1820. SELBY would not impede in the exercise of the summary remedy which the law has given him for the recovery of rent. The rule had already been extended from foreigners to CRUCHLEY. natives, and some line must be drawn. V. Lens Serjt., in support of his rule, urged, that the Defendant in replevin, being in reality an actor, commencing his proceedings by making distress, and being, substantially, the party most interested in pushing the cause to a decision, ought to be considered as falling within the same principle as any other Plaintiff. Per Curiam. The objection, that this application is of the first impression, is of little weight. It is true, that the practice of compelling parties to give security for costs has already been extended from the case of foreigners to that of natives, and that a line must some where be drawn. But it must be drawn where in justice and reason it ought. There is no principle on which the Defendant in replevin, as to this matter at least, can be distinguished from any ordinary Plaintiff. The Defendant must give security. Rule absolute. Feb. 10. A. gaged land JOHN STEWARD, Esq. v. EDWARD LOMBE, Esq. and Others. Where 4. mort-CASE against the Defendant as Sheriff of the county of Norfolk, for pulling down and taking away, in with a windmill on it, the execution of a fieri facias, against one William Bur(built chiefly of gess, a wind-mill, (erected on a close of the plaintiff's) wood) the deed containing also a bargain and sale of the mill; held that it could not be taken in execution by a creditor of A., though A. remained in possession. in in the occupation of W. B. to the injury of the plaintiff's estate and interest in the close and mill. There was subjoined to the other counts in the declaration, a count in trover for the materials composing the wind-mill. Plea general issue. At the trial before Dallas C. J., Norfolk Summer Assizes, 1819, it appeared that W. B., by a mortgage deed, (which was set out in one of the counts of the declaration), dated the 6th March, 1818, in consideration of 10957. paid to him by the plaintiff, had conveyed to the plaintiff, among several parcels of land, one particularly described, upon which the deed stated, "that the said W. B. had lately erected and placed a wind-mill," habendum to the plaintiff for one thousand years at a pepper-corn rent; and had bargained, sold and set over all that wind-mill of him the said W. B., lately erected and placed by him upon one of the said pieces of land therein before described, together with all the sails, geers, &c. &c. habendum to the plaintiff, his executors, administrators or assigns, for ever; with a proviso, that the deed should be void upon the payment of 10957. on the 5th June next ensuing the date of the deed. Then followed the usual covenants by W. B., that he was owner of the hereditaments and mill, and had power to grant, and that, on default of payment of interest, the plaintiff might enter, receive rents, and sell the mill, &c. &c. W. B. remained in possession of the mill, which was stated to be removable at pleasure, was constructed in the usual manner, being an octagonal wooden edifice raised on a casement of brick-work, and anchored into the ground by spores and land-ties, part of the spores and the whole of the land-ties being one foot under the surface of the earth; the whole, except the brick-work, spores, and land-ties, was taken in execution by the Sheriff's officers, under a fieri facias, issued against W. B., and directed to the Sheriff of Norfolk. The questions made at the trial were, whether the wind-mill M m 3 was 1820. STEWARD v. LOMBE and Others. 1820. STEWART v. LOMBE and Others. and, if was affixed to the freehold, or a mere chattel, Frere Serjt. now showed cause against the rule. The wind-mill, as part of the realty, passed with the conveyance of the land; it would have passed even if not named. A wind-mill, perhaps, is entitled to be considered as part of the freehold, more peculiarly than any other building. Other edifices may, in almost every instance, stand by their own weight; but a windmill, exposed as it is, in an extraordinary degree to the force of the wind, requires a more powerful fixture than ordinary buildings; posts, spores, and tenants, must all be added, and the edifice be well anchored into the ground. The circumstance of the mill's being removable at pleasure, does not at all affect its freehold quality, Large buildings, such as wooden-barracks, are often removed,; even ancient abbies, castles, and crosses, have been carried away for the purpose of ornament or preservation; and it would be most dangerous to the titles of real property, if the Court were to enquire into the habits and dispositions of buildings, their aptitude for migration, and whether they have actually journeyed or no. The brick-work of this mill, at least, had never travelled. No creditors of the mortgagee's could have taken the mill on a fieri facias; and if not, how should those of the mortgagor be better entitled? The question whether fixture or no, though often debated between landlord and tenant, heir and executor, executor, tenant for life and reversioner, has never been raised as between mortgagor and mortgagee. But admitting the will to be a chattel, it passed by the deed conveying the term, in which deed it is expressly mentioned and sold. The consideration is good, and no presumption of fraud is alleged. The circumstance of the miller remaining in occupation, affords no such presumption; for it is not to be expected that a party who takes a mill in mortgage, shall go and inhabit it himself. By the constructive possession of the land, which passed by the deed, the Plaintiff took possession of the mill also, as far as was necessary, for there are many cases in which the property of a chattel passes without actual possession; as where chattels have been sold by a Sheriff, Kidd v. Rawlinson (a). The transfer, being bona fide, is not fraudulent, because made to a creditor; it would not be so even in bankruptcy, unless a fraudulent intention were proved, Horn v. Baker (b). . Blossett Serjt. contrà. If this mill can be proved to be part of the realty, no doubt it would pass with the land. But the jury have expressly found it to be a moveable, and this in conformity with the cases, which have all held, that a structure erected for the purposes of trade may be removed from the land. The parties themselves too, by the very terms of the deed, seem to have considered it as a chattel. If it be such, the property in it could only be conveyed by an actual transfer of possession [Edwards v. Harben (c)] and this applies with still greater force to the case of a pledge, for it is the actual transfer alone that can make a pledge any security. In Horn v. Baker, though it was decided, that, where the deed was so framed, the pledgor might (a) 2 B. & P. 59. (c) 2 T.R. 587. M m 4 retain 1820. STEWARD V. LOMBE and Others. 1820. STEWARD V. LOMBE and Others. retain possession consistently with the security, yet it was laid down, that without an express provision to such effect, a transfer unaccompanied with possession was void as against a creditor. In the deed between the present parties, there is no expression by which the pledgor is enabled to return possession of his pledge; and the transfer between the parties, is not like a case of execution, where from the notoriety of the Sheriff's sale, no person is deceived, though the occupier becomes a purchaser, and remains in possession. DALLAS C. J. The first question is, whether the property in dispute be a fixture or no? The jury found, that it was not; and, whether a barn or mill, or any other thing of the same kind be a fixture or no, is a question partly of fact, partly of law. When the fact is clear, the court will apply the rules of law as they are to be abstracted from decided cases, but every case of this sort must depend mainly on it's own circumstances, whether arising between landlord and tenant, heir and executor, or creditors of mortgagor and mortgagee. However, it is not necessary to enquire, whether this mill is to be deemed a fixture or not; that question, therefore, which is frequently a question of considerable nicety I shall here pass over; and am willing to take it as the jury found, that the mill was not a fixture. If, then, it be a chattel, the question is whether it passes under this deed. That it does pass, it is imposssble to dispute. Here is land conveyed, and conveyed with a description of the mill upon it; it passed, therefore, with the land; and, omitting to enter into the question whether it passed as a fixture and part of the land, it is sufficient that here the windmill is described as being situated upon the land. The next question is, whether, taking it to be a chattel, there has been such a possession of it as will pass |