factorily as to induce a mortgagee to advance money on such a security. But it is to be lamented that the Court of Chancery has created a still further difficulty, for it seems to have placed the decision of the case in question at a still greater distance from the plain and simple rule adhered to by the courts of common law.

In Rufford v. Bishop,' the owner in fee simple of certain iron-works in Staffordshire mortgaged the same, together with the steam-engine, furnaces, mills, and other fixtures, and subsequently became bankrupt, having continued in the occupation of the mortgaged premises, and the assignees claimed the fixtures as being in his order and disposition. Sir John Leach, M.R., stated the question to be," whether the possession of the articles in dispute necessarily inferred that the property in these articles belonged to the trader, so that he might acquire an additional credit from the fact of such possession. The evidence before the Master established that it is the custom in the county of Stafford, when iron-works are let, that articles of this description should be furnished by and continue the property of the lessor. The mere possession of the bankrupt, therefore, did not necessarily infer the property in them, so as to gain him a false credit by the fact of possession." This learned judge, in striving to act up to the spirit of the reputed ownership clause in the Bankrupt Act, seems to us to have overlooked the consideration that it depends entirely upon the law whether the possession of fixtures can give a trader a fictitious credit: for if the law be, that a valid mortgage may be made of fixtures, free from danger of being avoided in case of bankruptcy, it is obvious that the mere possession of them, any more than the possession of a house, cannot confer the privileges of capital. Have not, then, the Courts of Common Law pursued a wiser course in acting upon the plain and undoubted rule, that fixtures are not in their nature "goods and chattels." It is true, they may form part of the personal estate of the owner, but is this sufficient to bring them within the operation of the Bankrupt Act? If so, we must consider leaseholds to be also included. We are glad to observe that Shadwell, V. C., in Hubbard v.

1 5 Russell, 346.

Bagshaw,1 took a sounder view of the question, and held that the mere right or power of a tenant to remove fixtures could not affect the legal right of a mortgagee, who was possessed of them as part of the realty.

We now come to the case of Trappes v. Harter, which seems to us to have been very much misunderstood. In this case partners, who had erected on real estate, which belonged to the partnership, a manufactory containing valuable machinery and fixtures, mortgaged the real estate and the buildings thereon, comprising in the description of the premises part of the fixtures. The partners having become bankrupt, a question arose between the assignees and the mortgagee as to the right to the fixtures. The judgment of the Court of Exchequer, after time taken to consider, was delivered by Lord Lyndhurst, who stated the case to involve two questions: 1st, whether the fixtures were part of the personal estate of the bankrupts, and 2dly, whether they were comprised in the mortgage-deed. He decided that, under the circumstances of the case, they did constitute part of the personal estate of the partnership, distinct from the real estate; and he then discussed the provisions of the mortgage-deed, and held, that upon the right construction of it, it only comprised part of the fixtures in question, and consequently, that the remainder passed to the assignees as part of the estate of the bankrupts.

We apprehend, his lordship did not mean to determine, that, because the fixtures in question should be considered as personal estate, that therefore they were goods and chattels within the reputed ownership clause in the Bankrupt Act; for if so, the discussion of the second question, whether they were comprised in the mortgage-deed, was wholly irrelevant and unnecessary, for if they were goods and chattels, no deed, however worded, could have protected them from the operation of that clause. It is true, his lordship is reported to have said, "the machinery in this case appears to have been in the reputed ownership of the bankrupts, and they obtained credit by reason of their possession of them, and we are of opinion that

1 4 Simons, 326.

22 Crom. & Mee. 153.

it formed part of the partnership estate, and passed to the assignees as such.” But this sentence appears to us to be wholly inconsistent with the remainder of the judgment, and we consider the only and true question in such cases to be, whether the articles be goods and chattels or not. If the decision of the law on this point be, as it undoubtedly is, that they are part of the realty, there is no room for discussion; and the peculiar rights of certain classes of tenants, and whether fixtures can be the means of obtaining credit, are beside the question.

W. C. W.

DIGEST OF CASES.

COMMON LAW.

[Comprising 5 Barnewall & Adolphus, Part 5; 4 Nevile & Manning, Part 3; 5 Moody & Scott, Part 2; Crompton, Meeson, & Roscoe, Vol. 1, Part 4; and Vol. 2, Part 1; 4 Tyrwhitt, Part 5; and 3 Dowling's Practice Cases, Parts 3 & 4:-all Cases included in former Digests being omitted.]

ACCORD AND SATISFACTION.-See FRAUDS, STATUTE OF, 2.
ACCOUNT STATED.

A. being seised of lands, in trust to pay the net rents to B., received 271. rent, and paid 107. into a bank, with directions for it to be paid to B. on his giving a receipt for 277.: Held, that this was evidence of an acknowledgment of a debt to B., on which B. might maintain an action on an account stated. Held, also, that A. was precluded from showing that at the time of the acknowledgment no balance was in fact due to B.-Roper v. Holland, 4 N. & M. 668.

ACT OF PARLIAMENT.

1. (Mode of assessing compensation under local act.) By a local act, power was given to a company to take lands for the purpose of making a railway, on giving compensation; and it was enacted that if the parties could not agree, a jury should be summoned to assess the value of the land, and to assess compensation for the injury which parties interested in the land would sustain by the execution of the act; which value of the land and compensation they were required to ascertain and settle separately. The company wanted land in which a market gardener had a term of years; and a jury summoned under the powers of the act gave a verdict for an entire sum, as a satisfaction for all losses and damages, not having been called on by either side to separate their verdict: Held, that the company could not treat this verdict as a nullity, and require a new jury to be summoned.—In re London and Greenwich Railway Company, 4 N. & M. 458.

2. (What is act done in pursuance of Costs.) A clause in a local act, appointing commissioners for certain purposes, prohibited them under a penalty from acting or voting where they were personally interested. One of the commissioners being sued for the penalty, the plaintiff was nonsuited: Held, that the action could not be said to be brought for "

an act

or thing done under the act," so as to entitle the defendant to treble costs under another clause of the act.-Charlesworth v. Rudgard, 3 D. P. C. 517.

AFFIDAVIT.

1. (Addition of deponent-Signature.)

"Assessor is not a sufficient description of a deponent in an affidavit. But if the affidavit be joint, an objection to the description of one of the deponents does not render the statements of the others inadmissible.

It was held to be no objection to an affidavit that it was signed in a foreign character, and that the jurat contained no statement to show that the deponent was a foreigner, and that the writing in question was his signature.-Nathan v. Cohen, 3 D. P. C. 370.

2. An affidavit with the word "said" instead of "saith" is insufficient.Howorth v. Hubbersty, 3 D. P. C. 455.

3. (Erasure or interlineation.) The alteration of a figure in the date of the jurat, by writing one figure upon the other, was held not to constitute either an erasure or an interlineation within the meaning of the rule.Jacob v. Hungate, 3 D. P. C. 456.

4. (Illiterate deponent—Jurat.) If an illiterate person is sworn either in Court or before a commissioner, the fact of the affidavit being read over to him, and his understanding it, must be stated in the jurat.—Haynes v. Powell, 3 D. P. C. 599.

AFFIDAVIT TO HOLD TO BAIL.

1. An affidavit for 500l. money lent, and interest thereon, and on an account stated, without noticing a contract for interest, held sufficient.—Pickman v. Collis, 3 D. P. C. 429. So, though it neither states the amount of the principal, nor the time when the interest began to run.-White v. Sowerby, ib. 584.

2. An affidavit for goods sold and delivered to, and for money paid and laid out for A., the wife of the defendant, before his marriage with her, held insufficient.-Gray v. Shepherd, 3 D. P. C. 442.

3. An affidavit of debt made by a person who described himself as agent and collector to the plaintiff, an hotel keeper, was held sufficient.—Short v. Campbell, 3 D. P. C. 487.

4. An affidavit of debt, defective as to part, is defective as to the whole.(1 D. P. C. 318, 631.)—Raggett v. Guy, 3 D. P. C. 554.

AGREEMENT.

(Construction of.) Assumpsit on an agreement, whereby the defendant

agreed to sell, and the plaintiff to buy, "all the naphtha which the defendant might make from the 1st June next, during the term of two years, say from 1000 to 1200 gallons per month, at the rate of 2s. 6d. per gallon," &c.; and it was agreed, that should the plaintiff be desirous of dissolving the said contract before the expiration of the said term, he should be at liberty to do so on giving the defendant three months' notice. The de