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of the security, but had merely alleged
that the covenant sued on was void, as
having been entered into pursuant to an
usurious contract for taking more than £5
per cent, interest. Such a contract would
clearly be void under the statute of Anne,
and that statute being still in force, the
plea is prima facie a good answer to the
plaintiff's demand, according to the princi-
ple laid down in Thibault r. Gibson, 12 M.
& W. 88. The question then arises, whether
the plaintiff gets rid of the effect of the
statute of Anne, by merely stating that
the contract was entered into after the
passing of the statute of Victoria. We
think he does not. The true effect of
the statute of Victoiia is to except from
the operation of the statute of Anne all
contracts not relating to land ; and when
the defendant has by his plea clearly
brought the case within the operation of
the old statute, it is not sufficient for the
plaintiff to reply that which may or may
not bring the contract within the operation
of the statute of Victoria. It was incum-
bent on him to aver all which is necessary
to show that the statute of Anne does not
apply to the question, — namely, that it
was entered into after the passing of the
statute of Victoria, and that it does not
relate to land. The replication does aver
that the contract was after the statute of
Victoria, but omits to aver that it does not
relate to land. It therefore fails to show
what the plaintiff was bound to make out,
namely, that the statute of Anne does not
apply. On these grounds, therefore, even
adopting Mr. Gray's argument, as we are
inclined to do, that the pica does not show
affirmatively that the security did comprise
an interest in land, still we think that the
plea is good, and that the replication offers
no sufficient answer."
M C. P. Div. 35, 42.



PART I.] WHAT ARE WITHIN THE STATUTE OF FRAUDS. 239

Certain tests have been judicially agreed on with regard to this
question, many if not all of which are contained in the note to
Duppa V. Mayo,^ in the last edition of Williams' Saunders, which
has the authority of that profound lawyer, the late Sir E. V. Wil-
liams. That note gives certain tests as applicable to particular
cases. Where the subject-matter of the contract is growing in the
land at the time of the sale, then if by the contract the thing sold
is to be delivered at once by the seller, the case is not within the
section. Another case is where, although the thing may have to
remain in the ground some time, it is to be delivered by the
seller finally, and the purcliaser is to have nothing to do with it
until it is severed, and that case also is not within the section.
Then there comes the class of cases where the purchaser is to take
the thing away himself. In such a case, where the things are
fruetus mdustriales, then, although they are still to derive bene-
fit from the land after the sale in order to become fit for delivery,
nevertheless it is merely a sale of goods, and not within the
section. If they are not fruetus industriales, then the question
seems to be whether it can be gathered from the contract that
they are intended to remain in the land for the advantage of the
purchaser, and are to derive benefit from so remaining ; then
part of the subject-matter of the contract is the interest in land,
and the case is within the section. But if the thing, not being
fruetus industriales, is to be delivered immediately, whether the
seller is to deliver it or the buyer is to enter and take it himself,
then the buyer is to derive no benefit from the land, and conse-
quently the contract is not for an interest in the land, but relates
solely to the thing sold itself." And accordingly, applying the
test last mentioned, the contract being for timber trees, and the
purchaser being bound to take them immediately, in Marshall v.
Green the contract was held to be not within the fourth section
of the statute.2

^ Wms. Saund. p. 395. The note is now settled that, with respect to emble-

as follows : " The principle of these deci- nients or fruetus industriales, etc., the

sions appears to be this, that wherever at corn and other growth of the earth which

the time of the contract it is contemplated are produced not spontaneously, but by

that the purchaser should derive a benefit labor and industry, a contract for the sale

from the further growth of the thing sold of them while growing, whether they are

from further vegetation and from the nu- in a state of maturity or whether they

triment to be afforded by the land, the have still to derive nutriment from the

contract is to be considered as for an in- land in order to bring them to that state,

terest in land ; but where the process of is not a contract for tlie sale of any in-

vegetation is over, or the parties agree that terest in land, but merely for the sale of

the thing sold shall be immediately with- goods."

drawn from the land, the land is to be ^ j^ Liford's Case, 11 Co. 50, it was

considered as a mere warehouse of the adjudged that if tenant in tail sell timber

thing sold, and the contract is for goods, trees to another, now they are a chattel in

This doctrine has been materially qualified the vendee, and his executors shall have

by later decisions, and it appears to be them, and in such case fictione juris they



240



COMMENTARIES ON SALES.



[book IV.



But though, as we have seen, growing crops, particularly those
that avcfructus industriales, are generally *to be considered goods,
wares and merchandise, and come within the seventeenth section
of the Statute of Frauds, yet they are not, absolutely, for all pur-
poses, considered goods or chattels. Thus, though as between
the executor and heir, and the executor and the remainder-man,
they are personal property, and may be taken as such in execution
and under a distress, they would pass by a conveyance of the land,
as part of the land, without express words, and, therefore, for that
purpose, they are realty, and not goods and chattels.^



are severed from the laud ; but if teuant
in tail die before actual severance, as to
the issue in tail they are parcel of his in-
heritance, and shall go with it, and the
vendee can't take them, and j'et quoad
the tenant in tail himself, they were sev-
ered for a time. Senible, that where the
tenant in fee simple sells timber trees to
another, they are, at common law, as to
all parties, even before the severance, chat-
tels, ;ind go to the executor of the vendee.
Whilst timber is standing, it constitutes
a part of the realty. When wrongfully
severed from the soil, its character as to
ownership is not changed. It continues
as pi-eviously the property of the owner of
the land, and can be pursued by him
wherever it is carried. All the remedies
are open to the owner which the law af-
fords in other cases of the wrongful re-
moval or conversion of personal property.
Schulenberg v. Harrinian, 21 Wall. 44.
In a New Brunswick case, Kerr v. Cou-
nell, Berton's R., by Dr. Stockton, 233,
it was held that a license to cut and
remove a certain quantity of timber from
lands described in the license, does not
convey an interest in lands within the
statute of frauds, or give any property in
standing trees.

In Webber v. Lee, 9 Q. B. Div. 315, it
was decided that a grant of a right to
shoot over land, and to take away a part
of the game killed, is a grant of an interest
in laud, and within the 4th section of the
statute. But no interest in land passes
on a contract to board and lodse. Wright
V. Stewart, 2 E. & E. 721. Nor, for the
use of a dock with a vessel, where there is
no exclusive possession of the dock granted,
but the rights of property and possession,
subject to the temporary occupation by the
vessel, remain in the owners of the dock.
Wells V. Kingston-upon-HuU, L. R. 10
C. P. 402. See Smith v. Overseers of St.
Michael, 3 E. & E. 383 ; Dean v. Hog;:,
10 Bing. 345 ; Watkins v. Overseers, L.
R. 3 Q. B. 350 ; Roads v. Trumpington,
L. R. 6 Q. B. 56 ; Wood v. Leadbitter,
13 M. & W. 833. And an agreement to



take shares in a mine conducted on the
cost-book principle, which gives the share-
holder an interest in a proportionate part
of the profits of the undertaking, confers
no interest in the land, though the em-
ployment and use of the land are essential
to the making of the profits. So in Tay-
ler V. Waters, 7 Taunt. 374, the case of a
box at the opera, the court held that the
grant was but a right of admission to the
opera house, and a license to enjoy an
amusement on land, and not a grant of an
interest in land.

^ Per Brett, J., in Brantoni v. Griffits,
1 C. P. Div. 349 ; at p. 354. And as the
English Bills of Sale Act, 1854 (17 and
18 Vic. c. 36), defines " personal chattels"
under that act, with reference to which
the bills of sale must be registered, to
mean "goods, furniture, fixtures, and
other articles capable of complete transfer
by delivery," and enacts that the personal
chattels shall be deemed to be in the ap-
parent possession of the person giving the
bill of sale so long as they remain on land
or other premises occupied by him, or as
they shall be used and enjoyed by him
in any place whatsoever, notwithstanding
that formal possession may have been taken
by or given to any other person ; it was
held that these words as to pereonal en-
joyment, taken together with the expres-
sion, "capable of complete transfer by
deliver}^" show that the act only applies
to things which, at the moment when the
bill of sale is given and the provisions of
the act are to be applied to it, might be
delivered to the assignee, and are not, but
are left in the enjoyment of the assignor ;
and that it follows that, as growing crops
are not capable of being used or enjoyed,
or of being delivered at the time when the
provisions of the act are said to apply to
them, they are not personal chattels within
its meaning. Brantom v. Griffits, 1 C. P.
Div. 349. Affirmed, on appeal, 2 C. P.
Div. 212. An Irish case to the contrary,
Sheridan v. McCartney, 11 Ir. C. L.
N. s. 506, which was doubted in Gough v.
Everard, 2 H. & C. 1, was disapproved by



PART I.] WHAT ARE WITHIN THE STATUTE OF FRAUDS.



241



Brett, J., in Brantom v. GrifSts, 1 C. P. Div.
at p. 355. But it was held, iu Ex parte
National Bank, 16 Ch. Div. 104, affirming
Brantom v. Griliits, that though a bill of
sale under the Bills of Sale Act, 1854, does
not require registration in respect of grow-
ing crops, yet when the crops are subse-



quently severed by the grantor, they be-
come personal chattels, and, if possession
has not been taken of them by the grantee
before the commencement of proceedings
in bankruptcy against the grantor, they
will pass to the trustee in liquidation.



lb



242



COMMENTARIES ON SALES.



[book IV.



BOOK IV.
PART II.
FIXTURES.



The cases with reference to fixtures in connection with the
Statute of Frauds are not numerous. In Jevons v. Roberts,^ Lit-
tledale, J., considered tenant's fixtures as being in close resem-
blance to those growing crops which are not the spontaneous
produce of the earth, but are raised by the labor and expense of
the occupier of the land.^ '



1 5 B. & C. 834.

2 The position of Littledale, J., in ef-
fect, is, that that which goes to the exec-
utor, whether growing crops or fixtures,
is within the 17th section of the statute ;
while that which go»s to the heir is with-
in the 4th section. His language is : "I
think that a sale of any growing produce
of the earth, reared by labor and expense,
in actual existence at the time of the con-
tract, whether it be in a state of maturity
or not, is not to be considered a sale of an
interest in or concerning land within the
4th section of the statute of frauds ; but
a contract for the sale of goods, wares, and
merchandise, within the 17th section of
that statute. Such an interest goes to the
executor, and not to the heir, and any-
thing which goes to the executor and not
to the heir, may be taken in execution
under a fi. fa. This is the rule of law as to
tenants' fixtures, which bear a very close
resemblance to those growing crops which
are not the spontaneous produce of the
earth, but are raised by the labor and ex-
pense of the occupier of the land. It has
been held that vats, coppers, etc., set up
in a house by a lessee for years in relation
to his trade, may be taken in execution
under a writ of fieri facias issued against
him, Poole's Case, 1 Salk. 368 ; but that
fixtures of a similar description cannot be
taken in execution under a fie7-i facias is-
sued against a party who was seized in fee
of the house in which thej' were situate,
upon the ground that they would go to his
heir, and not to his executor. Winn v.
Ingilby, 5 B. & Aid. 625. Now, a growing
crop of corn or potatoes, or of any vegetable



which is produced not spontaneously by
the earth, but by the labor and expense of
the occupier, goes to the executor and not
to the heir of tenant in fee simple. It
would seem, therefore, that such a grow-
ing crop may be seized under & fieri facias
issued against the owner of the inheritance,
as his goods and chattels, even while they
are annexed to the freehold. I cannot,
therefore, consider the annual produce of
land which is proceeding to a stiite of ma-
turity, and which, when taken at matur-
ity, will be severed from the ground and-
become movable goods and chattels, as an
interest in or concerning land within the
meaning of the 4th section of the statute
of frauds, which seems to me to mean land
taken as mere land, and not its annual
growing productions."

As the question as to what are fixtures,
is also important under Bills of Sale Acts,
and otherwise, we here set out the author-
ities relating thereto, at some length.

In Ex parte Astbury, In re Richards,
L. R. 4 Ch. Ap. 630, an iron manufac-
turer made an equitable mortgage of his
rolling-mills, of which he held a lease, and
shortly afterwards became bankrupt. Be-
sides the fixed Juachinery, the mills con-
tained the following chattels used in the
manufacture : 1 A large number of du-
plicate iron rolls of various sizes made to
be fitted into the machine and used for
diff'erent .sizes of iron. Some of these
were fitted to the machine and had been
used, and others had not yet been fitted.
2. Straightening plates, which were broad
iron plates embedded in the floor, for
straightening the iron when taken out



PART II.]



FIXTURES.



243



Assumpsit was brought for goods sold and delivered, and the
question was whether the plaintiff could recover under such a



of the furnace. 3. Weighing machines,
which were deposited in holes dug in the
earth, and lined with brick-work, so that
the weighing plate was level with the sur-
face of the ground, but which were not
fixed to the brick work. It was held, on
a case stated in bankruptcy between the
mortgagees and the bankrupts' assignees :
First. That such of the rolls as had been
fitted to the machine were fixtures, and
passed to the mortgagees ; but that such
of the rolls as had not been fitted to it,
were not fixtures, and belonged to the as-
signees. Secmtdly. That the straighten-
ing plates were fixtures, and passed to the
mortgagees. Thirdly. That the weigh-
ing machines were not fixtures, and be-
longed to the assignees.

As the case covers different points of-
ten occurring, with reference to the law of
fixtures, we ijuote fully from the judgment
in the case delivered by Sir G. M. Gifford,
L. J., as follows : —

" The questions in cases of this descrip-
tion are, for the most part, much more
questions of fact than of law, for to my
mind the law has been settled, but the
facts necessarily differ more or less in each
particular case.

" With respect to the law, it is ad-
mitted that where there is a mortgage of
a manufactory, and part of the machinery
used in it is a fixture, that part passes.
We have, therefore, to determine what,
according to the law, are, in a proper
sense, fixtures. There are two dicta which
will be sufiicient to guide us for the pres-
ent purpose. In Mather v. Fraser, it was
decided that the article must be an essen-
tial part of the machine. 1 think that
was all that it was necessary to lay down
in that case. The dictum of Lord Cot-
tenham in Fisher v. Dixon (12 CI. & F.
312), was that all 'belonging to the ma-
chine ' would pass, and 1 should say in
tliis case the proper test to lay down would
be that the chattel must be ' something that
belongs to the machine as part of it.'
Now, these machines were rolling ma-
chines, and there appears to be connected
with rolling machines, parts which be-
yond all doubts are not fixed, in the strict
sense of the term ; but it is in evidence
that if a machine is ordered, it is sent
with one set of rolls, and it is quite mani-
fest that without rolls the machine could
not do any part of the work for which it
is made. One set of rolls clearly passes.
But we have here dui)licate rolls ; and with
reference to them, — I am not now speak-
ing of rolls which can be considered as, in
any sense, unfinished, but of duplicate



rolls which have been actually fitted to the
machine, — I cannot see why, if one set of
rolls passes, the duj)licate rolls should not
pass also. It comes, in fact, to this, that
the machine with one set of rolls is a per-
fect machine, but the machine with a du-
plicate set is a more perfect machine. I
think, therefore, that each set of rolls
necessarily belongs to the machine as part
of it. I do not think that this is at all
affected by the didum of Fitzhcrbert ; but
if it was, my answer would be, that this
subject has been considered much more of
late years than it was in olden times, and
that the matter decided was with regard to
a question of distress. If it were desired
"to reduce the question to an absurdity, it
would be by supposing a case of duplicate
latch-keys to a door, and holding that one
only should pass, and not the other. The
fact is, that whether there is one set of
rolls or a duplicate set, they are each part
and parcel of the machine, and come
within the term 'belonging to the ma-
chine as part of it.' Then comes the case
as to the different sizes of rolls. But if
the duplicates of the same size pass, it fol-
lows that the rolls of different sizes pass, if
they render the machine still more perfect
than if the rolls were all of the same size.
" Then we come to another and differ-
ent class of rolls, and there I confess I dif-
fer from the registrar who has given his
opinion in this case. I allude to those
rolls which had been made for the purpose
of being used in this machine ; and had
been sent to the mill for that purpose,
but had never been fitted to the machine,
and which required something more to be
done to fit them to the machine in order
that they might be used in it. I think
that if a man mortgages a machine, and
afterwards, the machine itself being per-
fect, and fitted with rolls, and everything
else connected with it, other rolls are sent
for to be used with the machine, but those
rolls cannot be used unless and until they
are fitted to the machine, it would be
going a long way to say that the mort-
gagor should be compelled to fit those rolls
to the machine, and should be j.recluded
from saying that they do not form a part
of the machine. Therefore, I am of the
opinion that, as regards tlie duplicate rolls,
as regards the rolls of dili'erent sizes, as
regard all the rolls which have been actu-
ally fitted to the machine, tiiey belong to
the machine as part of the machine — they
are, in fact, essential ])arts of the machine.
But I cannot hold that the rolls which
have never been fitted to the machine, and
have never been used in the machine, and



^



244



COMMENTARIES ON SALES.



[book IV.



count the value of grates and other fixtures which the plaintiff
had fixed to a house in which he carried on business, to which

which require something more to be done
to them before they are fitted to the ma-
chine, belong to the machine, or that they
are essential parts of it. Therefore, in that
respect, the order will be varied. The two
points which remain to be disposed of in
this question are, first, as to the straight-
ening plates ; and secondly, as to the
weigliing machines. I cannot agree to the
suggestion of Mr. Jessel that because the
mortgagor in this case was a leaseholder,
and not a freeholder, the articles which
are fixtures will not pass to the mortgagee.
Whether he is a freeholder or a lease-
holder, the same rule clearly and indubi-
ably would apply, and the only question
is, whether the straightening plates and'
the weighing machines are fixtures. With
regard to the straightening plates, two
cases were cited, one of the Metropolitan
Counties Society v. Brown, and another of
Bales V. Duke of Beaufort. The latter
case clearly has no application, for that
was a case in which, there being chattels
which, as between the lessor and lessee,
the lessee might remove, an execution
creditor of the lessee was held entitled to
take them. As regards the former case,
the point was wholly different from the
point in this case, because there the
straightening plates certainly were not
fixeii in the mode in which these straigiit-
ening plates appear from the evidence to
be fixed. It is only necessary to read
some portions of the evidence to show that
these straightening plates are clearly fix-
tures, and, in fact, just as much part of
the floor as any pavement would be ; and,
certainly, it would be astonishing to me
if an ordinary pavement were regarded as
a tiling that could be removed by a mort-
gagor as against his mortgagee. (His
Lordship then referred to the evidence,
and continued : ) Upon this evidence, I
must assume that the plates round the
straiglitening plates are part of the ordi-
nary floor of the place, and that tlie
straightening plates are just as nmch part
of the ordinary floor as the plates around
them. I look upon these straightening
])lates as in the same position as a flag-
stone laid down and set in, and certainly
if anything in the world is a fixture, I
should conceive that a flagstone laid down
and set in would be a fixture. In fact, the
registrar seems to have fallen into this
mistake by laying rather too much stress
on what was said in the case of Mather v.
Fraser (2 K. & .1. 536), as to nothing being
a fixture which could stand by its own
weight. No doubt a flat plate will rest
by its own weight, but if you have it laid



in, embedded, and overlaid with that
which is part of the permanent floor, and
the permanent floor cannot be removed
without damage to the freehold, as it
clearly cannot be here, I can have no
doubt whatever but that the straightening
plates are fixtures.

" But then, with regard to the weigh-
ing machines, I think the case is wholly
different. The evidence is clear that weigh-
ing machines of this description are fre-
quently put upon wheels, and are so used.
As regards these weighing machines, it
appears that where they are placed inside
the building, the floor is prepared for them,
and where they are placed outside, the soil
is prepared for them ; that is to say, a
square receptacle is make and bricked, the
weighing machine is placed in it, and may,
of course, be taken out again, for it is not
fixed by nails or by screws, or in any other
way. One of the witnesses says : ' I took
a piece of thin iron about half an inch
thick and trickled around the outside of it,
ami from that I could see there was some
brick-work put up in order to secure the
outside ; there was a space all round of
from five-eighths to tiiree-fourths of an
inch.' ^Ir. Fry argued that the brick-
work was the same thing as if there had
been a fraVne, and that the brick-work is
part and parcel of the machine. To that
argument I cannot assent. Suppose in
this case a number of brick places had been
made, into which it had been convenient
to put weiglits, beyond all doubt the
weights would not have been fixtures. In
the same way, if there had been a founda-
tion of granite for a cannon or a large tel-
escope, neither the cannon nor the large
telescope would be a fixture. The prei^a-
ration of the soil does not make the ma-
chine a fixture, nor does the fact of its
being put into the receptacle so ])repared
for it make it a fixture." And see >letro-
politan Counties' Society v. Brown, '2C
Beav. 454 ; Wystow's Case, M., 14 H. 3,
fo. 25 ])1., 6 ; Place v. Fagg, 1 M. & Ry.



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