Wade, ex'or, vs. Johnston.

manufactories. And the rule of the common law, as we understand 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 modifications, 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 & Ferardon 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 furnish 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 gold 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

Edwards vs. McKinnon.

wards the engine; Mr. McKinnon met witness in the street and asked him if he had bought the engine; witness replied that he had, and McKinnon told him that he had a claim on it for hauling the engine for Cherry, and that he had been to see Mr. Edwards to get paid, but Edwards would not pay it. The jury found for the plaintiff, and the defendant carried the case by certiorari to the Superior Court.

After argument, the Court below dismissed the certiorari, and Edwards filed his bill of exceptions, alleging that the Court erred,

1st. In ruling that the said Henry M. Cherry was a competent witness; and

2d. In ruling that the evidence in the case was sufficient to authorize a judgment in the Justice's Court for the amount sued for.

SPENSER, for plaintiff in error.

HANSELL, contra.

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

Two questions are made in this case. 1st. Was Henry Cherry a competent witness? 2d. Was the evidence sufficient to justify the verdict.

[1.] We concur with the Court below that Cherry was a competent witness. A judgment in this case would be no bar in a subsequent suit, at the instance of McKinnon against Cherry.

In the case of Nesbit vs. Lawson, 1 Kelly, 275, relied on to exclude Cherry, the point was different. Lawson sued Nesbit, as his attorney, for having collected money on a promissory note. Grimes, the debtor, was introduced to prove. that he had paid the money to Nesbit. If a judgment had been fixed on Nesbit, by the testimony of Grimes, the right of action against Grimes would have been lost, whether the

Edwards vs. McKinnon.

money was collected or not. For the record would show, (and the plaintiff would be bound by it,) that the plaintiff's attorney had already collected the money of the debtor. The interest of Grimes, therefore, was direct and immediate. Not so here; for as we have already said, a judgment against Edwards would not relieve Cherry, unless the money was collected. And even it would not necessarily discharge Cherry from a liability to refund to Edwards. Both of them might be liable to McKinnon, as in the case of principal and agent, where the agency is not disclosed.

[2.] Taking the testimony of Cherry as competent, ought there to have been a recovery against Edwards? Through kindness to Cherry, for no other motive can be inferred from the transaction, Edwards agrees to purchase for Cherry an engine to start a mill; and to allow Cherry to reimburse him when he is able to do so, after first deducting the expenses of keeping up the establishment, and supporting his family. This is no partnership, as has been suggested by the distinguished counsel in behalf of the defendant in error.

The engine is bought by Mr. Edwards and shipped to Newport. The agent of Mr. Edwards at Newport refuses to deliver it to Cherry but upon the order of Edwards. This is obtained by Mr. Cherry, and the engine is delivered to McKinnon, a wagoner, and the plaintiff in the action below, who agrees with Cherry to haul it to Thomasville for fifty dollars. The mill, from some cause or other not distinctly disclosed in the proof, failing to realize the expectation of the parties, is re-sold, by the consent it would seem of Cherry, by Edwards to Moore. And McKinnon, between whom and Edwards there was no contract, express or implied, seeks to hold Edwards liable for the hauling, and so the jury find.

We do not see upon what principle this verdict can be sustained. Edwards never employed McKinnon to do this job. He was under no obligation, legal or moral, to have the engine transported from Newport to Thomasville. Cherry was not his agent for this purpose, so far as the testimo