Part I. Growing crops and substi assigned are specifically described, otherwise in respect of fixtures not so described they will (with the exceptions hereafter mentioned) be void, "except as against the "grantor" (1). It is evident that a bill of sale made in the form given by the Act, but having no schedule, would be void for uncertainty, inasmuch as the statutory form refers to the schedule for a description of the articles assigned. Moreover, although the schedule may contain the requisite description, a bill of sale will (with the exceptions hereafter mentioned) be void, except as against the grantor, in respect of things of which he was not the true owner (m) at the time of the execution of the bill of sale (n). The exceptions to the provisions of the last two sections tuted fixtures. are contained in sect. 6, which provides that nothing contained in these sections shall render a bill of sale void in respect of any of the following things, (that is to say)— (1.) Any growing crops separately assigned or charged, where such crops were actually growing at the time when the bill of sale was executed (o). (2.) Any fixtures separately assigned or charged, and any plant or trade machinery, where such fixtures, plant or trade machinery are used in, attached (7) Sect. 4. The difficulty made between assigns by deed, and assigns by act of law. (m) For the purposes of this Act, a tenant must be considered the owner of tenants' fixtures, although, as we have seen, strictly speaking, the property in the fixtures, until severed, is in the landlord. Ante, Chap. I., p. 31. (n) Sect. 5. (o) As to growing crops, see ante, p. 283. to, or brought upon any land, farm, factory, Chap. V. s. 2. workshop, shop, house, warehouse, or other place in substitution for any of the like fixtures, plant or trade machinery specifically described in the The result of these provisions is that, except in the case Bills of sale of after-acquired of growing crops and substituted fixtures, plant or trade property. machinery, a mortgage by bill of sale of after-acquired property is void, "except as against the grantor." The Act provides that bills of sale given by way of Attestation and registrasecurity for the payment of money are to be registered tion of bills of under the Act of 1878, but it also contains fresh provisions sale for secuas to attestation, registration and inspection, and amends rity of money. and repeals some of the provisions of that Act in these respects (p). By sect. 8, if the consideration for which a bill of sale is given is not truly set forth, or if the bill of sale be not duly attested or registered, it will be absolutely void (2). ruptcy. Sect. 15, by repealing sect. 20 of the Act of 1878, Fixtures in deprives holders of bills of sale of chattels to which this possession of grantor upon Act applies, of the security which that section gave them his bank-" in the event of the bankruptcy of the grantor (r). But this does not affect the right of the grantee of fixtures in such a case, for, as will be seen in the next section (s), the provisions of the Bankruptcy Act on this subject are not applicable to fixtures. The grantee of fixtures under a duly registered bill of sale is therefore entitled to them, although the grantor becomes bankrupt, and they remain in his possession at the commencement of the bankruptcy. (p) Sects. 8, 10, 11, 16. (9) Under the Act of 1878, the bill of sale is void only as against the grantor, see ante, p. 287. (r) But such repeal does Part I. Right of trustee to property of which bank rupt reputed owner. SECTION III. Of the Transfer of Fixtures in the case of Bankruptcy. THE earlier Bankruptcy Acts (†) and the more recent enactment of 1869 (u) have given rise to some questions respecting fixtures, which depend upon the peculiar nature of this species of property. Perhaps the points most frequently before the Courts have arisen on the bankruptcy of the mortgagors of premises and fixtures, who have remained in possession of the property after the mortgage. And the question has been whether the trustee in bankruptcy is entitled to claim the fixtures as part of the goods and chattels of the bankrupt, or as being in his reputed ownership at the time of the bankruptcy; or whether the mortgagee can legally claim them as part and parcel of the mortgaged estate. By sect. 44 of the Bankruptcy Act, 1883 (x), which comes into operation on the 1st day of January, 1884 (y), it is provided that the property of the bankrupt divisible amongst his creditors shall comprise, inter alia"All goods being, at the commencement of the bank"ruptcy, in the possession, order, or disposition of "the bankrupt, in his trade or business, by the "consent and permission of the true owner, under "such circumstances that he is the reputed owner "thereof; provided that things in action other "than debts due or growing due to the bankrupt "in the course of his trade or business, shall not "be deemed goods within the meaning of this "section." (t) 21 Jac. 1, c. 19; 6 Geo. 4, c. 16; 12 & 13 Vict. c. 106. (u) 32 & 33 Vict. c. 71. (x) 46 & 47 Vict. c. 52. (y) Sect. 3. The provisions of this section being very similar to those Chap. V. s. 3. contained in the earlier Acts, the decisions under such Acts may be usefully referred to in considering the construction to be placed upon this section. In pursuing this inquiry, it will be proper to notice in Fixed articles the first place the case of Horn v. Baker (2), the particulars not goods and chattels of which will be found in a former page (a). The question within the Bankruptcy arose there, under the statute of 21 Jac. I. c. 19, by which Acts. the subject was then governed. Certain stills fixed to the freehold had been leased together with a distillery for a term; the lessee became bankrupt; and it was held that the stills did not pass to the assignees under the description of goods and chattels within the meaning of the statute. And the Court drew a distinction between these articles and certain other utensils which were not fixed, but merely stood upon frames or horses; and the latter they held would, pass to the assignees under the words of the statute (b). This case and that of Ryall v. Rolle (c), which has also been already noticed, may be considered as the leading (=) 9 East, 215. (a) Ante, p. 4. (b) With respect to the moveable utensils in this case, there was nothing to rebut the reputed ownership of the bankrupt as to them; but the Court considered that they would not have passed to the assignees had there been a known usage of trade of leasing such things together with the premises; for then the use and possession of them would not have carried the reputed ownership. And it is now well established that if there be a known common usage for the hire of chattels, it will negative the rule in bankruptcy as to reputed ownership. See Storer v. (c) 1 Atk. 165, ante, p. 301. Part I. Clerk v. Coombs v. Ex parte Barclay, In re Gawan. decisions upon this subject: and the principle to be deduced from them, viz. that fixtures constitute part of the freehold, and are not to be taken as goods and chattels within the meaning of the Bankruptcy Acts, has been recognized and affirmed by a series of very important decisions of more modern date. Thus, in the case of Clerk v. Crownshaw, in the Court of King's Bench (d), a tenant took a lease of a mill and iron forge, and bought the fixed and moveable implements therein; but it was agreed that they should be delivered up at the determination of the term at a valuation, if the lessors gave notice of their desire to have them. The tenant afterwards assigned the premises and machinery by way of mortgage, but continued in possession of them, and became bankrupt. It was held that this case fell within the principle of Horn v. Baker, and was governed by it; and a like distinction was taken, as in that case, between the fixed and the moveable property in the mill. Again, in another case which followed soon afterwards in the same Court, a similar question arose. In Coombs v. Beaumont (e), a steam engine, &c., fixed up in a colliery, was leased to a tenant to be used by him during the term, but to be held as the property of the landlord. It was ruled, on the authority of Horn v. Baker, that these articles did not come under the description of "goods and chattels," and did not pass as such to the assignees under a commission of bankruptcy against the tenant (ƒ). The point under consideration may be considered to have been finally settled in 1855, by the case of Ex parte (d) 3 B. & Ad. 804. (f) See also Boydell v. M. & W. at p. 414, per Lord Abinger, C. B.; Freshney v. Carrick, 1 H. & N. at p. 658, per Pollock, C. B.; In re M'Kibbin, 4 Ir. Ch. R. 520; Exparte Willoughby D' Eresby, 29 W. R. 527. |