Opinion of the Court-Beatty, C. J. *The facts appear in the opinion of the court. Williams & Bixler, for Appellant. [*80] Robert M. Clarke, for Respondent. By the Court, BEATTY, C. J.: This was an application for a mandamus. Grimes was formerly auditor of Churchill county, and claimed that his fees and salary as such auditor should be paid out of the money collected for taxes in his county, in preference to warrants drawn on the general fund of the county, which were of older date. The treasurer refused so to pay, and Grimes applied to the district court for a mandamus. That application was denied, and he appeals to this court. Sec. $6 of the revenue act of 1864-5, amended in 1866, provides that the auditor shall receive certain compensation, to be allowed by the board of county commissioners for folio work, and also a fixed monthly salary. Sec. 87 provides that the amount paid the auditor for services under this act shall be apportioned between the State and county in proportion to the tax assessed by each. It seems, from this section, to have been the intention of the legislature to apportion the payment, both of the folio work and the monthly salary, between the county and the State. Secs. 77 and 78 of the revenue act read as follows: 77. "Each county treasurer shall at the same time of making a settlement produce to the controller of State the certified statement of the county auditor of the amount allowed and paid to the assessor and county auditor for the assessing and collecting of State revenue as prescribed by this act; and no county treasurer shall be allowed to make any settlement with the controller of State, or in any manner release him or his bondsmen from liability for the full amount by him received, unless he produces to the controller the statements required by this section." 78. "Whenever any allowance is made to any assessor or auditor, as in this act provided, the clerk of the board of county commissioners shall certify the account so Opinion of the Court-Beatty, C. J. [*81] allowed to the auditor, who *shall draw his warrant on the county treasurer for that part of the same which the county is required to pay, which shall be in proportion to the taxes levied for State and county purposes respectively; and the auditor shall make a certified copy of the account, and indorse on the accounts remaining in his office the same; and shall furnish such copy with the indorsement thereon to the county treasurer, who shall pay out of the moneys belonging to the State and county respectively the amounts indorsed on such accounts, to the assessor and auditor, and take his receipt therefor thereon. And the treasurer on making his semi-annual statement shall present with the auditor's statement such copy of the action allowed by the board to the assessor and auditor, indorsed and receipted as herein provided, and the auditor shall allow him for the amounts so paid." The language of section 78 shows clearly that the county treasurer is to pay the State's portion of the auditor's compensation before it goes out of his hands. It also seems to contemplate that both the State's portion and that payable by the county shall be paid at the same time. The last sentence in section 78 shows, too, that the county treasurer, at each semi-annual settlement, is to produce the receipt of the auditor for his claim. Now, if the auditor was merely to receive a warrant on the treasury, payable in due course according to its date, it is evident that the treasurer could not or ought not to obtain his receipt for money not paid. When a party obtains a warrant on the treasury it might be very proper to give a receipt to the auditor for the warrant. But certainly no receipt should be given to the treasurer before the payment of the money on the warrant. It seems to have been the intention of the legislature to pay the auditor, assessor and tax collector for their services in collecting the revenue before a distribution of the proceeds of the taxes into their respective funds in the State and county treasuries. We are of opinion the treasurer should have paid the amount of the auditor's claim before otherwise disposing of the county's share of the taxes collected. Points decided. From the rather imperfect record before us, it is not in our power to say what the treasurer has done with the money out of which the auditor's claim should [*82] have been paid. Probably it has been paid into the general county fund. If so, the auditor should be paid ont of that fund, and the treasurer will then be entitled to the amount thus paid as a credit in the next semi-annual settlement. The order of the court below refusing the mandamus, is reversed. That court will issue its mandamus in accordance with the opinion in this case. LEWIS, J., did not participate in this decision. PRESCOTT & BOOTH, APPELLANTS, v. WELLS, FARGO & CO., RESPONDENTS. [3 NEVADA, 82.] PLEADINGS CONTRACT OR-TROVER.-The complaint in this case construed, as to whether the action is for trover or contract: Held, to be sufficient to enable plaintiff to recover in damages. 1 FIXTURES-MEANING OF WORD.-Fixtures has several distinct meanings. Sometimes it means anything which is by artificial means affixed permauently to the soil. Sometimes it is used to designate something which is substantially affixed to the soil, but which may nevertheless be lawfully detached therefrom by one who has so affixed it without the consent of the owner of the soil. In this opinion the word is used in the latter and more restricted sense. WHAT ARE FIXTURES.-Pans furnished to a mill owner upon his agreement to pay rent therefor, and by him and the manufacturer attached to the mill and machinery of the same, are fixtures. VALUE OF FIXTURES-DAMAGES IN REMOVAL.-There was no necessity of alleging the value of the fixtures. The plaintiffs only had to allege the extent of the damage they sustained in consequence of not being permitted to remove the same. IDEM. The plaintiffs should have been allowed to prove the value of the fixtures they wanted to remove, by way of furnishing the jury with one material fact from which they might estimate the damage which resulted from the refusal to permit the removal. *APPEAL from the District Court of the First Judi- [*83] cial District, Hon. RICHARD RISING presiding. (1; 6 Nev. 244; 7 Nev. 37. Opinion of the Court-Beatty, C. J. The facts of the case, and the main features of the pleadings on which this case was decided are set forth in the opinion of the court. C. E. DeLong, for Appellants: As to form of declaration in trover, see 2 Ch. Pl. 835; Saund. Pl. and Ev., vol. II, part 2, 1144. As to character of proof to sustain this action, see 2 Greenl. Ev., sec. 636. As to proof and measure of damages, see Saund. Pl. and Ev., vol. II, part 2, sec. 1162; 3 Burns' Just. 68; 2 Greenl. Ev., sec. 649. Sunderland, Wood and Hillyer, for Respondents: The refusal of Wells, Fargo & Co. to deliver up the pans, etc., amounted to nothing unless it was in their power to comply with the demand. (3 Phil. Ev. 541; 2 Greenl. Ev., sec. 644, p. 602; Kelsey v. Griswold, 6 Barb. 436.) De Long, in reply: Replevin cannot be sustained against a stranger, into whose hands the property came with these things attached to the freehold. (Merritt v. Juuld, 14 Cal. 59; Sands v. Pfeiffer, 10 Cal. 264; McGreary v. Osborne, 9 Cal. 121.) The rule as to what is a fixture, is very different in a controversy between vendor and vendee from what it is in a case between landlord and tenant. (See 2 Bouv. Ins. 161-65.) The failure of Wells, Fargo & Co.'s agent to comply with a request for delivery, is tantamount to an absolute refusal. (Ferris v. Straus, 5 N. Y. 19; 2 Abb. Dig. 430, sec. 5.) If Wells, Fargo & Co. had placed it out of their power to comply, no demand was necessary. (Delamater v. Miller, 1 Conn. 75; Everet v. Coffin, 6 Wend. C03; 1 Johns. Cas. 406.) [*85] *By the Court, BEATTY, C. J.: This case presents the following material facts: In the month of August, 1862, Burton, Kellogg and Uznay owned a quartz mill called the Phoenix Mill, and were conducting the business of crushing quartz, under the firm name of "Phoenix Mill Co." At this time their mill property was Opinion of the Court-Beatty, C. J. mortgaged for some $20,000, and the defendants, Wells, Fargo & Co., held the mortgage as assignees of the original mortgagees. The Phoenix Mill Company being anxious to add some pans and other machinery to their mill, applied to the plaintiffs to rent them the necessary machinery. The plaintiffs consented to enter into the arrangement, provided Wells, Fargo & Co. would become parties thereto so far as to protect them against any loss or danger arising from their claim by way of mortgage. The result of the negotiation was, that two articles of agreement were drawn up and signed. The first is dated August 14, 1862, and purports to be between H. J. Booth & Co., of the first part, and the Phoenix Mill Company, of the second part. By this agreement the parties of the first part graut, demise and let to the parties of the second part various articles of machinery, to be delivered at the Phoenix Mill at various specified days between then and the first of October following; the said machinery to be leased to the mill company for the period of six months, from the first of October ensuing, at a monthly rent. At the end of six months the parties of the second part agree to surrender the machinery. There is a further promise that the parties of the second part may, at their option, purchase the machinery after the expiration of six months, at a specified price. This instrument concludes with the usual form of sealed instruments, and is signed thus: H. J. BOOTH & Co. [L. S.] [L. S.] The second is dated August 15, 1862. It recites the facts in relation to the mortgage executed by the members of the Phoenix Mill Company, their agreement with Booth & Co. for the machinery, and the fact that [*86] Booth & Co. might, under that agreement, require the privilege of removing the machinery, and winds up as follows: "Now, therefore, for the purpose of assuring to said Booth & Co., without objection or hindrance on the part of |