sist her in removing the property, the title to which was in him, though he could not dispose of it without her assent.

2. The court correctly rejected the testimony as to what Mrs. Burns said when the property was being removed. The witness saw the defendant and his brother loading the property on a sleigh, and had a conversation with them, to which he had testified. He had not testified to any conversation with Mrs. Burns. Defendant sought to elicit this conversation on the cross-examination of the witness. Plaintiff was not present, and nothing that she then said could have justified the defendant's action.

3. Mrs. Burns was a witness for the plaintiff, and had testified to the conduct of the defendant on the occasion, and that he had kicked over the table and broken the dishes, when the court remarked, "To save the property, I suppose, for his sister." Even if the remark were error, I do not think

it so prejudicial, under the facts in this case, as to justify a reversal. The only question left to the jury was the assessment of damages.

Judgment affirmed.

TRESPASS, WHAT CONSTITUTES. - Any unlawful interference or exercise of dominion with respect to the property, by which the owner is damnified, is a trespass: Phillips v. Hall, 8 Wend. 610; 24 Am. Dec. 108; Haythorn v. Rushforth, 19 N. J. L. 160; 38 Am. Dec. 540. In trespass all are liable who participate in the wrongful act, either by aiding in, advising, or assenting to it: Ross v. Fuller, 12 Vt. 265; 36 Am. Dec. 342; Brittain v. McKay, 1 Ired. 265; 35 Am. Dec. 738; State v. Smith, 78 Me. 260; 57 Am. Rep. 802. To establish the liability of party in trespass, committed by more than one, it is only necessary to show that he participated in the wrong done: Allred v. Bray, 41 Mo. 484; 97 Am. Dec. 283; or that he was present at the commission of the trespass, and in some way countenanced or approved the same: McMannus v. Lee, 43 Mo. 206; 97 Am. Dec. 386.

CROSS-EXAMINATION OF WITNESS. - A defendant has no right to crossexamine plaintiff's witness as to matters of defense which have no dependence upon or necessary connection with his direct testimony, but the defendant must make the witness his own witness as to such testimony: Mitchell v. Welch, 17 Pa. St. 339; 55 Am. Dec. 557. Witness may not be asked, on cross-examination, a question which does not tend to rebut, impeach, modify, or explain any of his testimony: Atchison etc. R. R. Co. v. Gants, 38 Kan. 608; 5 Am. St. Rep. 780. But cross-examination as to new matter, when it is part of the res gesta, is allowable: Bank v. Fordyce, 9 Pa. St. 275; 49 Am. Dec. 561.

LANSING IRON AND ENGINE WORKS v. Walker.

[91 MICHIGAN, 409.]

FIXTURES-CONDITIONAL SALE.

When a portable saw-mill is sold to the owner of an undivided interest in a farm, with permission to the vendee to take and use the mill thereon and in adjacent townships, the vendor retaining the title and right of possession until the mill is fully paid for, and the vendee, after making part payment, sets up the mill on his farm, bricking in and arching up the boiler, setting the engine on brick-work and bolting it thereto, roofing the engine and boiler, but leaving the mill aad carriage uncovered, they do not thereby become fixtures so as to pass as such to a subsequent purchaser of the farm. After a refusal to pay the remainder of the purchase price, he is liable in trover for the mill.

Thomas E. Barkworth, for the appellant.

Cahill and Ostrander, for the respondent.

MCGRATH, J. In November, 1886, plaintiff and one Myers entered into a written contract, by the terms of which plaintiff agreed to sell to Myers "one stationary Standard sawing rig, complete, which includes one 30-horse-power engine, 10 x 16; No. 5 boiler, with throttling or automatic governor, whichever is considered best, with all boiler fixtures; Standard mill, complete, with 54-inch planer, saw, belting, pipes, and connections, etc.; and one picket-mill, with 36-inch solid saw, with friction feed, etc., rigged for cutting pickets, in. and up, with proper shafting and pulleys, to run with or without the above Standard saw-mill. Said machinery to be ready for delivery at the Lansing Iron Works, Lansing, Mich., on or about the 28th day of November, 1886. . . . . It is further agreed that the title and right of possession of the aforesaid machinery shall remain in the above first party until the price is paid in full, according to the notes accompanying this contract, when the same shall vest in the party of the second part. But it is also agreed that the second party may take said machinery, when completed and delivered, and run the same in the township of Sandstone, county of Jackson, and in adjacent townships, and retain and use it so long as he takes reasonable care of the same, and is not in default in any of his payments as herein provided."

Payments were to be made under said contract, $150 on or before the delivery of the machinery, $350 on or before June 1, 1887, and the balance in two annual payments.

Myers paid the $150, and the machinery was delivered to him. He owned an undivided interest in a farm in the town

ship of Sandstone, to which he removed the machinery, and set it up. The boiler was bricked in and arched up, and the engine was set upon brick-work, and bolted down to the foundation. The boiler and engine were covered over, a part with a board roof and a part with a shingled roof. The sawmill and carriage were uncovered. In February, 1888, Myers conveyed the farm by quitclaim deed to the defendant, and trover is brought by reason of the refusal to pay the balance due plaintiff under the agreement between plaintiff and Myers. The court directed a verdict for plaintiff for the amount of the balance, and defendant appeals.

Defendant contends that the case should have been submitted to the jury upon the question of fact raised by the testimony as to whether the purchase made by defendant from Myers was one made in good faith for a valuable consideration, and without notice of any claim of the plaintiff against the property purchased.

The case is ruled by Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Mich. 777.

In Adams v. Lee, 31 Mich. 440, the court say: "All the time, therefore, the parties have had title to the machinery distinct from their title to the land, and this fact of itself is conclusive that the former was personalty; for, to constitute a fixture, there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would of necessity convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter cannot render the former a fixture, when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and as to another undivided interest be personalty. It must be the one thing or the other. And the position which is taken by Lee in this case involves this absurdity: that Kaufman, at the time when he and Kinney were severally the owners of an undivided half of the land, might have sold that, and, as a necessary consequence, transferred an undivided one half of the machinery also, though the whole of the machinery belonged to Kinney

as exclusive owner. This would be the necessary result if the machinery was real estate; for there could be no such a thing as attaching it to an undivided interest in the land only."

In Morrison v. Berry, 42 Mich. 389, 36 Am. Rep. 446, the ownership of the land and of the thing affixed was in one and the same person. It was there held that the annexation of the thing to the freehold was not the wrongful act of the landowner, but that, by act and intervention of the claimant, the article became a part of the freehold.

In Knowlton v. Johnson, 37 Mich. 47, T. owned the land and mill. S. was the lessee. The water-wheels were a part of the structure. Plaintiffs furnished the water-wheels to S., with the understanding that they were to be put in the mill, and there used; and against the objection of T., the old wheels were taken out and the new put in. Six months afterwards, S. surrendered his lease, and T. leased to M. T. finally sold the mill property to defendant, and plaintiffs brought trover. The court say: "The plaintiffs deliberately agreed that the water-wheels should be converted in all outward appearance into real property, and they thereby put it in the power of Trimmer to make sale of the wheels as part of the mill."

In the present case, the contract of sale provided for the use of the machinery, not only in the township of Sandstone, but in adjoining townships. Myers was not the sole owner of the land upon which it was placed, but he was sole owner of the interest in the machinery, and operated it solely in his own. behalf. The structure covering the boiler and engine was but a temporary one. The machinery in question did not consist simply of a pulley, shaft, or wheel which was to be attached to other machinery already a part of a saw-mill, and as such a part of the realty, but it was a complete outfit, designed by the agreement to be portable. There was nothing done by plaintiff indicative of an intent to permit the machinery to be so annexed to realty as to change its character. The state of the title to the realty, and the conduct of Myers regarding the machinery, negatived any intent on his part to allow his interest in the machinery to be absorbed by the owners of the realty, or to permit it to be merged. The circumstances of the purchase by defendant clearly indicate that he took the entire interest in this machinery, while he took but an undivided interest in the realty. He afterwards operated the machinery as sole owner.

It was held in Wheeler v. Bedell, 40 Mich. 693, 696, that there is no universal test by which the character of what is claimed to be a fixture can be determined in the abstract; neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned.

In Coleman v. Stearns Mfg. Co., 38 Mich. 30, 40, the court, commenting upon a line of authorities which seem to regard the manner of the attachment to the realty as the test, say: "This, however, is a very extreme view, and is hardly compatible with the tenor of our own previous decisions. It seems to overlook or ignore one test, and frequently the most important test, namely, the intent of the party making the annexation." See also Manwaring v. Jenison, 61 Mich. 117.

The judgment is affirmed.

FIXTURES, WHAT ARE: See monographic notes to Hunt v. Mullanphy, 14 Am. Dec. 303, 304; Gray v. Holdship, 17 Am. Dec. 686-696. As to what are regarded as fixtures so as to pass in a conveyance of the realty, see discussion at the close of the opinion in Wadleigh v. Janvrin, 41 N. H. 503; 77 Am. Dec. 780. As to tests for determining what are fixtures, see notes to Lavenson v. Standard Soap Co., 13 Am. St. Rep. 153–156 (between mortgagee and purchaser); Hopewell Mills v. Taunton Sav. Bank, 15 Am. St. Rep. 239 (between mortgagee and purchaser); Roseville Alta Mining Co. v. Iowa Gulch Mining Co., 22 Am. St. Rep. 376 (execution sale). By the term "fixture," in its legal sense, is meant something so attached to the realty as to become, for the time being, a part of the freehold, as contradistinguished from a mere chattel: Carlin v. Ritter, 68 Md. 478; 6 Am. St. Rep. 467. Physical annexation to realty is not, without more, sufficient to change the character of personal property from a chattel to a fixture; the intention of the parties and the uses to which it is put are material factors in the determination of the question: Atchison etc. R. R. Co. v. Morgan, 42 Kan. 23; 16 Am. St. Rep. 471. As between vendor and vendee, articles of personalty affixed to the freehold pass by deed to the latter, and the intent of a vendor in placing a saw-mill, engine, and boiler upon land which he subsequently conveys is not competent to vary the terms of the deed: Horne v. Smith, 105 N. C. 322; 18 Am. St. Rep. 903. Fixtures become part of the realty so as to pass to a bona fide purchaser thereof, who has no notice of the interest of a third person therein: Tibbetts v. Horne, 65 N. H. 242; 23 Am. St. Rep. 31. The decision of the court in the principal case would probably not be followed in a good many states; but there is no lack of precedents to support the view adopted: See, for example, Hendy v. Dinkerhoff, 57 Cal. 3; 40 Am. Rep. 107; Hunt v. Mullanphy, 1 Mo. 508; 14 Am. Dec. 300. In the latter case, it was held that boiler situate in a house on mortgaged premises, made of copper, and built into a furnace erected for that purpose, but capable of removal without injury to the building, was not a fixture, as between mortgagor and mortgagee The conflict of opinion as to what are to be deemed fixtures, when the question arises between vendor and vendee, will, we think, be found to be due to the difficulty there is in deciding what weight is to be given to the intention