1838. v. TROTTER. pass; but Lee v. Risdon (a) having been cited as an Exch. of Pleas, authority against the plaintiff, the Court nevertheless held, that the value of such fixtures was recoverable MACKINTOSH under the terms "goods, chattels, and effects." If trespass was maintainable for the wrongful taking, so trover would lie for the wrongful conversion and detention of them. If, indeed, the term is determined without the tenant's having removed them, he cannot afterwards take them. [Parke, B.-Is not Minshall v. Lloyd decisive of this case?] The argument for the defendant was there mainly rested on the ground that the premises had revested in the lessor by forfeiture and ejectment brought. In Colegrave v. Dios Santos (b), Abbott, C. J., expressed his opinion at Nisi Prius that the plaintiff might recover in trover for such fixtures as were removeable between landlord and tenant; and, though the judgment ultimately turned on another point, the Court did not intimate any doubt that the tenant might have recovered them during the term. In Lawton v. Salmon (c), which was trover by the executor against the tenant of the heir, to recover salt-pans fixed to the floor, the only question made was, which was entitled, the executor or the heir; but no question was raised whether the action of trover was maintainable; and a case was referred to which is mentioned in Lawton v. Lawton (d), where a cider-mill had been recovered in trover. Davis v. Jones (e) is another authority for the plaintiff. [Parke, B.-The jibs there were not fixtures at all. Would trover lie for a crop of standing corn? Your argument amounts to this, that the plaintiff may maintain trover for preventing him from exercising his right of removal.] The tenant has more than a mere right of removal-he has the property. (a) 7 Taunt. 188; 2 Marsh. 495. (b) 3 D. & R. 255; 2 B. & C. 76. (c) 1 H. Bl. 259, note. (e) 2 B. & Ald. 165. Exch. of Pleas, In Hallen v. Runder (a), Lord Lyndhurst, C. B., and 1838. Bayley, B., appear to draw a distinction between the case V. TROTTER. MACKINTOSH where the action is brought by the owner of the inheritance or by the tenant. There, the tenant was held entitled to maintain assumpsit for the price of fixtures sold by him to the incoming tenant, though they were never severed from the freehold. [Parke, B.-He sells the right to remove, which is described under the word fixtures.] Alexander and Cowling, in support of the rule, were stopped by the Court. PARKE, B.-Minshall v. Lloyd is a direct authority on this point. I gave my opinion in that case, not on my mere impression at the time, but after much consideration of this point-that the principle of law is, that, whatsoever is planted in the soil belongs to the soil-quicquid plantatur solo, solo cedit; that the tenant has the right to remove fixtures of this nature during his term, or during what may, for this purpose, be considered as an excrescence on the term; but that they are not goods and chattels at all, but parcel of the freehold, and as such not recoverable in trover. That case is a direct authority, so far as my opinion and that of my brother Alderson go; and I think it was a correct decision. BOLLAND and GURNEY, BS., concurred. Rule absolute. (a) 1 C. M. & R. 266. Exch. of Pleas. 1838. DOE d. BLOXAM v. ROE. fused to set tion in eject aside a declara ment, on the ground that it contained no quo minus KELLY moved for a rule to shew cause why the decla- The Court reration should not be set aside for irregularity, on the ground that it contained no quo minus clause.-It was held in Doe d. Gillett v. Roe (a), that actions of ejectment are not within the new rules, and therefore that the declaration should commence and conclude in the usual form. clause. [Parke, B.-That is an authority that the declaration is good in the old form; have you any authority that it is not good in the new?] It is clear that this declaration would have been irregular before the new rules, and if they have no application to ejectments, the irregularity necessarily continues. PARKE, B.-There have been decisions, both in the King's Bench and Common Pleas (b), that a variance from the old form in the title of a declaration in ejectment is immaterial, if the tenant has sufficient information when he is to appear. I think we may go a step further, and hold the formal commencement immaterial. The rest of the Court concurred. (a) 1 C. M. & R. 19. (b) Doe d. Evans v. Roe, 1 Ad. & El. 11; Doe d. Ashman v. Roe, Rule refused. 1 Scott, 166, 1 Bing. N. C. 253; Exch. of Pleas, 1833. LEWIS v. ALCOCK, Esq. Declaration in CASE against the sheriff of Surrey for a false return to case against a sheriff for a fi. fa., stated the judgment and writ; that the writ was deli fendant as sheriff, to be executed; and that, although there were then and afterwards, be fore the return of the writ, goods of the debtor within the defendant's bailiwick, whereof he could and ought to have levied the monies indorsed on the writ, and although a reasonable time to have made the levy had a fieri facias. The declaration stated a judgment refalse return to a covered by the plaintiff in the Court of King's Bench against one Henry Gompertz for 2007., and a writ of testatum fieri facias issued thereon, directed to the sheriff of vered to the de- the county of Surrey, indorsed with a direction to levy 1227., besides sheriff's poundage, &c. It then alleged that the writ so indorsed, afterwards and before the execution. thereof, to wit, on &c., was delivered to the defendant, who then and from thence until and after the committing of the grievance thereinafter mentioned, was sheriff of the said county of Surrey, to be executed in due form of law; and although there were then and afterwards, and before the return of the said writ, divers goods and chattels of the said Henry Gompertz within the bailiwick of the defendant as such sheriff as aforesaid, whereof the defendant could and might and ought to have levied the monies so indorsed on the said writ and directed to be levied as aforesaid, whereof the defendant, so being such sheriff as elapsed, yet the aforesaid, always had notice; and although a reasonable time for the defendant, as such sheriff, to have made the levy, and before he made the return to the said writ, and reasonable time committed the grievances thereinafter mentioned, had elapsed; yet the defendant, so being such sheriff as aforesaid, not regarding his duty, &c., did not nor would, within such reasonable time, levy the said monies so directed to be levied as aforesaid, or any part thereof, but therein wholly failed and made default; nor hath he paid the said sum of 1227., or any part thereof, to the plaintiff: and afterwards, to wit, on &c., the defendant falsely and Held, that the deceitfully returned upon the said writ that the said H. Gompertz had not any goods or chattels in his the defendant's bailiwick, whereof he could cause to be levied the defendant, not regarding his duty, did not within such levy the money, but therein wholly failed and made default, nor hath he paid the money, or any part thereof, to the plaintiff'; and the defendant afterwards falsely returned nulla bona: defendant could not set up as a defence, under the plea of not guilty, that the debtor had assigned the goods to a third party. damages aforesaid, or any part thereof, &c. Plea, not Exch. of Fleas, guilty. At the trial before Littledale, J., at the last Surrey Assizes, the only question between the parties was, whether a bill of sale given by Gompertz, the debtor against whom the execution issued, to one Longmore, upon notice of which the sheriff had forborne from levying under the fieri facias, was bonâ fide or colourably given. It was however contended for the plaintiff, on the authority of Wright v. Lainson (a), that the defendant could not raise this question under the plea of not guilty. The learned Judge reserved the point; and a verdict having been found for the plaintiff, Channell, in Michaelmas Term, obtained a rule, pursuant to the leave reserved, to shew cause why a verdict should not be entered for the plaintiff for 1227., or why there should not be a new trial. Thesiger, Dowling, and C. Turner now shewed cause. This case is distinguishable from Wright v. Lainson. There, the declaration alleged that the defendant had levied, and the breach consisted only in his not having the money in his hands, and in his making the return of nulla bona; and the question, whether the goods seized were those of the debtor or of his assignees, clearly was not involved in the issue of not guilty. But that case proceeds on the express ground that every thing involved in the breach of duty charged is included in the issue. Now, if the defendant here shewed that the goods were not Gompertz's, he committed no breach of duty in not levying on them. [Parke, B.-Wright v. Lainson is exactly on all fours with this case. The breach there was, that the sheriff had not the money ready to pay over, and made the (a) 2 M. & W. 739. 1838. LEWIS v. ALCOCK. |