Day against Bisbitch

JurisdictionEngland & Wales
CourtCourt of Common Pleas
Date1653

English Reports Citation: 78 E.R. 622

IN THE COMMON PLEAS.

Day against Bisbitch

case 2. day against bisbitch. A dyer's vat fastened to the wall of a house is parcel of the freehold, and cannot be taken in execution under a fi. fa. I Roll. Ab. 891, 2 Roll. Ab. 556. Co. Lit. 53. Owen, 70. Trespass, for the taking and carrying away a dyer's vat. Upon a special verdict it was found that the sheriff, upon an action against the plaintiff, attached it, being fastened to the wall of the house, and delivered it to the defendant: and, whether this taking or delivery were lawful or not 1 was the question. First, it was moved, that it could not be attached; because it is parcel of the freehold, and fixed thereto. Secondly, that the action lies not against the defendant, because he hath it by the delivery of another, and not by his own taking. And it was resolved by all the Court, that it could not be attached, in regard it is fixed to the land and wall.-Anderson said, that wainscot fixed to a wall cannot be removed; and if it be, [375] it is waste. So of tables dormant, fixed, &c.- Walmsley said, that in the time of Lord Dyer, this difference was here taken, and agreed, that a furnace fixed in media dom&s it but a chattel, and ia removeable ; but otherwise it is, being fixed to the walls: and afterwards it was adjudged accordingly for the plaintiff.--The second matter was not much insisted upon, because he was present and took it, and so he was an immediate trespasser. Fide 42 Edw. 3. pi. 6. 20 Hen. 7. pi. 13. 21 Hen. 2. pi. 6.

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