notice, he is to be regarded as a mere agent of the transferrer, and not as a bona fide holder in the legal sense of the term.1

3. Also, if the collateral be not negotiable, or if the negotiable paper be taken without indorsement, although while still current and indorsed after it falls due equitable defenses will not be excluded.2

4. If the debtor is notoriously insolvent before the note or bill is transferred as collateral security, the creditor it is said, can only stand in the shoes of the debtor.3

$24. In Goodman vs. Simonds, 20 Howard, 370, the United States Supreme Court adopted and enforced an affirmative view of the second branch of this question, holding that where new notes were given in payment of prior indebtedness, and collaterals previously held were surrendered, and the time of payment was extended and definitely fixed by the terms of the notes showing an agreement to give time for the payment of a debt already overdue, and then transfers a bill of exchange as collateral security for the notes, the holder of the bill was a holder for value. And, said Clifford, J.: “a suspension of an existing demand is frequently of the utmost importance to the debtor, and it constitutes one of the oldest titles of the law under the head of forbearance, and has always been considered a sufficient and valid consideration. The surrender of other instruments, although held as collateral security, is also a gcod consideration; and this as well as the former proposition, is now generally admitted and is not open to dispute.

It seems now to be agreed that, if there was a present consideration at the time of the transfer independent of the previous indebtedness, that a party acquiring a negotiable instrument before its maturity as a collateral security to a pre-existing debt, without knowledge of the

1Allen vs. King, 4 McLean, 128; Atkinson vs. Brooks, 26 Vt., 574; Austin vs. Curtis, 31 Vt., 64; Warren vs. Lee, 2 Selden, 144; Scott 18. Cecan Bank, 23 N. Y., 289; Palmer s. Richards, 1 Eng. L. & Eq., 529; De La Chaumette vs. Bank of England, 9 B. & C., 208.

Lancaster National Bank vs. Taylor, 100 Mass., 18; Van Wort vs. Woolley, 3 B. & C., 439; Whitler vs. Foster, 14 Cem. B., n. s., 248; Boody vs. Bartlett, 42 N. H., 558 Franklin ts. Twogood, 18 Iowa, 515 3Atkinson vs. Brooks, 26 Vt., 569.

*Etting s. Vanderlyn, 4 John., 237; Morton vs. Burn, 7 Ad. & El., 19; Baker vs. Walker, 14 Mecs. & Well., 465; Jennison vs. Stafford, 1 Cush., 168; Walton vs. Mascall, 13 Mees. & Well, 453; Wheeler vs. Slocum, 16 Pick., 62.

Dupeau vs. Waddington, 6 Whar., 220; Hornblower vs. Prond, 2 Barn. & Ald., 327; Rideout vs. Briston, 1 Cromp. & Jer., 231; Bank of Salina vs. Babcock, 21 Wend., 499; Youngs vs. Lee, 2 Kern., 551.

facts which impeach the title as between the antecedent parties, thereby becomes a holder in the usual course of business, and that his title is complete, so that it will be unaffected by any prior equities between other parties-at least to the extent of the previous debt for which it is held as collateral.' And the better opinion seems to be in respect to parol contracts as a general rule that there is but one measure of the sufficiency of a consideration, and consequently whatever would have given validity to the bill as between the original parties is sufficient to uphold a transfer like the one in this case. We are not aware that the principle as thus limited and qualified is now the subject of serious dispute anywhere, and that is amply sufficient for the decision of this cause. Whether the same conclusion ought to follow where the transfer was without any other consideration than what flows from the nature of the contract at the time of delivery, and such as may be inferred from the relation of debtor and creditor in respect to the pre-existing debt, is still the subject of earnest discussion, and has given rise to no small diversity of judicial decision. It seems it is regarded as sufficient in England, according to a recent case. A contrary rule prevails in New York, according to several decisions, and also in Tennessee. It is settled that it is a sufficient consideration in Massachusetts, Vermont and New Jersey, and such was the opinion of the late Justice Story, in Swift vs. Tyson, in his valuable treatise on "Bills of Exchange."

3

JOHN W. DANIEL.

Whites. Springfield Bank, 3 Sand. S. C., 222; New York M. Iron Works vs. Smith, 4 Duer, 362.

Poirier 8. Morris, 20 Eng. L. & Eq., 103; Byles on Bills, pp. 96, 127.

Coddington vs. Bay, 20 Johns., 637; Stalker vs. Mc Donald, 6 Hill, 93; Napier vs. Elam, 5 Yerger, 108.

Stoddard vs. Kimball, 6 Cush., 469; Story on Bills, sec. 192; Chicopee vs. Chapin, 8 Met., 40; Blanchard vs. Stevens, 3 Cush., 162; Atkinson vs. Brooks, 26 Ver., 569; Allaire ts. Hartshorne, 1 Zab., 665.

Law of Fixtures, in the Form of Buildings.

The law of fixtures, especially in the form of buildings, seems to be in a distressing state of uncertainty; partly from the variety of forms in which the improvements may be made, and partly from the different application of the same rules between parties standing in different relations to each other.

The general principle in relation to fixtures is well expressed by the Supreme Court of Tennessee in several cases. "It is a well-established rule," they say, "of the common law, that everything affixed to the freehold passes with the freehold; and the rigor of the rule is only relaxed in exceptional cases." Childress vs. Wright, 2 Cold., 350; DeGraffenreid vs. Scruggs, 4 H., 454. It is equally agreed on all hands, that the exceptions to the rule are most restricted as between executors and heirs; have a wider though "limited range" between tenant for life and remainder-man, who stand toward each other in independent attitudes; and are most liberally allowed as between landlord and tenant for years: 2 Smith's Leading Cases, 256. The difficulty is in ascertaining the limits of the range of exceptions as between the parties standing in the attitude of tenant for life and remainder-man. For, between executors and heirs the general rule retains its utmost rigor, while between landlord and tenant the exceptions are the most latitudinarian. The doubt is as to the intermediate class.

In the consideration of the subject, the easiest course will be to see first how far the exceptions to the general rule have gone in favor of a tenant for years. And certainly the relaxation of the general rule as between these parties, has been carried very far. The learned American editor of Smith's Leading Cases, in his notes to Elwes vs. Mawe, 3 East., thus sums up the law: "The privilege of the tenant seems, at one time, to have been limited to fixtures erected for the benefit of trade, but it now embraces additions to the freehold made for ornament, pleasure or convenience; and may extend to structures, or even buildings of a durable and substantial kind, if so constructed that they can be taken away without serious or irreparable injury to

* * *

themselves, or the premises of which they form a part: Van Ness vs. Pacard, 2 Pet., 143; Grymes vs. Bowen, 6 Bing., 437; Marston vs. Roe, 2 E. & Bl., 257; Ombony vs. Jones, 19 N. Y., 234." * "The limits of the rule are, however," he adds, "obscure and ill-defined; and it would seem not to apply to any edifice which is so constructed as to justify the belief that it is meant to be a permanent addition to the freehold, or that can not be removed in such a condition as to be fit for use elsewhere." Citing Cutter vs. Kirk, 2 Wall., 491; Reid vs. Kirk, 12 Rich., 54; 11 Ohio, N. S., 482. On the preceding page, 2 Sm. L. C., 258, the same learned editor has this paragraph: "And the decisions will, perhaps, fully establish that every addition or improvement made by a tenant, which can be severed without placing the freehold in a worse condition than it was when the term began, may be removed at or before its termination, without regard to the cause or motive of the erection." But he again adds: "A different view was, however, taken in Reid vs. Smith, 12 Rich., 54; and in Ombony vs. Jones, 19 N. Y., 234, 240. The general rule, under which everything that is affixed to the freehold becomes part of it, was said to prevail even between landlord and tenant, except where the circumstances are such as to create an exception, and to preclude the removal of out-houses or buildings erected during the continuance of the lease, although resting on pillars or tressels, and not let into the soil, unless they were built for the furtherance of the trade or business of the lessee, and not merely with a view of adding to the yearly value or income from the land by being leased or used for dwellings."

It will be seen that the learned editor, while laying down the law most favorably for the tenant, and showing that the tendency of modern decisions is to still greater latitude, concedes that the actual decisions have not yet gone to the extent claimed.

Mr. Washburne, in his work on Real Property, page 114, confines the exception in favor of tenants within narrower limits. "A structure," he says, "erected by a tenant for years, of whatever size or material it may be, may be removed though [sic: but the sense requires "if," or, "whether it be,"] erected and used for purposes of agriculture or manufacture." And one of the cases cited by him, which is not referred to by the editor of Sm. L. C., namely, McCullough vs. Irvine, 13 Penn., 438, is so much to the point that a quotation from the opinion of the court will not be out of place. "A two-story

brick house and a large bank barn (the building in controversy) are not instruments or implements of any trade. They are great conveniences which enable men of all sorts to enjoy the fruits of their labor or trade. If you make them an exception, the rule itself is obliterated, and nothing is essentially of the realty except the earth itself and that which is in its bowels. The exceptions have been carried very far by some decisions of the Eastern States, particularly in Whitney vs. Barton, 4 Pick, 310; Holmes vs. Tremper, 20 J., 29; and Van Ness vs, Pacard, 2 Pet., 143. It is, however, in somewhat loose expressions of the court in these cases, and not from the cases themselves, that the principle asserted derives some countenance. The first, where the dicta are the most latitudinarian, was merely the removal of a padlock and some loose boards, about which there never could have been any reasonable doubt. The second was the removal of a cider press by the tenant, and there, no reasonable doubt of its being an implement for the manufacture of cider, could be entertained. The last case runs to a little more magnitude, for it was removing a sort of a house, but a house erected for the manufacturing of a commodity; and the decision goes expressly upon the ground of its not being a dwelling-house. None of these cases, either expressly or by implication, overrule Elwes vs. Mawe, 3 East., in which it was held that an agricultural tenant could not remove, during the continuance of the lease, a beast house, carpenter shop, and fuel house, erected for the use of the farm, even though he left the premises as he found them."

When we examine the cases bearing directly upon the right of a tenant for years to remove buildings erected by him during the term, we find that they may be divided into classes. One of these classes is, like Wansborough vs. Maton, 4 A. & E., 884, and Clemence vs. Steere, 1 R. I., 272, where the structure in controversy is held to be, not a fixture, but a chattel such as a small out-building resting in the soil by its own weight; and the decisions seem to be based upon that ground alone. Another class, making the exception to the eral rule, turns upon the fact that the buildings were put up for the purpose of trade or manufacture, or principally for these purposes. In this class are cases in which the exception has been extended to occupations having an affinity or resemblance to trade, but not strictly included in that term according to the usual definitions. The two strongest cases of this character are Van Ness vs. Pacard, 2

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