e

3 February, 1955. ] THE LEEWARD ISLANDS GAZETTE. 21

On the 28th of July the defendant assured Mr, Henry that he wished the plaintiff to have the things in the
premises but said that Mr. Henry should first find a purchaser for some of them and bring that person to him to con-
clude arrangements. It was agreed that should Mr. Henry produce such a purchaser the tenancy would be terminated.
On the 29th, in accordance with arrangements made beforehand, the defendant, Mr. Francis, Mr. Henry and two
prospective purchasers met at the premises, which were opened. When prices were being discussed Mr. Francis
suddenly announced that there would be no sale of a single item, nor would anything be allowed to be removed; and
the defendant stated that he would have to follow his solicitor’s advice. It would seem that at this stage it wag
being suggested by the defendant and his solicitor that the walk-in refrigerator box was a landlord fixture and formed
part of the premises.

On 30th July the plaintiff sent the defendant a cheque for $360 ‘in payment of rental from the 15th day of
February, 1954, to the 15th day of August, 1954”. In a postscript he said, ‘‘I think you ought to know Mr.
Thompson that the walk-in refrigerated box is nota fixture of the property in that it is in no way connected to the
buildings walls, ceiling or floor.” By letter to the plaintifi’s solicitor dated 31st July, Mr. Francis acknowledged the
receipt of the plaintiff’s letter and cheque; he added: ‘“ Mr. Tosch’s letter says that you have full permission to
dispose of his goods and to use the proceeds to liquidate his debts. It is inferred therefore, that the tenancy will be
terminated. My client is agreeable to this and wishes this as speedily as possible. It must be pointed out bowever,
that even at this stage he is entitled toa month’s rent in lieu of notice that is the further sum of $60. It must also
be pointed out that the further sum of $171.01 is due to his store (a copy of bill in respect of this indebtedness has
been supplied you). In accordance with the agreed terms of the lease my client is entitled to have the place left in
good repair and it is estimated that considerable expense will be involved in conditioning this place for occupancy,
other than that of a food shop. My client suggests that the figure of $200 will not be excessive for this. It will
therefore be seen that the balance due my client even upon immediate liquidation would be $431.06. The postscript
in Mr. Tosch’s letter says that the walk-in refrigerated box is not a fixture (i.e. a landlord fixture). This statement is
certainly not seriously advanced. My client in view of his indebtedness to him asks that he be given a first option to
purchase the unit in the refrigerated box and on adjustment of any difference between the value of this unit and his
elaim he will be only too willing to release all the remainder of the goods to you.”

On 2nd August Mr. Henry went to the defendant and again demanded the keys of the premises, now that
the defendant had received the rent due. The defendant’s reply was that he would have to consult Mr. Francis first.
On the 3rd of August Mr. Henry returned to the defendant and again demanded the keys, pointing out that the period
for which the plaintiff could be kept in custody in Antigua prior to the making of an extradition order was about to
expire; on receiving the same specious reply as on the 2nd, Mr. Henry delivered an ultimatum, giving the defendant
up to 4 o’clock that afternoon to hand over the keys. The following day, the keys not having been handed over, the
writ was issued.

This is a convenient stage at which to dispose of certain portions of the pleadings which present little or no
difficulty on the evidence before the Court. It is, I think, quite sufficient for me to say, without going any further,
that my findings in regard to paragraphs 2, 5, 9 and 10 of the Defence are entirely against the defendant.

As regards paragraph 1 of the Defence ant paragraph 14 (1) and (2) of the Counterclaim, and the plaintiffs
reply to these two paragraphs, I consider that the plaintiff's tenancy of the premises must be deemed to have termi-
nated on 15th August, 1954. That was implicit in the agreement made between Mr. Henry and the defendant on
28th July, and the former fulfilled his part of the arrangement. It was only after that that questions were raised
about the payment of further rent.

«is to paragraph 6 of the Defence, it is evident that upon the receipt by the defendant of $360 on the 80th or
31st July, 1954, any lien for rent to which he might previously have been entitled ceased to exist, and that was the
position when Mr. Henry unsuccessfully made the final demands on 2nd and 3rd August. Itis particularly upon this
last demand that the plaintiff's claim is grounded.

The bulk of the argument at the trial centred around items (1), (2), (3) and (7) of the plaintiff’s claim, valued
at $1,225, $422, $388 and $4,000, respectively. Special attention was given to these items when the Court visited
the locus in quo, and since that inspection further evidence has been taken and learned counsel for the plaintiff and
defendant have submitted an agreed report dated 17th January, 1955, (marked Exhibit E) by Mr. I. D. C. Imbert, B.E.

The display cise and compressors which constitute items (1) and (2) are not affixed to any part of the
premises. The compressors are bolted to wooden supports, which are otherwise resting freely on the floor, as does
the display case.

What is referred to in item (7) as the walk-in refrigerator is a large, heavy box, with external dimensions
16 ft. 4in.x 10 ft.4 in. x 8 ft. 4in. and internal dimensions 15 ft. x 9 ft.x 7 ft. The difference is accounted for by
thick wooden walls filled with megass for purposes of insulation. The box was constructed in actu and rests freely
on the floor beneath. Its roof rests freely against the floor joists immediately above it. The upper portion of its
northern wall is connected to a false ceiling which was installed by the plaintiff after the box was built. This sub-
ceiling is, in turn, connected by ordinary nails to the main floor joists immediately above it. Along the upper portion
of the northern wall of the box four 2 in. x 3 in. uprights extend to the floor joists and are attached by nails. At the
top of the west wall is nailed some fly-wire which is, in turn, nailed to the floor immediately above. Apart froma
connection made with ordinary nails at the south-western corner, the southern and eastern walls of the box are free
along all their edges.

The 1 h.p. compressor—item (2)—is connected to the walk-in refrigerator by a copper tube.

The blower—condenser unit—-item (3)—is actually in the walk-in refrigerator, and is bolted through small
channel irons to the roof of the refrigerator.

It was contended by counsel for the defendant that these four items are landlord’s fixtures and as such the
property of the defendant; alternatively, if they are not landlord’s fixtures, they are tenant’s fixtures and cannot, until
severed from the freehold, be the subject-matter of detinue. ‘he first limb of the submission was not urged with any
degree of force or conviction. To support the second limb, counsel cited the following passage from Halsbury’s Laws
of England (Hailsham edition) vol. 33 para. 83: “The subject-matter of trover and detinue must be specific personal
property........ ... Neither trover nor detinue will lie for fixtures which are attached to the freehold; but trover or
detinuo lies for fixtures, timber, crops, soil, and minerals after snch things have been severed from the frechold.”