Page:The English Reports v1 1900.pdf/767

Beraud, it might obviously be answered, that Beraud was not the son of the proprietor of the same extensive farm, of which the brick-ground was [550] parcel, living with his father, in the joint occupation with his father of the farm, taking the brick-ground into his own possession upon the occasion of the death of the tenant, and actually applying the produce as well to the improvement of the other parts of the farm, as for sale; in neither case did the plaintiff in error acquire his interest in the brick earth in the way of trade or commerce; which Beraud either did or must have done, to have made him subject to the bankrupt laws.

On the other side it was contended (T. Cowper, J. Mingay) by the defendant, that William Beraud was clearly a trader as a brick maker, within the bankrupt laws. And that the plaintiff, who succeeded him in that business, was also a trader within those laws. Brick making for sale is in fact carrying on a trade, and seeking to live by the profits: many things are necessary to be bought, which can only be paid for by the money to arise by the sale of the bricks.

But the objection is, that Beraud and the plaintiff rented the brick-ground, and consequently that the bricks were the produce of their own land. From authorities, and the reason of the thing, the true distinction is this: if a man manufactures the produce of his own land, as a necessary or usual mode of reaping or enjoying that produce, and bringing it advantageously to market; he shall not be considered as a trader, though he buy the necessary ingredients and materials to fit it for market; as in the case of a farmer buying rennet and salt to convert his milk into cheese; or making his own apples into cyder; although there is an expence attending the operation, and though some things are necessary to be bought, perhaps even ingredients, yet he shall not be said to be a trader, these being the usual modes of enjoying the lands. So in the case respecting allum works, the operation was proved to be necessary, and the constant mode of preparing the produce of the land for market: such is the case of coal mines, where raising the coals out of the pit is as necessary to the enjoyment of the land, as threshing corn, etc. it being the necessary enjoyment of such species of property. But in the case of brick making, it is not the necessary nor the usual mode of enjoying the produce of the land, for it might be used as arable, meadow, or pasture land; but here the land is consumed in that use, and therefore the tenant actually buys the soil which he digs and separates from the rest of the land.

Agreeable to what Mr. Justice Buller did, in the case ex parte Harrison, the point left by Lord Mansfield to the jury at Croydon, in this case, (which was formerly tried there,) was, that if the plaintiff made bricks for his own consumption, though he sold the overplus, he was not a trader: but if he carried on the business for public sale, with a view to gain profit by it, they might find him a trader, and they found him so accordingly. And in this cause a special jury in Middlesex have given a similar verdict, if the law will support such verdict.

In the present case, Beraud had the brick-ground for the purpose of carrying on a trade for public sale. The lease to him, was a mere purchase of the clay; the land was made no other [551] use of: Beraud did not use it as a farmer: his sole object was making bricks for sale. In the cases of allum works and coal mines, it is presumed that the property could not have been enjoyed in any other manner. How could it be otherwise enjoyed advantageously? In the present case, the land might be used as arable, meadow, or pasture ground.

With respect to allum and coals, there is not any ingredient mixed with, and which constitutes a part of the subject, when rendered fit for sale. Bricks, when completed by a mixture of sand, and the burning by fuel, are a manufactured subject, totally and essentially different from the produce of the earth; as distinct and different as almost any two subjects can possibly be. This idea is not a new one: Lord Camden, in the case of Pori and Turton, said, a brick maker might be a bankrupt, because the earth is manufactured and turned into quite another thing. And in the case ex parte Harrison, Mr. Justice Buller, who tried the cause, told the jury, the question was, Whether the bankrupt kept a public sale kiln? If he did, it was a trading within the bankrupt laws; and they found he kept a public sale kiln, and gave a verdict against the bankrupt; and, upon motion for a. new trial, the Lord Chancellor was of opinion he was a trader. It already appears that Lord Mansfield