Bishop v Elliott
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1855 |
| Date | 10 May 1855 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 766
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C. 24 L J. Ex. 229; 1 Jur. (N. S) 662; 3 W. R. 454. See as to costs, p 321, post.
bishop v. elliott. May 10, 1855 -By indenture, C demised to E an unfinished messuage for the term of ninety-seven years. The indenture contained a covenant by E , that, at the expiration of the term, he would deliver up the demised premises unto C , " together with all locks, keys, bars, bolts, marble and other-chimney-pieces, footpaces, slabs, and other fixtures and articles in the nature of fixtures, which shall, at any time during the said teim, be fixed or fastened to the said demised premises, or be thereto belonging." E took possession of and completed the messuage, and htted it up with things necessary for carrying on the business of a tevein-keeper and licensed victualler, and for that purpose put in the premises certain fixtures of the description called and known as trade and tenant's fixtures. B. afterwards contracted with E. to purchase from him an Underlease of the premises and the goodwill, and also the furniture, fixtures, stock in trade, &c., at a valuation In pursuance of this contract, E. executed to B. an underlease, which contained a covenant on the part of the defendant in the same words as the above covenant by E. in his lease.-Held, on error, that the 11EX.1M. BISHOP l\ ELLIOTT 767 covenant above set forth did not restrain B the lessee from disposing either of the tenant's or of the trade fixtures. [S C. 24 L J. Ex. 229; 1 Jur. (N. S ) 662 ; .3 W. R. 454. See as to costs, p 321, post.) This was a proceeding in error on a judgment of this Court (ante, vol. 30, p. 496) on a special case stated by consent, and in which the Court below gave judgment in favour of the plaintiff for the amount of certain trade fixtures. Channell, Serjt. (Maude with him) argued for the plaintiff [114] in error, the defendant below (May 9) (a) The question turns upon the construction of the covenant contained in both leases. The plaintiff in error submits that, by the terms of that covenant, the lessee is restrained from disposing either of the tenant's or of the trade fixtures on the demised premises at the expiration of the lease The plaintiff contends that the lessee has no right to remove any fixtures, upon two grounds .-first, that the words " other fixtures and articles in the nature of fixtures," are sufficient to comprehend all fixtures of what nature soever , and secondly, assuming that argument to be incorrect and that the words are to have a limited construction, that the articles enumerated refer to other than landlord's fixtures, and consequently tenant's and trade fixtuies are included under those terms. First, it will be contended by the other side that the general words are restricted by the particular words which precede them, and that they come within the rule by which they ought to be construed as applicable to persons and things ejusdem generis. The following cases, which were cited in support of the application of this rule in the Court below, are not in point, Kitckvn v. Shaw (6 Ad & E 729), Sandiman v Bteach (7 B. & C. 96), and Rex v. The Manchei tei and Salford Watenooiks Company (1 B & C 630); for those decisions turned upon the construction of particular statutes, and the iiile applicable to statutes cannot be extended to the construction of covenants, which, in case of ambiguity of language, are to be taken most strongly against the covenantor. Secondly, assuming that the latter words in this covenant are to have a limited construction, it was clearly intended by the parties that the covenant should restuct the lessee [115] from removing anything in the nature of a fixture attached to the premises. According to the old law, a chattel, when annexed to the freehold, became part and parcel of the freehold itself, and could not be removed by the tenant., but in the course of time an exception arose in favour of what...
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