1

the fact of the acceptance without consideration could not affect that presumption. Lord Abinger questioned the correctness of the principle itself. "I have no doubt," he said in the course of the argument, "that nine hundred out of a thousand of the bills that come into the hands of bankers in London are indorsed without any value at all, but merely transmitted to agents to receive the amount." "It rather surprised me," his lordship afterwards observed, "to hear that doubts exist upon this question; for, throughout a very long experience, I can certainly say that the practice has been, that where a defendant has proved original want of consideration, that called upon the holder to prove consideration given by himself. In no instance, as far as I remember, has this rule been brought into question. And this view is confirmed on looking into the cases." His lordship then referred to the case of Fentum v. Pocock 1 as illustrating the view he took of the question, inasmuch as the point which was there the subject of discussion could not have arisen, unless the practice had been for the holder to prove consideration, in order to remove the suspicion that he was an agent of the drawer. He proceeded, however, to put the case upon a ground which certainly has in some degree excited our surprise, as applied to that side of the question,-namely, that it is inexpedient to encourage the manufacture of accommodation bills and notes, as having in themselves something of a fraudulent character. We should unquestionably have supposed that every difficulty thrown in the way of the holder's recovering upon them was so much gain to the concocters of the fraud, if fraud there be. His lordship would appear, on the contrary, to be of opinion that the more easily the acceptor of an accommodation bill escapes, the less injurious is the fraud to the commercial interests of the country. "The effect of an accommodation bill," he said, "is to make it a mere nullity as between the parties to its concoction. Why then should you infer that every indorsee by a blank indorsement gave value? The inference rather is that he is an agent; at all events the presumption is as strong one way as the other..... If the effect is that no bill exists between the

two parties to its creation, I see no danger to the negotiability of bills in disabling a party from recovering who receives it without value, and who takes shelter under a presumption of law that he has given value, and may defraud both the drawer and acceptor. We cannot so get rid of our experience as to suppose that there is something in accommodation bills so precious, that the presumption is always to be in favour of the holder." His lordship's argument assuredly appears to us somewhat to presume the other way.-Mr. Baron Bolland also intimated the inclination of his opinion to be in favour of the view taken by the majority of the judges in Heath v. Sansom. Mr. Baron Gurney's impression appeared to be against it: "In the case of an accommodation bill," he observed, "which is sent into the world for the purpose of raising money, the presumption may not unnaturally be that that purpose is carried into effect, and that money has been in fact raised." Such being the dissonance of opinion on the Bench upon this question, so important in itself, and of such continual occurrence in practice, it is to be hoped that an occasion will speedily present itself for bringing it under the consideration of all the judges for a deliberate and final settlement. In the meantime, we may observe that it has been again distinctly determined, that the want of consideration as between the original parties is at all events no answer of itself, on the record, to a declaration at the suit of an indorsee. 1

W.

1

I Low v. Griffiths, 1 Bing. N. C. 267; French v. Archer, 3 Dowl. P. C. 130.

ART. VII.-WHETHER FIXTURES CAN BE DEEMED GOODS AND CHATTELS IN THE REPUTED OWNERSHIP OF A BANKRUPT.

THERE have been so many recent decisions on this subject that it seems desirable briefly to recapitulate the leading cases, and to extract from them the principle which has been relied upon for their determination.

In Ryall v. Rowles,1 the parent of the class, W. H., the owner in fee simple of a messuage and brew-house, mortgaged the same, together with the coppers and utensils belonging thereto, and afterwards became bankrupt, having continued in possession of the mortgaged premises and carried on the trade of a brewer. It was held, that the mortgagee was entitled to the fixtures but not to the moveable chattels. Lord Chief Baron Parker observed, " as to the goods fixed, they are, like trees, considered in law as part of the freehold. The things fixed to the brew-house had been several times mortgaged distinct from the brew-house, but were vested in W. H. afterwards, and there was no occasion to deliver them to the mortgagee, but they will pass by the mortgage of the brew-house with the things fixed. I admit that during the term the goods may be sold, but the present is distinguishable, there being a mortgage; nor could the mortgagor remove the fixtures because of the mortgagee's act, otherwise great inconvenience would follow, as the lessor of a brewhouse, with his own fixtures, would be liable to be stript thereof."

In Horn v. Baker, the lessee of land having erected a distillery thereon, demised the same to two persons, who carried on trade thereon, and who afterwards became bankrupt, and it was held that the fixtures did not pass to the assignees. As to them, Lord Ellenborough, in delivering judgment, merely observed, "the stills, it appears, were fixed to the freehold, and as such, we think, would not pass to the bankrupts' assignees under the description of goods and chattels in the statute."

1

1 Ves. Sen. 348.

29 East, 215.

In Clark v. Crownshaw,1 L. took a lease of a mill and iron forge, and purchased the fixtures and moveable utensils from the landlord, and afterwards assigned the same by way of mortgage, and eventually became bankrupt. It was held, that as to the fixtures, the case was not distinguishable from Horn v. Baker; Parke, J., observing, that the ground of decision there was, that the stills were fixed to the freehold, and would not pass to the assignees as goods and chattels under the statute, by reason of reputed ownership in the bankrupt.

In Coombs v. Beaumont, a steam-engine, erected by the lessee of a colliery at the joint expense of himself and the lessor, and which it was stipulated should be the property of the lessor subsequent to the use thereof by the tenant, was decided not to pass to the assignees of the tenant on his becoming bankrupt; and Parke, J., observed, “ The steam-engine, if affixed to the freehold, clearly does not pass to the assignees, because it does not come within the description of goods and chattels in the 6 Geo. IV. c, 16, s. 72. This was determined in Horn v. Baker, and since that case, as far as my experience goes, I never knew that any distinction was made between such fixtures as would be removable between landlord and tenant, and such as would not." In this case, counsel, in argument, cited a dictum of Sir George Rose, "that where fixtures are capable of removal by an out-going tenant, without injury to the freehold, they are in the order and disposition of such tenant within the bankrupt law;" and the observations by Mr. Justice Parke seem to have been made in answer to this notion.

In Boydell v. M'Michael, the lessee of a house, who was the owner of several fixtures contained therein, having assigned the same by way of mortgage, became bankrupt, and it was decided that the fixtures were not goods and chattels within his order and disposition, and did not pass to his assignees. Parke, B., who declared the judgment of the Court, considered the fixtures as part of the freehold during the term, the tenant having a right to remove them. He

1 3 Barn. & Adol, 804.

25 Barn. & Adol. 72. 31 Crom., Mee. & Ros. 177.

considered them, being fixtures, as part of the realty, though the law gave to the tenant the right to remove them during the term. Alderson, B., observed, "This question turns entirely on the nature of the property. It is clear that nothing of a freehold nature is within the meaning of the clause in the Bankrupt Act as to order and disposition. It was settled, in the case of Horn v. Baker, that fixtures were not within the meaning of the statute of James; the simple and plain rule is, that fixtures are not goods and chattels within the order and disposition of the bankrupt.'

In Ex parte Lloyd,1 two partners erected a steam-engine, &c. upon freehold ground belonging to one of them, and then joined in mortgaging the same, and afterwards became bankrupt, when it was held that the mortgagee was entitled to the fixtures. The Chief Judge observed, that the articles in question, though annexed in fact to the building, still retained in law their character of personal chattels, but that being firmly attached to the floor and walls of the building, and only capable of being detached by severing parts of the building itself, though without doing any material damage, and besides being such things as are frequently though not invariably put up by the landlord and let with buildings of this description, and to all appearance formed part of the building itself, they are therefore very distinguishable from that species of property which seems to have been in the contemplation of the legislature when it passed the enactment in question."

The cases above cited afford, what is most important in practice, a plain and simple rule, easy in application, though, certainly, the reasons adduced by the Chief Judge for his decision in the last-mentioned case, rather impair the simplicity of the rule; for his Honour seems to have considered it doubtful whether there may not be a class of fixtures which do come within the meaning of goods and chattels in the construction of the bankrupt law: the ground of the assumed difference being, whether the articles in question may be removed with much or little injury to the building; which, it is obvious, will be frequently very difficult to ascertain so satis

1 1 Mont. & Ayrton, 494.