reason of the omission to insert the assignee's name, the mortgage was not thereby rendered void, nor even voidable at the election of the mortgagor, unless the mortgagee should refuse to rectify the mistake and make the assignment what the parties intended it should be; that no creditor could be allowed to intervene to prevent the complete execution of such a contract between the parties; nor could he be permitted to inquire in such an action, whether the bargain was an advantageous one to his debtor, if it was bona fide between the parties. Stowell v. Haslett & McIntosh. Opinion by Johnson, J.

INTEREST.

When chargeable by principal on moneys in the hands of his agent. The defendant was the agent of the plaintiff, to collect money, sell property, and from avails pay plaintiff's debts and carry on his business in his absence. The action was to recover a balance alleged by the plaintiff to remain in the defendant's hands. The action was referred and tried by a referee, who, in adjusting the accounts and claims between the parties, charged the defendant with interest upon all sums which had come to his hands from the time he received

the same to the time of the trial, and charged plaintiff with interest on all sums disbursed and paid out by the defendant for the plaintiff from the time of the disbursement or payment until the time of the trial. There was no evidence or finding that the defendant had mixed the plaintiff's moneys with his own, or used the same in his own business or to his own profit in any way whatever.

On appeal from the judgment by the defendant to the general term, held, that the defendant, upon the facts, was not chargeable with interest, and that the error was not neutralized and rendered entirely harmless by the other error of charging the plaintiff with interest on his own money, paid out in his own business. Judgment reversed. Miller v. Clark. Opinion by Johnson, J.

JURORS.

When not entitled to be excused from serving.-The relator was fined by the defendant, acting as a justice of the peace, for non-attendance as a juror in an action before said justice in obedience to a venire duly served.

He claimed, on being brought before the defendant to answer for his default, that he could not be compelled to serve, and would have been entitled to his discharge by the court had he appeared, under 2 R. S. 415, § 33, which provides that the court shall discharge any person from serving on a jury when it shall satisfactorily appear that such person is "in the actual employment of any glass, cotton, linen, woolen, or iron manufacturing company by the year, month or season. The relator's claim was that he was in the employment by the year in an establishment where castings were made from pig iron and old iron, and used in the construction of farming implements and machinery there made.

Held, that the relator did not come within the exemption of that section of the statute. That the manufacturing companies enumerated in that section were those engaged in making goods and fabrics from raw materials, and did not extend to tailors and blacksmiths, or other companies and persons engaged in making clothing, or other articles for use or sale from cloth after it has been manufactured from cotton, flax, or wool, or implements and wares from iron after it has

been manufactured from ore. Fine affirmed. People cx rel. Lake v. Holdridge. Opinion by Johnson, J. Mullin, P. J., agrees to the affirmance, on the ground that relator did not appear before the justice in obedience to the venire and make his excuse, but dissents from the construction given to the statute.

MARRIED WOMEN.

Right of wife to acquire property by purchase from her husband with her own separate funds.-The plaintiff was a married woman and claimed title to a portion of the property in question by purchase from her husband with moneys belonging to her separate estate. The defendant's counsel requested the court to charge the jury that the plaintiff could not acquire a valid title to property by purchase from her husband, as they were incapable in law of contracting with each other. The court refused so to charge and the defendant's counsel excepted. On appeal from the judgment on the verdict to the general term by the defendant, Held, that the refusal to charge as requested was right. That since the acts of 1860 and 1862, on the subject of the rights of married women, they may with their own separate funds purchase property, and acquire a valid title thereto, from their husbands, if the transaction between them is in all respects fair and in good faith Salter v. Sutherland. Opinion by Johnson, J.

MORTGAGE.

Payment of to mortgagee, when good as agains. assignee.-Action to foreclose mortgage by assignee. Defense, payment by mortgagor to mortgagee before suit. The mortgage was given to secure the payment of $2,200. The mortgagee, being desirous to sell and assign the same for the purpose of raising money for a particular use, applied to the plaintiff to become the purchaser.

The plaintiff proposed to take the mortgage, with the accompanying boud, and apply the amount in payment of a note of $2,500, against the mortgagee and another person, which he had recently purchased, as far as the same would go. This the mortgagee refused to do, as he was in need of the avails for other purposes. The plaintiff then refused to become a purchaser, but proposed to the mortgagee to take the bond and mortgage and sell them for the mortgagee and procure the money for him for a commission of $125 for his services.

The plaintiff had at the time also a judgment against the mortgagee, on which about $700 was due, and property levied upon by virtue of an execution on the judgment sufficient to satisfy the debt. It was finally agreed between the mortgagee and the plaintiff that the latter should take the bond and mortgage and sell and assign the same for the mortgagee, and out of the proceeds retain a sufficient sum to satisfy the $700 judgment and the commission of $125, and pay the balance over to the mortgagee. To enable the plaintiff the more readily and conveniently to sell the bond and mortgage, and give the purchaser a valid title thereto, the mortgagee, at the suggestion and upon the request of the plaintiff, executed to him, the plaintiff, a formal assignment of the bond and mortgage for that purpose and no other. On being called upon shortly after the assignment by the mortgagee for his share of the avails of the bond and mortgage, according to agreement, the plaintiff informed the mortgagee that he had concluded not to sell the bond and mortgage, but to keep them himself and hold them by virtue of the assign

ment, and he refused to pay the mortgagee any money on account thereof, or to release his levy under the execution, unless the mortgagee would first pay the $2,500 note. This the mortgagee refused to do, and gave the plaintiff notice that he could not consent to such a disposition of his bond and mortgage. The mortgagee then applied to the defendant, the mortgagor, and gave him a full statement of all the facts, whereupon the mortgagor paid the mortgagee the full amount of the bond and mortgage, and took his receipt in full and a satisfaction of the mortgage, in due form, executed by the mortgagee.

The plaintiff then brought this action to foreclose as assignee. On the trial, at the special term, the court held, upon these facts, that the defendant had paid the bond and mortgage to the mortgagee in his own wrong, having knowledge of all the facts, and that he had no interest in the controversy between the mortgagee and the plaintiff, and could not be permitted to litigate and defend the action on that ground, and gave the plaintiff judgment of foreclosure, in the usual form.

On appeal to the general term, by the defendant, from the judgment, held, that the plaintiff, having obtained a formal assignment of the bond and mortgage by deceit and false pretenses, had acquired no title thereto; that upon the facts, his case fell within the principle of the maxim, ex dolo malo, non oritur actio, which a defendant might always insist upon by way of defense. Also, that, under the facts proved, the assignment, though regular in form, was in legal effect but a power of attorney, and that the plaintiff was the mere agent or broker of the mortgagee, and was acting in violation of his duty and trust as such agent in attempting to hold the bond and mortgage as a purchaser, and the payment was good as against him. Hall v. Erwin. Opinion by Johnson, J.

USE AND OCCUPATION.

The action was brought to recover a reasonable satisfaction for the use and occupation of plaintiffs' premises by defendant. The defendant went into possession of the premises under a parol agreement to purchase, and held under that agreement as long as he remained in possession. He paid a small portion of the purchase price, and offered to make the other payments, and fulfill on his part, according to the agreement; but the plaintiffs refused to accept the further payments offered and receipt them as payments, but receipted them as money borrowed.

The defendant, fiuding that the plaintiffs did not intend to perform the parol agreement on their part, settled up with them, and received back the money he had paid, and quit the premises.

The plaintiffs thereupon re-entered, and brought this action. The defendant had occupied about four years, and made various permanent improvements. On the trial the court charged the jury that the parol agreement under which the defendant entered and held, being void, the plaintiffs were entitled to recover the fair value of the use of the premises. The court was requested to charge that the defendant, having entered and held as a purchaser, was not liable in an action for use and occupation. Also, that if the plaintiffs refused to carry out the agreement of sale, and prevented performance by the defendant, they could not recover.

The court refused so to charge, and exceptions were duly taken to the charge and the refusals. On appeal to the general term by the defendant, from the judgment

entered on the verdict, held, that there was no conventional relation of landlord and tenant between the plaintiffs and defendant, but only that of vendor and purchaser; and that no action could be maintained for use and occupation, for the reason that such a cause of action rested in a promise to pay for such use and occupation, either express or implied, and the law would not presume a promise from such a relation. Held, further, that, as the defendant never was in default, and the non-performance by him of the parol agreement to purchase was caused by the plaintiffs, the defendant's possession never became tortious, and no action would lie to recover damages in the nature of mesne profits. Thompson & Thompson v. Bower. Opinion by Johnson, J.

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF NEVADA.*

ACCESSORY.

Doctrine of agency as to accessories before the fact.An accessory before the fact aiding, abetting or counprincipal, in the same manner as in the civil law what seling a crime is, under our laws, to be treated as a a principal does by an agent he is to be regarded as doing by himself. State v. Chapman, 320.

ATTACHMENT.

1. Special property of officer in property attached.-An officer who has seized goods upon attachment has a special property in them, coupled with the right of possession; and any interference therewith gives him a right of action against the wrong-doer. Foulks v. Pegg, 136.

2. Rights of attachment creditor as to property attached. -An attachment creditor has no interest or property in or possession of the attached goods by reason of a levy, and cannot maintain an action in his own name for interference therewith against a wrong-doer, his only remedy being against the officer. Ib.

BANKRUPTCY.

Bankrupt pleading discharge presumed to insist on discharge.-Where, in a suit against joint debtors, one pleaded his discharge in bankruptcy subsequent to the commencement of the suit, and plaintiff thereupon amended his complaint, set up such discharge, dismissed as to the bankrupt, and on default of the other defendant took judgment against him, and it was objected on appeal that plaintiff had no right to assume that the bankrupt would insist on his discharge, held, that plaintiff had the right to so assume and to waive proof of the fact of discharge by his amendment, and that it was no error under the circumstances to take a separate instead of a joint judgment. Dorn v. O'Neale, 155.

BROKER.

Stock brokerage: waiver of delivery or tender. -Where a broker buys stock for his principal, and the principal, before receiving it, orders the broker to sell it again on the principal's account, this amounts to a waiver of any delivery or tender of the stock by the broker to the principal. Cahill v. Hirschman, 57.

CONTRACTS.

Acceptance of treasury notes on gold coin contracts.If a creditor accepts treasury notes at par, in payment of a contract calling for coin, it is a complete satis

From 6 Nevada Rep.

faction of the debt; and no action can, after the acceptance of such money, be maintained to recover the difference in value between it and coin. Gilman v. Douglass County, 27.

CRIMINAL LAW.

1. Evidence of good character in criminal cases.-An instruction in a criminal case to the effect that evidence of good character is proper in all criminal cases, and that in doubtful cases it frequently becomes material, and is sufficient to turn the scale in favor of the accused; and that, should the jury be in doubt as to the facts or guilt of defendant, it might give evidence of previous good character such weight as to acquit, held, to be entirely too broad, and properly refused. State v. McGinnis, 109.

2. Assault with deadly weapon.-To constitute the crime of assault with a deadly weapon with intent to inflict a bodily injury, there must be an unlawful attempt with a weapon, deadly either in its nature or capable of being used in a deadly manner, to inflict a bodily injury, and with the present ability so to do. State v. Napper, 113.

3. Attempted assault with unloaded pistol.-Where, on a trial for assault with a deadly weapon with intent to inflict a bodily injury, it appeared that defendant, within shooting but not within striking distance, held a capped pistol in his hand, pointed it at the prosecutor, and attempted to discharge it, held, that there could be no conviction without proof that the pistol was loaded. Ib.

4. Assault: ability and intention.-To warrant a conviction for assault with a deadly weapon with intent to inflict a bodily injury, there must be a showing of both ability and intention to commit the offense. Ib.

5. Charge: assumption of guilt.-Where, in charging the jury in a criminal case, the court used the expression, "the guilt of the defendant rests upon what is known as circumstantial evidence," held, that there was a direct assumption of the guilt of defendant, and therefore manifest error. State v. Duffy, 138.

6. Charge in defendant's favor.-Where a jury in a murder case was charged that it would not be justified under the law and evidence, in finding a verdict for any higher grade of offense than manslaughter, held, that, though the instruction (which was authorized by section three hundred and seventy-six of the Criminal Practice Act) might be repugnant to the constitutional clause against charging as to matters of fact, yet it was not to defendant's prejudice and he could not complain. State v. Little, 281.

DAMAGES.

1. Prospective damages. -Prospective damages in actions, such as for overflowing meadow lands and thereby injuring grasses for time to come, are allowed only upon proof that they are reasonably certain to Clark v. Nevada Land and M. Co., 203.

occur.

2. Compensatory distinct from punitive damages. In actions against passenger carriers for personal injuries occasioned by their negligence, the rule of damages is based upon the idea of compensation and not of punishment. Johnson v. Wells, Fargo & Co., 224.

3. Damages against passenger carriers for negligence strictly compensatory.-The only damages that can be recovered in an action against a passenger carrier for personal injuries occasioned by negligence are strictly compensatory, including damages for bodily pain, and so much only of mental suffering as may be indivisibly connected therewith. Ib.

DEADLY WEAPON.

1. A pistol not always a deadly weapon.-A pistol may be a deadly weapon under some circumstances without being loaded, but not unless it can be used in some other deadly manner, besides shooting. State v. Napper, 113.

2. No presumption of loading a pistol from attempted use. The fact that an attempt was made to use a pistol as if it were loaded is not of itself sufficient to warrant an inference that it was loaded. Ib.

FIXTURES.

1. Fixtures, what cannot be.-A thing which is neither attached to the realty, nor placed upon the land, with a view of making it permanent, nor essential to the full and complete enjoyment of the freehold, cannot become a fixture in any sense of the word. Brown v. Lillie, 244.

2. Chattels not fixtures have no character of realty.A personal chattel cannot be converted into real estate or given the character of realty, except by making it a fixture; and if not so attached to real estate as to become a fixture, it retains its character of personalty, entirely unmodified and unaffected by its situation. Ib.

1. "Treating the jury" cause of reversal.-Where, during the progress of a trial and before retiring to deliberate, and while under charge of an officer for the purpose of viewing the ground in controversy, the jury

1. Obstructions harmless when erected.—A dam erected on a stream in a manner in no wise injurious or prejudicial at the time of its erection to a mill above, but which, by reason of circumstances that could not have been anticipated happening subsequently and operating in connection with it, causes the water to flow back upon the mill, is not such an obstruction as to authorize its abatement or justify a recovery of damages against the person building it. Proctor v. Jennings, 83.

2. Rights of subsequent appropriators of water.—A person appropriating a water right on a stream already partly appropriated acquires a right to the surplus or residuum he appropriates; and those who acquired prior rights, whether above or below him on the stream, can in no way change or extend their use of water to his prejudice, but are limited to the rights enjoyed by them when he secured his. Ib.

FIXTURES.

"There have been many questions of this kind, both in law and equity, and determinations on very nice and almost frivolous circumstances." Lord Hardwich in Dudley v. Ward, Amb. 113.

The question-What is a fixture?-arises where an object of property, originally a distinct and separate thing, is claimed by two persons, and the ground of claim is, on the one side, that it has never ceased to have an independent character; on the other side, that it has become a part of something else. For, however reluctant the English law may elsewhere be to admit the principle which makes a change of ownership follow as a consequence upon the mere change in the physical condition of its objects, yet, with respect to land, the rule, quicquid plantatur solo, solo cedit, has received a wide application; and whenever, in the course of the general use and occupation of an immovable, the owner of a movable annexes it to the immovable in such a way that it fulfills the description plantatur solo, then (subject to certain exceptional privileges) the movable, losing its independent character, becomes part of the immovable, is included in its description, and follows it in ownership. In different cases the fact of annexation producing the like result of a merger of ownership, will in other respects produce different effects; for if the owner of the movable affixing it was not the owner of the immovable, the effect is a change both in the person owning it and in the character of the title, for it becomes the property of the owner of the immovable, and also, as being now a part of that immovable, is owned in that character and under the same title; but if the person affixing the movable owned both it and the immovable, then

no change takes place in the person of the owner, but he now owns the movable no longer as a movable, but as a part of and under the title of the immovable.

The question then is, when does an originally separate and movable thing become part and parcel of a fixed and immovable thing? There are two ways in which one thing may become part of another thing, or part with some other thing of a common whole.

The first is by mere physical conjunction or annexation; and this may take place in various modes. Thus, there may be such a conjunction or adjunction as either to unite the substances or to confuse and render indiscriminate the limits of the two, as where, by gradual and insensible addition, a stream adds to land earth washed down from another portion of the banks, or where two quantities, whether of solid or of liquid, are indistinguishably mixed, or where one piece of metal is welded into another; but also, without an actual union of substances or confusion of boundaries, one thing may be so firmly attached to another that a considerable degree of force or art is required to separate them, as where one thing is cemented to another, or is jointed into it, or is driven forcibly into it in such a manner that the two cohere. Under this head of physical conjunction, it is with respect to the latter mode of annexation and things so annexed that the question of fixtures arises.

But, secondly, one thing may be part of another with respect to its mode of use; and in this view the most decisive test of whether a thing is to be considered as a thing by itself, or as a part of a whole, is whether it can exist by itself as a single thing—whether, that is, it exists when separate, not merely as raw material out of which other things can be framed, or which can be applied to human uses by some conversion of its form, or by the addition of something else; but whether it is of such a kind that in that very character and description which it bears, and by which it is known and classified, it has an independent end and purpose of its own. Since, however, a thing which has only this kind of relative existence may relate to or serve many distinct purposes, or may equally well fill or be part of many distinct things of the same kind (as a nut may fit many different screws, or the limb of a machine will suit any other machine of the same kind and dimensions), it is further necessary, to make one thing part of another, that it should be actually appropriated to it. If things, then, have been thus constructed to form parts of one whole, and have been actually appropriated to one another, then the two form one thing; and, though separated, they continue to form one thing, so long as the separation is designed to be only temporary, and not permanent. Which of the two (if either) is to be considered as principal and which accessory will depend upon their relative magnitude and importance. But, although completeness of structure is the most decisive test of individuality, yet a thing, complete in itself, may be so far exclusively destined for use in conjunction with another, that in a wide sense it may be regarded as a part of that other thing. And here it is to be observed that some things used in a particular place are of a kind used in all such places, or in most, but are commonly in the instance adapted to the peculiarities of the place; while other things are in themselves singular, rare, unusual, and are not adapted to or made to fit the place, but rather have the place adapted to them. Thus, such things as ovens, coppers, baths, etc., are of common household use, but are in the particular house commonly, if of any considerable

size or bulk, adapted to use with reference to its size and arrangement; but paintings and ornaments are more singular, characteristic and peculiar, and, in proportion to their singularity and to their rarity and value, have rather the place made subordinate to them than are themselves made subordinate to the place. Now, to allow one thing to be claimed as part of another merely by virtue of such a supposed exclusive destination as has been spoken of above would introduce an extremely arbitrary and uncertain mode of reasoning. But since not every material annexation is reckoned sufficient in itself conclusively to make a movable chattel into a fixture, it often becomes necessary to consider with what design or view the annexation has been made; a material union being established sufficient to ground the character of a fixture, but not wholly to determine it, the character of the thing fixed is an element in determining whether it ought or ought not to be so regarded.

Thus, by a series of connections, we reach from the solid earth itself to things which are but remotely attached to it. The walls built into the land form part of the land; the things fixed into the walls form part of the walls, and therefore of the land; and things movable at pleasure, without disturbance of any part of the land or structure, or severance of any portion of matter, may yet be so much part of a single whole with some annexed thing as to be reckoned one with it, and therefore one with the land or structure itself.

Now, a fixture being a thing originally movable, but which has been so annexed to the soil as to become part and parcel of it, the rules by which to ascertain what kind of annexation will have that effect, or when a thing becomes a fixture, are to be sought in those instances in which the exceptional privileges above referred to have not intervened; and cases which have turned upon those exceptional privileges are only so far applicable as that the attempt to bring the things in question within the privilege imports that they would be otherwise within the rule. Properly, therefore, there are only two kinds of fixtures-or, rather, there is only one kind divided into two classes. All things which are annexed to the land are fixtures; but of those things some are, as between certain persons, subject to a right in one to remove them, or are movable fixtures. This is the most accurate and convenient use of the word. The word, however, is not technical, and as actually used is of fluctuating meaning, so that in the construction of instruments (Wiltshear v. Cottrell, 1 E. & B. 674), and even of pleadings, after verdict (Sheen v. Richie, 5 M. & W. 175), it has been extended to include mere chattels.

The first question, therefore, is (taking the word in the sense above stated), what are fixtures?

And first, the most crucial case upon the question of fixtures would arise, where the true owner of immovable property claimed it against the supposed owner, or where possession or the right to possession reverted to him after the termination of an exceptional privilege of removal. In these cases, if in the one case the supposed owner, or in the other case the person whose exceptional right of removal was terminated, had affixed things so as to make them part of the immovable, the property in the things affixed would belong to the owner of the immovable; but as to all things upon the premises which were still chattels, the property would remain in their original owner. Thus, in an action of trespass, or trover, or waste between

the true owner and the supposed owner, or between the owner and one whose exceptional privilege of removal had expired (as between landlord and tenant), the decision as to whether the things sued for were recoverable by the one or by the other would turn upon the question whether they were or were not fixtures. This case arose in Fitzherbert v. Shaw, 1 H. Bl. 258, where the purchaser of land had brought an action of ejectment against a tenant who held over after the determination of his tenancy by notice to quit; and after the bringing of the ejectment an agreement was made by which judgment in ejectment was given, but execution was stayed for a limited time. In an action in the nature of waste against the tenant for the removal of alleged fixtures, the court held that the agreement was in substance that, in consideration of the continued occupation, the tenant should deliver up the premises in the condition they were in at the time of the agreement. Now as it was only the premises that were to be delivered up, it certainly became a question what was included in the premises; and the agreement only operating in derogation of the ordinary right of a tenant to remove, the owner could only recover for such things as, but for that right, would by annexation have become immovable, but not for mere chattels. Things, therefore, in respect of which the landlord was in that action held entitled to recover, must have been held to have been so annexed, and not to be mere chattels. It must be added, however, that in this obscurely reported case, among the articles in respect of which the landlord recovered were some which, as merely resting by their own weight, would not at the present day be held to be fixtures. See Wansborough v. Maton, 4 A. & E. 584; Wiltshear v. Cottrell, 1 E. & B. 674.

In the case of Heap v. Barton, 12 C. B. 274, on the other hand, where the tenant had by disclaimer determined his tenancy and made himself a trespasser, and upon ejectment had made a similar agreement to that in Fitzherbert v. Shaw (and as to which Williams, J., said, at p. 277, "it postpones the evil day; but when it comes, it comes with all its consequences"), is equally uninstructive, because the articles in question were clearly fixtures.

A second case is that which arises between heir and executor, where the law having, by the general description of realty, made as it were a statutory conveyance to the heir, he is only entitled to those things which come under that description, which, so far as goods are concerned, can be only such as have become part and parcel of the land. Although the old notion of favoring the heir might have been expected to have warped the rule in his favor, the cases do not justify that expectation, and this instance is the one selected by Bailey, J., as furnishing the "general rule relating to the right to fixtures." Colgrave v. Dios Santos, 2 B. & C. 76.

A third case is that relating to vendor and purchaser, where real property has been sold by words of general description, and the question has been, what articles have been so affixed as to be part of what was sold. See Shep. Touch. pp. 89, 90.

Fourthly and it is of this class that the recent cases furnish the most numerous instances-the question has arisen between a mortgagee of premises, asserting that certain articles are, as fixtures, included in his security, and the mortgagor or those claiming under him. With respect, however, to the two last classes, it is to be observed that in agreements and deeds of con