1855. Chancery.

In re M'KIBBIN

Judgment.

steady by means of bolts and screws; that the steam-engine was fixed as before stated, and in no other way; and that such iron bolts might be unscrewed, and the whole of the steam-engine a Bankrupt. be entirely removed, with the exception of the entablature plate; that the engine and gearing thereof, except the entablature plate and also the upright and tumbling shafts, could be removed from their respective places without injury to the buildings in which the same respectively were, or to the walls or floors thereof, and without removing any brick or stone work except the brick casing or flues round the boilers." Similar evidence was given by another witness. For the plaintiffs there was evidence to some extent contradictory of this, but not very material. The mill gearing was not conveyed by the mortgage deed, but as to the remainder of the property it was precisely as here, save that the case here is, if anything, stronger, as the boilers there were in a separate house. The Master found that the gearing, &c., which was not included in the conveyance, was in the order and disposition of the bankrupt, but aliter as to the engine and boilers. When the case came before the Court on the exceptions it was decided, not on the connection of the steam-engine with the boilers, but on the connection of the engines themselves with the freehold, which resembled the connection in the present case; and we have here, in addition, the connection of the boilers with the engine. The Master likewise found that the engine was removeable by a tenant, and valued as between outgoing and incoming tenant. Shadwell, V. C., there says:"The mortgagees are only tenants at will to the mortgagors, part of whose fee-simple estate was the steam-engine. The law, therefore, regarding the right of the tenant to remove machinery put up by him, and the evidence as to local custom authorising tenants to remove machinery, are not applicable to the present case. In Horn v. Baker, Horn and Jackson were in possession as tenants of a distillery house, wherein there were stills set in brickwork, and let into the ground, and vats resting on brick-work, but not fixed in the ground. Horn and Jackson became bankrupts; the stills had not been set up by them; and in an action by the reversioner against the assignees, it was held that because the stills

were fixed to the freehold they did not pass to the assignees. The mortgagor himself could not remove these things at all while the mortgage is unpaid. He is tenant at will to the mortgagee, whose property they are. If any thing is to be founded on the distinction between the mortgagee of a lessee and of an owner in fee, the case ought to be stronger as to the latter in favour of the assignees, because the tenant in fee can, if he pleases, remove every thing." The Master's report was confirmed.

I may here mention a case, Fletcher v. Manning (a), before Baron Rolfe, now Lord Cranworth; in that case a mill and the machinery had been mortgaged, and the mortgagor continued in possession until the time of his bankruptcy. It was held that the machinery was not in the order and disposition of the bankrupt. In that case, on the 10th of February 1840, the Sheriff seized the whole property of the bankrupt, who on the 11th committed an act of bankruptcy. On the 12th a fiat was issued against him, and after the act of bankruptcy the Sheriff sold the property and paid the proceeds to the defendants. The assignees brought the action for the amount as for money had and received to their use. Amongst other property sold by the Sheriff was certain machinery in a manufactory at Manchester; and on the trial it appeared that in September 1835 the bankrupt had assigned to a third party all his interest in the manufactory at Manchester, including the machinery contained therein, subject to a previous mortgage. Counsel for the plaintiff argued that the jury, in the event of their finding for the plaintiff, must assess the value of the machinery, as having been in the order and disposition of the bankrupt. Rolfe, B., however, told the jury that if the machinery sold was that which had been assigned, the plaintiffs had no title to it, as the bankrupts had no interest therein. As to this, however, there was a motion to increase the damages, and it was ultimately referred to the Master to determine the items. Had it been necessary, I should have tried to discover the ultimate facts of the case; but I think the question so clear upon the other authorities, that I shall not make any further (a) 1 Car. & Kir. 350.

1855. Chancery.

In re M'KIBBIN a Bankrupt.

Judgment.

1855. Chancery.

In re M'KIBBIN

a Bankrupt.

Judgment.

inquiries respecting it. The next case to which I shall refer is
Boysdale v. M'Michael (a). In that case the bankrupt was lessee
of a house in which were certain fixtures, stores, pier glasses, &c.,
which had been taken at a valuation by him and paid for; he
had therefore clearly the right of removing them. The plaintiff
took an assignment of the house, expressly including all fixtures,
by way of security for a debt. The action was brought against
the assignees in bankruptcy, for removing some of the fixtures.
It was sworn that these fixtures were of about two-thirds less value
when severed than when attached; but I do not know whether such
evidence is of much importance, as the expense of taking down,
removal and again putting up would necessarily cause a considerable
loss of value. Trappes v. Harter (b) was much relied on in argument;
and Parke, B., said, as to Horn v. Baker :—“I always considered
that the case of Horn v. Baker had determined that fixtures affixed
to the freehold were not 'goods and chattels' within the order and
disposition of the bankrupt. These articles were part of the freehold
during the term, the tenant having a right to remove them at the
end of the term." He then suggested that a tenant has a special
property even in materials which he cannot remove, e. g.,
the
materials of a house blown down, and proceeded
:- "The real
nature of the tenant's interest is, that he has a right to remove
the fixtures during the term, and that interest has been held
sufficient to enable the Sheriff to seize them under a fi. fa. ; but
Horn v. Baker decides that they are not goods and chattels within
the meaning of the clause as to the order and disposition of the bank-
rupt." Alderson, B., then says:-"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 is immaterial whether the mortgagee acquires the
right as tenant for life or for years. The simple and plain rule is,
that fixtures are not 'goods and chattels' within the order and dispo-
sition of the bankrupt."

The case of Trappes v. Harter, to which reference was made in Boysdale v. M'Michael, was one of much peculiarity, and it is

(a) C. M. & R. 177.

(b) 2 C. & Mee. 153.

distinguishable from all the other cases, on the grounds following-First, the mortgage did not include the articles in question; secondly, there was a custom found to treat them as chattels of the lessees; and thirdly, the mortgagee had himself, after the mortgage, and before the bankruptcy, concurred in representing that they were part of the assets of the bankrupt. Rufford v. Bishop (a) appears really to have been conversant only with the machinery which was not fixed to the freehold, mere utensils of trade; and it was decided more on evidence respecting a custom of letting such articles with iron works.

All of the above-mentioned cases have been decisions of the Superior Courts; but there are also many decisions in the Bankrupt Court, and the great preponderance of opinion, as evidenced by those cases, is in favour of the view taken in Ryall v. Rowles; although it must be admitted that there is some discrepancy between the opinions of some of the Judges of the Superior Courts and of those of the Courts of Bankruptcy. The first of the cases before the Judges in Bankruptcy to which I shall refer is Ex parte Lloyd, In re Ogden (b). In that case there was a mortgage of premises and machinery, including a steam-engine, erected for trade purposes, and fixed to the freehold. The engine and machinery were for the purpose of cotton-spinning, and upon the evidence the steam-engine seems to have been easily moveable, very much as in this case. The affidavits are said to have been contradictory; but one described in the report as having been the most precise, stated "That the steamengine could be very readily removed without injury to the freehold; that there was a large stone put into each wall, which was of brick; an aperture was left in each wall over each large stone; then there was a bed cut into each stone, fully the depth of the entablature plate or beam; the ends or bearing parts of this entablature plate or beam were put into those beds, and hot lead poured to fill the crevice or vacant parts, to keep it firm in its resting on those stones; that the weight of the walking beam rests entirely upon this entablature, and a cast-iron centre pillar which rests on (a) 5 Russ. 346.

(b) 1 M. & Ayr. 495; S. C., 3 Dea. & Chit. 765.

1855. Chancery.

In re M'KIBBIN

a Bankrupt.

Judgment.

1855. Chancery.

In re M'KIBBIN a Bankrupt.

Judgment.

the stone foundation put in for the engine, but not fixed to the freehold that the engine could be very easily removed by raising the entablature plate with a screw jack, and by that means the end of the entablature plate or beam raised out of the bed cut into the stones, and then lowered down by common blocks, without any injury to the building, and without disturbing or injuring the stones in the least degree." The engine under those circumstances was held not to have been a chattel in the order and disposition of the bankrupt. Trappes v. Harter was very strongly relied on; but Sir George Rose said, in the course of the argument:-" The question in Trappes v. Harter was the intent, as to the machinery passing by the mortgage deed, as such;" and the Chief Judge observed in the course of his judgment :-" The question then before the Court is reduced to this; are the fixtures 'goods and chattels' within the meaning of the Bankrupt Act? This question, the decision of Trappes v. Harter leaves wholly untouched, because the Court having decided that the machinery in question was not included in the mortgage, it passed to the assignees as part of the property of which the bankrupt was the true as well as the apparent owner.” That, I apprehend, was the case of a steam-engine also very like this in the circumstances.

As to the matter of a steam-engine, I have been unable to discover any case where a steam-engine has been decided to be removeable, and it is difficult to say that such an article can be removed without injury to the premises. Of course, if it be meant that it can be removed without essentially damaging the mere workmanship of the building, it may be the case; but the building erected for a steam-engine is in general useless for any purpose, save to put another steam-engine there; and unless the phrase "doing injury” be confined to displacing stone, glass or bricks, it is hard to say that injury is not done by a removal which renders the structure wholly useless, until the machine be replaced, or a similar one provided.

The Chief Judge then, in Ex parte Lloyd, after showing from various cases that such fixtures were, to some intents, personal chattels, said:"Adopting, therefore, the principle laid down in Trappes