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Wade ex'or ve. Johnston.

This charge the Court resused to give, but on the contrary, charged the jury, “ that the whole of the property aforesaid was real estate, and that as said mortgage had been foreclosed before a Justice of the Inferior Court, the judgment of foreclosure and the execution issued thereon were void, said foreclosure not being had or made by any Court having jurisdiction of the same.

The jury returned a verdict in favor of the claimant, and the plaintiff in error filed his bill of exceptions, saying that the Court erred,

1st. In deciding that all the property aforesaid was real estate.

2d. In deciding that said judgment of foreclosure, and the execution issuing upon the same, were void.

3d. In deciding that said mortgage, as to the property aforesaid, could not be foreclosed before a Justice of the Inferior Court.

Cone, for plaintiff in error.

REESE, contra.

By the Court.LUMPKIN, J. delivering the opinion.

The Madison Steam Mill Company mortgaged to the plaintiff in error, certain real estate, on which their factory was situated, and also included in the same mortgage, as personal property, varicus articles of machinery then in the building. The plaintiff'in error foreclosed his mortgage upon the machinery, as personal property, before one of the Justices of the Inferior Court of Morgan county, and execution was issued upon said judgment of foreclosure, returnable to the Inferior Court of Morgan county. This execution was levied upon the machinery, and defendant in error interposed a claim to the same.

When the case came on for trial in the Superior Court, that Court decided that all the machinery, and every other species of property, embraced in the mortgage, was real es

Wade, ex'or, vs. Johnston.

tate; and that as a mortgage upon real estate could only be foreclosed in the Superior Court, the judgment of foreclosure, and the execution issuing thereon, was void.

Upon these facts and the evidence set forth in the bill of exceptions, counsel for plaintiff in error insists, that the machinery and other property, mentioned in the mortgage as personal property, is personal property, and not fixtures and real estate, and this is the sole question in the case.

A previous adjudication of this Court, during the present Term, renders the discussion of the point made in this bill of exceptions entirely nugatory. It is not disputed but that the mortgage in this case covers all the personal propety, as well as the real estate, the factory building, engine, boilers, shafts and machinery; and the Court having sustained the validity of the mortgage, the question as to which Court is entitled to foreclose, becomes one of utter immateriality, so far as David S. Johnston, the claimant, is concerned. It may well be doubted, whether he had the right to contest the form of foreclosure. If the mortgagee is content, what is it to him whether the mortgage was foreclosed in one Court or the other? He swore that the property belonged to him, under and by virtue of his purchase at Sheriff's sale, and that was the issue he tendered. And I would respectfully submit, that in all cases of claim, the law should be so amended as to restrict the investigation to the claimant's title, if such be not the proper construction of the law as it stands. What right have third persons to intervene between creditor and debtor, provided the paramount title to the property be not in him ? Such is the construction of the Alabama Courts upon a statute precisely similar to our own.

But waiving all this, inasmuch as the doctrine has been ably and thoroughly argued on both sides, as to what constitutes fixtures, the Court will declare its opinion upon the subject, not as between landlord and tenant, executor and heir, executor of the tenant for life and remainder-men; not as to agricultural property, but as applicable to mills and

Wade, ex'or, vs. Johnston.

manufactories. And the rule of the common law, as weunderstand and adopt it, may be summed up in a single sentence, and it is this: wherever the article can be removed without essential injury to the freehold, or the article itself, it is a chattel; otherwise, it is a fixture. This rule is recommended by its simplicity and definiteness. Depart from it, and we are at sea, without chart or compass. This rule, of course, may be controlled by the agreement of the parties, as well as by established usage or custom. And most of the exceptional cases to the foregoing rule, and which seem to conflict with it, will be found to arrange themselves under one of these heads.

Having no statute law upon the subject, an eloquent appeal has been addressed to this Court, to apply the common law, with enlightened and discriminating reason, to adapt it to the ever varying necessities and requirements of advancing civilization; that the wonderful developments made in manufactures at this day, demand such judicial construction ; that the common law is confessedly undergoing modi. fications, and that the tendency in this country, is to consider the land itself set apart for manufacturing purposes, the buildings erected on it to receive and contain the machinery, the boilers and engine used to generate steam, as a motive power, and the machinery itself, the important and efficient agent in the process, as constituting one great whole, and taking the distinctive character of the land upon which it rests; that this falls within and encourages the spirit of the age, and the development of this great branch of industry; and that Georgia should not lag behind in the race.

It is conceded that there are decisions which seem to favor these views. The weight of modern authority, however, is the other way; and the common law rule is adhered to and enforced in reference to this species of property, in some of the principal manufacturing States of the Union. Amos & Ferard on Fix's. 3, 4, 5, 6, 7, 56, 58,184 et passim; 14 Mass. R. 352; 17 Johns. 116; 20 Wendell, 636 ; 24 Wendell, 191;

Edwards vs. McKinnon.

10 Barbour, 157; 9 Connecticut, 63; 9 East. 215; 5 Denio, 337; 11 Vermont, 433; 3 Blackford, 111; 7 ditto, 469.

Had the later cases concurred in modifying the common law rule in the direction and to the extent contended for by the learned counsel for the defendant in error, this Court might be inclined to lend its ear more willingly to the appeal which has been made. But seeing that New York, Connecticut, and other Northern States, which have the largest amount of machinery in operation, have not been persuaded as to the wisdom of changing the common law rule, we may well pause before taking the step; and conclude, as we do, that the interference invoked would proceed better from the Legislature, which, in abolishing one rule, might substitute another equally certain and accurate.

Judgment reversed.

JAMES B. EDWARDS, plaintiff in error, vs. NEILL MCKINNON,

defendant in error.

A witness is competent to testify, who has no certa.n interest in the event of the

suit, and where the judgment in the case cannot be given in evidence, either for or against him, in a subsequent suit against himself.

Certiorari, from Thomas county. Decided by Judge Love, December Term, 1857.

An action was brought in a Justice's Court by Neill McKinnon, against James B. Edwards, for $50, for hauling a steam engine, boiler and fixtures, for a steam mill, from Newport to Thomasville.

VOL, XXV.-22

Edwards vs. McKinnon.

Upon the trial, the plaintiff introduced as a witness, Henry Cherry, who testified, that between himself and James B Edwards there was an agreement that Edwards was to fürnish the said Cherry an engine, for the purpose of starting a mill, and that the profits of the mill, after supporting his (Cherry's) family, and paying expenses, was to go to Edwards, to pay the purchase money and interest, and upon the payment of which, the title of the property was to be in Cherry. The engine was bought by Edwards, and shipped from New York to James B. Edwards, Newport, care of Daniel Ladd. He (witness) made several efforts to get a wagoner to haul said engine to Thomasville, and finally obtained the service of the plaintiff. The engine being subject to Mr. Edwards' order, at Newport, and not to his, (witness,') he (witness) got an order from the defendant for the delivery of the engine to the plaintiff, which was done, and the engine was hauled up to Thomasville, as was agreed upon by the parties. He (witness) tried to borrow money to pay for the hauling. After operating said machinery for a short time, some part of it broke, so that it became necessary for him (witness) to go to Newport to have it repaired, and having no money, Mr. Edwards furnished money for said repairs. After starting again, it was found that something more was necessary in the way of repairs; Edwards becoming dissatisfied, witness proposed that Edwards should sell the engine, which was afterwards done by Edwards, to C. G. Moore; witness told Edwards that the engine could not be sold until the freight was paid for the hauling.

The defendant objected to the admission of this evidence, on the ground that Cherry was an interested party. The Court overruled the objection and admitted the testimony.

James Allen testified, that Cherry applied to him to know where he could get a wagon to haul up his engine, and also where he could borrow $50 to pay for said hauling, and asked witness to loan him the money.

C. G. Moore testified, that he bought from James B. Ed

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