QUESTION OF FIXTURES BOILER AND ENGINE. Where A leased a boiler and engine to B and B placed them, attached by bolts, timber and masonry, in a mill belonging to C, which B had in possession under an agreement that he might purchase it at a certain price within a certain time, and if he did not so purchase that all machinery put in it by him should belong to C, neither A nor C having any knowledge of the other's agreement with B; and upon B's default to purchase C took possession of the mill and claimed the ownership of the boiler and engine: Held, that he could not sustain his claim.

INTENTION AS CRITERION AS TO WHEN CHATTELS AFFIXED ARE REAL ESTATE. Chattels may be annexed to real estate and still retain the character of personal property; and of the various circumstances which may in general determine whether in any case this character is or is not retained, the intention with which they were annexed is one. QUESTION AS TO WHO IS A BONA FIDE PURCHASER WITHOUT NOTICE.

Where A

placed a mill in possession of B under an agreement that B might pur-
chase at a certain price within a certain time, and if he failed that all
the machinery placed in the mill by B should belong to A; and B after
placing certain machinery which he had leased from a third party in
it, failed to purchase and A took possession and claimed the machinery:
Held, that as between A and the third party, A was not a bona fide
purchaser without notice, but stood in the shoes of B.

Appeal from the Superior Court of El Dorado County.
George G. Blanchard, for appellant.

G. J. Carpenter, for respondent.

Ross, J., delivered the opinion of the Court:

This is an action to recover the possession of a certain steam engine and boiler, or their value. The case comes up on the judgment roll, and from the findings it appears that on the nineteenth of July, 1877, the plaintiff, being the owner, leased the property to one Lampson for the period of

two months from the first of August, 1877, the latter to pay for its use $283.25 on the first day of September, and a like sum on the first day of October, 1877, with the right on the part of Lampson to purchase the property from the plaintiff for one dollar, in the event he should keep all the covenants of the lease, but "until then he should have no right, claim or interest in or to said property, except as lessee, and subject to the conditions of said lease." Among the covenants of the lease was one to the effect that in the event the lessee should fail to keep any of them, the plaintiff should thereupon have the right to retake the property. At the time of making the lease the plaintiff knew that the engine and boiler were to be used by Lampson in working a mine situated about two miles from Diamond Springs, in El Dorado County. Situated upon this mine was a quartz mill, which, together with the mine, belonged to defendants. Prior to the making of the lease between the plaintiff and Lampson, the latter had entered into an agreement with the defendants looking to the purchase by him of the mill and mine, by the terms of which agreement Lampson was to take possession of the mill and mine, and was to sink a shaft on the latter, after doing which, and within a given period of time, he had the privilege of buying the mill and mine from the defendants at a certain price. The contract also provided that any and all machinery and tools put upon or used in the mill or mine should, in the event Lampson failed to purchase, become the property of the defendants.

In accordance with this agreement, Lampson, in August, 1877, took possession of the mill and mine, and thereafter placed the engine and boiler leased to him by the plaintiff in the mill, and proceeded to work and operate the mill and mine for about ten days, at and after which time he "abandoned and left said mill, mine and property, and abandoned his contract with defendants, and thereafter made no claim to hold, retain, work or operate said mill or mine, and abandoned all claim to purchase the same from defendants under said contract." In November, 1877, the defendants took possession of the mill and mine, including the engine and boiler, and have ever since retained possession thereof.

At the time of making the lease the plaintiff did not know of any agreement between Lampson and the defendants, and the latter never knew until after their possession in November, 1877, of the existence of the lease between plaintiff and Lampson. The engine and boiler were attached and affixed to the mill by Lampson "by means of iron bolts, timbers and masonry, in such a manner to become permanently

affixed to the mill, and could not be removed without destroying the masonry and stone wall, and greatly damaging some of the timbers of the mill," which latter (the mill) was permanently fixed and attached to the mine. After demand made, the defendants refused to deliver plaintiff the engine and boiler, hence the present action to recover them.

It is well settled, as said by the Court of Appeals of New York, in Tifft vs. Horton, 53 Ñ. Y. 380: "That chattels may be annexed to the real estate and still retain their character as personal property. (See Voorhees vs. McGinnis, 48 N. Y. 278, and cases there cited.) Of the various circumstances which may determine whether in any case this character is or is not retained, the intention with which they are annexed is one, and if the intention is that they shall not by annexation become a part of the freehold, as a general rule they will not. The limitation to this is where the subject or. mode of annexation is such as that the attributes of personal property can not be predicated of the thing in controversy (Ford vs. Cobb, 20 N. Y. 344), as when the property could not be removed without practically destroying it, or where it or part of it, is essential to the support of that to which it is attached." (Id.)

In the present case there can be no doubt that as between the plaintiff and Lampson the engine and boiler remained personal property, notwithstanding the fact that it was by him attached to the mill, for, as said in Ford vs. Cobb, 20 N.Y. 352: "They were not so absorbed or merged in the realty that their identity as person chattels was lost; and unless such an effect has been produced, there is no reason in law or justice for refusing to give effect to the agreement by which they were to retain their original character." (See also, Eaves vs. Estes, 10 Kansas, 314; Pierce vs. Emery, 32 N. H. 484; Haven vs. Emery, 33 N. H. 66; Curtis vs. Riddle 7 Allen, 185.)

The question remains, can they be so regarded in the hands of the defendants? How this would be if the latter occupied the position of bona fide purchasers, without notice, of the real estate to which the chattels were attached, need not be determined, for they are not in that position. They were all the time the owners of the property to which the engine and boiler were attached; and as such owners placed Lampson in possession of the mill and mine, with authority to work them, and under an agreement on his part to purchase, and with a stipulation that in the event he failed to do so, "any and all machinery and tools put upon or used in said mill or mine" should become the property of the de

fendants. Under these circumstances the latter must be held to stand in the shoes of Lampson, and the property in question treated as personalty in their hands as in his. (Smith vs. Benson, 1 Hill, 176; Tifft vs. Horton, 53 N. Y. 377; March vs. McKoy, No. 6390, July session.)

Judgment reversed and cause remanded, with directions to the Court below to enter judgment for the plaintiff on the findings.

CRIMINAL LAW-FAILURE TO Record VERDICT IN PRESENCE OF JUBY. Where in a criminal case the verdict was written in the jury-room and after the jury returned into Court was handed by the foreman to the clerk, who read it to the jury and they declared it to be their verdict; but it was not recorded in the minutes until after the jury was discharged; and the defendant, upon being called for sentence, moved for a judgment of acquittal and discharge: Held, that the motion was properly denied. PENAL CODE, SECTION 1164, AS TO RECORDING VERDICT IN PRESENCE OF JURY

-UNPREJUDICIAL IRREGULARITY. Though Section 1164 of the Penal Code requires the clerk immediately upon receiving a verdict to record it in his minutes, read it to the jury and ask if it is their verdict, and though therefore a failure to so record a written verdict before it is read and assented to and the jury is discharged is an irregularity; yet, unless it appear that defendant may have been prejudiced in respect to a substantial right, such failure is not fatal to the judgment. EMBEZZLEMENT-INARTISTIC VERDICT SUFFICIENT IN SUBSTANCE. On a prosecution for embezzlement: Held, that a verdict that "We, the jury, find the defendant guilty as indicted to the sum of $90. L. B. Adams, Foreman," though not artistically worded, was sufficient in substance.

Appeal from the Superior Court of Yolo County.

W. H. Grant, for appellant.

A. L. Hart, Attorney-General, for respondent.

MORRISON, C. J., delivered the opinion of the Court: The defendant was indicted in the Superior Court of Yolo County for the crime of embezzlement, and being tried upon such indictment, the result was a verdict of guilty.

The verdict was as follows, "We, the jury, find the defendant guilty as indicted to the sum of $90.

"L. B. Adams, Foreman."

This verdict was written in the jury-room, and was handed to the clerk by the foreman, after the jury had returned into the Court-room and were seated in the box. The clerk then read the verdict to the jury from a scrap of paper, which was handed to him by the foreman, and they thereupon declared that it was their verdict. The jury was then discharged by the Court from further consideration of the case. The verdict was not recorded by the clerk in the minutes until after the jury was discharged and had left the Court-room. When the defendant was called for sentence his counsel moved the Court for a judgment of acquittal and discharge. The Court denied the motion, and sentenced the defendant to imprisonment in the State prison. To this ruling and judgment the defendant duly excepted, and now prosecutes this appeal.

The motion for a judgment of acquittal was properly denied. (The People vs. Baza, 53 Cal. 690; The State of Iowa vs. Redman, 17 Iowa, 329.)

The only remaining question in the case is, whether this Court is called upon to reverse the judgment of the Superior Court for the irregularity complained of. It is very obvious that the proceedings in the case were not in strict conformity to Section 1164 of the Penal Code, which provides that "when a verdict is given such as the Court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case."

In this case the verdict, written by the foreman, was read to the jury, and thereupon the jurors all agreed that it was their verdict. Was the departure from the strict letter of the Code such as to require a reversal of the judgment? Our first impression was that the irregularity was fatal to the judgment, but a careful consideration of the question and of the provisions of the Penal Code, has led us to a different conclusion. If the clerk had first passed the verdict in his rough minutes and had then read it to the jury, the letter of the law would have been complied with; and it is difficult to see what additional weight or authority would have been given to the verdict by that proceeding. It is a matter of fact that the rough minutes of the clerk are often entered upon loose slips of paper, and from them they are tran