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LANDLORD AND TENANT-DISTRESS-FIXTURES.
Hellawell v. Eastwood, 20 Law Jour. Exch. 154.
ANOTHER important point in the law of distresses was decided in this case. It was whether cotton-spinning machines, which were fixed by means of screws, some into the floor and some into lead which had been poured in a melted state into holes in the stone, for the purpose of receiving the screws, were by law distrainable for the rent of the mill in which they were affixed. As the case was not touched by any of the statutes affecting distresses, it was decided entirely upon the liability of a thing to be distrained, as it stood at the common law. The counsel for the plaintiffs quoted Amos and Ferrard on Fixtures, where it is laid down, "that things adhering to the freehold cannot be taken under a distress... And this rule holds not merely in respect of such things as become by annexation parcel of the inheritance, and are not afterwards severable, but it applies to fixtures of whatever nature or construction, and whether put up for trade or for any other purpose" (2nd ed, p. 314), and they argued that the machines, being fixed with screws, were clearly fixtures. On the other side it was argued, that chattels so fixed to the land as to be easily removable, without injury to the land or to themselves, were distrainable. As far as regarded the exemption from distress, on the ground of injury to the machines, from the taking to pieces, which would have been necessary had they been carried to a pound, as by the common law they ought, that ground was held not to apply to them more than to any other chattel which could not be removed entire, as they were not of a perishable nature, and the only injury to their owner was the trouble of carrying them back from the pound and refitting them, and that the law cast upon him. But with regard to their being fixtures, more consideration was necessary. It is undisputed law, that whatever is fixed to the freehold, and becomes part of it, cannot be distrained. Independently of the detriment to the thing itself, it has become part of the thing demised, and the nature of distress is not to remove part of the thing itself for the rent, but only the inducta et illata upon the soil or house (Gilbert on Distresses, pp. 34, 48). Now the question whether the machines were parcel of the freehold, was held to depend upon two considerations; 1st. The mode of annexation, as affecting the safety and facility of their removal, without injury to the freehold or themselves. 2nd. On the object and purpose of the annexation, whether it was for the permanent and substantial improvement
of the dwelling, or for the more complete use and enjoyment of the chattel. And with regard to this last point, which indeed almost wholly governs the decision, Parke, B., in delivering the judgment of the court, expressed his opinion as follows: "The object and purpose of the annexation was not to improve the inheritance, but merely to render the machines steadier and more capable of convenient use as chattels. They never were part of the freehold any more than a carpet would be which is attached to the floor by nails, for the purpose of keeping it stretched out, or curtains, looking-glasses, pictures, and other matters of an ornamental nature, which have been slightly attached to the walls of the dwelling as furniture, and which is probably the reason why they and similar articles have been held in different cases to be removable."
Had this principle been more generally recognized, and the mere mode of annexation not so exclusively considered, it is probable that much of the difficulty, and no little of the confusion, that now attends the law of fixtures, might have been avoided. One of the sources of difficulty is in the ambiguous use of the word fixtures; it has been applied too generally to whatever is in any way affixed to the freehold, whether it become parcel of it thereby or not. The holding a fixture to be removable between landlord and tenant, and not between heir and executor, seems strange, if the mode of annexation be the same, and that alone be considered as the basis of the decision. But if the presumed intention of the person annexing a chattel to the freehold be also looked to, the inconsistency will disappear, and many apparently conflicting decisions will be reconciled. In Amos and Ferrard on Fixtures (p. 318, 2nd edit.), observations are made upon the contradiction between the point decided here, and which was contended for in Duck v. Braddyl (1 M'Clel. 217), with the case of the mill-stone. Now, it would doubtless be very difficult to distinguish between the two, if the mode of annexation only be looked at. But it is probable that the mill-stone was either demised with the mill, or put up together with it by the tenant, and constructively as much a parcel of the freehold as is the key of a door, although not actually affixed. If it were worn out, or discarded for a better, then either mill-stone or key would, it is submitted, revert to the state of a mere chattel. The first ground assigned for the privilege of the stocking frame, in Simpson v. Hartopp (1 Smith's L. C. 190*), viz. the injury to the stocking then weaving, could
not be now relied on.
RAILWAY-DEBT FOR CALLS
CALLS PAYABLE BY INSTALMENTS.
Ambergate Railway Company v. Norcliffe (in error), 20 Law Journ. Exch. 234. THE question, whether directors of a company, in making calls payable by instalments, legally exercise their statutory powers, has received the decision of the Court of Exchequer Chamber, and the validity of such calls may be taken to be clearly established. Against their validity was the decision of the court below in the present case, which was followed by the same court in the case of Ambergate, &c. Railway Company v. Coulthard (19 Law Journ. Exch. 311). In favour of their validity, a decision of the Court of Queen's Bench in The Architects' Insurance Company v. Wilson (16 Law Times, 124), which the Court of Exchequer, in two recent cases in which they gave judgment simultaneously, followed in preference to its former decisions, distinguishing, however, the case of Ambergate, &c. Railway Company v. Coulthard, as supportable (although not decided on that ground), inasmuch as in it the action was brought before the second instalment was due. It would seem, therefore, that although a call made by instalments be good, yet, except in its bearing upon the question of interest, little is gained by making the first instalment payable on an earlier day than the second; for if the shareholders are not willing to pay, no proceedings can be taken to compel them to pay before the day for the payment of the last instalment arrives.
Of other special defences to the statutory action for calls we may notice bankruptcy, which, in the case of the South Staffordshire Railway Company v. Burnside (20 Law Journ. Exch. 120), was held to be no defence. This decision, however, went only upon the construction of the 6 Geo. IV. c. 16, ss. 51, 56, and a new description of contingent claim is made provable for by the 178th section of the Consolidation Act.
As to another defence, that of infancy, there have been several decisions, (the latest being the London and North Western Railway Company v. M'Michael (20 Law Journ. Exch. 97)), the result of which would seem to be, that unless a defendant be still under age, or have by some positive step repudiated the ownership of his shares, he cannot escape being liable for calls made in respect of them.
Short Notes of New Books.
Foss's Lives of the Judges. Vols. III. and IV. London: Longman & Co.
Two more volumes which now commence to give a little more readable material. We hope ere long to pick a sufficiency of morceaux to fill an article. The book improves, and the research of the author is marvellous.
Baker's Practical Compendium of the Statutes, Cases, &c. affecting the Office of Coroner. London: Butterworths. 1851. THIS is really a very strange production for a law book, but notwithstanding an amusing one. The practitioner who opens it with a view of learning the law on any given point within the scope of a Coroner's duties will perchance light on a penny-a-line newspaper paragraph headed "HORRIBLE DISCLOSURE," or a Chapter on "Homœopathy,' or a List of Wrecks, &c. &c. The Appendix begins soon after the middle of the book, and contains heaps of Statutes (entire), Poor Law Orders, Board of Health Orders, &c. &c. Anything much less like a Compendium we have seldom seen. But it contains much useful matter nevertheless.
Fonblanque's Bankruptcy Reports. London: Butterworths.
VERY carefully and skilfully done. They will be a much more useful series than most of those we have had from the prolific reporting corps.
Macrae's Practice of Insolvency. London: Crockford, Essex Street. THIS book is fairly executed, and methodically arranged in the order in which the proceedings occur. We believe it will prove useful in practice, and that it will supply some very manifest deficiencies in other works.
Events of the Quarter.
THE Earl of Cottenham's lamented decease has taken place. His life will form the subject of an early Memoir.
NEW QUEEN'S COUNSEL.-The following gentlemen have been appointed as Queen's Counsel :-Messrs. Ingham, Warren, Pashley, Atherton, and Hugh Hill, of the Northern Circuit; Messrs. Willmore and Mellor, of the Midland Circuit; Mr. Bramwell, of the Home Circuit; Mr. Slade, of the Western Circuit; Mr. Phillimore, of the Oxford Circuit; and Messrs. Willcox, Headlam, Follett, W. T. S. Daniel, Glasse, Campbell, Craig, Chandless, and Bailly, of the Chancery Bar.
CALLS TO THE BAR.-INNER TEMPLE.-The following members of this society have been called to the bar:-May 2. Roger Fenton, of University College, London, B.A.; John Harrison Miller, of Wadham College, Oxford, M.A.; Mr. William Stuart, Mr. James Pearse Peachey; James Pearse, of St. John's College, Cambridge, B.A.; Thomas Hugh Markham, of Brasenose College, Oxford, B.A.; Mr. John Francis Campbell; and Arthur Codd, of Trinity College, Dublin, B.A.
June 17th.-Edward Pakenham Alderson, of Balliol College, Oxford, B.A.; George Slater, of Balliol College, Oxford, B.A.; Robert John Sandiford Farrar, Esq.; and William Gill, Esq.
MIDDLE TEMPLE, May 10th.-John Raymond, Esq., Thomas Geary, Esq., Joseph Shipton, Esq., and Joseph Kerr, Esq.
June 14th.-Louis Antoine Alfred Koenig, Esq., and William Hemings, Esq.
LINCOLN'S INN, May 8th.-Henry R. Farrer, M.A.; John G. Mayo, Esq.; Thomas P. Beckworth, B.A.; Townley Filgate, M.A.; Frank W. Bush, M.A.; Francis S. Reilly, M.A.; Francis H. Appach, M.A.; Henry Wilbraham, M.A.; Joseph N. Higgins, B.A.; Thomas W. Wigglesworth, M.A.; and James W. Langworthy, Esq.
GRAY'S INN, May 7th.-William Furner, Esq.
May 28th.-Edward Paul Page, Esq.
June 16th.-Jackson Gillbanks, Esq., LL.B. and B.A.
ATTORNEYS' CERTIFICATES.-The bill brought into the House of Commons by Lord Robert Grosvenor and Sir F. Thesiger, to repeal the annual certificate duty payable by attorneys, solicitors, proctors, writers to the signet, and notaries, has been printed. A certificate will be given under this act which will be, in all respects, equivalent to the present stamped certificate.
The annual examination in law instituted by the society of Gray's Inn, took place in the Hall on Thursday and Friday, the 5th
VOL. XV. NO. XXVIII.