or perjury. But the witness who testifies this little girl-were playing at the swing to the res gestæ can be a witness, can be between the dwelling house and the section summoned, can be sworn, can be put under house. Defendant was lying in the shade the rule, can be punished for contempt or at the end of the negro house, near the convicted of perjury. A bill of sale is not swing. The mother called the two little a witness. It cannot be summoned, nor boys, and sent them to bring in wood, can it be sworn, nor put under the rule, which was on the opposite side of the house nor punished for contempt or convictel of from the swing. They were employed at perjury. Neither can a deed, nor any oth- this work twenty-five or thirty minutes. er fact, nor any other testimony. But the During this time the little girl was not witness who testifies to the fact may be seen. About twenty-five or thirty minpunished for perjury cr fr contempt, or utes after the mother lost sight of the put under the rule. It would be a very child, she heard her coming around the difficult matter to punish a fact, whether house, calling her. She went and 'met her, it was res gesta or not, and the court and found her pale, excited, complaining, would have more than a very difficult and holding her hands over her privates. proposition on its hands to punish a deed The first thing she said was, "I want you or bill of sale or a fact. However, the court to go out yonder and kill that old, mean, might punish the witness for perjury or black negro, because he hurt me so bad." contempt who testifies to the fact. If my I asked her what negro, and she said, brethren be correct, then we have a rule 'George.' I asked her, 'What for?' and she of res gesta which is paramount to the said, 'Because he hurt me.' I asked her law, superior to the statute, and must how he hurt her, and she said: 'He took dominate all other rules of evidence. Res me up in his arms and carried me in his gesta is simply considered as evidence. It house, stating he wanted to get a tick off can be nothing more. of me. When he got me in the house, he put me on the bed, raised up my clothes, and took a great, big, old, long black thing out of his pants and rubbed it all over me down here. [Putting her hands over her privates to indicate the place.]'" The mother examined her as hurriedly as possible, and found semen messed and smeared all over her down there, and some in her privates,-about an inch. She washed her thoroughly. She further says that she found her bruised and puffed up, and her privates inflamed about an inch inside, but there was no blood, and the skin was no broken. At the time there was no other man about the house or premises, except defendant and the little boys, nine and eleven years of age, respectively. About twenty-five or thirty minutes after this alleged occurrence, the mother saw defendant lying down in the back yard, in the This is an extreme case in which to file a dissenting opinion, because of the popular outcry of the age. But I believe it to be a case, therefore, which ought to be closely guarded, and the rules of law held inviolable. It is a negro charged with the crime upon a little white child, which, it is but a common historical fact to state, excites the impulse and outrages the feelings of communities. Cases of similar character, within the recent history of this state, have led so far as to force trial courts, by mob violence, to require defendants to waive the thirty days allowed them by law after the conviction before the death penalty is executed, and accept the execution of the sentence of death at once. I wish to enter my dissent, also, on the sufficiency of the evidence to support this conviction. Appellant is a negro man of full age, as the witnesses say, "a full-shade of the negro cabin. She says she was grown negro." He had been working for greatly excited and alarmed, and did not six weeks with the father of the little child know what to do, but concluded to wait unas a section hand, and living in the section til her husband came home from work that house with the other negroes, some 25 night as section-boss, before taking any acyards from the dwelling in which the father tion. He came about sundown, and she of the child, with his family, resided. On informed him of what had happened. The the 21st of August, the day of the alleged husband wanted to shoot appellant, but she assault, appellant was what the mother protested, because of her pregnancy. Shortof the child termed "laying off," because ly after the crime on the little girl is said of some injury he had received about a week or ten days before. He was able to walk about on a crutch. Between 1:30 and 2 o'clock the little child is said to have received the injuries which form the basis of this conviction. Just before this occurrence, the mother of the child testified that her three children-two little boys and to have happened, this witness testified that defendant walked up to the post office, and was gone until about 5:30 o'clock P. M., when he returned home, bringing a watermelon. It seems he and the two little boys ate this in the yard. He stayed around there, and was sitting on the fence when the husband and the other section hands returned from work. He was arrested and carried away. Dr. Park testified that he was a physician and surgeon at Elkhart; that, on the night of the day Adele Hawkins was said to have been assaulted, he was called to the house of Mrs. Hawkins to examine the child. It was about 8 o'clock in the evening when he reached the residence, and made a thorough examination. He says: "I found that the lips of her privates were inflamed and red, and showed evidences of friction. There was no ab asion of the skin." He further testified: "The privates of a child of that age are such that the lips can be entered by a man's male organ to the hymen, which is located inside from 1 to 14 inches, with out causing any abrasion of the skin. It showed conclusively that some thing had entered in the lips of this child's privates, and the inflammation extended inside an inch or more." On cross-examination: "I examined this child carefully, and know that the skin was not broken. The vagina (or connecting muscular tube) between the mouth of the womb and the inner lips of the surface opening (reaching to within about 14 to 14 inches of the outer surface of the outer lips of the female organ) had not been entered; neither had the hymen been ruptured or broken." Dr. Parsons testified that he was a practising physician, and had been for many years. "The private parts of a child of three years and eight months old may be entered by a man's male organ or penis from 1 inch to 2% inches into between the lips without bloodshed or injury to the child, and without entering the vagina or rupturing the hymen. Outside the hearsay statement of the little child, there is no evidence to connect appellant with the act. Not a witness swears he touched the child, and the case depends upon the declaration of the child to the mother. For appellant, witnesses Horn and Douthitt, two white men, testified that on the afternoon of the alleged injury, about 2 o'clock, defendant was in front of the postoffice and about the little town of Elkhart, on the gallery in front of Boyd's store, standing around or sitting around talking to other parties for a period of about three hours. During this time his demeanor and conduct was just such as was usual for him when he was about there. That nothing strange was said or done by him that afternoon. Appellant took the stand in his own behalf, and stated: "I did not, on the afternoon of the al65 L. R. A. leged injury, touch the child, Adele Haw. kins, in any manner whatever, nor did I at any other time touch the said child. I am not guilty of the charge against me. About 12 o'clock, or some time soon thereafter, I went from the section house up to the postoffice and the other stores, and stayed there until about 5 o'clock. After this I went home, carrying with me a watermelon, which the little boys and I ate in the yard. Then I went out on the front side and sat on the fence until the section hands came in, and stayed about the premises, and was there in the section house that night when I was arrested." This is the case on the facts. If the little girl's testimony is true, there was no rape, for her statement renders it certain that defendant simply rubbed his private parts over hers. She did not complain of penetration, or anything of the sort. This was outrageous conduct, and, under Croomes's Case, 40 Tex. Crim. Rep. 672, 51 S. W. 924, 53 S. W. 882, may be assault to rape, but not rape. This case comes, it seems to me, within the rule in Draper v. State (Tex. Crim. App.) 57 S. W. 655. I do not believe it will be contended that, under the testimony of the physicians, a conviction ought to have been had. It may be a child three years and eight months of age is so constructed, from an anatomical standpoint, that the male organ of a grown negro man can penetrate her from 1 to 2%1⁄2 inches without abrasion or producing bloodshed, but it staggers credulity. Perhaps not the least remarkable part of this testimony is the fact of appellant staying at the place of the alleged outrage complacently, as testified by the mother of the child, for twenty-five or thirty minutes after the outrage, and then leisurely walking down in town, spending the evening, and returning to what he knew meant death, if he was guilty of the imputed conduct. I further believe the charge requested by appellant should have been given. The more intense the excitement and greater the strain of public opinion adverse to a party charged with crime of this character, and which stirs up the mob spirit of the community, the more careful ought the trial court to be to guard the legal prerequisites which lead to the conviction. For these reasons, it has suggested itself to my mind that this conviction ought not to stand. The judgment ought to have been reversed, and I therefore dissent from the affirmance. UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT. F. D. GIDDINGS et al., Plffs. in Err., v. William G. FREEDLEY et al. (128 Fed. 355.) 1. The main belt which transmits the power from an engine which is so affixed to the building as to be real estate, to the machinery in the mill, is, as between the owner and attaching creditors, real estate. 2. Statutory authority is necessary to justify the seizure and removal from a mill of a portion of the fixtures in it under a writ of attachment. 3. An exception to the "instructions on the question of exemplary damages" is too indefinite to raise any question in the appellate court. 4. A single exception covering several distinct propositions of an instruction collectively is inoperative if one of the propositions is sound. 5. Exemplary damages may be awarded against attaching officers who, although they have no personal acquaintance with, or ill-will against, defendant, wilfully and knowingly allow themselves to become tools of the attaching creditors, whose object is apparently malicious, and make an unlaw full levy in a high-handed and oppressive way to oppress the debtor. 6. Damages cannot be disallowed for stoppage of gangs of saws by the wrongful removal of a belt from a mill under a writ of attachment, because they themselves might have been rightfully attached, of and the same injury thereby wrought. 7. Damages which are the natural and reasonably-to-be-expected result the wrongful stoppage of an engine under a writ of attachment may be recovered in an action for the trespass, although they were not specially pleaded. (January 6, 1904.) lien in favor of the creditor, and includes the right to redeem. But "the officer has no right to take actual exclusive possession of the property, or in any way to disturb the possession of the occupants." Drake, Attachm. §§ 236-239; Chandler v. Dyer, 37 Vt. 345. By the attachment no estate passes, ne interest vests in the creditor, neither the interest, nor the possession, of the debtor is devested, nor does the officer or creditor claim any right to take the issues or profits. Taylor v. Mixter, 11 Pick. 347. The engine, shafting, and pulleys-engine bed, anchor stone and engine crank, are real estate. Hill v. Wentworth, 28 Vt. 433; Kendall v. Hathaway, 67 Vt. 126, 30 Atl. 859; Hackett v. Amsden, 57 Vt. 432; Hill v. Farmers' & M. Nat. Bank, 97 U. S. 450, 24 L. ed. 1051; Bigler v. National Bank, 26 Hun, 520; Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 719. If the object and purpose, as appears from the location of the property itself. it useful, the chattels became fixtures and were to improve the inheritance and make a part of the realty. Newhall v. Kinney, 56 Vt. 591; Bartlett v. Wood, 32 Vt. 372; Davenport v. Shants, 43 Vt. 546; Fullam v. Stearns, 30 Vt. 443; Sweetzer v. Jones, 35 Vt. 321, 82 Am. Dec. 639; Harris v. Haynes, 34 Vt. 220; Gray v. Holdship, 17 Serg. & R. 413, 17 Am. Dec. 680. A request to charge must be sound law and applicable to the issues, or it need not be complied with. Rea v. Harrington, 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475. Unless special damages are alleged, the ERROR to the Circuit Court of the Unit- plaintiff is entitled to recover such damages ed States for the District of Vermont to review a judgment in favor of plaintiffs in an action of trespass to recover damages for the alleged wrongful levying of an attachment upon plaintiff's property. Affirmed. as would naturally and necessarily result from the trespass complained of. 2 Greenl. Ev. § 254; Clark v. Boardman, 42 Vt. 667; Folsom v. Underhill, 36 Vt. 580; Hutchinson v. Granger, 13 Vt. 386. When one has received an actionable injury at the hands of two or more wrong The facts are stated in the opinion. Messrs. Fred M. Butler and Thomas W. Moloney, for defendants in error: to the full extent of the injury. Burk v. Howley, 179 Pa. 539, 57 Am. St. Rep. 607, 36 Atl. 327; Russall v. McCall, 38 The attachment of real estate creates a Am. St. Rep. 807, note, 141 N. Y. 437, 36 NOTE. For other cases in this series as to what are fixtures generally in the absence of any agreement, see Southbridge Sav. Bank v. Mason. 1 L. R. A. 350; Binkley v. Forkner, 3 L. R. A. 33, and note; Atchison, T. & S. F. R. Co. v. Morgan, 4 L. R. A. 284; Hill v. Munday, 4 L. R. A. 674, and note; McGorrisk v. Dwyer, 5 L. R. A. 594, and note; Hopewell Mills v. Taunton Sav. Bank, 6 L. R. A. 249; Overman v. Sasser, 10 L. R. A. 722, and note; Philadelphia Mortg. & T. Co. v. Miller, 44 L. R. A. 559; Thomson v. Smith, 50 L. R. A. 780; and Murray v. Bender, 63 L. R. A. 783. 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 of 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. All 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. 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 Lacombe, Circuit Judge, delivered the keeper, and surrendered the keys to Gidopinion of the court: 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. Freedley, was duly issued, in which the ad damnum was $12,000. This 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 dings, 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. On the next day plaintiffs, without Giddings's knowledge or consent, knocked off the strips of board, entered the premises, 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. 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 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 boil-substitution can be made of almost any er 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 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 |