tels passing under the reputed ownership clause as being in possession of the bankrupt with the consent of the mortgagee at the time of his bankruptcy; it was an admitted fact that they were in his possession at the time of the bankruptcy, and the question was, what portion of them should be deemed goods and chattels as coming under the reputed ownership clause. Kernan, Q.C., appeared for the assignees, and Heron, Q.C., and Hamill, were for the mort

sale to his brother was to indemnify him in respect of charge filed by the assignees, who claimed a large. sums raised, and in my mind, it was as plain and dis-portion of the mortgaged property as goods and chattinct a fraud on the trusts as could be committed. That case must be inquired into, it must be sifted, and the liabilities as to it ascertained; it cannot be sanctioned by this Court, or loss allowed to happen through it, without full inquiry. This Court in August, found the land deserted of stock, the plate secreted and sent away, and the whole assets gone, most of them confessedly to save favoured creditors in breach of his duty. The case seems clear, as far as Mr. Walsh is concerned, if the £5,000 is not secured for the cre-gagees. ditors; as to who else may have liabilities, it is not for me now to declare. But I advise the creditors to attend particularly to this case, and I promise them the fullest assistance the due action of this Court can give, | to secure for them an honest performance, by all parties, of the duties undertaken by them. It is a painful and unpleasant case to me, but I cannot allow any private feeling of my own to influence me, or even to be present to my mind, when I am judicially discharging the duty committed to me in this Court. No labour of mine will be spared, no length of sittings regarded as far as may be useful towards setting aright the affairs of the estate, so grievously mismanaged. The case requires active and careful proceedings, and in it it must be shewn that this Court is resolute in enforcing the honest and careful discharge of all duties undertaken with its sanction, and under its control. And with this intimation to the creditors, I now leave the matter for consideration.

RE THOMAS TRACEY.

Mortgages-Reputed ownership-Goods and chattels
-Fixtures and machinery attached to the freehold
-What passes to assignees as goods and chattels
within the meaning of the 313th section.
Where trade fixtures are seizable under a fi. fa. they
will pass to the assignee under the reputed owner-
ship 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
clause; but moveable fixtures that are changeable
into the condition of chattels by the severance of a
tenant, will be held to be chattels for the benefit of
his creditors generally, as well as for the benefit of

They cited Hallawell v. Eastwood (6 Exch. 295); Hutcheson v. Kay (23 Beav. 416); Muirhall v. Lloyd (2 M. & W. 452); Boydell v. M Michael (1 Cr. M. & R. 179); Combs v. Beaumont (5 B. & Ad. 72); Dill's case (14 Ir. Jur. 123); M.Kibbon's case (7 Ir. Jur. 342); Walmsly v. Milne (7 C. B. N. s., 132); Waterfall v. Penniston (6 El. & Bl. 176). The facts appear in the judgment.

LYNCH, J.-In this case the mortgagee claims, as against the assignee, certain articles specified in a schedule annexed as being conveyed to him by his mortgage. The assignees, on the other hand, claim these articles as belonging to them by virtue of sec. 313 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 articies 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 February. 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 cible from former cases, and, indeed, on most quesdisturb any fixed or certain rule that seemed dedutions on this subject, a court can easily give preceis anxious to arrive at. However, it is my duty now dents that seem to uphold the doctrine it arrives at, or to consider the decisions applicable to the case before me, and only as to it, and see whether, on rightly es

timating them, these articles are to be treated as fixtels" within the provision of the 313th section. In tures and not within the class of "goods and chatlooking to the authorities, I am bound to regard the a particular creditor who seized under a fi. fa. Fixtures that are totally unannexed to the freehold, question in a fourfold aspect. 1. As respects the and are made steady by their own weight, but are mortgagee, how he acquired title to these articles; worked by moveable belts put on to communicate whether as fixtures passing by the grant of the mill, or whether only by express contract. 2. I have to pass to the assignees as goods and chattels; and where machinery is fixed or at-1egard the law in the relationship which may make tached for the purpose of making it steady in work these things although fixtures seizable under a fi. fa.. ing, it will not be held to be so attached to the free-3. I have to construe the 313th section to see can hold as to prevent it becoming goods and chattels under the reputed ownership clause.

motive

power, will

THIS case came before the Court upon the charge of a mortgagee of certain mill premises and machinery of the bankrupt in the county of Dublin, and dis

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 convey

ance of the realty or by contract only? In Hutchin-judgment: "The whole of the plaintiff's argument son v. Kay (23 Beav. 416) the question arose as to upon this head was founded upon the well established mortgagee's claim to articles more fixed than these exception to the general rule, that where a tenant puts articles can be argued to be, and the Master of the up fixtures for the purpose of trade during his term, Rolls held they did not pass under the general words he may, before its expiration, without the consent of "mill or factory," and the general words "of fixtures, his landlord, disunite them from the freehold. The machinery, &c. attached and belonging to said mill." defendant's counsel were quite ready to admit the vaThe Master of the Rolls says "I do not doubt that lidity of the numerous authorities supporting that prolooms are machinery in one sense, but the question is position, and to concede to the plaintiff that if the are they, properly speaking, machinery belonging to bankrupt had been tenant to the mortgagee for a term the mill..... To whatever purpose the mill may and the bankruptcy had happened before its expirabe applied the steam-power, the gas-lighting, and the tion, the fixtures in question were such as would have like do form a part of it, the others do not; the others passed to the assignees." I therefore think that beare merely accidental, and no more form a part of the fore we establish a proposition distinguishing between mill than a carpet forms part of a house." That case goods seizable under a fi. fa. as trade fixtures; and is quite sustained by the ruling in Hellawell v. East- those passing under this section as goods or chattels wood (6 Exc. 295), at page 313, Park B, says, "They the authorities require to be carefully and fully consiwould not have passed by a demise of the mill; they dered, and that we should not lightly establish any never ceased to be goods and chattels." Other autho- such distinction. But the question remains-are these rities in great number expound the same doctrine; things, or any of them, fixtures; that is, are they fixand I think in this case, therefore, that the only title tures though capable of removal by a tenant; or have that the mortgagee has is a title by contract to these they ever lost their quality of chattels. Now, this is articles. The next proposition I have to regard in a matter of fact principally, and turns upon the evithis decision is—were they liable to seizure under a dence. My former decision in Dill's case (14 Ir. Jur. fi. fa. Now, Hellawell v. Eastwood is distinct on 123) has been cited, but its facts were not accurately this point, except that it was not as against a mort- referred to. Perhaps in some parts of my judgment gagee's title and was as to a distress. Parke, B. says— I might be understood as laying down too largely as "they never ceased to have the character of moveable propositions what I only meant as inferences. In that chattels, and were therefore liable to defendant's dis- case I had evidence of permanent annexation. tress "—that is, as existing chattels. There seems engine formed the very props that upheld the lofts; to me no doubt that these could be taken under a fi. and therefore in that case I got what I supposed to be fa., and taken as chattels. The next proposition is- certainly a fixture, though it might be removable for whether they are within the purview of this section the benefit of trade or on other grounds of exception, 313. Now, I think it is greatly to be regretted that if indeed it fell even in this class. Then, taking the such a question should be open for argument. A fi. articles now claimed by the mortgagee-they are fa. is the writ for a creditor enabling him to seize the three classes:-1. Those that are totally unannexed goods and chattels of the debtor. This section gives and stand by their own weight, but are worked by a general right on behalf of all creditors to sell any moveable belts, put on to communicate motive power goods or chattels, &c.; and thus in language as in ob- to them when worked. These are -4, 5, 6, 10, 11, ject the two powers should be co-extensive. In 12, & 13, though a peculiarity as to 13 I will notice hereafter. These are, in my mind, chattels, and never ceased to be such. The belt is put on merely to communicate motion to the machine when required for working, but the machine remains unaltered. case is cited going near to this, and all the cases seem to me to treat much an a fortiori state of facts as not amounting to annexation, and therefore leaving the original chattel quality of the article unchanged. Davis v. Jones (2 B. & Ald. 165) was a case between

The

No

Muirhall v. Lloyd (2 M. & W. 459), Parke, B. says"I assent to the doctrine laid down in Coombe v. Beaumont, and Boydell v. M‘Michael, that such fixtures are not goods and chattels within the bankrupt law, though they are goods and chattels when made such by the tenant's severance, or for the benefit of execution creditors." There are several other cases on this subject; and in M'Kebbin's case the Chancellor seems to speak of this distinction at least without disapprobation. But I am of opinion that this dis-outgoing and incoming tenant, and therefore the questinction is not to be accepted as settled on a due consideration of the cases, and that the exception made for the benefit of trade and for the benefit of creditors whereby removeable fixtures, because changeable into the condition of chattels by the tenant himself, are held to be chattels for his creditors, will be held to apply for the benefit of his general creditors, as well as for the benefit of a particular creditor who has sued him to execution. If for the benefit of creditors they are chattels, surely they ought then be held to be so within this section; and on this point I cite a passage from the case of Walmsley v. Milne (7 C. B. N. s. 132). That was a case in which the articles were treated by the Court as fixtures by permanent annexation, but I only now cite it for this passage in the

tion was merely whether the articles were chattels; and there the "jibs," the articles in dispute, were more attached than these articles. In Hellawell v. Eastwood the mules and other machinery usedthough much stronger in its facts-were held there not to have ceased being moveable chattels; and Water full v. Penniston (6 El. & Bl. 876) seems to me an a fortiori case on this point; and in Walmsley v. Milne Mr. Justice Willis thought the articles there remained as chattels. The second class are those only differing by an iron being put on to allow the belt to be moved the 2, 7, 8, 10, the irons being placed as to prevent the belt from being totally removed. This is a devise with no view to permanently fixing the machine, but merely for ease in adjusting the belt;

entitled as such judgment mortgagee to marshal said securities, and could not, therefore, have his judgment mortgage declared to be a charge on the said remaining five denominations.

THIS was an appeal by Marcella, the wife of Patrick Crean Lynch, from an order of Judge Hargreave dated July the 22nd, 1865. The following are the facts of the case in the order followed by Mr. Blake, Q.C., in his opening statement-That by indenture of mar

and, in my mind, does not alter the character of the machine from being a chattel. The article No. 1, taking Mr. Haig's evidence in conjunction with Mr. Lynam's, has no annexation, but is only secured for steadiness to work and not to fix it. Article No. 3 is wholly detached, but a projecting portion is put under the covering of the wheel to place it for work; it had no annexation thereby. Article No. 13 has this peculiarity, that steam is introduced into it by a pipe that comes down inside the machine, and a cross-pipe exists screwed on at end. This pipe is totally un-riage settlement dated 14th Oct., 1845, executed in connected with the machine, and is no more than if a tub was put in under a cock plaeed in the piping. The lid and the mode by which the pipe passes through it seems to me not at all to alter the character of the article. As to article 12-the vices-having regard to their small value and the mode of annexation, I give them to the mortgagees. But as to all the rest I rule that they passed to the assignees under this section of the statute. I do not give costs against the mortgagees. The assignees to have the costs out of estate.

Court of Appeal in Chancery.

[Reported by Oliver J. Burke, Esq,, Barrster-at-Law.]

contemplation of the marriage of the said Patrick Crean Lynch and Marcella Mary Bellew, his then intended wife, certain townlands, 18 in number, were granted and conveyed to the use of or in trust for Patrick Crean Lynch during his life, with remainder (subject to a jointure of £600 per annum for the said Marcella Mary Lynch otherwise Bellew during her life, in case she should survive him, and to portions for the younger children, if any, of the said marriage) to the use or in trust for the first and other sons of the said marriage successively in tail male, with an ultimate remainder to the said Patrick Crean Lynch, his heirs and assigns, for ever; and by said indenture the trustees thereof were authorized and empowered at the request and by the direction of the said Patrick Crean Lynch, and of Andrew Crean Lynch, his father, during their joint lives, or of the survivor of them during his life, testified in writing, to raise and borrow upon mortgage of the said lands any sum not exceeding

[BEFORE THE LORD CHANCELLOR AND THE LORD JUS- £5000, to be laid out and expended in the purchase

TICE OF APPEAL.

LYNCH'S ESTATE.

of other lands, freehold or leasehold, to be settled in the same manner, and subject to the like uses and limitations as were thereinafter declared, of the lands comprised in the said settlement. That by indenture of 31st March, 1850, said Patrick Crean Lynch conveyed his life estate in tail of the said townlands to George Ouseley Higgins, by way of mortgage, to secure a sum of £1000 and interest thereon. That in the year 1850 the said Patrick Crean Lynch borrowed a sum of £1600 from one Henry French, and by way of security therefor the said Patrick Crean Lynch, by indenture of the 26th September, 1850, granted to the said Henry French an annuity or rentcharge of £208 17s., charged upon the life estate of

LYNCH, APPELLANT; COOKE, RESPONDENT. Judgment mortgagee-Marshalling securities. By indenture of mortgage of the 23rd September, 1853, P. C. L. conveyed all his life estate in certain townlands, 18 in number, to the trustees of the Palladium Life Assurance Society. On the 19th December, 1856, J. Q. caused a certain judgment which he had obtained on the 16th of said December, for a sum of £1,600, to be duly registered as a mortgage against 13 out of the said 18 townlands. On the 21st January, 1857, the said P. C. L. con-him, the said Patrick Crean Lynch, in all the said 18 veyed his life estate in all his lands to trustees upon certain trusts, among which was to pay an annuity of £300 to Marcella, the wife of P. C. L. The said 18 denominations were set up and sold in the Landed Estates Court, and the said Palladium Society was fully paid out of the produce of the 13 denominations, over which J. Q. had his statutable mortgage, and which payment, while it exhausted the produce of said 13 denominations, left the produce of the remaining five in the Landed Estates Court to be otherwise disposed of. Thereupon the assignee of J. Q. insisted that he was entitled to marshal the securities so as to stand on the remain-dium Life Assurance Society to secure a sum of ing denominations in the same priority he did upon £3900 and interest thereon; and thereby covenanted the 13 so exhausted as aforesaid. Held, reversing with the said trustees that if the power contained in the order of Judge Hargreave, that J. Q., being a the said settlement of the 14th of October, 1845, of jugment mortgagee, merely took such beneficial in-charging the said lands with the sum of £5000 should terest as P. C. L. could convey at the time of re be exercised by the trustees thereof, he, the said Pagistering said mortgage, and that J. Q. was not trick Crean Lynch, would subject and charge the

denominations of lands put in settlement by the indenture of the 14th of October, 1845 (except one townland called Ballynew); and by way of further security for the said loan of £1600, the said mortgage debt of £1000 created by the said indenture of 31st March, 1850, and the securities for the same, were assigned to the said Henry Trench. That by inden ture, dated 23rd September, 1853, the said Patrick Crean Lynch mortgaged his life estate in all the lands (18 in number) comprised in the said marriage settlement of the 14th October, 1845 (including the said townland of Ballynew), to the trustees of the Palla

spect of said charge the sum of £1921 6s. 3d. up to necessary to secure payment of Cooke's demand in the the 1st of February, 1860. And by said order it said judgment, that is to say, the life estate of the was further declared that the said trustees of the Pal- owner in the lands; and that the said Robert Cooke ladium Assurance Company had a charge in respect was further entitled in respect of the 2nd security of their second security above referred to-namely, the of the said trustees of the said Palladium Insurance security for the loan of £3900 on the life estate of Company, described as No. 6 upon the said schedule Patrick Crean Lynch in all the lands comprised in to the said Chancery order, to stand in their place as the said indenture of marriage settlement of the 14th against the said life estate in the said denominations, Oct., 1845; that is to say, upon all the lands form- and also against the life estate of the owner in the lands ing class A.; and that the said Palladium Company of Ballynew, and also against the life estate of the had also a first charge for said amount on the estate owner in the lands described as class D. on the said described as class D, and that there was due on foot Chancery order, so far as might be necessary to sethereof a sum of £5389 15s. 4d. And it was fur- cure payment of the said judgment debt vested as ther declared by said order that there was due to aforesaid in the said Robert Cooke; and the said order John Queely (who was one of the aforesaid petitioners allowed the objections of the said Robert Cooke to in the Court of Chancery) on foot of a certain judg- the extent above mentioned, but disallowed them so ment obtained by him against Patrick Crean Lynch, far as they sought to establish any further right. And on the 18th December, 1856, for the sum of £800 it was further ordered by the said order that the said for principal, interest, and costs, the sum of £961 Robert Cooke, and Mrs. Marcella Mary Lynch, and 3s. 8d.; and that said judgment had been registered Denis Burke, should have their costs of the said moas a mortgage against some of the denominations of the tion with their demands respectively; the petitioner's lands put in settlement by the said indenture of the costs to be costs in the matter. From this order the 14th Oct. 1845, and that said judgment was a charge present appeal was brought. By the respondent it on the life estate of the said Patrick Crean Lynch was submitted, if Judge Hargreave's judgment should against the said denominations, against which it had be reversed, all the sums due to him would be lost. been registered as a mortgage, which are part of the On the 22nd of July, 1865, Judge Hargreave gave lands described as class A. On the 31st Mar. 1858, judgment, setting forth his reasons for making the the said Patrick Crean Lynch and his trustees pre-order now being appealed from, as follows:sented a petition in the Court for Sale of Incumbered Estates in Ireland for the sale of the said several estates; and the said estates were afterwards sold in the Landed Estates Court, with the exception of two denominations of said estates. That the trustees of the Palladium Life Assurance Company had been paid out of the produce of the sale of the said life estates the sum due to them, some of which estates being a portion of class A. were the lands charged with the judgment mortgage of the respondent; and the entire produce of the sale of the lands against which the said judgment, had by Queely, of Michaelmas Term, 1856, was registered as mortgage as aforesaid on the 19th December, 1856, was applied in payment of the demands of the Palladium Life Assurance Society, and by reason of such payment no funds whatever were available to pay Cooke. That the respondent, Cooke, filed an objection to the final schedule of incumbrances in the Landed Estates Court, " claiming that the said Robert Cooke, as assiguee of Queely's judgment, should stand in the place of the said trustees of the Palladium Assurance Company, as against such parts of the lands included in their several securities as were not charged by the said judgment." That upon the objection coming on to be argued, Judge Hargreave by an order, bearing date the 17th and 22nd days of July, 1865, declared the said Robert Cooke entitled to stand in place of the trustees of the Palladium Insurance Company in respect of their security described as Nos. 3 and 4 upon the schedule to the Chancery order of the 17th of February, 1860, as against such parts of the lands as hereinafter described and distinguished in the said Chancery order as class A. (except Ballynew) as were not charged by the judgment obtained by John Queely against the owner, and assigned by the said John Queely to the said Robert Cooke, so far as may be

"The objection filed in this case raises a question as to the marshalling of the funds produced by the sale of Mr. Lynch's life estate. In reference to the lands called in the Master's Report" Class A," it appears that the charge of the Palladium Company affected the whole of this class, and that Queely's judgment, No. 17 in the Master's Report, affected only a portion of this class as against Mr. Lynch; therefore there can be no doubt that the rights of the judgment creditors could not be allowed to depend on the mere accident, whether the Palladium Company were in the first instance paid out of the portions affected by the judgment, or out of the portions not affected by them. The judgment creditor would be entitled to insist that the payment of the prior charge would ultimately be considered as made out of that part of the class "A" which was not bound by his judgment, It is contended, however, on the part of Mrs. Lynch, who has a prior charge on all the lands, that this right does not prevail against her, as she derives under a registered deed, or that at all events it exists only as a right to throw the Palladium charge rateably on the two portions of the estate. I am of opinion that the title exists in the shape of a complete marshalling in favor of the judgment creditor, that this right constituted a material part of the title to the property when Mrs. Lynch or her friends purchased this interest for her, and that, therefore, she is necessarily bound by it. She could not have been ignorant of this right, unless she abstained from inquiring into Mr. Lynch's title; and if she did so abstain, she is equally bound. It has been said however, suppose Mrs. Lynch's security had included only that part of class 'A' which was not affected by Queely's judgment, Queely's judgment formed no part of the title to this part of the property, and therefore, Mrs. Lynch, on investigating the title, would not find and