no avail to the creditor, who furnished his labor or materials upon the security of the property.

I think that the statute, taken as a whole, and construed with reference to the end to be obtained, and the mischief to be remedied by it, gives a lien in any case from the commencement of the labor or delivery of the material furnished, and that the filing of the notice, as prescribed in section 2, is only a condition subsequent, which is necessary to be performed to preserve the lien for a greater period than three months from the completion of the building.

Section 3 of the act, in providing that in a certain contingency the lien shall cease "to exist at the expiration of one year after the completion of the building," by implication asserts that it does exist from the completion of the building. But the notice need not be filed for three months after such completion. True, it may be said that "the completion of the building" is here referred to merely as an event or point of time in the transaction, from which to date the year given by the section for the enforcement of the lien. But admitting such to be the primary purpose of the reference to this event or point of time, still in asserting or declaring that the lien shall cease to exist in one year from such completion, the legislature have by implication, although not a necessary one, said that such lien does exist during such year.

Section 8, in providing that the lien shall extend to the lot on which the building is erected, if, at the time of such erection, the same was the property of the debtor, by necessary implication asserts that the lien exists at such time. Now "the time of the erecting such building" is the time occupied or consumed in its erection from foundation to roof. If the lien exists during all or any portion of this period, it must also exist before the time limited for filing the notice, and cannot, therefore, be created by it. It may be a question whether this notice can legally be filed before the completion of the building; but it appears probable that such completion is here referred to merely as the event from which to compute and ascertain the point of time in the transaction within which the notice must be filed to preserve the lien; and that such notice may be filed at any time after the performance of the contract for labor or material, and within three months from the completion of the building. Indeed, it may be, that the act will permit notice of the lien to be filed day by day as the work or delivery of material progresses, but it does not appear reasonable that the creditor is under any obligation to file notice in any case before the completion of his contract to labor or furnish material. So, if the creditors' lien extends to the lot at any time during the erection of the building as provided by this section, it follows that it may exist before the filing of the notice.

Section 7, in providing that the "liens created in pursuance" of this act- not the notice - "shall have

precedence over all other liens after the commencement of the building," declares, in effect, that, for the purpose of preferring this lien to all others, it shall be deemed to exist from the commencement of the building. This indicates very plainly that it was the inten tion of the legislature to so fasten these liens upon the property as not to permit any other class or description of creditors, under any circumstances, to subject the value of the labor and material furnished upon the faith of them to the payment of their debts, unless it be with the express or implied assent of the mechanic or material men.

Taking the whole act together, and considering the manifest purpose of it, as well as the necessary consequence of a different construction, I am satisfied that, notwithstanding the letter of the clause in section 1 referring to the filing of the notice, a lien is given from the commencement of the work or delivery of material, upon the condition subsequent, that the creditor files the notice prescribed in section 2, within the time limited therefor. A failure to perform this condition will doubtless work a loss of the lien. The omission, at least as against third persons, should be construed as an abandonment of the lien. The same effect would follow a failure to enforce the lien within the time prescribed in section 3.

Here the trustees succeeded to the rights of the bankrupt in this property at the date of the filing of the petition, and also to such rights, if any, as the general creditors had in it or could assert against it, notwithstanding the bankrupt, and nothing more. If he had been a purchaser without notice, for a valuable consideration, under the same circumstances, the property would have passed by the sale, subject to the lien and the right of the lien creditor to do any act which he might have done but for such sale, necessary or required to perfect, preserve, continue or enforce his lien. Hotaling et al. v. Cronise et al., 2 Cal. 64; Soule et al. v. Dawes, 7 id. 576; Blauvelt v. Woodworth, 31 N. Y. 287; Foster v. Heirs of Stone, 20 Pick. 542.

In the course of the argument, counsel for trustee cited and relied on the case In re Dey, 3 Bank Reg. No. 11, decided in southern district of New York in 1869. The case arose under a statute of New Jersey, and decides that under that statute the lien did not attach from the time of doing the work or delivering the material, but from the filing of the claim for lien, and that the proceedings in bankruptcy having been commenced before such filing, no lien could be created by a subsequent filing. The statute of this State and that of New Jersey are not alike in some respects, but the difference is more verbal than otherwise, and the case is one in point. I do not adopt its conclusions, because I am not convinced by its reasoning, and do not approve of its policy. To my mind there was no difficulty in holding that under the New Jersey statute the lien attached from the time the work was done and the material fur

nished.

These acts and the indebtedness which arose from them were the meritorious cause of the lien, the reason for which the statute gave it, and not the mere technical act of filing the claim. The latter is only required as a means of giving notice to the world of what already exists, a lien upon the property, and the intention of the creditor to hold or continue it.

The case cited in the opinion from the N. J. Rep. (1 C. E. Green, 150-161) does not, so far as I can perceive, necessarily support the conclusions. It may well be that a claim "not filed according to the requirements of the statute" does not constitute an "incumbrance on the premises," and still a lien attach upon the delivery of the material. For although the lien does not attach from such delivery, yet if a claim is not filed within the term, or to the effect prescribed, it would cease to exist, and the filing of such claim would not constitute an "incumbrance on the premises."

It is not until after long and careful consideration that I have declined to follow the ruling upon this question of the learned judge who decided In re Dey, and who has done so much within a few years to illumine the bankrupt act and establish the practice under it.

My conclusion is, that the lien of U. & W. attached from the delivery of the material, and that the right given by the lien law of the State to file a notice of intention to hold, not create, this lien, was not in any way impaired or affected by the subsequent proceedings in bankruptcy. The trustee took the property with the incumbrance. The motion to expunge will be denied, with costs, as prescribed in rule 55.

THE LAW OF FIXTURES.
PART II.*

It remains to illustrate our rule of the law of fixtures in its application to those derivative relations subsisting in the two contending parties, to which we have hitherto only alluded. This will complete our present article, from which (as the reader may have observed) we have carefully excluded the law of ecclesiastical fixtures, as being of too peculiar and unfamiliar a character to be treated promiscuously with the other classes of fixtures in this general review of the law.

Now, the derivative relations in question (with the derivative rights corresponding to them) are of many sorts, but are chiefly the following:

(1) Mortgagee of lessor, or of lessee;

(2) Assignee (or trustee) in bankruptcy of lessor, or of lessee;

(3) Execution creditor of lessor, or of lessee;

*From the Law Magazine and Review. Part I was published in vol. 3, pp. 407 and 426.

(4) Vendee of lessor, or of lessee, in their various permutations and combinations. Also,

(5) Executor and heir of lessor, or of lessee; (6) Tenant for life, and remainderman or reversioner; and

(7) Outgoing and incoming tenant.

From this enumeration it will appear that we have innovated upon the customary classifications, but we have done so with much carefulness, and from the bona fide conviction that the innovations will operate as improvements, introducing unity of conception, and abolishing, or at least reducing into their proper relations of subordination, the arbitrary distinctions and arbitrary coördinations of previous writers.

Now, in respect of all these subordinate matters, there is much less intricacy of matter, and also much less variety of doctrine, than the multitude of the decisions which have been given upon them would naturally make believe. There is, indeed, a wonderful simplicity or similarity in all of them. And for the purpose of presenting them to the reader in such a way as to make this their character for simplicity and similarity apparent to him, only one small lemma is required, in addition to the explanations already given in this article, and this lemma is also itself of so simple a character as to be rather a corollary from those explanations than a substantive assumption added to them. It is this:

It has already appeared that the strictly agricultural fixtures of the old law instantaneously coalesced with the land or realty to which they were annexed; they were, therefore, one would prima facie imagine, an interest in land. It is, however, commonly said that fixtures are NOT an interest in land, within the meaning of the statute of frauds, so as to require a note or memorandum in writing under the fourth section of that statute, and the case of Hallen v. Runder, 1 Cr., M. & R. 266, is commonly quoted in support of this opinion. But when this case is critically examined it is seen that the equities involved in it were so strong and many that they biased the judges in their decision. of it, and induced them to take advantage of the particular the very particular-circumstances of the case, in order to ground upon them, in the interest of particular justice, a distinction which, the writers submit, was not borne out by general law, holding (as they held), contrary to the very clear and powerful, and withal the learned, argument of Mr. Kelly, that, as fixtures denoted the "tenant's right to remove," a contract to forego that right was not an interest in land within the fourth section of the statute of frauds. Now, this decision was an acknowledged evasion of the law, and does not, therefore, in our opinion, warrant the generality of the conclusion that is frequently, indeed commonly, drawn from it, for that conclusion affects to extend to fixtures in themselves what was only asserted in Hallen v. Runder, at the most, of " contract to forego the removal of them." If this be so, the quality of fixtures in themselves, whether they

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are real estate or personal estate, remains in truth an open question, and the determination of it is the lemma which we must premise.

Now, the principles of the law of fixtures, as developed in this article, would draw a distinction of the following kind:

(1) That the strictly agricultural fixtures of the old law were and are, beyond all question, an interest in land, and that they are also permanently and indefeasibly so.

(2) That the modern agricultural, the trade proper, and the domestic or ornamental classes of fixtures are: (a) Some of them, interests in land, defeasible by the act of the tenant who has the right to remove them; while, again

(b) Others of them are chattels, pure and simple,

and are not even defeasible interests in land. Further, all the passages which we have cited from the year books, and to which we may for present purposes generally refer the reader back, conspire to show that fixtures, as well those of the modern as those of the old law, were part and parcel of the frank-tenement or freehold, so long as they continued annexed to it; and that such of them as were annexed by the landlord (that is to say, by the owner of the freehold) formed indefeasible parts of the freehold, whereas such of them as were put up by the tenant (the strictly agricultural fixtures being always excepted) were defeasible parts of the freehold, but became indefeasible parts of it immediately the time for their removal by the tenant had expired, and he had failed to remove them. Moreover, the views which are expressed in the year books are fully borne out by the subsequent decisions, both early and recent. Thus, in the case of Lee v. Risdon, 7 Taunt. 188, decided in 1816, Gibbs, C. J., spoke as follows:

"Many of these articles (household fixtures and furniture), though originally goods and chattels, yet, when affixed by a tenant to the freehold, cease to be goods and chattels by becoming part of the freehold; and though it is in his power to reduce them to the state of goods and chattels again, by severing them during his term, yet, until they are severed, they are a part of the freehold, as wainscots screwed to the wall, trees in a nursery ground, which when severed are chattels, but standing are a part of the freehold, certain grates, and the like. And unless the lessee uses during the term his continuing privilege to sever them, he cannot afterward do it, and it never, I believe, was heard of, that trover could be afterward brought."

Again, in the case of Lyde v. Russell, 1 B. & Ad. 394, decided in 1830, Lord Tenterden held, that bells hung by a yearly tenant, at the sole expense of the tenant himself, but allowed by him to remain fixed to the freehold after the expiration of his term, became the property of the landlord, and did not, even when afterward severed by the landlord, resume the character of chattels, so as that the tenant might bring trover for them. And in the very recent case of Pugh v. Arton, 8 L. R. Eq. 626, decided by Vice-Chancellor

Malins, in 1869, it was held, that tenants' fixtures cannot be removed after the expiration of the term, and that, for that matter, it makes no difference whether the lease expires by reëntry on forfeiture, or by effluxion of time.

Now, what is there against these opinions? Nothing but what admits of a ready explanation. First, there is the case of R. v. Londonthorpe, 6 T. R. 377, decided in 1795, where it was held, that a post windmill, put up by a tenant, but, by express agreement between the tenant and his landlord, made removable at any time by the tenant, and actually let by the tenant to a third party, was not such a tenement, or was not a tenement in such occupation, as entitled the tenant who had erected it to a settlement within the meaning of the poor laws. Again, there is the case of R. v. Otley, 1 B. & Ad. 161, decided in 1830, where it was held, that a windmill, rented along with other property (the latter property being of an admittedly real character), was not a tenement within the meaning of the poor laws for the purpose of helping the pauper to obtaining a settlement under these laws, being a mere superstructure of wood, resting by its own weight upon a brick foundation, no part of its machinery touching either the ground or the foundation. Now, of both these last-mentioned cases, the most obvious remark to make is this: that their exceptional circumstances were the occasion of the question arising at all, and that, under ordinary circumstances, therefore, windmills and such like fixtures, and à fortiori fixtures that were more manifestly so, would have been considered, and were in fact customarily considered, tenements or real estate for all purposes, and, therefore, also for the purpose of conferring a settlement within the meaning of the poor laws. And, accordingly, we find that in the case of R. v. St. Dunstan, 4 B. & C. 6, 86, decided in 1825, it was held, that certain fixtures, demised to a tenant along with his tenement, were held to be parcel of the demise, or of the tenement, for the purpose of entitling the tenant to such a settlement. And we also find that in the case of R. v. Guest, 7 A. & E. 951, decided in 1838, it was held, that machinery fixed in coal and iron mines by the persons, the lessees of the mines, were, for the purposes of a poor rate which was being levied upon the mines, to be regarded as forming part of the mines, so as to increase the assessable value of the freehold; but Lord Denman, C. J., in holding to the effect stated, was careful to add, that the question of the essential or abstract quality of the fixtures (whether real or personal estate) was not raised by the case. So, then, it appears that fixtures, so far from being clearly not interests in land, are in much more danger of being interests in land for all purposes whatsoever, and of being, therefore, also within the meaning of the statute of frauds.

It is necessary, however, to bear in mind the distinction which, in a previous part of this article, we pointed out as having been recognized in modern

times, between the so-called fixtures that are either actually or constructively fixed, for at least the time being, to the freehold, and those so-called fixtures which, whether of the modern agricultural, or of the trade proper, or of the domestic or ornamental class, are, and from first to last remain (rightly or abusively), of a purely personal or chattel nature. We have already had examples of this so-called chattel fixture; we have a further example of such a fixture in the case of Davis v. Jones, 2 B. & A. 165, decided in 1818, where it was held, that certain jibs, parts of a machine which had been added to the machine by the tenant, a trader-lessee, during his term, and which were capable of being removed again from the machine without damage, either to themselves or to it, were goods and chattels, for which the outgoing, or rather the outT gone, tenant might maintain trover for their non-delivery by the incoming, or rather the income, tenant, upon demand made. Abbott, C. J., in delivering judgment in the case, adopted the following alternative mode of speech: "If these jibs are to be considered as personal chattels On the other hand, if the jibs are to be considered as annexed to and parcel of the freehold, * a dubiety in his lordship's mind which he ultimately settled by decreeing the jibs to be personal chattels. But the dubiety itself is important to note.

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The result, therefore, of all the cases that have been adduced, both pro and contra, goes to corroborate, if not to establish, the distinctions to which the principles stated herein before would naturally lead. They are, moreover, distinctions which are indispensable to explain, and (let us add) which of themselves alone are sufficient to explain, the whole course of the subsequent decisions which have been made or had in the matter of those derivative rights and derivative relations to which we before referred; and surely this their sufficiency, and this their indispensability, go far to prove their truth. This lemma having been premised, we proceed to a consideration of the cases in detail.

We shall take these derivative relations in the order in which they were stated on a previous page.

Firstly, then, the mortgagee's derivative rights, with which, however, are frequently mixed up those of the assignee (or trustee) in bankruptcy, and sometimes even those of the execution creditor and of the

vendee.

In the case of Ex parte Quincey, 1 Atk. 477, decided in 1750, where A. was mortgagee of the reversion in a brew-house, subject to a lease for years granted by the freeholder, his mortgagor, to B., and where B. had purchased the utensils of the brew-house from his lessor, and had afterward, and also after the mortgage to A., sold and assigned both the utensils and the lease to C., and when C. thereupon or afterward mortgaged both lease and utensils to D. (who was, in fact, the original freeholder, the mortgagor to A.), and when D. afterward became bankrupt, it was not

indeed held (because no decision was, in fact, arrived at), but Lord Hardwicke's strong opinion was, that the utensils were not included in the first mortgage namely, that to A.-and that the assignees of D. were, therefore, entitled to them, at least as against A. But of this case our data are scanty, and the circumstances are complex. It may be, therefore, that the particular utensils which were in dispute were of a purely chattel character, although, indeed, it may also be that they were fixtures of that sort which are a defeasible interest in land, in which latter case the tendency of Lord Hardwicke's opinion would (as we shall see) be contrary to the declared tendency of subsequent, and more especially of the more recent, decisions, if at least B.'s separate purchase of the utensils may be ignored.

Again, in the case of Steward v. Lombe, 1 Brod. & B. 506, decided in 1820, where A., the freeholder, mortgaged his land to B. for one thousand years, and also in express terms "bargained, sold and set over to B. a certain windmill erected upon the land, but found by a jury not to have been a fixture in the sense of being either a defeasible or an indefeasible interest in the land; and where A., the mortgagor, continued in possession after the mortgage, and C., a judgment creditor of his, issued an execution against him, it was held, that C. could not take the windmill upon his fi. fa. Dallas, C. J., distinguishing, under the circumstances which have been described, the rights of an execution creditor from those of an assignee in bankruptcy, a distinction which differenced that case from the case of Horn v. Baker, 9 East, 215, decided in 1808, where, under circumstances otherwise resembling those in Steward v. Lombe, supra, the assignees in bankruptcy were held to have a preferable title to that of an annuitant mortgagee of the bankrupts; although, indeed, in the case of Horn v. Baker, supra, a further distinction was taken, namely, that while the vats, etc., which were not fixed to the freehold, passed (as we have said) to the assignees under the bankruptcy, yet the stills, which were fixed to the freehold, did not pass to them under the words of the statute, "goods and chattels in the apparent ownership or possession of the bankrupt at the date of his bankruptcy," but that all such stills had passed, as part and parcel of the land or brew-house, to the annuitant mortgagee, under her mortgage deed; and this distinction, as we shall see, has been carefully and invariably observed in all the subsequent decisions admitting of it. Horn v. Baker is, indeed, by Mr. Smith, in his selection of leading cases, made the leading case upon the subject of this distinction, and it formed the almost sole ground of decision in the case of Clark v. Crownshaw, 3 B. & Ad. 804, decided in the year 1832, where the like distinction arose.

Again, in the case of Buckland v. Butterfield, 2 Brod. & B. 54, where A. was lessee for years of a piece of ground and dwelling-house, and as such erected a conservatory, which was attached to, and (as was

determined in the case) indefeasibly incorporated with, the dwelling-house, so as not even to be removable by the tenant himself who had erected it, and when A. afterward became bankrupt, and his assignees in bankruptcy claimed to remove the conservatory, it was held, by Dallas, C. J., that the assignees could not remove it as against the lessor, the reversioner, and that, too, even although the bankrupt was himself entitled next in remainder after his lessor to the freehold and inheritance in the premises.

Again, in the case of Ex parte Barclay, 5 De G., M. & G. 411, decided in the year 1855, where A. (who was by trade a publican) was lessee of a public house, and of other houses, and deposited, by way of equitable mortgage, his lease with B., giving at the same time the usual memorandum of deposit, and then afterward became bankrupt, while in possession both of the public house and of the other houses, and also of the trade and tenant's fixtures belonging to them (being the fixtures usual in the trade of a publican), it was held, that B., as such equitable mortgagee as aforesaid, was entitled to all the said fixtures (both the trade and the tenant's ones) as against the claim of A.'s assignees in bankruptcy, the fixtures not being (nor any of them being) in the order and disposition of the bankrupt within the meaning of the one hundred and twenty-fifth section of the bankrupt law consolidation act, 1845.

Again, in the case of Mather v. Fraser, 2 Kay & J. 536, decided in the month of February, 1856, where A. and B. (who were copper-roller manufacturers) were the owners in fee and tenants in common of certain land, and of the mills erected thereon, and mortgaged the same to C., and afterward became bankrupt, it was held, by Wood, V. C., that the mortgage of the land and premises carried with it all the articles let into the soil or fixed to the freehold, whether by screws, solder, or any other permanent means, and that, for that matter, it made no difference that the purposes to which the land in question was applied by the bankrupts was trade or manufacture, and not agriculture; and moreover, that, as these fixtures passed as part of the freehold, no registration of them under the bills of sale act (17 & 18 Vic., c. 36) was requisite for the purpose of conferring a complete title to them upon the mortgagees. The assignees in bankruptcy of the mortgagors had, therefore, no claim whatever as against the mortgagees to any of the fixtures above enumerated, but articles standing by their own weight alone were not to be considered fixtures, for the purpose of conferring such a prior right upon the mortgagee, in the absence at least of a properly registered bill of sale specially applicable to themselves.

Again, in the case of Waterfall v. Penistone, 6 Q. B. 876, decided in the month of July, 1856, where A. (who was a paper maker) was the owner in fee of a piece of land and of the mill erected upon it, and mortgaged the same, with the machinery, to B., and after

ward mortgaged the same, with the machinery, to C.; and afterward, by bill of sale, "bargained, sold, assigned and set over," by way of mortgage, to the said C., the machinery erected since the date of the former mortgage to him, and, in the same deed, also covenanted that the mill and machinery comprised in the said former mortgage to C. should be charged in addition with the money advanced upon the said second mortgage to him; and where A. afterward become bankrupt, C. not having registered his said second mortgage as a bill of sale, within the prescribed period of twentyone days from the date thereof, it was held, that the assignees in bankruptcy of A. were entitled to the machinery comprised in the said bill of sale, as fixtures of a chattel nature, and which had been treated as such by the parties to the third of the above-mentioned three mortgages, such third mortgage being primarily and characteristically, or essentially, a bill of sale, and not a freehold conveyance, notwithstanding the covenant also contained in it.

(To be continued.)

CURRENT TOPICS.

That beautiful "negative pregnant" theory, on which Mr. Justice Rosekrans struck out as sham and frivolous the answer in the case of Thompson v. The Erie Railway Company, has been most ruthlessly exploded by the court of appeals, as will more fully appear from our abstract of decisions. Judge R. held, that "the denial that the net earnings of the company during the year 1869 amounted to fully enough to pay to the holders of preferred stock the dividend promised and agreed to be paid (seven per cent per annum), contained an implication that they were sufficient to pay 6 99-100 per cent." The appellate court did not treat this proposition with much more gravity than they might have treated that celebrated syllogism, wherein it is clearly proved that a horse is a man.

A decision has recently been made by Judge Troy, of the Kings county sessions, which derives considerable interest, from the fact that there appear to have been no adjudications on the subject. The defendant was indicted for, and convicted of, embezzlement on the following facts: He was a shoemaker by trade, and was occasionally employed as such by the prosecutor a manufacturer and dealer in boots and shoes to make shoes for him, the latter furnishing the materials ready cut, and the former taking the materials to his own house and returning the work when completed. In January the defendant received from the prosecutor seventy-two pairs of stocks for shoes, which he took to his house and made up, and, while on his way to return them, sold them and converted the proceeds to his own use. The court held, that, under the statute of this State, the defendant was not guilty of embezzlement; that he was not a servant within the meaning of the statute, but only a