Walmsley and Another, Assignees of Thomas Moore, a Bankrupt, v Milne
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1859 |
| Date | 11 November 1859 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 759
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 29 L. J. C. P. 97; 1 L. T. 62; 8 W. R. 138; 6 Jur. N. S. 125. Applied, R. v. Lee, 1866, L R. 1 Q. B. 251. See Cullwich v. Swindell, 1866, L. R. 3 Eq. 255. Approved, Climie v. Wood, 1868-69, L. R. 3 Ex. 261; L. R. 4 Ex. 330. Referred to, Longbottom v. Berry, 1869, L. R. 5 Q. B. l37. Discussed, Holland v. Hodgson, 1872, L. R. 7 C. P. 338. Adopted, Cosby v. Shaw, 1887-88, 19 L. R. Ir. 325; 23 L. R. Ir. 193. See Gough v. Wood, [1894] 1 Q. B. 721; Hobson v. Gorringe, [1897] 1 Ch. 190; Reynolds v. Ashby, [1904] A. C. 473.
7C.B.(M.8.)H8. WALMSLEY V.MILNE 759 walmsley and another, Assignees of Thomas Moore, a Bankrupt, v. Nov. llth, 1859. [S. C. 29 L. J. C. P. 97 ; 1 L. T. 62 ; 8 W. K. 138 ; 6 Jur. N. S. 125. Applied, A1, v. Lee, 1866, L R. L (j. B. 25L. See (Mlwkfi v. Hwinddl, IK(!6, L. R. 3 Eq. 255. Approved, G7wu' v. /*W, 1868-69, L. R. 3 Ex. 261 ; L. E. 4 Ex. 330. Eeferred to, Longlottom v. Berry, 1869, L. R. 5 Q. B. l.')7. Discussed, Holland v. Hodgson, 1872, L. R, 7 C. P. 338. Adopted, (,Yw% v. Shaw, 1887-88, 19 L. R. Ir. 325; 23 L. R. Ir. 19:j. See (lough y. Wood, [194] 1 Q. B. 721; Hobaon v. Gorringe, [1897] L Ch. 190; Reynolds v. ,4.s%, [1904] A. C. 473.] Where the owner of the inheritance annexes thereto fixtures (which would in the ordinary case of landlord and tenant be removable by the latter during his term), for a permanent purpose, and for the better enjoyment of his estate, they become part of the freehold.-A., the owner of land, in 1853 mortgaged it in fee to B., and afterwards erected certain buildings thereon, to which, for the more convenient use of the premises in his business of an innkeeper, brewer, and bath-proprietor, he affixed a steam-engine and boiler, a hay-cutter, a malt-mill or corn-crusher, and a pair of grinding-stones. The lower grinding-stone was boxed on to the floor of part of the premises, by means of a frame screwed thereto, the upper one being fixed in the usual way ; and the steam-engine and other articles (except the boiler) were fastened by means of bolts and nuts to the walls or the floors for the purpose of steadying them, but were all capable of being removed without injury either to themselves or to the premises. The engine was used to supply water to the baths and to put the other machines in motion ; and the whole were subservient to the business carried on by A.-A. continued in possession until 1858, when he became bankrupt:-Held, that his assignees were not entitled to claim these fixtures, but that they passed to the assignee of the mortgagee as part of the freehold. This was an action of detinue brought by the plaintiffs, as assignees of one Thomas Moore, a bankrupt, to recover a steam-engine and boiler, a hay-cutter, a, malt-[116]-mill or corn-crusher, and a pair of grinding-stones, which they claimed as having passed to them as goods and chattels in the order and disposition of the bankrupt at the time of his bankruptcy. The defendant pleaded non cletinet and not possessed, whereupon issue was joined. The cause was tried before Byles, J., at the last Spring Assizes at Liverpool. The facts which appeared in evidence were as follows:-The bankrupt, Moore, was the owner of a, vacant plot of ground, which ho mortgaged in foe in 1853 to one Oswald. On the 20th of August, 1808, Oswald assigned his interest in the mortgaged premises to the defendant. Subsequently to the mortgage, and before the conveyance to the defendant, Moore, who continued in possession, erected various buildings upon the land, where he carried on the business of a brewer and innkeeper and proprietor of baths, and set up therein the articles in question,-the steam-engine being used for supplying water to the baths, and also for setting in motion the hay-cutter, malt-mill, and grinding-stones ; the hay-cutter and malt-mill being fastened to the buildings with screws and nuts, but being capable of being removed without injury to the premises or to themselves; aud the lower grinding-stone being boxed on to the floor, and the upper stone attached with running-gear in the usual way. The whole were put up for the purpose of Moore's trade. Moore became bankrupt in September, 1858, and the plaintiffs, as his assignees, claimed the articles in question, insisting that they were not " fixtures," inasmuch as they were not permanently fixed so as to form part of the freehold, or that, if fixtures, they were "trade fixtures," and therefore removable. The defendant, on the other hand, insisted that, whether fixtures or not, the things passed by the mortgage as part of the freehold. [117] Under the direction of the learned judge, a verdict was entered for the plaintiffs, leave being reserved to the defendant to move to enter a verdict for him in respect of all or such of the articles as the court should think were not severable from the freehold. 760 WALMSLEY V.MILNE 7 C. B. (N. S.) 118. Atherton, Q.C., in Easter Term last obtained a rule nisi accordingly. He referred to Horn \. Baker, 9 East, 215, and Boydell v. McMicluiel, 1 C. M. & R. 177. James Wilde, C^. 0., and Milward, on a subsequent day, shewed cause. The articles iu question were not fixtures at all, because not permanently attached to the freehold, but were mere movable chattels which passed to the assignees ; or, if fixtures, having been put up by the bankrupt for purposes of trade, they were removable by the bankrupt before his bankruptcy, and consequently upon his bankruptcy became the property of the assignees. All the articles were fixed in the same way to the floor or to the walls of the buildings, viz. by means of screw-bolts and nuts, and were severable without injury either to themselves or to the premises upon which they were fixed. The articles in this case clearly come within the test applied by Parke, B., in HellawM v. Eaxtwotid, G Exch. 295, 312. The contention there was as to the removability of cotton spinning-machines called mules, which were some of them tixed by screws to the wooden floor of the null, and some by screws which had been sunk into holes in the stone flooring, and secured by molten lead poured into the holes. In delivering the judgment of the court, Parke, B., says : "The question is, whether the machines when fixed were parcel of the freehold ; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations-first, the mode of annexation to the soil or fabric [118] of the house, and the extent to which it is united to them, whether it can easily be removed, integre, salve, et commode, or not, without injury to itself or the fabric of the building,-secondly, on the object and purpose of the annexation, whether it was for the permanent arid substantial improvement of the dwelling, in the language of the civil law, perpetui usua causa, or in that of the Year Book 28 H. 7, 10, pour tin profit del inheritance, or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel. Now, in considering this case, we cannot doubt that the machines never became a part of the freehold. They were attached slightly, so as to be capable of removal without the least injury to the fabric of the building or to themselves; and the object and purpose of the annexation was, not to improve the inheritance, but merely to render the machines steadier and more capable of convenient use as chattels. They were never a part of the freehold, any more than a carpet would be which is attached to the floor by nails for the purpose of keeping it stretched out, or curtains, looking-glasses, pictures, and other matters of an ornamental nature, which have beeti slightly attached to the walls of the dwelling as furniture, and which is probably the reason why they and similar articles have been held, in different cases, to be removable. The machines would have passed to the executor : per Lord Lynrlhurst, Trajipes v. Hartei; 2 C. & M. 177. They would not have passed by a conveyance or demise of the mill. They never ceased to have the character of movable chattels." [Byles, J. The question there arose between landlord and tenant.] The steam-engine here was what is called a portable engine. [Byles, J. So as to be removable without being taken to pieces. It was a thing complete in itself, for the purpose of being removable from place to place.] It was attached to the [119] building for the sole purpose of being more conveniently used. The court of Exchequer deal with the question as a general one, and not merely as a question between landlord and tenant. That case was followed by the court of Queen's Bench in ft'literfall v. Penistone, 6 Ellis & B. 876. There, one Jenkinson mortgaged to Marsh the freehold of a mill, with machinery thereon ; and afterwards Jenkinson assigned to the defendant the equity of redemption, and certain machinery which had been fixed in the mill since the first mortgage. Afterwards, by indenture, in consideration of 5001. paid to .Jenkinson by the defendant, Jenkinson did bargain, sell, assign and set over to the defendant machinery erected since the conveyance of the equity of redemption, subject to redemption on payment of the 5001.; and by the same indenture Jenkinson covenanted that the mill and machinery specified in the previous conveyance of the equity of redemption should be charged with the 5001. as well as the money before secured upon it. The machinery comprised in the lastrmentioned indenture was erected for the purpose of carrying on the manufacture in the mill; and for the more conveniently doing so, a part of it was...
To continue reading
Request your trial
-
Cosby v Shaw
...Sim. 456. Haslett v. BurtENR 18 C. B. 893. Hellawell v. EastwoodENR 6 Ex. 295. Mather v. FrazerENR 2 K. & J. 536. Walmesly v. MilneENR 7 C. B. (N. S.) 115. Climie v. WoodELR L. R. 4 Ex. 328. Longbottom v. BerryELR L. R. 5 Q. B. 123. and Holland v. HodgsonELR L. R. 7 C. P. 348. Longbottom v.......
-
Haley v Hammersley
...HutcMnson v. Kay (23 Beav. 413); Fisher v. Dixon (12 01. & Fin. 313) ; Ex parte Barclay (5 De G. M. & G. 403, 410); Mahnsley v. Milne (7 C. B. N. S. 115); Hubbaed v. Bagshaw (4 Sim. 326); Metropolitan Counties Insurance Society v. Brown (26 Beav. 454); mitshear v. Cottrell (1 El. & Bl. 674)......
-
Gebrueder Buehler AG v Chi Man Kwong Peter
...v Hodgson (1871-72) LR 7 CP 328 (refd) Reynolds v Ashby & Son [1904] AC 466 (refd) Walmsley v Milne (1859) 7 CB (NS) 115; 29 LJ (CP) 97; 141 ER 759 (refd) M Karthigesu (Cooma, Lau & Loh & M Karthigesu) for the plaintiff Goh Heng Leong (Allen & Gledhill) for the defendant. L P Thean J 1 The ......
-
Ex parte Charles Benjamin Gorely John Barker, a Bankrupt
...Appellants to the latter moneys also, referred to Gibson v. Hammersmith and City Railway Company (2 Dr. & Sm. 603); Walmsley v. Milne (7 C. B. (N. S.), 115); Ex parts Broadwood (1 M. D. & De G. 631); Ex parte Lloyd (3 Deac. & C. 765); and Leader v. Homewood (5 C. B. (N. S.), 546). [480] the......
-
The site
...Ltd (1992) 60 BLr 1 at 7, per purchas LJ. 268 although this right may be modiied by agreement: see Murchie v Black (1865) 19 CB (NS) 190 [141 Er 759]. Further, the right of support does not extend to where an owner of land drains water from the land to allow building work to be performed, b......