Legatees and other cases, in which the vesting was immediate, and which do not seem to call for special notice in this chapter. (Mackenzie v. Holt's Legatees, 1781, M. 6602; M'Courtie v. Blackie, 15 Jan. 1812, Hume, 270; Grant v. Fyfe, 22 May 1810, F. C.; Pearson v. Corrie, 28 June 1825, 4 S. 119.)

NOTES IN THE INNER HOUSE.

FIRST DIVISION.

Advocation, Syme v. Harvey.

What is a Fixture?

In this case the very important question arose for decision, What, as between landlord and tenant, is to be considered a fixture? It is necessary, before considering the effect of the judgment, to state shortly the circumstances of the case, in order to prevent its authority being carried too far. In 1853, Messrs Syme and Middlemass, who were nurserymen and seedsmen in Glasgow and its neighbourhood, obtained a five years' lease of the garden of Keppoch House from Mr Harvey, who in the present case is to be treated as the landlord. At the time the lease was entered into, the garden was not a nursery-garden. In the course of 1854 the tenants erected, at their own expense, a propagating house, which cost them L.40, a greenhouse, which cost them L.100, and a potting-house, the cost of which did not appear. In 1855 the garden was converted by Syme and Middlemass into a nursery-garden. In 1858 the lease expired, but the tenancy was continued for another year. During this last year, Syme and Middlemass having been sequestrated, their trustee proposed to sell and remove the erections above mentioned, when Harvey, who had known at the time that the erections were being made, interposed, and applied for interdict, at the same time demanding that the garden should be restored by the tenants to its condition before the lease. The Sheriff-substitute refused the interdict, but the Sheriff granted it. Syme, by an arrangement, came to be in right of the creditors of the copartnery, and hence the interdict was directed against him. It should further be explained, that the erections consisted of brick walls about three feet in height from the ground, with glass sides and roofs resting upon them. The case came before the First Division on a note of advocation, when their

Lordships recalled the Sheriff's interlocutor, and held that the tenants, who did not claim the brick foundations, were entitled to remove the glass sides and roofs of the erections. The Lord President, in delivering his opinion, said: "The original law in regard to what was to be considered as a fixture in questions between heir and executor, was very decidedly favourable to the rights of the heir. But questions in regard to what was a fixture arose between parties in other relations, as liferenter and fiar, and landlord and tenant; and though the law had fluctuated, the general result of the cases coming under these different classes was, that it was less rigid in favour of the landlord, and more in favour of the tenant, than in any of the other classes. The reason for this was obvious. As new branches of trade arise, new uses of land arise; and as heritable subjects may become part of the effects of a trading company, they may be applied to uses of a more or less permanent character. The law in respect to questions arising out of such occupation must accordingly adapt itself, in virtue of the expansive power it possesses, to the changes which take place in the course of time. It is not fixed by statute, and must be applied to particular cases and particular questions, with a view to the whole circumstances in each instance. Applying these views to the present case' (his Lordship continued), 'I am of opinion that the rights of the tenant should prevail, and I think these are important elements for arriving at that decision. In the first place, it is important to look at the object for which the structures in question were made, the temporary character of the tenants' rights, and the costliness of the erections compared with the temporary interest of the tenants, and the purpose of the erections. They were erected at the expense of a company established as a trading company for the sale of fruits, flowers, etc., and for the use of that company in carrying on their business. The company held the ground for the short period of five years, and the erections were made after two years of the five had already elapsed. The rent was L.35 for the first year, and L.40 for the remaining four years-not a rent made low in respect of improvements to be made by the tenants, but a rent suitable to the place as it stood. The erections cost L.140, irrespective of the potting-house,-a sum equal to three-fourths of the whole rent for the whole period of the lease, and expended, too, after two years of the lease had elapsed. It is also important to look at the character of the structures, and the probable inten

VOL. VI. NO. LXI. JANUARY 1862.

D

tion of the tenants as regarded their permanency. It appears from the evidence that they were purposely made less substantial than would otherwise have been the case, because the tenants had in view to remove them at the termination of their lease. I can scarcely conceive a case more favourable to the pretensions of the tenants. There may be a distinction in some cases between the parts of an erection which are fixed in the soil, and what is not so fixed. But I am not prepared to say that, had not the tenants conceded the point, I would have negatived their claim to remove the whole structures, including that portion which was fixed in the soil. ... Suppose that a trading company, carrying on such a business as in the present case, had held land on a longer lease, and found that the business, as they carried it on, was not paying, I am not prepared to say that they would not be entitled to pull down such erections and substitute others of a kind more likely to be profitable, or to take away the bricks altogether, and convert the foundations into flower-beds. The erections are part of the machinery for carrying on their trade, and for which they may substitute another kind at their option. It is not necessary, however, to decide that question here.' Lord Curriehill, in his opinion, laid it down that, in order to the settlement of a question like the present, two elements were to be considered-1st, the nature of the erection, as in itself easily or not easily separable from the soil; and 2d, the intention with which it was made. Lord Deas thought the elements mentioned by Lord Curriehill very indefinite, while admitting that they were the only ones which could be looked at. He then proceeded to contrast the case of heir and executor with that of landlord and tenant, in regard to the question of fixtures. In the former case he held that the presumption of permanency, and, therefore, of the erection being a fixture, was in favour of the heir; while, in the latter, he thought that the presumption was the other way, and in favour of the tenant. He had no doubt that the tenant of a nursery-garden was entitled to carry away all the plants and trees in it, as these were his crop. The tenant of an ordinary garden would not be entitled to do so, although, probably, even he might carry away some of them, e.g., those which he had planted the year before. He had great doubts whether the tenant in the present case was entitled to remove the brick foundations, but he had no doubt that, if required by the landlord, he was bound to do so.

In England, it would appear that, though not very firmly settled,

the rule of law is, that where tenants erect buildings, such as hothouses, for the purposes of their trade, they are entitled to remove them. Lord Kenyon puts the reason of the rule thus, in Penton v. Robart, 2 East. 88: 'Shall it be said that the great gardeners and nurserymen in the neighbourhood of this metropolis, who expend thousands of pounds on the erection of greenhouses and hothouses, etc., are obliged to leave all these things upon the premises, when it is notorious that they were even permitted to remove trees, or such as are likely to become such, by the thousand in the necessary course of trade? If it were otherwise, the very object of their holding would be defeated.' In the last case of the kind which went up to the House of Lords from the Court of Session (Fisher v. Dixon, 26 June 1845, 4 Bell, 352), Lord Brougham said: 'The Scotch law appears to me only to differ from the English law in carrying its principles, as laid down in the cases, a little further, rather than falling short of them.' The judgment in the present case justifies that opinion, and fairly represents the progress which our law has made in recognising tenantright in regard to buildings erected for purposes of trade. Both the English and Scotch cases, however, distinguish between agricultural tenants and those who hold land for the purpose of trade, refusing to the former the privileges accorded to the latter. In England the Legislature has sought to remedy the evil results of distinction by the 14 and 15 Vict., cap. 25, which provides that, where buildings have been erected by the tenant of lands, at his own expense, whether for the purposes of trade or agriculture, and with the written consent of the landlord, he shall be entitled to remove them at the expiration of his lease, even though they are solo annexa, provided that he shall be bound to restore the soil or buildings to which they are annexed to the condition in which they were before their erection. There is as yet no similar Act in regard to Scotch tenants; but a decision like that in the present case, which settles so firmly the rights of trading tenants, while it refuses the same privileges to agricultural tenants, is very likely to lead to the introduction of a measure applicable to Scotland, with provisions like those of the 14 and 15 Vict., cap. 25.

SECOND DIVISION.

Bruce v. Linton and M'Dougall.

Public Houses Act (16 and 17 Vict., cap. 67).
Evidence Act (16 and 17 Vict., cap. 20).

Civil and Criminal Proceeding.

In this case the consulted judges unanimously decided that, in a prosecution for bartering or selling spirits without a certificate under the Act 16 and 17 Vict., cap. 67, the defender is not competent and compellable to give evidence as a witness. This judgment seems to proceed on a sound construction of the Evidence Amendment Act of 1853, and to be in accordance not only with the theory on which criminal procedure is distinguished from civil in the law of Scotland, but with those principles of justice and policy which should govern all right systems of jurisprudence. Although the decision had special reference to the construction of the Evidence Amendment Act, it may be regarded as determining the broad and general question, whether procedure such as that contemplated by the Forbes Mackenzie Act is to be regarded as civil or criminal. The Act of 16 and 17 Vict., cap. 20, provides that 'it shall be competent to adduce and examine as a witness in any action or proceeding in Scotland, any party to such action or proceeding, or the husband or wife of any party;' 'but nothing herein contained shall render any person, or the wife or husband of any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, his wife or her husband, except in so far as the same may be at present competent by the law and practice of Scotland. The suspender argued that this prosecution under the Public Houses Act was not a criminal proceeding in the sense of the Evidence Act, in respect that selling spirits was not in itself illegal or criminal, or malum in se, but only malum prohibitum; an offence against a statute, which statute, although it imposed a penalty, did not invest the act of selling spirits with any of the characteristics of a crime, or render the proceedings for the recovery of the penalty criminal proceedings. The statute made no provision for the proceedings being at the instance of the Procurator-Fiscal or public prosecutor, although, by the law and practice of Scotland, the concourse of the public prose