Elliott v Bishop
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 1854 |
| Date | 18 December 1854 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 534
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 3 L. R. 272, 24 L. J E. x 33; 1 Jur (N. S) 46; 3 W. R. 160; varied in error, 1855, 11 Ex. 113 See as to costs, 11 Ex 321 Referred to, In re De Falbe; Ward v. Taylor, [1901] 1 Ch. 538. See as to costs, 11 Ex. 331.
496] elliott v. bishop (a)2 Dec. 18, 1854 -By indenture, C. demised to the piaintiff an unfinished messuage for the term of ninety-seven years. The indenture contained a covenant by the plaintiff, that, at the expiration of the term, he would deliver up the demised premises unto C., "together with all locks, keys, bais, bolts, marble and other chimney-pieces, foot-paces, slabs, and other fixtures and articles in the nature of fixtures, which shall at any time during the said term he fixed or fastened to the said demised premises, or be thereto belonging." The plaintiff took possession of and completed the messuage, and fitted it up with things necessary for carrying on the business of a tavern-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. The defendant afterwards contracted with the plaintiff to purchase from him an underlease of the premises, and the goodwill, and also the furniture, fixtures, stock in trade, &e., at a vakiation. In pursuance of this contract, the pLuntiff executed to the defendant an underlease, which contained a covenant, on the part of the defendant, in the same words as the above covenant by the plaintiff in his lease Held, per Parke, B., that, under the above covenants, the plaintiff had no right to sell, and consequently the defendant could not remove, either the tenant's fixtures or tie trade fixtures Per Platt, B, that the covenants did not apply to either description of fixtures Per Martin, B , that the covenants applied to the tenant's fixtures only, and not to the trade fixtures.-Where, after writ issued, a special case is stated without pleadings, under "The Common Law Procedure Act, 1852," and there is no agreement as to costs, a plaintiff who has judgment for part of his claim is entitled to the general costs of the cause, and the defendant is entitled to deduct any costs which he may have incurred in respect of the matter on which he has succeeded [S. C. 3 C. L. R. 272 , 24 L. J Ex. 33; 1 Jur (N. S ) 46 ; 3 W. R. 160 : varied in error, 1855, 11 Ex. 113 See as to costs, 11 Ex. 321 Referred to, In re De Falle ; Jt'ard y. Taylm, [1901] 1 Ch. 538. See as to costs, 11 Ex. 331.] This action was commenced by writ of summons to recover 5731 16s. By consent (a)1 See Steele v. Haddock, post, p. 643. (a)2 Decided in Michaelmas Vacation,but inserted early on account of its importance. 10 IX. 497. ELLIOTT V. BISHOP 535 and order of a Judge under the Common Liw Procedure Act, 1S"53, the following case was stated, without any pleadings, for the opinion of this Court - The plaintiff is a builder, and the defendant a licensed victualler. By indenture of lease, bearing date the ISfch of May, 1853, made between George Charles Marquis Camden of the first part, the Rev Thomas Randolph, Prebendary of the Prebend of Cantlowes, otherwise Kentish Town, in the Cathedral Church of St. Paul, in London, of the second part, and the plamtirt of the third part The said Marquis Camden, by virtue of the powers given to him by an Act of Parliament passed in the 53 Geo. 3, intituled " An Act for enabling the Prebendary of Cantlowes, in the Cathedral Church of St. Paul in London, to grant a lease, with powers of renewal, of the prebendal lands of Kentish Town, in the County of Middlesex," to and with the privity, consent, and approbation of the said Thomas Randolph, did demise and lease unto the plaintitt, his executors, &c , a certain piece or parcel of ground, in the indenture of lease fully mentioned and described, together with a brick messuage, then erected and covered in, upon the ground by the indenture demised, and described in the indenture as " The City of London," and all other buildings then subsisting or thereafter to be [497] erected upon the same ground: To hold the bame for the period of ninety-seven years and a half from the J5th of March, 1853, at and under a certain yearly lent therein mentioned, and payable as therein also mentioned And the plaintiff did thereby enter into divers covenants, and amongst others the covenant following, (that is to say :) The plaintiff in and by the said deed, for himself, his heirs, &c. did covenant, promise, and agree to and with the said Thomas Randolph and his successors, prebendaries of the prebend aforesaid, and also as a separate covenant to and with the said Marquis Camden, his executors, &c., that he the plaintiff should and would, at the expiration or sooner determination of the said term, peaceably surrender and deliver up the demised premises unto the said Marquis Camden, his executors, &c. together with all locks, keys, bars, bolts, marble and other chimney pieces, foot-paces, slabs, arid other fixtures, and articles in the nature of fixtures, which bhall at any time during the said term be fixed or fastened to the said demised premises, or be thereto belonging. By virtue of this demise the plaintiff entered upon the demised premises, and became possessed thereof for the term so to him therein granted , and afterwards, and after such entry, completed the messuage described in the deed as " The City of London," and fitted up the same with things necessary for carrying on therein the trade and business of a tavern keeper and licensed victualler , and. for that purpose caused to be put in and fixed to the said premises certain fixtures of the description called and known as trade and tenant's fixtures, and which said fixtures are set forth and enumerated in the schedule annexed to this case.(a) [498] These fixtures were fixed in and attached to the said premises, in the way trade and tenant's fixtures are ordinarily fixed and attached to dwelling houses, and would be renioveable by the tenant for the time being, during or at the end of the said term, unless the covenant above set forth, or the covenant of the defendant hereinafter mentioned, precludes such removal. For the purposes of this case it is admitted, that all the articles (a) This schedule described the fixtures in each room and on other parts of the premises. Those in the bed chambeis and sitting rooms were principally stoves, blinds, and cranks and wires to bells The following were, among otheis, in the Bar. The oak front of counter. The top to do., &c A 10-motion beer machine, in hard metal case Two branches of waste pipe from counter to machine. The hard metal covering of counter, 59 feet. Two hard metal rinsing basins, with brass plugs and sockets , '26 brass serving cocks, &c The whole of the Spanish mahogany cabinet work, with moulded coinices, with three plate glass panels. Two mahogany glazed cigar shew cases, with two silveied glass panels at back, hinges, &c. The framing to doors, with two circular cornices and carved mahogany filling in over, and circular enamelled plate glass panels. Two square pilasters with moulded capitals arid basses. Three glass shelves. Coffee Room Spanish mahogany shew board in window, with plate glass panel. Mahogany sample shelf, &c. Gas Fittings. The burners in lamps at front of house. Six standard burners in bar windows Two bracket burners for pipe lights. A very handsome six light chandelier in bar. A handsome two light telescope burner in Bar Parlour. 536 ELLIOTT I'. BISHOP 10 EX. 499. mentioned in the schedule are either trade fixtures or tenant's fixtures The said teim is still unexpired, and the lease remains and continues a valid and subsisting lease On the 14th of November, 1853, the plaintiff caused to be put up the said demised premises for sale or lease by public auction for the term hereinafter mentioned, upon hik! subject to the following amongst other conditions -Third That, inasmuch as the rent at which the property was sold was an improved rent of 1001 per annum upon that reserved in the said lease to the vendor (which was 51 per annum), the purchaser was to take his assurance from the vendor by way of underlease (to be prepared by and at the expense of such purchaser), for the whole term granted by the original lease to the vendor, less ten days, at a clear annual rent of 1051 ; and that such underlease should, on the lessee's part, contain all and every the like or similar covenants, provisoes, reservations, conditions, and agree-[499]-ments, as are expressed, imposed, and contained on the lessee's part in the said original lease, or as near thereto-as circumstances would permit Seventh : That the purchaser should purchase, at a, fair valuation to be made by two appraisers and two gaugers, or their respective umpires, to be chosen in the usual way, all the furniture, fixtures, stock in trade, and effects, in and upon the premises (notwithstanding any description contained in that particular), and should pay for the same, arid for the time unexpired in the licenses and insurances, at the time of the completion of the puichase, upon the piemises Upon such putting up of the said demised premises the same were not sold; but shortly afterwards the defendant agreed to become the purchaser thereof, under a written contract, indorsed on a copy of the said conditions of sale, and which agiee-raent was then signed by the plaintiff, by his agent in that behalf, and the defendant. (Tie case set out the agreement, by which, inter aha, the defendant acknowledged that he had purchased the underlease and goodwill described in the annexed particulars of sale for 57501., and he agreed to pay " the amount of the valuations mentioned in the seventh condition, and to complete the purchase according to the annexed conditions of sale.") Afterwards, and in pursuance of the said sale, and in performance of the contract...
To continue reading
Request your trial
-
Haley v Hammersley
...Mr. Hardy, for the Respondents, referred to Waterfall v. Penistone (6 El. & Bl. 876); Davis v. Jones (2 B. & Aid. 165); Elliott v. Bishop (10 Exch. 496, 522 ; 11 Exch. 113), and JVhUmare v. Empsm (23 Beav. 313). Mr. R. Palmer, in reply, referred to Pmton v. Mobart (4 Esp. 33 ; S. C. 2 East,......
-
Marlborough Knightsbridge Management Ltd v Thierry Gilles Fivaz
...upon the specific terms of the Leases. 12 A number of eminent judges have criticised the term “landlord's fixtures”. In Elliott v Bishop (1854) 10 Ex 496 at 508 Martin B described the expression as “a most inaccurate one”. In Lambourn v McLellan [1903] 2 Ch 268 at 274 Vaughan Williams LJ s......
- Elliott v Bishop
- Bishop v Elliott