5 Parker, 66; State v. Townsend, 2 Harring. 543; State v. Benham, ↑ Conn. 414; Commonwealth v. Cunningham, 13 Mass. 245; Commonwealth v. Tenney, 97 id. 50; Holt v. State, 38 Ga. 187; State v. Reed, 12 Md. 263; Wilson v. State, 24 Conn. 57; Hite v. State, 9 Yerg. 357; Durham v. People, 4 scam. 172; State v. Elder, 65 Ind. 232; s. c., 32 Am. Rep 69.

"If the rule laid down by the majority of the court in this case, as the law of the land, must prevail, I do not see why any person charged may not be convicted, upon separate indictments, if the evidence warrants it, first for an assault and battery, second, for an assault and battery with intent to commit a felony, and third, for the felony, when, in fact, the offenses are but the component parts of one offense, namely, the felony, and thus be punished three times for the same offense. I do not think the State can apportion one crime into several offenses of different grades, and punish the offender for each portion by piecemeal. The State must choose her ground, and when once chosen, and the offense prosecuted to final judgment, she cannot be allowed to change her ground, and turn the same state of facts into another grade of the same offense, the proof of which would sustain the former charge also. Such a doctrine would tend to a Draconian severity, unwarranted by the spirit of American institutions, and as I think, in violation of the Constitution of the State of Indiana."

In Simco v. State, 9 Tex. Ct. App. 338, the court said: "But it is said that the verdict of guilty of embezzlement on the first trial was an acquittal of the charge of theft, and that the indictment being for theft, and being good, and the transaction upon which the two indictments are based being identically the same, the plea of former acquittal is a good plea in bar of the prosecution for embezzlement, and should have prevailed and defendant been discharged. Our statute in prescribing the only special pleas which can be heard for the defendant, names former conviction and former acquittal, and provides that the character of the latter plea shall be, that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.' Code Cr. Proc., art. 525. But it must be for the same offense.' Id. art. 21. He must have been acquitted of the accusation against him, not of another or entirely different accusation growing out of the same transaction. In autrefois acquit it is necessary that the prisoner could have been convicted in the first indictment of the offense charged in the second. * * * The rule seems to be well settled that a former trial (on a plea of former acquittal) is not a bar unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment.' Irvin v. State, 7 Tex. Ct. App. 78; Hozier v. State, 6 id. 542; Swancoat v. State 4 id. 105; Dominick's case, 40 Ala. 680; Foster's case, 39 id. 229; Harrison's case, 36 id. 248. "Now let us apply the rule. As we have seen, in the former case the indictment was for theft: the conviction, for embezzlement. The case was reversed. Why? Solely because at the time the offense was committed i. e., before the Revised Statutes went into effect a conviction for embezzlement could not be had on an indictment for theft. Simco v. State, 8 Tex. Ct. App. 406. Does the fact that the party is now charged with embezzlement, and not theft, alter the rule? We cannot imagine how it can be so. It applies with as much force one way as the other, and vice versa. The decision in the former appeal settles the plea of former acquittal in this case.

"There is a marked difference in modern practice between the rules which govern the two pleas of autrefois acquit and autrefois convict, notwithstanding the immense amount of dictum and loose expressions to the contrary found in the books. Autrefois acquit is only available in cases where the transaction is the same and the two indictments are susceptible of, and must be sustained by, the same proof These two elements must combine, and are both sine qua non to the sufficiency of the plea. Autrefois convict only requires that the transaction, or the facts constituting it, be the same. To illustrate: If a party be indicted separately for the theft of three horses, the property of A., B., and C. taken at the same time or in one transaction, and he be tried on the first for the theft of A.'s horse, and the State fails from misnomer, or the defendant by proving A.'s consent should be acquitted, would the plea of that acquittal operate a bar to the conviction on the other trials because the transaction was one and the same? By no means. Why? Simply because the proof necessary to a conviction in the latter cases would not convict in the former. Pickens v. State, 9 Tex. Ct. App 270; 1 Whart. Cr Law (6th ed.), § 557, and au thorities cited."

VOL. XXXV-44

Where one enters into possession of land, under a contract for future purchase, paying no rent, and erects substantial buildings and machinery for the prosecution of his business, and fails to fulfill the contract and acquire the title, the erections are realty, and cannot be brought within a chattel mortgage of them by the vendee.*

TROV

ROVER to recover the value of buildings, engines, machinery, etc., as personal property. The opinion states the case.

Wilson & Woodward, for plaintiffs.

C. P. Stetson and L. A. Emery, for defendant.

SYMONDS, J. On the 17th day of November, 1866, the defendant gave to John D. Hopkins and James H. Hopkins an agreement to convey to them a large tract of land in Hancock county upon certain specified terms and upon the express condition that the said Hopkins should pay him on or before maturity four notes for $19,260 each, payable with interest annually in one, two, three and four years from that date. If the notes and interest, or any one of the same, were not paid when due, then the obligation was to be void, time being expressly regarded as of the essense of the agreement. The said Hopkins were to go into immediate possession of the land, to use and occupy it as their own, the defendant reserving the right to take possession of the property, and of whatever might be taken from the same, whenever he deemed it expedient for his own security.

The said Hopkins, with Edward K. Hopkins and Charles D. McDonald, forming the firm of J. D. Hopkins & Co., went into possession under the contract, erected large and substantial buildings, with engines and machinery, for the purpose of manufacturing an extract from bark, to be used in tanning. These are referred

* Compare Globe Marble Mills Co. v. Quinn (76 N. Y. 23), 32 Am. Rep. 259; Cent. Branch R. Co. v. Fritz (20 Kans. 430), 27 Am. Rep. 175; Hutchins v. Masterson (46 Tex. 551), 26 Am. Rep. 286.

Hinkley and Egery Iron Company v. Black.

to in the writ as the Extract Works. ing-house, stable and appurtenances.

There were also mills, dwell

On the 14th day of October, 1876, the said firm of J. D. Hopkins & Co. gave to the plaintiffs a personal mortgage of the buildings so erected, and of the machinery and other property, for an alleged conversion of which by the defendant the plaintiffs in this case claim to recover.

The payments were not all made as required by the contract, and for a certain period there seems to have been a waiver by the defendant of the requirements in regard to time by accepting partial payments at later dates. The last payment upon the notes was made in June or July, 1877 in the sum of $2,700.

In December, 1877, the firm of J. D. Hopkins & Co. failed, and went into bankruptcy, leaving about $30,000 of the amount required to entitle the obligees (for it is convenient to speak of this paper as a bond for a deed, though it was in form merely a contract to convey) to a conveyance still unpaid. The contract for conveyance was thereupon given up by J. D. Hopkins & Co. to the defendant, who claimed title and possession of the land and buildings.

The title of the defendant to the land is not disputed. Neither the obligees in the bond, nor the firm of J. D. Hopkins & Co., had any claim to the township except what this paper conferred. There is some discrepancy in the testimony upon the question whether the plaintiffs were expressly notified at the date of their mortgage, that the defendant then claimed to hold the buildings as a part of the realty, but there is nothing in the evidence to prove that the plaintiffs had any reason to suppose, or did suppose, that the mortgagors had any other rights than those which grew out of the contract for conveyance and possession and improvement thereunder; unless an inference to the contrary is to be drawn from the terms of the mortgage itself, which contained the usual warranty of title, and from the statement of the president of the plaintiff company, contradicting John D. Hopkins on this point, that there was nothing said about any defect of title at the time the mortgage was given.

The plaintiffs claim the buildings, with their contents of engines, machinery and other fixtures, under their mortgage, as personal property.

The defendant claims, that upon failure of the Hopkins to perform the express condition of the bond, the buildings being substantially and to all appearances permanently built, together with

Hinkley and Egery Iron Company v. Black.

whatever appertained to them, were a part of the realty and the property of the owner of the land. By agreement of counsel the court is to pass only on the question of title.

An examination of the evidence, and of the description of the property, satisfies us that upon this issue in regard to the title the property mentioned in the mortgage and claimed in the writ may properly be regarded as an entirety; because upon the proof we find no conversion by the defendant of any property which would not upon familiar principles be part of the realty, if the buildings themselves were real estate. The engines, pumps, elevator, furnaces, condensers, coolers, machines for cutting the limbs and grinding the bark, saws and other apparatus, were all parts of the machinery for the extract works and for the mills, connected by shafting and belts, or by pipes, suited and intended for the process of obtaining the extract from the bark, and for other purposes connected with the mills as such, and in the main bolted or secured in a permanent way to the buildings themselves. Such machinery was a part of the mill or factory and real or personal estate according to the character in this respect of the building itself. Symonds v. Harris, 51 Me. 20. Our attention in the argument is not called to any thing, nor do we perceive any thing in the description given by the witnesses, of which on this evidence a conversion by the defendant can be predicated, which would not under our decisions follow the fortunes of the buildings themselves, in respect of being real or personal property.

The dwelling-house stood on cedar posts, but in regard to most of the other buildings, the evidence shows that excavations were made and foundations secured on which the buildings were supported by stone piers and other masonry.

Was this property, on failure of the Hopkins to make the payments in the bond, the real estate of the defendant, or the personal property of the plaintiffs under their mortgage?

In Mc Rea v. Bank, 66 N. Y. 490, the court, following and approving an earlier decision, states the criterion of an irremovable fixture to be," the union of three requisites, first, actual annexation to the realty, or something appurtenant thereto; second, application to the use or purpose to which the part of the realty with which it is connected is appropriated; third, the intention of the party making the annexation to make a permanent accession to the freehold."

Hinkley and Egery Iron Company v. Black.

By the words "actual annexation," in the first of the requisites mentioned we do not imagine that the court intended physical annexation; and we should prefer in its place the phrase annexation, real or constructive. For, the sufficiency of constructive annexation in the case of heavy bodies, or of articles, like keys or parts of machinery, specially fitted and designed for particular places, is, we think, universally conceded. It has been very clearly held by this court: "It is the permanent and habitual annexation, and not the manner of fastening, that determines when personal property becomes a part of the realty. A thing may be as permanently affixed to the land by gravitation as by clamps or cement." Strickland v. Parker, 54 Me. 266.

Nor do we perceive that the words "or something appurtenant thereto," in this first requisite, extend the meaning of the words, "the realty," previously used.

Of these three tests by which to determine what constitutes an irremovable fixture, "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 others seem to derive their chief value as evidence of such intention." Ewell on Fixtures, 22.

And another authority, after stating the intent, actual or presumed, to be usually the most important circumstance in determining the fact, adds: "But there are some cases in which, though the erection is made by one not the owner of the freehold, an intent to retain the property in the fixtures as chattels could not be presumed, and others in which the policy of the law could not suffer effect to be given to it, if it actually existed. Thus, if one, though not the owner, is in possession under an executory contract of purchase, it is a reasonable presumption that he expects to complete the purchase, and that whatever he attaches to the realty in such a manner that if it were so attached by the owner of the freehold it would become a part of it, he intends shall be a part of it.” Cooley on Torts, 429.

"Fixtures attached to premises by one in possession under a contract of purchase, where he fails to perform on his part and thereby to acquire a title, become a part of the realty, like fixtures annexed by a vendor or mortgagor, and may not be removed by him." 1 Wash. Real Prop. 6.

"It is also well settled that the right to remove fixtures annexed