1903 V. LONDON MIDLAND the defendant bank entered into possession of the Hippodrome under their mortgage, and on September 1 the plaintiffs LYON & Co. formally demanded delivery up of the chairs from the defendants. This demand not being complied with, the present CITY AND action was brought, in which the plaintiffs claimed delivery up of the chairs, or in the alternative 6767., their value; damages for detention of the chairs from the date of the formal demand, and an injunction to restrain the defendants from selling or parting with them without the consent of the plaintiffs. The chairs H. Reed, K.C., and Kerly, for the plaintiffs. were not fixtures, and did not pass to the defendants under their mortgage. The mere fact that they were screwed to the floor is not enough in itself to make them fixtures; the cases shew that in order that chattels may pass as part of the freehold to which they are affixed the annexation must be such as to constitute a permanent improvement of the freehold : Norton v. Dashwood (1); Hobson v. Gorringe (2); Reynolds v. Ashby. (3) The purpose of the annexation must be inferred from the circumstances of the particular case: In re De Falbe (4); and if the purpose be the mere temporary improvement of the freehold or the better enjoyment of the chattels as chattels they will not pass with the freehold. Here the chairs could be easily removed without doing any injury to the freehold, and the annexation was, as must almost of necessity be the case where the chattels are the subject of a mere agreement for hire, intended to be temporary only and not for the permanent improvement of the building. Further, by allowing the mortgagor to remain in possession the mortgagees acquiesced in the agreement between the plaintiffs and the mortgagor as to the chairs: Gough v. Wood. (5) Muir Mackenzie, and H. C. Holden, for the defendants. The chairs passed as fixtures to the defendants as mortgagees of the freehold. The mode of annexation was the same as in (1) [1896] 2 Ch. 497. (2) [1897] 1 Ch. 182. (3) [1903] 1 K. B. 87. (4) [1901] 1 Ch. 523. Affirmed in House of Lords sub nom. Leigh v. Taylor, [1902] A. C. 157. (5) [1894] 1 Q. B. 713. BANK. Hobson v. Gorringe (1), where a gas-engine affixed to the LYON & Co. freehold by bolts and screws in order to prevent it from 1903 v. LONDON CITY AND MIDLAND BANK. rocking was held to be a fixture passing under a mortgage of the freehold; it was further held that this was not affected by the fact of the engine being the subject of a hire-purchase agreement, which, as pointed out by Collins M.R. in Reynolds v. Ashby (2), is not an element in determining the question of the intention with which the chattel is affixed to the freehold. The mere fact that the chairs were removable does not prevent their being fixtures: per Lord Cockburn in Dixon v. Fisher. (3) It is true that in Hellawell v. Eastwood (4) it was held that chattels affixed to the freehold for a temporary purpose were distrainable for rent and did not become part of the freehold; but, as was pointed out by Blackburn J. in Holland v. Hodgson (5), that does not apply to cases where the object of the annexation is to improve the inheritance or to render more effectual the enjoyment of the premises. In the present case the chairs were intended for the better enjoyment of the Hippodrome as a building, and the object and effect of their annexation was the permanent improvement of the building as a place of public entertainment. [They also cited Hill v. Bullock (6); Monti v. Barnes (7); Cross v. Barnes. (8)] H. Reed, K.C., was not called on to reply. JOYCE J. Whatever my individual opinion might have been in the absence of authority, I am bound by the decision of the Court of Appeal or of a Court of co-ordinate jurisdiction on similar facts. In my judgment there is much to be said in favour of the view of North J. in Cumberland Union Banking Co. v. Maryport Hæmatite Iron and Steel Co. (9), that a mortgagor cannot confer upon his mortgagee a better title than he himself has to the property mortgaged. Only a lawyer could (1) [1897] 1 Ch. 182. (2) [1903] 1 K. B. 87. (3) (1843) 5 D. 775. Affirmed in the House of Lords sub nom. Fisher v. Dixon, (1845) 12 Cl. & F. 312. (4) (1851) 6 Ex. 295. (5) (1872) L. R. 7 C. P. 328. (7) [1901] 1 K. B. 205. (9) [1892] 1 Ch. 415. 1903 v. LONDON CITY AND MIDLAND BANK. Joyce J. suppose that the chairs in this case were the property of the mortgagees of the building, and it is somewhat surprising to LYON & Co. find a corporation in the position of the defendants setting up such a claim. But I must decide this case in accordance with the law already laid down, and in my opinion it differs in several respects from the decisions which are relied on by the defendants. In the first place, we are dealing with seats, and not with engines, boilers, or trade machinery. Then the seats were complete in themselves and might have been used as seats without any annexation, though no doubt, apart from the requirements of the town council, it was better, considering the place where and the purpose for which they were used, that they should be screwed down to the floor. Further, the agreement under which these chairs were provided was not an ordinary hire-purchase agreement, and the case of Hobson v. Gorringe (1) and other decisions have generally been treated as proceeding on the ground that the agreements under which the chattels were supplied were hire-purchase agreements. It is no doubt true that the agreement in the present case, though an agreement for hire only, contained an option of purchase; but that option was never exercised. At the date of the mortgage the property in these chairs was the plaintiffs', and it never passed to Brammall, the mortgagor, who had only that special property in them which every hirer has in hired chattels; it is difficult, therefore, to understand how the legal ownership could have passed to the defendants by virtue of their mortgage. If the chairs had been brought upon the premises by a tenant or occupier after the date of the mortgage, it seems clear that they would not have passed to the defendants as mortgagees, and I see no stronger reason for their so passing in the facts of the present case. No doubt a chattel on being attached to the soil or to a building primâ facie becomes a fixture, but the presumption may be rebutted by shewing that the annexation is incomplete, so that the chattel can be easily removed without injury to itself or to the premises to which it is attached, and that the annexation is merely for a temporary purpose and for the more complete (1) [1897] 1 Ch. 182. 1903 enjoyment and use of the chattel as a chattel. That seems to LYON & Co. me to be what has been done in the present case. V. LONDON CITY AND MIDLAND BANK. Joyce J. The mode of annexation of these chairs to the freehold is analogous rather to the mode in which a carpet is fastened to a floor than to the mode in which engines, boilers, and heavy machinery are affixed to the freehold, and moreover the purpose of the annexation is only temporary. In my opinion these chairs did not cease to be chattels on being screwed to the floor, and I hold that the property in them did not pass to the defendants. Judgment for the plaintiffs. Solicitors for plaintiffs: Reed & Reed. Solicitors for defendants: Nye, Moreton & Close, for J. K. Nye & Treacher, Brighton. W. J. B. C. A. 1903 May 20. [IN THE COURT OF APPEAL.] COATES v. MOORE. Bill of Sale Copy filed on Registration—Omissions from Copy-AffidavitTerm for Maintenance of the Security-Covenant to replace worn-out Articles-Substituted Chattels, Assignment of-Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), s. 10, sub-s. 2—Bills of Sale Act (1878) Amendment Act, 1882 (45 & 46 Vict. c. 43) ss. 4, 6, 9—Liverpool Court of Passage— Interpleader Issue-New Trial-Liverpool Court of Passage Act, 1893 (56 & 57 Vict. c. 37), s. 10. An application lies to the Court of Appeal for a new trial of an interpleader issue tried in the Liverpool Court of Passage as in the case of any other issue there tried. Where, a bill of sale in proper form having been duly executed and attested, the copy of it filed in pursuance of the Bills of Sale Act, 1878, s. 10, sub-s. 2, omitted the signature of the grantor, and the signature, address, and description of the attesting witness, but the affidavit filed with the copy stated that the bill of sale was duly executed by the grantor in the presence of the attesting witness, giving his name, address, and description :— Held, that the bill of sale was valid, as the matters omitted in the copy of the bill of sale might be supplied by reference to the affidavit filed therewith. Thomas v. Roberts, [1898] 1 Q. B. 657, followed. By a bill of sale, given as a security for the payment of money, the grantor assigned to the grantee the chattels and things specifically described in a schedule thereto, and also all chattels and things which might at any time during the continuance of the security be substituted for them or any of them. The bill of sale contained a covenant by the grantor that he would during the continuance of the security replace such of the chattels and things expressed to be assigned as should be worn out by other articles of value equal to the present value of the articles worn out, so as at all times to keep up the total value of the chattels and things comprised in the security to the present value : Held, that the bill of sale did not deviate from the form in the schedule to the Bills of Sale Act (1878) Amendment Act, 1882, the assignment of substituted chattels and things only applying to chattels and things substituted under the covenant for the maintenance of the security. Seed v. Bradley, [1894] 1 Q. B. 319, followed. APPLICATION for judgment or a new trial by the defendant in an interpleader issue tried before the judge of the Passage Court at Liverpool with a jury. Goods having been taken in execution upon a judgment obtained by the defendant against Joseph Taggart, the plaintiff claimed them under a bill of sale, and an interpleader order was made in the Passage Court for the trial of an issue, in order to determine the title to the goods. The only question in the issue was as to the validity of the bill of sale, the provisions of which, so far as material, were as follows: The bill of sale was made on September 20, 1898, between Joseph Taggart, who was therein called the mortgagor, of the one part, and the plaintiff, who was therein called the mortgagee, of the other part, and witnessed that the mortgagor, in consideration of the sum of 50l. advanced by the mortgagee as therein mentioned, did thereby "assign unto the mortgagee all and singular the several chattels and things specifically described in the schedule hereto annexed, and being in the premises situate and known as 8, Enid Street, Liverpool, aforesaid, and also all chattels and things which may at any time during the continuance of this security be substituted for them or any of them, to hold the same by way of security for payment in manner hereinafter appearing of the sum of 501." The bill of sale contained a covenant in the following terms: "And the mortgagor doth also agree with the mortgagee that he will not during the continuance of this security without C. A. 1903 COATES v. MOORE. |