Fixtures, how Waterfall v. Mather v. transfer by delivery, but does not include chattel interests in real estate, nor shares or interest in the stock, funds, or securities of any government, or in the capital or property of any incorporated or joint stock company, nor choses in action, nor any stock or produce upon any farm or lands which, by virtue of any covenant or agreement, or of the custom of the country, ought not to be removed from any farm where the same shall be at the time of the making or giving of such bill of sale (s. 7). Under the Act of 1854, it was held that the words "personal chattels" comprised "fixtures capable of complete transfer by delivery" ("); and that "fixtures" meant things which, in contemplation of law, have a separate existence as fixtures, as distinct from their connexion with and adhesion to the freehold (s); but great difficulty existed in deciding what was a bill of sale or assurance of fixtures within the Act. It was not necessary to register a conveyance of, or contract concerning, land, by the mere force of which a legal or equitable interest in fixtures or other chattels as adjuncts to the land, was passed (t). But fixtures, which were only such for the purpose of trade and not as permanent adjuncts to the land, being liable to be distrained (u) and capable of transfer by delivery, were held within the Act when separately assigned, and were not exempt because the land may have been charged by the same instrument (x). A difficulty arose in Waterfall v. Penistone (r), from the fact that the additional fixtures passed by the prior mortgage; but in a later case (y) the decision was rested on the fact that the tenor of the instrument showed that the parties did not intend the additional fixtures to pass by the prior mortgage. A mortgage in fee of land was held to pass the fixtures thereon as part of the land, though they were trade fixtures and not mentioned in the deed, and the mortgage was held not to be a bill of sale within the statute (z); the same result followed if the fixtures were included in the same witnessing part as the land (), and the mortgage comprised all fixtures on the land, though not ejusdem generis with those enumerated (≈). In Mather v. Fraser (t) there (r) Waterfall v. Penistone, 3 Jur. N. S. 17; 6 E. & B. 876. (s) Exp. Daglish, 8 Ch. 1080, 1081, L. J. James. (t) Mather v. Fraser, 2 K. & J. 536 ; Brown v. Bateman, 2 L. R. C. P. 272; Meux v. Jacobs, 7 L. R. H. L. 481. (u) Halliwell v. Eastwood, 6 Exc. 295. (x) Waterfall v. Penistone, sup. But see 2 Dav. Conv. 739, ed. 3. (y) Walmsley v. Milne, 7 C. B. N. S. 134. (z) Mather v. Fraser, sup. was a covenant by the mortgagor not to remove the fixtures without the permission of the mortgagee; but it does not appear in the report whether the mortgage contained a power of sale of the mortgage premises as an entirety, or of the fixtures separately. It was considered that a conveyance of the land and the fixtures thereon, irrespective of the form of the assurance, was not within the Act at all. A bill of sale of trade fixtures, attached to freehold premises already in mortgage to another person, and subject to a previous further charge to the grantee under the bill of sale, was held to fall within the statute (b); but some strong observations have been made on this case (c). In Boyd v. Shorrock (d) a mortgage of leaseholds and fixed machinery and all fixtures thereon, whether moveable or otherwise, was held by V. C. Wood not to be a bill of sale within the Act (d); this case would seem to be simply a corollary from Mather v. Fraser (e); but it was overruled (ƒ), and the result was held to be the same, whether the fixtures were assigned in the same or a separate witnessing part (g). fixtures separately. In Exp. Daglish (h) the mortgage contained a power for the Power to sell mortgagee to sell the fixtures separate from the land; but where the mortgage contained no such power, it was held not to require registration (i). It was said that this is a thin but substantial distinction (); but the distinction seemed to depend, not upon the interest of the grantor in the fixtures as "fixtures capable of transfer by delivery," but upon the right conferred on the grantee to sell the fixtures separately. The result was that a grantor, by a careful wording of the mortgage of the land and fixtures, could always keep clear of the Act. A deposit of an assignment of leasehold and trade fixtures to secure a debt was held void for want of registration (1). It was held that either the deposit passed no property in the fixtures, or, if equivalent to an assignment, it ought to have been registered (7). Growing crops, &c. Growing crops were held not to be within the Act (n). But as soon as the crops were severed, they became chattels under the deed, and the deed was accordingly void in default of registration (0). Foreign ships are not within the Acts (p), nor is a mortgage of a partnership share (q). Future goods are within the Acts (r), but chattels in Scotland are not (s). (11.) What "personal chattels" means under the Act of 1878. These decisions gave rise to another alteration in the law which was effected by s. 4 of the Act of 1878, which enacts that the expression "personal chattels" shall mean goods, furniture, and other articles capable of complete transfer by delivery, and (when separately assigned or charged) fixtures and growing crops, but shall not include chattel interests in real estate, nor fixtures (except trade machinery, as in the Act defined and hereinafter mentioned), when assigned together with a freehold or leasehold interest in any land or building to which they are affixed, nor growing crops when assigned together with any interest in the land on which they grow; in other respects s. 17 of the former Act remains unaltered. And the Act of 1878 contains the following clause (s. 7) : No fixtures or growing crops shall be deemed, under the Act, to be separately assigned or charged by reason only that they are assigned by separate words, or that power is given to sever them from the land or building to which they are affixed, or from the land on which they grow, without otherwise taking possession of or dealing with such land or building, or land, if by the same instrument any freehold or leasehold interest in the land or building to which such fixtures are affixed, or in the land on which such crops grow, is also conveyed or assigned to the same person or persons. The same rule of construction shall be applied to all deeds or instruments, including fixtures or growing crops, executed before the commencement of the Act (t), and then subsisting and in force, in all (n) Brantom v. Griffits, 1 C. P. D. (1) Re Bainbridge, 8 Ch. D. 218, V. C. Bacon. (r) Holroyd v. Marshall, 10 H. L. 191, 227. (s) Exp. Hopcraft, 14 W. R. 168, Bky. (t) See Exp. Moore's, &c. Co. 14 Ch. D. 379, C. J. Bacon. questions arising under any bankruptcy, liquidation, assignment for the benefit of creditors, or execution of any process of any Court, which shall take place or be issued after the commencement of the Act. (12.) Schedule of personal chattels under Act of 1882. By s. 4 of the Act of 1882, every bill of sale is required to have a schedule of the personal chattels comprised therein, and is void, except as against the grantor, in respect of any personal chattels not specifically described in the schedule. By s. 5 thereof a bill of sale is void, except as against the grantor, in respect of any personal chattels of which the grantor was not the true owner, at the time of the execution of the bill of sale. But s. 6 thereof excepts out of these sections growing crops separately assigned or charged, and fixtures, plant or trade machinery substituted for fixtures, plant or trade machinery specifically described in the schedule. (13.) Trade machinery. In the Act of 1878 are contained the following important new provisions relating to trade machinery: S. 5. From and after the commencement of the Act, trade machinery shall, for the purposes of the Act, be deemed to be personal chattels, and any mode of disposition of trade machinery by the owner thereof, which would be a bill of sale as to any other personal chattels, shall be deemed to be a bill of sale within the meaning of the Act. For the purposes of the Act "Trade machinery" means the machinery used in or attached to Trade 1st. Exclusive of the fixed motive-powers, such as the 2nd. Exclusive of the fixed power machinery, such as the machinery. Factory or workshop. Certain instruments giving powers of distress to be subject to the Act of 1878. Decisions under Act of 1854 appli cable. 3rd. Exclusive of the pipes for steam, gas, and water, in the factory or workshop. The machinery or effects excluded by the section from the definition of trade machinery shall not be deemed to be personal chattels within the meaning of the Act. Factory or workshop" means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental to the following purposes or any of them; that is to say, (a.) In or incidental to the making any article or part of an article; or (b.) In or incidental to the altering, repairing, ornamenting, finishing, of any article; or (c.) In or incidental to the adapting for sale any article. S. 6. Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given or agreed to be given by any person to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the meaning of the Act, of any personal chattels which may be seized or taken under such power of distress. Provided, that nothing in that section shall extend to any mortgage of any estate or interest in any land, tenement, or hereditament which the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent. 66 (14.) Apparent possession under both Acts, and cases. In the Act of 1854 personal chattels are deemed to be in the apparent possession" of the person making or giving the bill of sale, so long as they remain in or upon any house, mill, warehouse, building, works, yard, 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 thereof may have been taken by or given to any other person (s. 7). The following decisions under the Act of 1854, upon the words apparent possession," are applicable to the Act of 1878. The "occupation" of the grantor must be an actual de facto |