default in respect of the rent, and liable to be called to account by a second mortgagee, vide James, L.J. and Bramwell, L.J. But in a more recent case (1) Lord Selborne said, "As between himself and a subsequent mortgagee the mortgagee would be treated as in possession of the property, you could not say he was in that possession as regards the mortgagor." And according to Bacon, V.-C., it would seem that, "until in possession, the mortgagee is not liable to account to a second mortgagee as purchaser of the Equity of Redemption " (m). Act 1878. § 6. Bowes. The chief test, according to Ex parte Jackson re Bowes, of Ex parte what is a real rent, is the proportion the rent bears to the Jackson re lettable value of the property. The mortgagor had attorned as tenant from year to year to the mortgagee at a rent payable quarterly, with power to enter without notice and determine the tenancy, and the mortgagee entered and distrained for two quarters' rent, it was held that the yearly tenancy created was not reduced to a tenancy at will by a proviso for the determination of the tenancy without notice and entry by the mortgagee (n). And a mortgagee is entitled to distrain, although part of the interest may have been paid (the rent having been exactly the amount of interest) to apply the amount in reduction of the principal debt (o). Where there is a second mortgage an attornment clause is valid, although there is a similar clause in the first mortgage. Nor will the clause affect the mortgagee's right to trade fixtures, notwithstanding he is landlord also, but the goodwill of a business will pass to the trustee (p). And where the attornment was in respect of a mortgage to a building society, and the rent a fluctuating one, yet, nevertheless, a distress for principal and interest was held good (q). It will be observed the proviso at the end of the section makes an exception as to tenancies created by mortgagees absolutely in possession (as distinguished from the mortgagor's possession) demising to the mortgagor at a reasonable rent. In such a case it is submitted he is neither more nor less than an ordinary landlord, whose rights are beyond the scope of the (1) Ex parte Harrison re Betts, 18 Ch. D. 127. (m) Stanley v. Grundy, 22 Ch. D. 478. (n) Queen's Benefit Building Society, ex parte re Threlfall, 11 Ch. D. 274. (0) Harrison, ex parte re Betts, 18 Ch. D. 127, 50 L. J. Ch. 832. (p) Ex parte Punnett re Kitchen, 16 Ch. D. 226; following Morton v. Woods, supra. (q) Ex parte Voisey re Knight, 21 Ch. D. C. A. 442. Act 1878. § 6. Act 1878. § 7. Fixtures or Act, and is not in the position of a creditor enforcing a security. The provisions of Sect. 13 of the Amendment Act, as to nonremoval of the goods for five days after seizure, will, it is apprehended, now apply as well to all such mortgages as have attornment clauses entitling the mortgagee to distrain, and which are registered, when they are enforced. No fixtures or growing crops shall be deemed, under this Act, to be separately assigned or charged by reason only that they are assigned by separate words, or that power is given to sever them from the land or building to rately assigned which they are affixed, or from the land on which they growing crops not to be deemed sepa when the land same instru ment. passes by the grow, without otherwise taking possession of or dealing with such land or building, or land, if by the same instrument any freehold or leasehold interest in the land or building to which such fixtures are affixed, or in the land on which such crops grow, is also conveyed or assigned to the same persons or person. The same rule of construction shall be applied to all deeds or instruments, including fixtures or growing crops, executed before the commencement of this Act and then subsisting and in force, in all questions arising under any bankruptcy, liquidation, assignment for the benefit of creditors, or execution of any process of any Court, which shall take place or be issued after the commencement of this Act. This section is rendered necessary by the language of Sect. 4 of the principal Act, which makes growing crops and fixtures personal estate, when separately assigned, and as a definition of what does amount to such a separate assignment, settling the law contained in numerous cases as to such assignments. Although growing crops are not personal chattels within the Act unless separately assigned, still it seems when cut and severed from the land they will assume the character of personal chattels, and if they remain on the grantor's premises they will be deemed personal chattels in his possession within the Act (r). 50 L. J. Ch. 231; distinguishing Branton v. Griffits, supra. (r) Ec parte National Mercantile Bank re Phillips, 16 Ch D. 104, § 7. As to the rule of construction, it is to be the same in the case Act 1878. of deeds executed prior to the Act of 1878, if subsisting, although enforced after such Act, as the rule under this section (s). Act 1882. § 7. Bill of sale with power to certain events Personal chattels assigned under a bill of sale shall not be liable to be seized, or taken possession of by the grantee for any other than the following causes :(1.) If the grantor shall make default in payment of the seize except in sum or sums of money thereby secured at the time therein provided for payment, or in the performance of any covenant or agreement contained in the bill of sale and necessary for maintaining the security. (2.) If the grantor shall become a bankrupt, or suffer the said goods or any of them to be distrained for rent, rates, or taxes; (3.) If the grantor shall fraudulently either remove or suffer the said goods, or any of them, to be removed from the premises; (4.) If the grantor shall not, without reasonable excuse, to him his last receipts for rent, rates, and (5.) If execution shall have been levied against the Provided that the grantor may within five days from the seizure or taking possession of any chattels on account of any of the above-mentioned causes, apply to the High Court, or to a Judge thereof in Chambers, and such Court or Judge, if satisfied that by payment of money or otherwise the said cause of seizure no longer exists, may restrain (8) Ex parte Moore re Armytage, 14 Ch. D. 379, 49 L. J. Bank. 60; see also sect. 6 of the Act 1882. to be void. Act 1882. the grantee from removing or selling the said chattels, or § 7. may make such other order as may seem just. Seized. The words "shall not be liable to be seized or taken possession of," scarcely amount to a declaration that bills of sale containing any other conditions rendering the goods liable to be seized are to be void, but it seems such bills will become useless as securities. Neither does this section render the goods liable to be seized, for the words are in the negative, hence the necessity for power to be reserved in the deed for the mortgagee to seize upon non-performance of the conditions whether statutory or agreed. It has been held that where goods are seized under a bill of sale after the commencement of this Act, this section applies notwithstanding the bill of sale was executed and registered under the Act of 1878 (t), and so as to entitle the grantor to relief. Payment. We have already treated of defaults as they tended to perfect the title of the grantee under prior Acts, and the preliminaries to seizure and possession. Default in payment was the most usual condition entitling the grantee to seize. Other Defaults.-This provision would seem to tend to weaken the strictness of the whole section, the object of which was clearly to define, once and for all, the exact terms and conditions entitling the grantee to possession. It was conceived divers covenants of a more or less reasonable character might by force of these words have been incorporated in the deed, and be binding on the parties, but the dictum of Brett, M.R., in Davis v. Burton, will in effect materially limit the scope of these words (u). It has been held that the filing of a petition for liquidation, was an act whereby the security was jeopardised so as to entitle the grantee to enter as for breach of a covenant. But the Chief Judge has in effect restricted the defaults to such as are in this Act (uu). Become Bankrupt.-A curious effect here arises having reference to the repeal of Sect. 20 of the principal Act, and the application of the order and disposition clauses in the Acts of 1869 and 1883 to bills of sale coming within the Amendment Act. in the Sehedule. (t) Ex parte Cotton, 11 Q. B. D. 301. (u) Davis v. Burton, 10 Q. B. D. 414; and on appeal, 52 L. J. 636. See also the directions in the form (uu) Ex parte Williams, Camb. County Court, Bagshaw, Judge, L. T. May, 1883. See Ex parte Pearce, W. N., Nov., 1883, p. 182. On becoming "bankrupt " in the sense of bankruptcy law, the right of the grantee would be gone unless he was already in actual possession, or at least unless he had previously made such a demand as to entitle him to possession. Otherwise, by the effect of these two provisions he is at one and the same moment entitled and disentitled to the goods. It may also be doubted what is the time when possession can be taken, that is to say, whether the word is to be interpreted as restricted to adjudication in bankruptcy, or whether some earlier period of the bankruptcy would be enough, such for instance as upon the commission of some act of bankruptcy, or under the 1883 Act, the making of a receiving order, or the filing of a petition. “Or 'distrained' for rent," &c. Act 1882. § 7. The security of the grantee of a bill of sale of chattels which Distress for are upon the premises of which the grantor is tenant is always rent and rates. liable to be defeated, and that whether there has been registration or otherwise, by the superior claim of the landlord to take or levy a distress upon the goods, and this right the landlord has at common law, although restricted by various statutes. The act of taking, the thing taken, and the remedy generally have been called a distress, and by 3 & 4 Wm. 4, c. 27, s. 42, "no arrears of rent shall be recovered by any distress but within six years next after it shall have become due or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto or his agent, signed by the person by whom the same was payable." Where the right to distrain exists, nothing but payment or something equivalent thereto such as tender of the arrears, or a release under seal will be sufficient to take it away (x). But a distress cannot be lawfully made after the full amount of rent really due has been tendered (y). If rent be reserved payable in advance it may be distrained for (z). All goods upon the premises, unless privileged, are liable to distress for rent, but the goods of lodgers have been exempted (a), fixtures are exempt where removable as between landlord and tenant by the latter (6). Beasts of the plough, sheep and instruments (x) Horn v. Lewin, 639, 1 Salk. 513. 1 Ld. Raym. (y) Branscomb v. Bridges, 1 B. & C. 145; Bennett v. Bayes, 5 H. & N. 391; 29 L. J. Ex. 391. (z) Buckley v. Taylor, 2 T. R. 600. (a) Lodgers' Goods Protection Act, 34 & 35 Vict. c. 79. And see Phillips (b) Sampson v. Hartopp, 1 Sm. L. |