Montague Smith, Q. C., and T. W. Saunders, now showed cause.— The plaintiff is clearly entitled to costs, unless the statute 3 & 4 Viet. c. 24, s. 2, deprives him of them. That statute, however, only applies where there has been a verdict of a jury or judgment by default. Here, the record was withdrawn; and by the order of reference the costs of the cause were to abide the event of the award, which is in favour of the plaintiff. Griffiths v. Thomas is precisely in point. In Cooper v. Pegg, 16 C. B. 454 (E. C. L. R. vol. 81), the distinction now contended for was taken by the court. The plaintiff claims costs here by

*795] virtue of the agreement he has entered into.

Cole, in support of his rule.-If there had been a verdict here, it is plain that the plaintiff would not have been entitled to costs. [COCK[СоскBURN, C. J.-The plaintiff is only deprived of costs by the statute 3 & 4 Vict. c. 24, s. 2. How do you bring the case within that statute ?] Having put the arbitrator in the place of a jury, the plaintiff is estopped from saying there is no verdict. In Spain v. Cadell, 9 Dowl. P. C. 745, an action of trespass was referred to arbitration: and by the order of reference the arbitrator was to have the same power to certify as a judge at Nisi Prius: the arbitrator found for the plaintiff with 18. damages, and certified in his award, under the 3 & 4 Vict. c. 24, that the action was brought to try a right besides the mere right to recover damages: and it was held that the certificate was valid, and that it need not be endorsed on the back of the record. Here, the arbitrator is by agreement of the parties put in the place of jury as well as judge: as jury he gives a farthing damages, and as judge he refuses to certify to enable the plaintiff to get costs. [COCKBURN, C. J.-You have made an agreement as to the costs.] For what was the power of certifying given? [BYLES, J.-It might be for many purposes besides that of giving costs. instance, that a document was proved, which the other side had refused to admit.] If it be put on the ground of agreement, the defendant has succeeded upon six counts and upon a material part of the seventh. He has, therefore, substantially succeeded in the action. [BYLES, J.—I think not there must be a judgment for the plaintiff, notwithstanding your success.]

For

COCKBURN, C. J.-I am of opinion that this rule must *be dis*796] charged. But for the statute 3 & 4 Vict. c. 24, s. 2, a plaintiff who recovers any damages however small is by the statute of Gloucester (6 Ed. 1, c. 1) entitled to costs. It is urged on the part of the defendant that the effect of the first-mentioned statute is to deprive the plaintiff of costs because he has recovered less than 40s. damages, and there is no certificate. The answer given on the part of the plaintiff is, that he rests his claim to costs, not upon the statute, but upon the agreement contained in the order of reference,-that the costs of the cause should abide the event of the award. Now, the "event" must be taken to mean such a finding in favour of one party as will entitle him to a judg ment in the cause. The plaintiff has such a finding in his favour here; and, by the agreement into which the parties have entered, the costs must follow. Mr. Cole suggests that the clause giving the arbitrator all the powers as to certifying of a judge of Nisi Prius, will be nugatory, unless it is held to include the power of certifying for costs. But, in all probability, this order of reference being in a printed form, that clause was inadvertently left in: or, as my Brother Byles has suggested, there

are other certificates to which the clause might apply, besides the certificate for costs. Independently, however, of this technical view, it is not impossible that the arbitrator may have had in his mind the consequence of awarding the plaintiff a farthing damages, as he gave the costs of the reference and award to the defendant. He might have intended thus to make it a drawn battle as to the costs. This, however, is mere speculation. Having no means of knowing what the learned arbitrator's view was, we should very likely to be running counter to his intentions if we were to interfere. It has been suggested that it might be advisable to refer to the arbitrator. We cannot refer back an award except upon a ground *which we should hold sufficient to set [*797 aside the award for. We must deal with the arbitrator's decision as we find it. The agreement of the parties is, that the costs of the cause shall abide the event of the award; and the event is in favour of the plaintiff. The consequence must necessarily follow.

WILLIAMS, J.-I am of the same opinion. With respect to the case of Griffiths v. Thomas, I will only observe, that, although my Brother Coleridge gave an additional reason for his decision which is not appli cable here, yet the general ground upon which he proceeded is applicable, viz. that, inasmuch as the reference was before verdict, the case was not within the 3 & 4 Vict. c. 24, s. 2. It is so treated in Cooper v. Pegg, 16 C. B. 264, 274 (E. C. L. R. vol. 81). With regard to the power of certifying reserved to the arbitrator, unless it means some different sort of certificate, it is impossible that it could apply to the 3 & 4 Vict. c. 24, s. 2, there being no verdict.

WILLES, J., concurred.

BYLES, J.-I am entirely of the same opinion. The only effect of sending the matter back to the arbitrator would be in all probability to induce him to do that which I am clearly of opinion he has no power to do, viz. to certify. Rule discharged, without costs.

*THE LONDON AND WESTMINSTER LOAN AND DIS

COUNT COMPANY, LIMITED, v. DRAKE. June 16. [*798

A lessee mortgaged tenant's fixtures, and afterwards surrendered his lease to the lessor, who granted a fresh term to the defendant:-Held, that the mortgagees had a right to enter and sever the fixtures,-it not being competent to the tenant to defeat his grant by a subsequent voluntary act of surrender.

THE first count of the declaration was trover for goods; the second was for wrongfully depriving the plaintiffs of the use and possession of divers goods and fixtures of the plaintiffs in and affixed and fastened to a certain dwelling-house and premises in St. Mary Axe; and the third was for seizing and taking certain goods and fixtures of the plaintiffs in and affixed and fastened to the said house and premises in the said second count mentioned.

The defendant pleaded, not guilty, and a traverse that the several goods and fixtures in the several counts mentioned were the goods and fixtures of the plaintiffs. Issue thereon.

The cause was tried before Crowder, J., at the sittings in London

after last Trinity Term, when the following facts appeared in evidence: -One Robinson, who was tenant of the premises in question (an eatinghouse in St. Mary Axe) under a lease of which seven years were unex pired, on the 4th of September, 1857, borrowed a sum of money of the plaintiffs, giving them by way of collateral security a bill of sale upon all his furniture and effects upon the premises, including certain tenant's fixtures. The bill of sale contained an absolute assignment of all the goods and effects therein comprised, subject to a proviso making the same void if Robinson should repay the money borrowed by certain instalments; and also an agreement, that, in case default should be made in payment of the money, or if, amongst other things, the said goods and effects should be distrained for rent, it should be lawful for the plaintiffs to enter into and upon the premises, or *wherever else

*799] the said goods and effects should be, and to receive and take into

their possession and thenceforth to hold to the same, &c. Default having been made by Robinson, the plaintiffs, by one Priest, on the 30th of March, 1858, entered upon the premises for the purpose of making a seizure, but found that the landlord had already distrained for arrears of rent, and that his broker was in possession. Priest, however, claiming the fixtures, left a man also in possession; but the fixtures were not severed.

On the 8th of March, 1858, Robinson had given his landlord an authority to distrain the fixtures; and on the 5th of April he made a formal surrender of the term to him. A fresh lease was afterwards granted by the landlord to Drake, the tenant's fixtures which had formerly belonged to Robinson still remaining upon the premises unsevered from the freehold. The plaintiffs made a formal demand of the fixtures upon the defendant, who declined to give them up, saying that he had purchased them from Robinson.

Upon these facts being proved, the learned judge directed a verdict to be entered for the defendant, reserving leave to the plaintiffs to move to enter a verdict for them for 231. 28., if the court should be of opinion that they were under the circumstances entitled to recover in respect of the fixtures.

Atherton, Q. C., in Michaelmas Term last, obtained a rule nisi accordingly. He submitted that it was not competent to Robinson by surrendering his term to his landlord to derogate from the grant he had previously made to the plaintiffs.

Day showed cause.-Fixtures have no legal independent existence whilst attached to the freehold: consequently, the defendant, who is in *800] possession of the premises as tenant, and has bonâ fide purchased the fixtures without notice of the plaintiffs' claim, is entitled to retain them: Colegrave v. Dias Santos, 2 B. & C. 76 (E. C. L. R. vol. 9), 3 D. & R. 255 (E. C. L. R. vol. 16); Ex parte Gawan, in re Barclay, 25 Law J., Bankrupt y, 1. There is no such thing known to the law as a grant of fixtures independently of the possession of the premises to which they are annexed. The only way such an instrument could operate would be by way of license to enter and remove them. [CockBURN, C. J.-The tenant assigns the fixtures to the plaintiffs before he surrenders his lease to the landlord. Supposing he had not surrendered, he would have had an undoubted right to remove the fixtures, and so would his assignees. It may be that it was not competent to the grantor

by the surrender to derogate from his grant.] The first count is clearly not sustainable, because it will be conceded that trover will not lie for fixtures. (a) The second count is also in substance a count in trover. And there is no evidence to sustain the third count, which is trespass. [CROWDER, J.-The evidence was that the defendant was using the fixtures every day in his business of an eating-house keeper.] At the date of the execution of the conveyance, it was contemplated that the fixtures should for a time remain parcel of the soil, to be removed only upon a contingency. [WILLIAMS, J.-Suppose tenant for years sells growing crops, and then surrenders his term, would not the vendee be entitled to go upon the land and take the crops?] Growing crops are subject to very different incidents from fixtures: the tenant has a right to go in and sever them after the expiration of his term. [WILLIAMS, J., referred to Hallen v. Runder, 1 C. M. & R. 266.+] That was put on the ground of a sale of a right to remove the fixtures. Here, there is no count for preventing the plaintiffs from removing *these fixtures. [WILLES, J.-You say there is [*801 a grant here of a right to go in and take the fixtures. The tenant, having granted that right, surrenders his term. Why should not the right remain? In Co. Litt. 338 b, it is said, that, "if tenant for life grant a rent-charge, and after surrender, yet the rent remaineth, for to that purpose he cometh in under the charge." If that law be applicable here, the plaintiffs would have a right to come in at any time and take the fixtures.] This is a mere personal license, like that in Howes v. Ball, 7 B. & C. 481 (E. C. L. R. vol. 14), 1 M. & R. 288 (E. C. L. R. vol. 17). [WILLES, J.-Roffey v. Henderson, 17 Q. B. 574, seems to show that such an authority if by deed would be good.] There is no authority to show that it is competent to a tenant for years to confer on a third party an estate in the fixtures independent of the soil. The case of Keppell v. Bailey, 2 Mylne & K. 517, is a strong authority to show the disinclination of the courts to countenance the annexation of such burthens as these to estates. The Monmouthshire Canal Act provided, that, upon auxiliary railroads made by private individuals under the authority of the act, the tolls should not exceed the rate charged by the canal company, which, for the articles of limestone and iron-stone, was restricted to 24d. a ton per mile; and it also empowered the canal company, by agreement with the landowners, itself to construct auxiliary railroads, on which tolls not exceeding 5d. a ton per mile might be charged. Certain landowners and owners of iron-works, and, among others, the lessees of the Beaufort Works, formed a joint stock company, and, under the powers given by the act, constructed a railroad connecting a lime-quarry called the Trevil Quarry with the several ironworks and with the railroads of the canal company. In the partnership deed of the railroad company, the lessees of the Beaufort Works covenanted, for themselves, their heirs, executors, administrators, and assigns, with the other shareholders, their executors, administra- [*802

tors, and assigns, so long as the covenantors, their executors, administrators, or assigns, should occupy the Beaufort Works, to procure all the limestone used in the said works from the Trevil Quarry, and to convey all such limestone, and also all the iron-stone from the said mines to the said works, along the Trevil railroad, and to pay a toll of 5d. a ton per mile for the same. Upon a bill filed by the shareholders of the railroad

(a) Roffey v. Henderson, 17 Q. B. 574 (E. C. L. R. vol. 79).

to enforce this covenant against a person who had purchased the Beaufort Works, with notice of the partnership-deed,-it was held that the covenant did not run with the land, so as to bind assignees at law; and that a court of equity would not, by holding the conscience of the purchaser to be affected with the notice, give the covenant a more extensive operation than the law allowed to it. The Lord Chancellor (Lord Brougham), in delivering the judgment of the court, said,—“ There are certain known incidents to property and its enjoyment; among others, certain burthens wherewith it may be affected, or rights which may be created and enjoyed over it by parties other than the owner; all which incidents are recognised by the law. In respect of possession, the property may be in one, while the reversion is in another; in respect of interest, the life-estate in one, the remainder in tail in a second, and the fee in reversion in a third. So, in respect of enjoyment, one may have the possession and the fee-simple, and another may have a rent issuing out of it, or the tithes of its produce, or an easement, as, a right of way upon it, or of common over it. And such last incorporeal hereditament may be annexed to an estate which is wholly unconnected with the estate affected by the easement, although both estates were originally united in the same owner, and one of them was *afterwards granted by

*803] him with the benefit, while the other was left subject to the

burthen. All these kinds of property, however, all these holdings, are well known to the law, and familiarly dealt with by its principles. But it must not therefore be supposed that incidents of a novel kind can be devised and attached to property, at the fancy or caprice of any owner. It is clearly inconvenient both to the science of the law and to the public weal, that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives, that is, their assets real and personal, to answer in damages for breach of their obligations. This tends to no mischief, and is a reasonable liberty to bestow: but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character which should follow them into all hands, however remote. Every close, every messuage, might thus be held in a several fashion; and it would hardly be possible to know what rights the acquisition of any parcel conferred, or what obligations it imposed. The right of way or of common is of a public as well as of a simple nature, and no one who sees the premises can be ignorant of what all the vicinage knows. But, if one man may bind his messuage and land to take lime from a particular kiln, another may bind his to take coals from a certain pit, while a third may load his property with further obligations to employ one blacksmith's forge, or the members of one corporate body, in various operations upon the premises, besides many other restraints as infinite in variety as the imagination can conceive; for, there can be no reason whatever in support of the covenant in question, which would not extend to every covenant that can be devised." And this dictum is quoted with approbation in Day

*804] rell v. Hoare, 12 Ad. & E. 356 (E. C. L. R. vol. 40). [WILLES, J.-And also in a more recent case in this court,-Ackroyd v. Smith, 10 C. B. 164 (E. C. L. R. vol. 70).]

J. Brown (with whom was Lush, Q. C.), in support of the rule.-The