This by some has been carried so far as to make even the horse and other instrumenta mobilia of a horsemill, and the buckets, chains, and all other accessory instruments of a going coal mine descend to the heir. (a) In a case, however, before Lord Armadale, it was found that as to a thrashing machine, the built part only is to be considered as heritable, and the machinery as moveable, and therefore belonging to the executors. (b) But this finding was not brought under the review of the court, and its soundness, especially since the judgment in the case of Arkwright, (c) may perhaps be doubted. As between landlord and tenant, the latter would seem entitled to remove whatever machinery he may have erected for his own convenience, during his temporary occupation, and for the purposes of and as an accessory to his trade. (d) As between different classes of creditors real and personal, there is perhaps more difficulty. The question has been decided in one case by the Court of Session on the principle of the accession of the machinery to the lands, and the security of an heritable bond, has been held to cover not merely the ground and house, and great moving power, or steam engine, but also the whole of the small machinery essential to the completeness of a mill. (e) It was there found that the carding machine, drawing frames, and mule jennies of a cotton mill, though not even nailed or screwed to the fabric of the building, but removeable from place to place, like furniture, or like ordinary spinning-wheels, were notwithstanding carried as accessories. But it has been observed, by Mr. Bell, "that though the authority of the case of Arkwright is very great, doubts are still entertained by the bar, and the question is by no means held to be at rest." (f) (a) 1 Ersk. b. 2, tit. 2, n. 20. Dirl. and Stew. v. Mill. Ib. Executry. (b) Hyslop's Trustees, 18th January, 1811, Fac. Coll. (e) 3 Dec. 1819, Fac. Coll. (e) Ib. (d) 1 Bell, 752. (f) Ib. 755. The decisions in the courts of the United States of America, whilst they retain the rule adopted by the law of England, admit also its relaxation in favour of tenants, and of trade and manufacture. (a) The New York Revised Statutes (b) declare that things annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support, go to the executor as assets, and that all other things annexed to the freehold descend to the heir or devisee. (c) There has been a disposition to extend to erections for agricultural purposes the indulgence afforded to a tenant, in respect of fixtures made by him for the purposes of trade and domestic use. (d) It is however to be observed, that the quality of moveable, which is assigned to these articles in favour of the tenant, is retained, only so long as he retains that relation. If he allows them to remain, they become part of the realty, and unless expressly excepted, they pass as part of it. (e) X. There are certain moveable articles which are constructively annexed to an immoveable, as the keys, doors, windows, rings, &c. of the house, the sails of a windmill, the chains, &c. of a well. These, under the several systems of jurisprudence which are here con (a) 2 Kent's Comm. p. 343, et seq. (b) Vol. 2, p. 83, § 6, 7, 8. (c) Miller v. Plumb, 6 Cowen's Rep. 665. Kirwan v. Latour, 1 Harr. and Johns. 289. Kittredge v. Woods, 3 N. H. Rep. 503. Powell v. M. and B. Manufact. Comp. 3 Mason's Rep. 459. Farrar v. Stackpole, 6 Greenleafe's Rep. 154. Lois des Batimens, par Le Page, tom. 2, 190, 205. 2 Kent's Com. p. 345. (d) Van Ness v. Pucard, 2 Peter's U. S. Rep. 137. Whiting v. Brastow, 4 Pick. Rep. 310. Holmes v. Tremper, 20 John's Rep. 29. Comm. p. 346. 2 Kent's (e) Ex parte Quincy, 1 Atk. Rep. 477. Lyde v. Russell, 1 Bar. and Adol. p. 394, Colegrave v. Dias Santos, 2 Bar. and Cress. 76. Lee v. Risdon, 7 Taunt. 188. 2 Kent's Comin. p. 346. sidered, are deemed immoveable. "Edium multa esse, quæ ædibus adfixa non sunt, ignorari non oportet; ut putà, seras, claves, claustra." (a) "Putea, opercula puteorum, quamvis non sunt adfixa, ædium esse constat." (b) The Code Civil treats pipes which serve to conduct water in a house or other possession as immoveable, and forming part of the estate to which they are attached. (c) XI. Moveables, it has been stated, become immoveable destinatione, fine, eventu, relatione ad rem immobilem, provided they are actually applied, or about to be applied to their destined purpose. (d) The civil law, and the codes of Holland, Spain, and France, treated as immoveable those articles which are destined by the head of a family to be used permanently on a farm or in the house, and not removed froin thence, as seeds, straw, and manure. (e) "Fundo vendito, vel legato, sterquilincum et stramenta, emptoris et legatarii sunt." (ƒ) But if it was the practice of the owner of the farm to sell these articles, and not to use them on the farm, they would be deemed moveables. "Si quidem stercorandi agri causâ comparatum sit, emptorem sequatur; si vendendi, venditorem: nisi si aliud actum est. Nec interest, in stabulo jaceat, an acervus sit." ." (g) The Code Civil regards the live stock which the proprietor of a farm gives up to his tenant, or farmer, for the purposes of cultivation, whether valued or not, (a) Dig. lib. 19, tit. 1, 1. 17, (b) Ib. 1. 17, § 8. P. Voet, de Mob. et Immob. c. 5, sect. 4. Pothier, Tr. de la Com. p. 1, c. 2, n. 60. Liford's case, 11 Co. 50 b. Rex v. Crosse, 1 Sid. 207. Com. Dig. tit. Biens, B. (c) Code, art. 523. (d) P. Voet, de Mob. et Immob. c. 5. (e) P. Voet, ib. c. 25, n. 4. J. Voet, lib. 1, tit. 8, § 14. Mævius, ad Jus Lubec, qu. prælim. 6, n. 20, et seq. Argent. ad Consuetud. Britann art. 408, gloss. 2, n. 3, 4, 5. Tiraquell. de Jure Primogen. Quæst. 48, n. 3, et seq. A. Wesel, ad Novell. Const. Ultraject. art. 12, n. 10. (f) Dig. lib. 19, tit. 1, 1. 17, § 2. Pothier, Tr. de la Com. part 1, c. 2. n. 40. (g) Dig. ib. Pothier. ib. as immoveable, so long as they continue attached to the farm in pursuance of the agreement. Such as may be given in cheptel to others than the farmer or cultivator are moveable. (a) Articles which the proprietor of a farm has placed thereon for its service and cultivation are immoveable by destination. (b) If the proprietor has placed on the farm for its service and cultivation beasts required for agricultural purposes, implements of husbandry, seeds, presses, coppers, stills, vats and tubs, implements necessary for the working of forges, paper-mills, or other machinery, straw and manure, they become immoveable by destination, as well as all moveable effects which a proprietor has attached to a farm, to continue so for ever; (c) and he is considered to have attached moveable effects to his estate for ever, when they are fastened thereto by plaster, lime, or cement, or when they cannot be separated without being broken or damaged, or injuring that part of the estate to which they are attached. Manure is not by the law of England deemed part of the farm if it be in a heap. It becomes so only, when it is scattered on the ground. (d) XII. Amongst subjects which become immoveable by 'destination may be classed those which, either according to custom, or by the express direction of the ancestor, accompany the real estate; of the first description are heir-looms, chiefs, or principals, being such things as have continually gone with the capital messuage. Upon the death of the owner they descend to the heir along with, and as a member of the inheritance, according to the special custom in some countries. (e) An heir-loom, in its strict and proper sense, is always (b) Art. 524. (a) Art. 522. (c) Ib. some loose personal chattel, such as would ordinarily, and but for the particular custom, go to the personal representative of the deceased proprietor. (a) There are certain species of chattels which may be considered in the nature of heir-looms, and which are held to pass to the heir with the inheritance. Thus the coat-armour of an ancestor hung in a church, and the sword, pennons, and other ensigns of honour suited to his degree, descend to the heir in the nature of heir-looms. And in like manner ancient portraits, and family pictures, though not fastened to the walls of the house, accompany the inheritance, and the executor is not allowed to remove them, although they were mere personal chattels. (b) So also the collar of SS, and garter of gold, descend as ensigns of honour and state in the way of heir-looms, and even although there may be a special bequest of all jewels. (c) The same rule holds as to monuments, tomb-stones, and effigies, &c., set up in the church. (d) A testator may also by his will constitute what has been called a quasi heir-loom, that is to say, he may devise or limit in strict settlement an estate and capital mansion, together with personal property, as the plate, pictures, library, furniture, &c. therein, such plate, &c. to be enjoyed together with the house and estate, unalienable by the devisees in succession so far as the law will allow. (e) (a) Co. Litt. 18 b. 185 b. (b) 12 Rep. 105, Corven's Case. S. C. Godb. 199. Noy, 104. 2 Bulst. 151. Cro. Jac. 367. Vin. Ab. tit. Descent. E. Com. Dig. tit. Cemetery, C. (c) Vin. Ab. tit. Ex. Z. Owen, 124, Countess of Northumberland's Lord Petre v. Heneage, 12 Mod. 520. 1 Lord case. Swinb. part 3, §6. Raym. 728, S. C. (d) Co. Litt. 18 b. Gib. Cod. 454. 12 Rep. 105, Corven's case, 3 Inst. 202. 1 Roll. Abr. Descent, E. Sid. 206. Doct. and Stud. D. 2, Dig. Cemetery, C. p. 228. Com. (e) Wood. Lect. vol. 2, p. 380, 381. Cadogan v. Kinnett, Cowp. 432. Foley v. Burnell, Cowp. 435, in note. 1 Br. Ch. Rep. 279. 2 Atk. 82, 321. 3 P. Wms. 336. See Fearn's Exec. Dev. (8th ed.) 407. Harg. Co. Litt. 18 b. n. 109. |