scionable in the city's acceptance of the taxes might, at his option, consider and treat the and in retaining them.

plaintiffs as tenants at will; and after thirty days notice enter and repossess himself of the premises.

Most of the machinery in contention was then in the buildings. It had been put there by former tenants, from whom it was purchased by the plaintiffs at the date of their lease, at the instance of the defendant. After taking possession the plaintiffs put in other machinery of the value of several hundred dollars.

It is said the plaintiff had not had its day in court. True it had not. The taxes were not laid against it, nor its property. It did not propose to attack the validity of the assesment. In several of the cases cited the party had had no day in court. No hearing or opportunity of being heard, yet he might have had it before | making payment by appropriate action. Failing to avail himself of it, he waived his rights. So here by application to the equitable powers On the 3d of August, 1878, the plaintiffs were of the court or by bill in equity execution might duly adjudged bankrupts by the United States have been staid, and the claim removed from District Court. On the 6th of September followthe record. No immediate and urgent neces-ing, assignees of the bankrupts were duly chosity existed for the payment of the taxes to pro- sen. They threatened to sever and dispose of tect the property of the plaintiff. Its goods the fixtures. Thereupon the defendant petiwere not about to be seized. The execution | tioned the said court averring, inter alia, the could not take from it the possession of the non-payment of a large amount of taxes and land, nor could a sale if made, have had such premium on insurance, and of the $450 due on effect. It follows that all the facts in the case the 1st of September. And that he had given are clearly insufficient to enable the plaintiff to notice of his election to treat plaintiffs as tenants maintain this action, and the learned judge was at will, and on the expiration of thirty days correct in so holding. from the date of said notice, he would re-enter and repossess himself of the premises. therefore, prayed for an order restraining the assignees from removing or selling any of the machinery, and from exercising any control or ownership over the premises. In answer thereto the assignees, inter alia, substantially said, they had not, and did not intend to use or occupy any of the buildings, shops and premises, further than to take therefrom all personal property belonging to the bankrupt firm, and they did not believe it to the advantage of creditors to continue the lease; and that said premises remained closed as they found them on the day of their appointment as assignees. They denied the non-payment of taxes and premiums on insurance, but admitted that the $450 due for rent on the 1st of September had not been paid, and they claimed the right to remove the machinery.

Judgment affirmed.

SHARSWOOD, C. J., GORDON and TRUNKEY,
JJ., dissent.

For plaintiff in error, Thos. C. Lazear, Esq.
Contra, W. B. Rodgers, Esq.

DARRAH et al. v. BAIRD.

Trover will not lie against the owner of the freehold, who
has taken possession of the premises, for fixtures at-
tached by a tenant.

Fixtures are not goods and chattels for all purposes.
They are not unless made so by the tenant's severance,
or for the benefit of his execution creditors. While
they remain attached they are part of the freehold.
An agreement between landlord and tenant that the
latter may remove fixtures at the end of his term does
not either permit him to do so thereafter nor to main-
tain trover against the landlord.

Error to the Court of Common Pleas, No. 2, of Allegheny county.

He,

On the 24th of September, upon hearing the Opinion by MERCUR, J. Filed November 20, petition and answer, and by consent of parties, 1882.

it was ordered that the assignees surrender and deliver up immediate possession of the premises, together with the machinery, to the defendant, Baird, on his giving bond conditioned for the

This action is to recover the value of fixtures on land of the defendant. The main question is, whether the action of trover will lie. The controlling facts are briefly these: The defend-forthcoming of the machinery upon the determant let to the plaintiffs a lot on which were a box and a keg manufactory, for the term of three years from the 1st of September, 1877. They agreeing to pay all taxes thereon during the term, and the premiums for insurance on the property, and a further rental of $150 per month payable quarterly, with a provision in case of a failure to pay either, that the defendant

ination of the right of property therein against him. He gave the bond and took possession of the premises with the machinery therein, and retained the same. In December, 1878, under a decree of composition with their creditors the plaintiffs were, by a decree of court, restored to their rights of property, under the assignees.

The question was referred to the register in

Brewer v. Fleming, 1 P. F. Smith, 102.

bankruptcy, who took testimony and reported | Harris, 507; Clement v. Wright, 4 Wright, 250; the right of property in the machinery to be in Baird, and the District Court so deereed. On appeal to the Circuit Court, the proceedings were dismissed for want of jurisdiction.

Under the proceedings in bankruptcy all right and interest of the plaintiffs to and in the premises and fixtures passed to the assignees on It may be conceded that the machinery bought their appointment. A few days thereafter they by plaintiffs of the previous tenants, as well as averred of record that they had not used, and that afterwards put in, all sustained the same did not intend to use or occupy the buildings or relation to the realty. They all became fixtures. premises, further than to remove therefrom, the There is some evidence indicating the defend- personal property of the bankrupts. They then ants had, in fact, taken possession of the prem- consented that the court make an order for them ises prior to the 1st of September, 1878, as the to deliver up, inter alia, immediate possession plaintiff's gave evidence that they demanded of the premises to the defendant. He then took the machinery on that day, and it was refused. legal possession of the premises, of which he This was nearly a month after they were decreed appears to have had actual before, and has conbankrupts and while the decree was in full force. tinuously retained it since. The fact that the If defendant was not in possession why was right of property in the machinery was afterdemand made of him? It is a well settled rule wards to be determined did not affect the unof law, that a tenant for years who erects fix-conditional surrender of the premises to the detures for the benefit of his trade or business | fendant, with its legal incidents. When by may, at any time during the term, remove them from the demised premises; but cannot after the expiration thereof, unless he remain in possession and hold over, so as to create an implied renewal of the lease: Davis v. Moss, 2 Wright, 346. The question now presented is this: Does the refusal of the owner of the premises, after he has taken possession thereof, to permit the former tenants to remove the fixtures which they have attached to the premises during the term, enable the latter to maintain trover against the owner of the freehold?

Trover lies for the conversion of goods or personal chattels. It does not lie for fixtures eo nomine, 1 Chit. Plead., 146. Title to land cannot be tried in such action when the plaintiff is not in possession. It does not lie for property severed from the realty, against one who has an actual adverse possession under claim of title: Mather v. Trinity Church, 3 S. & R., 509; Brown v. Caldwell, 10 Id., 114; Powell v. Smith, 2 Watts, 126.

If fixtures, which the tenant might remove during his term, be suffered to remain after its expiration, they become inseperable from the freehold. They cannot afterwards be recovered | by the tenant as personal chattels by action of trover against his landlord: White v. Arndt, 1 Wharton, 91; Davis v. Moss, supra; Overton v. Williston, 7 Casey, 155.

decree of court, the plaintiffs received the property from their assignees, they acquired no other or greater interest than the assignees then held. If the latter could not have recoverd the machinery by action of trover, the plaintiff's cannot.

Fixtures are not goods and chattels for all purposes. They are not unless made so by the tenant's severance, or for the benefit of his execution creditors. While they remain attached, they are part of the freehold: Minshall v. Lloyd, 2 M. & W., 450; Mackintosh v. Trotter, 3 Id., 184; Overton v. Williston, supra.

The fact of an agreement between landlord and tenant that the latter may remove fixtures at the end of his term, does not either permit him to do so thereafter, nor enable him to maintain trover against the owner of the premises in case of his refusal to permit their removal: Minshall v. Lloyd, supra; Overton v. Williston, supra. If the plaintiffs have any right of action it is not in this form. The learned judge, therefore, committed no error in holding the action of trover does not lie.

Judgments affirmed.
For plaintiffs in error, Messrs. J. Charles
Dicken and John S. Ferguson.
Contra, Messrs. Hampton & Dalzell.

Court of Common Pleas, No. 1.

IN EQUITY.

THE PITTSBURGH COAL RAILROAD COM

The owner of the freehold in actual or constructive possession may maintain trover against a tort feasor, who has no right of possessoni but enters only casually or temporarily and severs and removes property therefrom; yet a tenant after the expiration of his term cannot main- The board of directors of a corporation has a right to in

tain such action against his landlord: Wright

v. Guyer, 9 Watts, 172; Harlan v. Harlan, 3 |

PANY v. THE PITTSBURGH SOUTHERN
RAILWAY COMPANY.

stitute a suit and to consent to the discontinuance of it, provided the record when made up does not prejudice, unlawfully, the stockholders.

If the basis of the discontinuance or settlement of the case is an unlawful contract by which the rights of the

corporators or stockholders is affected, they have a remedy in equity against the corporation. The minority of a board of directors or the stockholders cannot control the litigation of the company in opposition to regular corporate action by the board of directors.

questioned that "directors have no power to give away the funds of the corporation, or to deprive it by its means to accomplish the full purpose for which it was chartered: " Bedford Railroad Co. v. Bowser, 48 Pa. St., 29. But none of these principles affects the question raised by this proceeding. The petitioner must be held to the facts set forth in his petition and upon the rule to show cause as granted. There is no question raised then [nor indeed do I think there could be] as to the propriety or impro

Bill in equity to restrain the defendant from taking and occupying a location made by plaintiff of its road through Streets Run Valley. After the filing of the bill, counsel for plaintiff and defendant agreed that the bill might be dis-priety of the terms or agreement which was the missed at the costs of the plaintiff. In the meantime the defendant road had been sold to the Baltimore & Ohio Railroad Company. After decree made, dismissing the bill, S. Beymer, a stockholder in plaintiff company, filed a petition setting forth that the solicitor for plaintiff company had not been authorized by the board of directors to discontinue the suit, that in fact a resolution had been passed by the board directing him to prosecute it, and that the discontinuance was prejudicial to the rights of stockholders, etc. A rule to show cause why the discontinuance should not be stricken off and case reinstated was granted, and on motion of Hampton & Dalzell, for petitioner, J. H. McCreery, Esq., for the plaintiff company, consenting, a commissioner was appointed to take testimony.

inducing case of the terminating of the proceed|ings under the bill filed by the Coal Company. The board of directors had a right to institute that proceeding and an equal right to discontinue it, or to consent to its dismissal, provided the record when made up does not prejudice unlawfully the rights of the stockholders. But that question, if it comes up, must be determined by the legal effect of the record itself, and not by any misunderstanding or agreement between the plaintiff and the Baltimore & Ohio Railroad Company.

On the hearing before the commissioner it appeared from the examination of J. H. McCleaves, Esq., solicitor for defendant company, J. F. Dravo, president and J. H. McCreery, Esq., solicitor of plaintiff company, that an agreement had been drafted but not signed, by which the differences between the two companies were settled. A request to the witnesses to produce the paper was refused, and the question of its production referred by the commissioner to the court for a ruling thereon.

It seems clear to me that the paper sought to be given in evidence before the commissioner as evidence is entirely incompetent in this proceeding, as in no respect pertinent to the question raised by the petition and upon which the commissioner was appointed to take testimony.

The mere dismissal of the bill [without there is something in the record which would prejudicially effect the rights of dissenting stockholders, which we are not now to consider] cannot injure the corporate existence nor its franchises. If the basis of the arrangement was the unlawful contract on the part of the Coal Railroad Company by which the rights of the incorporators are affected, there is, as we have before stated, a plain and complete remedy.

Opinion by STOWE, P. J. Filed December 30, To allow the minority of a board of directors or 1882.

It must be admitted that a bill in equity will lie against a corporation for divesting or misapplying its funds or credit, or for unlawfully selling or disposing of its corporate property or rights: Dodge v. Woolsey, 18 Howard, 331; Manderson v. Commercial Bank, 28 Pa. St., 379; Baltimore & Ohio Railroad v. Wheeling, 13 Grate, 40. And also that an individual stockholder may maintain a suit in equity against the directors of a corporation for misconduct in office: Allen v. Curtis, 26 Conn., 456; Kean v. Johnson, 1 Stock (N. J.), 401; Reven v. Boston Copper Co., 15 Pick., 351; Brown v. Van Dyke, 4 Halst. Ch. (N. J.), 795. (See 5 Allen, 230.) Watt's Appeal, 78 Pa. St., 370. Nor can it be

stockholders to control the litigation of a corporation, in oppositiou to the regular corporate action, would be simply to subvert every principle of law and equity.

We are of opinion that the witnesses should not be compelled to produce the instrument referred to by them, that evidence of the contents therein is not competent, and that said witnesses are not bound to answer anything tending to show the same.

In Memoriam.

1836, he entered as a law student under Robert Burke, Esq., then a prominent and leading member of the Pittsburgh Bar.

During the progress of his legal studies, he occupied a position as clerk in the prothonoMACCONNELL-On Friday, December 22, 1882, THOMAS tary's office under James Logan, Esq. MACCONNELL, in the 78th year of his age.

THOMAS MACCONNELL, Esq., the son of THOMAS and MARY A. MACCONNELL, was born in Deer township, Allegheny county, Pa., on the 17th February, 1805.

On his mother's side he was closely connected with James Watt, the celebrated Scottish engineer, whose wonderful discoveries, concerning the power of steam, and how to use it, caused him to be elected a Fellow of the Royal Society | of London in 1763.

Mr. Logan having died before the expiration of his term of office, Mr. MACCONNELL, on account of his peculiar fitness and ability for the situation, was selected and appointed by the Judges of the court, to fill the vacancy occasioned by the death of Mr. Logan.

On the 15th day of December, 1888, he was admitted to the Bar, and very soon took a high position in his profession, not only as a good counselor and safe adviser, but likewise became an able and earnest advocate.

Thoroughly grounded in the rules and princiHis father and mother were originally resi- ples of equity practice, he was seldom taken by dents of Richmond, Va., where many descend- | surprise. He was not aggressive, but very skillants of the Watt family now reside; but owing ful both in attack and defense, and on equal to their strong opposition to the institution of grounds, opposing counsel might well look upon slavery, and a desire to live and rear their chil-him as a dangerous antagonist. Having a well dren where honest merit could be recognized as the true standard of distinction, they sought a home in Western Pennsylvania, and settled in Deer township in 1785.

Being a man above the ordinary intelligence of that day, and being surrounded by a limited but well selected library, he directed the education of his children, principally at home as they grew up; and so skillful was he in imparting knowledge to them that his son THOMAS, at the tender age of fourteen years, was considered competent to teach a country school.

This was the beginning of a self-made man. In the chimney corner of a log cabin (for such were their dwellings called in that day), surrounded by a forest of unyielding oaks, sat many a long winter night the studious and hopeful boy, almost unaided, working out the difficult but grand problem of his future success.

balanced mind, and capable of close investigation, he was admirably qualified to act as Master in Chancery, and he was frequently selected by his fellow-members of the Bar, and by the court, to act as such in the most important cases. His accurate and extensive knowledge, and his good common sense, made him a most useful member of the Constitutional Convention, of which he was a member; and adding to these acquirements, his varied reading, his courteous manners, and the vein of quiet, yet most exquisite humor which he always possessed, caused him to be not only highly esteemed, but also much beloved by his many associates.

He did not confine himself solely to the study and practice of law, but he was an extensive reader of the choicest literature of the day, and accumulated one of the largest and best selected private libraries to be found in Western PennHe had not yet learned from books that maxim sylvania. His marginal notes, running through so elegantly expressed, yet hard to follow,-labor all his books, in some degree attest their careful omnia vincit—but with a germ of thought in-perusal, while his mind stored with this acdicating a like result deep planted in his soul by the hand of his Great Creator, he never faltered in his determined purpose of acquiring not only a liberal education, but made the classics yield to his indominatable will, and came out conqueror of the Greek, Latin and German languages.

quired knowledge gave evidence of unyielding strength to the very hour of dissolution.

When the dark curtains of his closing days were drawing around him, and sight in a measure failed, he made requisition upon his children (who willingly responded) to read over again the books he most loved and admired,

He was now well qualified for professional and each day or hour, as the task was ended, studies.

The late Bishop Hopkins urged him strongly to prepare himself for the ministry, but his natural inclination directed his course in a different direction, and on the 6th day of June,

he became the playmate of his grandchildren whom he loved most dearly, and ofttimes in action became the youngest child of all.

THOMAS MACCONNELL lived a pure and heroic life, and died like a Christian philosopher.