The Statesman.
London, England, 1820-02-11 00:00:00

COURT OF C1131310N PLEAS, ri:11. W.

On Wednesday, Thomas Peke, Esq. Barrister, wax
called to the degree of nerjeant at LAW, and took his
seat iu Conrtocsoedi
In a use of Halford-r. Dillon, after hearing 3lr. Ser.
Jeant Urfa and Mr. Sorjeant lit.osaa•ri for the plain:
tit and Air. Dillon himself in reply, the Court postponed
their judgment till the next 'fcrw.

STEWARD C. LOMDS AND orrigic
This was a cause tried before Lord Chief Justice
Dallas at the last Asaises for the county of Norfu:l:, and
.he following appeared to be the facts of the case, as
iliscloeed upon the trial :
A Mr. Burgess was the owner of lands and a mill
erected thereon, situate at Hemlinell, in the county of
Norfolk, anti having borrowed the suns of 1.095/. from
the plaintiff, be secured the repayment of it by a mort-
vire upon the premises, the condition of which was to
hr void upon payment of that eons, with interest, on the
tills of June, 1818; the money, however, was not repaid,
and the plaintiff therefore became the owner, Burgess
still continuing in. the actual possession. Burgess had
contracted a debt with a person moaned Wright, who,
having brought an action and obtained a verdict, issued
writ offirri facies, directed to the defendant Jambe,
the High Sheriff of Norfolk, who sold the pill under
that writ. The present action was brought to recover
a compensation iu damages for the mill, which had been
taken down and carried sway immediately after the sale.
Notice had beam given to the Sheriff that the mill ore
the property of the plaintiff. The Jury found a verdict
fir the plaiutiff, damages 27W., with liberty for the de-
fig:dant to move to enter a nonsuit on the following'
points :—First, that the mill was nut a fixture; um: sue.
cottilly, that it was, at the time of the execution, it the
...gnat possession of Burgess, and therefore that the dere '
Alio ymil.
r. Serjeant BLO/lETT load, on a tomer play, obtained
a rule to show cause why this verdietehould nut be set •
aside, and a nonsuit entered.
Mr. Serieant FRIMIUS DOlrightlled cause, and contend-
-191, first, that the mill was a fixture, and passed with the ,
freehold; an.l second/y, that the occopation of the mill
by Burgess was rut inconsistent with the deed, and that t
actual possession by the plaintilfiras nut necessary. He
cited the case of kidd r. Rawliuson, 2 Bosanquett and
roller 59, where it was held that a hill of sale executed
by the Sheriff to a buyer, gave a title without actual
possession, and Horn r. Raker, 9 Fast's Reports, 215, to
thew that fixtures would nut pass under the words ;
•' goods and chattels." A conveyance passing land,
would pass a building on the land, and, therefore, with-
out the litigation of the mill, it would have passed by the
deed ; and surely there was no Wilding whatever morel
.f the nature of a fixture than a winilunill, from the very
Areamegaticeuf its being exposed to the greatest force of
-lie elements. Sorely his Learned Friend could not at- i
tempt to argue that it was the disposition of such a •
Itivibling to migrate, and that it was therefore a person-
•lity as bring of a wandering roving nature. He con-
tended that the., plaintiff should maintain his verdict
both im•law and justice.
Mr. Serjeant Btosserr, in support of his rule, ob-
served, that this must nut he considered as an :amulete
bargain and sale, fur, by the conditions of the tired, the
mortgage was to be void; the money should be paid by
4 certain day, in which case there was to be a re-assign-
ment of the property. lie contended, that on the trial
he hail fully proved the mill was chattel only; and his
Learned Friend could not possibly say that a bargain
and sale, by way of pledge, of a persouility, without de-
livery of possession, could stop tfie creditor of the
pled,;er from his lawful execution. .4 man may take a
.Lease of personal hattels, and they will not be liable to
relation against the lessee for the original proprietor.
'l4lWarils. e. Hirben, 2 Tenn tßeports, 587, that the pose
•sessitto must follow the devil, and it must be stronger to
the case of a pledge than imi that of a bargain end sale.
He was aware that in 11uat case it was determined that
where the conveyance *as absolute. the possession must
be delivered immediately, anti that where it is cadi-
tional it would not he rendered void by the veuder's con-
tinuing in possession till the condition he performed.
Net this did- nut destroy the former part of the division.
11 a etaitl, that-the question ante the mill being
tixttire was a queetion as emelt of law as of fact; and

I whether it passed with the load osier the mortgage Or
not. la the essaveysmise if Oho Mari the mill was &-
smelled as beiag simatod em the lead. and it was there-,
hn dearly istaashmlintiorpas that as well as the lead.—
It was said that Om agee kid not takes:possession,
awl Oat "Flutist it the tie would Bet fellow the deed ;
betilde wan not a raw like that is which a chattel coati
be tvaasfeered from bead to hand, and the facts in this
particular misht sue the strung intermit, of the law.
The case id Eilwanis r. ilarben was dissented from in
the case of Kidd e. Itawlinson, independently of which
it Night be distinguished from the prevent. If the ems-
gide. *ere absolute there mist hare been an curry. but
if act se. the want of it woad nut vitiate the decd.—
/Jurgen, by continulag in possession, did aot gain credit
from the world on that account, for every one looked
upon the land and mill as one entire estate; and know-
ing he was divested of the land, they could not, they
did not imagine him to be more this the were occupier
of the mill. The case of Horne e, Baker was import-
ant. for in that J. Horne, the plaintiff's testatoe, bad left
the haakrupt in possession, by which means the world
have been deceived, and the things which the lessee held
were in that cue moveables. Tile case of Kidd v. Raw-
Kneen had been since recognized in that of Watkins e.
Birch, 4 Taunt. 1523; and Loth on the facts and the law
of the case the Court felt it their duty to discharge the
rule.—The plaintiff, therefore, retains his verdict.

ARWIES tOURT.DOCTOILS' C031310N, FEE. 10.