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HYDE v. HYDE AND WOODMANSEE.

[Div.

went, leaving his wife in Utah. During his voyage | international law, and say that the marriage being to the Sandwich Islands he became convinced that valid when it was celebrated, the fact that polygamy the Mormon doctrines were erroneous, and on his is one of the incidents of the marriage contract in arrival he publicly renounced Mormonism and the place where it was celebrated, cannot invalidate preached against it. When this became known at it. the Salt Lake City, he was excommunicated according to the forms of the Mormons, and by the sentence of excommunication he was divorced from Cur. adv. vult. his wife, who was pronounced free to marry again. He was unable to return to the Salt Lake City, as his life would have been in danger, but he wrote to his wife, asking her to leave the country and join him. She refused, declaring that polygamy was preferable to licentiousness, and subsequently married the co-resp., with whom she has since lived at the Salt Lake City, and has had children by him.

Frederick Piercy, an artist, who had married a sister of the resp., and who had himself for some time professed Mormonism, proved that polygamy was allowed among the Mormons at Utah, each man taking as many wives as he was able to support, but he was certain that the petitioner had never more than one wife while he was among them.

case claims a dissolution of his marriage on the March 20.-WILDE, J. O.-The petitioner in this ground of the adultery of his wife. The alleged marriage was contracted at Utah, in the territories of the United States of America, and the petitioner and the resp. both professed the faith of the MorUtah and abandoned the faith, but the resp. has not. mous at the time. The petitioner has since quitted from him, apparently in accordance with the law obAfter the petitioner left Utah, the resp. was divorced taining among the Mormons, and has since taken another husband. This is the adultery complained of. Before the petitioner could obtain the relief he and others explained. The marriage, as it is called, seeks, some matters would have to be made clear Silas M. Fisher, a counsellor of the Supreme Court loci, the divorce would have to be determined void, would have to be established as binding by the lex of the United States, proved that a marriage by and the petitioner's conduct in wilfully separating Brigham Young, as head of the Mormon body in himself from his wife would have to be accounted Utah, would be recognised as a valid marriage by for. But I expressed at the hearing a strong doubt that court, provided both parties were unmarried at the time, and that there was no legal objection to and adopted among the Mormons was really a marwhether the union of man and woman as practised their being married. The local court of each state, riage in the sense understood in this, the Matrihowever, had exclusive jurisdiction in matrimonial monial Court of England, and whether persons suits, and the Supreme Court had no appellate so united could be considered husband and wife in jurisdiction over the local courts in these suits. the sense in which these words must be interpreted To give the Supreme Court jurisdiction in the in the Divorce Act. Further reflection has conmatter the petitioner would have to be resident infirmed this doubt, and has satisfied me that this the district of Columbia. A second marriage would court cannot properly exercise any jurisdiction be held polygamous by it or by any of the courts of the United States. Utah was a territory not within said to over such persons. arry state. Marriage has been well be something more than a either religious or civil-to be an institution. contract, WILDE, J. O.-What is the court of that ter- tracts do; but, beyond that, it confers a status. It creates mutual rights and obligations, as all conritory?

Witness.-The judge of the court of the territory is nominated by the President, and his appointment is confirmed by the Senate, and the court has jurisdiction in matrimonial suits arising in Utah. In such a case as this the judge would be governed by the laws of the United States, for although the people of the territory may make their own territorial laws, yet, if they are contrary to the laws of the United States, they are void, and would not be recognised by the judge of the court.

Dr. Spinks, for the petitioner, submitted that the marriage being valid in the place where it was contracted, the court would recognise its validity without entering into the question whether the law of England recognised the validity of a polygamous marriage. The court might not hold a polygamous marriage good, as contrary to the doctrine of Christendom; but this was a first marriage, and unless the court recognised it as valid, it would be holding that there was no such thing as marriage in Utah, and that there was no right of succession to property in the territory. As a principle everything was to be presumed in favour of marriage, and, therefore, he submitted that when the usual ceremony of marriage which bound one person to another had taken place, and the parties had afterwards lived together as man and wife, any court of any country should hold that such a marriage was valid. [WILDE, J. O.-It becomes necessary to define what marriage is. In Christendom it means an obligation on the two persons who contract it to cohabit with each other alone. Does a marriage in Utah mean that, or can a man there marry as many women as he pleases?] I put it as a matter of

The position or status of husband and wife is a of all Christian nations throw about that status a recognised one throughout Christendom. The laws variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring. What, then, is the nature of this institution in different nations; but what are its essential as understood in Christendom? Its incidents vary elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some prevailing identity and stood in Christendom, may for this purpose be universal basis. I conceive that marriage, as underand one woman, to the exclusion of all others. defined as the voluntary union for life of one man There are, no doubt, countries peopled by a large section of the human race in which men and women do not live or cohabit together upon these termscountries in which this institution and status are selves several women, whom they jealously guard not known. In such parts the men take to themfrom the rest of the world, and whose number is limited only by considerations of material means. But the status of these women in no way resembles that of the Christian "wife." In some parts they are slaves, in others perhaps not; in none do they stand, as in Christendom, upon the same level with the doubt in those countries laws adapted to this state man under whose protection they live. There are no the obligations of men and women standing to each of things-laws which regulate the duties and define other in these relations. It may be, and probably is, the case that the women there pass by some word or name which corresponds to the relation there existing between men and women "wife." But there is no magic in a name, and if our word

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is not the relation which in Christendom we recognise and intend by the words "husband" or "wife," but another and altogether different relation, the use of a common term to express these two separate relations will not make them one and the same, though it may tend to confuse them to a superficial observer. The language of Lord Brougham, in Warrender v. Warrender, 3 Cl. & Fin. 529, is very appropriate to these considerations: " 'If, in- | deed, there go two things under one and the same name in different countries, if that which is called marriage is of a different nature in each, there may be some room for holding that we are to consider the thing to which the parties have bound themselves according to its legal acceptance in the country where the obligation was contracted. But marriage is one and the same thing substantially all the Christian world over. Our whole law of marriage assumes this; and it is important to observe that we regard it as a wholly different thing-a different status-from Turkish or other marriages among infidel nations, because we clearly should never recognise the plurality of wives, and consequent validity of second marriages, standing the first, which second marriages the laws of those countries authorise and validate. This cannot be put on any rational ground, except our holding the infidel marriage to be something different from the Christian, and our also holding the Christian marriage to be the same everywhere. Therefore, all the courts of one country have to determine is, whether or not the thing called marriage, that known relation of persons, that relation which those courts are acquainted with, and know how to deal with, has been validly contracted in the other country where the parties professed to bind themselves. If the question is answered in the affirmative, a marriage has been had, the relation has been instituted, and these courts will deal with the rights of the parties under it according to the principles of the municipal law which they administer. Indeed, if we are to regard the nature of the contract in this respect as defined by the lex loci, it is difficult to see why we may not import from Turkey into England a marriage of such a nature as that it is capable of being followed by and subsisting with another, polygamy being there the essence of the contract.' Now, it is obvious that the matrimonial law of this country is adapted to the Christian marriage, and it is wholly inapplicable to polygamy. The matrimonial law is correspondent to the rights and obligations which the contract of marriage has, by the common understanding of the parties, created. Thus conjugal treatment may be enforced by a decree for restitution of conjugal rights. Adultery by either party gives a right to the other of judicial separation; that of the wife gives a right to a divorce; and that of the husband, if coupled with bigamy, is followed by the same penalty; personal violence, open concubinage or debauchery in face of the wife, her degradation in her home from social equality with the husband, and her displacement as the head of his household, are with us matrimonial offences, for they violate the vows of wedlock. A wife thus injured may claim a judicial separation and a permanent support from the husband, under the name of alimony, at the rate of about one-third of his income. If these and the like provisions and remedies were applied to polygamous unions, the court would be creating polygamous duties, not enforcing them, and furnishing remedies where there was no offence. For it would be quite unjust, and almost absurd, to visit a man who, among a polygamous community, had married two women, with divorce from the first woman, on the ground that, in our view of marriage, his conduct amounted to adultery coupled with bigamy. Nor would it be much more just or

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wise to attempt to enforce upon him that he should treat those with whom he had contracted marriage, in the polygamous sense of that term, with the consideration and according to the status which Christian marriage confers. If, then, the provisions adapted to our matrimonial system are not applicable to such a union as the present, is there any other to which the court can resort? We have in England no law framed on the scale of polygamy, or adjusted to its requirements; and it may be well doubted whether it would become the tribunals of this country to enforce the duties (even if we knew them) which belong to a system so utterly at variance with Christian conception of marriage, and so revolting to the ideas we entertain of the social position to be accorded to the weaker sex. This is hardly denied in argument, but it is suggested that the matrimonial law of this country may be properly applied to the first of a series of polygamous unions as a Christian marriage, and all subsequent unions, if any, as void-the first woman taken to wife as a "wife" in the sense intended by the Divorce Act, and all the rest as concubines. The inconsistencies that would flow from an attempt of this sort are startling enough. Under the provisions of the Divorce Acts the duty of cohabitation is enforced on either party at the request of the other in a suit for restitution of conjugal rights. But this duty is never enforced on one party if the other has committed adultery. A Mormon husband, therefore, who had married a second wife, would be incapable of this remedy, and this court could in no way assist him towards procuring the society of his wife if she chose to withdraw from him. And yet, by the very terms of his marriage compact, this second marriage was a thing allowed to him, and no cause of complaint in her who had acquiesced in that compact. And as the power of enforcing the duties of marriage would thus be lost, so would the remedy for breach of marriage vows be unjust and unfit. Fora prominent provision of the Divorce Act is, that a woman whose husband commits adultery may obtain a judicial separation from him. And so utterly at variance with Christian marriage is the notion of permitting the man to marry a second woman, that the Divorce Act goes further and declares that if the husband is guilty of bigamy as well as adultery it shall be a ground of divorce to the wife. A Mormon, therefore, who had according to the laws of his sect, and in entire accordance with the contract and understanding made with the first woman, gone through the same ceremony with a second, might find himself in the predicament, under the application of English law, of having no wife at all; for the first woman might obtain divorce on the ground of his bigamy and adultery, and the second might claim a decree declaring the second ceremony void, as he had a wife living at the time of its celebration; and all this without any act done with which he might be expected to reproach himself, or of which either woman would have the slightest right to complain. These difficulties may be pursued further in the reflection that, if a Mormon had married forty women in succession, this court might be obliged to pick out the fortieth as his only wife, and reject the rest. For it might well be that after the thirty-ninth marriage the first wife should die, and the fortieth union would then be the only valid one, the thirtyeight intervening ceremonies creating no matrimonial bond during the first wife's life. Is the court, then, justified in thus departing from the compact made by the parties themselves? Offences necessarily presuppose duties. There are no conjugal duties but those which are expressed or implied in the contract of marriage. And if the compact of a polygamous union does not carry with it those duties which it is the office of the marriage laws in this

ADM.]

THE PROCEEDS of the BONNE AMELIE-THE FLORA.

country to assert and enforce, such unions are not within the reach of that law. So much for the reason of the thing. There is, I fear, little to be found in our books in the way of direct authority. But there is the case of Ardaseer Curtsetjee v. Perozebog, reported in 10 Moo. P. C. p. 419, in which the Privy Council distinctly held that Parsee marriages were not within the force of a charter extending the jurisdiction of the Ecclesiastical Courts to Her Majesty's subjects in India, so far as the circumstances and occasions of the said people shall require. And the following passage sufficiently indicates the grounds upon which the court proceeded: "We do not pretend to know what may be the duties and obligations attending upon the matrimonial union between Parsees, nor what remedies may exist for the violation of them; but we conceive that there must be some laws or some customs having the effect of laws which apply to the married state of persons of this description. It may be that such laws and customs do not afford what we should deem, as between Christians, an adequate relief; but it must be recollected that the parties themselves could have contracted for the discharge of no other duties and obligations than such as from time out of mind were incident to their own caste, nor could they reasonably have expected more extensive remedies, if aggrieved, than were customarily afforded by their own usages." In conformity with these views the court must reject the prayer of this petition, but I may take the occasion of here observing that this decision is confined to that object. This court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons which people, living under the sanction of such unions, may have created for themselves. All that is intended to be here decided is, that as between each other they are not entitled to the remedies, the adjudication, or the relief of the matrimonial law of England.

Petition dismissed accordingly.

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of the damage suit, there remained a balance of 1357. 2s. 1d.

The owners did not appear in this suit also, but their proctor in the damage suit had entered a caveat against the payment of the proceeds, and claimed a lien upon them for his costs in that suit. The court was now moved to direct payment of the plts.' claim (the particulars of which sufficiently appear in the judgment) out of the above balance. V. Lushington for the plts.

Dr. LUSHINGTON.-This is, in point of amount, a trifling matter, but it behoves the court to be exceedingly cautious in exercising the power entrusted to it of directing sums demanded as necessaries to be paid out of the proceeds. Now the affidavit states two kinds of claims: one claim was clearly for necessaries such as money advanced for the purchase of butcher's meat and articles of that description, for the maintenance of the crew, and I have decided before, and again decide, that this comes within the terms of the Act of Parliament as necessaries, and that money advanced, not to pay for those necessaries where a debt for necessaries has been incurred, but in order to enable the master to purchase them, constitutes a valid claim. With respect to the other part of the claim, it is for two items, one for the expense of the harbour-master in coming up to London from Newcastle during the progress of the damage suit in order to assist the master, or for the master's interest in defence of this vessel, and the other for the costs of his coming up with the master to attend the trial. Now in no sense of the word can I consider these to be necessaries within the purview of the statute, but if no caveat had been entered, and if the owners in France had abandoned the proceeds which remain in the registry, I should have very much inclined to have acceded to this motion, and for this reason, that by the law of France the abandonment of the ship itself releases the owners from all personal responsibility, and that, therefore, by that act the plts.' right of action in respect of this, which is a just claim, would have been extinguished. As the case now stands all I can do is to pronounce for so much of the claim as relates to what I have described as, legally speaking, necessaries. With regard to the last two items I have mentioned I make no order.

Subsequently the court was satisfied that the French owners had executed an act of abandonment, and that the caveat was withdrawn, and it, therefore, decreed payment of all the items claimed.

Tuesday, Jan. 16.

THE FLORA.

Collision-Second arrest-Practice.

The jurisdiction which the court undoubtedly possesses to order a second arrest in respect of the same cause of action should be cautiously exercised.

Application for such an arrest should be made to the court itself.

This was an application for a supersedeas to issue of a second arrest of a vessel in respect of the same cause of action, and to condemn the plt. in the costs and damages occasioned by the second arrest. A suit in respect of damages had been commenced in the sum of 1000l. against the vessel and her cargo.

Bail had been given in the sum of 10007. and the property released, and it being desirable afterwards to increase the amount of the action to 30007. the

proctor for the defts. agreed to the increase, and sent to the plts.' proctor the names of the proposed bail; subsequently, however, the owners of the

ADM.]

THE PAUL-THE FLORA.

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vessel refused to give bail, and the plts. again | appraisement. This is the general, though I by no arrested her.

V. Lushington moved for a supersedeas and contended that the court only could order a second arrest in respect of the same cause of action, and that the cargo could not be arrested, as no freight had yet become due.

Dr. LUSHINGTON.-Surely, in all cases of damage, the plt. has a right in the first instance to arrest the cargo, as the presumption is that freight is due until the contrary is shown.

Brett. Q. C. and Clarkson contended that if the application for a second warrant had been made to the court it would have been granted, and therefore the defts. had no cause of complaint. At common law, in order to increase the amount of damages, a second suit is instituted and the first one discontinued, and that is in effect what has been done in the present case.

Dr. LUSHINGTON.-The court has no doubt that it has the jurisdiction to order a second arrest, but it is a power which should be cautiously exercised; and, unless under exceptional circumstances, only after an application to the court itself. Under all the circumstances, I shall allow the second arrest, but give neither party any costs. The present bail bond for 1000l. must be delivered up to be cancelled.

Tuesday, Feb. 13.

THE PAUL.

Salvage-Appraisement-Costs. Salvors are entitled to the costs of a commission of appraisement when it appears that there is a substantial difference between the appraised value and that alleged by the defts.

This was a salvage suit against the brig Paul and her cargo for services rendered in the month of September last by the screw steamer Betera, belonging to the Anglo-Egyptian Steam Navigation Company (Limited).

The defts. filed an affidavit alleging the cargo to consist of wool partially damaged, and to be of the value of 74791. 3s. 2d. The plts. were dissatisfied with this estimate, and issued a commission of appraisement under which the cargo was valued at 97277. 10s., or 22481. 6s. more than the defts.' valuation.

The Queen's Advocate and the Admiralty Advocate moved the court to condemn the plts. in the costs of the appraisement.

The Commodore, Spinks' Ecc. & Adm. Rep. 175, n. Brett, Q. C. and Butt, for the plts., opposed the motion, and asked that the defts. be condemned in the costs. The case of the Commodore is clearly distinguishable, for in that case the difference between the estimated and appraised value, was only 15%. In this case the value as appraised is nearly half as much again as that stated by the defts: The Persian, 1 W. Rob. 327;

The Magdalen, 5 L. T. Rep. N. S. 162.

Dr. LUSHINGTON.-I am of opinion that the necessity for this appraisement has been shown by the result. As a general rule the defts. are called upon to state the value of their property, and if the plts. are dissatisfied with the estimate they may obtain a commission of appraisement, and if it be thereby proved that the defts. have not stated the true value, the plts. are entitled to the costs of the

means say that it is the universal rule, but in this case there is such a substantial difference between the two estimates, that the plts. are clearly entitled to the costs of the appraisement.

Feb. 13 and 20.

(Before the Right Hon. Dr. LUSHINGTON.)
THE FLORA.

Collision-Arrest for freight not due—Release. Cargo on board a ship, to blame for a collision, can only be arrested to obtain payment of the freight due to the shipowner, and therefore, if no freight has accrued, the court will decree a release of the cargo.

Cargo consigned to Hamburg was shipped on board a barque which came into collision with a ship off Cornwall. The barque put into Plymouth, and was with her cargo arrested there, and remained under arrest. The consignees of the cargo declined to accept it at Plymouth, and the barque was subsequently held to blame for the collision.

The Court decreed a release of the cargo without costs.

ship Allan came into collision off Cornwall, and the On the 16th Nov. 1865, the barque Flora and the Flora in consequence put into Falmouth, where the vessel, "her tackle, apparel, and furniture, and the freight due for the transportation of the cargo laden on board the said vessel," were arrested. The owner of the Flora ultimately declined to give bail, and the consignees of the cargo, which was destined for Hamburg, refused to accept it at Plymouth and insisted upon its being delivered at Hamburg The charter-party contained no stipulations for in compliance with the terms of the charter-party. payments on account of freight.

On the 1st Feb. 1866, the Court heard the principal cause, and was of opinion that the Flora was alone to blame for the collision, and the Flora and her owners, and the freight due, were condemned in the damage.

Milward, Q. C. and V. Lushington, for the defts, moved for a release of the cargo arrested on account of freight.-Cargo on board a wrong-doing vessel cannot as cargo be arrested by the owners of the other vessel: (The Victor, 1 Lush. 72.) It may indeed be seized for freight, but then only for such as has accrued, which in this case is none, as nothing has been paid or agreed to be paid on account, and the consignees decline to accept the cargo at a port short of its destination and pay pro rata freight. If the seizure be sanctioned the shipowner may be compelled to pay money which he may never be reimbursed, as the goods might be lost during the remainder of the voyage, and the freight prospectively paid would then never become due. The plt. has a remedy over in personum against the deft., if the res is not sufficient to answer the claim. No case can be cited in which the owner of the cargo has been compelled, in order to obtain the release of his cargo, to pay anything not actually due:

The Leo, 1 Lush. 444; 6 L. T. Rep. N. S. 58;
The Rendoberg, 6 C. Rob. 142;

The Diana, 5 C. Rob. 60; 7 L. T. Rep. N. S. 397; The Vrow Catharina, 6 C. Rob. 269. But if the shipowner abandons the cargo the owner of it must either lose his property or pay a freight, for which, if the goods should be subsequently lost, he would never have been liable.

Brett, Q. C. and E. C. Clarkson for the plts.This is an application, not by the owner of cargo,

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but by the shipowner, the wrong-doer, and his object in asking for release of the cargo is that he may be enabled to earn freight, and not be liable to account for it to the plts. It is by the defts.' own default that the cargo has not been delivered at its port of destination, and the defts. are therefore bound to carry it on though at an additional loss. The shipowner's lien upon the cargo continues throughout the voyage, so as to enable him to earn the freight, and to that lien the plts. have now a right to succeed.

Milward, Q. C. in reply.-According to the contention on the other side, the plts. would now succeed to the defts.' lien upon the goods, in order that the defts. may still carry on the goods, and so earn the freight. The right must be transferred with all its incidents, but the plts. do not propose to carry on the cargo.

Dr. LUSHINGTON.-It is clear that the owners of cargo on board a vessel which has occasioned a collision are in no respect responsible for the damage, as they have no right of interference or control over the ship, and therefore cannot be to blame. But it is also clear that all the property which is on board the ship, and is the property of the shipowner, is liable, and therefore the cargo is usually arrested by the plts. in order to obtain payment of the freight to which the shipowner would have been entitled. But the rights of the shipowner to which the plts. succeed extend no further, and therefore, if no freight is actually due, no right of arrest attaches upon the cargo. In this case the cargo was to be delivered at Hamburg, and has been carried to Plymouth only, and there is no stipulation in the charter-party for payment on account of freight, and no acceptance of the cargo at Plymouth. No freight, therefore, is due, and though the master, as agent of the shipowners, may tranship the cargo and carry it on to the port of destination, and so earn the freight, yet this right, even if it had been asked for by the plts., could not have been transferred to them by reason of the collision. Under the circumstances, I must release the cargo, but without

costs.

COURT OF BANKRUPTCY. Reported by JOHN LEVY, Esq., Barrister-at-Law.

DUBLIN.

March 1866.

(Before LYNCH, J.)

Re THOMAS TREVEY.

Mortgagee - Reputed ownership clause · Goods and
chattels Fixtures and machinery attached to the free-
hold-What passes to assignees as goods and chattels
within the meaning of the reputed ownership clause.
Where trade fixtures are seizable under a fi. fa. they
will pass to the assignee under the reputed ownership
clause in case of bankruptcy.

Where there is a permanent annexation of machinery to
the freehold, it will not be regarded as goods and
chattels that will pass under the reputed ownership
cluse, but movable fixtures that are chargeable with
the condition of chattels by the severance of a tenant
will be held to be chattels for the benefit of his cre-
ditors generally as well as for the benefit of a parti-
cular creditor who might seize under a fi. fa.
Fixtures that are totally unannexed to the freehold and
are made steady by their own weight, but are worked
by movable belts put on to communicate motive power,
pass to the assignees as goods and chattels, and
where machinery is attached to the freehold for the

will

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purpose of making it steady in working, it will not be held to be so attached to the freehold as to prevent it becoming goods and chattels under the reputed ownership clause.

This case came before the court upon charge and discharge.

Hernan, Q. C. was for the assignees.

Heron, Q. C. and Hamill were for the mortgagees.-
They cited

Hellawell v. Eastwood, 6 Ex. 295;
Hutchinson v. M'Kay, 23 Beav. 416;
Coombe v. Beaumont, 5 B. & Ad. 72;
Roydel v. M Michael, C. M. & R. 179;
Penniston v. Waterfall, 8 El. & Bl. 876.

The facts appear in the judgment.

LYNCH, J. said:-In this case the mortgagee claims, as against the assignees, certain articles specified in a schedule annexed as being conveyed to him by his mortgagor. The assignees, on the other hand, claim these articles as belonging to them by virtue of the 313th section of the statute, as being goods or chattels in the possession of the bankrupt at the time he became bankrupt. No question now arises as to the property in question having been in the bankrupt's possession at the time he became bankrupt, and with the consent of the true owner; and the only question is, are they to be regarded as "goods or chattels within the meaning of this section? I have already decided as to several of the articles originally enumerated, and the case remains now before me only as to the articles in the schedule to Mr. Lynam's affidavit of the 22nd Feb. Perhaps there are no subjects in law more difficult to deal with than the question raised as to fixtures and the several relationships of property that are allowed to influence decisions as to them. The cases are legion; and each new case seems only the more to disturb any

fixed or certain rule that seemed deducible from former cases, and, indeed, on most questions on this subject, a court can easily give precedents that seem to uphold the doctrine it arrives at or is anxious to arrive at. However, it is my duty now to consider the decisions applicable to the case before me, and only as to it, and see whether, on rightly estimating them, these articles are to be treated as fixtures and not within the class of "goods and chattels" within the provision of the 313th section. In looking to the authorities, I am bound to regard the question in a fourfold aspect. 1. As respects the mortgagee, how he acquired title to these articles; whether as fixtures passing by the grant of the mill, or whether only by express contract. 2. I have to regard the law in the relationship which may make these things, although fixtures, seizable under a fi. fa. 3. I have to construe the 313th section to see can they, if fixtures, by any relationship pass under its language. 4. Whether, by the mode of annexation here, these things were ever converted from the original condition of being goods or chattels. On the first point, as to the mode by which the mortgagee acquired title to them, was it by means of the conveyance of the realty or by contract only? In Hutchinson v. M'Kay, 23 Beav. 416, the question arose as to the mortgagee's claim to articles more fixed than these articles can be argued to be, and the M. R. held they did not pass under the general words "mill or factory," and the general words "of fixtures, machinery, &c., attached and belonging to said mill." The M. R. says: "I do not doubt that looms are machinery in one sense, but the question is, are they, properly speaking, machinery belonging to the mill?.. To whatever purpose the mill may be applied, the steam-power, the gas-lighting, and the like do form a part of it, the others do not; the others

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