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

LAW INTELLIGENCE,

COURT OF BANKRUPTCY-ou. 9.9.
(Before Mr. 031antassioner Fonbishquo.)
IN RE WOOD-THE LAW OP FIXTURES.
,His Honour deliverpd the following ira?,)ortart judgment
on the law of fixtures. He said: Since the matter wqs

„.. ..
last before hira he had carefully consulted all the cases I
cited in the course of tiie arguments, not only so far as
they might turn out to be necessary to the decision of the
question, bat aiso as a matter of curiosity to trace, if
possible, the source of so much difference of opinion, and
so much diversity of judgment. lie thought the source
of diversity wa3 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 cujus est solum ejus est usque
ad ccelum, 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, I s they were of little
comparative amount. It was for this reason that, as
Lord Kenyon says in Penton and Roberts, quoted by
the then Chief Justice Erskine in ex parte Lloyd,
The old cases on this subject leant to consider as
realty whatever was annexed to the freehold by the
occupier ; but in modern times the leaning has always
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 commc rce and the use of experience
and complicated machinery in every branch of manu-
facture have rendered this protection so essential to the
interests 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, he found it more simple than he had at first
aulicipated. Divers articles were found in the bankrupt's
possession at the time of the bankruptcy. He was a
brewer, and these articles were called brewers' plant and
brewers' fixtures, And here he might observe, that
much of the contusion of the cases had arisen from the
popular use of the word fixture, without discriminating
between the degrees of annexation, varying from the
solidity of a stone foundation to the tacking of a carpet
or the hanging of a picture. The true question was,
wore the/ goods and chattels ?—for to goods and chattels
only ddaf the statute of James and the subsequent sta-
tute derived from it apply, in its enactment as to order
and disposition. Nor is this statute singular in this li-
mitation: only goods and chattels could be distrained.
And under both forms such articles as the greater part
of those now in qua .tion had been taken—with this ex-
' ception, that under ~distress, while the law required
that the goods should be removed from the premises,
' only such could be taken as t nild 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 be so held as between the mortgagee and
assignee of a bankrupt's estate, he (the Commissioner)
confessed that he 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 ever 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, as 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 has 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
Rose, 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 mortgagee ;
while the courts at Westminster, from the case of Horne
v. Baker to that of Halliwell v. Eastwood, have laid
down principles which must necessarily lead to a con-
trary conclusion. Amongst those cases, that of Trapper
v, Harter (3 Tyrr. 603) is one 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 Judges less frequently called upon to determine
questions of this nature. This case determined that all
utensils and machinery erected for the purposes of trade,
and which could be removed without material injury to
the inheritance, form an exception to the general rule as
to fixtures, and are not to be taken as part of the inhe-
ritance, but as personal estate. This judgment is said to
have been doubted by Baron Parke ; but whatever re-
spect might have been due to a doubt from such a quarter,
the doubt itself is removed by the fact that the learned
Baron has concurred in the judgment of Halliwell v.
Eastwood. Another judgment has also been set up in
this case. It is that in ex-parte Austin, in which Sir
George Rose said, " I have no hesitation in saying that
when fixtures are capable of removal, as between land-
lord and tenant, without injury to the freehold, they are
within the order and disposition of the bankrupt." The
soundness of this doctrine having been questioned Sir G.
Rose, in exparte Wilson, expressed his adherence to that
opinion, which now appears to be fully confirmed by the
Court of Exchequer. I must, therefore, come to the
conclusion—l. That such articles as merely rest on the
soil by their own weight, however heavy, are goods and
chattels. 2. That if they are slightly connected one with
another, and ultimately with the freehold, yet may be
severed without material injury to the freehold, they
follow the same rule. 3. That articles, though them-
selves fixed to the freehold by bolts and screws, or nails,
or pegs, or other similar contrivances, are also goods and
chattels. 4. That articles mainly sunk in the soil, or
built on it, are of the realty, and do not pass to the as-
signees. I may take this opportunity to state that Ido
not consider the judgment of my brother Commissioner
Holroyd, in the Vauxhall case, at all affected by my pre-
sent judgment. In that case there was this material dis-
tinction, that the fixtures had been originally annexed to
the freehold by the freeholder, and had, therefore, by
unity of title, become one freehold property, and in that
form they were demised to Islcghes, the party who became
bankrupt. Then as to the question whether new 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 were 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 broad terms, that such
things as can be removed without material injury to the
freehold are 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
beers delivered by his learned brother Commissioner.
Having himself been in consultation with Mr Commis-
sioner Evans on a similar case, he knew that that learned
Commissioner took the same view of the question.

CENTRAL CRIMINAL COURT—Oct. 29

OLD COURT.
(Before Mr. Justice CresswEll.)
MANSLAUGHTER.

James Phillips, 26, was indicted for the wilful murder
of Anne Matthews, otherwise Brown.
The facts of this case have been given very recently
in the police reports, and it will therefore be unnecessary
fo give the evidence in detail on the present occasion.
The deceustd, who was a woman nearly sixty years old,
kept a brothel, and the prisoner. who was her nephew,
had cohabited with her for nearly two years. Oa the
night of the 9th October he came home drunk, and found
the deceased lying before the fire in her bed-room appa-
rently in the same condition as himself, and he abused
her for being in such a state, and it appeared that she
retorted by telling him that she did not want him there,
and he might go to the place he had come from. Die,
it appeared, excited the anger of the prisoner, and he ran
up to the deceased while she was in a sitting posture,
and, according to the testimony of one of the witnessel4,
struck her two blows, one on each side of her temple, the
effect of which was to cause her to fall to the ground in-
sensible. A doctor was called in, but the deceased was
found to b© quite dead, and upon a post mortem exami-
nation the death turned out to have resulted from con-
cussion of the brain, the effect of the blows she had re-
ceived upon the temples.
The jury found the prisoner Guilty of manslaughter,
and he was sentenced to be transported for fi teen years.
This case concluded the business of the session.