
    Lewis Gale versus Thomas W. Ward.
    Where the owner of a manufactory had mortgaged the building and the appurtenances for carrying on the same, but still remained in possession, it was holden, that certain fixtures, which could not be taken out of the building without being first taken in pieces, were liable to attachment at the suit of the creditors of the mortgagor
    This was an action upon the case against the defendant, as sheriff of this county, for not keeping certain chattels attached by him, at the suit of the plaintiff against one W. Beaton; and for not taking the same on the execution, which was issued on the judgment recovered by the plaintiff in that suit.
    On the trial, which was had on the general issue before Jackson, J., at the last April term in this county, it appeared that the original writ, in the plaintiff’s said action against Beaton, was delivered to the defendant to be served; and that he went with the plaintiff to a certain wool-carding factory, then occupied by the said Beaton, and there attached, among other things, “ all the right which the said Beaton had in three machines for carding wool; ” as appears by his return endorsed on said writ. The said machines were not removed by * the defendant; but he at the same time attached, by virtue of the same writ, the right in equity of the said Beaton to redeem the said factory, which had been mortgaged by him as hereafter mentioned. This attachment was made on the 3d of February, 1816.
    On the 6th day of the same February, the same machines were attached by one of the defendant’s deputies, at the suit of certain other creditors of the said Beaton, and by their direction were removed from the said building, and kept in the possession of the said deputy sheriff.
    The defendant,
    being informed of this, did, on the 7th of said February, attach the same machines again, in the hands of his said deputy, as stated in his return endorsed on the first-mentioned writ.
    The plaintiff,
    having recovered judgment in his said action against Beaton, sued out execution thereon, and delivered it to the defendant to be served, within thirty days after the rendition of the said judgment. The defendant delivered it to the above-mentioned deputy, by whom the said machines were sold, and the whole proceeds thereof were applied to the discharge of other executions against the said Beaton, which were not proved by the said deputy to be entitled to priority.
    On the return day of said execution, the said deputy, finding no goods or estate of said Beaton, applied to the defendant for directions ; when the defendant told him to take the body of Beaton, unless the plaintiff should give him other instructions. On the same day the plaintiff told the said deputy not to take the body of Beaton ; and as it was well known to both of them that there was no other property of Beaton’s that could then be taken on the execution, the plaintiff directed him to return it in no part satisfied ; the plaintiff saying, at the same time, that he should resort to the defendant for his remedy in this case, and that he would not have any thing done with the execution which should defeat or impair his said remedy against the defendant.
    The question was, whether the said three machines were, at the time of the said attachment by the defendant, * the property of the. said Beaton, and liable to the attachment; and if so, whether they were real or personal estate.
    It appeared that the said factory and the machines were, on the 11th of February, 1815, the property of P. &f D. Brigham, who on that day sold and conveyed the land, “ having a wool-carding factory, and the appurtenances for carrying on the same, which [as it is said in the deed] are comprised in this grant,” to the said Beaton; and he at the same time gave to the said Brighams a mortgage deed of the same premises, by a like description, to secure the payment of the purchase money. The said Beaton, about the same time, gave to the said Brighams a lease of the said premises, by a like description, for the term of.one year and more.
    It appeared that the said three carding-machines stood on the floor of the said factory building, not nailed to the floor, nor in any manner attached or annexed to the building, unless it was by the leather band, which passed over the wheel or pulley, as it is called, to give motion to the machines. This band might be slipped off the pulley by hand, and it was taken off and the machines removed from time to time, when they were repaired. Each machine was so heavy as to require four men to move it on the floor, and was too large to be taken out at the door; but it was so constructed as to be easily unscrewed and taken in pieces; and the machines were so taken in pieces, when removed by the deputy sheriff, as above mentioned.
    On the 5th day of said February, the said P. Brigham endeavored to secure the said machines by nails or spikes driven into the floor; and these were drawn out by the deputy sheriff, when he attached and removed them on the 6th of said February, as above mentioned.
    There was no bargain or contract of any kind, respecting the said machines, between the said Beaton and the said P. &f I). Brigham, except what was contained in the two deeds and the lease above mentioned.
    As to the amount of damages to which the plaintiff * was entitled, if to any, it appeared that the said deputy sheriff had made three several attachments of the same machines before the said attachment made by the defendant; but he did not remove the machines upon making these attachments, but left them standing in the building, in the same manner that the defendant afterwards did when he made the attachment now in question. When the machines were afterwards sold by the said deputy sheriff, he applied the proceeds thereof, first to satisfy the three first attachments made by him as afore-mentioned, and the balance, being 82 dollars 89 cents, he applied to the satisfaction of other executions in his hands against the said Beaton.
    
    A verdict was taken for the plaintiff, for the whole amount of his judgment against Beaton, with interest; being 110 dollars 11 cents, subject to the opinion of the Court upon the foregoing facts reported by the judge, and the said verdict was to be set aside, or amended, or altered, as the Court should judge proper upon the said facts.
    
      Burnside and Ward, for the defendant,
    contended that the machines in question were component parts of the manufactory, essential to the use or occupation of the building, and therefore were to be considered as real property, not to be removed on attachment.
    But if they were to be considered as personal chattels, the property of - them was not in Beaton, so as to be subject to attachment upon process against him. The Brighams were the legal owners ; and the deputy sheriff who removed the machines is liable to them in trespass, as the defendant would also have been had he taken them.
    If the defendant was liable to the plaintiff originally, yet, by the interference of the latter, and his prohibiting the body of his debtor to be taken in execution, he has lost his remedy against the defendant.
    
      Lincoln, for the plaintiff,
    argued that the machines were mere personal chattels, and subject to be removed when attached as other chattels. 
    
    * They were the property of Beaton after the conveyance by Brigham to him, and being left in his possession after his mortgage, the mortgage was fraudulent as against creditors. 
    
    The defendant is liable in this action for neglecting to seize and sell the machines on the plaintiff’s execution; the possession of his deputy being, in contemplation of law, his own possession. 
    
    Nor has the plaintiff defeated his right of action, by forbidding the imprisonment of the judgment debtor in execution, since it sufficiently appears in the case that such imprisonment would have been wholly fruitless-. 
    
    
      
       1 Salk. 368, Poole’s case. — 3 East, 38, Elwes vs. Maw. — 2 East, 88, Benton vs. Robart. — 8 Mass. Rep. 416, Taylor vs. Townsend. — 4 Mass. Rep. 514, Wells & Al. vs. Banister & Al.
      
    
    
      
       1 Wils. 260, Ryall vs. Rolle.
      
    
    
      
       13 Mass. Rep. 114, Vinton vs. Bradford.
      
    
    
      
       11 Mass. Rep. 317, Lyman vs. Lyman & M.
      
    
   Parker, C. J.

The attachment made by the sheriff was incomplete, for want of removing the machines, or of giving such notice of the attachment, by placing them in the custody of a servant, as would have prevented a second attachment.

They must be considered as personal property; because, although in some sense attached to the freehold, yet they could be easily disconnected, and were capable of being used in any other building erected for similar purposes. It is true that the relaxation of the ancient doctrine respecting fixtures has been in favor of tenants against landlords ; but the principle is correct in every point of view; and it is to be considered, where they are removed from the reality by an officer, who takes them for the debt of the tenant, that they go substantially to his use.

The mortgagees of the building and privilege, not being in possession, had no possession of the machines, which were therefore liable for the debts of the mortgagor.

Whether the deputy sheriE, who made the second attachment, did right in satisfying posterior executions out of this property, before the plaintiE’s, is a matter to be settled between him and his master, and not a subject of inquiry in the present case. For the sheriE, having had it in his power to attach, and having returned * that he did attach, is liable for not having the machines to satisfy the plaintiE’s execution,

Judgment according to ike verdict. 
      
      
         [2 Kent, 3d ed. 343, 345. — Walker vs. Sherman, 20 Wend. 636. — Morgan vs. Arthur, 3 Watts, 140.— Lemar vs. Miles, 4 Watts, 330.— Greene vs. Malden, 10 Pick. 504. — Kirwan vs. Latour, 1 Harr. Johns. 284.—Farrar vs. Stackpole, 6 Greenl. 154. — Powell vs. Monson and Brimfield Manufacturing Company, 3 Mass. 459.— Cresson vs. Stout, 17 Johns. 116.— Tobias vs. Francis, 3 Verm. 425. — Swift vs. Thomson, 9 Conn. 63.— Winslow vs. The Merchants Ins. Co. 4 Met. 306. — Ed.]
     