C. A. 1902 v. ASHBY & SON, LIMITED. Romer L.J. I may observe that the mortgagee was not affected with any notice of the rights of the plaintiff, or for any other reason REYNOLDS prevented from claiming these fixtures, which he found forming part of the premises when he entered into possession; and, though the mortgagor knew of the plaintiff's rights, he may well have thought, when the goods were affixed, that he would be able duly to pay for them, and so acquire a good title, and so there was no objection to making them part of the premises subject to the right of the plaintiff to remove them if default in payment for them occurred. It may be that, until the mortgagee takes possession of the premises, there is an implied licence by him to the mortgagor in the ordinary course of business to remove or change machinery affixed to the premises, and that that licence would as between the plaintiff and the mortgagee have entitled the plaintiff to assert his right to the machines before the mortgagee entered into possession; but any such implied licence would cease, I think, when possession was taken by the mortgagee. I cannot see my way to infer any licence which would then entitle the plaintiff to remove these machines. The mortgagee does not, by allowing the mortgagor to remain in possession, and carry on business on the premises, affect himself with notice of the contracts which the mortgagor may make with regard to chattels affixed to the premises, or of the nature of the mortgagor's title to such chattels. The plaintiff had no rights conferred on him by the mortgagor which could affect the land as against the mortgagee on taking possession of the premises. It would be very dangerous if anything like a general authority to the mortgagor to deal with or affect the mortgaged property could be implied from the mere fact that the mortgagee has not taken possession of it. There is no fact which can be put forward in the present case to affect the title of the mortgagee beyond the mere fact that he had not taken possession of the premises when these machines were fixed. Any difficulty, if such there be, which may arise from the terms of the contract between the plaintiff and the mortgagor as to these machines was fully dealt with in the case of Hobson v. Gorringe (1), and the reasoning of the (1) [1897] 1 Ch. 182. judgment in that case is applicable to the present case, and is binding on us. It is suggested that the result involves great hardship to the plaintiff. Assuming that to be so, it is no answer to the defendants' case. I should like, however, to point out how important it is that the law with regard to fixtures as between mortgagor and mortgagee hitherto regarded as settled should not now be departed from; and further I should like to point out that it might be very injurious to mortgagors engaged in trade, and even to persons dealing with them, if a mortgagor could not borrow money on a long leasehold security, including what are primâ facie trade fixtures, without that security being unimpeachable as regards the fixtures on the ground of its being a bill of sale. MATHEW L.J. I am of the same opinion. In determining cases of this kind the attention of the Court must, according to the authorities, be directed to two matters, the first being the mode of attachment to the freehold, and the second being the purpose of that attachment. In the present case it appears to me impossible, as regards the mode of attachment, to doubt that it was sufficient to constitute these machines fixtures. Then, with regard to the purpose for which they were attached, was it merely for the more convenient use of them as chattels, or was it for the better enjoyment of, and to enhance the value of, the premises as a factory? I think that all the circumstances point to the conclusion that these machines were affixed for the purpose of enhancing the value of the premises, of which the mortgagor was the owner for a term of ninetynine years, and so practically in as good a position as an owner in fee, and not merely for the purpose of their more convenient use as chattels. Therefore, having regard to both the considerations which I have mentioned, I think the evidence shewed that these machines were fixtures, and, consequently, in accordance with the ordinary rule, they passed to the mortgagee. The case of Chidley v. West Ham Churchwardens (1) is an instance of the inflexibility of a special case. It was there pointed out by Blackburn J. that the question which it (1) 32 L. T. 486. C. A. 1902 REYNOLDS V. ASHBY & SON, LIMITED. Romer L.J. 1902 C. A. was probably intended to raise by the special case was not really raised, and that the only question left to the Court was REYNOLDS Whether the machines could be separately rated as movable chattels, not whether, as annexed, they would enhance the rateable value of the premises. It does not seem to me that that case assists the plaintiff's contention. v. ASHBY & SON, LIMITED. Application dismissed. Solicitors for plaintiff: Scott, Spalding & Bell. E. L. C. A. 1902 Nov. 10. [IN THE COURT OF APPEAL.] DU PASQUIER v. CADBURY, JONES & CO., LIMITED. The plaintiff brought an action in the High Court to recover from the defendants certain drawings that had been deposited with them as agents for sale, and damages for their detention, and he claimed also an account in respect of such of the drawings as had been sold, and the amount that might be proved to be due on the taking of the account. The defendants pleaded that they had always been ready and willing to return the drawings in their possession, and offered to return them forthwith on obtaining a proper receipt. The plaintiff replied accepting the offer to return the drawings, and they were accordingly returned to him. They were of the value of 207. and upwards. The action went to trial on the question of the amount due from the defendants in respect of the drawings that had been sold, and resulted in a verdict for the plaintiff for 337. : Held, that the plaintiff was entitled to costs on the High Court scale on the grounds (1.) that he had recovered the drawings through the exigency of the writ, and that the return of them during the progress of the case did not affect the rights of the parties at the date of the writ; and (2.) that, the action being one of detinue in which the plaintiff had recovered the things claimed in specie, it was not within the class of actions founded on tort to which s. 116, sub-s. 2, of the County Courts Act, 1888, applies. APPEAL from an order of a judge at chambers referring back to a master the taxation of the costs for which the plaintiff had obtained judgment. The action was brought by the plaintiff as executor of W. J. Ferguson, deceased. C. A. 1902 v. CADBURY, LIMITED. The statement of claim alleged that Ferguson, who was an DU PASQUIER artist, had entrusted certain drawings, particulars of which were given, shewing them to be of over 207. in value, to the JONES & Co., defendants for exhibition and sale as his agents; and that the defendants had illegally detained them from the plaintiff and refused to return them to him on demand; and further that the defendants had refused to account to the plaintiff for any sums of money received by them in respect of any sales of the drawings. The plaintiff therefore claimed an account of the drawings sold or otherwise dealt with, and payment of the proceeds of all sales effected by the defendants; a return of the drawings, or such of them as were still in the defendants' possession, or their value; and damages for the improper detention of the drawings. The defendants in their statement of defence admitted that they had sold some of the drawings for a sum of 331., and as to the remainder they pleaded: "The defendants have always been and still are ready and willing to return the remainder of the said drawings, and hereby offer to return the same forthwith on obtaining a proper receipt therefor." The defendants further denied the illegal detention, and claimed by way of set-off and counter-claim a sum of money for mounts and frames supplied for the drawings at the request of Ferguson, and brought the balance of the 331. into court as sufficient to satisfy the plaintiff's claim in that respect. The plaintiff in his reply said that he was willing to accept the sum of 337. in part satisfaction of the cause of action, and he accepted the money paid into court in part discharge thereof; but he denied the right of the defendants to the sum claimed in their counter-claim. The plaintiff also replied that he accepted the offer of the defendants to return the remainder of the drawings in satisfaction of the remainder of the cause of action. The drawings were accordingly handed over to the plaintiff, and the action proceeded to trial as to the balance of the plaintiff's claim and the counter-claim. At the trial the defendants offered no evidence in support of their counter-claim, and C. A. 1902 DU PASQUIER. v. CADBURY, LIMITED. judgment was given for the plaintiff for 331. and costs, and also for the plaintiff upon the counter-claim with costs. Upon taxation the master taxed the plaintiff's costs upon the High Court scale, upon the ground that the action was founded JONES & Co., on tort within the meaning of s. 116 of the County Courts Act, 1888. Upon appeal, Bucknill J. allowed the objection raised by the defendants to the taxation on the ground that the plaintiff had recovered judgment for 331. in an action founded on contract, and was not entitled to have his costs taxed on the High Court scale, and made an order referring the matter back to the master for taxation. The plaintiff appealed. Macoun, for the plaintiff. The action was one of detinue, and it has not been converted into an action of tort by the admission of the defendants that they were willing to give up the drawings and the acceptance of them by the plaintiff upon that admission. The action was for the return of the drawings, and, that being so, it is an action founded on tort: Bryant v. Herbert. (1) No question has been raised as to the value of the drawings detained not being much more than 201.; so that, even without taking into consideration the 331. recovered by judgment, the plaintiff is entitled to costs on the High. Court scale. [He cited Turner v. Stallibrass (2) and Sachs v. Henderson. (3)] Hansell, for the defendants. In ascertaining what has been recovered in an action, the time to be looked at is the time. when the plaintiff recovers judgment: Solomon v. Mulliner. (4) In the present case the plaintiff has only recovered in the action, as money received to his use, the sum of 337., the price of the drawings sold by the defendants. There has, therefore, been a claim founded on contract and recovery under that claim. The claim in detinue was not before the judge at the trial. The defendants said they were always willing to return the drawings; and the plaintiff in effect admitted that fact, and thereupon he received the drawings, and all claim in detinue (1) (1878) 3 C. P. D. 389. (3) [1902] 1 K. B. 612. |