Cosby v Shaw

• Jurisdiction: Ireland
• Judgment Date: 16 July 1888
• Docket Number: (1886. No. 8018.)
• Date: 16 July 1888
• Court: Chancery Division (Ireland)

Appeal.

Before LORD ASHBOURNE, C., and FITZ GIBBON, BARRY, and NAISH, L. JJ.

COSBY

and

SHAW

Hellawell v. EastwoodENR 6 Exch. 295; 20 L. J. Exch. 154.

Porter v. Drew 5 C. P. Div. 143.

Calvert v. Gason 2 Sch. & Lef. 561.

Hooper v. BrodrickENR 11 Sim. 47.

Hamilton v. DunsfordUNK 6 Ir. Ch. Rep. 412.

Lumley v. Wagner 1 D. M. & G. 604, 617.

Musgrave v. Horner 23 W. R. 125.

Mayor, &c., of London v. Hedger 18 Ves. 355.

De Mattos v. Gibson 4 De G. & Jo. 276.

Taylor v. Portington 7 D. M. & G. 328.

Doe d. Burrell v. DavisUNK 15 Jur. 155.

In re WildeELR L. R. 8 Ch. App. 1072, 1083.

Morris v. MorrisUNK Ir. R. 7 C. L. 295.

Metge v. KavanaghUNK Ir. R. 11 C. L. 431.

Wake v. HallELR 8 App. Cas. 195, 204.

Montague v. FlocktonELR L. R. 16 Eq. 189.

Wolverhampton and Walsall Railway Co. v. London and North-Western Railway Co. Ibid. 433.

Catt v. TourleELR L. R. 4 Ch. App. 654.

Gibson v. DoegENR 2 H. & N. 615.

Haslett v. BurtENR 18 C. B. 893.

Sunderland v. NewtonENR 3 Sim. 450.

Martyr v. BradleyENR 9 Bing. 24.

Longbottom v. BerryELR L. R. 5 Q. B. 123.

Holland v. HodgsonELR L. R. 7 C. P. 328.

Climie v. WoodELR L. R. 4 Ex. 328.

Mather v. FraserENR 2 K. & J. 536.

Bishop v. ElliottENR 11 Exch. 113.

Mansfield v. BlackburneENR 6 Bing. N. C. 437.

Ex parte Broadwood 1 M. D. & De G. 631.

Fisher v. DixonENR 12 Cl. & Fin. 312.

Hellawell v. EastwoodENR 6 Ex. 295.

Mather v. FraserENR 2 K. & J. 536.

Walmsley v. MilneENR 7 C. B. (N. S.) 131.

Climie v. WoodELRENR L. R. 3 Exch. 257; 4 Exch. 328.

Walmsley v. MilneENR 12 Cl. & Fin. 312.

Naylor v. CollyngeENR 1 Taunt. 19.

Dumergue v. RumseyENR 2 H. & C. 777.

Sumner v. BromilowUNK 34 L. J., Q. B. 130.

Bishop v. ElliottENR 11 Exch. 117.

Burt v. HaslettENR 18 C. B. 162.

Doherty v. AllmanELR Ir. R. 10 Eq. 460; 3 App. Cas. 709.

Landlord and tenant — Tenant's fixtures — Right of removal excluded by contract of tenancy — Annexation to freehold — Covenant to keep and yield up in repair demised premises, and all improvements existing thereon at date of demise, or thereafter to be made.

Vor.. XXIII.] CHANCERY DIVISION. 181 ing-up was passed in November, 1886; that this was followed, on V.-a the 7th February, 1887, by the order of this Court (now almost 1889. two years in operation), and that various proceedings were taken, In re GENERAL including the settling of the list of contributories, without any FINANCE INANCE suggestion being made of any liability on the part of the vendors Co. of these shares. Under these circumstances I do not consider it just or fair, having regard to the laches and acquiescence of the Company (who are the parties making this application), that they should be now allowed to render liable to a call of 30s. per share the persons from whom they themselves have purchased. In my opinion this would be inequitable and. unjust; and I shall refuse the application, with costs to be paid out of the assets of the Company. I shall not express any opinion upon the main question argued. Solicitor for the Company : Mr. William E. Armstrong. Solicitor for Sarah Dixon, Henry Stewart, and Robert Rentoul Thompson: Hr. James Stewart. COSBY v. SHAW (1). Appeal. 1887. Landlord and tenant-Tenant's fixtures-Right of removal excluded by contract of tenancy-Annexation to freehold-Covenant to keep and yield up in repair demised premises, and all improvements existing thereon at date of demise, or thereafter to be made. In 1804 owners of the fee-simple of certain lands agreed, by indented articles, to demise them for lives renewable for ever, and the intended lessees agreed to pull down a mill on the premises and to build a new one, and coveÂnanted to keep the mill and works in constant working order, repair, and conÂdition. In 1823 a lease was executed in pursuance of this agreement, and the lessee thereby covenanted to preserve and keep the premises, and all buildings and improvements then or thereafter to be made thereon, in good order and repair ; to keep the mills, works, and machinery therein in working order, repair, and condition ; to yield up the premises and all buildings and improve (1) Before LORD ASHBOURNE, C., and Frrz GIBBON, BARRY, and NAISH, L. JJ. Von. XXIII'. 182 LAW REPORTS (IRELAND). [L. R. I. Appeal. ments in like good order, repair, and condition, and to keep the mill and works 1887. thereto belonging, or in anywise appertaining, in constant working order and Cosar repair. The lease was renewed in 1829, the renewal containing similar cove y nants by the tenant. In 1834 an under-lease, at a profit rent, was made of the SHAW. mill and premises for 999 years, which disclosed the existence of a head. lease. In 1862 S. & Co. became assignees of the sub-lease, and, having entered into possession, took out the old mill-stones, and erected a quantity of new machinery of an improved description in the mill. In 1865 a fee-farm grant was made by the plaintiff, as owner of the reversion, to the owner of the superior lease, with covenants by the grantee similar to the lessee's covenants in the original lease and renewal, and also to keep the mill and works in conÂstant working order, repair, and condition. In 1874 an agreement was exeÂcuted between the head landlord and S. & Co., reciting the original lease, its renewal, the under-lease, and the derivative title to it, and giving S. & Co. liberty to erect an engine-house and shed, in pursuance of which the defenÂdants erected a steam-engine and boiler, and buildings for the same. In 1886 S. & Co. sold and proceeded to remove the new machinery placed by them in the mill :- Held, by the Court of Appeal (varying the decision of the Vice-Chancellor, whose judgment had granted an injunction restraining the defendants from removing from the mill any fixtures therein, although being tenant's or trade fixtures) that, by the terms of the contract of tenancy, and having regard to the covenants in the several instruments constituting their title, and of which they had notice, the defendants were only precluded from removing such fixÂtures and other things as were essential to or were included. in the subject-matter of demise, originally or by substitution ; but that such contract and covenants did not bind trade or tenant's fixtures as such, and that there should be excluded from the injunction all trade fixtures which had been introduced as scientific improvements to fulfil functions previously performed by manual labour or moveable utensils. APPEAL, by the defendants, from the judgment of the Vice-Chancellor, dated 16th April, 1887, declaring that upon the true construction of the covenants contained in a fee-farm grant of the 11th April, 1865, the appellants were not entitled to remove from the mills and premises thereby granted any fixtures therein, although being tenant's or trade fixtures. The hearing below is reported ante, 19 L. IL Ir. 307, where the facts and documents are fully set out. Vor,. XXIII.] CHANCERY DIVISION. 183 Mr. Jellett, Q. C., and The Right Hon. Samuel Walker, Q. C. Appeal. (with them Mr. B. E. Meredith), for the respondent. 1887. COSBY V. The following authorities, not mentioned in the report below, SHAW. were referred to : For the appellants :-As to what amount of annexation is necessary to constitute fixtures : Hellawell v. Eastwood (1).-[BARRY, L. J., referred to Porter v. Drew (2), as to express and implied covenants relating to landlord's fixtures.]-The Renewable LeaseÂhold Conversion Act (12 & 13 -Viet. c. 105), sect. 1 ; as to injuncÂtions against waste being inapplicable to tenancies in perpetuity, Calvert v. Gason (3) ; Kerr on Injunctions (2nd ed.), pp. 396, 420, as to negative covenants, and the Court refusing to import negaÂtive words in covenants ; as to the Court refusing to interfere where the lessee does not violate a negative covenant : Hooper v. Brodriek (4) ; Hamilton v. Dunsford (5) ; Lumley v. Wagner (6) ; Musgrave v. Horner (7).-[BARRY, L. J., referred to Mayor, 8fc., of London v. Hedger (8), where in the ease of a covenant to surrender in good repair at the end of the term the tenant was restrained from pulling down buildings just before the term expired.]-As to a person taking property with notice of a covenant entered into with respect to it by a previous owner to use it in a particular way being restrained from using it otherwise : De Mattos v. Gibson (9) ; as to the Court not interfering to enforce a covenant uncertain in its terms : Taylor v. Portington (10) ; as to the items which are excluded from the definition of "trade machinery" in the Bills of Sale (Ireland) Act, 1879, and the difference between fixed motive powers and fixed power machinery, sect. 5 of the Act (42 & 43 Viet. c. 50) ; as to a tenant removing fixtures during his term without thereby violating a covenant to keep in repair and so deliver up at the end of the term : Doe d. Burrell v. Davis (11); (1) 6 Exch. 295; 20 L. J. Exch. (6) 1 D. M. & G. 604, 617. 154. (7) 23 W. R. 125. (2) 5 C. P. Div. 143. (8) 18 Yes. 355. (3) 2 Sch. & Lef. 561. (9) 4 De G. & So. 276. (4) 11 Sim. 47. (10) 7 1). M. & G. 328. (5) 6 Ir. Ch. Rep. 412. (11) 15 Jur. 155. R2 and further, as to trade fixtures : Ex parte Daglish ; In re Wilde (1) ; as to the operation of a fee-farm grant under the Renewable Leasehold Conversion Act : Morris v. Norris (2) ; as to the measure of damages for breach of a covenant to repair : Metge v. KavaÂnagh (3) ; and as to the maxim "quicquid plantatur solo solo cedit" being subject to limitations : Wake v. Hall (4). For the respondents :-As to the Court interfering in effect to enforce covenants not coupled with any negative words : Montague v. Flockton (5) ; -Wolverhampton and Walsall Railway Co. v. London and North- Western Railway Co. (6) ; or covenants which, though in terms positive, are in substance negative : Catt v. Tourle (7); and as to continued user in a particular way contrary to a covenant enabling a jury to presume a license...