possession, but did not remove it during the tenancy. The court held that the tenant could not remove the fixture after the expiration of his tenancy, and that "the vendee could not be in any better situation than the tenant was. In Talbot v. Whipple, 14 Allen, 182, the question arose between the lessor and a mortgagee of the tenant. During the term the tenant mortgaged a removable fixture, consisting of a large dryhouse, and heavy machinery therein, to secure a debt of $1,200. He subsequently abandoned the premises, and the lessor then entered and resumed possession. Shortly after this the mortgagee attempted to take the fixtures, but the court held that he was too late. The court say: "The building and machine are to be regarded, not as movable chattels, such as the tenant might have removed within a reasonable time after the expiration of his tenancy, but as belonging to that class of fixtures which, if removed at all, must be removed by the tenant from the realty during the term demised, or, if suffered to remain annexed thereto after the expiration of the tenancy, belong to the landlord as part of the freehold. It is hardly necessary to add that the plaintiffs can claim no better title to the property in controversy than that which was vested in the tenant under whom they claim as mortgagees. When the mortgage was made, the building and machine were fixtures annexed to the realty of the defendant by his tenant, and which the defendant then had an inchoate right to claim as part of the freehold, if not reasonably disannexed before the term was ended." In Burke v. Hollis, 98 Mass. 55, and Cooper v. Johnson, 143 Mass. 108, 9 N. E. Rep. 33, the same doctrine seems to be recognized. In Thropp's Appeal, 70 Pa. St. 395, the question arose between the lessor and levying creditors. Pending the levy, of which the lessor had no notice, the tenants surrendered possession to the lessor, who entered, and it was held that the rights of the creditors also ceased to exist. This case will be referred to later on, but upon the point now under consideration, the court say: "The sale not having been made until the termination of the lease by surrender of the term, the right to remove the building was gone as against the landlord." In Donnewald v. Real-Estate Co., 44 Mo. App. 350, the facts were as follows: The defendant had leased premises to oue Durgin, who, during his tenancy, had placed an engine and boiler therein. In February, 1888, Durgin abandoned the premises, and in May following the engine and boiler were bought by the plaintiff at a sheriff's sale upon an execution against Durgin. The court say: “The right to levy upon and sell under execution a trade fixture belonging to the tenant must be exercised during the term or while the tenant remains in possession." It was held that plaintiff had no title to the fixtures. In Friedlander v. Ryder, 30 Neb. 785, 47 N. W. Rep. 83, the facts were these: A tenant during his term had erected a removable fixture. The rent being unpaid, the landlord brought an action to determine the lease and recover possession. On the 4th of April, 1888, the landlord obv.26A.no.3-9

tained a judgment of restitution of possession, but the tenant was not dispossessed, nor the landlord put into possession, until two days later. Between the date of the judgment and the date of the dispossession a creditor of the tenant levied an execution on the fixture. In reference to this state of facts, the court say: "Under the lease * the tenant had a right, before the surrender of possession, to remove any improvements made by him which are included under the head of tenants' fixtures, but the tenant had no authority after the termination of his tenancy; in other words, the tenant could not re-enter to remove the fixtures after the surrender of possession to the landlord. In the case at bar the addition constructed by the tenant was not removed before the tenant was ousted under the writ of restitution. It is true, before the writ of restitution was served the execution was levied upon the addition, but we fail to see how that could affect the rights of the plaintiff. These creditors, by the levy of their execution, obtained no greater rights in the premises than had their debtors, the Hewitts. If the Hewitts had no right to enter and remove the property after they had been dispossessed, then it would seem clear that their creditors had no such right."

So far as we are aware, this court has never had occasion to consider this precise question, and in view of this, and of its practical importance, we have felt justified in dwelling upon it at some length. As before intimated, there are some coses which seem to be, and perhaps are, exceptions to one or more of these rules. In certain cases a formal, voluntary surrender by a tenant has been held not to affect the rights of third parties to fixtures fairly acquired before the surrender. Such surrender is treated as a grant taken subject to the rights of third parties. Shepard v. Spaulding, 4 Metc. (Mass.) 416; Doe v. Pyke, 5 Maul & S. 146. In the case last cited, which was the surrender of a life estate, the court said: "it was urged that such a surrender would annihilate all interests demised under that lease. No authority, however, which goes the length of that position was adduced, and we consider it as clear law that, though a surrender operates between the parties as an extinguishment of the interest which is surrendered, it does not so operate as to third persons who at the time of the surrender had rights which such extinguishment would destroy, and that as to them the surrender operates only as a grant subject to their right, and the interest surrendered still lies for the preservation of their continuance." In the case of Loan, etc., Co. v. Drake, 6 C. B. (N. S.) 798, a lessee for years mortgaged tenant's fixtures and afterwards voluntarily surrendered this term to the lessor. It was held that the tenant could not by a voluntary surrender "derogate from his grant" to the mortgagee. The court said: "The question is whether the mortgagee's right to sever the fixtures from the freebold is a 'right or interest,' and we are of opinion it is. Certainly it is an interest of a peculiar nature, in many respects rather

*

partaking of the nature of a chattel than of an interest in real estate. But we think it is so far connected with the land that it may be considered a right or interest in it, which, if the tenant grant away, he will not be allowed to defeat his grant by a subsequent voluntary act of surrender. In 1875, in the case of Saint v. Pilley, L. R. 10 Exch. 137, the same doctrine was recognized and applied. It may well be that a formal, voluntary surrender, which is in effect a grant, should not injuriously affect the rights of third parties previously and fairly acquired. We have no occasion here to approve or disapprove of that doctrine. So, too, ordinarily, these rules have no application to a case where the property in dispute is not a "removable fixture," but a mere chattel: as in the case of O'Donnell v. Hitchcock, 118 Mass. 401, where a creditor attaching during the tenancy was allowed to remove, after it was determined, a structure which was held to be a "mere chattel." They have usually no application in tenancies at will, as is shown in the case of Doty v. Gorham, 5 Pick. 487, where the court holds that such a tenant has a reasoanble time to remove his fixtures after his tenancy is determined, and that his creditors attaching before such termina- | tion have the same right of removal. They have no application to cases where the ordinary rights of landlord and tenant as to fixtures or their removal have been varied by agreement. "It is well settled that landlord and tenant may by their agreements treat as personal property improvements which would otherwise be part of the realty, and thus convert them into personal property as between themselves." Fitzgerald v. Anderson, 81 Wis. 341,51 N. W. Rep. 554. In Threpp's Appeal, supra, the court intimates that, if the landlord had received notice of the levy, the right of the creditor would not have been affected by the subsequent voluntary surrender. It held that the failure to give notice was a failure to prosecute the levy with due diligence. We have no occasion at present to approve or disapprove of this dictum.

In

In the case at bar the court below, in that part of its charge which we are now considering, seems to have acted upon the dictum in Thropp's Appeal, although the facts were materially different. Thropp's Appeal there was a voluntary surrender; in the case at bar the tenant was dispossessed in an adverse proceeding in which the attaching officer, as well as the tenant, had been cited to appear. Under the lease and statute relating to summary process the lessor had the right to put an end to the term, and regain possession as he did. When he put the tenant out, the right of the latter to remove fixtures, in the absence of any special agreement, and in the absence of any special circumstances which might be held to vary the general rule, was gone, and the right of the creditors to do so was also gone. It is difficult to see how the creditor, in such circumstances, could have any greater right than the tenant, or how the attachment with or without notice could affect injuriously the rights of the lessor under the lease and the law. The defendants, as the record

|

shows, in one aspect of the case claimed that the things in question were fixtures, which the tenant could remove, if at all, only during the term. They claimed that there were no special circumstances which prevented the tenant or the officer from removing them within the term had they chosen to do so. As the jury might have found these claims to be true, we think they should have been instructed that, if they so found, the right of the attaching creditor was at an end, and the fixtures belonged to the landlord. The tenant certainly could have saved his rights by paying the rent, and a court of equity could have aided him perhaps in doing so, even after the forfeiture. We are also inclined to think that a court of equity would have aided the attaching creditor in like manner. However this may be, nothing of the kind was done or attempted to be done, nor was any attempt made by any one to remove the fixtures until more than two months after the tenant had been put ont, and then we think it was too late. For these reasons we think that the charge was erroneous, and that there must be a new trial.

What is said in this opinion upon the right of a tenant or his creditor to remove fixtures is limited to the facts as they ap. pear in this special aspect of the case which we have been considering. The plaintiffs claim that a special agreement in the case at bar existed, which varied the ordinary rights of landlord and tenant. Of the case in that aspect we have not been speaking. The defendants, in their reasons of appeal, also insist that the court below in effect told the jury that the intention of the lessee in annexing the chattel to the freehold must be proved beyond a doubt, and that the burden of proof upon this point and upon the question of adaptation and use rested upon the defendant. The charge is fairly susceptible of the construction here put upon it by the defendants, and, so construed, we think it clearly erroneous upon both points.

As this disposes of the case so far as this court is concerned, it is perhaps unnecessary to decide any other questions raised on the record, but as some of them may arise again if a new trial is had, and as they have been fully argued, we have concluded to express our views briefly upon some of them. Upon the trial below the plaintiffs introduced under objection the record, execution, and officer's return thereon in the Hollingshead Case. The defendants asked the court to hold and to charge the jury that the record showed on its face that the Hollingshead judg ment, under which plaintiffs claimed title, was void. The court refused to so hold or charge. The specific claim of the defendants upon this point was that, because the superior court did not continue the action in which such judgment was rendered, as required by statate, it had no jurisdiction to render said judgment. We think this claim is not tenable. We concede that the judgment of a court of general jurisdiction may, in a proper case, be collaterally attacked for want of jurisdiction clearly shown by its own record. The defendants claim that the record in

question shows no appearance by the defendants, and no service of process, save only by attachment of the estate of a nonresident; and hence no jurisdiction, save over the property lawfully attached. If, for the purposes of the argument only, we concede this also, it by no means follows that because the court failed to continue the action it lost jurisdiction. The court certainly had jurisdiction of the plaintiffs in that action; and, assuming for the present that the property of the defendants therein was lawfully attached, the court acquired jurisdiction over the property. Confessedly the court bad jurisdiction over the questions it attempted to decide in that suit. Clearly, then, to begin with, the court had jurisdiction over the plaintiffs, over the property of the defendants, and over the questions in cou troversy in such a proceeding, to enable it to render a judgment for the appropriation of that property. Easterly v. Goodwin, 35 Conn. 276; 1 Black, Judgm. § 229. How, then, does the record show that it lost jurisdiction? By its failure to continue the action, say the defendants. We cannot assent to this. The statute does, indeed, require a continuance, as it does that a bond shall be taken before execution in such cases, but it nowhere expressly or by necessary implication says the consequence of noncompliance shall be the loss of jurisdiction. The provisions referred to were made in favor of the parties, and may be waived if they see fit. A noncompliance with them may be error, which would entitle the party injured thereby to redress of some kind in a direct proceeding for that purpose, but we do not think it deprives, or was intened to deprive, the court of jurisdiction. the legislature so intended it would have said so plainly, and not left the matter to doubtful inference. At most the omission is an irregularity of procedure.

Had

The defendants claim that the case of Sanford v. Pond, 37 Conn. 588, sustains their claim, and it seems to be based wholly on certain expressions in that case. This court there decided that Sanford, who laid claim to certain personal property solely by virtue of an attachment, had not attached the property in question. This disposed of the case, but to save further litigation, if possible, the opinion proceeds to discuss his interest in the property on the assumption of a valid attachment. His interest, in such case, was said to rest on his liability over to the creditor or the owner, and it was held that at the time he brought suit he was liable to neither. The Skidmore Case was the only one about which there could be any question. With reference to that the court says: "The proceeding becomes a mere statutory proceeding for the appropriation of the property attached to the payment of the debt on which it is attached. This being so, every step required by the statute must be taken precisely as an officer levying on execution on real estate must comply with every statutory requirement in the proceeding, or no title will pass by the levy. Here a most important statute requisite was omitted, and consequently a levy of the execution

on the property would have been of no effect." Nowhere in that opinion does Judge Foster say that the judgment in the Skidmore Case was void. Indeed, on page 595 he speaks of it as "erroneous, which is inconsistent with the view that it was void. He says expressly and plainly that the Barnes judgment was void, and, if he had thought the Skidmore judgment was void also in the same sense, he would have said so just as plainly. What he does say regarding the validity of the Skidmore judgment is, in effect, that the creditor could not hold the officer responsible for not serving an execution issued on a judgment which might be set aside for a manifest error therein. The case does not support the defendants' claim. Although, then, the record in question shows a failure to continue the action it is not for that reason void on its fare.

The defendants further claim that the officer's return upon the writ of attachment in the record introduced did not, on its face, show a valid attachment, because it did not state the fact that in the opinion of the officer the property could not be moved without manifest injury. The return, on its face, shows that the officer attached the property described therein, and took it into his possession, and put a keeper over it. It shows the officer in the actual, rightful, exclusive, and undisturbed possession of the attached property. Under these circumstances it was not necessary to the validity of the attachment that the property should be moved, or a reason given in the return why it was not. The charge of the court upon this point of which defendants complain, even if erroneous, did the defendants no harm.

The defendants further say that the court, instead of deciding upon the validity of the record as matter of law, allowed the jury to construe it. It is not at all clear that the court did this; but, if so, it did the defendants no harm, for the jury must have found simply what it was the duty of the court, as we have seen, to have directed them to find. Doe v. Strickland, 8 Man. G. & S. 723.

Hoyt had written a letter to his tenants to the effect that the tenant might make certain changes and alterations in and upon the leased premises, and that Hoyt would make no claim to any machinery which the tenants might put into or upon the same. The plaintiffs called a witness, who testified that at a certain interview between himself, Hoyt, and one of the plaintiffs, the witness, at the request of Hoyt, read aloud a portion of the letter. He was then asked to state the part which he had read aloud, and, in substance, whether Hoyt had admitted that the facts stated in such portion were true or not. The defendants objected to any oral statement of the contents of the letter on the sole ground that such evidence was secondary and inadmissible until it had been shown that the letter itself could not be produced. The court admitted the evidence. The evidence was claimed as an admission of the contents of a writing by one whose admissions were relevant. It was claimed as primary, and not secondary, evidence.

If it was primary evidence, the objection taken is not tenable. The rule that the oral admissions of a party against himself and those claiming under him, although relating to the contents of a writing, are primary evidence, seems to be well established, whatever we may think of its wisdom. So far as we are aware, this court has never had occasion to consider this rule, but elsewhere the weight of authority is in its favor. It is established in England, as shown by the authorities cited. "Primary evidence means the document itself, produced for the inspection of the court,

or

an admission of its contents, proved to have been made by a party whose admissions are relevant." Steph. Dig. art. 64; Earle v. Picken, 5 Car. & P. 542; Slatter v. Pooley, 6 Mees. & W. 664; Queen v. Basingstroke, 14 Q. B. 611; Tayl. Ev. par. 410. It seems to be the prevalent rule in this country. 1 Greenl. Ev. (15th Ed.) par. 98; Smith v. Palmer, 6 Cush. 513; Loomis v. Wadhams, 8 Gray, 557; Blackington v Rockland, 66 Me. 332; Wolverton v. State, 16 Ohio, 173; Edgar v. Richardson, 33 Ohio St. 581; Edwards v. Tracy, 62 Pa. St. 374; Taylor v. Peck, 21 Grat. 11. The wisdom of this rule is questioned by Judge Taylor in his work on Evidence, and from the cases cited in note a to the paragraph from Greenleaf, cited above, it would seem that the courts in Ireland dissent from it, as do also the New York courts. The weight of authority, however, as before stated, seems to be in its favor, and we see no reason why it should not be applied in a case like the one at bar. We think also that the testimony of Mr. Barmore was admissible upon the question of the intent of the tenants in placing the machinery upon the leased premises. Linahan v. Barr, 41 Conn. 472; Seeger v. Pet. tit. 77 Pa. St. 439.

The plaintiff claimed to have proved that certain of the articles taken and converted were substantially new. Mr. Hopkins was permitted to testify to the value of new articles of a similar kind. This evidence was, on the claim of the plaintiffs, clearly admissible.

One of the errors assigned is the action of the court in permitting Hollingshead's deposition to be read, to the effect that the agent of Hoyt made certain representations as to the condition of machinery before the execution of the lease between Hoyt and the New York corporation. The claim of the defendants upon this point seems to be that the evidence in question was offered and received for the purpose of affecting in some way the written lease. It does not appear whether at the time the representations were made the lease was or was not executed, and therefore this assignment of error is without foundation. We also think the evidence was admissible for the purpose for which it was offered and received.

The defendants requested the court to charge the jury that the fixtures in question had, as matter of law, become part of the realty. What the precise facts were upon which this claim was based is nowhere clearly shown. On looking over the record, it seems as if pretty much every

thing asserted on one side was denied by the other. The court committed no error, under these circumstances, in refusing to charge as requested.

The defendants claimed that the fixed machinery in question was a part of the realty, and could only be attached as real estate. Where the right of attachment prevails, it is clear law that whatever may be sold under execution may be attached. Drake, Attachm. (4th Ed.) § 244. Now, the fact that fixtures which a tenant has the right to remove may be levied upon under an execution as personal property is clearly established in many of the cases hereinbefore cited. It is also clearly established by the following authorities: Tayl. Landl. & Ten. (6th Ed.) p. 431; Cooper v. Johnson, 143 Mass. 108, 9 N. E. Rep. 33; Overton v. Williston, 31 Pa. St. 155; State v. Bonham, 18 Ind. 231; Heffner v. Lewis, 73 Pa. St. 302; Lanphere v. Lowe, 3 Neb. 131; McNally v. Connolly, 70 Cal. 3, 11 Pac. Rep. 320. It follows that in such cases the fixtures may be attached as personal property.

It

The defendants say the court erred in charging, in the case of articles detained and subsequently returned, that interest upon the value of such articles during the time of detention was an element of damage. It is to be observed, with regard to this class of property, that the plaintiffs were not seeking to recover its value, but simply the damage they had suffered by reason of the taking and detention; and that the property was of that class, as far as we can see, that has no value for use. It was useful only for sale or consumption. "In many cases, interest on the value from the time of the wrongful taking would be a proper measure. would generally be so in all cases where the property detained was merchandise kept for sale, grain, and all other articles of property useful only for sale or consumption. In such cases, if the owner recover the interest on the value of its property from the time he was deprived of it, he will generally have a complete indemnity, unless the property was depreciated in value, in which case the depreciation must be added to the interest on the value taken as it was before the depre| ciation, and the two items will furnish the amount of the damage." Allen v. Fox, 51 N. Y. 562. The court below charged in accordance with the principle laid down in this case, and in doing so we think it did not err.

The defendants also complain that the court below in its charge laid undue emphasis upon the intention of the tenant as an element in determining whether a given article was a fixture or not. We think this complaint is without foundation. The other elements were given their due share of prominence. It is true the court told the jury that the element of intention was of great importance, and used the word "superlative" in this connection. The charge upon this point as a whole. however, we think gave to each element its due weight. After a somewhat extended survey of the authorities pertaining to the law of fixtures, we are inclined to agree with those which hold that, as be

tween landlord and tenant, the clear tendency of the modern cases is to give preeminence to the element of intention, and that other elements derive their chief value as evidence of such intention. Iron Co. v. Black, 70 Me. 473; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 23 N. E. Rep. 327. This is in accordance, we think, with the principles recognized in Capen v. Peckham, 35 Conn. 95, and Linahan v. Barr, 41 Conn. 473. A new trial is advised for the reasous herein before given. The other judges concurred.

DIGNAN v. DIGNAN.

(Court of Errors and Appeals of New Jersey. March 6, 1893.)

ASSIGNMENT OF INTEREST IN SUIT-SETTING ASIDE DECREE.

In bill between partners for an account, on dissolution, the complainant, pending suit, assigned to a person, not a party, all his inter est, and afterwards, the defendant being igno rant of the assignment, a decree was entered in favor of the complainant. The defendant was then informed of the assignment, and, having such knowledge, took an appeal, and during its pendency the complainant and defendant settled the litigation; one of the terms of the settlement being that the decree should be canceled. Therefore the present petition was presented by the defendant, to open the decree, on the ground of the previous assignment of the interest of the complainant. Held that, as between complainant and defendant, their settle ment was conclusive, and the decree, being thereby nullified, could not be opened, so as to reinstate the suit, and that, if such an order should be made, it would be a nullity, as the assignee was not a party to the proceeding. (Syllabus by the Court.)

Appeal from court of chancery.

Petition by James W. Dignan against Thomas Dignan to set aside the decree against him in favor of defendant in another suit, by defendant against complainant, on the ground that before such decree complainant had assigned to another his interest in that suit. The petition was dismissed, (22 Atl. Rep. 1092,) and complainant appeals. Affirmed.

Carroll Robbins and G. D. W. Vroom, for appellant. William M Lanning, for respondent.

BEASLEY, C. J. The procedure placed before this court by this appeal seems destitute alike of basis and of object. This is the posture of the transaction: These litigants were partners in trade, and the respondent filed a bill seeking a dissolution and an account At a certain stage in this course of law, and before decree, the respondent, being complainant, assigned, as it is claimed, all his interest in the matter in controversy to a third person, one Mrs. Millington. After this transfer, a decree was rendered for a considerabic sum in favor of the complainant. The defendant then was notified of this assignment, and, being possessed of that knowledge, he took an appeal to this court. After some progress made in that procedure, these parties came to an understanding, and settled their litigations. As a part of that adjustment, the respondent

discharged his decree, in these words, viz.: "And the said Thomas Dignan does hereby release, and forever discharge, the said James W. Dignan of and from said decree [the decree now in question] in the court of chancery of New Jersey, and of and from all claims, debts, demands, costs, and expenses touching, concerning, or growing out of said decree, or the said chancery suit, or the said appeal, and does hereby covenant and agree to execute any and all further necessary stipulations, orders. or declarations concerning said suit and said decree, and either himself to cause said decree to be canceled, or to execute the requisite paper to enable and authorize the said James W. Dignan to cancel and nullify said decree." This release was by deed. From this status the appellant was entitled, in the simple method ap pointed in the statute, to have satisfaction of this decree to be entered on the record. This being the situation, "the petition" which is the foundation of the proceeding now before this court was filed by the appellant. That petition states the foregoing facts, and prays that "an order may be made, opening and setting aside the said decree; that is, the decree above referred to. The proceeding is between the original parties above.

The mystery of the litigation begins at this stage. What sensible reason can be assigned to induce the chancellor to grant the prayer of this petitioner? The defendant in a suit, after a decree upon the merits has passed against him, and after he has settled such decree, and the complainant has formally released to him all interest in it, is here asking to open the decree, and to set it aside. The effect of such an order would be to revive the suit, placing it in the state for final hearing and decree; but it is certain that the complainant, after having released all his interest in the steps. As between the parties to this recsubject of the suit, could not take those ord, an order opening this decree would be an act absolutely nugatory. It is to be noted that this petition in no wise calls in question the equity or legality of the settlement in question, but on the contrary the petitioner produces and relies on the deed in which it is contained. As long, therefore, as this instrument deserves its operative force, the satisfied suit and decree cannot be transformed in any degree, unless by the mutual consent of both the contracting parties. The reason assigned in the argument for opening and setting aside this decree was that the case had been put on final hearing, and a decree taken in the suit, after the complainant had, without the knowledge of the defendant, assigned all his interest in the suit to Mrs. Millington. It was insisted that by such transfer of interest the suit abated, and the decree subsequently entered was a nullity. Admitting this, for the purpose of the argument, to be the legal effect of the transaction, it canuot. in the minutest degree, affect the standing of these parties inter se. With full knowledge of the assignment, they annulled this decree in the manner stated, and that concluded the affairs, as between themselves. In the argument on this subject, there are certain