1833. HARE against HORTON. payment of the principal or interest; and a proviso, that Bailey should hold and receive the rents, issues, and profits of the hereditaments by that indenture appointed and released, without let, &c. by the plaintiff, until such default should be made. The above deed was executed by the defendant and Spurrier, (neither the plaintiff nor any person on his behalf being present,) and witnessed by Mr. Fellows, the defendant's attorney, and Mr. Caldecott, his mining agent. The deed was then delivered to Caldecott, but there was no evidence of his having delivered it to the plaintiff, except that the plaintiff produced it at the trial. Bailey was let into possession, and, at the time next mentioned, was in the exclusive occupation of the premises, machinery, and other property, except the house and garden mentioned in the agreement of December 1830. In June 1831, a dispute having arisen between Bailey and the defendant as to the fulfilment of that contract, the defendant, with a number of men, entered the foundery, carried away the tools and other moveables, and severed and took away, among other things, a steam-engine, cranes, presses, frames for gasometers, and other apparatus, all fixed into the earth or walls, doing thereby much unnecessary damage to the premises. For the injuries caused by this proceeding to the plaintiff's reversionary interest, the present action was brought. The value of the fixtures and tools was stated at the trial to be 1545l. The plaintiff was nonsuited, but leave given to move to enter a verdict for 600l., the value of the fixtures, or 35l., the amount of damage done to the freehold in removing them. The points reserved were: First, Whether the fixtures annexed to the foundery passed to the plaintiff by the mortgage mortgage of February 1831? Secondly, Whether on the present declaration, the plaintiff could recover for the alleged injury to the freehold? Thirdly, Whether the instrument of mortgage was delivered as a deed, or only as an escrow? A rule nisi having been obtained, Maule and R. V. Richards now shewed cause. As to the first question, Ex parte Quincy (a), as far as it is an authority on the point, tends to shew that the fixtures would not pass by the mortgage-deed. The language there used is indeed loose, and no satisfactory reason is assigned. But in the present case, the words of the deed clearly shew the intention not to pass the fixtures belonging to the foundery. The grant is, "of the said iron-foundery, together with the said dwelling-houses, warehouses," &c.; after which nothing is said of the fixtures belonging to the foundery, but the deed goes on; "together with all grates, boilers, bells, and other fixtures in and about the said two dwelling-houses, and the brewhouses thereto belonging." [Patteson J. If there are three houses mentioned, and a grant of fixtures refers only to those in two, can it be said that those in the third will pass ?) The maxim, "expressio unius est exclusio alterius," would apply. But the case here is even stronger, for the general mention of fixtures is preceded by that of "grates, boilers, and bells ;" and the rule is, that where an enumeration begins with the mention of particular things, subsequent general words only carry things ejusdem generis. If, therefore, the enumeration in this case had been applicable to the foundery as well as the dwelling-houses, still the grant would not have passed (a) 1 Atk. 477. 1833. HARE against HORTON. fixtures 1833. HARE against HORTON. fixtures of a more important kind than those first named. The court, in construing an instrument like this, may look to the intention of the parties, as was done in Colegrave v. Dias Santos (a), and if matter dehors the deed be admissible to explain that intention (which was left undetermined in Thresher v. The London Water-works Company (b)), the agreement of December 1830 goes far to shew that the fixtures in question were not meant to pass to the plaintiff by this mortgage. As to the second point; if these fixtures did not so pass by the deed, there is no proof of any injury sustained by the plaintiff, to which the declaration is applicable. Thirdly, the instrument of mortgage was delivered by the defendant to Caldecott merely as an escrow, to be the defendant's deed on the performance of the previous agreement by Bailey, and any misconduct of Caldecott in parting with it before the proper time could not alter its nature. It is indeed laid down in Com. Dig. Fait, (A. 3.), that if one deliver a writing, as his deed, to a stranger, to be delivered to the party upon performance of a condition, it shall be his deed presently, and if the party obtains it, he may sue before the condition performed, and Degory v. Roe (c) is cited. But it is pointed out in Johnson v. Baker (d), that that dictum in Comyn rests upon an erroneous report of the case referred to, which was, in fact, decided the contrary way. Talfourd Serjt., Cripps, and Hoggins contrà. The fixtures in the foundery passed by the mortgage deed. Accessorium sequitur suum principale, Shepp. Touchst. (a) 2 B. & C. 76. (b) 2 B. & C. 608. (c) 1 Leon. 152.; but see Moore, 300. S. C. See, also, 13 Vin. Abr. Fails, (M.) (d) 4 B. & A. 442. 89. (a), and it is there laid down that, "by the grant of mills, the waters, floodgates, and the like, that are of necessary use to the mills, do pass ;" and the editor adds, "also a stone belonging to the mill, though separated from the mill to be new worked." In the present case, many of the articles were necessary for the purposes of the iron-foundery, or for carrying on the business of a gasometer-maker. [Patteson J. In Place v. Fagg (b), it was held, that by mortgage of a mill the mill-stones and tackling passed. There will hardly be any dispute on this point; the question will be, whether the effect of the deed as to these fixtures is not limited by the subsequent parts.] The express mention of the fixtures in and about the dwelling-houses will not prevent the fixtures at the foundery from passing by the general words "the said iron-foundery.""If a man has a house in A., and houses and lands in B., and devises his house in A. to one, and (having demised the houses and lands to D. rendering rent) all those his lands, meadow, and pasture in B. to another, his houses there pass by the word lands, though he mentions his house in A. expressly;" Com. Dig. Grant, E. 3. citing 2 Roll. 57. 1. 20. Where the land is granted, every thing which is inseparable from the soil must pass. If houses would pass, the same reason would extend to the cranes in this case, which are fixed deeply in the ground. And deeds are to be construed most strictly against the grantor. This is an acknowledged principle of law, and the rule for construing maxims and applying them in practice, is to see if they go in accordance with and extend an ac (a) 7th edit. by Mr. Preston. (b) 4 Man. & Ry. 277. 1838. HARE against HORTON. knowledged 1833. HARE against HORTON. knowledged principle; but to give the effect contended for to the maxim expressio unius, &c. (which is rather a maxim of reason than of law), would be to contract the operation of the principle just referred to. If the things expressed had been such as would not necessarily pass by the deed, as benches, weights and scales, or watertubs, the naming of these would have excluded other things of the same description not named. But the fixtures in question did not require to be named or referred to in this deed, and the mention of them should not prejudice the plaintiff, for utile per inutile non vitiatur. Any mention of them was nugatory: “expressio eorum quæ tacitè insunt, nihil operatur." If the fixtures mentioned be understood as those of the dwelling-houses and brewhouses only, it may be that those particular fixtures were mentioned from an apprehension that they might otherwise have been understood to be removeable as tenant's fixtures, upon the grounds stated in Grymes v. Boweren (a), though no such question could arise as to those in the foundery. As to these last, Ex parte Quincy (b) is no decision in favour of the defendant, for it does not appear that that case was finally decided; and if the language there used raises any doubt, Colegrave v. Dias Santos (c) shews clearly that fixtures will pass by a conveyance of the freehold, if there be no contrary intention expressed Thresher v. The East London Water-works Company (d), supports the same proposition; and these cases shew Ex parte Quincy to be no authority, for the purpose for which it is cited. It might further be contended, if necessary, that the machinery and engines let into the (a) 6 Bing. 457. (b) 1 Atk. 477. ground |