The Sun.
London, England, 1852-10-30 00:00:00

LAW INTELLIGENCE,

COURT OF BANKRUPTCY —Om 29.
(Before Mr. Commissioner Fonblanque.)
IN RE WOOD-TIIE LAW OP FIXTURES,

His Honour delivered the following important judgment
on the law of fixtures. He said: Since the matter was
last before him he had carefully consulted all the cases
cited in the course of the arguments, not only so far as
they might turn out tie be necessary to the decision of the
question, but also as a matter of curiosity to trace, if
possible, the source of so much difference of opinion, and
so much diversity of judgment. He thought the source
of diversity was to be found in the efforts of the law to
adapt itself to the progress and exigencies of society. In
early times the maxim of cities est solum ejus est usque
ad cehtm, borrowed from the Roman law, prevailed with-
out dispute : land alone was regarded—land alone was
called real, and mere personals were considered, as they
really then were, of little moment, as they were of little
comparative amount. It was for this reason that, as
Lord Kenyon says in Fenton and 'Roberts, quoted by
:he then Chief Justise Erskine in ox parte Lloyd,
--The old cases on this subject leant to consider as
ea whatever was annexed to the freehold by the
but in modern times the leaning has always
realty i
been the other way, in favour of the tenants, in support
of the interests of trade, which has become the
pillar of the State." If this was true in the
time of Lord Kenyon, It must have acquired
additional force in the course of the last half century,
when the advance of commerce and the use of experience
and complicated machinery in every branch of mann-
-I,l•cture have rendered this protection so essential to the
inte:ests of trade, that if the Courts had been unable to
find a remedy, the Legislature must have been called on
for its interference. Upon examination of the case be-
fore him, Ilee found it more simple than he had at first
anticipated. :livers articles wore found in the bankrupt's
possession at the time of the bankruptcy. He was a
brewer, and these at-"ides were called•brewers' plant and
brewers' fixtures, AIL 4.
,here he might observe, that
much of the confusion of
the cases had arisen from the
without discriminating
popular use of the word fixt:iu*' varying from the
between the degrees of annex:4(4'l3'
he tacking of a carpet
solidity of a stone foundation to Li
or the hanging
of a picture. The
Ltette ,nestdionh was,
l
were they goods and chattels 2—for to gos'lc:Lantt,Litstett,l3
only does the statute of James and the sue. --"-tiTt,-,.-dte-;
tote derived from it apply, in its enactment as - —.ittt it"
and disposition. Nor is this statute singular in t.- 4.
mitation: only goods and chattele could be distraint
And under both forms such articles as the greater part
of those now in question had been taken—with this ex-
ception, that under a distress, while the law required
that the goods should be removed from the premises,
only such could be taken as could be returned on replevy
in the same state. In questions between heir and
executor, such articles also had been held to pass to
the executor, as personalty, and not to the heir as
realty. For each of those purposes, therefore, the articles
were held to be goods and chattels. Why, then, were
they not to bo so held as between the mortgagee and
assignee of a bankrupt's estate, he (the Commissioner)
confessed that be was unable to discover either in reason
or equity ? I see every reason (continued the learned
Commissioner) to prefer the doctrine, that what is in
the bankrupt's open possession by the apparent owner-
ship
of which he obtains credit of the trading world,
shall pass to the benefit of all his creditors, rather than
to one only, who, by means of a private or secret con-
veyance, has obtained a preference over them. As to
what is strictly realty, this is unavoidable ; since the
right to the realty beyond this necessity, and in all
doubtful cases, I believe the Courts will lean, us Lord
Kenyon says they have leant, in favour of creditors, and
for the interests of trade. It is singular-, however, that,
in the diversity of opinion which tree prevailed on this
subject, the decisions of the Court of Bankruptcy should
be less favourable to creditors than those of the courts
of ,common law. With the exception of Sir George
Rosa, whose judgment in ex-parte Austin I shall have
occasion to quote, the Judges of the Court of Review
seem to have been inclined to favour the mortgestee ;
while the courts at Westminster, from the csae of Iforne
v. Baker to that of Halliwell v. ;Eastwood, have laid
down prineipies which must neceesarily lead to a con-
trary conclusion. Amenge:,- those cases, that of Trapper
v. Harter (3 Tyrr. 603) Je ono of the most important,
It was decided by Lord Lyndhurst, after ho had been
Lord Chancellor, and therefore when the law of bank-
ruptcy was more familiar to him than it might be to the
other Jadgee less frequently called upon to determine
questions of this naturt. This ease determined that all
utensils and machinery erected for the purposes of trade,
and which could ha removed without material injury to
the inheritance, form an exception to the general rule as
to fixtures, and ere not to be wken as parr of the inhe-
ritance, hut as ;e;rsortal rstnte. This judgment is said to
have beea &ratted by Belton Perko ; but whatever re-
qeet might heee. been dee ton doubt from such is quarter,
the (lath; itself is removed by the fact that the learned
Baron has-concurred in the judgment of rialliwell v.
Enatwooti. Another judgment Las elso been set up in
this case. I: is that in ex-parte Austin, in which Sir
George Bose said, " I have no hesitation in Wilog that
when fixtures are capable of removal, as between land-
lord and tenant, without injury to the freehnld, they ere
within the order and disposition of the bankrupt," Tee
soundness of this doctrine hu,virg been questioned Sie G.
Rose, in exparte Wilson, expreesed his adherence to that
opinion, which now appears to be fully confirmed by the
Court of Exchequer. I must, therefore, come to the
conclusion-1. That such articles as merely rest on the
soil by their owe weight, however heavy, are goods and
chattels. 2. That if they are slightly connected one with
mother, and ultiasately with the freehold, yet may be
:.evered without material ,injury to the Ire, hold, they
follow the same rule. 3. :Chat articles, though them-
selves fixed to the freehold by bolts and semws, or nails,
or pegs, or other similar contrive,nces, ore also goods and
chattels. 4. That articles mainly seek in the soil, or
built on it, ore of the realty, and el° not pass te the as-
signees. I may take this oppertunty to state that Ido
net consider the judgment of my bi %her Commissioner
Ilolroyd, in the Vauxhall case, at all te?cted by my pre-
sent judgment. In that case there was this material dis-
auction, that the fixtures had been origheally annexed to
:be freehold by the freeholder, and had, therefore, by
unity of title, become one freehold property, end in that
form they were demised to llnghetethe party wieo became
bankrupt. Then as to the queetien whether neve things,
newly affixed, also passed. That, I think, must have very
much depended upon the. peculiar nature of the property,
where, in order to fit up the place for a public exhibition,
continual changes were necessary; and therefore, as
some of the old wore removed, it was equitable that the
new should be fixed with the same rights as those that
were removed. In a case before Mr. Commissioner Goul-
burn the same principle as that I have laid down has
been adopted. And I think it may now be considered
as the doctrine of this Court. in bread terms, that such
things as can be removed without material injury to the
freehold aro goods and chattels, and pass to the as-
signees.
Mr. Commissioner Goulburn, who was also on the
bench, said he fully concurred in the judgment that had
been delivered by his learned brother Commissioner.
Having himself been in consultation with Mr‘ Commis-
sioner Evans on a similar case, ho knew that that learned
Commissioner took the same view of the question.

CENTRAL CRIMINAL COURT—Oct. 29.

OLD COURT.