafter executed a real mort- 
 gage to B. C. later installed the machinery. A. defaulted in his payments to 
 O. and C. removed the machinery. Held, B. cannot recover from C. the value 
 of the machinery. Gough v. Wood, [1S94] 1 Q. B. 713. Otherwise, where the
 
 Sec. 3) CONFLICTING RIGHTS 371 
 
 PECK-HAMMOND CO. v. WALNUT RIDGE SCHOOL 
 
 DISTRICT. 
 
 (Supreme Court of Arkansas, 1009. 93 Ark. 77, 123 S. W. 771.) 
 
 H.\RT, J. In November, 1906, the board of directors of Walnut 
 Ridge Special School District entered into a contract with one J. L. 
 Park for the construction of a school house in the town of Walnut 
 Ridge. The plans and specifications, which were a part of the con- 
 tract, provided for the installment of a heating plant. Park made a 
 contract with the Peck-Hammond Company, of Cincinnati, O., to fur- 
 nish the material and install the heating apparatus. The contract pro- 
 vided that the title to the material furnished should remain in the ven- 
 dor until paid for. The heating plant, with the necessary warm air 
 furnaces, pipes, flues, registers, facings, etc., was duly erected in the 
 school house. Park failed to complete the building, and turned it, 
 with the heating plant which had been installed over to the board of 
 directors who had the building finished. The school district paid out 
 more than the contract price to erect the building. They knew noth- 
 ing of the terms of the contract between Park and the Peck-Hammond 
 Company. They did not know that the contract for the heating ap- 
 paratus provided that the title to the property should remain in the 
 vendor until paid for. Park failed to pay for the heating apparatus, 
 and the vendor instituted this suit in replevin to recover it. 
 
 The Peck-Hammond Company adduced evidence tending to show 
 that the machinery which composed the heating plant could be re- 
 moved, without injury to the school building. On the other hand, the 
 school district adduced evidence tending to show that it was a part 
 of the building, and could not be detached without defacing and other- 
 wise injuring the building. The court dismissed the complaint against 
 the school district, and the plaintiff has appealed. 
 
 We think the judgment was right. The cases cited by counsel for 
 appellant are cases where the contract reserving title in the chattels 
 was made with the owner of the land, and have no application to the 
 facts of this case. Under the facts as disclosed by the record the pres- 
 ent case is ruled by the principle announced in Brannon v. Vaughan, 
 66 Ark. 87, 48 S. W. 909. 
 
 The heating plant was installed under a contract with Park in a 
 building on land belonging to the school district. Appellant knew that 
 
 real mortgagee took possession of the premises before the conditional vendor 
 of the machinery took possession of it for nonpayment of the price. Reynolds 
 V. Ashliy, [1904] A. C. 406; or where the mortgage contains a stipulation that 
 the mortgagor shall not remove any fixtures without the consent of the mort- 
 gagee, Ellis V. Glover, [1908] 1 K. B. 3SS. 
 
 The main case is reported, with notes, in 37 L. R. A. (N. S.) 119. See, 
 also, 15 Law. Q. Rev. 165.
 
 372 FIXTURES (Ch. 5 
 
 the building was not being erected for occupancy by Park, but that 
 it was built for use as a school house, and that the installation of a 
 heating plant was a necessary adjunct to the building. 
 
 The board of directors were not parties to the contract between ap- 
 pellant and Park, and had no knowledge of the conditions thereof. 
 Under such a state of facts, there is a necessary inference that the 
 heating plant was affixed permanently to the structure, and a conclu- 
 sive presumption that it should become a part of the realty. 
 
 Judgment afHrmed.** 
 
 LONDON & WESTMINSTER LOAN & DISCOUNT CO. 
 
 V. DRAKE. 
 
 (Common Pleas, 1859. 6 C. B. N. S. 79S.) 
 
 The first count of the declaration was trover for goods ; the second 
 was for wrongfully depriving the plaintiffs of the use and possession 
 of divers goods and fixtures of the plaintiffs in and affixed and fasten- 
 ed to a certain dwelling house and premises in St. Mary Axe; and 
 the third was for seizing and taking certain goods and fixtures of the 
 plaintiffs in and affixed and fastened to the said house and premises 
 in the said second count mentioned. 
 
 The defendant pleaded not guilty, and a traverse that the several 
 goods and fixtures in the several counts mentioned were the goods and 
 fixtures of the plaintiffs. Issue thereon. 
 
 The cause was tried before Crowder, J., at the sittings in London 
 after last Trinity Term, when the following facts appeared in evi- 
 dence : One Robinson who was tenant of the premises in question (an 
 eating-house in St. Mary Axe) under a lease of which seven years 
 
 65 Ace.: AUis-Chaluiers Co. v. City of Atlantic, 1C4 Iowa, 8, 144 N. W. 
 ,346, 52 L. R. A. (N. S.) 561, Ann. Cas. 1916D, 910 (1914) ; Jacobs v. Feinstoin, 
 133 App. Div. 416, 117 N. Y. Supp. 823 (1909). 
 
 Mllicie's assignor conditionally sold articles to Sielke & Co., knowing that 
 they were to install them in defendant's store. Milicie, not being paid, at- 
 tenipted to replevy the articles. Tlie court said: "In the view taken of the 
 case it is not necessary to decide whether the defendant had notice, actual 
 or constructive, before he paid Sielke & Co., of the clause in the contract of 
 the plaintiff's assignor with them that title should not pass to them until 
 payment of the contract price. If he had, it would make no difference. He 
 [plaintiff's assignor] knew that title was to pass from them to the defend- 
 ant under their contract at once, in order that they might fulfill their con- 
 tract and be paid therefor, and delivered the chattels to enable that to take 
 place. For him to retain a lien on or ownership of the chattels woubl be 
 antagonistic to this main purpose, they could not exist together." Milicie v. 
 Pearson, 110 App. Div. 770, 772. 97 N. Y. Supp. 431 (1900). 
 
 As to the rights of the conditional vendor, when he has no reason to be- 
 lieve that the vendee intends to annex to the land of another, see Jermyn v. 
 Schweppenhauser, 33 Misc. Rep. 603, OS N. Y. Supp. 153 (1901).
 
 Sec. 3) CONFLICTING RIGHTS 373 
 
 were unexpired, on the 4th of September, 1857, borrowed a sum of 
 money of the plaintiffs giving them by way of collateral security a bill 
 of sale upon all his furniture and effects upon the premises, including 
 certain tenant's fixtures. The bill of sale contained an absolute as- 
 signment of all the goods and effects therein comprised, subject to a 
 proviso making the same void if Robinson should repay the money 
 borrowed by certain instalments; and also an agreement that, in case 
 default should be made in payment of the money, or if, amongst other 
 things, the said goods and effects should be distrained for rent, it 
 should be lawful for the plaintiffs to enter into and upon the prem- 
 ises, or wherever else the said goods and effects should be, and to 
 receive and take into their possession and thenceforth to hold to the 
 same, etc. Default having been made by Robinson, the plaintiffs, by 
 one Priest, on the 30th of March, 1858, entered upon the premises 
 for the purpose of making a seizure, but found that the landlord had 
 already distrained for arrears of rent, and that his broker was in pos- 
 session. Priest, however, claiming the fixtures, left a man also in pos- 
 session ; but the fixtures were not severed. 
 
 On the 8th of March, 1858, Robinson had given his landlord an au- 
 thority to distrain the fixtures ; and on the 5th of April he made a 
 formal surrender of the term to him. A fresh lease was afterwards 
 granted by the landlord to Drake — the tenant's fixtures which had 
 formerly belonged to Robinson still remaining upon the premises un- 
 severed from the freehold. Tlie plaintiffs made a formal demand of 
 the fixtures upon the defendant, who declined to give them up, say- 
 ing that he had purchased them from Robinson. 
 
 Upon these facts being proved, the learned judge directed a verdict 
 to be entered for the defendant, reserving leave to the plaintiffs to move 
 to enter a verdict for them for £23. 2s., if the court should be of opin- 
 ion that they were under the circumstances entitled to recover in re- 
 spect of the fixtures. 
 
 WiLLi.AMS, J. The question in this case is, whether, if a lessee 
 mortgages tenants' fixtures, and afterwards surrenders his lease, the 
 mortgagee has a right to enter and sever them. 
 
 The principles of law applicable to this point are well settled ; the 
 difficulty lies in the application of them. It is fully established that 
 the right of the lessee to remove fixtures continues only during the 
 term, and during such further period of possession by him as he holds 
 under a right still to consider himself as tenant : and it is plain that 
 the right of his assignee can extend no further. On the other hand, 
 it is laid down, as to a surrender, in Co. Litt. 338, b., that, "having re- 
 gard to strangers who were not parties or privies thereto (lest by a 
 voluntary surrender they may receive prejudice touching any right or 
 interest they had before the surrender) the estate surrendered hath 
 in consideration of law a continuance." This doctrine has been fully
 
 374 FIXTURES (Ch. 5 
 
 adopted and acted on in modern cases — as, in Pleasant v. Benson, 14 
 East, 234; Doe d. Beadon v. Pyke, 5 M. & Selw. 146; Pike v. Eyre, 
 9 B. & C. 909, 4 M. & R. 661. 
 
 The question is thus reduced to the inquiry whether the mort- 
 gagee's right to sever the fixtures from the freehold is a "riglit or 
 interest" within the meaning of this rule of law. And we are of opin- 
 ion that it is. Certainly it is an interest of a peculiar nature, in many 
 respects rather partaking of the character of a chattel than of an in- 
 terest in real estate. But we think that it is so far connected with the 
 land that it may be considered a right or interest in it, which if the 
 tenant grants away, he shall not be allowed to defeat his grant by a 
 subsequent voluntary act of surrender. 
 
 We are, therefore, of opinion that the plaintiffs may maintain an ac- 
 tion against the defendant for preventing them from exercising their 
 right to sever, and may in such action recover the value of the fixtures 
 as severed. 
 
 Rule absolute.^' 
 
 SANDERS V. DAVIS. 
 (Queen's Bench Division, 1SS5. L. R. 15 Q. B. Div. 218.) 
 
 Special case, from which the following facts appeared : 
 
 By an indenture of mortgage dated the 1st of May, 1878, made be- 
 tween Henry Bennett of the one part, and the defendant of the other 
 part, a messuage therein described was granted and released by the said 
 Henry Bennett to the defendant, to secure repayment of £500. with in- 
 terest at 5 per cent, per annum. 
 
 The premises were then occupied by one Snuth, as tenant, who car- 
 ried on therein the trade of a grocer, and had placed on the ground 
 floor the ordinary fixtures used by grocers. In September, 1881, 
 Snuth determined his tenancy and removed his fixtures. 
 
 In September, 1881, Henry Bennett, the mortgagor, died, and the 
 equity of redemption passed by his will, and ultimately by sales and 
 various mesne assignments became vested in six different persons as 
 tenants in common. These tenants in common had entered into no 
 covenant to pay the mortgage debt of £500. 
 
 In March, 1883, James Hunt became yearly tenant of the premises 
 to the six tenants in common, and, on entering into possession, placed 
 in the shop certain counters, shelves, partitions of wood, and glass 
 gas pipes and burners, bells, and window blinds for the purpose of 
 carrying on the trade of a draper and haberdasher. 
 
 86 Contra, on the ground that the lessor accepted the surrender. In Ignorance 
 of the rights of an attacliing creditor. Thropp's Appeal, 70 Pa. 395 (1872).
 
 Sec. 3) CONFLICTING EIGHTS 375 
 
 In June, 1883, James Hunt bought an undivided sixth part or share 
 of the premises from one of the tenants in common, and the undivided 
 sixth part or share was conveyed to Hunt, subject as to the entirety 
 to the mortgage for £500., but he entered into no covenant for pay- 
 ment off of the mortgage debt. 
 
 In August, 1883, Hunt mortgaged in fee the undivided sixth part 
 of the equity of redemption, together with the fixtures then in and 
 upon the premises, to the plaintiff. 
 
 The defendant never recognized or adopted the tenancy of Hunt, 
 and in July, 1884, under the power of sale contained in his mortgage 
 deed, he sold and conveyed the premises to a purchaser together with 
 the trade fixtures placed in the shop by Hunt in March, 1883. 
 
 It was admitted that the fixtures as between all parties should be 
 taken at £100.; that they were trade fixtures; that they could be 
 moved without injury to the fee; that the plaintiff demanded them 
 from the defendant before the sale and before Hunt gave up posses- 
 sion of the premises, and that the sale of the fee and the fixtures only 
 realised enough to satisfy the mortgage to the defendant. 
 
 The question for the opinion of the Court was whether the plain- 
 tiff was entitled under the circumstances to recover the value of the 
 fixtures. 
 
 Pollock, B.°^ I have no doubt the plaintiff is entitled to judg- 
 ment. Between the mortgagor and mortgagee no doubt, unless there 
 is some express reservation, all that is on the land fixed to the free- 
 hold, passes under a mortgage of the freehold to the mortgagee. That 
 was the only point decided in Meux v. Jacobs, L. R. 7 H. L. 481. 
 The question of the right of a tenant was not raised. * * * The 
 present case is quite different, and does not depend merelv on the 
 position and relation of the parties, but on the character of the things. 
 In Lawton v. Salmon, note to Fitzherbert v. Shaw, 1 H. Bl. 258, Lord 
 Mansfield said, "All the old cases, some of which agree in the Year 
 Books and Brooke's Abridgment, agree, that whatever is connected 
 with the freehold, as wainscot, furnaces, pictures fixed to the wainscot, 
 even though put up by the tenant, belong to the heir. But there has 
 been a relaxation of the strict rule in that species of cases, for the 
 benefit of trade, between landlord and tenant, that many things may 
 now be taken away which could not be formerly, such as erections for 
 carrying on any trade, marble chimney pieces, and the like, when put 
 up by the tenant." The case we have to consider is one in which the 
 goods are not strictly speaking the propertj' of a tenant, but belong to 
 some one who has come in under an agreement of tenancy with the 
 mortgagor of the premises, and not under any agreement with the 
 mortgagee. Hunt, when he entered on the premises, believed he was 
 entitled to consider himself the tenant, and, in my opinion, whatever 
 
 " Part of tbe opinion of Pollock, B., is omitted.
 
 376 FIXTURES (Ch. 5 
 
 he brought on as trade fixtures comes within the spirit of the rule laid 
 down by Lord Mansfield, and adopted in many other cases. I think, 
 therefore, that Hunt would have been entitled to remove these fixtures 
 and that consequently the plaintilt is entitled to judgment. 
 
 Manisty, J. I am of the same opinion. When the mortgage was 
 executed in May, 1878, the premises were in the occupation of a ten- 
 ant, and at the expiration of his tenancy he had a right to remove and 
 did remove, his trade fixtures. The mortgagee after this allowed the 
 mortgagor to remain in possession and deal with the property. Now if 
 the defendant had taken possession and let to Hunt, and Hunt had 
 brought trade fixtures on to the premises, he would have been entitled 
 to remove them when his tenancy terminated. I cannot see why a 
 mortgagee should be in a better position in this respect when he per- 
 mits the mortgagor -to deal with the property and let in a tenant. I 
 think he must be taken to have known of the letting to Hunt, and to 
 have acquiesced in it, and consequently he would not have been able 
 to prevent Hunt from removing the fixtures. There must, therefore, 
 be judgment for the plaintiff. 
 
 Judgment for the plaintiff."* 
 
 MASSACHUSETTS NAT. BANK et al. v. SHINN et al. 
 
 (Appellate Division of the Supreme Court of New York, 1S97. 18 App. Div. 
 276, 46 N. Y. Supp. 329.) 
 
 [October 21, 1890, one Butler leased mining property to Collins, 
 who assigned the lease to Shinn. Shinn bought mining machinery 
 from a mill company, and on April 20, 1892, gave the company a chat- 
 tel mortgage thereon to secure the price ; the mortgage was given after 
 all the machinery, except two rolls, was installed. The mortgage was 
 duly recorded as a chattel mortgage. The lessee failed to pay rent due 
 after December 1, 1892, and about June 15, 1893, the lessor obtained 
 possession by summary proceedings. The mortgage was assigned to 
 the plaintiff, and it on October 18, 1893, began foreclosure proceedings. 
 Butler claimed the property as belonging to him. Case heard by a 
 referee. Judgment in favor of Butler; the bank appeals.] 
 
 BartlETT, J.°° * * * As between landlord and tenant, the 
 placing of machinery or other appliances by the tenant upon the leased 
 premises, for the purpose of trade or manufacture to be carried on by 
 
 68 Ace.: Belvin v. Ealeigli Paper Co., 123 N. C. 138. 31 S. E. 655 (1898). 
 
 A. leased to B. "all additions except movable fixtures to be the property 
 of tbe lessor." B. added trade fixtures, mortgaging them to C. Held, A. can 
 retain them as against C. Excelsior Brewing Co. v. Smith, 12.5 App. Div. 668, 
 110 N. Y. Supp. 8 (1908). Compare Lanphere v. Lowe, 3 Xeb. 131 (1873). 
 
 88 Parts of the opinions of Bartlett and Goodrich, JJ., are omitted.
 
 Sec. 3) CONFLICTING RIGHTS H77 
 
 the tenant, does not make the property so affixed a part of the free- 
 hold, but it still remains personalty, to such an extent at least that the 
 tenant retains the right to remove it. Ombony v. Jones, 19 N. Y. 234 ; 
 Tifft V. Horton, 53 N. Y. Zll , 382, 13 Am. Rep. 537 ; Lewis v. Ocean 
 Navigation & Pier Co., 125 N. Y. 341, 346, 26 N. E. 301. The trade 
 fixtures of a tenant, in other words, remain personal property in the 
 eye of the law, so far as the right of removal is concerned. 2 Taylor's 
 Landl. & Ten. (8th Ed.) § 549. The correctness of this proposition is 
 not disputed, but the referee holds that the presumption to which it 
 would naturally give rise "in favor of the removal of these buildings 
 and machinery erected for the purposes of trade is absolutely preclud- 
 ed by the terms of the lease and the subsequent transactions, all of 
 which taken together show the object of the annexation and express 
 the intention of the parties." He concludes that this intention was to 
 affix the entire mining plant to the land, as it should be placed thereon, 
 absolutely and once for all. I do not so construe tlie lease. * * * 
 [The learned judge discussed various clauses in the lease.] 
 
 For these reasons I am satisfied that the defendant George B. Butler 
 had not become the owner of the mortgaged property at the time the 
 chattel mortgage was given. Shinn possessed rights in respect to it 
 which it was competent for him to transfer by the mortgage to the 
 Sturtevant Mill Company, and the question next to be considered is 
 what is the extent of those rights. 
 
 At that time there had been no default on the part of the lessees, and 
 Shinn still had the right to cancel and surrender the lease under the 
 fourth article thereof, which provided that the lessee might do so at 
 any time within two years from its date if not satisfied that the ore 
 could be mined economically. Hence, it is argued in behalf of the 
 plaintiffs, who have succeeded to the interest of the Sturtevant Mill 
 Company as mortgagees, that the chattel mortgage given by Shinn at 
 this time to secure the balance of the purchase price for the machinery 
 was good and valid, and that no subsequent default on his part could 
 vitiate the rights of the Sturtevant Mill Company or its assignees to 
 collect out of the proceeds of said machinery the balance due on ac- 
 count of the purchase price thereof. 
 
 But this argument proceeds in disregard of the proposition that the 
 rights of the mortgagee of the tenant's trade fixtures are to be meas- 
 ured by the rights of the tenant himself in respect to such fixtures. Al- 
 though the tenant possessed the right of removal, he was bound to ex- 
 ercise it, if at all, before his term expired, or within the period limited 
 by his lease, or at all events before quitting possession of the real es- 
 tate upon which the trade fixtures were situated. Brooks v. Galster, 
 51 Barb. 196. Where the tenant has mortgaged such trade fixtures, 
 after placing them upon the leased land, and fails to remove them with- 
 in the term or the period prescribed by his lease, or while he retains
 
 378 FIXTURES . (Ch. 5 
 
 possession of the land upon which they are located, his title becomes 
 subordinate to that of the lessor and his right of removal is lost. 
 * * * So, in the case, at bar, at the time the chattel mortgage was 
 made and ever since, the defendant Butler had and has had the in- 
 choate right to claim the mortgaged fixtures as part of the freehold, if 
 not seasonably disannexed. The mortgagee acquired the right to de- 
 tach and remove them under the same circumstances as would have 
 warranted their detachment and removal by the mortgagor. But nei- 
 ther the mortgagee nor its assignees ever sought or attempted their re- 
 moval, until subsequent to a time when all right of removal on the 
 part of the lessee or his representatives had absolutely ceased and de- 
 termined. The suit to foreclose the mortgage was not commenced un- 
 til nearly four months after the summary proceedings had put the 
 landlord in possession of the leased premises to which the trade fix- 
 tures were attached. At this time, in any view of the case, the tenant's 
 right to remove them had terminated, and the mortgagee could enforce 
 no other or better right. 
 
 There is nothing adverse to this view in Lewis v. Ocean Navigation 
 & Pier Co., supra, which the appellant cites in support of his proposi- 
 tion that a landlord cannot destroy the tenant's right to remove trade 
 fixtures by dispossessing the tenant for non-payment of rent. In that 
 case the tenant, who held over after the expiration of his lease, claimed 
 the right to remove his building at the time of his ejection by virtue of 
 the summary proceedings, but was not permitted to remove it. His 
 claim was seasonably made, while still in possession of the leased prem- 
 ises upon which the building stood. In this respect the case seems 
 clearly distinguishable in principle from the case at bar, where the 
 term of the tenant ended by reason of his default in the payment of the 
 rent, and where he was also deprived of the possession of the leased 
 premises without any claim being made on his behalf, or that of his 
 mortgagees, that they were entitled to remove the machinery in ques- 
 tion or even desired to do so. * * * 
 
 .\11 concurred, except Goodrich, P. J., dissenting. 
 
 Goodrich, P. J. (dissenting). * * * jj- niust be remembered 
 that before some of the property had been delivered, viz., the two 
 crushing rollers, the mortgage was executed ; and it included the rol- 
 lers. This mortgage was duly filed on April 23, 1893, and it is at this 
 date that the rights of the mortgagee became crystallized. If the title 
 to this property at that time had vested in the lessor by the terms of 
 the mining lease, the lessee had no right to execute a mortgage except 
 in subordination to the rights of the lessor, and there would be no 
 question that the entire decision of the referee was correct. If, on the 
 other hand, the title to the property was in the lessee, it passed from 
 him to the mortgagee and his rights cannot be affected by any subse- 
 quent action or sufferance of the lessee. The filing of the chattel mort-
 
 Sec. 3) CONFLICTING RIGHTS 379 
 
 gage gave notice to the lessor that the mortgage had been made, and he 
 was bound to know its effects, and all his subsequent proceedings are 
 colored with that knowledge. That effect was to transfer the title to 
 the mortgagee, subject only to defeasance upon the payment of the 
 notes to secure which it was given. Hall v. Sampson, 35 N. Y. 274, 
 91 Am. Dec. 56. When default occurred in the payments of the notes, 
 the title in the mortgagee became absolute, subject only to the right of 
 the mortgagor to bring his action in equity to redeem upon payment of 
 notes, interest and expenses ; but otherwise the rights of the mortgagee 
 had become fixed and he was the absolute and legal owner of the prop- 
 erty; the title of the mortgagor was extinguished. * * * 
 
 Of course, it goes without saying that the mortgagee could acquire 
 no greater rights than the lessee had or could convey; but whatever 
 these rights were, he acquired them, and this at the time of the default. 
 At this time tlie lessee was the owner of the property which, as Mr. 
 Justice Bartlett holds, was then personalty and not realty, and the les- 
 sor had no title whatever thereto, and no right of possession. His rent 
 had been paid, not only up to that time, but it continued to be paid for 
 nearly a year afterwards. The landlord could not have taken posses- 
 sion of the property during the year, for he was not the owner of it, 
 and there was no default in the payment of rent for which summarj' 
 proceedings to dispossess could be instituted. * * * [The learned 
 judge discussed London, etc., Co. v. Drake, ante, p. 372.] 
 
 The plaintiff being absolute owner of the property no subsequent ac- 
 tion of the lessor or lessee can defeat his rights; neither laches, nor 
 contract, nor delay, nor summary proceedings to dispossess under the 
 provisions of the lease. The lessor is met by a new title owner, and his 
 right to dispossess can be contested, not only by the original lessee but 
 by his mortgagee, who had succeeded to his rights as they existed at 
 that time. 
 
 If it be said that the rights of the lessor are derived from the lease, 
 and that the lease is paramount to the rights acquired subsequently by 
 the mortgagee, and that while the tenant may remove the property 
 during his term, he cannot do so after his term, there seem to be two 
 answers to the proposition : First, the lease was entitled to be and was 
 recorded as of real estate. It was not filed as a contract relating to 
 chattels. It conveyed no interest in the chattels, for such Mr. Justice 
 Bartlett concludes them to be. There was, therefore, no construc- 
 tive notice of the existence of the lease to the mortgagee and no actual 
 notice is shown in the evidence, although I do not mean to intimate 
 that notice would make any difference in the rights of the plaintiff. 
 Second, the paramount rights of the lessor relate only to the lessee and 
 not to a stranger who has acquired a good title under him while he 
 had a right to convey. * * *
 
 380 FIXTURES (Ch. 
 
 A different rule prevails between the lessor and lessee when there 
 is no mortgage ; there the right of the leasee to remove during his ten- 
 ancy is a privilege which he may forfeit by delay, but that does not 
 affect the right of a mortgagee, who stands in a very different relation. 
 True, he has the right to remove the goods to which he has title, on the 
 default of the mortgagor ; but he may also leave the property on the 
 premises with the assent of the mortgagor, and his leaving it there 
 cannot affect his rights, as there is no principle of estoppel in favor of 
 the lessor. 
 
 It is undoubtedly true that where a tenant suffers default in payment 
 of rent and is dispossessed, he loses his right to remove certain articles 
 on the ground that they are to be deemed fixtures; but this right of 
 removal is a personal privilege, and its loss a personal one, and the re- 
 sults of his failure to remove cannot be extended to destroy the rights 
 of a third person, which are in no sense dependent on a personal privi- 
 
 Judgment affirmed.'" 
 
 70 Affirmed 163 N. Y. 360, 57 N. E. 611 (1900). 
 
 Ace: Talbot v. Whipple, 14 Allen (Muss.) 177 (1867). 
 
 The lessor entering for breach of condition wins as against an assignee 
 for the benefit of creditors who has not removed the fixtures prior to the 
 lessor's entry. Tugh v. Arton, L. K. 8 Kq. 626 (1S69) ; .see Potter v. Gilbert, 
 177 Pa. 159, 35 Atl. 597, 35 L. R. A. 580 (1896) ; or as against an attaching 
 creditor of the lessee, More.v v. Hoyt, 02 Conn. 5^12, 20 Atl. 127, 19 L. R. A. 
 611 (1893) ; or as against one claiming under a mechanic's lien on the les- 
 see's interest, Williams v. Vanderbilt, 145 111. 238, 34 N. E. 476, 21 L. R. A. 
 489. 36 Am. St. Rep. 486 (1893). 
 
 It has been held in some jurisdictions that the lessee has a .reasonable 
 time within which to remove fixtures after a forfeiture by the lessor for a 
 breach by the lessee. Mickle v. Douglas, 75 Iowa, 78, 39 'n. W. 19S (18S8) ; 
 Gartland v. Hickman, 56 W. Va. 75, 49 S. E. 14, 67 L. R. A. 694 (1904) ; Bergh 
 V. Ilerring-Hall-Marvin Safe Co., 136 Fed. 368, 69 C. C. A. 212, 70 L. R. A. 
 7.5C (1905). 
 
 "When Caroline Tappe became the assignee of the leasehold interest by 
 virtue of its conveyance to her in the deed of mortgage, she took it subject 
 to all the conditions and covenants of the lease to George Feller. Her failure 
 to pay the rent and to keep the taxes paid up, was equally a default in her 
 as in the original lessee." Abrahams v. Tappe et al., 60 Md. 317, 322 (1883).
 
 Ch. 6) EMBLEMENTS 381 
 
 CHAPTER VI 
 EMBLEMENTS 
 
 TRIPP V. HASCEIG. 
 
 (Supreme Court of Michigan, 1870. 20 Mich. 254, 4 Am. Rep. 388.) 
 
 Graves, J.^ The plaintiff in error sued Hasceig for the alleged con- 
 version of a quantity of standing corn, which Tripp claimed as his 
 property, and upon the trial a verdict passed for Hasceig. Tripp now 
 brings error and insists that the Circuit Judge erred in charging the 
 jury, and he asks that the judgment be reversed therefor. 
 
 The evidence conduced to show that Tripp, being the owner of a 
 farm in Kalamazoo county, on which he resided and on which he had 
 raised a field of corn in the season of 1865, conveyed the farm to de- 
 fendant about the 13th of December, in the same year, by warranty 
 deed, while the corn was still standing, unsevered, where it grew, and 
 without inserting in the deed any exception or reservation ; and that 
 Hasceig took and appropriated a part of the crop as properly conveyed 
 to him by the deed. It was claimed by Tripp on the trial that the crop, 
 being over ripe when the deed was given, did not pass by the convey- 
 ance, but the Circuit Judge advised the jury that the corn, though ripe 
 and no longer deriving nourishment from the ground, would, if still 
 attached to the soil, pass by conveyance of the land; and this is one of 
 the rulings complained of. 
 
 We think this instruction was right, and we concur in the suggestion 
 of the Circuit Judge, that whether the corn would pass or not, could no 
 more depend upon its maturity or immaturity, than the passage of a 
 standing forest tree by the conveyance of the land, would depend upon 
 whether the tree was living or dead. 
 
 It is true that the authorities in alluding to this subject very generally 
 use the words growing crops, as those embraced by a conveyance of 
 the land, but this expression appears to have been commonly employed 
 to distinguish crops still attached to the ground, rather dian to mark 
 any distinction between ripe and unripe crops. 
 
 In some cases, where the question has been raised under the statute 
 of frauds, as to the validity of verbal sales of unsevered crops, a dis- 
 
 1 The statL'Uieut of tacts aud part of the opiiiiou of Graves, J., are omittoil.
 
 382 EMBLEMENTS (Ch. 
 
 tinction has been drawn between such as were fit for harvest, and such 
 as were not, upon the supposition that the former would not be within 
 the statute, while the latter would be embraced by it. See cases refer- 
 red to in Austin v. Sawyer, 9 Cow. 39. In Austin v. Sawyer, however, 
 Chief Justice Savage seems to have rejected the distinction, as he held 
 that a verbal sale of growing crops was valid in New York. 
 
 But one case has been cited, or is remembered, in which it has been 
 intimated that a mature and unsevered crop, would, because of its be- 
 ing ripe, remain in the grantor of the land, on an absolute conveyance 
 of the premises without exception or reservation; and that is the case 
 of Powell V. Rich, 41 111. -+66, and the point was not essential to the de- 
 cision there. 
 
 There are many authorities, however, opposed to the distinction sug- 
 gested in that case. 2 Bl. Com. 122, note 3 ; Broom's Maxims, 354, 
 margin. 
 
 In Kittredge v. Woods, 3 N. H. 503, 14 Am. Dec. 393, Judge Rich- 
 ardson cites Wentworth, 59, for the proposition that "when the land is 
 sold and conveyed without any reservation whatever crop is upon the 
 land passes," and after stating that ripe grain in the field is subject to 
 execution as a chattel. Judge Richardson adds: "Yet no doubt seems 
 ever to have been entertained that it passes with the land when sold 
 without any reservation." And in the case of Heavilon v. Heavilon, 
 29 Ind. 509, cited by plaintiff's counsel on another ground, the Court 
 expressly admit that until severance, the crop, as between vendor and 
 purchaser of the land, is part of the realty. Indeed, the authorities 
 are quite decisive that, whether the crop of the seller of the farm goes 
 with the land to the purchaser of the latter, when there is no reserva- 
 tion or exception, depends upon whether the crop is at the time at- 
 tached to the soil, and not upon its condition as to maturity. And this 
 seems to be the most natural and most practical rule. When parties 
 are bargaining about land, the slightest observation will discover 
 whether the crops are severed or not, and there will be no room for 
 question or mistake as to whether they belong with the land or not, if 
 owned by the vendor. 
 
 If however, the crops are to be considered as land or personal chat- 
 tels, as they continue or do not continue to draw nourishment from the 
 soil, the instances will be numerous in which very difficult inquiries 
 will be requisite to settle the point. * * * 
 
 Christiancy, J. I concur with my Brethren in the opinion of my 
 Brother Graves ; but had it appeared in the case that it was the cus- 
 tom of the country where the farm was situated (as it is in some of the 
 Western states) to keep the ripe corn in the field for the winter, or till 
 wanted for use or market, and to be taken only on the like occasions or 
 for the like reasons as if stored in the crib or granary, — thus using the 
 field merely as a substitute for such crib or granary, — I am inclined to
 
 Ch. 6) EMBLEMENTS 383 
 
 think I might have agreed in the opinion intimated by the Supreme 
 Court of Illinois in Powell v. Rich, 41 111. 466, cited by Brother 
 Graves. 
 Judgment affirmed.* 
 
 FLYNT V. CONRAD. "^•- '— ^ 
 
 (Supreme Court of North Carolina, 1SG7. 61 X. C. 100, 0.3 Am. Dec. 5S8.) 
 
 Trover for corn. 
 
 The facts were that the plaintiff's testator, on the 23d June, 1865, ".-a.^^ 
 executed to the defendant a deed in fee for a tract of land on which 
 there was a growing crop of corn. Evidence of various acts and ad- "*■ 
 
 missions was given to show that the crop had been reserved by the ven- 
 dor. The defendant was shown to have converted it; and a demand 
 and refusal were also shown. 
 
 The defendant's counsel asked his Honor to charge that the corn . 
 and everything else upon the land passed by the deed, and that parol 
 declarations by the defendant could not revoke the deed, or raise any 
 inference from which a tenancy at will could be set up. 
 
 His Honor charged the jury that a deed for land passed everj'thing 
 upon the land except what was legally reserved ; and that a growing 
 crop of corn could be sold by parol so as to pass the title; and could 
 be reserved by parol so that the reservation would be binding. * * * 
 
 Pearson, C. J.^ We concur in die opinion of his Honor for the 
 reasons given by him. 
 
 It is said by the court in Brittain v. McKay, 23 N. C. (1 Ired.) 265, 
 35 Am. Dec. 738 : "The law makes a pointed distinction between those 
 profits which are the spontaneous products of the earth or its perma- 
 nent fruits, and the corn and other growth of the earth which are 
 produced annually by labor and industry, and thence are called 'fruc- 
 tus industriales.' The latter, for most purposes, are regarded as per- 
 sonal chattels. Upon the death of the owner of the land before they 
 are gathered, they go to his executor and not his heir. Upon the ter- 
 mination of an estate of uncertain duration, by an act other than that 
 of the lessee, they belong to him as personal chattels, and do not go 
 over to the owner of the soil. They are liable to be seized and sold un- 
 
 2 Ace: In re Andersen, 83 Neb. 8, 118 N. W. IIOS, 131 Am. St Rep. 613, 
 17 Ann. Cas. 941 (IOCS), will. See Herrou v. Herron, 47 Ohio St. 544, 25 N. 
 E. 4:;0, 9 L. R. A. 607, 21 Am. St. Rep. &54 (IbOO). 
 
 A. cut timber on land owned by him, intending to market the timber. 
 While it was lying on the ground, he deeded the land to B. Held, B. gets ti- 
 tle to the timber. Brackett v. Goddard, 54 ile. 309 (1S66). 
 
 8 The statement of facts is abridged and part of the opinion is omitted.
 
 384 EMBLEMENTS (Ch. 6 
 
 der execution as personal chattels, and a sale of them while growing 
 is not a sale of land or any interest in or concerning land, under the 
 Statute of Frauds, but a sale of goods." 
 
 Thus it is seen that a growing crop is regarded as a personal chattel. 
 The statute (Rev. Code, c. 34, § 21) puts them on the same footing in 
 another very important particular, and still farther lessens the differ- 
 ence by making it larceny to steal any Indian corn, wheat, etc., grow- 
 ing in a field. So that the only difference now seems to be that the one 
 never was attached to land or has been severed, whereas the other is 
 not severed ; and the legal effect of this is, that when land is conveyed 
 the presump.tion is that wheat, for instance, that has been cut, and re- 
 mains shocked in the field, does not pass with the land, whereas if it 
 has not been cut the presumption is that it does pass with the land; 
 but the presumption in either case may be rebutted by tlie acts and dec- 
 larations of the parties. If the grantee hauls in and houses the wheat 
 that has been cut, with the knowledge and without objection on the 
 part of the grantor, or if he admits that it was to belong to the grantee 
 according to their agreement, no question would be made as to its be- 
 ing his property. The same acts and declarations in regard to wheat 
 growing would rebut the presumption and justify tlie inference that ac- 
 .cording to their agreement it was to remain the property of the gran- 
 tor. This may be shown by parol evidence, for the statute of frauds 
 does not apply to an agreement concerning a growing crop. Nor does 
 the admission of parol evidence violate the rule that a deed shall not 
 be added to, varied or contradicted by such evidence. 
 
 In the former case the parol proof that according to the contract of 
 sale the grantee was to have the wheat that remained shocked in the 
 field, does not add to the deed, for its purpose and effect was only to 
 execute one part of the contract, and there is no reason why the other 
 part may not be established by parol proof ; so, and for the very same 
 reason, in the latter case parol proof that according to the agreement 
 the grantee was not to have tlie growing crop, does not contradict the 
 deed. It would be strange if the execution of one part of the agree- 
 ment, in the only way in which it can be executed, should exclude proof 
 and defeat the other part, for it must be borne in mind tliat the deed 
 does not purport to set out the agreement. 
 
 In respect to fruit on trees and "not fallen," there is a diversity, for 
 trees are a substantial and permanent part of the land, and a deed 
 passing the land actually passes the trees as part thereof and does not 
 simply raise a presumption that it was the intention to pass them ; 
 hence, if there be a parol agreement to convey land and to except the 
 fruit on trees, or certain timber trees, and a deed is executed which 
 does not except the fruit -jn trees, that part of the agreement in respect 
 to them is defeated, for the statute of frauds requires it to be in writ- 
 ing ; and even if the agreement be in writing, that part of it can only
 
 Ch. 6) -EMBLEMENTS 385 
 
 be set up by a bill in equity to reform the deed on the ground of acci- 
 dent or mistake in the draftsman, for the effect of the deed is to pass 
 the land and every substantial part of it. ♦ * * 
 Judgment affirmed." 
 
 DENNETT v. HOPKINSON. 
 (Supreme Judicial Court of Maine, 1S73. 63 Me. 350, 18 Am. Rep. 227.) 
 
 [The testator by will gave to the defendant his farm, and all articles 
 of personal property in and about the buildings. At the time the de- 
 fendant took possession there was a newly gathered crop of hay in the 
 barn. Crops of corn and beans were gathered by the defendant short- 
 ly after taking possession. The testator's executor brings trover for 
 the hay, corn and beans.] 
 
 Walton, J.= Unharvested crops go to a devisee of the land, and 
 not to the executor. As against the heirs at law, they go to the execu- 
 tor ; but as against a devisee they do not. 
 
 It is not easy, says Mr. Ilargravc, to account for this distinction, 
 which gives corn growing to the devisee, but denies it to the heir. Mr. 
 Broom also expresses the same opinion. Lord Ellenborough thought 
 the distinction "capricious." But they all agree that such is the law. 
 
 Mr. Broom's statement of the law is as follows. He says that where 
 a tenant in fee or in tail dies after the corn has been sown, but before 
 severance, it shall go to his personal representatives and not to the 
 heir; but if a tenant in fee sows the land, and then devises the land by 
 will, and dies before severance, the devisee shall have the corn, and not 
 the devisor's executors. Broom's Legal Maxims (4th Ed.) 269. 
 
 Lord Ellenborough's explanation of the distinction is as follows : 
 He says that in the testator himself the standing corn, though part of 
 the realty, subsists for some purposes as a chattel interest, which goes 
 on his death to his executors as against the heirs, though as against the 
 
 *Aoe.: Heavilon v. Heavilon, 29 Ind. 509 (1868); Baker v. Jordan, 3 Ohio 
 St. 438 (l8o4). Contra. Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 4.38 
 (1S6S>; Austin v. Sawyer, 9 Cow. (N. Y.) 39 (1S2S). Compare Powell v. Rich, 
 41 111. 466 (1866). 
 
 A parol sale of growing annual crops ds not within section 4 of the statute 
 of frauds. Kvniis v. Roberts. 5 B. & C. 829 (1826); Bull v. Griswold, 19 111. 
 631 (ISriS). Thev may be levied on as personal property. PoUey v. Johnson, 
 52 Kan. 478, .35'Pae. S. 23 L. R. A. 2.58, and notes (1S93). Contra, EUithorpe 
 V. Reidesil, 71 Iowa, 315, .32 N. W. 238 (1887). 
 
 Parol sales of fructus naturales are generally held, with various modifica- 
 tions, to be within fourth section. See S Harv. L. R. 367. Such products 
 cannot be levied on as personalty. Sparrow v. Pond, 49 Minn. 412, 52 M. W. 
 36, 16 L. R. A. 103, 32 Am. St. Rep. 571 (1892); Rogers v. Elliott. 59 N. H. 
 201, 47 Am. Rep. 192 (1879). Compare State v. Crook, 132 N. C. 1053, 44 S. 
 E. 32 (1903). 
 
 6 Part of the opinion is omitted. 
 Biq.Pees.Prop. — 25
 
 386 EMBLEMENTS (Ch. 6 
 
 executors it goes to the devisee of the land, upon the presumption that 
 such was the intention of the devisor in favor of his devisee ; but that 
 this presumption may be rebutted by other vk'ords in the will, which 
 show an intent that the executor shall have it. West v. Moore, 8 
 East, 339. 
 
 And in a case tried before Holt, C. J., where the question was wheth- 
 er corn growing passed to the devisee of the land or his mother, the 
 widow, to whom the testator had bequeathed "all his goods, chattels, 
 etc., and the stock of his farm," the case of Spencer, Winch. 51, was 
 urged, where it was resolved that the devisee of land sown should 
 have the corn, and not the executor of the devisor ; to which it was an- 
 swered, "that is true, if the intention of the testator does not appear to 
 be otherwise." And Holt, C. J., held that in that case it did appear 
 that the intention of the testator was otherwise.'"' It has been doubted 
 whether Chief Justice Holt's construction of the will was correct ; but 
 the decision is valuable as showing, first, that the general rule of law is 
 that a devisee of the land will hold the unharvested crops ; second, that 
 the rule is based on the presumption that such was the intention of the 
 testator; and third, that this presumption may be rebutted by other 
 clauses in the will showing that such was not his intention. Cox v. 
 Godsalve, 6 East, 604, note. * * * 
 
 We find on examination that in many of the States this matter is 
 regulated by statute ; but we are not aware of any such statute in this 
 State. * * * 
 
 We are inclined to think the law is best as it is; that although the 
 rule which gives to the devisee of the land the unharvested crops, and 
 denies them to the heir at law, may seem to be unphilosophical, it is 
 nevertheless founded in practical wisdom. Not unfrequently the heirs 
 at law are mere children, without discretion of their own, to enable 
 them to care for the growing crops, and without legal guardians to 
 aid them. They are sometimes scattered and far away. The death 
 of the ancestor may be sudden, and the condition of this family such, 
 that the crops, unharvested as well as harvested, may be needed for 
 their immediate support. Will it not be better, therefore, in the great 
 majority of cases, that all the crops, the unharvested as well as those 
 that are harvested, should be regarded as personal property, and go to 
 the administrator? We cannot resist the conviction that it is better 
 that it should be so. 
 
 Not so, however, of a devisee of the land. He is the selected object 
 of a specific donation. If for any cause it is probable that he will not 
 be in a condition to take charge of it at the donor's death, the contin- 
 gency can be provided for in the will. It is a matter which the testa- 
 
 « A. devised specified land to B.. and bequeathed to C. all "goods, chattels 
 and personal estate * * * not specifically bequeathed." Held, C. is not 
 entitled to the crops as against B. Cooper v. Woolfitt, 2 H. & N. 122 (1857).
 
 Ch. 6) EMBLEMENTS 387 
 
 tor would be likely to think of, and provide for, if necessary. If there 
 is no such provision, and the gift is unconditional, without words of 
 limitation or restraint, we think it may fairly be presumed that it was 
 the intention of the donor that his donee should take the land, as a 
 grantee would take it, with the right to immediate possession, and the 
 full enjoyment of all that is growing upon it, as well the unsevered 
 annual crops, as the more permanent growth. 
 
 In this case the homestead farm of the testator was devised to his 
 cousin and his cousin's son — the father to have the use, improvement 
 and income of it till the son should arrive at age, the son then to have 
 it as his own property. There is nothing in the devising clauses, or in 
 any other part of the will, to rebut the presumption that the devisees 
 were to have the unharvestcd crops that might be growing upon it at 
 the time of the testator's death. On the contrary the presumption is 
 very much strengthened by the fact that the testator gave all his live 
 stock and farming tools, and all his household furniture and other ar- 
 ticles of personal property in and about the buildings to the same per- 
 sons. It is impossible to except out of these two sweeping clauses, 
 any of the crops, whether harvested and in the barns, or still growing 
 upon the land unharvested. If harvested and in the barns, they would 
 pass by virtue of that clause in the will which bequeaths all articles of 
 personal property in and about the buildings. If not harvested they 
 passed as part and parcel of the realty. * * * 
 
 Judgment for defendant.^ 
 
 NOTE 
 (1 Coke on Littleton, 55 a, b.) 
 
 Tenant at will is where lands or tenements are let by one man to an- 
 other, to have and to hold to him at the will of the lessor, by force of 
 which lease the lessee is in possession. In this case the lessee is called 
 tenant at will, because he hath no certain nor sure estate, for the lessor 
 may put him out at what time it pleaseth him. Yet if the lessee soweth 
 the land, and the lessor, after it is sowne and before the corne is ripe, 
 put him out, yet the lessee shall have the corne, and shall have free en- 
 try egresse and regresse to cut and carrie away the corne,* because he 
 
 7 A. died intestate ; B., liis heir, gatliored the crop and sold it to C. who 
 knew the facts. Held, D., the administrator, may maintain trover against C. 
 Marx V. Nelms, 95 Ala. 304, 10 South. 551 (1S91). 
 
 8 A., tenant for life, leased to B., who planted the land. A. died before B. 
 gathered the crop. Held, C, the reversioner, is entitled to the immediate 
 possession of the land. Edghill v. Manke.y, 79 Neb. 347, 112 N. W. 570, 11^ 
 L. R. A. (N. S.) 688 (1907). Compare Bevans v, Briscoe, 4 Har. & J. (Md.) 
 139 (181G). •
 
 388 EMBLEMENTS (Cll. G 
 
 knew not at what time the lessor would enter upon him. Otherwise it 
 is if tenant for yeares, which knowetli the end of liis terme, doth sow 
 the land, and his terme endeth before the corne is ripe. In this case 
 the lessor, or he in the reversion, shall have the corne, because the 
 lessee knew the certainty of his terme, and when it would end. * * * 
 "Yet if the lessee soweth the land, and the lessor after it is sowne, 
 etc." The reason of this is, for that the estate of the lessee is uncer- 
 taine, and therefore lest the ground should be unmanured, which 
 should be hurtful to the commonwealth, he shall reape the crop which 
 he sowed in peace, albeit the lessor doth determine his will before it be 
 ripe. And so it is if he set rootes, or sow hempe or flax, or any other 
 annual profit, if after the same be planted the lessor oust the lessee; 
 or if the lessee dieth, yet he or his executors shall have that yeare's 
 crop. But if he plant young fruit trees, or young oaks, ashes, elmes, 
 etc., or sow the ground with acornes, etc., there the lessor may put 
 him out notwithstanding, because they will yeeld no present annual 
 profit. And this is not only proper to a lessee at will, that when the 
 lessor determines his will that the lessee shall have the corne sowne, 
 etc., but to every particular tenant that hath an estate incertaine, for 
 that is the reason which Littleton expresseth in these words (because 
 he hath no certain nor sure estate).'' And therefore if tenant for life 
 soweth the ground, and dieth, his executors shall have the corne, for 
 that his estate was uncertaine, and determined by the act of God. And 
 the same law is of the lessee for yeares of tenant for life. So if a man 
 be seised of land in the right of his wife, and soweth the ground, and 
 he dieth, his executors shall have the corne, and if his wife die before 
 him he shall have the corne. But if husband and wife be jointenants 
 of the land, and the husband soweth the ground, and the land snr- 
 viveth to the wife, it is said that she shall have the corne. If tenant 
 pur terme d'auter vie soweth the ground, and cesty que vie dieth, the 
 lessee shall have the corne. If a man seised of lands in fee hath issue 
 a daughter and dieth, his wife being ensient with a son, the daughter 
 soweth the ground, the sonne is borne, yet the daughter shall have the 
 corne, because her estate was lawful, and defeated by the act of God, 
 and it is good for the commonwealth that the ground be sowne. But 
 if the lessee at will sow the ground with corne, etc., and after he him- 
 self determine his will and refuseth to occupy the ground, in that case 
 the lessor shall have the corne, becauseth he loseth his rent. And if a 
 woman that holdeth land durante viduitate sua soweth the ground and 
 taketh husband, the lessor shall have the embleaments, because that the 
 determination of her owne estate grew by her owne act. But where 
 the estate of the lessee being incertaine is defeasible by a right para- 
 
 See Davis v. BrocUlebank, 9 N. H. 73 (1837) ; Harris v. Frink, 49 N. Y. 
 24, 10 Am. Rep. 31S (1872).
 
 Ch. 6) EMBLEMENTS 389 
 
 mount, or if the lease determine by the act of the lessee, as by forfei- 
 ture, condition, etc., there be that hath the right paramount, or that 
 entreth for any forfeiture, etc., shall have the come.*" 
 
 If a disseisor sow the ground and sever the come, and the disseissee 
 re-enter, he shall havo the come, because he entreth by a former title, 
 and severance or removing of the corne altereth not the case, for the 
 regresse is a recontinuation of the freehold in him in judgment of law 
 from the beginning. * * * 
 
 WHITMARSH v. CUTTING. 
 (Supreme Court of New York, 1S13. 10 Jolins. 360.) 
 
 In error, on certiorari, from a justice's court. Whitmarsh brought 
 an action of trespass quare clausum fregit against Cutting, for entering 
 his close and carrj'ing away a quantity of wheat and rje. The de- 
 fendant pleaded not guilty; and there was a trial by jury. The plain- 
 tifif proved that in August, 1812, the defendant entered his close and 
 took and carried away the wheat, etc. 
 
 The defendant then proved that the wheat and ryQ had been levied 
 upon by a constable, on an execution against one Hilton, and that the 
 defendant assisted the constable in carrying the grain away. The de- 
 fendant offered Hilton as a witness to prove that the grain belonged to 
 Hilton, who was objected to, as interested, but admitted by the justice. 
 Hilton testified that he entered on the premises in April, 1810, under a 
 lease from the owner of the land, for one year from the 20th April, 
 1810; and on the 10th June, ISIO, the owner, by endorsement on the 
 lease, agreed to let Hilton have the farm for another year ; it was ad- 
 mitted that the plaintiff was lessee of the owner, and that in May, 1812, 
 Hilton was ousted under the act against forcible entry and detainer. 
 The grain was sown by Hilton, but reaped and gathered by the plaintiff 
 after his entry in May, 1812. 
 
 The question submitted to the jury was, whether he was entitled to 
 the grain as emblements. The jury found a verdict for the defendant. 
 
 Per Curiam. The verdict was clearly against law. The crop sown 
 did not belong to Hilton, but to his successor. This lease was for a 
 year certain, and then renewed for the next year ; and it was his folly 
 to sow when he knew that his term would expire before he could reap. 
 The doctrine of emblements is founded entirely on the uncertainty of 
 the termination of tlie tenant's estate. Where that is certain there ex- 
 
 i» Ace: Davis v. Ej toD, 7 Bing. 154 (1S30).
 
 390 EMBLEMENTS (Cll. 6 
 
 ists no title to emblements. Without touching any other points, we are 
 of opinion that the verdict was against law, and evidence, and that the 
 judgment below must be reversed. 
 Judgment reversed.^^ 
 
 HENDRIXSON v. CARDWELL. 
 
 (Supreme Court of Tennessee, 1876. 9 Baxt. [68 Tenn.] 3S9, 40 Am. Rop. 93.) 
 
 McFarland, J. This was an action of replevin brought by Card- 
 well to recover a lot of oats. The facts deposed to by the plaintiff, and 
 J. B. Hoxsie, witness for the defendant, are, that Ho.xsie, as agent of 
 Dr. Pearne, rented to the plaintiff certain premises near Knoxville, be- 
 ing a house and about twenty acres of land. The plaintiff says he 
 rented "at twelve dollars and a half a month, payable in advance, but 
 by the year, in the month of March, 1872, and remained until the 1st 
 of November, 1873. I expected to keep the place four or five years, 
 as Dr. Pearne was absent from the country, and I expected to keep 
 it until his return." Hoxsie says "he rented the place to the plaintiff at 
 twelve dollars and fifty cents per month, the renting was not by the 
 year or even for any definite time." 
 
 In November, 1872, the plaintiff proves that he sowed on the land a 
 crop of English winter oats and harvested the same in June, 1873, 
 when he plowed in the stubble so as to get another crop, which was the 
 custom, and the crop was growing when he left the place, November 
 1st, 1873. In June after plaintiff left, defendant cut and harvested the 
 oats for which the suit is brought. 
 
 Hoxsie was offered better terms by the defendant, who proposed to 
 take the premises for a longer lease, and this was the reason the plain- 
 tiff's tenancy was terminated. The plaintiff gave up the premises with- 
 out objection and made no mention of the growing oats crop, and none 
 was made by Hoxsie upon leasing to the defendant. The question is, 
 do these facts entitle the plaintiff to a recovery ? 
 
 The argument for the plaintiff" is, that he was a tenant at will, and 
 his term having been terminated by his landlord, he was entitled to the 
 growing crop as emblements and free egress, etc., to cut and carry the 
 crops away. The general principle is not doubted. See 2 Blackstone, 
 p. 126. But if the plaintiff was a tenant from year to year, as his own 
 testimony indicates, he would not be entitled to the emblements after 
 the year which terminated his tenancy. Though, as the judge charged 
 
 11 In some jurisdictions the courts have recognized a right by custom for 
 the tenant for a definite term to gather the way-going crop. Clarlv v. Banlis, 
 6 Hou.st. (Del.) 584 (1883). Contra, Harris v. Carson, 7 Leigh (Va.) 632, 30 Am. 
 Dec. 510 (1836). Compare Foster v. Robinson, 6 Ohio St. 90 (1856).
 
 Ch. 6) EMBLEMENTS 391 
 
 in this case, if the landlord suffered the tenant to hold over after the 
 termination of the first year, the presumption would be that the ten- 
 ancy was to continue for another year, and if the landlord terminated 
 the tenancy before the expiration of the second year, the tenant should 
 have to the end of the year to remove the crops, but we think not be- 
 yond the end of the year, as is to be implied from the judge's charge. 
 For in a case of tenancy from year to year, where -the term depends 
 upon a certainty, if the tenant holds to the end of the year, he cannot 
 have emblements unless specially reserved. Broom's Legal Ma.xims, p. 
 396. And so, if his term is by the landlord wrongfully terminated be- 
 fore the year, his right to emblements could not extend beyond the 
 year, his right in this respect could not be increased by the termination 
 of his tenancy before the end of the year.'- 
 
 But another question is, whether the crop is of that character secur- 
 ed to tenants in such cases. 
 
 When the tenancy is of uncertain duration and is terminated by the 
 landlord after the crop is sown, but before it is severed from the free- 
 hold, the tenant or his representative shall be entitled to one crop of 
 that species only, which ordinarily repays the labor by which it is pro- 
 duced within the year within which that labor is bestowed, though the 
 crop may in extraordinary seasons be delayed beyond that period. 
 But he is not entitled to all the fruits of his labor, as such right might 
 be extended to things of a more permanent nature, such as trees or 
 more crops than one, since the cultivator very often looks for a com- 
 pensation for his capital and labor in the produce of successive years. 
 Such is the law, as stated in Broom's Legal Maxims, pp. 236 and 394. 
 
 The crop claimed in this case is, ordinarily, an annual crop, but the 
 plaintiff harvested the first year's product of the sowing, and claims a 
 second year's crop of the same sowing. True, he bestowed additional 
 labor to produce this second crop, but as we understand the rule as 
 above stated, it goes no farther than to give to the tenant the benefit 
 of the law of emblements, so as to secure to him the benefit of the an- 
 nual crop, sown by him before the termination of his term. If this 
 second crop of oats had grown without labor by the plaintiff', he would 
 not have been entitled to it after the expiration of his term, as he had 
 
 12 "It is true that a tenant, holding by a tennre which is uncei-tain as to 
 the time at wliich it will cease, is entitled to take off, after it has ceased, 
 the crops which he has sowed in the due course of husbandry. But if it is 
 certain, at the time when he sows, how Ions it will continue, and it i.s plain 
 that he cannot, before it ceases, reap that which he may sow, then it is his 
 folly if he sows, and he will not be permitted to reap. * * » We think 
 that it matters not how it is made certain when an uncertain term will cease. 
 It may be by the death of one for whose life the lands are held, or it may be 
 by the giving of a sufficient notice to quit by one entitled to give it. A notice 
 to cjiut terminates the tenancy on tlie day the notice expires." Reeder v. 
 Sayre, 70 N. Y. ISO, 185, 26 Am. Kep. 567 (1S77). See Kingsbury v. Collins, 4 
 Bing. 202 (1827).
 
 392 EMBLEMENTS (Ch. 6 
 
 already harvested the crop sown by him, and tlie additional labor be- 
 stowed upon it does not change the result. The crop claimed matured 
 in 1874, was sown in November, 1872. Plowing in the stubble, we 
 think, is not equivalent to sowing another crop, though it produce the 
 same result. The policy of the rule is the encouragement of the tenant 
 in the cultivation of the soil, and is satisfied by giving him, after the 
 termination of his term, the proceeds of his annual crop sown by him. 
 Let the judgment be reversed.^* 
 
 FLORALA SAWMILL CO. v. PARRISH. 
 (Supreme Court of Alabama, lOOS. 155 Ala. 462, 46 South. 461.) 
 
 Simpson, J.'* The bill in this case was filed by the appellants 
 against the appellees. The gravamen of the complaint is that after the 
 expiration of a lease for turpentine purposes the respondents refused 
 to deliver up the premises, but continued to "dip and scrape the tur- 
 pentine from the pine timber and to remove the same from the land," 
 are continuing to do so, and are insolvent. The bill prays for an in- 
 junction (which was granted) prohibiting resp6ndents from "chipping, 
 dipping, scraping, or streaking, or in any manner interfering with, the 
 timber and turpentine on the lands." * * * 
 
 The question, then, presents itself : What is the nature of the inter- 
 est in the "scrape" and "dip" and what are the rights of the lessee, 
 after the determination of his lease? * * * As to property which 
 belongs to the tenant, and which does not come under the definition of 
 emblements, the tenant may, within a reasonable time after the termi- 
 nation of even a definite tenancy, enter upon the premises and remove 
 the same. 24 Cyc. p. 113; Daniels v. Brown, 34 N. H. 454, 69 Am. 
 Dec. 505, and note. So it becomes important, in this case, to determine 
 whether the property in question came under the definition of emble- 
 
 J3A lessee for the life of another sowed barley and clover together; the 
 life tenant died before either matured; the lessee later cut the barle.v and 
 incidentally some of the clover. Held, he was not entitled to cut the clover 
 when it subsequently fully matured, more than a year after the sowing. 
 Graves v. Weld, 5 B. & Aid. 105 (18.'!3). 
 
 Hops growing from ancient roots, but maturing shortl.y after the death of 
 the life tenaut, held emblements. Latham v. Atwood, Cro. Car. 515 (1638). 
 So as to sugar cane although it takes more than, a year for it to mature. 
 Nawahi v. Hakalau, 14 Haw. 460 (1902). Compare Sparrow v. Pond, 49 Minn. 
 412, 52 N. W. 36, 16 L. R. A. 103, 32 Am. St. Rep. 571 (1892) ; ReifC v. Reiff, 
 64 I'a. 134 (1S70). 
 
 The lessee of a life tenant sowed the land just before the death of the 
 life tenant and knowing that he was dying. Held entitled to emblements. 
 Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, 1 L. R. A. 427, 7 Am. St, Kep. 
 316 (1888). Compare Price v. Pickett, 21 Ala. 741 (1852). 
 
 14 Part of the opinion is omitted.
 
 Ch. 6) EMBLEMENTS 393 
 
 ments or whether it was property which had been separated from the 
 soil and had become the personal property of the tenant. * * * 
 
 In so far as the "dip" is concerned, being the turpentine which has 
 dripped from the trees and been caught in boxes prepared for that 
 purpose, it seems clear that it has been severed from the realty and be- 
 come the personal property of the tenant, which he might remove with- 
 in a reasonable time after the expiration of the tenancy. State v. 
 Moore, 33 N. C. 70; State v. King, 98 N. C. 648, 4 S. E. 44; Dickens 
 V. State, 142 Ala. 49, 51, 52, 39 South. 14, 110 Am. S't. Rep. 17. As 
 will be noticed from the terms of the decree appealed from, we are not 
 dealing with the question of the right of a tenant to hold possession of 
 the premises after the expiration of his term, but with the right of in- 
 gress and egress for the purpose of removing his property. 
 
 As to the "scrape" the question is more difficult. It is true that the 
 Supreme Court of North Carolina has held that this "scrape" is not a 
 part of the realty and may be removed by the tenant. Lewis v. Mc- 
 Natt et al., 65 N. C. 63. * * * There is no cultivation to make the 
 trees produce turpentine, but it is merely a process of catching that 
 which the tree has naturally produced as it descends. The boxes are 
 set to catch it, and the trees are "scored" above, in order to direct the 
 current of the descending sap into the box ; and in its descent a part 
 of the sap adheres to the tree, hardens there, and, as stated in the case 
 of Lewis V. McNatt, supra, "must be removed before the sap begins 
 to flow in the subsequent spring, for then the new turpentine mingles 
 with the old 'scrape.' " From the foregoing authorities it seems clear 
 that the "scrape" could not be said to have been separated from the 
 tree, so as to become the personal property of the tenant, for it was 
 still adhering, as a part of the tree, like the fruit on a tree. Even if it 
 could be considered as "fructus industrials" and therefore claimable 
 as emblements, it could not be so claimed in this case, for the reason 
 that the lease was for a definite term, which had expired. * * * 
 
 Injunction dissolved only in so far as it restrains the respondents 
 from entering upon the premises and dipping the turpentine from the 
 boxes. ^° 
 
 15 Compare Lewis v. McXatt, 65 N. C. 63 (1871). 
 
 A., a tenant for a definite term left a matured crop on the land at the ex- 
 piration of his term ; B., the lessor, gathered it Held, A. may replovv it 
 from B. Opperman v. Littlejohn, 98 Miss. 636, 54 South. 77, 35 L. R. A." (N. 
 S.) 707 (1910).
 
 394 EMBLEMENTS (Ch. 6 
 
 ROBERT BROS. v. HURDLE. 
 (Supreme Court of North Carolina, 1S49. 32 N. C. 490, 51 Am. Dec. 400.) 
 
 This was trover for a quantity of corn, fodder, peas and beans. The 
 defendant admitted the conversion, and proved, that, in the fall of 
 1846, he recovered in ejectment of the plaintiff the land on which the 
 articles were grown, and was put in possession by the sheriff; at 
 which time, the corn and some part of the peas and beans were grow- 
 ing; the fodder had been pulled and stacked, and the balance of the 
 peas and beans had been gathered and put into a crib on the premises. 
 They were of the growth of the year 1846. The demise was laid in 
 June, 1845. * * * 
 
 Under tlie instructions of the court, the jury found for the plaintiff' 
 as to the value of the fodder, peas and beans that had been gathered. 
 The defendant appealed. 
 
 Pearson, J.'^ There is no error in the instructions. The corn, etc., 
 which was attached to the land at the time the defendant was put in 
 possession, passed with it and belonged to him. But the fodder, etc., 
 which had been severed, although on the premises, did not pass with 
 the land ; for, it had ceased to be a part thereof, and the defendant had 
 no right to take it. His remedy was an action, not for the specific ar- 
 ticles, but for damages, by way of mesne profits. If the defendant had 
 a right to take the specific articles, he would for the same reason be en- 
 titled to recover their value in trover against the plaintiff', or any one, 
 to whom he might have sold them. The amount of which would be, 
 when one who has been evicted regains possession, he may maintain 
 trover against every one who has bought a bushel of corn or a load of 
 wood from the trespasser, at any time while he was in pKDSsession. 
 This, especially in a countrj' where there are no markets overt, would 
 be inconvenient, and no person could safely buy of one whose title ad- 
 mitted of question. The mere statement of the proposition shocks our 
 notions of common sense and calls for an overpowering weight of au- 
 thority to sustain it. There is no authority for it in our reports, the 
 invariable practice having been to bring trespass for mesne profits and 
 for damages, if there has been any destruction or injury to the free- 
 hold. 
 
 Trover for the specific articles, either against a trespasser or a third 
 person, has never been attempted. Upoi examination, it is found, that 
 there is no authority for it anywhere. * * * 
 
 In this case the articles sued for were of annual production ; and my 
 Lord Coke suggests a distinction between such things as corn, etc., 
 which come by the act and operation of the party; "for, if he had not 
 
 18 The statement of facts is abridged and part of the opinion is omitted.
 
 Ch. 6) EMBLEMENTS 395 
 
 sowed the land, no corn would have been there," and such things as 
 come by the act of God, as trees, etc. We do not, however, put the 
 case upon this distinction. The true distinction is, where a tenant, or 
 one having a particular estate, wrongfully severs a tree or other thing 
 from the freehold, it becomes personal property and immediately be- 
 longs to the landlord or remainderman, who may punish the tenant for 
 waste and may take the thing; or may presently bring trover against 
 the tenant or any third person, who has converted it. For, as there 
 is no possession adverse to him, the thing when severed immediately 
 belongs to him as a chattel. Besides, he would otherwise be without 
 remedy as he could not bring trespass quare clausum, the tenant being 
 rightfully in possession. 
 
 But when one, who is in the adverse possession, gathers a crop in 
 the course of husbandry, or severs a tree or other thing from the land, 
 the thing severed becomes a chattel, but it does not become the proper- 
 ty of the owner of the land ; for, his title is divested — he is out of 
 possession and has no right to the immediate possession of the thing, 
 nor can he bring any action until he regains possession. Then, by the 
 jus postlirninii or fiction of relation, he is considered as having been in 
 possession all the time for the purpose of bringing trespass quare claus- 
 um fregit with a continuando from day to day, in which he recovers 
 the value of the mesne profits and damages for the injury done to his 
 freehold by the severance of any part of it, or for any other injury 
 consequent to the breach of his close. This action can be maintained 
 against any one, who has been in possession for the time he held it, 
 but the owner of the land cannot sue for the thing severed in trover or 
 detinue as a chattel ; for, it is not his chattel — it did not become so at 
 the time it was severed, and the title to it as a chattel cannot pass to 
 him afterwards, when he regains the possession, by force of the jus 
 postlirninii. The fiction is made to enable him to recover for breaking 
 his close and the injuries consequent thereto, but it is not made for tlie 
 purpose of vesting a- right to chattels. * * * 
 
 Judgment affirmed.^' 
 
 1' Ace: Jenkins v. JlcCoy, 50 Mo. 34S (1S72). Contra, Simpkins v. Rojiers, 
 1.5 III. 397 (18.54) ; Thoines v. Moody, 11 Me. 139 (1834). See Liford's Case, 
 11 Co. 46 p, 51 a (1614). 
 
 Similarly, if the disseisor sells the gathered crops to a third person, the 
 rightful owner, after regaining possession of the land, cannot recover the 
 crops or their value from such purchaser. Johnston v. Fish. 105 Cal. 420. 
 38 Pac. 979, 45 Am. St. Rep. 53 (1895). Compare Stockwell v. Phelps, 34 N. Y. 
 363, 90 Am. Dec. 710 (1806). 
 
 A., without authority, cut the grass on B.'s land, and planted and harvest- 
 ed grain on C.'s land. Grass and grain were destroyed by B.'s negligent act. 
 Held, A. may recover from B. the value of the grain, but not the value of 
 the grass. Lindsav v. Winona & St. P. R. Co., 29 Minn. 411, 13 N. W. 191, 
 43 Am. Rep. 328 (1882).
 
 396 EMBLEMENTS (Ch. 6 
 
 LANE V. KING. 
 
 (Supreme Court of New York, 1832. 8 Wend. 5S4, 24 Am. Dec. IOj.) 
 
 Error from Greene common pleas. King sued Lane in a justice's 
 / >.^v^ court for cutting and carrying away rye growing upon a certain farm, 
 ' *" and recovered judgment. Lane appealed to the common pleas of 
 
 fi.r Greene, and on the trial in that court tlie following facts appeared : in 
 December 1827, one Lampman executed a mortgage of a farm to King, 
 to secure the payment of $L300, of which $250 was to be paid within 
 one year, and the residue in four annual installments. In June, 1829, 
 Lampman let a portion of his farm to Lane for the term of two years, 
 at a rent of $35 per annum; Lane to be entitled to the grain in the 
 ground at the expiration of the lease. On the 23d September, 1829, 
 King filed a bill in equity to foreclose the mortgage, not making Lane 
 a party to the suit, and in December, 1829, obtained an order of sale 
 containing a direction for the delivery of the mortgaged premises to 
 the purchaser. In February, 1830, the premises were sold under the 
 order, and King became the purchaser, who put a tenant into posses- 
 sion. At the time of the entry of the tenant of King, there was a crop 
 of rye in the ground on that portion of the farm let to Lane, and when 
 the grain was fit for harvesting, Lane entered and cut and carried 
 away the grain, for the doing of which King sued him in trespass. 
 Lane knew of the mortgage at the time he took his lease, and in the au- 
 tumn. of 1829, was warned by King that he had better not sow any 
 grain on the farm. The jury under the charge of the court, found a 
 verdict for the plaintiff; whereupon a case was made, and stipulation 
 entered into that if this court should be of opinion that King was en- 
 titled to recover, judgment should be entered in his favor for $40 dam- 
 ages and $30 costs'; and if not, that judgment should be entered for 
 Lane for $30 costs. 
 
 Sutherland, J. The question in this case is whether the lessee of 
 a mortgagor is entitled, as against the mortgagee, to the crops growing 
 on the mortgaged premises at the time of the foreclosure and sale, the 
 mortgagee having become the purchaser. In England the mortgagee 
 may sustain an action of ejectment against the mortgagor or any one 
 claiming under him, by title subsequent to the mortgage, without any 
 notice to quit ; they are considered mere tenants at will. Keech v. Hall, 
 Doug. 21 ; Moss v. Gallimore, id. 260; Powell on Mortgages, 205, 206, 
 chap. 7. In this state, however, it has been held that a mortgagor is en- 
 titled to notice to quit before he can be treated as a trespasser, on the 
 ground that there is an implied consent and agreement between him and 
 the mortgagee, that the former may continue to occupy the premises. 
 Jackson v. Laughhead, 2 Johns. 75; Jackson v. Fuller, 4 Johns. 215; 
 McKircher v. Hawley, 16 Johns. 289. A purchaser of the interest of
 
 Ch. 6) EMBLEMENTS 397 
 
 the mortgagor, or a lessee under him, or any third person, stands upon 
 the same footing here as in England and is not entitled to notice to quit 
 from the mortgagee. There is no privity of contract or estate between 
 the mortgagee and such third person — as to him they are trespassers. 
 4 Johns. 215; 16 Johns. 289; Jones v. Clark, 20 Johns. 61. The Eng- 
 lish doctrine, therefore, in relation to the rights of a mortgagee against 
 a mortgagor, or his grantees or assignees, is entirely applicable to this 
 case. 
 
 In Keech v. Hall, Doug. 21, already referred to, the mortgagee 
 brought an action of ejectment against a tenant, who claimed under a 
 lease from the mortgagor, given after the mortgage, without the privi- 
 ty of the mortgagee. Lord Mansfield in delivering the opinion of tlie 
 court, said, "On full consideration we are all clearly of opinion, that 
 there is no inference of fraud or concert against the mortgagee to pre- 
 vent him from considering the lessee of the mortgagor as a wrong 
 doer." The question turns upon the agreement between the mortgagor 
 and mortgagee; when the mortgagor is left in possession, the true in- 
 ference to be drawn is an agreement that he shall pwssess tlie premises 
 at will, in the strictest sense, and therefore no notice is ever given him 
 to quit, and he is not even entitled to reap the crop as other tenants at 
 will are, because all is liable to the debt, on payment of which the mort- 
 gagee's title ceases. The mortgagor has no power, express or implied, 
 to let leases not subject to every circumstance of the mortgage; the 
 tenant stands exactly in the situation of the mortgagor. 
 
 This court, in McKircher v. Hawley, 16 Johns. 292, also held that 
 the relation subsisting between the mortgagor and mortgagee, did not 
 imply a right on the part of the m.ortgagor to lease. The mortgagor, 
 therefore, in giving a lease becomes, as to the mortgagee, a disseizor 
 (vide also Jackson v. Hopkins, 18 Johns. 487; Dickenson v. Jackson, 
 6 Cow. 147 ; Woodfall, 237) ; and if during the disseizin he should cut 
 down the grass, trees or corn growing on the land, the disseizee after 
 reentry may have an action of trespass vi et armis, against him for 
 the trees, grass or corn ; for after reentry, the law, as to the disseizor 
 and his servants, supposes the freehold always to have continued in 
 the disseizee, though perhaps trespass vi et armis would not lie against 
 the lessee, for the fiction of law shall not by relation make him a 
 wrong doer, vi et armis, who comes in by color of title, because in fic- 
 tione juris semper sequitas existiat (Lifford's case, 11 Coke, 51). But 
 though the lessee shall not be treated as a trespasser, still if he cuts the 
 grass and trees or sows the land and cuts and carries away the crops, 
 they may be recovered by the disseizee after reentry; the reentry by 
 relation revests the property in him, as well for the emblements as the 
 freehold, and equally against the feoffee or lessee of the disseizor, as 
 against the disseizor himself, though it will not, as against a person 
 coming in by color of title, give him an action of trespass vi et armis.
 
 398 EMBLEMENTS (Ch. 6 
 
 11 Coke, 51; Dyer, 31, 173; Powell on Mortgages, 213, 214, chap. 7. 
 Mr. Powell observes that as to emblements there is a distinction be- 
 tween tenants who have particular estates that are uncertain, defeasible 
 by the act of the parties, or by the act of God, or those who have par- 
 ticular estates uncertain — defeasible by a right paramount; for in the 
 latter case he that hath the right paramount, shall have the emblements. 
 The mortgagee undoubtedly, as against the mortgagor and his gran- 
 tees, has the paramount right. Mr. Powell considers the right of a 
 mortgagee to emblements as against the lessee of the mortgagor, as 
 necessarily resulting from the doctrine established by Lord Mansfield, 
 in Keeth v. Hall, Doug. 21, that a mortgagor has no right to lease; he 
 observes, that he can see no ground on which the case of such lessee, 
 as to emblements, can be distinguished from any other tenant under a 
 tortious title ; for if he be considered a wrong doer as to his occupation 
 of the premises, he can not be considered in a different character as to 
 the emblements, nor can there be any ground to imply a consent to 
 cultivate the property, when no implication is admitted of a consent 
 to occupy it; Jacobs Law Diet. Emblements (4 Rep. 21). 
 
 This reasoning appears to me to be conclusive. The plaintiff, there- 
 fore, according to the stipulation of the parties in the case, is entitled 
 to judgment for forty dollars damages and thirty dollars costs. ^* 
 
 >-. 
 
 . , ,y ■ DOLLAR V. RODDENBERY. 
 
 (Supreme Court of Georgia, 1S95. 97 Ga. 148, 25 S. E. 410.) 
 
 Roddenbery brought trover and bail against Dollar et al. The case 
 was submitted to the judge on the facts hereafter stated, and he decid- 
 ed that plaintifif should recover the value of the property sued for. De- 
 fendants excepted. 
 
 Plaintiff offered in evidence deed to the land on which the crop in 
 dispute was grown. Defendants, who claimed the crop, were tenants 
 of Emma F. Dollar, whose husband made her a deed to it in 1888, 
 which was recorded on October 26, 1889. On September 17, 1888, 
 she made a deed to G. A. Wight, to the land in dispute. The land was 
 afterwards levied on under the fi. fa. of Roddenbery, issued in April, 
 1888, and was claimed by Wight ; and on the trial of the claim in May, 
 1892, was found subject to the fi. fa. The land was brought to sale 
 
 18 Ace.: Downard v. Groff. 40 Iowa. 597 (1S75). Compare Hecht v. Dett- 
 man, 56 Iowa, 679. 7 N. W. 495, 10 N. W. 241, 41 Am. Kep. 131 (1881) ; Reed 
 V. Swan, 133 Mo. 100. 34 S. W. 100 (1S96). 
 
 A., a tenant planted a crop; he sold the growing crop to B. : he then sur- 
 rendered the lease to the lessor. When the crop was ripe, X. gathered it. 
 Held, B. cannot maintain trover against X. Debow v. Colfax, 10 N. J. Law, 
 128 (1828).
 
 Ch. 6) EMBLEMENTS 399 
 
 under this fi. fa. in July 1892. Defendants rented from Emma F. Dol- 
 lar, and the crop was not matured and ready for gathering at the time 
 of the sale, but was at the time the sheriff put him in possession, Au- 
 gust 31, 1892. The judgment under which the land was sold was older 
 than the rent contract, and older than the deed to Emma F. Dollar 
 from her husband. * * * It is alleged, that the court erred in 
 holding that the crop raised by defendants as tenants on the land, pass- 
 ed with the land at the sale in July, 1892, and that plaintiff was entitled 
 to recover the full value of such crops; defendants insisting that plain- 
 tiff was entitled to recover a reasonable compensation out of the crops 
 of said tenants for rent. 
 
 Atkinson, J.^' A judgment in this State operates only as a lien 
 upon the property of the debtor, and neither divest his title, nor in any 
 manner interferes with his right of possession or control over his prop- 
 erty, until it is enforced and the title transferred to another by a sale 
 under execution. Notwithstanding the rendition of a judgment against 
 him the owner of land may lawfully let the same to a tenant for years 
 or at will. The tenant, however, takes the leased premises subject to 
 the right of the judgment creditor to terminate its existence by the en- 
 forcement of the judgment and sale of the land. In such a case, while 
 the tenancy may, by contract as between the original landlord and ten- 
 ant, be for a definite term, it is nevertheless by operation of law, at the 
 will of the judgment creditor, and subject to be determined by him at 
 any time by an enforcement of the judgment. 
 
 At common law it was the element of uncertainty in the duration of 
 his term which entitled a tenant at will to his emblements. See Coke 
 upon Littleton, vol. 1, p. 55a. And this element of uncertainty is in- 
 troduced into the tenancy now in question, not by the act of the ten- 
 ant, but by the voluntary act of the judgment creditor who is now 
 seeking to deprive him of his emblements. If uncertainty in the dura- 
 tion of his term is the circumstance which entitled the tenant to his 
 emblements, surely under a tenancy at one time certain, but afterwards 
 rendered uncertain because by operation of law it came to be at the 
 will of the judgment creditor, the tenant ought not to be deprived of 
 his emblements. Under an execution against the landlord, the sheriff 
 is entitled to seize, and the purchaser acquires at the sale no greater 
 interest in the premises than the landlord himself had. If this be true, 
 and that it is cannot be seriously questioned, then under the state of 
 facts existing here, this defendant is entitled to recover. Such recovery 
 is allowable on the most obvious principles of justice and reason ; be- 
 cause the time for the termination of his estate is rendered uncertain, 
 not in consequence of any wrongful act of the tenant himself but be- 
 cause of the necessary uncertainty as to the time at which the judgment 
 
 18 The statement of facts is abridged and part of the opinion is omitted.
 
 400 EMBLEMENTS (Cil. C 
 
 creditor may choose, by a sale of the rented premises, to extinguish the 
 title of the tenant's lessor. At a sale of the property of the landlord, 
 the purchaser acquires his interest in the leased premises and as well 
 his interest in the way-going crops, but no more. * * * By virtue 
 of his purchase at the sheriff's sale, the purchaser acquired whatever 
 interest tlie landlord had by way of rent in the unmatured crops at the 
 time of the sale, and therefore upon the maturity of the crop he was 
 entitled to the entire rent of the premises to be paid by the tenant, but 
 not to the entire crop of the tenant. The former he took by virtue of 
 his purchase at the sheriff's sale. The latter remained in the tenant by 
 virtue of his right to emblements. * * * 
 
 We are aware of the line of decisions in other States in which it is 
 held that the claim of a mortgagee to the growing crop is superior to 
 that of a tenant to his emblements ; but in all of those cases, it will be 
 observed that the mortgage itself, under the statute of the State in 
 which the question arose, passed the legal title to the mortgagee and di- 
 vested the title of the m.ortgagor. We encounter no such difficulty 
 here, however; for, as. above stated, a judgment operates simply as a 
 lien upon tlie property of the debtor. 
 
 We are the more readily persuaded to the correctness of this conclu- 
 sion, because it coincides with our view of abstract justice and of 
 right. It is an ancient maxim of the law that he who rightfully sows 
 ought to reap the profits of his labor, and if he rightfully enter in sub- 
 ordination to the title of another, but his tenancy be terminated with- 
 out fault on his part and in consequence of some uncertain event, he 
 shall be allowed to take away his way-going crops ; for emblements, in 
 strict law, are confined to the products of the earth arising from the 
 annual labor of the tenant. The tenant under the protection of this 
 rule, is invited to agricultural industry without the apprehension of loss 
 by reason of some unforeseen contingency which might arise and termi- 
 nate his estate. It would seem to us a most unreasonable rule, and one 
 which would tend greatly to embarrass the business of agriculture, if 
 every tenant who rightfully entered under the owner of land, after 
 the cultivation of his crop could be deprived of it at the will of a judg- 
 ment creditor. Under such a rule no man would be safe in the enjoy- 
 ment of the product of his labor, and tlie judgment creditor would be 
 thus enabled to reap where he had not sowed and gather where he had 
 not strewed ; and this is not allowable. 
 
 Let the judgment of the court below be reversed.^" 
 
 20 Aec. : Heavllon v. Farmers' Bauk of Frankfort, SI Ind. 2^9 (ISSl), mort- 
 gage foreclosure.
 
 INDEX 
 
 [the FIGDEES BEIEB TO THE PAGES] 
 
 ACCESSION, 
 
 Bona fide, 160-173. 
 
 Chattel to land, 193 Pierce, 195 note; see Fixtures. 
 
 Mala fide, 174-195. 
 
 Quasi contractual relief in, 171 Isle Eoyale, 173 note. 
 
 Relative values in, 160 Eaton, 162 note, 165 Trustees, 183 Single. 
 
 Third persons claiming under title based on, 186-193. 
 
 BAILEE, 
 
 Actions by, 4 Sutton, 6 Rooth, 9-17. 
 
 Bailor, when right good against. 10 Woodson, 11 note. 
 
 Damages recoverable by, 11 Winkfield, 15 Barvvick. 
 
 Delivery by, to true owner as defense to action by bailor, 43 Western. 
 
 Duty to preserve article bailed, 45 Keith. 
 
 Origin of right to recover, 13-15. 
 
 BAILMENT, 
 
 Distinguished from sale, 195-210, 210 note. 
 
 BAILOR, 
 
 Actions by, 17-24. 
 
 CASE, ACTION ON THE, 
 Bailee, by, G Rooth. 
 Bailor, by, 17 Anon. 23 White. 
 
 CHATTEL, 
 
 Bailee's duty with respect to, 43 West. Transp. Co., 45 Keith. 
 Finder's duty with respect to, 41 Mulgrave, Isaack. 
 Lost, when, 35 Livermore, 37 Durfee. 
 Real, 3, 
 
 See Fixtures. 
 CONFUSION, 
 
 Assented to by both owners, 197-210. 
 Relative values in, 214-217. 
 
 Third persons claiming title by, 213 note, 220-222. 
 Unassented to by one owner^ 
 
 Bona fide, 211 Pickering. 
 
 Mala fide, 214-222. 
 
 Burden on guilty party, 217 Weil, 220 note. 
 CROPS, 
 
 Adverse possessor, right to value of, against, 394 Robert, 395 note. 
 
 Devisee, right to, 385 Dennett. 
 
 Emblements, what are, 390 Hendrlxson, 392 note, 392 Florala. 
 
 Pass by conveyance of land, 381 Tripp. 
 
 Reservation of, parol, 383 Flynt. 
 
 Sale of, parol, 385 note. 
 
 Tenant, right of, to, 387-393, 396-400. 
 
 Definite term, 389-393. 
 
 Judgment creditor, against, 398 Dollar. 
 
 Real mortgagee, against, 396 Lane. 
 
 Uncertain term, 387-389. 
 
 Bio.Pers.Pbop.— 26 (401)
 
 402 INDEX 
 
 [Tlie figures refer to pages] 
 
 DAMAGES, 
 
 Accession, bona fide, In, 165 Trustees. 
 
 Mala fide, in, 182 Ellis, 183 Single. 
 Crops gathered b.v adverse possessor, for, S94 Robert, 395 note. 
 Wrongful repledglng, in, 123 Baltimore, 125 note. 
 
 DEMURRAGE CHARGES, 
 Lien for, 66 Schumacher. 
 
 DETINUE, 
 
 When maintainable, 9 O'Neal, 9 note. 
 
 EMBLEME3NTS, 
 See Crops. 
 
 FINDER, 
 
 Duty of, 41 Mulgrave, Isaack. 
 
 Employer, rights against, 28 ."tafCordsbire, 29 Tatum, 33 Danielson. 
 Lien of, 55 Nicholson, 58 Wentworth. 
 Owner, rights against, 39 Gardner, 42 Chase. 
 
 Third persons, rights against, 25 Amory, 26 Bridges, 29 Note, 37 Durfee. 
 See Mislaid Goods. 
 
 FIXTURES, 
 
 Agreement as affecttng character of, 295 Noble, 298 Tyson, 354 Sowden, 
 
 361 note, 366 Tippett 
 Agricultural, 303 Elwes, 306 note, 338 McCullough. 
 Appliances, when. 
 
 Business, 276-282, 301 Wystow, 302 Poole, 308 note. 
 
 Household, 286-291. 
 Buildings, when, 204 Lipsky, 205 note, 303 Elwes, 338 McCullough. 
 Conditional sale of, 360 Adams, 366 note, 366 Tippett, 371 Peck, 372 note, 
 
 372 London. 
 Converter, annexation by, 193 Pierce, 347 Shoemaker. 
 Conveyance of, 295-299, 344 note, 352-380. 
 Electric lighting plant, when, 283 Fechet. 
 Intent to annex, 292-294. 
 Licensee, annexation by, 342 King, 344 note. 
 Machinery, when, 265-275. 
 Mortgage of, 
 
 Chattel, 352 Brennan, 354 Snowden, 360 note, 362 Campbell, 374 
 Sanders, 376 Mass. 
 
 Real, 352 Brennan, 355 Hobson, 360 note, 360 Adams, 362 Campbell, 
 366 Tippett, 374 Sanders. 
 Purpose of annexation, 265 McRea, 270 note, 338 note, 360 note. 
 Rolling stock, when, 282 note. 
 Severance, 296 note, 299 Guernsey. 
 Tenants, 
 
 Agricultural, 303 Elwes. 
 
 Buildings, 306-312. 
 
 Conversion of, 325 Guthrie, 326 note. 
 
 Household, 312 Wall, 315 note. 
 
 Landlord's rights against third persons, 372-380. 
 
 Lease, new, effect of on right to remove, 315-321. 
 
 Lien on, 327-335. 
 
 Trade, 301 Wystow, 302 Poole. 
 
 Uncertain termination of tenancy, 321 Ray, 324 note. 
 Trespasser, annexation by, 347 Shoemaker, 350 Mitchell. 
 Vendee, annexation by, 335 Westgate, 338 note, 345 Salter. 
 
 FBUCTUS INDUSTRIALES— NATURALES, 
 See Crops.
 
 INDEX 403 
 
 [The figures refer to pages] 
 GIFT, 
 
 Aceeptanc-e by donee, 2G1 MaLoney, 263 note. 
 
 Causa mortis, 251 Devol, 252 note, 254 Drew. 
 
 Deed, by, 260 McEwen. 
 
 Deliverj-, how far essential to, 241 Cochrane, 250 mUebrant, 251 note 
 
 In future, L'55 Liebe, 261 note. 
 
 Intent in, 255 Liebe, 259 note. 
 GUEST, who Is, 97 note. 
 
 JUDGMENT, 
 
 Satisfaction of, as giving ownership, 227-241. 
 Title based on, 223-227. 
 
 LIEN, 
 
 Contract, 58 Wentworth, 61 note. 
 
 Enforcement of, 71 Shipping Co., 73 Ironworks. 74 note, 108 Jones. 
 
 ueneral, 49-55. 
 
 Loss of. 
 
 Excessive demand, lOS-113. 
 
 Inconsistent claim, 108 Boardraan, 113-117. 
 
 Loss of possession. 97-107. 
 
 Sale of chattel, lOS Jones. 
 
 Taking other security, 117 Cowell. 
 Particular, 49 Skinner, 60-70. 
 Personal to lienor, 100 Ruggles. 
 
 Possession, how far essential to, 97 McFarland, 102-107. 
 Third person, when good against, 75-97. 
 Who has. 
 
 Agister, 48 Chapman, 62 Jackson, 76 note. 
 
 Attorney, 49 Bush, 53 Hurlbert, 55 note. 
 
 Banker, 51 Davis. 
 
 Carrier, 49 Skinner, 60 Rushforth, 61 note, 66 Schumacher, 79 Fitch 
 84 Patten, 86 note. 
 
 Carriage repairer, 66 note. 
 
 Dyer, 61 note. 66 note. 
 
 Factor, 50 Kruger, 
 
 Farrier, 66 note. 
 
 Finder, 55 Nicholson, 58 Wentworth. 
 
 Garage keeper, 63 note. 
 
 Grain thresher. 66 note. 
 
 Harness cleaner, 66 note. 
 
 Innkeeper, 87 Broadwood, 89 Bobbins, 92 Cook, 95 Gordon. 
 
 Livery stable keeper, 104 Welsh, 106 Seebaum. 
 
 Mechanic, 327-335, 354 Sowden. 
 
 Packer, 53 note. 
 
 Printer, 66 note, 70 Blake. 
 
 Sawyer, 66 note. 
 
 Shipwright, 66 note. 
 
 Warehouseman, 64 Steinman, 72 note. 
 
 Wharfinger, 53 note. 
 
 MISLAID GOODS, 
 
 Distinguished from lost, 35 Llvermore, 37 DurfeCt 
 
 OFFSPRING, 
 
 Follow parents, 157 Bryan, 238 White. 
 OWNERSHIP, 
 Created by. 
 
 Accession, 160-195. 
 Adverse possession, 150-160. 
 Confusion, 195-222.
 
 404 INDEX 
 
 [The figilres refer to pages] 
 
 OWNERSHIP— Continued, 
 Gift, 241-2G3. 
 Judgment, 223-227. 
 Possession, 141-149. 
 Satisfaction of judgment, 227-241. 
 
 PLEDGE, 
 
 Assignment of, 119 Goss. 
 
 Damages for conversion of, 123 Baltimore, 125 note. 
 Sale, wrongful, 122-132. 
 Subpledgee, rights of, 133 Talty, 136 Whitney. 
 POSSESSION, 
 
 Adverse, 150-160. 
 
 Change of, in gift, 241 Cochrane, 250 Hlllebrant, 251 nota 
 Defective title as giving, 4 Sutton. 
 Finder's right based on, 25-43. 
 Lien based on, 97 McFarland, 102-107. 
 Ownership given by, 141-149. 
 Servant does not have, 7 Tuthill, 17 Anon. 
 Trespasser has, 4 Woadson. 
 See Trespass; Trover. 
 
 PROPERTY, 
 
 Chattels real, 3. 
 
 Personal, distinction between, and real, 1-3. 
 Real, distinction between, and personal, 1-3. 
 Shares of stock, personal, 3 note. 
 See Ownership. 
 
 QUASI CONTRACT, 
 
 When maintainable In accession, 171 Isle Royale, 173 note. 
 
 REPLEVIN, 
 
 Fixtures, when recoverable in, 195 note, 344 Salter. 
 Forthcoming bond in, 164 Herdie, 183 Single. 
 Maintainable against owner when, 10 Woodson. 
 
 TENDER, 
 
 In action for misdealing with pledge, 122-127. 
 
 TREASURE TROVE, 33 Danielson. 
 
 TRESPASS DB BONIS, 
 
 Bailor, by, 20 Lotan, 22 Holly. 
 Based on possession, when, 4 Woadson, 18 Ward. 
 Misuse by bailee, when lies for, 17 Anon. 
 Servant, when liable in, 17 Anon. 
 
 TROVER, 
 
 Bailor, by, 21 Loeschman. 
 
 Based on possession, when, 15 Barwlck, IS Gordon. 
 
 Purchaser under defective sale, when may maintain, 4 Sutton. 
 
 Servant, by, 7 Tuthill. 
 
 WAREHOUSEMAN, 
 
 Confusion, rights of, in, 197-210. 
 Lien of, 64 Steinman, 72 note. 
 
 THEST FUBLISBINS CO., rBINTEBa, BT. PAUL, MINN.
 
 LAW LITERARY 
 
 UNIVIIISITY OF CALIFORNU 
 
 LOS ANGELES
 
 D 000 322 456 5 
 
 
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