direct interference with legislative action or discretion. The Supreme Court of Illinois has recently delivered an elaborate opinion upon this subject. See Stevens v. Training School (Ill. Sup.) 32 N. E. Rep. 962, and cases there cited; also 2 High, Inj. § 1243; 1 Dill. Mun. Corp. (4th Ed.) § 308; Alpers v. City and County of San Francisco, 32 Fed. Rep. 506; Land Co. v. Routt, 17 Colo. 162, 28 Pac. Rep. 1125; Railroad Co. v. Lea, 5 Colo. 192; Phillips v. City of Denver, 19 Colo.-, 34 Pac. Rep. 902.

Were defendants acting, or proposing to act, in a matter within the scope of their authority, and requiring the exercise of their legislative discretion, when they were enjoined in this action? When this action was commenced, the town of Highlands was a duly incorporated town under the general laws of this State. The defendant Lewis, as mayor, and the other defendants, Breon, Harvey, Shaw, Lee, Jackson, and Kooken, as trustees, constituted the board of trustees of said town. Every board of trustees of an incorporated town under the general laws of this State is, by act of the general assembly, invested with extensive powers, including the power to pass regulations and ordinances having the effect of legislative acts in a large variety of cases. Among the powers thus granted is the power to lay out, open, improve, and regulate the use of the streets. The power to regulate the opening in the streets for the laying out of gas or water mains and pipes, and to regulate the use of sidewalks along the streets and alleys, and all structures thereunder, is expressly and specifically conferred by general law upon the boards of trustees of incorporated towns. Act 1877, § 14, cl. 7; see Gen. Laws, p. 880; Gen. St. p. 965; 2 Mills' Ann. St. p. 2262.

From what has already been said, it is, apparent that the granting of the injunction in this case was an improper exercise of judicial power. It interfered with the legislative discretion of the board of trustees of the town of Highlands. The injunction restrained the board from acting in its legislative capacity upon a matter clearly within the scope of the powers confided to it by the general laws of the State. The board was clothed with authority to pass ordinances in respect to the construction and operation of waterworks in said town. Whether the proposed ordinance granting to the Citizens' Water Company the right to construct and operate such works would have been valid, or whether it would have been void, by reason of its being in violation of an existing contract between the plaintiff company and said town of Highlands, is immaterial in this action. The passage of the proposed ordinance being within the scope of the legislative power conferred upon the mayor and trustees, the granting of the injunction was an erroneous interference with their legislative functions. As was said by Mr. Justice Field in Alpers v. City and County of San Francisco, supra: "Municipal corpo. rations are instrumentalities of the State for the more convenient administration of local affairs, and for that purpose are invested with certain legislative power. In the exercise of that power, upon the subjects submitted to their jurisdiction, they are as much beyond judicial interference as the legislature of the State. The courts cannot in the one case forbid the passage of a law, nor in the other the passage of a resolution, order, or ordinance. If by either body, the legislature or the board of supervisors, an unconstitutional act be passed, its enforcement may be arrested. The parties seeking to execute the invalid act can be reached by the courts, while the legislative body of the State or of the municipality, in the exercise of its

legislative discretion, is beyond their jurisdiction. The fact that in either case the legislative action threatened may be in disregard of constitutional restraints, and impair the obligation of a contract, as alleged in this case, does not affect the question. It is legislative discretion which is exercised, and that discretion, whether rightfully or wrongfully exercised, is not subject to interference by the judiciary." There seems to be some diversity of opinion upon this subject, or, as we have intimated, there may be exceptions to the doctrine of non-interference. For example, if it should be made to appear that the legislative body of a municipality was about to pass some ordinance, resolution, or order, and that its mere passage would immediately occasion, or be immediately followed by, some irreparable loss or injury beyond the power of redress by subsequent judicial proceedings, a court of equity might perhaps extend its strong arm to prevent such loss or injury. This view was indicated by Judges Sawyer and Hoffman in Water Co. v. Bartlett, 16 Fed. Rep. 615. So, in Davis v. Mayor, etc., 1 Duer, 498, Mr. Justice Duer, speaking upon this subject, said: "A court of equity will not interfere to control the exercise of a discretionary power, when the discretion is legally and honestly exercised, and it has no reason to believe the fact is otherwise, but will interfere whenever it has grounds for believing that its interference is necessary to prevent abuse, injustice, or oppression, the violation, of a trust or the con summation of a fraud. It will interfere, and it is bound to interfere, whenever it has reason to believe that those in whom the discretion is vested are prepared, illegally, wantonly, or corruptly, to trample upon rights and sacrifice interests which they are specially bound to watch over and protect." This case was subsequently affirmed by the New York Court of Appeals in 14 N. Y. 506. It is an exceedingly delicate matter for the courts to interfere by injunc tion with the action, or contemplated action, of a legislative body in any case; and such interference cannot be justified, except perhaps in extreme cases and under extraordinary circumstances No ground for such interference is presented in the present case, and, as the members of the municipal board are the only defendants, no relief can be granted in this action.

ELECTRIC CARS DUTY OF MOTORMENFRIGHTENING HORSES.-In Ellis v. Boston & L. R. Co., 35 N. E. Rep. 1127, decided by the Supreme Judicial Court of Massachusetts, it was held that where a motorman while operating a street car and sounding the gong, sees that the car and noise are frightening a horse, and thereby endangering the driver, it is his duty to do what he reasonably can to diminish the fright of the horse, and that the failure of the motorman to notice the frightened condition of the horse, if he might have perceived it by the exercise of reasonable care, is negligence. The court said in part:

Although there was some conflict of evidence in this case, the jury may have found that the plaintiff, having no reason to think it unsafe so to do, drove down a street in the City of Lynn on which was an electric railway, and there met one of the defendant's open electric cars, filled with passengers, on which the

motorman was continually sounding the gong; that the horse was frightened at the car and at the noise of the motor and of the gong, and manifested his fear in such a way as to show the motorman that the plaintiff and his daughter, who was riding with him, were in great peril, and that the motorman, instead of stopping the car, or ceasing to sound the gong, kept on with the car, and continued to make a loud clangor with the gong, so that the horse became unmanage. able, broke the carriage, threw the plaintiff out, and thereby inflicted serious injuries upon him.

The defendant's requests for rulings go upon the theory that the manager of an electric railway car upon a street is never called upon to stop the car, or to change his method of managing it, to avoid any danger from the fright of horses other than the danger of collision with the car. These requests were founded on an erroneous view of the law. It is a well known fact that most horses are frightened at their first view of a moving electric car, especially if they encounter it in a quiet place, away from the distracting noises of a busy city street. It is only by careful training and a frequent repetition of the experience that they acquire courage to meet and pass such a car on a narrow street without excitement. The rights of the driver of a horse and the manager of an electric car, under such circumstances are equal. Each may use the street, and each must use it with a reasonable regard for the safety and convenience of the other. The motorman is supposed to know that his car is likely to frighten horses that are unaccustomed to the sight of such vehicles, while most horses are easily taught, after a time, to pass it without fear. It is his duty if he sees a horse in the street before him that is greatly frightened at the car, so as to endanger his driver or other persons in the street, to do what he reasonably can in the manage. ment of his car to diminish the fright of the horse; and it is also his duty in running the car to look out, and see whether, by frightening horses or otherwise, he is putting in peril other persons lawfully using the street, on foot or with teams. In this way the convenience and safety of everybody can be promoted without serious detriment to anybody. Of course the owners and drivers of horses are required at the same time to use care in proportion to the danger to which they are exposed (Benjamin v. Railway Co., Mass. 35 N. E. Rep. 95).

CRIMINAL EVIDENCE-DYING DECLARATIONS. -In State v. Johnson, 24 S. W. Rep. 229, the Supreme Court of Missouri, considered the question as to the admissibility of dying declarations. In that case it appeared that defendant and deceased engaged in a fight in which deceased was knocked down, and defendant got on top of him, but released him on his representation that he had swallowed some tobacco. Deceased then mounted a horse and rode home, telling a companion that he was not hurt. On reaching home he became sick, and vomited up the tobacco, and while vomiting told his wife he was going to die, and made declarations as to how he received his injuries. At the time of making such declaratiors he was without a physician,

and had no external indications of injury. It was held that there was no such belief in ap proaching death on deceased's part as would make the declarations admissible. It was also held that dying declarations are inadmissible when the witness does not pretend to give either the words or the substance of what deceased said, or all that he said, and that they should not be allowed to go directly to the jury without any preliminary determination by the court as to their admissibility. Upon the main question the court said through Sherwood, J.:

A more serious objection to the testimony of these witnesses is in regard to the alleged dying declarations of deceased. Was their testimony, as delivered, competent to establish such declarations? One rule regarding such declarations, well established in this State and elsewhere, is that, in order to make them admissible in evidence, there must not only be an actual nearness of death, but an absolute conviction of it in the mind of the declarant. Reg. v. Dalmas, 1 Cox, Crim. Cas. 95. It is not enough that the decla rant should have thought that he should ultimately never recover; the declaration should be made under an impression of almost immediate dissolution. Rex v. Van Butchell, 3 Car. & P. 629; Reg v. Forester, 10 Cox, Crim. Cas. 368; 1 Greenl. Ev. (14th Ed.) § 158; Starkie, Ev. (10 Ed.) 38, and cases cited; People v. Green, 1 Parker, Crim. R. 11; State v. Simons, 50 Mo. 370; State v. McCanon, 51 Mo. 160; State v. Partlow, 90 Mo. 608, 4 S. W. Rep. 14; Brown v. State, 32 Miss. 433; Starkey v. People, 17 Ill. loc. cit. 21, and cases cited; Whart. Hom. § 747. It is this fact of nearness of death, combined with another fact, one equally as important, a profound and settled belief in such nearness of dissolution, that redeems such declarations from the domain of hearsay, and dispenses with opportunity for cross-examination, one of the most indispensable tests and analyses afforded for sifting the statements of an ordinary witness. As this great safeguard of the truth of testimony cannot be thrown around such declarations, courts have been exceedingly careful that there should be a rigid adherence to the principles upon which, and the preservation of the constituent elements from which, they are formed. This view is aptly presented by Turley, J.: "Testimony of this character is only admitted from necessity, and an abuse of it is guarded against by the law with most minute particularity. There is no one principle better established than that such declarations shall not be received unless the proof clearly shows that the deceased was in extremis (perhaps the words 'in articulo mortis,' which are used by some of the authorities to express this condition, are more accurate), and that he or she, at the time of making them, was fully conscious of that fact; not as a thing offsurmise and conjecture or apprehension, but as a fixed and inevi table fact." Smith v. State, 9 Humph. 9. The prin ciple, as stated by Lord Chief Baron Eyre, on which this species of evidence is admitted, is "that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive

the

oath administered in a court of justice." Woodcock's Case, 1 Leach. 502. Touching the same subject, Byles, J., said: "Dying declarations ought to be admitted with scrupulous, and, I had almost said, with superstitious, care. They have not necessarily sanction of an oath. They are made in the absence of the prisoner. The person making them is not subject to cross-examination, and is in no peril of prosecution for perjury. There is also great danger of omissions and of unintentional misrepresentations, both by the declarant and the witness, as this case shows. In order to make a dying declaration admissible, there must be an expectation of impending and almost immediate death from the causes then operating. The authorities show that there must be no hope whatever." Reg. v. Jenkins, L. R. 1 Cr. Cas. 191. The case at bar does not meet the requirements of the rule mentioned. Two men get down in the public road and engage in a fight. After scuffling a while, one falls or is knocked to the ground. The other one gets on top of him, and the under one, on the representstion that he has swallowed a chew of tobacco, is allowed to get up. Getting on his feet, he walks a quarter of a mile, gets up behind his companion, 'and rides home, and on the way there laughingly says he was not hurt. After he reaches home, however, he grows sick, and vomits up the chew of tobacco, and then, while vomiting tells his wife and daughter he is going to die, etc. The nauseating effects of tobacco when swallowed need no comments; it is matter of common knowledge, and therefore of judicial notice. Besides, the witness Mrs. Keene was not allowed to tell her story in her own way. She was continually having leading suggestions and questions offered to her by the officiousness of the prosecuting officer. At the time deceased made these declarations he was without a physician, had no external indications of injury, and no one had apprised him that he was in danger. He may have been "conscious," and, though conscious, still may have been entirely without any absolute conviction and fixed belief, of "almost immediate dissolution." As Judge Wagner appropri ately observes in State v. Simons, 50 Mo. loc. cit. 375: "Any person who has been accustomed to attend on those who are injured, or are very ill, knows how common it is for them to say that they will never recover, or that they will die, when there is no good or sufficient reason for the apprehension, and they are not conscious themselves that they are in any real danger. Such expressions are often the result of impatience, restlessness, or great suffering. But at the same time let the attending physician inform them that there is no hope, and that they must die, and they will be perfectly startled."

LIABILITY OF MASTER FOR THE ACTS OF Servant-Deviation from LINE OF DUTY.— The case of Ritchie v. Waller, 28 Atl. Rep. 29, decided by the Supreme Court of Errors of Conne cticut gives us a valuable discussion and application of the law regarding the liability of a master for the tortious act of a servant. The holding was that where a servant sent to get a load, on his return, for the purposes of calling at a shop on his own account, goes somewhat out of his usual route, and leaves the team unhitched while he goes

into the shop, the master will be liable for an injury to a person from the running away of the team, the servant's acts being in the execution of the master's business though deviating somewhat from the line of his duty. Torrance, J., says:

The general rule of law applicable in this class of cases is accurately and comprehensively stated in Stone v. Hills, 45 Conn. 47, as follows: "For all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not within these conditions the servant alone is responsible." Of these "conditions" of liability, the one under which the present case seems to fall, if it falls under any of them, is the one for acts done "in the execution of the master's business within the scope of his employment." This rule or "condition" or liability is in itself simple and intel ligible enough, but, in determining whether any particular case falls within it or not, difficult and troublesome questions may arise. "The cases which have arisen upon this subject have from the earliest times been productive of much astute and interesting discussion in courts of law, and eminent judges have differed widely in their decisions. It has always been a matter of extreme difficulty to apply the law to the ever-varying facts and circumstances which present themselves." Rayner v. Mitchell, 2 C. P. Div. 357. In reality, however, the difficulty here spoken of arises in ascertaining whether the act was done in the execution of the master's business within the scope of his employment, which, as we shall see, is ordinarily a question of fact, and not in applying the rule when that fact has been ascertained. This fact once determined, the rule can be easily applied, but the rule cannot at all aid in the determination of the fact. The rule tells us that the master's liability depends upon whether the acts were done in the execution of his business within the scope of his employment, but it does not help us to determine whether they were or not so done.

In like manner the general rule of construction is that the intent of the parties shall prevail. This tells us what to do when the intent has been ascertained, but affords no aid in a particular case in ascertaining what the intent is. Whether, then, the act of a servant, for which it is sought in a particular case to hold the master responsible, was done in the execution of the master's business within the scope of the employment, or not, must, from the nature of things, in most cases be a question of fact, to be determined as such by the jury or other trier, because no general rule of law has been, or probably can be, laid down, the application of which will determine the matter in all cases. Sometimes, however, this question is determined by the court as a matter of law. But in by far the greater number of cases where the question of the master's responsibility turns, as in the present case, principally upon the mere extent of deviation by the servant from the strict course of his employment or duty, it has been generally held to be one of fact and not of law. In such cases it is, and must usally remain, a question depending upon the

degree of deviation and all the attendant circumstances. In cases where the deviation is slight and not unusual, the court may and often will, as a matter of law, determine that the servant was still executing his master's business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the mas ter's business at all, but on his own. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the jury or other trier of such questions. Thus, in Phelon v. Stiles, 43 Com. 426, the deviation by the servant from the strict course of his duty was so slight that this court, as matter of law, held the master liable, while in Stone v. Hills, 45 Conn. 44, the deviation was so marked and unusual that it refused to hold the master responsible. On the other hand, where a servant, contrary to his duty, and solely for a purpose of his own, drove his master's horse and cart a quarter of a mile out of the way, the question whether in and while so doing he was in the execution of his master's business, within the scope of his employment, was left to the jury as a question of fact. Whatman v. Pearson, L. R. 3 C. P. 422. "Whether the servant is really bent on his master's affairs or not is a question of fact, but a question which may be troublesome." Pol. Torts, side p. 71. In the following cases, among many others, this question was decided as one of fact; Kimball v. Cushman, 103 Mass. 194; Redding v. Railroad Co., 3 S. C. 1; Rounds v. Railroad Co., 64 N. Y. 129; Cormack v. Digby, 9 Ir. Com. Law, 557; Buras v. Poulson, L. R. 8 C. P. 563.

In cases of deviation the authorities are clearly to the effect that a mere departure by the servant from the strict course of his duty, even for a purpose of his own, will not, in and of itself, be such a departure from the master's business as to relieve him of responsibility. "Not every deviation of the servant from the strict execution of his duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility; but where there is not merely deviation, but a total departure, from the course of the master's business, so that the servant may be said to be 'on a frolic of his own,' the master is no longer answerable for the servant's conduct." Pol. Torts. side p. 76. In the case of Joel v. Morison, 6 Car. & P. 501, the jury were told that if the servant, with his master's horse and cart, made a detour in order to call upon a friend, or if, when driving on his master's business, he went out of his way against his master's implied commands, the master remains liable for the servant's negligence while extra viam; but that "if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable." If the servant in going extra viam, is really engaged in the execution of the master's business within the scope of his employment, it is immaterial that he joined with this some private business or purpose of his own. Thus, in Patten v. Rea, 2 C. B. (N. S.) 606, the serv ant started out on business of the master, and also to see a doctor on his own account. While on his way to see the doctor he negligently drove against a horse and killed it, and the master was held responsible. In Sleath v. Wilson, 9 Car. & P. 607, the master was held liable for the negligent act of his servant, who, after having set his master down, drove around to deliver a parcel of his own, and did not drive directly where he had been ordered to go. See the case, also, of Cormack v. Digby, supra, upon this point. In Storey v. Ashton, L. R. 4 Q. B. 476, Chief Justice

Cockburn says: "I think that if a driver, while acting in his master's business, were to make a slight deviation to carry some business of his own into effect, in such a case the master might be liable, and that the question would be one of degree as regards the extent of the deviation. . . . I am far from saying if the servant, when going on his master's business, took a somewhat longer road, that owing to the deviation he would cease to be in the employment of the master, so as to divest the latter of all responsibility. In such cases it is a question of degree as to how far the deviation could be considered as a separate journey." In Whatman v. Pearson, supra, the servant, with the horse and cart of the master, contrary to express orders, went a quarter of a mile out of his way purely for a purpose of his own, and the master was held responsible. In Mitchell v. Crassweller, 13 C. B. 237, Maule, J., said: "The master is liable even though the servant, in the performance of his duty, is guilty of a deviation, or a failure to perform it in the strictest and most convenient manner." In some of its aspects the case of Quinn v. Power, 87 N. Y. 535, is somewhat similar to the case at bar. There a boatman at a certain town on the Hudson river applied to the pilot in charge of a ferry boat, asking to be put on board of a canal boat then in midstream. The pilot, without compensation, and apparently out of mere "good nature," agreed to do so. Similar acts had oecasionally been done before, but without the knowledge or express authority of the master. To reach the canal boat the pilot diverged from his regular course, and while so out of his course, through the negligence of those in charge of the ferry boat, a collision with a canal boat occurred. In behalf of the master it was urged that his servants, when the collision occurred, were not acting in his business or within the scope of their employment, but in the execution of an independent purpose of their own. not connected with the master's business; but upon this point the court said: "We do not concur in this view of the transaction. At most, it appears, to us a case where the servant, while acting in the master's business and within the scope of his employment, deviated from the line of his duty to his master, and disobeyed his instructions. When this ferry boat left the dock at Athens it started for its terminus at Hudson. It took freight and passengers to transfer across the river. Servants and boat, as the latter moved out into the river, were doing the master's business, and acting in the line of duty and of employment. There was a usual track or route by which the boat crossed. It may even have been selected and dictated by the In deviating from it the servants might disregard the instructions of the master, but, they were none the less engaged in the master's business of transporting passengers from Athens to Hudson because they did not follow the usual route, or pursued another, or even a forbidden track. They were still doing their employer's work, though in a manner contrary to his instructions. If they stopped the boat in the middle of the river, they did not cease to be engaged in the master's business. Even if the motive was some purpose of their own, they were still about their usual employment, although pursuing it in a way and manner to subserve also such purpose. When they took this passenger to the tow, and in so doing deviated from the usual route, and stopped the bost midriver for that reason, they were still engaged in the master's business of transporting freight and passengers across the river. They were doing it in a mode and manner perhaps not authorized, and pos sibly in some sense to effect a purpose of their own,

owner.

but none the less acting within the scope of their employment, and engaged in the master's business." Some of the above remarks are quite applicable to the case at bar. In making the detour, Blackwell was still in charge of his master's team, though on a roundabout way home, carting manure to his master's farm. That was his main purpose and object throughout the entire transaction. In the language of the case last cited, even if the motive was some purpose of his own, he was still about his usual employ. ment, although pursuing it in a way and manner to subserve such purpose also.

Applying these principles to the case at bar, the question for the court below was whether or not Blackwell, for the time being, totally departed from the master's business, and set out upon a separate journey and business of his own. If the rule of law were that any deviation by the servant "to carry some business of his own into effect" was of itself such a departure, the above question would be one of law. But this, as we have seen, is not the rule of law. To decide the question in a case like the present, the trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it. Without spending more time upon this point, we think the above question is one of fact in the ordinary sense, and that the case at bar clearly falls within the class of cases where such question is strictly one of fact to be decided by the trier.

TOPPEL. The Supreme Court of Illinois, in Fifield v. Farmer's National Bank, decide that machines placed in a shoe factory, and fastened to the building, are, as between the vendor of the machines and a mortgagee of the realty, fixtures passing under the mortgage. especially where the vendor had notice when he sold the machines that the vendee held title to the land under a deed which declared that improvements and machinery to be placed thereon should not be removed for five years, and that the fact that the mortgagee of the realty has also taken a chattel mortgage on the machinery does not estop him from asserting that they are fixtures. Craig, J., says:

Ewell on Fixtures states the rule for determining what are to be regarded as fixtures, as follows: "(1) Real or constructive annexation of the thing in question to the realty. (2) Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party making the annexation to make it a permanent accession to the freehold; this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made." The author also says: "Of these tests, the clear tendency of modern authority seems to be to give pre-eminence to the

question of intention to make the article a permanent accession to the freehold, and the others seem to derive their chief value as evidence of such intention." In Arnold v. Crowder, 81 Ill. 56, it was held that platform scales fastened to sills laid upon a brick wall for weighing stock or grain, as between mortgagor and mortgagee, are to be regarded as fixtures belonging to the realty. It is there said it is in the power of the owner of the inheritance to affix any property to it he pleases, and, when he does so, it becomes a "fixture," in the general sense of the term, and part of the freehold; and, if the inheritance be afterwards sold or mortgaged, the fixture goes with the freehold. In Dobschuetz v. Holliday, 82 Ill. 371, it was held that a steam engine, machinery, and fixtures, attached to the soil by a lessee thereof for the purpose of hoisting coal, including oil boxes and other necessary appli ances connected therewith, become a part of the lessee's estate therein. In that case it was contended that the engine was personal property, and hence a mechanic's lien could not be enforced, and it was, among other things, said: "Whatever may have been the private agreement of the parties, it is very clear the engine, when set up and attached to the realty as it was, became a part of the estate the lessee had in the premises. No doubt the parties could agree among themselves that they would treat the engine and other fixtures as personalty, but their private agreement could not change the character of the property, so far as third parties were concerned." So, here, when the machinery was placed in the factory and became attached, the private agreement made between Day and appellants, to the effect that the machinery should remain the property of the vendees until paid for, could not change the character of the property, so far as the rights of mortgagees or other lien creditors were concerned. See, also, Wood v. Whelen, 93 Ill. 155; Thielman v. Carr, 75 Ill. 392. Bank v. Adam, 138 Ill. 483, 28 N. E. Rep. 955, is a case in point. There certain real estate and water power were leased, and the lessee erected a paper mill, and placed therein all necessary machinery. After the mill was erected and properly equipped with the necessary machinery, the lessee executed a trust deed on the property. The lessee failing to pay the rent, the lessor instituted proceedings to collect, relying on a clause in the lease which provided for the reservation of a valid and first lien to the lessor upon any and all goods, chattels, or other property belonging to the lessee as security for the rent; but it was held that the mill and buildings and machinery all formed a part of the leasehold estate, and were chattels real, and were a proper subject-matter of a real-estate mortgage, which, when made, created a valid lien on the property. See, also, Knapp v. Jones, 143 Ill. 375, 32 N. E. Rep. 382.

The rule established in this State is fully sustained by the decisions in other States. In Winslow v. Insurance Co., 4 Metc. (Mass.) 306, in discussing the question in regard to what part of the property of a machine shop would pass by a mortgage, the court said "that the steam engine and boilers, and all the engines and frames adapted to be moved and used by the steam engine by means of connecting wheels, bands, or other gearing, as between mortgagor and mortgagee, are fixtures, or in the nature of fixtures, and constituted a part of the realty, passed by the first mortgage." The same doctrine was declared in Pierce v. George, 108 Mass. 78. It is there said: "Articles placed in a mill by the owner to carry out the obvious purpose for which it was erected and adapted to that purpose, are generally

and