Part L. Cases in which registration not necessary. "trade machinery" given above, where no interest in the land or building to which they are annexed passes to the purchaser by the same instrument, or (semble) where the interest given in the land is colourable only. (B) A bill of sale of fixed trade machinery (») falling within the definition of "trade machinery" given above, whether assigned together with or separately from any interest in the factory or workshop to which they are attached, and (semble) though passing by a mere conveyance or assignment of the factory or workshop containing no mention of fixtures. On the other hand registration is not necessary in the cases of (C) An instrument conveying or assigning any interest in land or buildings without mention of fixtures, but by which fixtures, not being "trade machinery," pass to the grantee or assignee. (D) An instrument conveying or assigning an interest in land or buildings, and also expressing to operate as an assignment to the same person of the fixtures attached thereto; notwithstanding that the fixtures are assigned by a separate testatum, or that power is given to the assignee to sever the fixtures without taking possession of, or otherwise dealing with the land or buildings (9). (E) An assignment, whether separately or together with any interest in the factory or workshop to which they are attached, of fixed motive powers (p), or fixed power machinery (q), or pipes for steam, gas and water in any factory or workshop. (n) E. g., looms, circular saws, &c., in a factory. (o) But see ante, p. 284, note (1). (p) E. g., water-wheels, steam-engines, &c. (q) E.g., shafts, drums, &c. Act. Sect. 8 in effect enacts that if the provisions of the Act Chap. V. s. 1. as to registration, attestation, or the setting forth of the Consequence consideration of a bill of sale are not complied with, the of non-compliance with bill of sale shall, as regards any property comprised therein provisions of which may be in the possession or apparent possession () of the grantor (s), be void as against (1) trustees in bankruptcy (t); (2) sheriffs' officers and all persons acting in the execution of the process of any Court (u) authorizing the seizure of the property; and (3) all persons on behalf of whom such process shall have been issued. This section is repealed by the 15th section of the Act of 1882, but it seems that this repeal has reference only to bills of sale given by way of security for the payment of money, and that this section is unrepealed and still operative so far as regards absolute assignments (x). The result of a non-compliance with the above provisions of the Act of 1878, however, is only to avoid the bill of sale as against the persons specified, but not as against the grantor (y). (r) Sect. 4 provides that "personal chattels" (which term, for the purposes of the Act, includes, as we have seen, some fixtures, see supra, p. 283) "shall be deemed to be in the apparent possession' of the person making or giving a bill of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or are used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person." As to this, see Ex parte National Guardian Assurance Co., 10 Ch. D. 408; Ex parte Saffery, 16 Ch. D. 668. (s) Where a bill of sale of fixtures was made by two (t) See post, p. 308 et seq. (y) Davis v. Goodman, 5 Part I. Fixtures in grantor upon his bankruptcy. Section 20 (≈) excludes chattels comprised in a duly registered bill of sale from the operation of the reputed ownerpossession of ship clause of the Bankruptcy Act, but this section does not enlarge the right of a grantee of fixtures under such a bill of sale, for he is entitled to them although the grantor becomes bankrupt and they remain in his possession at the commencement of the bankruptcy, because, as will be seen hereafter (a), the provisions of the Bankruptcy Act on this subject are not applicable to fixtures. Stipulations respecting fixtures. From the general principle that fixtures pass by a sale of the land to which they are annexed, some practical inferences may be deduced, to which it will be useful to draw the reader's attention, with reference to the precautions to be used in purchasing houses, &c., and taking leases or assignments of premises with the fixtures and other appendages belonging to them. Thus, upon an agreement for the sale of a house, if it is intended that things of a personal nature which are attached to the house should not be included in the purchase, it is, in general, necessary to make an express reservation of them: and it will be a very convenient practice to provide in the agreement or instrument of conveyance, that the excepted articles should be taken at an appraisement, or at a valuation to be made in some appointed mode (b). sumably still applicable to (2) That the repeal of this 307. (a) Post, pp. 309, 317. (b) It will be found very useful in practice, whenever premises containing fixtures. are sold, demised or assigned, that the conveyance should be accompanied by a schedule, specifying the particular articles which are intended to be valued. See Bac. Ab. tit. Leases (A.); Bull. N. P. 156 b (7th ed.); and post, Appendices (C), (D). And see Sharp v. Milligan, 23 Beav. 419. For precedents of conditions of sale valuation. It frequently happens that in agreements of sale, and Chap. V. s. 1. in a demise of premises, there is an express stipulation Fixtures to be that "the fixtures are to be taken at a valuation;" and taken at a difficulties repeatedly arise as to what particular articles are to be included in this provision, and for which the purchaser or tenant may be called upon to pay (c). With respect to the precise import of these terms in different cases, there is very little assistance to be derived from the authorities; and the practice of the individuals who are usually referred to on these occasions, seems to be governed by no uniform or very definite rule. It would seem, how- Effect of this ever, that when a stipulation of this kind occurs on the stipulation on sale of a house, those things only are, in strictness, to be house; comprehended in the valuation, which would be deemed personal assets as between heir and executor, and which would not pass with the inheritance as part of the freehold of the house. When the like stipulation occurs upon a demise of pre- On a demise; mises, it must, it is conceived, be interpreted to mean, that all those articles are to be valued to the incoming tenant, which would be fixtures as between a landlord and tenant, and which the tenant would be at liberty to remove, if he had himself put them up during the term. It is apprehended, therefore, that the tenant will not be bound to pay for any thing but what properly falls within the rule here suggested. So, where a tenant by assignment of his lease On assignpending the term, or at his out-going, disposes of his fix- ment. tures under a similar agreement, he may be considered as providing for valuation of fixtures, see 1 Prid. Prec. p. 42 (12th ed.); Wolst. & Turn. Conv. Acts, p. 189 (3rd ed.). (c) Where. the agreement which contains the stipulation provides for valuation by a particular person, the Court will make a mandatory order F. upon the vendor to compel U Part I. Intention of parties true criterion. Purchase of fixtures by an incoming tenant. transferring to the purchaser all those articles which he would have been entitled to remove from the premises, either by reason of having taken them as fixtures, or as having himself erected them during the term (d). But in all these cases the intention of the parties is the true criterion to be consulted; and this intention is to be collected from the general nature of the contract, and from the description of the premises and the purposes for which they are usually occupied. It may also be inferred from a custom prevailing in the particular district, and with reference to which the parties may be supposed to have contracted (e). When a tenant at the commencement of his term purchases of the landlord articles belonging and affixed to the demised premises, his right to sever them and convert them into personal chattels, is very different in its nature from that by which he severs and takes away fixtures put up by himself. For here the right of removal arises wholly out of the contract, and not out of the law of fixtures. And perhaps, in such a case, the tenant would not absolutely lose his right of property in the articles by omitting to sever them before the expiration of his term; unless, indeed, it is implied in the purchase, that he should hold them upon the same conditions as his own fixtures. The precise nature, however, of the interest which accrues under agreements of this kind, does not appear to have been hitherto discussed (ƒ). (d) Under a sale of a lease and all fixtures, the purchaser is entitled to gaseliers screwed to gas-pipes, although not specifically mentioned in the lease, and no special payment is made for them. Sewell v. Angerstein, 18 L. T. 300. That an action lies by an incoming tenant against the outgoing tenant to recover money paid for fixtures which were in fact the property of the landlord, see Robinson v. Anderton, Peake, 94. Compare Freeman v. Jeffries, L. R., 4 Ex. 189. (e) As to custom generally, see ante, p. 66. (f) See the remarks of |