Mrs. Daniel Fisher, and her husband for her interest v. William Dixon, one of the general disponees and executors of William Dixon, deceased [1845] UKHL 4_Bell_286

UKHL
Mrs. Daniel Fisher, and her husband for her interest v. William Dixon, one of the general disponees and executors of William Dixon, deceased
[1845] UKHL 4_Bell_286 · 1845-06-26
[1]The articles of machinery in question are all, in their own original nature, moveable subjects, made and completed as works of mechanism , and constantly bought and sold as moveables , without reference to any particular building or locality.[2]When such an engine is to be applied to use, sometimes it is placed on the ground, without being attached to any house or stone-building, though it is fixed in a certain way for stability; but more generally a building is erected for securing and protecting it. But it is clear on the report, that when this takes place, the building is made for the machinery , and adapted to the purpose of receiving and covering it,—not the machinery for the building . The machine is the principal , the building but an adjunct ,— “the skeleton or framework of the general structure,”—and the value of the machine is more than five times that of the building.[3]The mode of placing and securing such a machine for use is arbitrary and various.[4]But, after an engine is so fixed or attached, it is done in such a manner, that in general it can be easily removed, without any great injury to itself or to the building. There Page: 329 ↓ are, no doubt, some differences in this respect in the different articles described, and there are some, (such as the blast furnaces ,) to which this does not apply at all. But I now speak of the ordinary steam-engines, pumps, and other articles similarly described. Blast-engine, tilt-engine,” and so on, enumerating various articles. “All the rest, except the blast furnaces , and the coke oven mounting, are simply moveable. The expense of removing them is less than one-eighth of the value.[5]It is a matter of constant practice to remove them. It might seem a very elementary remark, that in the question whether a particular article or subject is in law moveable, it cannot be an immaterial consideration that it is in fact moveable, easily removable, practically removed , sold, &c., every day; that it may be made with ease to follow the person, whenever the locality of his trade is shifted. Yet the argument for making such subjects heritable is derived from a maxim which supposed a very different state of the fact. Quod solo inædificatur solo cedit Quod solo inædificatur solo cedit supposes the erection of a house, or other permanent structure, which cannot be removed; and it means that the property of the soil gives a right to the house. Cujus est solum ejus est usque ad cœlum Cujus est solum ejus est usque ad cœlum . But the question still remains what inædificatio inædificatio imports; and it does not follow that it includes a mere implement of trade temporarily fixed on the premises, which is easily removable, and would be equally valuable when moved to another site. If the mere fact of an affixtion thus characterised must still have the effect of rendering such articles legally heritable subjects, it should do so, in correct reasoning, in all cases alike. But if it is and must be granted that it does not, and that, in a variety of cases, the very same subjects are to be accounted in law moveable or personal estate, it must be open to the Court to consider whether, in the circumstances of this case, it has such an effect; whether, the engines and Page: 330 ↓ other articles being easily removable, though fixed in a certain manner and degree, there are not other considerations combining with this to control the effect of such junction. It appears to me that the second ground of judgment urged, and largely relied on in the opinions, viz., that these subjects of property are made heritable destinatione , not only is fallacious in the inference deduced under it, but, as a principle, ought to lead to the opposite conclusion. Here it is necessary to remember what the true state of the question is. It is not a question between heir and executor. Where it is so, and the party has any special intention as to the destination of such subjects, he can always give effect to such his intention by very simple deeds; and this is an answer to all the apprehension of inconvenient consequences from the principle of holding them to be still moveable in that case . But a man cannot disappoint the legitim by any direct deed of destination. He cannot make that to go to the heir which is in itself moveable, to the prejudice of the legitim , even by a direct declaration of a purpose to that effect. And, therefore, the principle of destination, to have any effect in this question, must be applied in a very different manner from a mere presumption of a wish to prefer his heir to his younger children, as the creditors for their legitim . There can be no such presumption in law. The presumption is the reverse—that, as administrator of the goods in communion, he has no intention, by indirect acts, to alter the state of the rights and interests of his children at his death, but rather intends to preserve them entire. It is very true that the father may relieve himself from the claims of his younger children, in regard to his property, in several ways. He may transact with them, when of age, for a discharge of their legitim . He may settle all by deed, in such a manner as to satisfy them all, without inquiry Page: 331 ↓ as to the heritable or moveable state of the property. But wherever the claim of legitim does arise, there is but one way in which that which was a moveable subject or fund in itself, can be effectually withdrawn from that its legal condition, in a question between the heir and the younger children who have not discharged their legitim . No doubt this may be done. If the father, in his lifetime, in the discretionary management of his affairs, bona fide changes the actual or legal state of his property from moveable to heritable, he has perfect power to do so. If he applies money to the purchase of a land estate or a house—if he lends money on heritable bonds,—or if, in any other manner, he turns what is personal into any known form of heritable property; in any such case, the fund of legitim , as well as of executry, will be thereby diminished at his death; not certainly on any supposition of a destination , or purpose to defeat the legitim —but simply because the legitim applies only to the personal estate, as it stands at the father's death, and rather on the assumption that there was no such purpose, and that the result is brought about in the course of fair and natural administration. But when a man lays out his money in the purchase of goods which are in their own nature moveable, and at his death the question arises, whether, in the state and situation in which they are then found, they are parts of his heritable estate, or of his personal estate, in that question there can be no presumption of favour to the heir, or that by acts having no reference to succession, he has conferred a benefit on him, and impaired the rights of the younger children. It may be found so in the result of the question. But in that question the presumption is the reverse—that the rights of succession, more especially onerous rights, are not altered by equivocal acts in the ordinary use of subjects of property. How then does the principle of destination really apply in the present case? To what were the various articles condescended Page: 332 ↓ on destined? The assumption in the argument of the pursuer is, that they were destined to make part of the heritable estate for the benefit of the heir—or destined by incorporation therein (independent of mere affixtion), to make part thereof in succession. To me it appears that the proposition set against this, as affirming a matter of fact, more than an inference of law, is sound and true—that they were destined solely to the purpose of the trade to which they were subservient. Is not this the truth to be deduced from all the facts in the record and the report? Though there were not the most direct evidence that it is so, I should think that the very nature of the case proved it. Here is a man engaged extensively in a particular species of trade and manufacture, who, having realised large personal funds by means of it, employs those funds in prosecuting the same trade still more extensively. In doing so, he may have acquired certain property, so decidedly of an heritable nature, that, remaining in his own exclusive possession, it must be accounted heritable in all questions. Yet, even in this point, there is this peculiarity, that even in such acquisitions, there was a single view to the promotion of his trade, and no view to the creation of a great heritable estate in his heir. The various subjects were detached parcels of land, evidently, and indeed expressly, purchased for the sole purpose of being made subservient to his views as a trader in coal or iron. It is not even the common case of a man who, having a landed estate, and discovering a mine in it, makes arrangements for working it to profit. Here it is all a matter of trade—sometimes with the minerals to be wrought upon found within the ground purchased, and sometimes the site selected for a work merely for the sake of its locality, the materials being drawn from other places. When, in such circumstances, the trading speculator purchases moveable articles necessary for his trade—articles of Page: 333 ↓ manufacture, to be formed in one place and transported to another—while that which he acquires is itself a moveable subject, it is manifest that the only destination connected with it is a destination for the purposes of his trade. If some degree of fixture is necessary for stability in taking the use of it, that is but the means of using it as an implement of trade, and still the only destination of it is for the trade. Lord Lyndhurst has put the case of a stocking-frame, which is usually fixed to the floor for stability; and yet, being easily removeable, and destined only for trade, he holds to be undoubtedly personal. And so of other small machinery, such as was found to be moveable in the case of Stead. There may be a difference in size and degree between the steam-engine of a colliery or iron-work and a stocking-frame; but there is none in principle, if it be ascertained that the one as well as the other is easily removeable, and in use to be moved from place to place: And still there is no destination, and no ground for presuming destination of it, for anything but the trade. But in the present case it is quite certain that Mr. Dixon himself had no idea that he had, by destination, or by anything done, rendered those moveable articles part of his heritable subjects. It is said that his opinion in point of law could not render them moveable if they were truly heritable. That is very true, once it were found that they were heritable; and if the whole point in controversy might be at once assumed, the observation would be very just. But, in the question whether they were heritable or not , and when it is maintained that Mr. Dixon made them heritable, and that destinatione , surely his own view of the effect of what he did cannot but be of importance. Now, 1st , All the articles in the condescendence constituted part of Mr. Dixon's stock in trade , and were so reckoned by himself in his books. Page: 334 ↓ I must think the respondent's mode of pleading in this point very incorrect. In the Lord Ordinary's note, he stated that the fact might perhaps be taken as admitted. He added, that if this should be objected to, it might be put in the remit, or ascertained in some other way. When this was so stated, if the respondent did not hold it to be admitted, he was bound to say so, that the Lord Ordinary might judge whether to express it in the remit or not. As he did not do so, I held it as admitted—and for that reason only did not make it a special point of inquiry. Probably there are general clauses in the remit, sufficient to have warranted what Mr. Smith has reported on the subject. But the respondent, after letting the remit go, without interposing one word of objection against the Lord Ordinary's supposition, that the fact might be taken as admitted, objected to Mr. Smith stating it in his report. And he then let it pass, without even yet making any denial of it, or requiring any other investigation. In such circumstances, I hold it as an admitted fact in the case. But, whether it be admitted or not, I think that it clearly appears upon the facts and documents reported, independent of Mr. Smith's report of the inference. The accounts entered in Mr. Dixon's books distinctly shew this; and though it is very true, that, in stating the whole stock of which he was possessed, he also puts down his proper heritable property connected with the various works, these subjects are so pointedly separated and distinguished from the machinery and other articles which he esteemed moveable, as only to strengthen the inference that all of these latter were taken by him as constituting his personal stock in trade. In one instance, indeed, that of the Calder Coal and Iron-Works, in which the land occupied was merely occupied as the site of those works, both the coal and iron being brought from Page: 335 ↓ a distance, Mr. Dixon seems to have had so strong an impression that all that was placed there was merely stock in trade, that, in the inventories made up, he has included even the houses and buildings with the machinery, &c. If this be thought in any respect to weaken the inference as to the actual view which Mr. Dixon entertained, it shews, at all events, how strongly he took the articles of property in question as being merely his stock in trade; and though such a fact may not be sufficient to render subjects which are clearly heritable in their nature, and his own exclusive property, personal estate in him at his death, it does not follow that the fact is not still very material, with regard to all the articles which do not bear any such distinctive character. But, 2nd , There is direct proof that Mr. Dixon considered and treated all the machinery in question as still moveable effects in his possession. I shall not go into the detail of particulars, which might be necessary, if my view of the principles of judgment were not excluded by the opinions of the consulted Judges. But just look at the state of the matter in the case of the great work of the Govan Colliery. First of all, the heritable, clearly defined, is conveyed by one deed of disposition, which bears no allusion to any part of the machinery; and then, separately, an assignation is taken of the personal property, consisting expressly of the steam-engines, machinery, utensils, &c. Then there is an inventory and valuation of the whole entered in the books,—the first part of which is,—“Inventory and valuation of the moveable property belonging to the Govan Colliery, viz., steam-engines , machinery, and utensils,” &c., &c., in which not one article of a proper heritable nature is included. And this is followed by a separate inventory and valuation of the “heritable property, viz., lease of colliery, farm,” &c. When, again, Mr. Dixon acquired the sole property of the Govan Colliery, and all belonging to it, separate conveyances were again employed, the engines, &c., being all Page: 336 ↓ assigned by bill of sale as moveable subjects , while the heritable property was conveyed by disposition . And then there are separate inventories and valuations again entered in the books, which are all holograph of Mr. Dixon himself , by which, after setting down with remarkable accuracy and discrimination, under nine heads, everything which he treated and meant to be taken as heritable property, he goes on, “the moveable property consists of the steam-engines , gins, wagons,” &c., &c. The inventory itself runs thus, accordingly,—“Inventory of moveable property, machinery, and utensils, £2172; seven steam-engines , £4010,” &c., &c. I take this as an example of what, in one form or another, though not always so simply, appears in regard to all the similar articles of property condescended on. And I must regard it as of very great importance in the question. For, 1. it confirms in the strongest manner Mr. Smith's report as to the practice and understanding of the trade as to the moveable nature of those subjects. In any similar investigation, Mr. Dixon's testimony would, from his great knowledge and experience, have been the very best possible after Mr. Smith's own. But, independent of any testimony or opinion, the things done bear real evidence of the decided understanding. For, if the steam-engines were, either by affixtion or destination, or both together, effectually rendered incorporate parts of the land or building, so as to pass with them, whether by a disposition silent regarding them, or by succession ab intestato , of what use would it be to include them in a separate personal deed of assignation as moveable effects? It never could have been thought of. Even if it had been intended to make them pass with the heritable subjects, it would have been enough to specify them in the one deed of disposition, as held in the case of Arkwright. But the pointed nature of the proceedings in this case demonstrates the reality of the impression, that they constituted property of a very Page: 337 ↓ different order and character from the heritable subjects on which they were placed. But, 2, Is Mr. Dixon's own belief, and understanding and dealing, of no moment, when it is said that these moveable articles of trade were made heritable in his estate destinatione? Mr. Dixon lived and died in the full belief that they were parts of his moveable estate; and no man can doubt that, if he had died intestate , as might have happened, he would have died in the belief that they would be so taken at his death. That he made a special settlement does not alter the state of the property, or his belief regarding it,—though I fear it has too much practical influence in the question. But the manner in which the party has himself dealt with the subjects has always been held to be a legitimate element in the question. It was so in Arkwright and in Stead; and it was very pointedly so regarded by Lord Lyndhurst in the case of Trappes. It must always be remembered, however, that it is not on this fact alone that any opinion for holding the subjects to be moveable is rested. It must be combined with all the other facts,—particularly that they are easily removed, and constantly in use to be so,—that they are of equal value when removed,—that they are placed there for trade only,—and that they may be so on a very temporary possession of the ground, and where that ground is merely the site of the trade carried on. It is asked, how it is for the benefit of trade that such subjects should be held to be moveable in succession? I answer, that it always must be for the benefit of trade that the course of succession to a man's property at his death should not be altered by what he does for the purposes of trade only, unless he has decidedly changed the nature of it to all effects whatsoever, to the evident perception of himself and all mankind. It will not do to assume that the things Page: 338 ↓ are made heritable by affixtion, and then, on that assumption, to say that he is bound to know it. The question is, whether they are heritable or not? And it is nearly granted that they are not heritable to all effects. But a stronger case of injury to trade can hardly be figured than that which here occurs, if it be considered apart from Mr. Dixon's settlements,—where a man has put his whole capital into trade, and distinctly recorded in his books the purpose and belief, that articles of great value, purchased as moveables, are still to be taken as part of his moveable estate, notwithstanding the situation in which they are placed,—and, at his death, the rights of his wife and children are found to be completely inverted or taken away by a constructive change of their legal character. I shall not enlarge further. It appears to me, in general, that all the articles in the condescendence, as reported, with the exception of the blast-furnaces, and a very few other articles, which it appears are practically not removable, ought to be held to be moveable in the present question. I have adverted to the Scotch cases, none of which, I apprehend, can be held to have settled the point. But I must still take notice of the English authorities quoted; though I can only speak of them with great diffidence. It appears that there was in England a strict rule concerning fixture, even more rigid than that in Scotland. But it is equally clear that it has been gradually relaxed. The grounds of relaxation are precisely those I have been considering,—the purpose of the annexation as being for trade,—the facility of removal,—the practice of removing,—the building being only for protection,—their being only partial annexation,—the subjects being treated as moveable in the accounts of stock. I shall not attempt to go minutely through the cases, which appear to be well explained in the papers, and more Page: 339 ↓ surely in Lord Lyndhurst's speech in the case of Trappes. But it is remarkable that the very earliest case of which there is any notice, that of the cider mill, decided by C. B. Comyn, was a case between heir and executor; and, in deciding Lawton v. Lawton , Lord Hardwicke noticed the very case of a fire-engine, holding that, even between heir and executor, “it would be hard that in every case it should go to the heir.” What would he have said if the case of legitim could have been in his view? I do not pretend to form a judgment how far all the cases can be reconciled. Lord Lyndhurst seems to think they may. But the rules are stricter in the Common Law Courts than in the Equity Courts. The result is clear, that between landlord and tenant—between tenant for life and remainder man—between mortgagor and mortgagee—such machinery, and specially a fire or steam-engine, has been held personal estate. It is said by Lord Hardwicke not to be so frequently so held between heir and executor; and there is one, judgment of Lord Mansfield (in the Common Law Court), in the very special case of salt-pans, attached to a salt-spring, holding them to be real; of which, however, an explanation, thought to be satisfactory, is given by the English lawyers. But I come at once to the case of Trappes, decided very solemnly by Lord Lyndhurst. It was a question between the assignees of a bankrupt and the holder of a mortgage. The mortgage deed conveyed expressly, with the “lands and buildings, the steam-engine, mill, gearing, heavy gear to millwright work, fixed machinery, and other matters and things erected and then standing .” The assignees did not claim the steam-engines and water-wheels, holding these to be given by the mortgage deed, just as in the cases of Arkwright and Stead, although there is this very important difference, that a debt secured by mortgage is believed to be Page: 340 ↓ still personal estate. But they claimed all the other machinery, as not carried by the general terms of that deed; and it was held that it did not so pass, and was not intended to pass; and that, “if it did not so pass, it is to be looked upon as personal estate.” But why was it held not to pass, or not to have been intended to pass? “In taking the stock , it appears that the land and buildings were constantly placed under one head, and the machinery under another. It also appears that machinery of this description is, in that part of the country, constantly bought and sold without reference to the freehold.” The conclusion of Lord Lyndhurst is direct to the point. “We are of opinion, therefore, that, with respect to machinery of this description, erected by the bankrupts for the purposes of trade , it would have passed to the executor , and not to the heir , and that it was the partnership estate of the bankrupts”. This is the doctrine held upon a review of all the cases. Now, 1. It is decisive as to all the small machinery in the present case, for all the same facts are here combined for rendering it personal estate. 2. As to the steam-engines, &c., there is here no deed under which they can be held to pass as heritable, or in connexion with heritage. 3. There is direct proof that they were intended to stand as personal estate, being so placed in all the accounts of stock. 4. The opinion is direct that such machinery, so treated and dealt with, must be accounted personal, even between heir and executor, adopting the dictum of Lord Hardwicke, with special reference to a fire-engine. And, 5. The present case is a fortiori of any case of heir and executor. I have only now to advert in a few words to two points.[1]In regard to the Glasgow Foundry . The ground being Mr. Dixon's property, he let it to a company, but of which <p style="text-align:right;color:#006600;background-color:white";><b>Page: 341</b>↓</p><page pagenum="341"/>he was himself a partner for four-ninths, and under an obligation in the lease he erected machinery. Now the consulted Judges may be right in saying, that, so far as the machinery was his property, it is the same case with that of most of the other works. But here it is overlooked, that the assumption so largely gone upon before, that the machinery was erected solely for the purpose of realizing the produce of the ground, entirely fails . The whole materials wrought at the foundry were brought from the Calder Coal and Iron -works. The ground of the foundry was the mere site of a trade . It is also overlooked that, besides the machinery erected by Mr. Dixon, there were tools, implements, &c., which belonged to the company. Certainly his shares of these were personal estate.— Kirkpatrick v. Syme .[2]The other point is that referred to in the last paragraph of Lord Cockburn's opinion, from which Lord Cuninghame and others have dissented. It is a very important point. There can be no doubt that the machinery erected by Mr. Dixon, as a tenant , was his property, and that, according to all the authorities, he had a right to remove it as personal property. This is the very point conceded on all hands, that, in a question between landlord and tenant , such property erected by the tenant is personal estate and belongs to him. Being personal estate, and on that ground alone vested in the tenant, it might seem a very elementary proposition, that it must be part of his moveable estate at his death. And so Lord Cockburn holds. But even this will not be granted to the child asking legitim . And why not? Because the articles were placed on the ground for the purposes of the lease, and the heir cannot continue to trade under it without them. This is really driving the doctrine into a very strange position. Fixture is out of the case, for that would make them Page: 342 ↓ belong to the landlord , as part of the freehold. But, against that principle, they are held to be personalty in the tenant ; and on that ground he may remove them when he pleases. At his death they are his personal effects, for he had no other title to them. They are so just as much as the carts and horses on a common farm. True, it may be inconvenient for the heir in the lease that the stock in trade, or the farm-stocking on a farm, or the furniture of a house, should be sold or carried off. But I never yet heard that that was any reason why in any such case what is personal estate in the tenant should not be so reckoned. I suspect the collectors of the legacy duty would hold a very different doctrine. It is a position which would alter the course of succession to every tenant in Scotland. There is no more difficulty here than in any other case. In all of them, the things or similar things are necessary to the use or working of the subject; and the heir must either transact with the younger children or executors, or supply himself otherwise, which, it is proved, he may as easily do in this case as in any other. And see what strange results it might bring it to. The lease may be within half-a-year of expiring . What would the machinery be then? It would come to this, that being certainly moveable in his person, they would be personal estate in his succession if he died the day after the lease expired, and heritable if he died a day before the term. In short, we are required to hold that this property, undoubtedly personal in the tenant , is yet, without any change on it, heritable estate in his succession. I apprehend that this proceeds on an entire mistake as to the meaning of the principle by which things may be made heritable destinatione . But, in short, I cannot assent to a proposition which appears to me to involve such inconsistent results, and to lead to the greatest confusion in the succession of all tenants in Scotland.” The opinions of Lord Cockburn and Lord Moncrieff were Page: 343 ↓ adopted by the House on the hearing of the appeal, as representing the two opposed opinions, the reporter has therefore given them in full, so far as applicable to the general question of law, which alone he has thought it necessary to embrace by this report. In doing this he has necessarily excluded those parts which bear only upon whether any particular article was moveable or heritable. The reader desirous of inquiring what articles were held to be heritable, and what personal, will find the information in the inventory and description in Mr. Smith's report, and the remarks of the Judges upon that inventory noticed below, (which will be found in 5 B. M. D. and Y. 829,) coupled with the final interlocutor of the Court, given below. The Judges concurring, as well as those dissenting from the opinions of the consulted Judges, agreed in directing the papers to be again laid before these Judges, for the purpose of their stating what portions of the machinery they considered to be moveable in conformity with their opinions. This was done by the word “heritable” or “moveable,” as the case might be, being marked on the inventory and description in Mr. Smith's report by the consulted Judges, who made this addition to their opinions:
“As to the engines and other machinery for working the collieries of which the late Mr. Dixon was not the owner, but only the tenant, and which belonged to the landlord,—in respect it is admitted by Mr. Dixon, and not disputed by the claimants, that they never belonged in property to the defunct during his life, and so were not in bonis at his death; and further, in so far as regards such subjects under lease on which the late Mr. Dixon, being the tenant only, made erections, which he was entitled to remove at the end of the lease, which the respondent also admits must be included in the executry, we are of opinion that the Judges of the Second Division may now dispose of the two articles in the appendix to Mr. Smith's report, articles 6 and 7, having regard to our former opinion, without further opinion from us.”
Page: 344 ↓ Thereafter the Court, on the 7th March, 1843, pronounced the following interlocutor, which was the one appealed from:— “The Lords having resumed consideration of the revised cases for the parties, dated 4th November, 1839, with the closed record, Mr. Smith's report, and other proceedings therein referred to, and the opinions of the consulted Judges, dated 14th January, 1842, and the additional opinions of the consulted Judges, dated 28th February last, in respect of these opinions of a majority of the Judges, and in conformity therewith, find, that the instruments, engines and machinery described and referred to in Mr. Smith's report, which, in the circumstances of this case, fall to be held and treated as heritable , and those which fall to be held as moveable property in the succession of the late Mr. Dixon, are respectively as follows, viz., First,—That of the instruments, engines and machinery specified in article 4 of the revised condescendence for Messrs. Dixon, No. of process, the following are to be held and treated as heritable:—(1). The blast-engines for blowing the furnaces at Calder Iron-Works, Nos.1, 2 and 3, with blowing apparatus complete, as also the blast-furnaces themselves. (2). Tilt-engine (8-horses power), in very bad order; clay-mill and great going gear from steam-engine for drawing it, and turning-lathe, tilting-apparatus, two hammers and shears, all out of order—all at the Calder Iron-works. (3). Engines for thrashing and corn-mills at Calder, eight-horses power, with pipes from engine to canal (in best order); thrashing-mill (worked by steam-engine; corn-mill (one pair stones for shealing, and one pair for grinding) with the sack-tackle, kiln-head. (4). Faskine pumping engine, 40 fathoms eight-inch pump, in two lifts, with shear-poles, capstan and ropes (in bad order); No. 5, gig-engine, with winding apparatus, pit-head frame and ropes (in bad order); No. 4, winding machine and winding apparatus, conical drum, and pit-head frame and round ropes, wooden Page: 345 ↓ beam, iron mounted and plumber blocks, cast-iron cistern. (5). Blowing-engine at the Wilsontown Iron-works, with blowing apparatus, and water-pressure and two boilers. (6). Rolling-mill engine at Wilsontown, with rolling apparatus and two boilers; two steam-engines for working forge-hammers, with two boilers and machinery for working four hammers, with two cranes. (7). The following engines and articles at Govan Colliery:—old water-engine, 50-inch cylinder, with two boilers, and three lifts of 12 ½-inch pipes, capstan and ropes, including tools and implements for working engine (engine and boilers in bad order); water-engine at Polmadie engine-pit, 44-inch cylinder; one boiler, with 28 fathoms nine-inch pipes and rods, including capstans, ropes, tools and implements for working engine, in so far as such tools and implements are attached or fitted to this particular engine: gig-engine at Polmadie engine-pit, with winding apparatus and ropes; Neilson's Pit water-engine, 33-inch cylinder, with 24 fathom nine-inch, and 9 ½ fathom 6 ¼-inch pumps, and winding apparatus, capstan, ropes and tools used for working engine, in so far as such tools, &c., are attached or fitted to this particular engine; engine at Gateside-pit, with winding apparatus and ropes; engine at Firs Pit, with two boilers, and winding apparatus and ropes (engine and one of the boilers in very bad order); old materials of Quarry Pit gig and water-engine, with 54 fathoms 6 ¼-inch pipes and pump rods; one boiler useless; remains of corner pit gig, pumps and rods in Polmadie Pit. (8). The Glasgow Foundry steam-engine, 14-horse power, with one boiler and engine tools, in so far as such tools are attached or fitted to this particular engine, and condensing and water-pipes to and from the canal; blowing apparatus, with air-chests and pipes to cupola, including second walking-beam, connecting rods, &c.; great going gear from steam-engine for driving clay-mill, turning-lathes, and part erected for boring-mill, including clay-mill; three cranes in foundry, with gearing and blocks; Page: 346 ↓ crane in smithy; small crane in boring-mill; smaller one; pair long wooden shears for turning-lathes, with three sets turning-lathes heads; and that the other tools, implements and articles specified in article 4 of said revised condescendence for Messrs. Dixon, viz., all spare and duplicate articles for working the blowing-engine and apparatus, and the rolling-mill engine and rolling apparatus at Wilsontown, the unattached tools and implements used for working the water-engines at Govan Colliery, and the engine-tools of the Glasgow Foundry steam-engine, in so far as not fitted to that particular engine, are to be held and treated as moveable . Second,—That of the instruments, engines and machinery enumerated in article fifth of said revised condescendence for Messrs. Dixon, the following are to be held and treated as heritable ,—(1.) Fineries at Wilsontown, viz., a large cistern 8 feet × 3 × 2; finery water-boxes and air-chest, one water trough. (2). Two standards in stone there. (3.) Two circular plates for crane foot; one crane beam, mounted; two wooden ditto there. (4). Gin at Middle Moor Pit; gin with old ropes, (Wilsontown). (5). Greenwall water-engine, with capstan; 16 ½ fathoms 9-inch pump, timber beam and framing. (6). One horse gin, with pit-head frame and pulleys at Govan Colliery. (7). Railway at Port-Eglinton, consisting of 2864 rails, four feet long, 1449 sleepers, one coup rail, two turn plates, 17 crosses and forks for offsets, 1008 heavy slabs for crossing roads, three crosses and forks for offsets (bad casts), and couping machine at Port-Eglinton. And that the other articles and implements enumerated in article 5 of said revised condescendence for Messrs. Dixon, being (1) Smith's hearth-plate, timp in cast-house, ball for breaking heavy goods, 225 coke-yard rails, 89 oven covers, 17 turning-lathes in coke yard, screw stalk in smith's shop, two smith's sweys at Wilsontown. (2). Fourteen water boxes, two breaking racks, two plumber blocks, four pit-head wheels, one cast Page: 347 ↓ one wrought-iron scale for a weighing-beam, eight dampers, mounted plates, and barrow runs on floor; one crane-step at Wilsontown. (3). Tongs, hooks, wrestlers, ringers for cutters, bolts and wedges; 19 pair cutters, teeth and other plates for it; 50 spanners, six pinions, two rests for straight edge, seven crates and one plate, one centre-point standard, two standards, seven rests, two large standards, two spur pinions, seven crabs, 20 coupling boxes, seven shafts, four top-riders, one large and one small cistern, two moveable benches, wooden ditto, hoop shears wrought by engine, cast-iron plates on mill-floor, 17 pair rollers at Wilsontown. (4). 4356 flat rails above and below ground, 92 corves, 43 colliers' whirlies, 156 bench plates (cast-iron), four stone mills, two hearth-plates on pit-heads, one fire-lamp, 44 corf-carriages, two weights on bridge (cast-iron); two weighing machines and weights, eight riddels, two weighing hutches, one redd ditto, eight wheelbarrows, two wagons for loading char at Faskine. (5). Five corf-carriages, four slipe hutches at Faskine. (6). 2688 rails, 224 ditto double, five offsets complete, 140 circular rails, 34 coke yard rails, 12 limestone waggons, six coal ditto, 199 flat and 27 circular rails, one iron measure for lime, 12 hutches, part of an old gig-engine, 12 hutches, two windlasses, and two waterbarrels at Wilsontown. (7). Four weighing machines for carts, never bolted to the building, three small weighing machines for colliers' hutches, two jack rolls (12 feet long) with stools, sixty-one corf-carriages, eight hill ditto, 88 hill ditto, 88 whirlies, 10 slipe hutches, 59 corfs, four small sinking kettles, one ditto ditto (bad), three large and three small water buckets (strong), four small wind-lasses ditto, eight wheelbarrows, one large hanging scaffold (with slings), one pair pump-slings, one ditto, two corf-carriage frames, two hill ditto, two slipe ditto, two whirlie frames, two ditto clad with wood, one water whirlie, air pumping machine (with 202 yards white-iron pipe), 5 ¼-inch Page: 348 ↓ diameter, one cleek for pit bottom, four fire-lamps, one ditto lamp, six old gin trees, three sinking pails, six new wagon frames, shape of pit (malleable iron), net for slinging horses (very old), hude for carrying lime, three pair drawing ropes (old), materials of an old weighing machine, boring rods, 15 sets blasting tools, 30 sinking picks, 19 coal ditto, 12 wedges, useful old iron plain work, ditto screwed work, new wrought-iron plain work, colliery implements of wrought-iron, useful articles of brass, 3029 rails (horse road), 1430 sleepers, 683 snugs, 34 offset sleepers, five pattern sleepers, 45 crosses and forks for offsets, four turnplates for carriage roads, 402 rails (old horse road,) 201 sleepers, seven hinge rails (whirlie road), 914 yards rails (laid in pit), 36 common ledge rails, 602 yards ditto in pits, old cast-iron broken rails, colliery implements (various), wrights' ditto, 14 pulley-wheels for round ropes, four ditto for flat ditto, one pattern rope, 116 carriage wheels, with 58 axles, nine small carriage wheels, five old small pipes, two pipes (9 ½-inch diameter), one working barrel (12 inches), 33 wagon rods with brasses, 28 bushes for whirlie wheels, sleepers and cods for corf-carriages, cods for ditto, 19 furnace bars, one old working barrel, one old basket door piece, one drum-shift, one hand-pump, one suction piece, cistern for horses at stables, 164 fathoms new flat rope, small round rope, old rope, one damper frame and cover at Govan Colliery. (8). Four spare wagon wheels, 31 wagons, and two stone carriages, connected with Port-Eglinton railway, are to be held and treated as moveable . Third,—That the coke oven mounting mentioned in article 6 of the said revised condescendence for Messrs. Dixon is to be held and treated as heritable , and the 20 hearth-stones, 500 feet, mentioned in the said article, are to be held as moveable . Fourth,—That the blowing-engine for No. 4 furnace at Calder, secondhand, with blowing apparatus, partly erected Page: 349 ↓ only, and in many parts awanting, with two secondhand boilers and regulating cylinder, mentioned in article 7 of the said revised condescendence for Messrs. Dixon, are to be held and treated as heritable . Fifth,—That the articles and implements enumerated in article 8 of said revised condescendence for Messrs. Dixon, viz.:—(1). Bars, hooks and courses, seven throwing-off and three clay shovels, 22 pig and three sow patterns, breaking down bar. (2). Engine fire irons. (3). Fifteen steel yards and boxes, weights, eight mine grapes, three rakes, four mine boxes, six coke barrows, three coke grapes, one limestone grape. (4). Six setters and .coke shovels, six grapes for ironstone, three pinches, two iron stone carriages, four coke drawing grapes. (5). Beam and scales for pig-iron, weights for ditto, pig-iron barrow. (6). Three rabbles, one cast-iron anvil, two bearers and chains, one wooden tress, all at Calder. (7). Two weighing beams and scales, one weighing machine, one ditto ditto for blooms, two old iron barrows, two wheel trucks, one old coke barrow, one old pig-iron ditto, two ironstone carriages, four-wheeled carriage, old weighing machine at Wilsontown, are all to be held and treated as moveable property. Further,—Find as to the articles under the sixth head of Mr. Smith's report, which belong to the proprietors of the subjects in which the late Mr. Dixon was tenant, as they did not belong to him at the time of his death, there can be no claim over them as the subject of legitim , reserving however any claim which may arise for meliorations claimable from the landlords, in terms of the leases entered into between them: And with regard to the seventh class in the said report, erections made on subjects under leases by the late Mr. Dixon, and which have been removed by the respondents at the termination of the leases, find that these are moveable , and subject to the claim of legitim on the part of the Page: 350 ↓ claimants, and decern , and find no expenses due to either party in this branch of the cause.” Mr. Turner and Mr. Sandford for the Appellants, relied upon M'Knight v. Irving , Hume , 412,— Hislop v. Hislop , 16 F. C. 143,— Elwes v. Maw , 3 East , 38,— Lawton v. Lawton , 3 Atk . 13,— Dudley v. Ward , Amb . 113,— Lawton's Exrs. v. Salmon , 1 H. Blac. 259,— Trappes v. Harter , 2 Cro. & Mee. 153,— Davis v. Jones , 2 Bar. & Ald. 165. The Lord Advocate, Mr. Kelly , and Mr. Anderson , for the Respondent, referred to Stair II., 1, 2, & 15, II., 2, 2,—Ersk 2,—Ersk . II., 2,4,—Mags, of Musselburgh, Mor . 10585,—Barr, 25 Feb. 1783, Hailes , 919,—Gordon, Hume's Cases , 189,— Niven v. Pitcairn's , Trs. 21, F. C . 204,— Cox v. Stead , 11 S. & D . 672,— Thresher v. East London Water Works, 2 Bar. & Cr. 608,— Farrant v. Thomson , 5 Bar. & Aid . 826,—2 Smith's leading Cases , 114, Lawton v. Salmon , ut supra ,— Elwes v. Maw , ut supra . Lord Brougham .—My Lords, this case was heard before your Lordships at great length on both sides, and your Lordships considered that, on account of the length of the case, as well as the importance of the subject-matter involved in point of value, and also in respect of some of the principles which were mooted, and some indeed which were disputed, in point of law, bearing not merely upon questions of the same nature, namely, of legitim , but bearing upon the cognate question, which must depend upon the same principles, of the relation between landlord and tenant at the expiration of the term, your Lordships considered that it was fit that time should be taken for considering the case before finally pronouncing judgment. That consideration has been given to it, and I am now prepared to move your Lordships to give the judgment which it appears to me, under the circumstances of this case, it is right to pronounce. Page: 351 ↓ I begin by laying out of view entirely what was very much relied upon, as it appeared to me, below, and much relied upon in the argument here for the appellant, viz., a distinction taken between this case and a case of inheritance, a case arising between executor and heir. In this case of legitim , as I understood them to argue, it is not a mere question between executor and heir, but it is a question between two kinds of heirs. Now that is a sort of argument, I must say, with all respect for those who urge the distinction upon our attention, than which nothing can be more groundless. It is not a question between two kinds of heirs. In what way can you differ this case between heir and executor from the common case, as the argument endeavours to distinguish it? The executor is heir in mobilibus . That is the common expression of the Scotch law. The legitim here is due to those who are not heirs as to real property—it is that which is due out of what is called in Scotland the Executory Fund, that is to say, that which goes not to the heir, but which goes to the executor. It is then in his capacity of heir in mobilibus that the legitim goes to the child, that the bairn's part of gear goes to the bairn, because the bairn is heir in mobilibus , and, therefore, I cannot, for the life of me, discover how the argument gains at all, I do not say that it loses, but it neither gains nor loses by the distinction—it is left precisely in the same state in which it was before the distinction. It is because it is executry and not heritage, that the legitim attaches. After payment of the debts, the surplus fund is divided into three parts, according to the Scotch law, which was originally, indeed, the old Saxon law of England, and which is now the law of Scotland. That being the case, having relieved it from the embarrassment of this argument, I have not much to urge to your Lordships upon this case, because, upon the fullest consideration which I have been able to give, both to the English law authorities which were cited, and to the Scotch authorities, by which Page: 352 ↓ it was sought on the one side to turn aside, and on the other side rather to enforce the application of the English law cases, I entirely agree with the Court below, and I should have arrived at the self-same conclusion as that at which the great majority of their Lordships have arrived. There is no doubt a most respectable minority of their Lordships, including the Lord President, and the learned chief of the other Court, and Lord Moncrieff, (to whose authority no person is disposed, generally speaking, to yield more entire and implicit respect than myself,) the most able and elaborate judgment which he has given upon this point thoroughly exhausting the whole case, not only upon principles, but upon its details. But I must say that my mind goes not with his lordship's judgment, but with the equally elaborate and equally able judgment of my Lord Cockburn, who also goes into the principles and into the details of the case. I think Lord Cockburn has really left me little or nothing to add, and I am bound to say that in my view he and the other judges joined with him have come to a right and sound conclusion. Great reliance was of course placed upon the case before Lord Hardwicke, in our Court of Chancery here, and a similar case which occurred more recently in the Court of Exchequer, I think in Lord Lyndhurst's time. But there was an attempt made to distinguish this case in principle from that, and to show that there was another inconsistent decision in the Cider Mill case, in one of the cider counties, Worcestershire or Hereford-shire. Now, it is a remarkable circumstance, that of that case we have the most indistinct and unsatisfactory report; we have really nothing that can be called a record of that case. It was cited in the case before Lord Hardwicke; and I must also say that if that case, the Cider Mill case, is to be taken as it is represented to us as regards the substance of the case, and in its result, my mind goes not at all with that decision. It is contrary, undeniably, to the general principles of our law upon the subject, and Page: 353 ↓ if the same question were to arise to-morrow, with the circumstances which are represented to have attended that case, it would not, in my very clear opinion, lead to the same result. Therefore I lay it out of view. As my noble and learned friend reminds me, we have a most imperfect account of the circumstances, and, above all, the most material circumstance, of how it was affixed to the soil. For if a cider mill be fixed to the soil, though it is a manufactory, and erected for the purpose of a manufactory, if it is solo infixum , it is perfectly immaterial whether it is for the purpose of a manufactory, or a granary, or a barn, or any thing else, it is a fixture on the soil, and it becomes part of the soil. Can any man say that one of the great brewhouses would belong to the executor because it is erected for the purpose of manufacture, and wholly unconnected with the land? for a brew-house is as much unconnected with any crops upon the land upon which it is situated, as a eider mill can be said to be—it is for the purpose of brewing beer out of malt, which may have been grown in Russia or in Africa. It has nothing to do with the land, as may be seen by those who will take the trouble of looking at any of the brewhouses in London, which are established in places where it would be very difficult to find a blade of grass, much less a crop of barley to make malt of. But although it is a manufactory, nobody says it belongs to the executor, nor is it what the Scotch generally call an Executry Fund—it would go unquestionably to the heir. The Scotch law appears to me only to differ from the English law in carrying the principles of our law, as laid down in the cases, a little farther, rather than falling short of them. Upon the whole, therefore, I agree with Lord Cockburn; I do not differ from his argument any more than I do from the conclusions to which they lead. Then, my Lords, I come to the application of these principles in detail, and I must say in the outset, as to that detail, Page: 354 ↓ of the very little that I have to add, that I should be most unwilling to come to any conclusion which should lead to upsetting or altering in any particular this elaborate judgment thoroughly considered below upon the ground of my differing in opinion, as to the application of this clear principle to any of the details of this machinery. There are one or two articles which I do not quite think have been consistently or rightly disposed of by the Court below. I do not deny that, but I have carefully looked to see whether I could put my finger upon any part which had been wrongly disposed of in favour of the respondent, and against the appellant, in the Court below. If I had found that, I might have been more obstructed in coming to the conclusion at which I have arrived. But my objection is to some of those articles being given to the appellant, not to the respondent; and if there had been a cross appeal I protest that I should have found some difficulty in resisting the argument, that there ought to have been a reversal or alteration in respect of some of those particulars. There are one or two that in looking over I made a query against, of the most trivial nature, upon which I should never advise your Lordships to reverse or alter the judgment below in any respect. I cannot even say that I have a clear opinion as to them. I queried them as having a doubt. There are several articles which the Court below have given to the appellant which it rather appeared to us ought to have been given to the respondent. They have brought within the scope of the executry, and consequently of the legitim , particulars which I think might very safely have been given to the heir as real property. Upon these grounds, therefore, I really have no hesitation whatever, as little as I ever had in any case, in recommending your Lordships to affirm the judgment of the Court below in all its parts. Page: 355 ↓ Lord Cottenham .—My Lords, I concur in opinion with my noble and learned friend, that this interlocutor ought to be affirmed; and when we separate and distinguish the real case from some of the points which have been endeavoured to be introduced into it by way of argument, it does appear to me to be free from all doubt. The point which has been already alluded to, namely, that this is not a case between the real and personal representative, but that it is a case between heirs, appears to me to be totally destitute of foundation. Legitim can only be claimed by means of showing the estate to be personal. The preliminary question is, therefore,—Is this personal estate, or is it property attachable to the freehold, and therefore descendible to the heir? The moment we see that the legitim can only be claimed in consequence of the property being part of the personal estate, the question of course assumes its natural shape. Is it personal estate or not? That preliminary question therefore being decided, it entirely disposes of the ground on which this has been attempted to be distinguished from the other cases which have arisen with respect to the claims of heirs and those who are interested in the personalty. The principal stress of the argument on the side of the appellant has been, that this is to be protected, because it is necessary for the encouragement of trade that this property should be considered as not belonging to the real estate, but as belonging to the personal estate. My Lords, the principle upon which a departure has been made from the old rule of law in favour of trade, appears to me to have no application to the present case. The individual who erected the machinery was the owner of the land, and of the personal property which he erected and employed in carrying on the works. He might have done what he liked with it; he might have disposed of the land; he might have disposed of the machinery; he might have separated them over again. It was therefore not at all Page: 356 ↓ necessary in order to encourage him to erect those new works, which are supposed to be beneficial to the public, that any rule of that kind should be established, because he was master of himself, and he might make a rule for himself. It was quite unnecessary, therefore, to establish any such rule in favour of trade, the whole being entirely under the control of the person who erected the machinery. If, therefore, this be clearly a question of real or personal estate, and if the rule which in some cases has been acted upon of making a departure from the established principles in favour of trade has no application to the present case, what does it come to? Of course we throw out of consideration all the cases which have arisen between landlord and tenant, and between tenant for life and remainder man—because the departure which has taken place in these cases has no application to the present case. Then the case being simply this, the absolute owner of the land, for the purpose of better using the land, having erected upon and affixed to the freehold, and used for the purpose of the beneficial enjoyment of the real property, certain machinery, the question is— “Is there any authority for saying that under these circumstances the personal representative has a right to step in and to lay bare the land, and to take away all the machinery necessary for the enjoyment of the land?” Let us consider for a moment, if that be the principle, to what extent it is to go. It is put by Lord Cockburn, (and a very strong illustration it is,) if the owner of the land dig a well and erect machinery for the purpose of using that well, is it competent to the personal representative to come and take away that machinery, and leave the well useless? Yet where is the distinction? Here is machinery capable of being taken away with very little if any damage to the land. Therefore, although machinery is in its nature generally personal property, yet with regard to machinery or a manufactory, if erected upon Page: 357 ↓ the freehold for the enjoyment of the freehold, nobody can suppose that that can be the rule of law. Again, and so with respect to other erections upon land. It is not necessary to go beyond the present case, which is, machinery erected for the better enjoyment of the land itself. The principle probably would go a great deal further, but it is more advisable to confine the observations I have to make to the particular circumstances of this case. There is no case whatever which has been cited in which that doctrine has been recognised except the one which has been referred to, the Cider Mill case, as to which we really know nothing, except that at the Worcester assizes, a good many years ago, a Cider Mill was held to belong to the personal estate. Why it was so held, under what circumstances, and whether it was a Cider Mill fixed to the freehold or not, we do not know. We know nothing except that this machine, called a Cider Mill, was decided to go to the personal representative. It is impossible to extract a rule of law from a case of which we know so little as that. And, with that exception, there is a uniform course of decisions, wherever the matter has been discussed, in favour of the right of the heir to machinery erected under the circumstances in the present case; and if the corpus of the machinery is to be held to belong to the heir, it is hardly necessary to say that we must hold that all that belongs to that machinery, although more or less capable of being detached from it, and more or less capable of being used in a detached state from it—still if it belong to the machinery and belong to the corpus , the article, whatever it may be, must necessarily follow the principal and remain attached to the freehold. My Lords, I do not go into the detail of the particular items which have been objected to. I have looked them through, and quite concur with my noble and learned friend, that if any exception were to be taken with respect to particular articles, as to whether they ought to be adjudged to one or to Page: 358 ↓ the other, it would have been for the respondent and not for the appellant to take such exception. Lord Campbell .—My Lords, I have very little to add to what has been said by my noble and learned friends who have preceded me, except that 1 entirely concur in the view which they have taken of this case. I own I was a good deal surprised that the point was so much pressed at the Bar—that this was a case of legitim , and that it was not the whole question of what descends to the heir and what goes to the executor. My Lords, we all know that legitim is a portion of the personal property, and you must first ascertain what is the personal property before the claim to legitim can arise. There can be no doubt, therefore, that it is in fact the whole question, whether the property in dispute goes to the heir or to the executor. My Lords, I have no doubt in the world that it should go to the heir, both upon reason and upon precedent. As my noble and learned friend, who last addressed your Lordships, has stated, none of the arguments respecting the benefit of trade, at all apply to a question as between heir and executor, because the owner of the fee being the absolute owner of the land, and of the machinery erected upon it, the whole of it is in him, and he may dispose of it as he thinks fit for the benefit of his family. Then, my Lords, with reference to the authorities by which we are bound, whatever speculative notions we might entertain with respect to propriety and expediency, if we entertained a different opinion upon that subject, all the cases are quite uniform, both in England and in Scotland, to show that such property shall go to the heir. The only case the other way which has been referred to, is that of the Cider Mill, and there the essential circumstance is left entirely in doubt, whether the mill was affixed to the freehold or not. My Lords, we know Page: 359 ↓ that there may be a cider-mill that is not affixed to the freehold, for I read in the “Vicar of Wakefield,” that when there was a match proposed between one of the Miss Primroses and young farmer Plumstead, Moses said, “I hope that, if my sister marries young farmer Plumstead, he will lend us his cider-mill.” I take it that the cider-mill there was moveable and was not affixed to the freehold, but might have been carried from the farm of farmer Plumstead to the Vicarage of the Primroses. Now, my Lords, this was felt to be so strong on the part of the learned and able counsel who argued for the appellants, that they were almost driven to admit that in this case, if the freehold had belonged by hereditary descent to Mr. Dixon, the machinery would have gone to his heir; but they said the land was purchased by him for the purposes of trade, and therefore this introduced a new distinction. It was assumed, that if a great proprietor, such as Lord Londonderry in the county of Durham, were to erect machinery in his coal works, that would go to the heir, and not to the executor; but if a person buys a piece of land for the purposes of a colliery, and erects machinery upon it, that will make a distinction. My Lords, there is not the slightest authority for any such distinction, and it would be most mischievous if we were at all to sanction the introduction of any such distinction. It would lead to great mischief, and indefinite litigation. There are cases, where, as between partners, when land is used as part of the partnership stock, it is considered as personalty, but in those cases the land itself, the soil, is part of the personalty as well as any machinery erected upon it, and the arguments that were urged in this case by the appellant would lead to the conclusion that all the land that was purchased in fee simple by Mr. Dixon, and belonged to him as long as grass grows and water runs, that all that should be personalty just as much as the machinery that was erected upon it. Page: 360 ↓ My Lords, for these reasons I have no doubt at all that the principle of the decision was perfectly correct. A distinction was attempted to be made between leasehold and freehold, but when we bear in mind that by the law of Scotland the leasehold is realty and that it goes to the heir, the distinction entirely fails. I am of opinion, therefore, that the interlocutor must be affirmed. I am very glad, and I think it is creditable to the other side, that they did not for any minute pot-lid or miserable chattel bring a cross appeal; because that would only have involved the case in fresh difficulty and caused unnecessary expense. I therefore entirely agree in the motion of my noble and learned friend, that this interlocutor should be affirmed. Lord Brougham .—My Lords, I omitted to consider the matter last mentioned by my noble and learned friend from pure inadvertence, namely, as to the leasehold; and also what my noble and learned friend near me adverted to, as to the rule being departed from for the benefit of trade, to which he has given a complete answer. It does not apply to this case in the slightest degree. The argument before Lord Hardwicke was of a totally different description. I only mention this to show that there is no difference of opinion. I omitted it from inadvertence. Interlocutor affirmed, with costs. Ordered and adjudged, That the petition and appeal be dismissed this House, and that the interlocutor or judgment, in so far as therein complained of, be affirmed, with costs. Solicitors: Spottiswoode and Robertson— Grahame, Moncrieff and Weems, Agents. 1845