UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT.

ERROR to the Circuit Court of the Unit- plaintiff is entitled to recover such damages

The facts are stated in the opinion. Messrs. J. L. Martin and 0. M. doers, all are jointly and severally liable Barber for plaintiff's in error.

Exemplary damages are given on account of the bad spirit, malice, and wantonness of the defendants, as manifested by their acts, and are recoverable under common allegations of damages.

Hoadley v. Watson, 45 Vt. 289, 12 Am. Rep. 197; Earl v. Tupper, 45 Vt. 275.

N. E. 498; Vandiver v. Pollak, 54 Am. St. | sales, attachments, or executions, as if it Rep. 118, and note, 107 Ala. 547, 19 So. had been actually removed and taken into 180. the possession of the officer." Or the ofAll are liable for exemplary or punitive ficer "may remove the [personal damages. property attached] and take it into his posDevine v. Rand, 38 Vt. 621; Edwards v. session, in which case he need not leave a Leavitt, 46 Vt. 126. copy of the attachment or execution in the clerk's office." Vt. Stat. §§ 1101, 1103, 1108. On April 10th Giddings went to the mill, found one Nadeau, plaintiffs' superintendent, in charge, explained to him what his business was, and showed him the writ. He told Nadeau that, in order to make said attachment upon the personal property, it was necessary to take possession of the mill, and asked Nadeau to assist him in getting things into shape, as he wished to take possession some time during that day. To this Nadeau assented. A memorandum was made by Giddings of the property to be attached. He made a copy of the writ, and indorsed upon it a list of the property attached by him,-derricks, movable machinery, finished and unfinished marble, etc., and arranged with Nadeau for the latter to act for him as keeper of said property. No effort was made to remove any of the personal property.

When both compensatory and exemplary damages are claimed in a suit instituted for tort against several defendants jointly, and all join in their pleas, it is proper to assess damages against all jointly.

Watson, Damages, § 736; Reizenstein v. Clark, 104 Iowa, 287, 73 N. W. 588.

The motives of the party must be determined by their acts, and, when they are both engaged in the same act, the malicious motives of one party are not different from those of the other, and would not tend to enhance the damages of the other.

Cleghorn v. New York C. & H. R. R. Co. 56 N. Y. 44, 15 Am. Rep. 375; Lombard v. Batchelder, 58 Vt. 558, 5 Atl. 511; Boutwell v. Marr, 71 Vt. 1, 43 L. R. A. 803, 76 Am. St. Rep. 746, 42 Atl. 607.

Lacombe, Circuit Judge, delivered the opinion of the court:

On Saturday, April 12th, Nadeau telegraphed Giddings that he wanted to be released as keeper of said property, and on the following day declined to continue as keeper, and surrendered the keys to Giddings, who had come to Dorset in response to the telegram. The latter fastened up the doors of the mill, including engine house and boiler house, by nailing strips of board across them. He removed none of the property, put no one in charge, and left it boarded up as described.

The plaintiffs, citizens and residents of Pennsylvania, owned a marble mill operated by steam, and a quarry connected therewith, all in Dorset, Vermont. On April 8, 1902, a writ of attachment in favor of one Gilman B. Wilson, of Dorset, against the senior plaintiff, William G. On the next day plaintiffs, without GidFreedley, was duly issued, in which dings's knowledge or consent, knocked off the ad damnum was $12,000. This the strips of board, entered the premises, writ was seasonably placed in the hands of defendant Giddings, of Manchester, a constable having authority to serve the same. Under the laws of Vermont, such an attachment can be served upon real property only by delivering a true and attested copy of such attachment, with a description of the estate attached, to the party whose estate is so attached (or leaving same at his place of abode), and by filing the same in the office where by law a deed of such real estate is required to be recorded. In Dorset such office would be that of the town clerk. In the case of personal property the writ of attachment may be executed in either of two ways. The officer serving the process may lodge a copy of the same, with his return, in the town clerk's office, "which lodgement shall hold the property against all subsequent

and proceeded to operate the mill, which fact was at once made known to Giddings by Gilman S. Wilson. Giddings went again to the mill on Tuesday, April 15th, and had an interview with Nadeau. Giddings's version of the interview is that Nadeau stated he intended to hold the property by force, that he had help enough to defend it, and would throw Giddings into the brook if necessary. Nadeau denies that he said anything of the sort, although he admitted that he refused to give Giddings possession of the mill. Our attention is called to no provision of law which authorized the attaching officer to take possession of the real estate. Under the verdict of the jury, all disputed questions of fact are to be considered in this court as resolved against the defendants. The next day Giddings called on the de

which latter is the immediate source of power on which the various steam-driven machines and working devices are entirely dependent for their operation.

fendant Henry S. Wilson, of Arlington, | by which power generated on the engine high sheriff of the county, to assist him in shaft is transmitted to the main shaft, executing the attachment. Having consulted with a firm of lawyers, the two defendants went to the mill on April 17th, and it is their joint action on that day which is the subject of this action. Freedley and Nadeau were both present, and the mill was in operation. Giddings testified that he repeatedly requested that the mill should be shut down, and the attached property surrendered to him as attaching officer, and that upon Nadeau's continued refusal he notified him that he would shut down the mill and the main belt. Nadeau's story is that he never objected to the officers taking away or moving or taking hold of any of the personal property that was on the list, and that he told them "if they took the main belt they would have to take it by force; they would have to use force, and stop the engine themselves." Evidently the jury believed Nadeau's version to be the correct one; not unnaturally, since both officers admitted they entered the premises with the intention to remove the main belt, well knowing that would have the effect of shutting down the mill. Upon Nadeau's refusal to shut down the mill and deliver up the main belt, Giddings broke open the doors that led into the boiler room and into the engine room, and the defendant Wilson, under the direction of Giddings, then cut the lacing of the belt, and Giddings caused it to be carried away. Thereupon the officers left without removing, or undertaking to remove, a single item of the personal property they claimed to have attached.

The first question raised on this appeal is whether the main belt was personal property. If it were, defendants were protected by their writ; if it were not, they were trespassers.

The plant was operated by a 80-horsepower steam engine and two boilers, which were located in a room attached to the mill building. The engine was set on a solid foundation of masonry, composed of stone and brick, 3 or 4 feet high, which was called the engine bed. Underneath this bed, and resting on the earth, were anchor stones to which the engine was fastened by iron rods running through the bed, and through the anchor stones, for the purpose of holding the engine immovable on its bed. The engine was connected with the main-line shaft by the main belt, above referred to. This was a double leather belt, 24 inches in width and several feet in length. It extended from the drive wheel of the engine to a pulley on the main-line shaft. The engine had no fly wheel or balance wheel. The belt is the sole means

The question is to be determined, not as it would be under the rules which public policy requires to be laid down when a tenant, for the use of his own business, has put mechanical appliances in his landlord's building, but under the rules which apply as between vendor and purchaser. In Newhall v. Kinney, 56 Vt. 591, the court held that "a levying creditor, in the eye of the law, is a purchaser of the property set off to him in satisfaction of his debt against the judgment debtor," and that an attachment of the debtor's real estate, followed by a levy upon a "sawmill," includes a circular sawmill, which is in and constitutes a part of the sawmill. The court says: "The simple fact that the circular sawmill might be removed and another substituted in its place, without material injury to other parts of the building, is not determinative of whether it was intended to pass to the purchaser, or to a party who stands in the relation of a purchaser, upon a conveyance of the property. Such removal and substitution can be made of almost any other part of a sawmill, of the doors, windows, water wheel, sills, ridge pole even. But when once fitted up with these, or with a circular sawmill, the removal thereof without a substitution takes away an essential part of the sawmill, and the purchaser

would fail to receive the property which he bargained for under the description 'sawmill.'”

The case of Kendall v. Hathaway, 67 Vt. 122, 30 Atl. 859, where a circular sawmill so attached that it could be readily removed was held to be personal property, is not in conflict with Newhall v. Kinney, because in the later case the circular sawmill was put in a building which had been erected on land already covered by a mortgage, under circumstances which the court found evidenced an intention to keep it in the building "only so long as the owners might desire." In Winslow v. Merchants' Ins. Co. 4 Met. 306, 38 Am. Dec. 368, the court held that a steam engine and boilers, and all the engines and frames adapted to be moved and used by the steam engine, by means of connecting wheels, bands, or other gearing, as between mortgagor and mortgagee, are fixtures or in the nature of fixtures, and constitute a part of the realty. After pointing out that the mode of attachment is "far from constituting the criterion" by which to dispose of the question, the court says: "The difficulty is

somewhat increased when the question the machinery, or whether, as is the case arises in respect to a mill or manufactory, ordinarily, it could not be disengaged from where the parts are often so arranged and the drums and shafts altogether, without adapted, so ingeniously combined, as to be removing some of the permanent parts or occasionally connected or disengaged, as attachments of the mill, or by disuniting the objects to be accomplished may require. the belts by removing the thongs by which In general terms, we think it may be said the ends are usually fastened together, the that when a building is erected as a mill, case does not show. But when a mill of and the waterworks or steamworks which any kind is constructed so as to make belts are relied upon to move the mill are erect- necessary, in order to run the mill, they ed at the same time, and the works to be would seem to be a part, and as essential driven by it are essential parts of the mill, a part as any other, of the mill. Some adapted to be used in it and with it, gristmills are constructed in this way, with [they] are yet parts of it [the a belt attached to the main shaft and conmill], and pass with it by a conveyance, nected with each run of stones, another mortgage, or attachment." to the bolt, another to the smutmill, etc.; others are constructed with a large cogwheel, with other smaller cogwheels, that can be thrown into it or upon it, to carry each of the other several parts of the machinery. In one case the drums and belts perform the same office that the wheels and gearing do in the other. The belting is as necessary as the drums, and both are as necessary in one case as the cogwheels are in the other, one of which might be removed, perhaps, with as little trouble as the other. Why, then, should the cogwheels be considered as a part of the mill, and the belting not be so considered?"

This case is cited with approval in Hill v. Wentworth, 28 Vt. 428, where the court says: "The iron shafting put up in the building for the purpose of turning and putting in motion the machinery

we are disposed to regard as a constituent part of the mill. The shafting was necessary to communicate the motive power to the machinery, and should be regarded as a part of the mill as much as a water wheel by which a water power is called into existence."

To the same effect is the following excerpt from Harris v. Haynes, 34 Vt. 220: "Understanding . . the object and purpose of the annexation of the engine and its adjuncts to the realty to have been the furnishing of motive power to the machinery of the shop, and having reference to the manner in which they were fitted and adapted to the shop and the business there carried on, we are of opinion that" the engine and boilers, arch mouth and grate, and certain shafting and pulleys were fixtures. In Keeler v. Keeler, 31 N. J. Eq. 190, it was held that the "machinery and apparatus for furnishing motive power" were a part of the realty. "The steam engine is securely and permanently bolted to a foundation, and it was put in for permanent use. It, with its appurtenances, is part of the realty, and so are the boilers, which are a necessary adjunct to it; also the shafting, belting, coupling, and pulleys to communicate the power; and also the water wheels and water-wheel governor."

We are entirely in accord with these propositions, and do not find anything in the cases cited to us from the Vermont Reports which would prevent their application in the case at bar. It is conceded by defendants that the engine which supplies the motive power for the mill is real estate, and the belting by means of which such power is transmitted from the engine to the main shaft is certainly an adjunct of the engine. Without it or its equivalent the engine would not discharge the funetion for which it was erected,—it would not supply motive power to the mill. It would hardly be contended that, if the power were transmitted by.cranks, or by a pitman, or by a train of gearing, such devices were not fixtures; and there is no sound reason for reaching a different conclusion when the transmitting device is a leather belt. We conclude, therefore, that defendants had no right to seize and remove the main belt as personal property under the writ.

The precise question now presented was considered in Burnside v. Twitchell, 43 N. Defendants next assign as error that "the H. 394, where the court says: "The belt- court did not correctly instruct the jury ing, also, of a mill runs from the large on the subject of exemplary damages." wheel connected with the motive power Reference to the brief shows that it is conover a drum upon the main horizontal tended that two propositions should have shaft, upon which are various other drums, been called to the attention of the jury, upon which are belts connected with the viz.: (a) That, "when defendant acts on various distinct portions and parts of the the advice of counsel in the commission machinery. Whether the belting could be of the act complained of, such fact should removed whole without removing any of be considered on the question of exem

plary damages;" and (b) that, "where | on all the property. The defendants filed the only evidence of malice is the presump- no copy, and thus made no effort to secure tion which arises from the mere doing of the real estate. Out of the personal propan unlawful act, if it is shown that the erty they seized and removed only the main defendant acted in good faith, and on the belt, worth less than $20. The defendant advice of counsel, exemplary damages are Sheriff Wilson admitted that ordinarily he not recoverable." The trial judge was not would have looked up the title to the real requested to charge either of these propo- estate and attached that by filing copy, and sitions, nor, indeed, did defendants ask for that in the ordinary course of serving a any instructions whatever on that branch writ he would not have removed the main of the case. The court charged the jury at belt. The defendant Giddings had a consome length on the subject of exemplary versation with Wilson, who sued out the damages, telling them that if they found attachment, and after that conversation the purpose was to shut down the mill in- went to the mill with the intention of restead of making a fair attachment; to op- moving the main belt. Both defendants took press Freedley & Son by taking an un-legal advice before they seized the belt, but fair advantage of them; if defendants' ac- the lawyers they consulted were the counsel tion was high-handed and oppressive, and of the attaching creditor, who told them done with a wrong purpose to do damage to remove the belt. Both knew perfectly unlawfully, the jury might add what was well that their seizure of the belt would right to the damages by way of example. effectually shut down the mill, and entail The only exception reserved to this part of a loss far in excess of the $20 they secured the charge was "to the instructions on the thereby. They admit that ordinarily they question of exemplary damages, and to the do not require a bond of indemnity from instruction that exemplary damages may the attaching creditor where there is no be recovered in this case against both de- question as to the ownership of the properfendants." The first part of this exception ty they are about to levy on, but that, is too indefinite. It is not contended that when the circumstances are "rather peculthe charge on this branch of the case was iar,-out of the ordinary," they do rewholly erroneous. Manifestly no such con- quire such security. They quite wisely tention could be made, for the doing of an concluded that the circumstances of this illegal act with a wrong purpose to do dam-case were rather peculiar, and, before electage unlawfully would certainly support a ing to seize a $20 leather belt for a $12,000 claim for exemplary damage. Where a sin- claim, instead of filing a copy in the clerk's gle exception covers several distinct p:opo- office, Giddings asked Wilson, of Dorset, sitions collectively it is inoperative, if one for a bond of indemnity, which was given; of the propositions is sound. The defend- thereupon the latter "told [him] what to ants should have called the court's atten- do," and he did "just what he told [him]." tion to the particular propositions com- Comment is superfluous. plained of, and, if it were thought the instructions should be made fuller, have stated precisely what they wished to have charged. The exception, however, sufficiently raises the question whether the evidence warranted the jury in giving exemplary damages.

Defendants reserved an exception to this excerpt from the charge: "Freedley had a right to have his property there undisturbed except by due process of law. If this man living there [Wilson, of Dorset], thought he would oppress Freedley a little by attaching in this way, when he might have done it in another way, and not interfere with his business so, you shold add whatever you think is about right."

It appears that defendants had no personal acquaintance with Freedley, and had no ill-will towards him. Nevertheless, if they willingly and knowingly allowed them- It is contended that this instruction alselves to become the tools of another per- lowed the jury to punish defendants for son, whose object was apparently malicious, the attaching creditor's wrong, when they and carried out an unlawful act in a high- can only be punished for their own acts. handed and oppressive way, the jury would But the charge must be considered as a be entitled to find their conduct malicious, whole, and we are satisfied the jury could and to punish it by assessing punitive dam- not have been misled by this part of it. ages. The evidence quite clearly shows It was the acts of the defendants—“pethat this was just what they did, and we culiar and out of the ordinary”—in assistneed not look beyond their own admissions ing the attaching creditor to oppress the for proof. The real estate was valuable plantiffs, when as intelligent men they and unencumbered. There was personal must have known his object, which were property worth several thousand dollars. left to the consideration of the jury. The mere filing of a copy in the town clerk's office would have effected a levy

Exception was taken to instructions which allowed the jury to include damages