After the picture is printed, it is sometimes covered with a metal leaf, which is also put on by the process of printing; a sizing is printed on from the stone, the metal leaf being placed on top of the sizing by hand, it being too brittle to be placed on by the roller, and it is run through the press, which prints the metal leaf on top of the picture.

In Arthur v. Rheims [ante, 813], it was held that the fact that artificial flowers were a manufacture of cotton did not determine that they were dutiable as composed of cotton, but that they were properly taxable under the specific designation of "artificial flowers."

The same was held to be true of India rubber goods, in Arthur v. Davies [ante, 810], and of the steel forming a part of spectacles, in Arthur v. Sussfield [ante, 772].

paper from the lithographic stone, and on which they are traced or engraved. Both when plain and when printed in colors they are commercially regarded as engravings."

Homan's "Encyclopedia of Commerce." "Prints: impressions, on paper or some substance, of engravings on copper, steel, wood, stone, etc., representing some particular subject or composition. Prints, like painting, embrace every variety of subject, but differ very widely in the manner in which they are engraved." McCulloch's Dictionary of Commerce uses the same language.

The pictures in question were printed from lithographic stones, by successive impressions, each impression giving a different portion of the view and of a different color. Like other pictures, they are made and used for the purpose Equally with engravings, cop

We do not perceive that the fact that the result is produced by several impressions, and of a different color at each time, can make a difference in the conclusion. In country places, we see posted the advertisements of circuses and shows and of political meetings upon sheets of paper of large size, printed in large type of various colors, red, black and blue, and requiring that the paper should pass more than once through the press. It would be a novel idea that these sheets were not printed matter.

It is not necessary, however, that the characters produced should be letters or numerals, or the result of types or stereotypes, or be reading matter, but the term "print" or "printing" includes the most of the forms of figures or characters or representations, colored or uncolored, that may be impressed on a yielding surface. Webster defines "to print:"

2. To take an impression of; to copy or take off the impress of; to stamp.

3. Hence, specifically, to strike off an impression of, or impressions of, from types. stereotype or engraved plates, or the like, by means of a press; or to print books, handbills, newspapers, pictures, and the like.

368] *4. To mark by pressure; to form an impression upon; to cover with figures by a press or something analogous to it; as to print calico, etc.

Print, noun: a mark made by impression; a line, character, figure, or indentation made by the pressure of one body or thing upon another. 3. A printed cloth; a fabric figured by stamping.

Lithograph: a print from a drawing on stone, as a lithographic picture.

Worcester says: "A mark, form, character; a figure made by impression."

McElrath's "Commercial Dictionary," "Prints * impressions on paper, or engravings on copper, steel, wood or stone, representing some particular subject or composition, and which may be either colored or uncolored.

་

Lithographs, pictures or desigus printed on

If further argument were needed, it would be found in the principle noscitur a sociis. "Printed matter" is named in the list with engravings, maps, charts, illustrated papers. With these, printed pictures are naturally associated.

With components and manufactures of paper are paper sized or unsized and glued, [369 used for books and newspapers exclusively. These are descriptions of the article paper itself, and have no natural relation to printed drawings or pictures.

The judgment must be affirmed.

THE WESTERN UNION TELEGRAPH

COMPANY Appt.,

V.

HENRY W. DAVENPORT.

THE WESTERN UNION TELEGRAPH

COMPANY Appt.,

V.

KATHARINE J. DAVENPORT, by her Guardian Euretta E. Davenport.

(See S. C., Reporter's ed., 369-373.)

Transfer of stock-duty of corporation-minor heirs.

1. It is the duty of officers of a corporation to see that all transfers of its shares are properly made on its stock books, either by the stockholders themselves or persons having authority from them.

2. Neither the absence of blame on the part of the officers of the company in allowing an unauthorized transfer of stock, nor the good faith of the purchaser of stolen property, will avail as an an

swer to the demand of the true owner.

ing their rights to property, by reason of any negligence of their guardian.

3. Minor heirs cannot be precluded from assert

(Nos. 57, 58.] Argued Nov. 4, 5, 1878. Decided Nov. 18, 1878.

Appeals from the Circuit Court of the United States for the Southern District of Ohio. The cases are fully stated by the court. Messrs. Perry Belmont, Grosvenor Porter Lowrey, J. Hubley Ashton and John K. Porter, for appellant:

1. The loss which has been suffered is the immediate result of this guardian's most cul

She left documents, having in law a quasi negotiable character, and the possession of which, by the consent of the owner, carries with it a strong presumption of rightful authority over them, with one who, by repeated abuses of her confidence and repeated embezzlements of property to a large amount, had become known to her as irresponsible and untrustworthy in a high degree.

It is believed that these facts would justify a verdict of gross negligence, in a suit by the minors against their guardian; and that certainly no greater degree of negligence than would be required for their recovery is required for our defense.

II. The defendant is entirely free from all fault or negligence.

The American practice of issuing certificates of stock, with the clause, "Transferable in person or by attorney on the books of the Company, only on surrender and cancellation of this certificate," had the effect to give to the actual possession of the certificate, as a muniment of title, probative force almost irresistible. It is impossible that any great corporation should know the persons or signatures of a constantly changing mass of stockholders, and some risk of loss is inseparable from the practice of giving to certificates this ease and convenience of negotiability. The custom is maintained for the benefit of the stockholder, who alone has power, by the care which he may take of the certificates, to overcome the risk with caution. His being the benefit, and his the opportunity to guard against loss, the risk should bear primarily and principally upon him; and he should be held culpably negligent, if wanting in any degree in the care which he takes of papers, the mere possession of which may be so easily availed of to impose upon others.

Bk. v. Lanier, 11 Wall.. 377, 20 L. ed., 174; Goodwin v. Robarts, L. R., 10 Exch., 353.

Upon refusal, the stock would have been returned to the house in Cincinnati which sent it forward, and by them to Mr. Richie who delivered it to them, and he having made acknowledgment as subscribing witness in the manner provided for by the Statutes of New York, as cited below, it would have been returned to New York, and the company upon that proof alone would have been compellable to make the transfer or to answer in damages to the purchaser.

Holbrook v. Zinc Co., 57 N. Y., 616, 624. The doctrine of equity, that the plaintiff must come with clean hands, is applicable to cases like this and condemns him to lose his suit, if, by negligence in the safe-keeping of his certificate, he has enabled a third person to impose successfully upon the company, while acting according to the approved general course of business and without negligence.

Ashby v. Blackwell, Amb., 503; Pratt v. Copper Mfg. Co., 123 Mass., 111; Coles v. Bk. of Eng., 37 Eng. C. L., 134; 10 Ad. & El., 437; Davis v. Bk. of Eng., 2 Bing., 393, 409; 9 Eng. C. L., 444; Cottam v. Eastern Counties R. Co., 30 Law J. Ch., 217; S. C., 1 Johns. & H., 243; Donaldson v. Gillot, 12 Jur. N. S., 959; (S. C.) L. R., 3 Eq., 274; Midland R. Co. v. Taylor, 8 H. of L. Cas., 751; Tayler v. Great Indian

If one of two innocent persons must suffer by a deceit, it is more consonant to reason that "He who puts trust and confidence in the deceiver shall be a loser rather than a stranger." Carpenter v. Longan, 16 Wall., 273, 21 L. ed., 314.

Messrs. John F. Follett, Charles Follett and Jacob D. Cox, for appellees:

A corporation which has permitted a transfer of stock owned by a stockholder, upon a forged power of attorney, and has canceled the original certificates, may be compelled to issue new certificates; and if it has no shares which it can so issue, to pay the value thereof in

money.

No case could be presented resting more singly upon the effect to be given to a transfer upon a forged power of attorney, than these cases do.

Davis v. Bk. of Eng., 2 Bing., 393; Hildyard v. South Sea Co., etc., 2 P. Wms., 76; Sloman v. Bk. of Eng., 14 Sim., 475.

"One of two trustees of a sum of stock, sold it out under a power of attorney, to which he forged the signature of his co-trustee and, sometime afterwards, absconded. Held, that the Bank of England was compellable, in a court of equity to re-invest the stocks in the name of the trustee."

The same point was decided in the case of Taylor v. Midland R. Co., reported in 6 Jur., N. S., 595, and 28 Beav., 287, and on appeal in 8 H. of L. Cas., 751; Ashby v. Blackwell, 2 Euen, 299; Johnston v. Renton, L. R., 9 Eq. Cas., 181; Cottam v. Eastern Co. R. Co., 1 Johns. & H. Ch., 243; Tayler v. Great Indian Peninsular R. Co., 4 De Gex & J., 559; Bk. of Ireland v. Evans' Charities, 5 H. of L. Cas., 389; Lowry v. Commercial, etc., Bank, Taney, 310; Sewall v. Water-Power Co., 4 Allen, 277; Pollock v. Bk., 7 N. Y., 274; Chew v. Bk., 14 Md., 299; Pratt v. Mfg. Co., and Same v. Bk., 123 Mass., 110, bear directly upon many of the issues involved in these cases.

See, also, Marsh v. Keating, 2 Cl. & F., 230; Orr v. Union Bank of Scotland, 1 McQueen, 513; Duncan v. Luntley, 2 McN. & G., 30; Shaw v. Spencer, 100 Mass., 382; Cohen v. Gwynn, 4 Md. Ch. Dec., 357; Far. & M. Bk. v. Wayman, 5 Gill, 536; Dalton v. R. Co., 22 Eng. L. & E., 452; Swan v. North British, etc., Co., 7 Hurl. & N., 603; Swan, Ex parte, 7 C. B. (N. S.), 400; Swan v. N. Brit., etc., Co., 2 Hurl. & C., 175; Magwood v. Bk., 5 S. C., 379; Ang. & Ames, Corp., secs. 564. 582–585; Lindl. Part., 3d Eng. ed., 317, 727, 819; Weaver v. Barden, 49 N. Y., 286.

The unbroken line of decisions, both in England and the civil courts of this country, are to the effect that one who is once a stockholder in a corporation, cannot be devested of his stock except by sale and transfer made by himself, or by such conduct on his part as estops him from denying that he sold and transferred it. A forged transfer gives no better title than that acquired by a purchaser from a thief, of a stolen horse.

The appellees being minors at the time of the pretended transfer of their stock certificates, would have a right to reclaim said stock from the appellant, even if the transfer were genuine. Chew v. Bank of Baltimore (supra.)

The guardian of the appellees had no power to sell or transfer said shares of stock, except under the order of the Probate Court. Statutes of Ohio. Swan and Sayler, 357.

court:

These are suits in equity to compel the defendant, a Corporation created under the laws of New York, to replace. in the name of the plaintiffs, certain shares of its capital stock alleged to have belonged to them, and to have been transferred without their authority on its books to other parties; and to issue to them proper certificates for the same; and also to pay to them the dividends received on the shares 370] since such unauthorized transfer. In case the Company fail to replace the stock, the plaintiffs ask for alternative judgments for the value of their respective shares.

The facts upon which the suits rest are these: In March, 1865, Charles Davenport, a citizen of Ohio. died, leaving a widow and two minor children, the plaintiffs here, his heirs. He was possessed at the time, besides other property, of 1170 shares of the capital stock of the Western Union Telegraph Company. Upon the settlement of his estate, these shares were distributed equally between the widow, Mrs. Davenport, and the children, each taking 390 shares, and in their names, respectively, they were entered on the books of the Company, and to them separate certificates were issued. The widow was appointed guardian of the children and to her, as such guardian, the certificates of their shares were delivered. These declared on their face that they were transferable in person or by attorney on the books of the Company only upon their surrender and cancellation. On the back of each one was printed a blank form of transfer and power of attorney. Those belonging to the children, with the one issued to her, and some government bonds were placed by her in a tin box, which was locked and deposited in the Fourth National Bank of Cincinnati for safekeeping. Her brother, Robert W. Richie, was at the time an officer in the bank, and remained such for some years afterwards, and had access to the box. He kept the key to it during her absence from Cincinnati, in order to get for collection the coupons attached to the government bonds when they became due.

In February, 1871. he took from this box the certificate of 390 shares belonging to the plaintiff. Henry Davenport. and forged his name to the transfer and power of attorney on its back, adding his own signature as that of an attesting witness. In this form he sold the certificate; and the purchasers. using the forged power of attorney, obtained a transfer of the shares on the books of the Company. Subsequently, Mrs. Davenport was in Cincinnati. and on one occasion sent for the box, but returned it to the bank without opening it or examining its contents. and being about to depart for Europe, she left the key with her brother. Soon afterwards, he took from the box the certificate of shares belonging to the other plaintiff, Katha371] rine Davenport, and forged her name to

mer of 1871 Mrs. Davenport and Katharine went to Europe. None of them were informed of the pretended transfers of the stock until the spring of 1873, and in 1874 these suits were brought. They were originally commenced in one of the courts of the State of Ohio, and were removed to the Circuit Court of the United States upon application of the defendant. That court gave judgment for each of the plaintiffs. and the Company appealed to this court.

Upon the facts stated there ought to be no question as to the right of the plaintiffs to have their shares replaced on the books of the Company and proper certificates issued to them, and to recover the dividends accrued on the shares after the unauthorized transfer; or to have alternative judgments for the value of the shares and the dividends. Forgery can confer no power nor transfer any right. The officers of the Company are the custodians of its stock books. and it is their duty to see that all transfers of shares are properly made, either by the stockholders themselves or persons having authority from them. It upon the presentation of a certificate for transfer they are at all doubtful of the identity of the party offering it with its owner, or if not satisfied of the genuineness of a power of attorney produced, they can require the identity of the party in the one case, and the genuineness of the document in the other, to be satisfactorily established before allowing the transfer to be made. In either case they must act upon their own responsibility. *In [372 many instances they may be misled without any fault of their own, just as the most careful person may sometimes be induced to purchase property from one who has no title, and who may perhaps have acquired its possession by force or larceny. Neither the absence of blame on the part of the officers of the Company in allowing an unauthorized transfer of stock, nor the good faith of the purchaser of stolen property, will avail as an answer to the demand of the true owner. The great principle that no one can be deprived of his property without his assent, except by the processes of the law, requires, in the cases mentioned, that the property wrongfully transferred or stolen should be restored to its rightful owner. The maintenance of that principle is essential to the peace and safety of society, and the insecurity which would follow any departure from it would cause far greater injury than any which can fall, in cases of unlawful appropriation of property, upon those who have been misled and defrauded.

We do not understand that the counsel of the appellant controvert these views, but they contend that the mother of the plaintiffs, as their guardian, was chargeable with culpable negligence, in the keeping of the certificates and, therefore, that the plaintiffs are estopped from claiming them or their value from the Company. The negligence alleged consisted in the

she knew that he was insolvent; and that he had used, without her authority, funds received by him on a previous sale of a portion of her property; and the further fact, that when, in the summer of 1871, before leaving for Europe, she sent for the box, she returned it to the bank without examining its contents. To have allowed her brother, when known to be insolvent, to have access to the box after he had, without her authority, appropriated to his own use her funds, and to have returned the box to the bank in 1871 without examining its contents, were, according to the contention of counsel, offenses of such gravity as to estop her wards, the minor children, from complaining of the Company for allowing their stock to be transferred on its books under a power of attorney which he had forged. We do not think it at all necessary to comment at any length upon 373] this singular position; *for even if it were possible, as it is not, to preclude the minor heirs from asserting their rights to property received from their father, by reason of any negligence of their guardian, we are unable to perceive any necessary connection between her brother's insolvency and misappropriation of her funds, and the forgery of the children's names, or between such forgery and her omission to open her box in 1871 and examine its contents. There is no circumstance here upon which an estoppel against the plaintiffs can be raised. To create an estoppel against them, there must have been some act or declaration indicating an authorization of the use of their names, by which the Company was misled, or a subsequent approval of their use by acceptance of the moneys received with knowledge of the transfer. No act or declaration is mentioned, either of the guardian or her children, which tends in the slightest degree to show that any assent was given to the use of their names. But, moreover, neither the guardian nor the children, whilst they were minors, were competent, even by the most formal act, to authorize a transfer and sale of the property. Under the Statute of Ohio, the intervention of the Probate Court was essential to any such proceeding. No inference could, therefore, be drawn from any negligence of theirs in support of a transfer of the property, where no order of that court authorizing a transfer had been made.

There are numerous decisions of the English and American courts in accordance with the views stated. They are cited by counsel in their briefs, and are given in a note to this opinion. Davis v. Bk., 2 Bing., 393; Hilyard v. So. Sea Co., 2 P. Wms., 76; Sloman v. Bk., 14 Sim., 475; Taylor v. R. Co., 28 Beav., 287; Ashby v. Blackwell, 2 Eden, 299; Lowry v. Com. & F. Bk. of Balt., Taney, C. C. Dec., 310; Sewall v. Bost. Water-P. Co., 4 Allen, 277; Pratt v. Taunton Cop. Co., 123 Mass., 110; Chew v. Bk. of Balt., 14 Md., 299; Pollock v. Bk., 7 N. Y., 274; Weaver v. Barden, 49 N. Y., 286; Cohen v. Gwinn, 4 Md. Ch. Dec., 357; Dalton v. R. Co., 22 Eng. L. & E., 452; Swan v. N. Brit. Australian Co., 7 IIurls. & N., 603. We do not think it important to refer to them specially, for no number of adjudications can add to the force of a simple statement of the facts.

CITY OF NAUVOO Piff. in Err.

GEORGE A. RITTER.

(See S. C., Reporter's ed., 389-392.)

Recitals in bonds-demurrer.

conditions had been complied with which author1. Where city bonds recited on their face that the ized their issue, in an action on them by an innocent holder it was proper to sustain a demurrer to pleas, which simply tendered an issue as to the authority of the city to issue the bonds.

2. The objection, that there was neither a demurrer nor replication to a plea, comes too late after a been perfect in form. trial, and verdict below, as if the pleadings had [No. 59.]

Submitted Nov. 5, 1878. Decided Nov. 18, 1878. In Error to the Circuit Court of the United States for the Southern District of Illinois. The case, which arose in the court below, is stated by the court. The sixth plea referred to in the opinion, was in substance like the others mentioned, and simply tendered an issue as to the authority of the city to issue the bonds. Messrs. Henderson & Shields, for plaintiff in error.

No counsel appeared for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

By a statute of Illinois "in regard to practice in courts of record," passed February 22, 1872, the plaintiff in a suit upon a written instrument is required to file with his declaration a copy of the instrument sued upon. R. S. Ill., 1874, ch. 110, p. 777, sec. 18. In obedience to this statute, the plaintiff in this case filed with his declaration copies of the bonds and coupons declared upon. In this way, we think, the bonds became a part of the pleadings in the case.

The bonds upon their face refer to the ordinance of the city council authorizing their issue, printed on the back; and in the ordinance it is distinctly recited that the election required by law was held pursuant to notice given in accordance with the provisions of the [392 Act authorizing a subscription, and that upon a canvass of the votes "it appeared that there had been cast for subscription a large majority of the votes of said city; the number of votes given being a large majority of all the votes polled at the last general election in said city, and a much larger vote than that required by the Act aforesaid to authorize said subscription." With this recital, in effect, upon the face of the bonds in the hands of an innocent holder, it was certainly not error in the court below to sustain a demurrer to the second, third, fourth and fifth pleas, which simply tendered an issue as to the authority of the city to issue the bonds, and as to the fact of an election in the manner provided by law.

The record does not show that there was either a demurrer or replication to the sixth

NOTE. Recitals in negotiable bonds or securities; estoppel by; evidence of the facts recited. See note to Mercer Co. v. Hackett, 17 L. ed. U. S., 548.

hold.

GEORGE HILL, JR., Appt.,

V.

The same tests were adopted by the Supreme Court of Ohio in Teaff v. Hewitt, 1 Ohio St., 511; see, also, Hill, Fixt., secs. 6-9 and authorities; Van Ness v. Pacard, 2 Pet., 137.

Now, in the present case, in the utter absence of any circumstances to show the mode or character of annexation or the object of the annexation, or the intentional purpose with which it

TIONAL BANK.

(See S. C., Reporter's ed., 450-454.)

Res judicata-sale in parcels.

1. Where the court decreed that, on a sale under a trust-deed, the several parcels therein described should be sold together, the decree on that point is res judicata, and both parties are barred from litigating it a second time.

2. Where the realty, the water-power and the machinery, constitute a paper-mill, which cannot be disintegrated and the parts sold separately without large depreciation, and a diminished amount In the aggregate of the yield, they should be sold together.

[No. 54.]

Argued and Submitted Nov. 1, 1878. Decided Nov. 18, 1878.

part of the realty, and decreed it to be sold as such.

The grant of the water is a grant to the appellant and his assigns for twenty years.

The agreement does not attach the waterpower to the land, but that the grant is personal only or in gross.

Ang. Water-Courses, 7th ed., 1877, sec. 143, and cases set out in notes.

The cases of Goodrich v. Burbank, 12 Allen, 459; Lansdale Co. v. Moses, 21 L. R., 664; and Amidon v. Harris, 113 Mass., 59, there cited, are identical with the present, and the last two show that restriction as to place of use does not charge or make the easements appurtenant. See, also, Washb. Easements, marg. 10, 313. Mr. Charles M. Matthews, for appellee: The leading case of Elwes v. Maw, 3 East, 38,

The case is fully stated by the court.
Mr. F. W. Jones, for appellant:

A sale in mass is prima facie not within the deed; but to sustain such a sale, its justice and expediency must be shown.

Nesbitt v. Dallam, 7 Gill. & J., 512; Woods v. Monell, 1 Johns. Ch., 502; Stead v. Course, Cranch, 403; Jackson v. Newton, 18 Johns., 355; Ryerson v. Nicholson, 2 Yeates, 516; Rowley v. Brown, 1 Binn., 62; Berry v. Grif fith, 2 Har. & G., 337.

Indeed, a sale under this very deed was set aside by the court below, because it was a ing sale.

by the owner of the freehold for the benefit of the inheritance belongs to the heir, as against the executor, claiming the personalty, and in the comments thereon in 2 Smith's Leading Cases, 269, it is stated that whatever is essenapplied at the time when the question arises, tial to the particular use to which the realty is shall be considered a fixture, even when the connection between them is such that it may be severed without physical or lasting injury to both, citing: Lawton v. Salmon, 1 H. Bl., 259,

note.

Hill v. Shoemaker, 1 McArthur, 305.
In Voorhees v. McGinnis, 48 N. Y., 278, the

question of fixtures as between mortgagor and mortgagee is ably and elaborately examined, citing Potter v. Cromwell, 40 N. Y., 287; Capen v. Peckham, 35 Conn., 88; Voorhis v. Freeman, 2 Watts & S., 116; Pyle v. Pennock, 2 Watts & S., 390; Murdock v. Gifford, 18 N. Y., 28; Winslow v. Ins. Co., 4 Met., 306; Swift v. Thompson, 9 Conn., 63.

In Potter v. Cromwell (supra), the tests are declared to be: first, actual annexation; sec ond, the use or purpose of the application of the machinery; third, the intention to make the

NOTE.-Fixtures as between mortgagor and mort

gagee.

The same rules as to fixtures apply generally between mortgagor and mortgagee as between grantor and grautee and executor and heir. Main v. Schwarzwaelder, 4 E. D. Smith, 273; Burnside v. Twitchell, 43 N. H., 393; Thomas v. Davis, 76 Mo., 76; Longstaff v. Meagoe, 2 Ad. & E., 167; Buckley v. Buckley, 11 Barb. 43; Wadleigh v. Janvrin, 41 N. H., 503.

Fixtures annexed to the freehold, either before or after the execution of the mortgage, essential to its enjoyment, will pass by the mortgage, though not mentioned in it. Bond v. Coke, 71 N. C., 97; Wood v. Whelen, 93 Ill., 153; Longbottom v. Berry, 5 L. R. Q. B., 123; Union Bk. v. Emerson, 15 Mass., 159; Cole v. Stewart, 11 Cush., 181; Burnside v. Twitchell, 43 N. H., 393; Clore v. Lambert, 78 Ky., 224; Meriam v. Brown, 128 Mass., 391; Roberts v.

Kirwan v. Latour, 1 H. & J., 289; Powell v. Munson Mfg. Co., 3 Mas., 467; Buckley v. Buckley, 11 Barb., 43: McKin v. Mason, 3 Md. Ch., 186; Trull v. Fuller, 28 Me., 545; Corliss v. McLagin, 29 Me., 115; Winslow v. Ins. Co., 4 Met., 306; Walmsley v. Milne, 97 E. C. L., 7 C. B. (N. S.), 129; Hellawell v. Eastwood, 6 Exch., 295.

Mr. Justice Swayne delivered the opinion of the court:

Dauphin Dep. Bk., 19 Pa. St., 71; Southbridge Sav. Bk. v. Stevens Tool Co., 130 Mass., 547; Climie v. Wood, 3 Exch., 256; aff'd 4 Exch., 328; Mather v. Frazer, 2 Kay & J., 536; Cullwick v. Swindell, 3 L. R. Eq., 249; Metropolitan Soc. v. Brown, 28 Beav., 454: Lynde v. Rowe, 12 Allen, 100.

Hop poles used in the raising of hops upon a farm are covered by a mortgage of the land, whether they are upon farm when the mortgage was given, or were subsequently brought on to it. Sullivan v. Toole, 26 Hun, 203; Noyes v. Terry, 1 Lans., 222.

While the mortgage is in force, fixtures cannot be removed or disposed of by the mortgagor without the consent of the mortgagee. Wight v. Gray, 73 Me., 297; Bartholomew v. Hamilton, 105 Mass., 239.

While it is not possible to lay down any fixed rule as to what are fixtures, the following tests are in