fSfWPTil'"' 1 ii (I th Ami ;|||i|g|l|i||| 4:-a**f»S"f»^rf* Olornf II ICam ^rlfonl Bbrarg Cornell University Library KF 636.A95 1855 The law of fixtures, and other property. 3 1924 018 800 718 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018800718 CATALOGUE OP VALUABLE LAW BOOKS PUBLISHED BY BANKS, GOULD & CO., NEW YOEK,> AND GOULD, BANKS & CO., ALBANY. Adams on ejectment, a Treatise on the Principles and Practice of tlie Action of Ejectment, and the Kesultirig Action for Mesne Profits, by John Adams, sergeant-at- law. The fourth American from the Loudon edition, with Notes of the Decisions made by the Supreme and Circuit Courts of the United States, and by the Courts of the several States, whose decisions have been reported ; together with the Statutory prOTisions, in relation to those actions, contained in the Revised Statutes of New York; and Prece- dents of Entries, Pleadings, and Process adapted thereto, by John L. Tillinghast, coun- sellor-at-law: To which are added Annotations and References to the most recent American Decisions, by Thomas W. Clerke, counsellor-at-law. Careliilly collated, and made to correspond with the latest London edition, corrected by the author ; together ■with additional Notes and Decisions in the Courts of the several States. By "William Hogan, counsellor-at-law; and continued by T. W. Waterman. Embodying all the American and English Actions, to the present time. $5. ALLEN ON SHERIFFS. The Duties and Liabilities of Sheriffs, in their various relations to, the Public and to Individuals, as governed by the principles of common law, and regu- lated by the Statutes of New York. Revised, Corrected, and Enlarged, by Otis Allen, counsellor-at-law. $3. THE AMERICAN CHANCERY DIGEST. Being an Analytical Digested Inde± of all the Reported Decisions in Equity of the United States Courts, and of the Courts of the seve- ral States, to the present time, with Notes and a copious Index. Also an Introductory Essay, comprising an Historical Sketch of the Court of Chancery, an account of the na- ture, powers, and functions of the Court, and the organization and equity jurisdiction of the Court of the United States, and of each of the States of the Union. By Thomas "W. Waterman, of the New York Bar. 3 Vols. $15. ANTHON'S NISI PRIUS REPORTS. The Law of Nisi Prius: Being Reports of Cases determined at Nisi Prius, in the Supreme Court of the State of New York; with Notes and Commentaries on each case. Second edition. With many additional cases never published before. Judges presiding : — Chief Justice James Kent, Justices Van Ness, Thompson, Spencer, and Yeates. 1 Vol. $4. ARCHBOLD'S CIVIL PLEADING. A Digest of the Law relative to Pleading and Evi- dence in Civil Actions, by John Frederick Arohbold, barrister-at-law. Second Ameri- can, from the last London edition. $4 ARCHBOLD'S PLEADING AND BVIDBNCB. Archbold's Summary of the Law rela- ting to Pleading and Evidence in Criminal Cases: with Statutes, Precedents of Indict- ments, &e., and the evidence necessary to support them. By John Jervis, Esq., Q. C, A ii BANKS, GOULD & GO'S PUBLICATIONS. 'of the Middle Temple, barrister-at-law, with the Patent of Precedence. American, from the London edition; much Enlarged and Improved, by W. N. 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Containing also a Summary of the Law relative to Crimes and Punishments, with an Appendix of Forms of Proceedings. By Oliver L, Barbour, counsellor-at-law. Second edition. Much enlarged with Notes and Refer- ences, and additional Forms. $5. BARBOUR'S LAW OP SET-OFF. A Treatise on the Law of Set-0£F, with an Appendix of Precedents. By Oliver L. Barbour, counsellor-at-law. $2. BARBOUR'S SUPREME COURT REPORTS. Reports of Cases, in Law and Equity, in the Supreme Court of the State of New York, under the New Constitution, 1846. By Oliver L. Barbour, counsellor-at-law, 17 Tols. $59 50. BEAMES' NB EXEAT. A Brief View of the Writ of Ne Exeat Regno, with Practical Remarks upon it as an Equitable Process. By John Beames, of Lincoln's Inn, barrister- at-lav/. First American edition, with Notes of the recent English and American Deci- sions. By H. W. Warner, solicitor and counsel in Chancery. 075. BEEBB'S QUESTIONS TO GRAHAM'S PRACTICE. 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Third edition just published, containing Notes and Refer- ences to all the American and English decisions, to the time of publication, by Water- man; with Corrections and Additions. By George Caines, counsellor-at-law. 3 Vols. $12- CALIFORNIA PRACTICE. , A Treatise on the Practice of the Courts of the State of California, carefully adapted to the existing law. By J. B. Hart, of the San Erancisco Bar. $3 50. CAMPBELL'S NISI PRIUS REPORTS. Reports of Cases determined at Nisi Prius, in the Court of King's Bench and Common Pleas, and on the Home Circuit, from the sit- tings after Michaelmas Term, 48 Geo. Ill, 1807, to the sittings after Hilary Term, 56 Geo. Ill, 1816, both inclusive. By John Campbell, of Lincoln's Inn, barrister-at-law. To which are added Notes referring to the American Authorities. By Samuel Howe, counsellor-at-law. 4 Vols, New York, 1810 to 1821. CHITTY'S CRIMINAL LAW. A Practical Treatise on the Criminal Law, comprising the Practice, Pleadings, and Evidence, which occur in the course of Criminal Prosecutions, whether by Indictment or Information : with a copious collection of Precedents of In- dictments, Information, Presentments, and every description of Practicdi Forms, "with Comprehensive Notes upon each offence, the Process, Indictment, Plea, Defence, Evi- dence, Trial, Verdict, Judgment, and Punishment. By Joseph Ghitty, of the Middle Temple, barrlster-at-law. Fourth American, from the Second and last London Edi- tion, corrected and enlarged by the author ; with Notes and Corrections. By Richard Peters and Thos. Huntington. To which are now added, Notes and References to the cases decided in the Courts of the United States and of the several States, to the pre- sent time, as well as to the late English decisions. By J. C. Perkins, counsellor-at- law. 3 Vols. $12. CLANCY'S RIGHTS OF WOMEN. 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Reports of Cases argued and determined in the Supreme Court for the Trial of Impeachments and the Correction of Errors of the State of New York, from 1823 to 1828. By Esek Cowen, counsellor-at-law, and successor of Johnson. 9 Tols. $45, CROWN CIRCUIT COMPANION. The Crown Circuit Companion; First American edi- tion, into which has been incorporated the work formerly published under the name of the Crown Circuit Assistant. Both works have also been carefully Revised, and such additions made thereto as modern Statutes and Decisions have rendered necessary. $3. DART'S LAW AND PRACTICE OF VENDORS AND PURCHASERS OF REAL ESTATE. A Compendium of the Law and Practice of Vendors and Purchasers of Real Estate. By J. Henry Dart, of Lincoln's Inn, barrister-at-law. With Notes and References to American Decisions, byTliomas W. Waterman, counsellor-at'law. $5 50, DATTON'S SURROGATE. The office of Surrogate, Surrogates and Surrogates' Courts, and Executors, Administrators and Guardians, in the State of New York. A Compi- lation of the Statutes, and a Summary of the Judicial Decisions of the State of New York, relating to the Office of Surrogate, the Proving of Wills, the granting of Probate, Administration and Guardianship, and the Riglits, Duties and LiabiUties of Executors, Administrators and Guardians, arranged in the lorm of a Treatise. By Isaac Dayton, counsellor-at-law. With an Appendix, containing several decisions upon the above named subjects, not elsewhere reported, and forms and precedents for practice in the Surrogates' Courts, and for the use of Executors, Administrators and Guardians. DEAN'S MEDICAL JURISPRUDENCE. Principles of Medical Jurisprudence, designed for the Professions of Law and Medicine. By Amos Dean, coansellor-at-law and Professor of Medical Jurisprudence in the Albany Medical College. Second Edition. $4 60. DBNIO'S REPORTS. Reports of Oases argued and determined in the Supreme Court, and in the Court for the Correction of Errors of the State of New York, from 1845 to 1848, inclusive. By Hiram Denio, successor of Hill, and the continuation of Johnson, Cowen and Wendell. 5 Vols. $20, DIGEST OP SOUTH CAROLINA REPORTS. A Digest of the Cases Reported in the Constitutional Reports of South Carolina. By a Member of the Charleston Bar. DUNLAP'S PALEY'S AGENCY. A Treatise on the Law of Principal and Agent, chiefly with reference to Mercantile Transactions. By William Paley, of Lincoln's Inn, Esq., barrister-at-law. The third edition, with considerable Additions, by J. H. Lloyd, of the Inner Temple, Esq, barrister-at'law. Third American edition, with extensive Additions, referring to, and embracing all the cases both English and American, to the present time. By John A. Dunlnp, Esq., counselloT-at-law. $4, KDEN ON INJUNCTIONS. A Treatise on the Law of Injunctions. By the Hon. 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These very valuable and important Decisions are re- published veriatim from the London copy, with notes and references to English and American Authorities. By John A. Dunlap, and continued by the Hon. E. P. Smith, being the Reports of Cases argued and deternjined in the High Courts of Chancery, the Rolls Court, and the Tice-Chancery Courts of England. Published in full, without any condensation whatever. The first 18 Vols, bound: each contain 2 Vols, of the English Reports, and are sold for $5 per Tol. The subsequent 17 Vols, at $3 per Vol. 63 English Vols, in 35 American Vols., with Notes, Ac. to American De- cisions. This very Valuable Series of Reports will be published from time to time, and at the very low price of $3 per Vol. ESPINASSB ON PENAL STATUTES. A Treatise on the Law of Actions on Penal Sta- tutes in general. By Isaac Espinasse, of Gray's Inn, barrister-at-law. First Ameri- can from the last London edition. EWING'S NEW JBRSBT JUSTICE. A Treatise on the Office and Duty of a Justice of the Peace, Sheriff, Coroner, Constable, and of Executors, Administrators and Guar- dians, in which are particularly laid down the rules for conducting an action in the Court for the trial of small causes. With approved forms, by James Bwing, Esq., late one of the Judges of the Court of Common Pleas, in the County of Hunterdon. Third edition, revised and corrected by a Member of the Bar. With the New Constitution added. $3. GRAHAM ON NEW TRIALS. An Essay on New Trials. By David Graham, Esq. Second edition, Revised and Improved. By David Graham, Jr. GRAHAM'S PRACTICE. A treatise on the Practice of the Supreme Court of the State of New York. By David Graham, counsellor-at-law. Third edition; Revised, Enlarged and Improved, in 2 Vols. The first volume is already published. $5. HILL'S REPORTS. Reports of Cases argued and determined in the Supreme Court, and in the Court for the Correction of Errors of the State of New York. 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By Nathan Howard, Jun., counsellor-at-law, and Deputy Clerk of the Supreme Court. 10 Vols. $35, HUMPHREYS' PRBCBDBNTS. A CoUectioii of Practical Forms in Suits at Law; also Preeedents of Contracts, Conveyances, Wills, &c. ; and Proceedings under the Pension, Patent, and Naturalization Laws of the United States, with Annotations and References. By Charles Humphreys, counsellor-at-law. 2 Vols. $10. JACOB AND WALKER'S CHANCERY REPORTS. Reports of Cases argued and de- termined in the High Court of Chancery, during the time of Lord Chancellor Eldon. By Edward Jacob and John Walker, of Lincoln's Inn, barristers-at-law. First Ameri- can frdm the first London edition. With Notes and References to American Cases. By Henry W. Warner, solicitor and counsellor in Chancery. 2 Vols. $12, vi BANKS, GOULD AND CO.'S PUBLICATIONS. JOHNSON'S CASES. Reports of Cases adjudged in the Supreme Court of Judicature of the State of New Tork, from January 1199, to 1803, inclusive, together with Cases de- termined in the Court for the Correction of Errors, during that period. A second edi- tion. With many additional cases not included in the former edition, taken from the Manuscript Notes of the late Hon. Jacob Radcliff, one ofthe Judges of the Supreme Court, and associated with the Hon. Morgan Lewis, James Eent, (since Chancellor of the State,) Egbert Benson, John Lansing, Brockholst Livingston, and Smith Thompson — the two latter were subsequently appointed Judges of the Supreme Court of the United States. With copious Notes and References to the American and English Decisions. The writ of MANDAMUS has been treated fully of in 2d Vol. of these reports, and references to the cases in it, and have been introduced, together with a complete collection of forms and precedents, not found elsewhere. By Lorenzo B. Shepard, counsellor-at-law. 3 Tols. §16. JOHNSON'S CHANCERY REPORTS. Reports of Cases adjudged in the Court 'of Chan eery of New Tork. By William Johnson, counsellor-at-law. Containing the Cases from March, 1814, to December, 1823, inclusive. With a General Digested Index of the Cases Decided and Reported in the Court of Chancery, and in the Court for the Correc- tion of Errors, on Appeal, from 1799 to 1822, inclusive, with a Table ofthe names ofthe Cases, and of the Titles and References. James Kent was Chancellor during the above Reports. 7 Tols. $40. JOHNSON'S REPORTS. Reports of Cases argued and determined in the Supreme Court of Judicature, and in the Court for the Trial of Impeachments and the Correction of Er- rors in the State of New Tork. By WiUiam Johnson, counsellor-at-law. Third Edition. With additional Notes and References. 20 Vols. $75. LAMBERT ON DOWER. A Treatise on Dower, comprising a Digest of the Americau Decisions, and the Provisions of the Revised Statutes of the State of New Tork. By Eli Lambert. $1'. LAW OF FIXTURES. A Treatise on the Law of Fixtures, and other Property, partaking both of a Real and Personal Nature ; comprising the Law relating to Annexations to the Freehold in general ; as also, Emblements, Charters, Heir-Looms, etc., with an Ap- pendix, containing Practical Rules and Directions, respecting the Removal, Purchase, Valuation, etc., of Fixtures between Landlord and Tenant, and between Out-going and In-coming Tenants. By A. Amos, Esq., and J. Ferrard, Esq., barristers-at-law. The second edition, with copious Notes and References to all the English Cases to the time of publishing, by Joseph Ferrard, Esq., barrister-at-law. The second American edition, from the last English, will contain all the Cases decided in the Courts of Law in the United States, and the courts of the several States on the subject, to the pre- sent time. With a Digest of the Statute Laws of the several States relating to the sub- ject. By William Hogau, counsellor-at-law. $3. LAWS OF THE UNITED STATES.— Vol. IS. Laws of the United States of America, from the 4th of March, 1833, to the 3d of March, 1839, including all the Treaties nego- tiated and ratified within that period, and several other valuable Documents which have resulted from, or are connected with, the Aclsof Congress and Treaties. Together with copious Notes and References. Volume IX, corresponding with, and intended as a con- tinuation of the Edition of Bioren & Co., as published by authority of an Act of Con- gress. Printed by Authority ot an Act of Congress. $9. LOCKWOOD'S REVERSED CASES. 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A Treatise on the Doctrine of Presumption and Presumptive Evidence, as affecting the Title to Real and Personal Property. By- John H. Mathews, of Lincoln's Inn, barrister-at-law. With Notes and References to American Cases. By Benjamin Rand. $i. MAULE AND SRLWYN'S REPORTS.— Vol. VI. Reports of Cases argued and deter- mined in the Court of King's Bench, with Tables of the Names of Cases and the Princi- pal Matters. By George Maule and "William Selwyn, of Lincoln's Inn, barristers-at- law. Vol VI. Containing the Cases of Hilary, Easter, and Trinity Terms, in the 57th year of George III. MONELL'S PRACTICE. A Treatise on the Practice of the Courts of the State of New Torlc, adapted to the Code of Procedure, as Amended by the Act of April 11, 1849, and the Act of April 16, to 1852, and the Rules of the Supreme Court, to which is added the Practice in the Courts of Justices of the Peace. With an Appendix of Practical Forms. By Cladius L. Monell, counsellor-at-law. 1854. 2 Vols. $9. NEW YORK DIGEST. A Digest of the Reports of Cases determined in the Supreme Court of Judicature, and the Court for the Correction of Errors of the State of New York. Together with the Reported Cases of the Superior Court for the City and County of New York, from the organization of said Courts; including Coleman's Cases Caines' Reports, 3 Vols. ; Caines' Cases in Error, 2 Vols. ; Johnson's Cases, 3 Vpls. Johnson's Reports, 20 Vols. ; Cowen's Reports, 9 Vols.; Wendell's Reports, 26 Vols. Hill's Reports, 7 Vols. ; Denio's Reports, 5 Vols. ; Barbour's Law Reports, 4 Vols. Comstook's Reports, 1 Vol.; Hall's Reports, 2 Vols. ; Sandford's Reports, 1 Vol. ; and Anthon's Nisi Prius. Revised and continued to the present time. By Wm. Hogan, counsellor-at-law. 4 Vols. $16 50. PAIGE'S CHANCERY REPORTS. Reports of Cases argued and determined in the Court of Chancery of the State of New York. By Alonzo C. Paige, counsellor-at-law, and successor of Hopkins. 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THE LAW OF FIXTURES, AND OTHER PROPERTY, PAETAKINa BOTH OP A REAL AND PERSONAL NATURE ; COMPElSINft THE LAW RELATING TO ANNEXATIONS TO THE EEEBHOLD IN GENERAL ; AS ALSO EMBLEMENTS, CHARTERS, HEIR-LOOMS, ETC. ■WITH CONTAINHTG -PEACTICAL EULES AND DIEECTIOES RESPECTING THE REMOVAL, PURCHASE, VALUATION, ETC., OF FIXTURES BETWEEN LANDLORD AND TENANT, AND BETWEEN OUT-GOING AND I^-COMING TENANTS. JOSEPH \fFERABD. Esq., BAEEISTEE-AT-LAW. '■"■^M^''^^ PROM THE LATEST ENGLISH EDITION.! ^ ^ ^^f>, ^\ 'H NOTES AND REFERENCES TO AMERICAN AUTHOEiTifflS, 7 ?«,« •*? I BY WILLIAM HOGAN, \% " Nf OOUNSELLOE-AT-LAW. SECOND EDITIOIV. NEW YORK : BANKS, GOULD & CO., 144 NASSAU-ST. ALBANY: GOULD, BANKS & CO., 4T5 BROADWAY. 1855 'II ^1 Entered aoeording to the Act of Congress, in the year one thousand eight hundred and fifty-five, by BANKS, GOULD & CO., in the Clerk's Office, in the District Court of the United States for the Southern District of New York. INTRODUCTOKY NOTE, I'he Law of Fixtures forms an exception to the general rule that Text Books, which discuss the principles that lie at the foundation of the law relating to any particular subject, are only useful to, and ap- preciable by, Members of the Legal Profession. The Volume now offered to the Public is so thoroughly practical in the application of the principles investigated to the daily occurrences of business, and so circumstantial in details, that its contents should be familiar to every Landlord, or Agent employed in the management of Houses, Stores, Factories and other Real Estate ; they would there^ by avoid many embarrassments and litigations, and secure many sav- ings, and even valuable accessions of property. Thirty years have passed away since Amos & Ferard, Barristers at Law, published the results of their joint labor and research in a small Volume, entitled "A Treatise on the Law of Fixtures, and other Prop- erty, partaking both of a Real and Personal nature, comprising the Law relative to annexations to Freeholds, Emblements, &c." The intrinsic Usefulness of this work soon gained a just appreciation ; it was regarded as the surest guide on the subjects of which it treated, and the authors enjoyed the gratification of observing that many suggestions, modestly put forth by them, were, from time to time, adopted as sound princi- ples on which authoritative decisions should rest, by Tribunals, graced and strengthened by such men as Mansfield, Kenyon, Hardwicke, Tenterden, Ellenborough, Parke and Lyndhurst. iV INTRODtfOiORY NOTE. The Editions tten published, as well in England as in America, soon passed from the shelves of Booksellers. The Authors, engrossed by the duties and interests of successful practice, found no leisure to pre- pare a revision of their Book. Gibbons' Law of Fixtures, and Grady's Law of Fixtures, in a measure supplied the want ; at length, in the maturity of intellectual and professional eminence, Mr. Ferard (the survivor of his colleague in the earlier ^\'ork) has published a new Edition, embracing a review of the numerous cases which had been adjudicated during the long interval in the Com-ts of Great Britain, together with all the. new learning, supplied by the wisdom of experi' ence, and the great and interesting variety thrown around the subject by the modem and wonderful developments of science, and their ap' plication to those useful arts contributive to the economic comforts and enjoyments of every day domestic life. The following pages present a reprint of the latest Edition, revised by the Author, to which have been added many notes containing copious extracts from Eeports of leading cases, decided in our American Courts, in which the legal acumen, the practical common sense and comprehesive views of American public policy, of Cowen, Walworth, Parker, Daggett, Kent and Story, and other learned Jurists who still temain with us, have substantially set forth and established the American Law of Fixtures. But, it may not be assumed that such Law, although thus built up on a course of decisions equivalent to a system of judicial legislation, is immutable as that of the Medes and Persians of eld. Change is of its essence, and ever has been ; it has ever been progressive, and in derogation of that ancient law, protective solely of lande'd property, which then was primary, but, in our time, only secondary in consider- ation with political economists, in their estimates of the comparative wealth' of nations, and of their advancement in refinement, civilization and power. Therefore, this work, however accurate an exponent of existent law, might happen to prove only of temporary usefulness, if it were not dis- tinguished by characteristics which assure for it a wider range, and con- tinuity of influence. The copiousness of illustration with which it abounds ; the variety of subject which it treats ; the brief, but eminent- ly suggestive notices which it presents of the habits, manners, interests, diverse condition, and, consequently, fluctuating policy belonging to inteoductoet Note. ^ differetf periods of the History of the same People ; together with the incidentally suggested comparison of these with the diversities of opin-' ion and action which marked the cofltemporaneous policy of other nations under differing conditions of progress, customs and interests, will lead the reflective Reader into trains of thought, involving con^ siderations worthy of the gravest attention from every American who loves his Country, glories in its Present, and looks forward with hope, not unmingled with solicitude, to its Future.- The relaxations of the ancient law, that whatever became annexed to the Realty, thenceforth formed parcel thereof, have hitherto been yielded chiefly in favor of Trade and Manufactures ; but it has become a problem of deep interest, and deserving the constant thought of every American Jurist and Statesman, how fer such relaxations should be extended to agriculture — what modifications may be desirable in re- spect of tillage, and meadow, and pasture lands — what measures devised to cause the vast masses of our Agricultural Population to realize the great truth that the manly, independent and essential avocation of the Farmer, places him on even platform with the Manufacturer, the Mer- chant, and the Professions, in all his social and political relations. Notwithstanding the modern heresies. Agriculture is the foundation of National Wealth, and national existence ; Agriculture is the parent of Commerce, and fosterer of Art. The product of the soil is the first result of that primal Blessing which ordained that Man should be the Tiller of the Ground. The Ownership and Cultivation of the Soil, and the domestic associations which then cluster round the local Home, form the strongest links in that chain which binds communities to- gether by the love of Country. Do such local attachments exist in the strength and to the extent which the public welfare demands in the United States? We are proud of the achievements of the Revo- lution ; we are boastful of the golden prosperity of the present Day ; but how many amongst us have been so unfortunate as already to have dared to calculate the value of the Union ! WILLIAM HOGAE". EXTRACT P E E F A C E LATEST ENGLISH EDITION. The former edition of the Treatise oa Fixtures has been long out of print. The number of cases which have arisen upon the subject, since the publication of the first edition, exceeds the aggregate of those which were to be found in the books at that period. In originally preparing the Treatise for the press, an attempt was made for the first time to arrange and methodize this branch of law ; and to extract, from the 'loose and scattered authorities then extant, some definite principles for determining the right of property in Fixtures. It is a satisfaction to the editor to find that the principles there suggested, have, in several instances, since received the countenance of the courts. In availing himself of the modern decisions, the editor has followed the course adopted in the first edition ; and has stated each case some- what fully, when discussing the rights of the particular class of claim- ants to which it more particularl_y refers. But when any principle, re- cognized by the court in deciding upon one class of cases, has been found more or less applicable to another class also ; he has thought it advisable to notice it briefly in the chapter assigned to that other class. He trusts that the facility thus afforded to the practitioner, in investi- gating the claims more immediately under his consideration, will be deemed a sufficient apology for some little repetition. PREFACE THE PIEST EDITION. The branch of law which is esamined in the following pages, has not hitherto been made the subject of any distinct Treatise. The in- vestigation of it, however, seems to be important, since it will be found to present greater difficulties than usually belong to legal researches. This is owing to the refined distinctions, which the law recognizes be- tween real and personal property, and which give rise to many intri- cate questions in respect of property partaking of both these characters. With regard to the Doctrine of Fixtures, which forms the principal subject of the work, it appears singular that so little attention should have been bestowed upon it in any of the modern publications. For it relates to a species of property which, in many instances, is of very great value ; and involves questions of daily occurrence, which affect the rights as weU of landlord and tenant, as of many other classes of individuals in the ordinary relations of society. , It may be thought extraordinary, th^^t upon a subject of such extent and importance, there should be found so small a number of reported decisions. No inference, however, is to be drawn from that circum- stance against the practical utility of a Treatise like the present. For the rights of individuals to property of this description are, in questions of rhinor importance, most usually left to the determination of brokers, whose appraisements are made according to their private opinions of fairness between the parties, or the customs of their trade. And where claims of a more intricate nature have arisen, which it has been thought expedient to submit to the decision of a court of law, they have gen- erally been referred to arbitration, at the instance of the judge at Nisi Prius. For these reasons, therefore, it is apparent that the cases rela- B Viii PKEPAOE TO THE FIRST EDITION. ting to fixtures whicli occur in the books of reports, cannot be consid- ered as a criterion of the number of questions upon the subject that actually arise in practice. It has been the chief object of the present Treatise, to lay down some general principles and rules relative to this species of property. In determining how far this design has been accomplished, some indul- gence will perhaps be allowed, on account of the peculiar state of the law upon the subject. For the Doctrine of Fixtures rests on a series of judicial decisions in contravention of an ancient rule in favor of the freehold. And as these decisions arose out of particular emergencies, and were pronounced at different periods of tipie, it is extremely diffi- cult to reduce them into an uniform system, or to extract from them any principles of general application. With regard to the arrangement of the work, — the rights of a com- mon tenant, and of the executors of tenants for life, in tail and in fee, in respect of fixtures, are discussed in separate chapters. This order, though it has unavoidably occasioned some repetition, will, it is trust- ed, be found very convenient for reference, and may tend to remove the confusion which has frequently been complained of, in distinguish- ing the rights of these several classes of persons. The other descriptions of property which form the subject of the treatise, are examined principally in the chapter concerning the rights of the executor of tenant in fee. In the concluding section of that chapter, the nature and principles of Heir-looms are discussed ; together with the right of property in charters relating to land ; and the claims of the heir against the executor in respect of chattels animate as inci- dent to the inheritance. In the same section a general view is taken of the doctrine of Emblements ; and a separate division has been ap- propriated to an examination of the right of property which accrues in consequence of annexations made to the freehold of the Church. The law relative to Ecclesiastical Dilapidations is also incidentally noticed, in connection with the general subject of the work. The remaining chapters of the first part of the Treatise relate to the transfer of fixtures, considered with reference to the conveyance of them by sale, mortgage, devise, bankruptcy, &c. And in the last chapter some general properties of annexations to the freehold are treated of, more particularly as affecting the rights and liabilities of persons in regard to poor's rates, parochial settlements, &c. PREFACE TO THE FIRST EDITION. ix The second part of the work contains the remedies of parties in re- spect of fixtures ; together with the rights of creditors ; and the criminal law as it affects property attached to the freehold. The rule exempt- ing fixtures from distress is also considered in this place. And, lastly, some curious decisions are noticed upon the subject of Deodands, as applied to the case of personal chattels annexed to land. The Appendix consists of a Digest of the Law of Fixtures in its im- mediate application to landlords and tenants, and out-going and in-com- ing tenants ; and it contains a summary of practical rules and direc- tions respecting the removal, valuation, &c., of fixtures between these parties. It has been framed with a view to obviate the inconvenience that might have been complained of by some readers, if it had been necessary to search for the points of law to which more frequent refer- ence is likely to be made, among the general disquisitions in the body of the work. CONTENTS. PART THE FIRST. ON THE RIGHT OF PROPERTY IN FISTURBS. Page.* Introduction to the Law of Fixtures, . . . , . xxiii CHAPTER I. On the Nature op Fixtures, . ... .1 Nature of the Eight of Removal, . . . * . 6 Legal Effect of the Annexation of Chattels to the Freehold, . . 7 Annexations made alieno solo, . . . 10 CHAPTER II. Op Fixtures, and the Rioht to remote them, as between Landlord and Tenant, 13 Sec. I. Op the Risht op jc Tenabt to remove Trade Fixtures, . 13 General Rule as to Annexations by a Tenant, ... 15 Relaxation in favor of Trade Fixtures, . . . . 16 Principle of the Relaxation, ..... 24 Its Extent, and by what Circumstances it may be affected, . 32 Sec. II. On the Removal bt a Tenant op Things set up por AaRicuLTUEAL Purposes, ...... . 38 Examination of the General Rule upon this subject, . . 42 Sec III. Op the Right op a Tenant to remove Fixtures set up por the Pur- pose OP Trade combined with other Objects, .... 50 Mixed Cases of Fixtures, . . . .51 The Rights of Nurserymen and Gardeners, . . . . 53 Sec. it. Op the eight op a Tenant to remove Fixtures put up por Ornament or Convenience, ........ 55 Principle of the Relaxation in favor of Fixtures for Ornament, &c., 63 Its Extent, &c., . . . . . . . 64 * The paging of this Table of Contents, corresponds with the paging of this American edition. xii CONTENTS. Page. Seo. V. Of the time -when a Tenant mat remove Fixtures as affected by the NAinKE AND DnEATION OF HIS INTEREST IN THE PREMISES, Yl General Rule, . . . • • • ^^ Exceptions to the Rule, . . Seo. TI. Of the BianT of the Tenant in Fixtures, as affected bt the Terms OF THE Tenancy, &o., . • ■ Effect of a Covenant to Eepair, of a subsequent Demise, , . • • of a new Agreement, . . ■ ■ 72 81 82 87 92 92 CHAPTER III. Of the Rioht to Fixtures, bettveen Tenants for Life and in Tail, or their per- sonal Representatives, and the Remainder-man or Reversioner, . 92 Sec. I. Of the Right of the personal Representatives of Tenant fob Life AND in Tail, in respect of Fixtures put up for Trade, or for Trade combined with other purposes. Fixtures for Trade Part of the Personal Estate, Or for Trade combined with the Profits of Land, . . ■ ^^ Extent of the Rule in favor of the Personal Estate, ■ 97 Comparative Rights of different Classes in respect of Fixtures, . 99 Sec. II. Of the Risht of the personal Representatives of Tenant for Life OB in Tail, in respect of Fixtures put up for Ornament or Oonvenienoe, 102 Fixtures put up for Ornament, &c.. Part of the Personal Estate, . 104 Extent of the Rule, .... 105 Sec. III. Of the Riohts of Tenants for Life or in Tail, durino theie Lives, in respect of Fixtures, . .... 106 Right of Tenants for Life, &c., compared with the Rights of their Ex- ecutors, . . . . 108 Sec. IV. Of the Right to Fixtures put up by Ecclesiastical Persons : and HEEEM" OF Dilapidations, . . ' . 109 Rule as to Fixtures in Parsonage House, &c., . . . 110 Doctrine of Dilapidations, . . . Ill CHAPTER W. Of the Right to Fixtures between Heir and Executor ; and herein of Char- ters, Heir-looms, Emblements, &o., . . . 114 Seo. I. Of the Right of the Executor to Fixtures put up for Trade, and for Trade combined with other Objects, . . . 114 Ancient Rule in favor of the Heir and real Estate, . . . 115 Fixtures for Trade, Part of the Personal Estate, . . . 119 Exception as to Things accessary to the Realty, . . . 124 Diversity of Opinion as to the Executor's Claim, . . . 133 Seo. n. Of the Right of the Executor to Fixtures put up for Ornament or Convenience, . . ..... ist Fixtures put up for Ornament, &c.. Part of the Personal Estate, . 143 Conflicting Decisions upon the Subject, .... 150 CONTENTS. xiii Page. Sec. III. Of Chartees, Heie-looms, Emblements, &c., . . 153 Of Charters, 153 Of Heir-looms, ....... 155 Of Deer, Fish, &c., as Incident to the Inheritance, . . .160 Of Things annexed to the Freehold of the Church, . . 162 Of Emblements, . . . . . . ' . 165 CHAPTER V. Of the Teansfee of FixrnEES, by Demise, Sale, Moetgase, Devise, Ac. ; and IN case of BANKEnPTCY, ... ... 1'72 Fixtures pass by Conveyance of Land, &c., . . . . 173 " Fixtures to be taken at a Valuation ;" Meaning of the Stipulation, 179 Purchase of Fixtures by In-coming Tenant, . . . 180 Demise of Premises with Things aflixed, . . . .181 Mortgage of Fixtures, . . . . 182 Bankruptcy, Effect of, . . . . . .188 Devise of Fixtures, ... ... 197 Right of Devisee of Land to Fixtures, ..... 198 Fixtures, how described in WiD, ..... 199 Attestation of Will, .... . . 202 Form of Agreements, &o., respecting Fixtures, . . . 202 Operation of Statute of Frauds, ...... ib. Stamps, ,. . . . . . 204 CHAPTER VL On the Eights and Liabilities of Paeties in eespeot of Land inceeased in Valde BY THE Annexation of Peesonal Chattels, . . . . 20T Poor's Rates — in respect of Fixtures, . . . . . ib. Parochial Settlements, .... . 209 Right of Voting, ....... 214 PART THE SECOND. CHAPTER I. Of the Remedies by Action, &o., in eespeot of Pixtuees, . . 215 Sec. I. Of the Action of Waste, and Case in the natuee of Waste, as ap- plied TO Pixtuees, ....... 215 Writ of Waste, 216 Action on the Case in the Nature of Waste, . . . 218 Case for Permissive Waste, whether maintainable, . . . 221 Sec. IL Of Injunction foe Waste, and Relief in Equity in the Case of Fix- tures, . . . . . . 222 Prohibition at Common Law, '. . . . . . 223 Estrepement of Waste, ... . ib . xiv CONTENTS. Nature of Writ of Injunction, .... Account in Equity for "Waste, ..... Protiibition and Injunction against Ecclesiastical Persons, . Sec. III. Of other Remedies by Aotion in respect of FrxTtrEES, Trespass in respect of Fixtures, .... When maintainable, ...... Whether when Severance and Asportation are a continuous Act, Trover for Fixtures, ...... When maintainable, . ... Whether when Severance and Asportation are a continuous Act, Actions founded upon Contract, .... Assumpsit, &c., for Fixtures, ..... Fixtures how to be described, .... Page. 223 324 227 228 223 ib. 280 232 238 235 240 241 241 CHAPTER II. Of other legal Proceedings in respect op Fixtttres, . . 246 Sec. I. Op the Exemption of Fixtures from Distress, ... ib. General Rule, ....... ib. Principle of the Rule, ...... ib. Application to Things constructively annexed, . . . 24T Sec. II. On seizing Fixtures under legal Process, . . 250 Liability of Tenants' Fixtures to Execution, ... ib. Executions against Owner in Fee, ..... 252 CHAPTER III. Of CErMTNAL Law m its Application to Propeett affixed to the Freehold : wherein of Deodands, . . . . . . . 254 General Rule, ....... ib. Principle of the Rule, ...... ib. Provisions by Statute, .... . 266 Deodands — Ancient Rule of Law in the Case of Things fixed to the Freehold, ........ 258 APPENDIX. Summary of Practical Rules and Directions relating to Fixtures between Landlord and Tenant, . . . 265 No. I. General Rules respecting Fixtures between Landlord and Tenant, pointing out what Fixtures a tenant may take away ; the time with- in which they must be removed, &c. • • • . ib. Forms of Provisions in Leases, &o., as to the Removal, &c., of Fixtures, 272 CONTENTS. XV No. II. Page. Miscellaneous Rules and Directions respecting the Demise, Purchase, Valuation, &c., of Fixtures, between Landlord and Tenant, and be- tween Out-going and In-coming Tenants, . . . 375 Form of Bargain and Sale of Fixtures, .... 277 Other Forms relating to Fixtures, ..... 278 No. III. Appraisement of Fixtures, ..... 281 Stamps, &c. ........ ib. Index, ......... 283 TABLE OF CASES CITED IN THE TEXT AND NOTES OF TEE LONDON EDITION* Allen V. Allen, 248, 322, Anthony v. Haneys, 6, 102. Archer v. Bennet, 218. Aston V. Astou, 142. Atkinson v. Exp., 61, 6fi. Attorney-General v. G-ibbs, 325. Austen, Rep., 144. Avery v. Cheslyn, 4,1, 80, 83, 90. Axminster parish case, 333. B Bacon v. Smith, 276. Barnard v. Leigh, 325. Beatyu. Gibbons, 105, 120. Beck V. Eebow, 73, 184, 219, 247. Bedford election case, 6, 268. Belcher, Exp., 38, 228, 229, 244. Bentley, Exp., 245. Befriman v. Peacock, 69. Berry v. Heard, 300. Birdi;. Ralph, 147, 150. Birch V. Dawson, 76, 87, 184, 250, 310. Blewitt V. Tregonning, 14, 156. Boydell v. M'Michael, 241, 304. Breeks v. Wolfry, 203. Broadwood, Exp., 245. Brown v. Blunden, 109. Brown v. Granville (Lord), 261. Browne v. Ramsden, 148. Bryan v. Whistler, 203. Brysonii. Wylie, 229. 234. Buckhurst's (Lord) case, 1 92. Buckland v. Butterfield, 70, 76, 85, 92. Bulwer v. Bulwer, 147, 149, 211. Burn V. Miller, 120. Burrell v. Lynch, 278. Buxton V. Bedell, 257. C Cadogan v. Kennett, 197. Carlisle's (Bishop) case, 146. Carver v. Pierce, 156. Gave w. Cave, 74, 183. Ghannon v. Patch, 69, 291. Chanter v. Dickenson, 256, 257. Clark 41. Bulwer, 310, 312. Clark 1). Calvert, 302. Clayton v. Burtenshaw, 256. Clerk V. Crownshaw, 235. Colegrave v. Dias Santos, 76, 185, 216. Cook's case. 26, 53. Coombs V. Beaumont, 224, 235. Corder v. Drakeford, 256. Corven's ease, 146, 195, 203. Coster V. Cowling, 257. Cotteril v. Apsey, 312. Cotton, Exp., 229. Cox«;. Godsalve, 212. Cramp v. Bayley, (Clerk), 204. Culling V. Tuffnal, 43, 44. D Dale, Exp. Dalton V. Whlttem, 305, 309, 318. Darby v. Harris, 318. Darcy (Lord) v. Asquith, 53, 88, 315. Davies v. Powell, 200, 316. Davis V. Connop, 302. Davis V. Eyton, 211. Davis V. .Jones, 4, 43, 295. Day D.Austin, 26, 71, 321. Day V. Merry, 142. Dean v. Allalley, 34, 37, 88, 119. Deardon v. Evans, 14. Do Tastet v. "Walker, 240. Doe dem.Freeland v. Burt, 118, 217. * The paging of this Table of Cases cited, corresponds with the paging of the latest London edition of the original text, which will be found on the margin of each page ; so, also, does the paging of the Table of 181. INTRODUCTION THE LAW OF FIXTURES. The Law of Fixtures affords a remarkable illustration of tte strong tendency which may be observed in the jurisprudence of a country, to adapt itself to the varying manners and necessities of society. The privileges which exist in respect of this species of property are in de- rogation of the principles of the common law, and have been gradually introduced and established by the judges, who, in this instance, have exercised a sort of legislative authority. The strict rules of the law re- specting waste, which had their origin in feudal times, were found to be incompatible with the notions of property entertained in a more civilized age ; and as the legislature did not interfere to abolish them, it became indispensably necessary that their practical operation should be modified and controlled. The courts, therefore, although they did not venture to abandon altogether the principle of the ancient law, considered themselves at liberty to mitigate its rigor ; and by a series of decisions they have, from time to time, engrafted upon it the various exceptions and qualifications which form the subject of consideration in the following Treatise. In the present introductory Chapter, it is proposed to examine the nature of the several innovations which have thus been made upon the maxims of feudal policy ; in order that a distinct view may be taken of the steps by which the courts have proceeded towards perfecting this branch of the law. And, for this purpose, it will be necessary, in the first place, to consider the origin of the general rule of law in re- spect of annexations to the freehold. The rule of law, that whatever is affixed to the freehold becomes essentially a part of it, and is subjected to the same rights of property as the land itself, originated in a state of manners very different from c xxiv INTEODUCTION. that which prevails in the present day. The fee simple was not in ancient times divided into a multiplicity of particular. estates ; personal property was scarcely regarded as an object of concern to the legisla- ture; andthe proprietors of the freehold were the authors of those very laws which settled the conflicting claims of themselves and their tenants. Notwithstanding the great change which has taken place in the habits and opinions of society, this rule in favor of the freeholder still remains unaltered ; and it must be regarded as the general rule of law at the present day, although it appears to be both inequitable in its principle, and injurious in its effects to the spirit of improvement. It is curious to observe the first attempts which were made by the courts to afford rehef from the strictness of the ancient law. Much hesitation is apparent in the early decisions as reported in the Year Books and other authorities ; and many subtle distinctions are there relied upon by the judges, which have since been very properly ex- ploded. It appears, however, that so early as in the reign of Henry VII, an exception from the law respecting annexations to the freehold was recognized in the particular case of tenants ; and these were said to be at liberty to remove some species of articles, if erected at their own expense on the demised premises. It has indeed been represented that the courts, at the period spoken of, allowed this privilege to tenants from a politic concern for the interests of trade and manufactures ; but it seems very doubtful whether any principle of so liberal a character is to be traced in their judgments. An important step was however made, when the courts thus assumed the power of restraining the rights of the freeholder without the express sanction of the legislature. The modern authorities proceeded on more unequivocal principles ; and from time to time they introduced exceptions of so extensive a nature as almost to have sabverted the general rule. For, in the first place, it has been the recognized doctrine of the courts, ever since the time of Queen Anne, that a relaxation should be allowed in favor of erections and utensils put up for tradi7ig arid manufacturing purposes. A very important description of property was thus exempted from the operation of the ancient rule. And this innovation was sanctioned by the judges, not because it was warranted by any particular law, but altogether upon an enlarged principle of public policy. In progress of time other exceptions were admitted. For it was found that the state of refinement to which the country had arrived in INTRODUCTION. XXV matters of domestic furniture and decoration^ rendered the rules of tlie feudal law incompatible with the general convenience of society. Ac- cordingly, in this instance also, the judges found it expedient to mod- ify the ancient law, with the view of adapting it to the manners of the times ; and by a series of determinations a further exception in favor of articles for ornament and domestic use was gradually introduced. After the relaxation in favor of trade had been long and clearly es- tablished, an attempt was made to apply the principle of that excep- tion to the case of agricultural erections. This attempt was warranted by judicial opinions of high authority, and seems to derive great sup- port from analogy and general reasoning. But, in this instance, as no direct precedent could be found in which erections or buildings for the purpose of agriculture had been considered as privileged, the Court of King's Bench refused to countenance this further innovation upon the general rule. The exigencies of society, however, had, previously to the last men- tioned determination, rendered it necessary that the ancient law should receive some qualification in the case of erections made with a view to the enjoyment of the profits of land. And accordingly there have been several decisions in which an exception, similar to that in favor of trade, has been allowed in respect of steam engines and other ma- chinery for the purpose of working mines, collieries, &c. Erections of this description have usually been considered as a species of trade fix- tures, and removable on the same grounds. It is obvious, however, that the privilege of trade, as regarded in this point of view, is con- strued with great latitude ; and it must, consequently, have the effect of restraining, within a very narrow compass, the rule which prevails with respect to agricultural erections.(a) With respect to the extent to which these several exceptions have been carried, it is to be observed, that the judges, in admitting the in- novations in question, have evinced a great anxiety to remove from (a) According to the decisions, steam engines in collieries and cider nulls may be removed, because, as is said by Lord BUenborougb, in Elwes v. Maw, they are used in a species oil/rode- Lord Ellenborough, however, considered salt pans to be too much connected with the realty to be entitled to the same privilege. Lord Mansfield, on the other hand, was of opinion that they might be removed between landlord and tenant, but not by the executor of an owner in fee. Upon this subject an important decision has been recently pronounced in the House of Lords. XXvi INTRODUCTION. themselves the charge of infringing upon ancient principles, or of af- fording a ground for future* encroachment. They have accordingly taken great pains to support their decisions by a variety of reasons de- • rived from the facts of each particular case. And hence it happens, that in questions respecting the right to fixtures, it is in general neces- sary not only to inquire whether an article, its object and purpose con- sidered, falls -within any of the admitted exceptions, but to advert also to many other incidental circumstances, which have occasionally been relied upon in the judgments of the courts.(a) And, indeed, where there is a direct precedent in favor of the re- moval of a particular fixture, the right of the claimant may still be subject to great uncertainty, if he does not stand precisely in the same situation as the party who has been held entitled to remove it. For the courts have repeatedly affirmed, that the exceptions from the ancient rule of law have been carried to a different extent in the several cases of landlord and tenant, executor of tenant for life or in tail and re- mainder-man or reversioner, and executor of tenant in fee and the heir. And yet the limits within which the privileges of these parties are re- spectively confined are nowhere pointed out ; neither have any satisfac- tory reasons been assigned by the courts for the distinctions thus laid down, from a consideration of which the rights of these several classes of individuals might be inferred. In the course of the preceding remarks, the reader has been pre- sented with a general outline of the state of the law relating to the doctrine of fixtures. And from this view of the subject, he will per- haps be of opinion, that further improvements'are requisite for render- ing this branch of law at once intelligible in its principles, and precise in its terms. And for this purpose it would seem, in the first place, desirable that no change of property should result from the mere fact of annexing a personal chattel to the freehold, unless in cases in which some principle intervened which might be deemed reasonable in the present day. For it seems a reflection upon the jurisprudence of the country, that a general rule of law which is productive of much in- (o) In the case of BwMand v. Butterfleld,J^h. J. Dallas states the law as to the privilege in favor of ornamental fixtures in these terms : — " Matters of ornament may or may not be removable, and whether they are so or not, must depend on the facts of each particular case." See, also, 6 Bing. 439. INTRODUCTION. xxvii convenience to the public, should have np better foundation than the motives of feudal policy.(a) But, if the right of removal is still to.be regarded as an exaeptlon instead of constituting the general rule, it ought to be extended as far (a) "WTien the rules of our own jurisprudence appear open to animadversion, it may be useful to consult the writings of foreigners, with a view to ascertain the nature of the pro- visions which, in a similar state of manners, seem to be best suited to the wants and general convenience of society. From such an inquiry in the present instance, it may perhaps be thought to result, that notwithstanding the rule of the English law may, as a general rule, appear objectionable, yet that particular cases might be mentioned, in which it would be consistent with a just and reasonable principle, that the property in things fixed to the free- hold should be transferred to the ultimate proprietor of the soil. Upon the subject of fix- fares, it seems to be the more general opinion among the writers on French law, that in or- dinary cases a landlord is not entitled to any additions made by his tenant, and can only in- sist on his leaving the premises in the condition they were in at the commencement of his term ; on this principle, that "nemo detrimento alterimhcupletior fieri potest," There is, how- ever, an exception in favor of tlie landlord in oasS where improvements have been made with the obvious design of permanent annexation, or where to remove them must occasion their entire destruction : because in this case the landlord would be prejudiced without any benefit resulting to the tenant. In some oases, also, the French authors think that the land- lord will have a right to improvements made by the tenant, on offering him a sum of money which wiU enable him to procure other things of the same descriptio ;i . And this is considered to be the law in respect of trees planted by a tenant, unless in a nursery gound. The land- lord, they say, is entitled to the growing trees on tendering the value of the wood. The same rule, however, does not hold when the matters annexed by the tenant are of a rare or precious description, and for which he may be supposed to have a particular affection. Vide Desgodets, Lois des Batimens ; Notes sur Desgodets, pa/r Goupy; Lepage, Lois des Batimens ; Traite de Locations, par Leopold. See, also. Code Civil, Liv. 2, tit. 1, art. 51T, et seq. ; 534, et seq. According to the Code of the Civil Law, the rule upon these questions is, that such movables as are-fixed to the freehold, perpetui usus causa are, therefore, justly deemed parts of it. See Dig. Lib. 19, tit. 1, 13, sees. 14, 18. Just. Inst. Lib. 2, tit. 1, sec. 22, et seq., (p. 84, Harris' edition.) The following distinguished commentators define the rules of the Ro- man Law as to fixtures with much accuracy : Mackledey's Comp. Gen. part, Div. 3, sees. 14Y, 153, 154; Sp. Pt. bookl, ch. 2, tit. 2, sec. 268. Dr. Warkoenig's Comm. Lib. 1, ch. 3, sees. 4, 8, and Institutiones by the same learned author. Lib. 2, ch. 1, tit. 4, sec. 225, et seq. ; Voets Comm. ad Pandect. Lib. 1, tit. 8, parag. 5 ; Dr. "Wood's Inst, book 2, ch. 3. Arti- ficial accessions ; Taylor's El. Property, Res immdbiles, p. 4'!5, 3d ed. For the rules as adopted by the law of Scotland, in regard to fixtui^s, the following writers may be con- sulted : Erskine's Inst, book 2, tit. 2, Bell's Prine. sees. 743, 14*70, et seq. ; Bell's Commenta- ries, Vol. I, p. 649 ; Vol. II, pages 2, 3 ; Stair's Inst, book 2, tit. 1, sees. 29, ei seq.; 39, etseq. And for the decisions, see Shaw's Dig. Tit. Heritable or Movable; by Accession, p. 544. For the law as established in America, see Kent's Commentaries on American Law, Vol. 11, pages 342, 347. For the Prussian Law of Fixtures, Pertinenz-stucke, (things appurtenant or annexed,) see Allgemeines Landrecht fur die Preussischen Staaten. Erster Theil, Zwei- ter Titel, sees. 42, 108 ; or the French translation, Code General pour les Etats Prussiens Premiere Partie, tit. 2, sees. 42, 77, et seq. The reader will find the rules respecting fixtures, not only in the English Law, but in the Civil Law, and the codes of other nations, collected n Surge's Commentaries on Colonial and Foreign Laws, Vol II, p. 6, et seq. XXviii INTEODUOTION. as the principles of policy and public convenience will allow. If, therefore, it is considered that the purposes to which buildings, machi- nery or utensils are appropriated, ought to be the criterion by which that right is to be tried, these purposes should at least not be arbitra- rily selected, nor too narrowly construed. Upon this ground it may, perhaps, be thought advisable, that some of the more refined distinc- tions which the courts have established with regard to fixtures should be abolished; and, in particular, the rule which excludes agricultural tenants from the protection afforded to tenants in trade. Again, it may, perhaps, be deemed expedient, even with respect to the several species of fixtures privileged by the law, that the mere pur- poses for which they are used, should not of themselves be conclusive upon the question of removal. It ought, however, to appear, by plain and determinate rules, what are the particular considerations by which the right of removal may be Mialified and restrained. For it is not sufficient that the nature of the exceptions to the general rule is ascer- tained, if the privilege which these exceptions confer is, in some cases, dependent on collateral circumstances, while the effect and operation of those circumstances is left altogether unsettled. Lastly, if satisfactory reasons of law and policy, can be suggested for admitting a greater relaxation, in favor of certain classes of individuals than of others, it ought to be precisely known in what the difterence between their respective rights consists. And, indeed, if a definite rule upon this subject were to be laid down, it would tend to remove much of the perplexity which, in the present state of the law, is expe- rienced, in respect of the claims of personal representatives ; and would at once put an end to the doubt which now exists, as to the particular cases in which analogical reasoning is admissible, and those in which it fails. From the preceding examination of the ancient and modern princi- ples of the law, relative to the' subject of fixtures, it is hoped that the reader will be able to exercise a clearer judgment on the questions about to be discussed in the ensuing pages. The controversies respect- ing property of this nature, which arose Avithin the city of London as early as in the fourteenth century, were considered of so much import ance, that a particular ordinance was enacted for the adjustment of them.(a) And in the present day, it cannot fail to be an object of (a) In the mayoralty of Adam Bury, 39 Ed. Ill, 1365. It may not be uninteresting to the INTRODUCTION. xxix public interest, to determine by wise and intelligible rules, the rights of individuals with respect to a species of possessions, the value of which will always increase in a country, in proportion to the progress of civilisation and refinement. reader to see a copy of this curious document. It is, therefore, added in its original form ; together with a confirmation of it hy the Mayor and Aldermen of London. It is worthy of remarli, that Seqeant Hill, in his valuable MS. notes to the 15th Vol. of Viner's Abridg- ment, in the Library of Lincoln's Inn, p. 43, notices this document ; and he calls it an Ordi- nance oi Pa/rliament He refers to Bntiok's History of London, Vol. I, p. 258, where it is in like manner called an Ordinance of ParUament. Bntick appears to have extracted his ac- count from Maitland's History, Vol. I, book 1, p. 131 ; but it is observable that it is there described simply as an Ordinance. The document in question, appears to be merely an Ordinance of the citizens of London, enacted at one of their dehberative courts, or general assemblies ; and afterwards confirmed by an act of the Court of Mayor and Aldermen. It can hardly be considered an original act of the Common Council. For it was not till the reign of Edward IH, that an attempt was first made towards the regular constitution of the court of common council as a legislative and representativeftody ; and it was not fully established upon the present representative system tiU the reign of Richard II. As to the nature of an ordinance, see 4 Inst. 25. ANCIENT KECOEDS. THE FOLLOWING ARE THE ANCIENT RECOEDS REFERRED TO IN THE NOTE IN PAGE XXVIII. The Ordynaunce of the Cite for Tenaunts of Houses: what thingis they shall not remeue ait theyr departinge. Intrat' in libro cum littera G. folio c. Ixxiiij. tempore Ade Bury tunc Majoris A° Eegs Edwardi Tercij. xxxix. Oedinatum est cfuod si aliquis codicat tentm vel domes in civitate Londen vel in subbarbijs eiusdem civitatis tenendum ad terminum vite vel annorum vel de anno in annum vel de q'rterio in q'rteriu, si huius inteneus aliqua appencia seu alia asiamenta in huiusmodi tentius vel in domibus fecerit, eciam ad merenius decs tntos vel demos clauos feries aut lignees attachiamet nolicebit tali tenenti huiusmodi appecicia seu asiamenta in fine terminu vel aliquo alio tempore abradicare sed semper permanebut dno soli vt percelli eiusdem. A Confirmacion of the same Acte he the Mayre and Aldermen. Where as nowe of late amonge dyuers people was sprengen a mater ef doAvt vpon tlie most olde eustume bad & vsed iii tbis cyte of Lodon of suche thingis which by tenatis terme ef lyf er yeris ben affixed vnto houses wythout speciall licence of the ownar of the soyle, whether they owe or remayne vnto the ewnar ef the soyle as percell of y" same or ellis wheder it shalbe lefull vnto such tenauntis on thende of her terme, all such thingis aifixed to remeue. Wherupon olde bekis seen, and many recerdis olde precessis and iugementis of the sayde cyte, it was declared by the Mayre and th' Aldermen for an olde prescribed custum of the cyte aforesayde. That alle suche easmentis fixed vnto houses or to seile by suche tenements wythout special and expresse lycence of the ownar ef the soile. Yf they be affixed w' najdes ef irne or ef tree as pentises, glasse lockis benchis or ony suche ether, or ef ellis yf they bee af&xed w' morter or lyme or ef erther or ani ether morter as forneis leedis candorus chemyneis corbels pauemettis er such ether, or ellis yf plants be roetid in the greud as vynes trees graffe steuks trees of frute, &c., yt shal net be leeful vnto such tenauntis in y« ende of her terme or any other tyme therin nor any of them te put away moue er pluk vp in any wyse, but y' they shall alway remayn te the owner of the soyle as percels ef y' same soyle er tenement. [See Arnold's Ghronick, fola. 13'7, 138. TREATISE LAW OF FIXTURES, ETC., ETC. PART I. ON THE EIGHT OF PROPERTY IN FIXTURES. CHAPTER I. ON THE NATURE OF FIXTURES. The term fixtures is used by -writers witli various sigiiifica-Th8t«nnjbi«Br« tions ; but it is alway^ applied to articles of a personal nature, which have been affixed to land. On some occasions, no further idea is intended to be conveyed by the term, than the simple fact of annexation to the freehold ; and hence have arisen the popular expressions of landlord's fix- tures, and tenant's fixtures, of removable and irremovable fix- tures. The name of fixtures is also sometimes applied to things ex- pressly to denote that they cannot legally *be removed ; as where [*2] they have been annexed to a house, &c., and the party who has affixed them is not at liberty afterwards to sever and take them away. Thus it has been said, that an article shall fall in with the lease to the landlord, or descend to the heir with the inherit- ance, because it is a fixture. 1 2 ON THE NATUEE OP FIXTURES. [PART I. Fixtures rtefloed. There is, however, another sense in which the term fixtures is very frequently used, and which it is thought expedient to adopt in the following treatise, viz. : as denoting those personal chattels which have been, annexed to land, and which may be afterwards severed, and removed by the party who has annexed them, or his personal representative, against the will of the owner of the freehold.(a) This definition divides itself into two branches ; first, a con- sideration of what is meant by annexation ; secondly, of what is intended by a right of removal against the will of the owner of the freehold. Manner of an- With rcspcct to the first branch of the definition, it is neces- sary, m order to constitute a fixture, that the article m question should be let into or united to the land, or to some substance previously connected with the land. It is not enough that it has been laid upon the land, and brought into contact with it ; the definition requires something more than mere juxtaposition ; as, that the soil shall have been displaced for the purpose of re- ceiving the article, or that the chattel should be cemented, or [*3] otherwise ^fastened to some fabric previously attached to the ground. Hence, there is a numerous class of decisions that may be con- sidered as part of the law of fixtures, the object of which is to determine, whether a thing that has bee§ placed upon the land is actually affixed to it or not. If it is found, that in point of fact, the connection with the soil does not amount to complete annexation, and that the thing is not strictly afiixed, it remains in that case, to all intents and purposes, a mere personal chattel, and is in the same situation as any other chattel which has never been brought upon the premises. It may perhaps be useful to explain this branch of the defini- tion more particularly by examples. And a simple method of doing this, will be by pointing out a few of the most important instances where chattels have been to a certain degree connected (a) The reason for preferring the use of the term in this sense, will appear in the course of the chapter. Since its adoption ki the first edition of the work it has been recognized by Mr. Baron Parlte, in EaMen v. Bunder, 1 Cr. M. & R. 26G ; 3 Tyr. 959. See, also, Wms. on Exrs., Vol. II, p. 609, n., and Ex parte Seynal, 2 Mont. D. & D. 444, CHAP. I.] ON THE NATURE OF FIXTURES. , 3 ■wifh the soil, but not to an extent amounting to legal annexa- tion ; and from wliicli circumstance alone, the property has been pronounced not to fall within the denomination of fixtures. Of these, an instance may be mentioned from Buller's iVisi^|'ent°°anne'M- Prius, p. 34 • and it is the more remarkable, because it was not ''°''- till later times, when the doctrine of fixtures came to be better understood, that the decision of the case in question was treated as resting upon the circumstance of imperfect annexation to the freehold, the determination having originally proceeded on a dif- ferent ground. It is the case of a barn, before Ch. J. Treby, at Hereford, which is described as having been built upon pattens, or *blocks of wood lying upon the ground, but the building it- [*4] self not fixed in or to the ground. The explanation which has been given of this case by Lord Ellenborough, is, that the party who erected the barn might unquestionably treat it as a mere movable chattel, because " the terms of the statement exclude it from being considered as a fixture : it was not fixed in or to the ground."{a) In another case which arose out of the bankrupt laws, and respected the right of the assignees to goods and chattels in the disposition of the bankrupt, under the statute 21 Jac. I, ch. 19, the property in dispute was the stock of a distiller, \vhich con- sisted of certain stills set in brick- work, and let into the ground ; certain vats, supported by and resting upon brick-work and timber, but which were not fixed in the ground ; and some other vats standing on horses, or frames of wood, which also were not let into the ground, but stood upon the floor. In this case, the court thought that there was a material distinction between the vats, &c., that were actually affixed to the ground, and those that were placed upon brick- work Or frames ; . these latter they con- sidered to be mere goods and chattels, from the mode in which they were stated to be connected with the premises. And, ac- cordingly, the determination of the case proceeded upon this distinction.(6) A further instance occurs in a subsequent decision, (c) The property in dispute in this case, consisted of certain pieces of (o) Elwes V. Maw, 3 East, 55. (6) Horn v. Baker, 9 East, 215. (c) Davis V. Jones, 2 Bar. & Aid. 165. 4 ON THE NATURE OF EIXTXJRES- [PART I. machinery called jibs, tte description of wMcli was as follows : [*5] Certain caps *and steps of timber were fixed into a building, and the jibs were placed in these caps or steps, and are the uprights that turn round the work in the caps and steps ; they were fast- ened by pins above and below, and might be taken in and out of the caps or steps without injuring them or the buildings, but could not be removed without being a little injured themselves. The Court of King's Bench, on this occasion, thought that the question before them depended upon a conclusion of fact, to be drawn from the matters stated in the case, and not upon any point of law ; and they -weve of opinion, that these jibs, from their mode of construction, were not properly fixtures at all, but mere personal chattels.(a) Again, in a still more modern case, a barn built of wood rested on, but was not fastened by mortar or otherwise, to the caps of certain blocks of stones called stadles, which were fixed into the ground or let into brick-work ; the brick-work being in part built in and let into the ground. The barn rested on the foun- dation by its own weight alone. It was held that such an erec- tion was not united to the freehold, and that it formed no part ofit.(&) Some further illustrations of this principle will be found in several of the cases referred to in the course of the woi'k.(c) And r*g] from all the authorities, it will '"'clearly appear that to constitute a fixture in its strict sense, there must be a substantial and per- (o) The same explanation is given of this case hy Parke, B., in the ease of Min- shall V. Lloyd, 2 Mee & Wal. 459. It seems difficult, however, to explain satisfac- torily some of the facts of the case upon the principle relied upon : for the jibs ap- pear to have been parts of an entire machine fastened to other parts which are stated to have been permanently affixed to the freehold. (6) Wanshrough v. Makm, i Bar. & E. 884. (c) See the instance of a varnish-house built on a wooden plate lying on briok- •work. Penion v. Bobart, 4 Esp. N. P. 33 ; 2 B. 88, and explained post, ch. 2, sec. 1, 5 ; a stable on rollers, 1 Hen. Bl, 259 ; a post windmiU, R. v. Ink. of Londonthorpe, 8 T. R. 377; Steward Y. Lomhe, 1 Brod. & B. 403; a windmill resting on a brick foundation, R. v. Olley, 1 Bar. & Ad. 161. In Ward's case, (4 Leon. 241,) it was said to have been adjudged, Ihat if a mill be set upon posts no waste lieth for it. In the' Bedford Election case, (1785, 2 Lud. case 12,) a windmill fixed on a post upon pattens, in a foundation of brick-work, was held a freehold estate. See further, Kinupton v. Eve, 2 Yes. & B. 349 ; Hedges' case. Leach Or. C. 201 ; 2 Stark. N". P. 0. 403 ■ An- ihony v. Haneys, 8 Bing. 186. And see the mention made of doors hung upon gymolds, Moor, 177, wiih which compare Shep. Touch. 470; and Maniv. GollinSf cited in Wood v. Eeioiii, 14 Law J. Rep. (Q. B.) 241. CHAP. I.] ON THE NATURE OF FIXTURES. manent annexation to the freehold itself, or to something con- nected with the freehold, (a) [1] (a) What will amount to a complete annexation, as by nails, screws, &o., see the eases referred to in ch. 2, sec. 4 The reader should be apprised, that there are certain peculiar eases of coTistmctive annexation, as in the instance of keys, &c., be- longing to a house. Liford's case, 11 Co. 60. Windows or doors hanging or serving to the house. Shep. Touch. 4T0. So mill-stones removed for picking. Post, ch. 4, sec. 1, and oh. 5. And see the section relating to heir-looms, &o., in chap. 4, post. In these instances of constructive annexations, objects which are really chattels are, for certain purposes, considered to be annexed to the freehold ; but nevertheless they do not acquire all the incidents of realty ; for example, trover may be brought for them Uke other chattels. [1] In Beerman.ee v. Vernoy, (6 J. R. 5,) relating to a sale of land, on which was a bark mill, and stone for grinding bark to be used in a tannery, it was held to be the better opinion that the hark mill was personal property, because the mill stone with the buUding eovering it, was necessary to the tanning business, which is a matter of a personal nature. In Oressonv. Stout, (17 J. R. 116, 121,) Piatt, Justice, gave the opinion that frames in a factory for spinning flax a;nd tow, although fastened by up- right pieces extending to the upper floor, and cleats nailed to the floor round the feet, neither of the machines being nailed to the building, would not be considered part of the freehold, and might be levied on as personal property on fi. fa. against the owner, but the question was not finally decided. In tliis case the judgment debtor owned the fee subject to a mortgage ; had he been mere tenant for life or years, the machinery erected by him would no doubt have been subject to execution against him. But the dictum of Piatt, J., was followed with respect to cotton ma- chinery ; the posts of which were fastened to the floor by wooden screws set into the floor — by unscrewing, the machinery could be removed without injury to the building. Swift v. Thompson, 1 Conn. Rep. 63. Daggett, J., said, "We resort to the criterion established by the common law, could the property be removed with- out injury to the freehold ? The case finds this fact: this then should satisfy ua." These views are sustained in the strong case of Gale v. Ward, (14 Mass. R. 352 ;) there the owner of the freehold had carding machines not nailed nor attached to the freehold, but too large to be taken out of the door, unless taken to pieces ; Parker, J. said, " they must be considered personal property, because although in some sense attached to the Ireehold, they could easily be disconnected and set up and used in another~building; the relaxation of the ancient doctrine has been in favor of tenants against landlords, but the principle is correct in every view." But Union Bank v. Emerson, (15 Mass. Rep, 159,) narrows the general reasons of Gale v. Ward, which case is also questioned in Kittridge v. Wood, (3 New Hamp. Rep. 506 ;) in this case, and in Whiting v, Brasiow, (4 Pick. 310,) and in The Case of the Olympic Theatre, (2 Browne, 279, 285,) the court recognized the distinction in favor of tenants, but ap- pear to consider the rule as very strict against the heir as between him and the exe- cutor ; which is said to be the same in respect of fixtures, as between vendor and vendee. Holmes v. Tremper, 20 J. R. 30; Miller v. Plumb, 6 Cowen, 665. In The Case of the Olympic Theatre, the court say that when the instrument is accessary to a thing of personal nature, as carrying on a trade, it is to be considered a chattel ; but if it be a necessary accessary to the enjoyment of the inheritance, it is to be con- sidered part of the inheritance ; this rule, as broad as that in Heermxmce and Vernoy, 6 ON THE NATURE OF FIXTURES. [PART I. Mature of the With respect to tlie right mentioned in the second branch of ng t otremoTai. ^^^ (jggjji^iQQ — yi^. : of Severing and removing an article annexed to the land — ^it is a circumstance of ordinary occurrence, that persons having the present interest and possession of land, whether as tenants for years, for life, or in fee, make annexations to the freehold, exclusively for their own convenience or profit, either by placing an erection on the soil itself, or by affixing some personal chattel to a house or other building that' has been already annexed to the soil. Now, in respect of many of these annexations, if the individuals who put them up, or their personal [*7] Representatives, were afterwards to detach and remove them from the freehold, they would be subject, according to the gen- eral rule of law, to an action of waste or trespass, at the suit of the reversioner, or of the heir succeeding to the estate. But there are certain species of annexations that are excepted out of this general rule. "With respect to these, the right of property in them is not, as in other cases, abandoned to the land owner by their being affixed to the freehold ; but they may be again separated from the land, and taken away, against the will of those persons who would have become entitled, to them by reason of thSir ownership in the soil. It is of the right to remove an- nexations of this description that it is proposed to treat in the present work. Upon what it de- And in ordcT to explain more fully ^e nature of the privilege ■ here spoken of, it will be necessary briefly to point out the prin- cipal considerations upon which questions respecting the right to remove fixtures have turned ; reserving, however, for another place, the more detailed examination of them. These consider- > ations are, the nature of the thing affixed, whether it was a chat- tel, in gross or in part, before it was put up. The situation of the party claiming the right, as the executor of a tenant in fee, of tenant in tail, or tenant for life, or the tenant of a chattel inter- est ; and, with respect to him, the continuance of his right after the expiration of his term, and redelivery of possession to his landlord. Again, arguments derived from the intention of the .- parties in making the annexation, have been used in several of the judicial decisions. Others have been drawn from the corn- has, however not been adopted in Pennsylvania. See Gray v. Soldship, 17 Serg. & Rawl. 413. In Milkr v. Plumb, (6 Cowen, 665,) the distinction between the relation of vendor and vendee, tenant and landlord, is distinctly considered and recognized. See, also, Reynolds v. Shuler, 5 Cowen, 323, and Raymond v. White, 1 Cowen, 319. CHAP. 1] ON THE NATURE OP FIXTURES. 7 parative value of the fixture, and the land in a state of ""union, [*8] and when disunited. And so the effect of custom, and the injury occasioned to the freehold by the removal, have respectively been relied upon. But the great and leading principle which has governed all the decisions relating to the doctrine of fixtures, is the purpose and object for which the annexation has been made ; that is to say, whether it was for the purpose of trade, for agricul- ture, for ornament merely, or for the general improvement of the estate. It is upon these different grounds, generally, however, upon some combination of them, that the courts both of law arid equity have ascertained and supported the right of property in" fixtures. Now, from a review of these several considerations, it will be '"''>°''"'''»™ *« ' _ ' rights of the seen, that the right of removing fixtures is of a very different »™6r of ttees- description from that by which the proprietor of land severs and removes property of a personal nature, which has been annexed to his own freehold. In this latter case, the proprietor exercises the same right to all purposes, that he enjoys in respect of cut- ting down trees, or doing any other act as owner of the land : it is a right arising altogether out of ownership of estate. But where an individual, under the privilege conferred by the law of fixtures, separates and removes a personal chattel which has been affixed to the soil by himself or those under whom he claims, the right exercised by him does not arise merely out of an interest in the land, but is a special privilege allowed by the law in certain cases only, and in favor of particular classes of persons ; and it is, moreover, a privilege in derogation of the rights of the individual to whom the property would appertain as owner of the estate. It appears, however, from an attention to the principles on which *the power of removal in these cases [*9] depends, that it is always connected with some interest in the land, and is not simply collateral to it : it is a power coupled with an interest.(a) In the definition of fixtures that has been given above, a prin- tegai effect of annexfttion. ^*<'- '»"" certain large masses of stone, had from time to time, fallen from the cliffs above upon the field of a copyholder, and had thereby become imbedded in the soil : there was no evidence to show ■when any particular portion of them had fallen within living memory. It was held that these stones must be considered a part of the soil below, belonging to the lord, and, therefore, his property, although the cliffs above did not belong to him ; and that the copyholder was not entitled to take them for his own profit.(c?) In the case of a chattel placed on the soil of another, but sev- miii hatch, 4c., -^ _ ' placed on. arable from it, it has been held in a very late case in the Court (a) This case is thus reported in Salt. 6i8. One was ordered by the judge of assize to be hanged in chains. The officer hung him in privaio soh. The owner brought trespass, and upon not guilty, the jury found for the defendant ; and the court would not grant a new trial, it being done for convenience of place, and not to affront the owner. (6) As to the case of trees blown down, or boughs that in lopping fall on to the soil of another, or fruit that drops from a tree growing in a hedge into the field of another, and that in such cases the property is not lost. See Tear Book, 6 Ed. IV, 18; Latch, 13 ; Poph. 161 ; Vin. Ab. Tresp. H.; Com. Dig. Plead. 3 M. 39. (c) Bearden v. Evans, 5 M. & W. 11. (d) See, also, Blewiti v. Tregonning, 3 Ad. &. E. 554, that sand drifted and blown from the sea-shore upon a man's close, becomes part of it, and belongs to the owner of the close. 12 ON THE NATUEE OF FIXTURES. [PART I. [*16] of Q. B., that this does not necessarily *become part of the free- hold, even though it may be accessorial to a principal thing that is itself connected with the soil : but that it is always matter of evidence whether it belongs to the freehold or not. Thus, the owner of a mill had placed a hatch and fender for the use of his mill upon a stream of water, where neither the banks of the stream, nor the adjoining land belonged to him. The fender moved up and down in a groove fixed to the brick-work, and when down, rested upon a sill also fixed to the brick-work. It was held that this fender did not necessarily become part of the freehold ; but that it was matter of evidence whether by agree- ment it did not remain the property of the original owner, though placed on the soil of another, (a) Door on hinges. In the abovc case, it was said by counsel in the argument, that it had been decided in a case of Mant v. Collins, Q. B. Trin. T. 1842, not reported, that a door which hung upon hinges, and which could be removed by lifting it up, was a personal chattel. Upon which Lord Denman, C. J., observed, that the case might be taken to be law to this extent, that it is matter of evidence how such a thing came where it is, and in what manner it was intended to be used and enjoyed.(Z)) Adverting now to the more immediate subject of this chapter, in which has been described the general nature of the species of property, to which it is proposed to apply the denomination of [*16] fixtures, it is *intended in the ensuing chapters, to consider by what persons, and under what circumstances, the right of re- moval, as above explained, may be exercised and enforced.(c) [a) Wood V. Hewitt, 14 Law J. R. (Q. B.) 247. East. T. 1846. (6) The reader may see further upon these subjects in the case of Welsh v. Nash, 8 E. 394, observed on in part 2, post: also in 6 E. 161 ; 5 B & Aid. 603 ; Gilb. Evid. 209, el seq. Swin. on "Wills, part 1, sec. 20, (c) With respect to the particular points referred to in the last preceding pages, it may be observed that the rules of the civil law, in these and the like questions, ap- pear to correspond with our own. The maxims of civil law, applicable to such oases, are "solo cedii quod solo irmdificatur." " Solo cedit quodsolo implantatur." The extent and application of these principles in the civil law may be found fully explained in the following authorities : Halifax Anal, book 2, oh. 2, sec. 15 ; Brown's Comp. book 2, ch. 7, sec. 2, tit. Adjunction ; Wood's Inst, book 2, ch. 3, tit. Accession by Building, sec. 5 ; by Planting, sec. 6. For the rules in regard to such annexations according to the law of Scotland, see Stak's Inst, book 2, tit. 1, sec. 40. And for those of the Dutch jurisprudence, (in which the Roman law is much cultivated, and its decisions pretty generally followed,) see the recent translation of Grotius, by Her- bert, book 2, ch. 10, tit. by Accession. In the French Code, the law, as applied to the particular cases under consideration, appears to be very well defined. CHAP, n. SEC. I-] TRADE FIXTUEES, IS CHAPTER II. OP FIXTURES, AND THE RIGHT TO REMOTE THEM, AS BETWEEN LANDLORD AND TENANT. Section I. Of the Eight of a Tenant to remove Trade Fixtures. Section II. Of Erections made hy a Tenant for agricultural Pur' poses. Section III. Of the Right of a Tenant to remove Fixtures set up for Trade, combined with other Objects. Section IV. Of the Right of a Tenant to remove Fixtures for Or- nament and Convenience. Section V. Of the Time when a Tenant may remove Fixtures, as affected by the Nature and Duration of his Interest in the Premises. Section VI. Of the Effect of Contract and the Terms of the Tenan- cy in respect of Fixtures. Section L Of the Right of a Tenant to remove Trade Fixtures. It was observed in tke preceding chapter, tliat there existed in certain cases, and in favor of particular individuals, a right of severing and removing personal chattels which have been af- fixed to the freehold. And this right, it was said, prevailed over the claims of other persons, who, by reason of their interest in the land, would have had a property in the articles, and might have prohibited their removal, if they were to be considered in all respects like other parts of the freehold. In nearly all the cases relating *to the doctrine of fixtures, the conflicting rights [*183 of individuals to some particular object have been the subject of dispute, where the one party has claimed the property as being permanently affixed to the freehold of which he is the proprietor, and the other has rested his title to it, on the ground of its hav- ing been fixed up by himself, or by some other person of whom he is the legal representative. Questions respecting the right to fixtures, have arisen princi- Parties ci»imto» pally between three classes of persons. Fjrst, between landlord 14, LANDLOED AND TENANT. [PAHT I. ,. and tenant. Secondly, between the executors of tenant for life, or Mnant in tail, and the remainder-man or reversioner. Thirdly, be- tween the personal representative and the heir of the deceased owner of the inheritance. {ay^V] It is proposed to investigate the law relating to fixtures, by considering the respective claims of these three classes of individ- uals. And it is thought expedient to examine these claims separately, and according to the order here mentioned ; because many of the rules on which the doctrine of fixtures depends, will be found not to be alike applicable to each of the classes of per- sons ; to consider them, therefore, under one general head, would lead to a confused and inaccurate view of the subject. betwerai»nd"ord ^^^^ present chapter, then, will treat of the doctrine of fixtures »nd tenant. ^^ ^^Q ^j^gg q£ landlord and tenant ; that is to say, of the property which a tenant continues to possess, and the right of removal that belongs to him, when he has, during his term, annexed r*19] S'liy matter to *the soil which may be considered a fixture, ac- cording to the definition given in the preceding chapter. Now, it is obvious that the respective claims of the landlord and the tenant may be affected by the nature and the terms of the contract that has been entered into between them. In order, however, to obtain a correct view of the general principles on which the law of fixtures depends, it is necessary, in the first place, to consider the rights of these parties independently of (a) Elwes v. Maw, 3 East, 51 ; 1 H. Blac. 260, in notis. [1] PourtUy, between tenants in common, owners of the fee — a relation of excep- tional occurrence in England, and rarely brought under the notice of the courts; but constantly befalling, in the United States, under the laws regulating the descent of real estate, and its equal partition among aU the children of the ancestor. The rule in New York is laid down in the case of Walker v. Sherman, 20 Wend. 636, in which, on motion to set aside report in partition, for that the commissioners had mistaken the character of several articles of machinery belonging to a mill consid- ering them as personal property, whereas they should have been regarded as real estate, the Supreme Court, Cowen, J., held : in this case the question is between tenants in common, owners of the fee, and is to be decided on the same principles as if it had arisen between grantor and grantee, or as if partition had been efleoted by the parties through mutual deeds of bargain and sale. As between such parties, the doctrine of fixtures making part of the freehold, and passing with it, is more exten- sively applied than between any others. CHAP. II. SEC. I.] TRADE FIXTUEBS. 15 w any private agreement between them. The situation of the ten- ant, and the extent of his privileges, may or may not be varied by the conditions he makes with his landlord ; and the consider- ation of this part of the subject will be fully entered upon here- after. For the present, therefore, it must be supposed that noth- ing is found in the terms of the demise controlling the general right of the tenant in regard to iixtures, and that there exists between the parties, nothing but the mere relation of landlord and tenant. The general rule of law, with respect to annexations made by ^°°°aDiie™a.tions 8, tenant during the continuance of his term, has been estab- *'' * '™'"''- lished from a very remote period, and may still be regarded as the rule in ordinary cases. It is, that whenever a tenant has affixed anything to the demised premises during his term, he can never again sever it without the consent of his landlord. The property, by being annexed to the land, immediately belongs to the freeholder : the tenant, by making it a part of the freehold, is considered to abandon all future right to it, so that it would be waste in him to remove it afterwards. It *therefore falls in [*20] Avith his term, and comes to the reversioner as part of the land, (a) A strict observance of this rule, which appears originally to Reiaiea in mod- ' ■'■■'- CD J gyjj times. have admitted of no distinction, whatever may have been the object of the annexation, or the intention of the party in making it, must have been attended with great hardship and injustice to tenants; and it may be supposed that early endeavors were made to obtain a relaxation of it. In progress of time, certain exceptions and modifications were introduced into the rule, which tended greatly to limit its operation, and led to the es- tablishing of some very important privileges in favor of tenants, which have since been confirmed to them by a succession of judicial decisions. [1] It appears, however, from the old reports, (a) Co. Lit. 53 a; i Co. 64; Serlakenden's case, Moore, 111 ; 3 East, 61 ; Beeante, chap. 1. [1] Whiting v. Brastow, 4 Pick. 310 ; Union Bank v. Emerson, 15 Mass. Rep. 159 ; . Gaie V. Ward, 14 Mass. Rep. 362; Holmes v. Tremper, 20 J. R. 30; Miller r.Flwmb, 6 Cowen, 665; Taylor y. Townsend, 8 Mass. Rep. 416; Beynolds v. Shvier, 5 Cowen, 323 ; Walker v. Sherman, 20 Cowen, 636 ; Van Ness v. Pacwrd, 2 Peters, 137 ; Eeer- mance v. Vernoy, 6 J. E. B; Xhtiois v. Kelly, 10 Barb. S. C. R. 496 ; Moit v. Palmer, 1 Comatock, 564. 16 LANDLORD AND TENANT. [PART L that the indulgence was at first granted by the courts not with' out doubt, and after some struggle. Indeed, on its introduction, it does not seem to have been maintained upon any settled or intelligible ground; for, in the earlier cases, the privilege is found to be built on legal subtleties and nice distinctions, instead of being made to rest upon principles of general policy, which the modern determinations have declared to be the proper foun* dation of it. At this distance of time, it is difficult to ascertain the precise period when a relaxation of any kind was first admitted. It was said by Lord Holt,(a) in allusion to a particular class of fixtures, that the right of the tenant to remove erections of that descrip^ [*21] tion *was by the common law. Perhaps this expression is not to be understood literally ; for it should be recollected that at common law, and before the Statute of Gloucester, a tenant for years was not punishable for any species of waste. (&) It was after that statute, and in consequence of its provisions, that ques' tions respecting the right of removing things erected by tenants during their term, frequently became the subject of judicial con- sideration ; and many of these questions are to be met with in ■ the reports of very early cases. The fixtures to which Lord Holt refers, are those which a tenant erects upon the demised premises for the purpose of car' rying on his trade and manufacture. The law respecting this class of annexations, forms a very important branch of the pres* ent inquiry ; and as the tenant's right in these cases is undoubt' edly more extensive, and rests upon more settled principles than any other he enjoys in respect of fixtures, and is also represented to have been established first in order of time, it may be proper to begin by investigating the claims of the tenant, in removing fixtures of this description. • Of trade ftstures. First, then, of fixtures erected by a tenant for purposes of trade and manufactures. The facts of several of the cases to which it will be necessary to refer, will of themselves, suggest, that the trade carried on by (a) PooWs mse, 1 Salk. 368. (6) Vide post, chap. 1 of part 2: (feAP. n. SEC. I] TRADE FIXTURES. 17 a tenant may be of two kinds. It may be a trade unconnected with, and independent of the land he occupies, such as dyeing, brewing, &c. ; or it may be a trade derived from the land, and *depending essentially on its peculiar produce ; as the getting [*22] and vending of coals from a colliery, or the manufacturing of salt from salt springs. The distinctions which may thus be ob- served in the nature of the tenant's business and employment, will hereafter become the subject of particular notice; inasmuch as they are the foundation of certain rules in the doctrine of fix- tures, which are very important, and involve points of difficult solution. At present, however, it will be more convenient to consider the subject without reference to these distinctions ; and merely to suppose that the tenant carries on any general trade upon the premises, and that, in the prosecution of his trade, he annexes an article to the freehold, the right of severing and re- moving which, becomes a matter of dispute between himself and his landlord. The earliest authority on this subject, to which it will be ne- elaJined'"'"**" cessary to advert, occurs in the Year Book, 42 Ed. Ill, p. 6, pi. 19. It was an action of waste brought against a lessee, for removing a furnace which he had erected and affixed to the walls of a house demised to him for a term of years.(a) TJae point was then raised, whether the removal of the furnace was justifiable, or if it amounted to waste ; and this question was, after discus- sion, adjourned as doubtful, and was left undetermined. The next in order, is a case in the Year Book, 20 Hen. VII p. 13 • in which the question was, whether *a furnace fixed to the free- P231 hold with mortar, should go to the executor, or to the heir of the owner of the fee who had put it up. In the course of the judg- ment in this case, the court (Kede, Ch. J., Fisher and Kingsmill) laid down the following proposition : " If a lessee for years set up such a furnace for his advantage, or a dyer make his vats and vessels to occupy his occupation, during the term he may re- move them." " And so of a baker. And it is no waste to re- move such things within the term, by some." The report then states, that in 42 Ed. Ill, it was doubted whether this was waste or not. (o) The fact of the furnace being annexed to the waM is not mentioned in the re- port ; but it appears to have been so fixed according to the remarks on the case in subsequent authorities in the Tear Books. Vide 21 Hen. YII, 26. 2 18 LANDLORD AND TENANT. [PART I. This case is generally adduced as tlie first whicli in terms re- cognizes the right of a tenant to remove fixtures. It is quoted, moreover, as the great authority for the prevalence of a rule, in very early times, in favor of trade fixtures. For it is insisted, that the privilege which is there said to l^elong to the lessee, is admitted in respect of articles of trade only ; and is to be under- stood as a right arising solely out of the principle of protecting commerce and manufactures. The expression in the original, which has given rise to the supposition, is ^^ pour occupier son oc- cupation f and it has been imagined, that the instances of the dyer's vessels are intended, not merely to signify additions made by a tenant for his common domestic accommodation, but to in- dicate fixtures put up by him expressly in relation to the trade which he is carrjdng on upon the premises. It may, however, be doubted if this is a fair inference from r*24] the case cited. For, in the first place, it *deserves to be men- tioned, that in another report,(a) or rather abstract of the case in the Year Book, 20 Hen. VII, which was published at a subsequent but very early period, the passage upon which the supposition in question mainly proceeds is particularly introduced, but the expression "pour occupier son occupation" is left out. If this cir- cumstance had been suggested to the courts in the discussion of the subsequent cases, it would probably have been thought to merit at- tention, as tending to show that the rule laid down by the j udges in the time of Henry the Seventh was not universally considered to have been founded on an exception arising solely out of trade.(5) (a) It 13 a book printed A. D. 1614, entitled " Tin Abridgment de touts les Arts del Roy Henrie le Sept," and the position in question is thus expressed: " And if lessee for years makes any such furnace for his pleasure, or a dyer makes his vats and ves- sels, he may remove them during the terra," &c., " and so of a baker. And some, semb., that it is not waste to remove such things within the term; but this is con- trary to the opinions aforesaid," &c. (6) It may not be unimportant to notice the manner in which the concluding part of the above passage from the Year Book, on which so much stress has been laid, was construed in a modern case. In Elwes v. Maw, (3 East, 42,) the counsel read it thus : " It is no waste to remove such things within the term " by any :" Lord Ellen- borough renders it, " It is not waste to remove such things within the term by some .-"ac- cording to either of which constructions, it seems to be left in doubt whether the con- cluding words of the sentence are not intended to refer to tenants. In the original the sentence is thus printed and punctuated. " Et n'est ascun waste de remuer tiel chose diens le terme, per Asmns;" it is no waste to remove such things within the term, according to (he opinions of some Judges. It is clearly tlius intended, from what immediately foUows in the report. See also the corresponding expressions in the extract in the preceding note. CHAP. II. SEC. I.] TRADE FIXTURES. 19 And the inference that trading fixtures were not particularly and exclusively intended by the judges in this case, will more clearly appear, from the remark which follows in the report, viz. : that in 42 Ed. Ill, it was doubted whether this was waste or not. Now, *on referring to the case in 42 Ed. Ill, p. 6, pi. 19, it will [*25] appear that no allusion whatever is made to an exception in favor of trade, neither is it mentioned or implied that the furnace there in dispute was erected for a trading purpose. Again, in the same sentence in which the dyer's vat is mentioned, and imme- diately before it, is put the instance of a furnace erected by a lessee, and this is said to be removable like the vat. And so far from its being intimated that the furnace is connected with trade, it is, on the contrary, described as put up for the conveni- ence of the lessee, "pour son avantage," or (as the abridgment has it,) "pour son pleasure." (a) But further, if this principle of allowing an exemption on the ground of trade had been clearly recognized in the case in ques- tion, it might be expected that it would have been applied to the solution of subsequent cases. But the contrary is the fact ; and all the ancient cases which follow the decision of 20 Hen. VII, are found to proceed upon a distinction depending altogether upon the mode of annexation. Thus, in a case which occurred immediately afterwards, and before the same judges, (5) it was laid down by the court, that if a lessee makes an erection, as a furnace or post, &c., and fixes it to the soil, or to the middle of the house only, and not to the walls, he may take it away. Nothing is said in this case of a distinction in respect of trade : on the contrary, Kingsmill, J., apparently in allusion to the par- ticular instances of vats in a brew-house or dye-house, relies solely on their construction and annexation ; *and says the re- r*261 moval of such things would not be waste, because the house would not be impaired by it. So, lastly, in the cases which followed some time after those in the Year Books, there is no recognition whatever of any peculiar privilege in regard to trade. For CooJc's case{c) (24 Bliz.) is wholly silent upon it. And in a case* reported in Owen, 70, and Cro. Eliz. 374,(c?) (which respected (a) And see 8 Hen. TII, 12. (J) 21 Hen. VII, 26. And see Br. Abr. tit. Chattels, pi. t, 11. (c) Moore, 111. (d) Day v. Amiin and BisUtch, Z1 Bliz. And see 1 Roll. Ab. 891, pi, 50. 20 LANDLORD AND TENANT. [PART I. the power of a sheriflf to seize a furnace under an execution against a termor,) the article is expressly stated to have been erected for the use of a dyer ; and the court, adverting to the right of the termor himself in such a case, determine it by the circumstance of the article being fixed to the walls, and not to the middle of the house. On this particular ground they con- sider that the -furnace would not be removable ; and the prin- ciple of an exemption on the ground of trade is altogether un- noticed, (a) Upon the whole, then, it can scarcely be inferred that the ex- pressions used by the court in 20 Hen. VII, pi. 13, were employed in any other sense than as mere general examples of fixtures, the object of which was to illustrate the legal doctrine of an excep- tion introduced for the benefit of all tenants alike, by a less rigid construction of the old rule of law. Indeed, with regard to the dictum itself, it should be observed, that it is entirely extra-judi- cial, and appears in a decision in which the judgment of the court proceeded on a totally diiforent principle. (6) r*27] *The examination of the early authorities which has thus been Result of the made, may not be deemed useless in this place, because it may earyanthoritie3.ggj,^g to give the reader a more perfect view of the doctrine re- lating to fixtures, by presenting a con:iparison between the law as it stood formerly, and as he will find it established in later times. The observations that have been made are intended chiefly to show, that it is by no means clear that an exception of any kind in favor of tenants was admitted in very early times ■ and moreover, that when the exception was introduced, it seems to have extended as fully to other fixtures, as to those which re- lated immediately to trade. And yet it is a notion which ap- pears to have prevailed very generally, that the first modification of the ancient rule was exclusively in favor of commerce and that this is plainly, and without dispute, pointed out in the old cases. Modem decisions Howcver, the equivocal state of the law in its earlier stages is m ayoro tiade.^£ -^^^^j^ importance at the present day. For the privilege of a' (a) In the report of this case, as cited in Went. Oflf. of Ex. p. 61, it is said, that the jury found that by the custom of Kent, the lessee might remove such articles. (6) See Mr. Smith's remarks on this question in his very valuable Notes on Lead- ing Cases, Vol II, p. 115. He, however, appears to be under the impression that ■the argument in the text rests wholly on the abridgment referred to. CHAP. II. SEC. L] TRADE FIXTURES. 21 tenant to remove fixtures set up by hini in relation to his trade, was plainly and authoritatively stated by Lord Holt, 0. J., in , Poole's case, 1 Salk. 368 ; and it has since been recognized in a series of uniform decisions of modern date. Poolers case occurred a considerable length of time after the decisions cited in the preceding pages.(a) It was the case of a soapboiler, an under tenant, who, for the convenience of his trade, had put up certain vats, coppers, tables, partitions, and paved the backside, *&c., all which things had been taken under an [*28] execution against him ; on which account the first lessee brought an action against the sheriff, for the damage occasioned to the house, and which he was liable to make good. Lord Holt, Ch. J., held, that during the term, the soapboiler might well remove the vats he set up in relation to trade ; and he said, moreover, that he might do it by the common law (and not by virtue of any special custom,) in favor of trade, and to encourage industry.(&) The right of a tenant to take away trade fixtures may be con- J^'^p'^^^^pJ^*' sidered to have been established from this time. And not only has it been confirmed by many subsequent decisions, but a very sound and satisfactory principle is assigned as the foundation of the privilege. This is to be collected in the first instance from some cases which came before the courts of equity, during the period in which Lord Hardwicke presided there. It becomes, therefore, necessary to refer to these decisions. And as it will be found that the particular claims to which they relate were not, in fact, between landlord and tenant, but between other par- ties, viz., the executors of tenant for life and the remainder-man, it is proper briefly to premise, that the privilege of removing fix- tures, (as will be more particularly shown in another part of this work,) is considered to be construed more liberally in the case of a common tenant against his landlord, than in the case of a tenant for life or in tail against the remainder-man or reversioner, or in that of an executor of tenant in fee against the heir. And hence it may be received as a rule, .that the decisions in favor of the executors of *tenants for life, in tail or in fee, as against the [*29J remainder-man, reversioner or heir, may in general be applied to (a) Mio. 2 Ann. Q>) As to this, see ante, p. 21, 22 LANDLORD AND TENANT. [PART I. cases between landlord and tenant, and are to be considered as governing authorities in support of a tenants riglits.(a) Of these cases in equity, the most important is that of Lawton V. Lawion,{h) which was decided in the year 1743. The question in this case was, whether a iire engine (or steam engine) set up for the benefit of a colliery by a tenant for life, should, at his death, go to his executors as part of his personal estate, or to the tenant in remainder. Lord Hardwicke, in his judgment, thus explains the principle of the rule respecting trade erections : " To be sure, in the old cases, they go a great way upon the annexation to the freehold ; and, so long ago as Henry the Seventh's time, the courts of law construed even a copper and furnaces to be part of the freehold. Since that time the general ground the courts have gone upon of relaxing this strict construction of law is, that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during their term." In the case of Lord Dudley v. Lord Warde,{c) which followed shortly after that of Lawton v. Lawton, there was a similar ques- tion as to the right of the executor of a particular tenant to take a fire engine as against the remainder-man. On this occasion r*301 *Ijord Hardwicke observed, " Some general rules are very clear, as what is annexed to the freehold is to be considered a part of it ; and yet there are some exceptions to that rule, as between landlord and tenant : what is erected by the latter for the sake of trade may be removed, though fixed to the freehold." " The determinations have been from consideration of the benefit of trade." The decisions in the courts of common law will be found to have proceeded upon the same principle. In Lawton v. Sal- mon,(d) in K. B., before Lord Mansfield, there was a question between the executor and the heir of a person who, some years before his death, had placed certain vessels called salt pans, fixed (a) Vide 3 Atk. 13 ; Amb. 114 ; Bui. N. P. 34 ; 2 East, 91 ; 3 Esp. C. N. P. 11 ; 3 East, 51. And see the observations upon this subject in chap. 3, sec. 1, post. (6) 3 Atk. 13. (c) Amb, 114; Bui. N. P. 34. (d) 1 H. Black. 259, in notis; 3 Atk. 16, in noiis, S. G. CHAP. II. SEC. I.] TRADE FIXTURES. 23 to the ground, in buildings erected upon his salt works ; and, after consideration, the opinion of the court was given in favor of the heir, on the particiilar grounds explained in another chap- ter of the work. But in the course of the judgment. Lord Mans- field states that there had been a relaxation of the strict rule, for the benefit of trade, between landlord and tenant ; that many things might be taken away which could not formerly, such as erections for carrying on any trade, when put up by the tenant. "It would have been a different question if the springs had been let, and the tenant had been at the expense of erecting these salt works : he might very well have said, I leave the estate no worse than I found it. That, as I stated before, would be for the en- couragement and convenience of trade, and the benefit of the estate, "(a) *So, in a subsequent case, it was said by Lord Kenyon,(5) that [*31] "the old cases upon this subject leant to consider as realty what- ever was annexed to the freehold by the occupier ; but, in modern times, the leaning has always been the other way, in favor of the tenant, in support of the interests of trade, which is become the pillar of the state." It is unnecessary to enter into a detail of other cases, in which the principle under consideration has been repeated and en- forced. (c) It will, however, be proper to advert to the remarks of Loi'd Ellenborough upon this subject, because the reasons which he appears to assign for the rule in respect of trade fix- tures may be thought, in some measure, to differ from those which have been already examined. In the case of Elwes v. Maw{d) (a leading decision upon the doctrine of fixtures,) Lord Ellenborough, in stating the several exceptions which, as between different parties, had been en- (a) See per Tindal, Ch. J., aoc. in Mansfield v. BlacWburne, 6 Bing. N. C. 439. (6) Penton v. Robart, 2 East, 90. (c) For further autliorities upon the subject, see Com. Dig. "Waste, D. 2 ; 15 Vin. Ab. 43 ; 22 Vin. Ab. 445; 1 Bao. Ab. 257 ; Bui. K P. 34; 2 Saund. 259, n. 11 ; 2 Brod. &, Bing. 54, and the decisions referred to in chap. 5, post. Of the several cases cited in the text, it should be observed that a fuller statement of the facts and of the grounds of their determination will be found' in subsequent pages. They are introduced here not so much for the sake of the decisions, as to show the principle on which the exceptions for the benefit of trade are founded. {d) 3 East, 38. 24 LANDLORD AND' TENANT. [PART L grafted upon the old rule of law in favor of trade, and of vessels and utensils which are subservient to trade, observes, that this exception is founded on the principle of trade being a matter of a personal nature ; whence it followed, that an article which is used as an accessory to trade ought itself to be deemed personalty, and r*321 not a part of the freehold. (a) This explanation *of the rule does not appear to have been adopted by any other authority : and it is observable that, in deciding the case of Elwes v. Maw, Lord Ellenborough relies less upon this technical view of the nature of trade, than upon the course of precedents. Indeed, as the principle must have been coeval with the common law, instead of originating in modern times, it would have authorized the re- moval of trade fixtures long before the privilege was, in fact, generall)^ admitted by the courts. PabUo benefit the The inference, then, to be drawn from the several cases which Mxatioi.°,'*'""^^'have been cited, is, that a tenant has an indisputable right to re- move fixtures which he has annexed to the demised premises for the purpose of carrying on his trade; and that the benefit of the public may be regarded as the principal object of the law in be- stowing this indulgence. The reason which induced the courts to relax the strictness of the old rules of law, and to admit an innovation in this particular instanj. , was, that the commercial interests of the country might be advanced, by the encourage- ment given to tenants to employ their capital in making improve- ments for carrying on trade, with the certainty of having the benefit of their expenditure secured to them at. the end of their terms. Bitent or the re- Having thus considered the principle upon which the privilege jaxation. in respect of trade fixtures is established, and having traced the steps by which it has gradually received the sanction of the courts, the next material object of inquiry is, the exterit to which this privilege has been carried in the decision of questions be- tween landlord and tenant. r*331 *'^°^ ^^^ additions made by a tenant in relation to his trade, may be of various degrees of value and importance. They may consist merely of machinery, vessels, or other appendages of the like description, in themselves of a perfect chattel nature, before (a) 3 East, 64. CHAP. II. SEG I.] TRADE FIXTURES. 25 ttiey are put up ; or they may be erections apd. buildings, wbicli have no existence as integral chattels, except in connection with the freehold, and which may be of a more or less substantial character, and more or less capable of removal and reconstruction. The question, therefore, is, whether a tenant is entitled to '"'hat trade ai- ■*■''' ^ tures may be le- sever and take away all articles, and erections put up by him- moved, self for the purposes of trade, whatever may be their nature, construction and magnitude : and if not, to what description of things this privilege is confined. In almost all the cases which have been referred, to in the preceding pages, the property in dispute was either a mere uten- sil or instrument of trade, or machinery employed in trade ; or else Avhat might be deemed accessory to such articles, in support- ing or protecting them, or as being instrumental to their con- venient use. In almost all of them, too, the articles, or' the parts of which they were composed, were such as, after removal, were capable of being again employed for the same or similar purposes. Of this description were the furnaces, vats, coppers, &c., in the early cases ; the steam engines in the cases before Lord Hardwicke ; and t^° salt pans before Lord Mansfield. These instances, therefore,' cinnot be considered as carrying the tenant's right of removal to any great extent. But, in the dicta and observations that are to be met with in some of *the deci- [*34] sions, the exception in favor of trade is found to be laid down in very comprehensive and general terms. For not only are utensils and instruments of trade specified, but buildings and ■ erections are frequently mentioned without any qualification as to their nature or construction.(a)[l] (a) Per Lord Kenyon in Sean v. AllaUey, 3 Esp. 0. N. P. 11 ; Per Lord Mansfield in Lawton v. Salmon, and Lord EUenborough in Elwes v. Maw. See, also, 4 Esp. C. N. P. 34. [1] Van Ness v. Pacard, 2 Peters' Rep. 13'7. Story, Justice. It has been sug- gested, that the exception in favor of trade has never been applied in eases like this, where a large house has been built, and used in part as 1 Creneral observa- ornament or convenience, will suggest the caution to be ob- tions. served in the practical application of the indulgence which the law now concedes *to him. From a review of these considera- [*92] tions, it is evident that the tenant's right, in respect of this class (a) In Elwes v. Maw, it was stated as a fact in the case, that the premises were left in the sarne state as when the tenant entered upon them ; yet, this was not thought a ground for the removal of the erections. So the removal of young trees is not al- lowed, (except in the case of a nurseryman,) although the injury occasioned to the premises by digging them up, might he immediately repaired. 70 LANDLORD AND TENANT. [PART L of fixtures, depends, in a peoidiar manner, on the facts of eacli individual case.(a) And the important circumstances to be re- garded in these cases, are, first, the mode of annexation of an arti- cle, and the extent to which it is United with the premises. Secondly, its 7iature and construction ; as whether it has been put up for a temporary purpose, or by way of a permanent and sub- stantial improvement.(5) And, thirdly, the effect its removal will have upon the freehold of the reversioner. With reference, indeed, to this latter circumstance, it may be laid down as a rule appli- cable to all cases, that if the removal of any article will occasion considerable prejudice to the freehold, as by damaging the sub- stance or fabric of the house, &c., a tenant will not be entitled to take it away. Lastly, it should be observed, that if there is any custom or prevailing usage, such as that of valuing to incoming tenants, &c., this may be considered, in the absence of decision, as a safe and useful criterion in practice, (c) The privilege of the tenant in removing fixtures on the ground of ornament or con- venience, must be regarded as one of a more limited nature than r*93] that in respect of *trade fixtures. It is an indulgence which, according to the remark of Ch. J. Dallas, (a) is an exception only, and, though to be fairly considered, is not to be extended. (&) (a) Per Dallas, Ch. J. ; 2 Brod. & Bing. 58. And see a similar remark, 1 Brod. & Bing. 510 ; again, per Tindal, Ch. J., in 6 Bing. 439. (6) In Buckland v. Butlerfield, it was argued by counsel, that the intention of the party in putting up an erection ought to be attended to, and that this might be col- lected from the nature of his interest in the premises. See, also, as to the argument from intention, mLawion v. Salmon, 1 H. Bl. 260, in noiis ; and in Ewpson v. Sodm, 6 B. & Ad. 655. The rule of the oivU law, as drawn from this consideration, is re- ferred to in the Introduction ; vide the note. (c) As to the effect of custom in questions of fixtures, see ante, sec. 1, p. 44, and post, sec. 6. (a) Buckland v. Bntterfield, ubi supra. (b) The reader wiU see a summary of the particular articles which may be re- moved by a tenant on the ground of ornament and furniture, in the practical rules in the Appendix. €HAR II. SEC. Y.] TIME OF EEMOYraG FIXTUEBS. 71 *SECTIO]Sr V. [*94] Of the Time when a Tenant may remove Fixtures, as affected by the Nature and Duration of his Interest in the Premises. Having, in the preceding sections, pointed out the description of property which a tenant is entitled to remove as fixtures, the next object of inquiry is as to the time of the removal, with refer- icnce to the continuance and termination of the tenancy. It has never been implied, in any of the decisions, that the property which an ordinary tenant is permitted to take away, depends in any degree on the nature of his interest in the prem- ises. On the contrary, it appears that whether the tenant is lessee for years, tenant from year to year, or tenant at will, and whether his term is uncertain or otherwise, his right as to the description .of articles he is authorized to remove, is in every re- spect the same. But, with regard to the time within which the tenant must exercise his privilege, a distinction may obviously exist. For a tenant who is aware of the period when his interest will expire, may be expected to use a greater degree of vigilance in removing his fixtures, than one who, from the nature of his estate, is uncertain how long he may continae in possession of the demised premises. The object, therefore, of the present section, is to point out the^^™^.^^^"*"^ rules which the law has prescribed to *tenants, with regard to fl^*™^"- the time of removing their fixtures,(a) [ 95] And, first, of a termor who knows when his interest in the tenant for a, ' ' time certain, premises will expire. *"From the earliest recognition of the tenant's right, it was al- ^X°n thrterm* ways considered that he was bound to use his privilege in re- moving his fixtures, during the continuance of his term. For, if he neglected to avail himself of his right within this period, the law presumed that he voluntarily relinquished his claim in favor (a) It must be understood, that the rules laid down in this section are applicable pnly wliere there is no special agreement which maj affect the question; as to which, s^eposi, seq. e. 72 ' LANDLORD AND TENANT. [PART I.' of his landlord. Thus, in the Year book, (20 Hen. VII, 13,) the court, speaking of the furnaces set up by a lessee for years, say, " During his term he may remove them ; but if he permit them to remain fixed to the soil after the end of his term, then they belong to the lessor." And the dictum of KingsmiU, J., in 21 Hen. VII, 26, is to the same effect. In like manner, in Poole's case,{b) it was said by Lord Holt, that during the term the soapboiler might well remove the vats ; but, after the term, they became a gift in law to him in rever- sion, and are not removable. "' The rule is laid down in the same terms in the more modern decisions. Thus, it was said by Lord Hardwicke, in the case Ex parte Qnincy,{c) that a tenant may take away the chimney- pieces, &c., during the term, but not after ; " if he did, he would [*96] ' be a ^trespasser." And, again, in Dudley v. Warde,{a) he ob- serves, " Such removal must be during the term, or he will be a trespasser. "[1] Many other cases might be cited in confirmation of this doc- trine. In particular, the case of Lyde v. Russell, 1 B. & Ad. 394, where the rule, as above stated, was expressly recognized and approved by Lord Tenterdon, C. J. His Lordship adds, " According to these authorities, then, the property in fixtures which would be in the tenant, if he removed them during the (6) 1 Salk. 368. (c) 1 Atk. 4T7. (a) Amb. 113. And see Br. Ab. Chattels, pL 1 ; Com. Dig. Waste, D. 2 ; "Went Off. Ex. 61. [1] Although the tenant, after rendering possession of lands, may be a trespasser by entering to remove fixtures to which he was entitled ; yet, the property in them is not changed, — he is merely a trespasser as to the entry. Holmes v. Tremper, 20 John. 29 ; Heermance v. Vernoy, 6 John. 6. But tlie general and safe rule seems to be, that the "tenant must remove the fixtures put up by him, before he quits the possession on the expiration of his lease ;" {Lee v. Eisdon, 1 Taunt. 183 ; Ex parte Quincy, 1 Atk. 4'7'7 ; 2 Bara. & Creswell, 16 ; Pooh's case, 1 Salk. 368 ; Penton v. Bobart, 2 East. 89.) If not removed during the term, they become the property of the landlord. Lyde v. Russeil, 2 B. & Adolp. 394. The cases in which the right of property remains unchanged after the expii'ing of the term, and the surrender of pos- session of the premises by the tenant, rest upon the particular attendant circumstan- ces ; they are exceptional, and do not invalidate the general rule. CHAP. II. SEC. Y.] TIME OP REMOVING FIXTURES. 73 term, vests in tlie landlord on tlie determination of the terni."(&) The same principle governed the decision in the important case of jrinshall v. Lloyd, hereafter cited. The authorities, therefore, all agree as to the period of time within which a tenant must remove his fixtures. And it is suf- ficiently obvious that the principle on which this rule is founded applies alike to all descriptions of fixtures, whether for trade or otherwise. Accordingly, this must be regarded as the settled rule in general cases. There is, however, one decision, which has been supposed to ^°'^?^^^Jj^'jjP°^^ establish an exception to this rule in particular cases. For, in that case, it was held that if a tenant continued to keep possession of the demised *prem)ses after the expiration of his term, he might [*97] still remove his fixtures, so long as he retained his possession, al- though his legal interest in the land had terminated. This appears to be the point determined in the case of Pentoji ^^'^^^IJ''^*^ V. Eohart, 2 East, 88. The decision, however, has sometimes received a construction which appears to be at variance with the general doctrine above laid down ; and it may therefore be proper to examine it more minutely. It was an action of trespass for breaking and entering a cer- tain yard and buildings, &c., and breaking down the buildings, and the materials of a fence ; and taking away certain timbers, bricks, &c., and disposing of the same, &c. As to the breaking the yard, the defendant suffered judgment by default, and plead- ed the general issue to the rest of the trespass. At the trial be- fore Lord Kenyon, Ch. J., it appeared(a) that the plaintiff had let the premises to one Gray, as tenant for a term, and the de- fendant was in possession as an under tenant to one Cotterell, (to whom Gray's executors had let them,) by whose permission he had erected a building thereon for the purpose of making var- (6) Mr. Smith observes, that "this case, with which, although the judgment is not long, Lord Tentefden is said to have taken great pains, goes a step further than any- prior decision ; for it shows that, on the tenant's quitting the land, the property of fixtures vests so completely in the landlord, that even though they are subsequently severed and made chattels, the tenant's right to them does not revive." 2 Leading Cases, 119. (a) See 4 Esp. 0. N. P. 33. ' 74 LANDLORD AND TENANT. [PART I. nish. This building had a brick foundation let into the ground, (with a chimney belonging to it,) upon which a superstructure of wood, brought from another place where the defendant had carried on his business, was raised, in which the defendant car- ried on his trade. The original term expired at Michaelmas, [*98] 1800, in consequence of a notice from plaintiff to the *executors of Gray, (and it was admitted that the plaintiff had recovered judgment in ejectment against the defendant for these very premises, though the fact was not proved at the trial.) But the defendant remained in possession for some time afterwards, and was, in fact, in possession at the time when he pulled down the wooden superstructure, and carried away the materials, which was the subject of the action. A verdict was taken for the plaintiff, subject to the question, whether the defendant was warranted in pulling down the build- ing, and taking away the materials after the expiration of the term. A rule Nisi having been obtained for entering a verdict for the defendant, as to allbutthe trespasses confessed of breaking and enter- ing the yard ; it was argued that the defendant had no right to re- move the building after the term was expired, for that he was a trespasser by the act of coming or continuing upon the premises ; and that the law could never give a man a right, and yet make him a trespasser in the only act by which he could exercise it. Lord Kenyon, Ch. J. — " The old cases. upon this subject leant to consider as realty whatever was annexed to the freehold by the occupier : but, in modern times, the leaning has always been the other way, in favor of the tenant, in support of the interests of trade, which is become the pillar of the state. "What tenant will lay out his money in costly improvements of the land, if he must leave everything behind him which can be said to be an- nexed to it ?"— " This is a description of property divided from r*99"l ^^^ realty. — Here the defendant *did no more than he had a right to do ; he was, in fact, still in possession of the premises at the time the things were taken away, and therefore there is no pre- tence to say that he had abandoned his right to them." Lawrence, J. — " It is admitted, now, that the defendant had a right to take these things away during the term : and aU that CHAP. 11. SEC. V.J TIME OF REMOVING FIXTURES. 75 lie admits upon this record against himself, by suffering judg- ment to go by default as to the breaking and entering, is, that he -vvas a trespasser in coming upon the land, but not a trespasser de honis asportatis : as to so much, therefore, he is entitled to judgment." A verdict was, therefore, entered for the plaintiff as to the trespass in breaking and entering ; and for the defendant, as to the rest of the trespass. The above are all the circumstances that appear from the dis- RspTt at Nisi J? 1 1 -f-» • 1 • Priua. CUSS] on of the case at bar. But it may be important to add some further particulars respecting the nature of the erection, which are to be collected from the report of the case at Nisi Prius.{a) From this, it appears that the building in question consisted of a brick basement sunk into the ground, upon which a wooden plate was laid, and the quarters belonging to the superstructure were morticed into the plate. Upon an attentive examination of this case, it is conceived case examined, that it will not be found to introduce any modification or exten- sion of the general rule which can be applied to ordinary cases. An impression, *however, seems to have prevailed, thatthe privi- [*1001 lege of the tenant has been generally enlarged by this decision. And it has been thought to establish, that a tenant does not in any case relinquish his property in fixtures by omitting to re- move them during the> term, but may insist on taking them away after the expiration of 'his tenancy, and after he has given up possession of the premises ; and even although his entry on the land for that purpose may be in itself tortious.(a) But the principle on which the decision proceeds, does not seem to warrant this proposition. For the only rule which can (o) 4 Esp. K P. C. 33. (a) And see Hammond's Treatise on Nisi Prim, p. 147 ; and his edition of Comyn's Digest, 'Waste, D. 2. See, also, (2 Bar. & Aid. 166,) and Weelon v. Wood- cock, 1 M. & W. 14, in the argument of counsel. According to the report of the case of Pentrni v. Bdbart, {Nisi Priiis,) the inoUnation of Lord Kenyon's mind certainly seems to he, that a tenant had a right to come upon the premises after the term was expired, for the purpose of taking away a fixture which he might have removed dur- ing the term. 76 LANDLORD AND TENANT. [PART' I. be considered deducible from the case of Penton v. Bobart, ad- mitting it to be a valid authority, is, that a tenant may sometimes, and under certain circumstances, retain his right in taking away his fixtures, although his interest in the land has expired ; that is to say, where he has not quitted the premises, and still con- tinlies in absolute possession of the property. The decision in question depends essentially upon two points: the fact of the continued possession, and the state of the record. It has been seen that the reason why, in common cases, a tenant cannot insist upon his privilege if he has neglected to use « [*101] during the term, is, that the law presumes that he *meant to leave the unsevered property for the benefit of his landlord. But, in Pentoti v. Pohart, the tenant had never quitted posses- sion ; and consequently, as he showed no intention of abandon- ing his right to the property, the presumption of a gift to the landlord did not arise. The tenant, however, did not contend that he had a right of remaining or coming upon the prem- ises for the purpose of removing the building ; he disclaimed that altogether; and, suffering judgment hj default, he admitted that he was a trespasser on the land. All that he insisted upon was, that the materials of the varnish house were still his prop- erty, because there had been no dereliction of them : that he had therefore a right to reduce them again to a chattel state, and to retain them when severed ; and that he could not be a trespasser (de bonis asportatis) for taking his own goods. It may, however, be observed that, accbrding to the state of the facts, the case might perhaps admit of another explanation. For it seems that the only thing the defendant took away was the wooden superstructure. This superstructure was merely placed upon a wooden plate, laid on brick-work. The erection, therefore, might be deemed (like the barn resting upon blocks or pattens) not a fixture, but a mere chattel. In this point of view, the simple question for determination would have been (as in Wansborough v. Maton, post) whether the personal chattel in dispute was the defendant's or not ; and the result of the whole case would, upon the pleadings, have been the same as it now stands. r*1021 *It is, indeed, observable, that some of Lord Kenyon's expres- sions seem to favor this solution of the case. And if it should CHAP. IL SEC. v.] TIME OP REMOVING FIXTURES. 77 be thought that the decision proceeded upon this ground, then it is evident that it forms no kind of authority that a tenant may, under any circumstances whatever, claim a right, after the expi- ration of his term, to remove articles which are strictly affixed. (a) But the former explanation of the case appears to be the true one. And, in this view of it, it is evident that the general prin- ciple as to the removal being made, in ordinary cases, within the term, is altogether untouched. (J) Accordingly, all the authori- ties subsequent to the case in question, as has been alreadj^ shown, concur in establishing that the rule laid down in the earlier deci- sions is the correct rule *of law on the subject. In Lee v.. Bis- r*103] don, also, (a) Gibbs, Ch. J., describes the tenant's interest in fix- tures as existing only during the continuance of his estate. And he says, " Although it is in his power to reduce them to the state of goods and chattels again, by severing them during the -term, yet, until they are severed, they are parts of the freehold ; and unless the lessee uses during the term his continuing privilege to sever them, he cannot afterwards do it." And this observation of the learned judge is cited and approved of by Abbot, Ch. J., in a subsequent case.(&) See also, per Lord Ellenborough, in Elwes V. ifawe, 3 B. 50 ; BucMand v. Butterfield, cited in the preceding section. Also, per Parke, B., in Hallen v. Bunder, 1 Or. M. & R. 275.(c) (a) If a man, whose term in a house is expired, go into it, when the door is open, to take away goods left by him there, trespass quare clausv/m fregii lies ; for it was, his own folly to leave the goods there. Br. Ab. Tr. pi. 450. And see 15 H. VII, foL 9, b. ; 22 Ed. IV, 27. See the same principles as to chattels, in Anthony v. Sa- neys, 8 Bing. 186 ; and in respect of a barn, &c., fixed to the freehold. It has been held that a custom for a lessee for years to remove Ms utensils within a certain period after his term expires, is bad in law. Palm. 211. There are, however, cases where a person is entitled to enter the soil of another to take his own goods, under peculiar circumstances or of necessity. Thus, if a fruit tree grow m a hedge, and the fruit drops on to the ground of another, the owner may go upon the land and fetch it. Vin. Ab. Tresp. 1. a. So if a tree is blown down, or through decay falls into a neighbor's land, the owner may lawfully enter and take it. Latch. 13. And see other instances referred to and explained by the court in Anthony v. Raneys, swp. See, also. Wood v. Hewitt, 14 Law J. R. 241, Q. B. ; and Wansiorough v. Maion, post. (V) See Weeton v. Woodcock, post, and the judgment of Alderson, B., wherein the extension of the tenant's right, contended for on the authority of Penton v. Bohart, is quahfied by the expressions of the court. Compare, also, FittiherheH v. Shaw, 1 H. Bl. 258; where the tenant continued in possession under a new agreement, whereby his right to his fixtures was divested, post, see. 6. (o) 7 Taunt. 191. (6) Golegrave v. Dias Santos, 1 Bar. & Cr. 79. (c) See the able remarks on this subject in Mr. Smith's Leading Cases, Vol. 11, p. 1 18. 78 LAiTDLOED AND TENANT. [PART I. thragh teimen^i The rule Under consideration applies equally to the cases where |d by forfeiture, ^^g tenant, by any act of his own, (as by forfeiture or condition broken,) puts an end to the term, as where it expires by effluxion • of time. The case of- Minshall y. Lloyd,{d) affords an instance. There a tenant took a lease of a colliery, and during the term erected steam engines thereon. Afterwards, in 1827, he assigned the colliery to trustees, in trust to secure the payment of an an- nuity, and to permit him to enjoy them until default, &c. In June, 1829, the landlord took possession of the colliery and fix- tures under a clause of re-entry for forfeiture ; and, in November of the same year, the engines were seized under a fi. fa. at the r*1041 ^^^ °^ ^^ execution *creditor of the tenant. The trustees brought an action against the sheriff to recover the engines, &c. It was held, in accordance with the authorities above mentioned, that the right of the tenant to remove the fixtures ceased in June, 1829 ; and, having been left affixed to the freehold after the ex- piration of the term, the trustees, who had only the same right of removal as the tenant under whom they claimed, could not themselves remove them after that period. To the same effect, though with some extension of the general rule, is a subsequent case, also in the Court of Exchequer. A tenant took a lease of a cotton factory, in which there was a pro- viso that the lease should be forfeited by the bankruptcy of the lessee. During the term, the lessee erected a steam-engine boiler on the premises, and subsequently becarne bankrupt; his as- signees entered and took possession, after which the lessor en- tered for the forfeiture : afterwards the assignees, who still con- tinued in possession, removed and sold the boilers. It was held, in conformity with the general rule and on the authority of the last mentioned case, that the right of the tenant to remove the fixtures continued only during the original term, and during such further period of possession by him as he held the premises under a right still to consider himself as tenant; and that such right ceased after the entry for the forfeiture : so that the as- signees were then no longer in a condition to consider themselves tenants, (a) (d) 2 M. & W. 450. See, also, in Siorer v. Bunter, 3 B. & 0. 368, (ffi) Weeton v. Woodcock, 1 M.. SoW. 14. See per Parke, B., in Maokmtosh v. FroU ter, 3 M. & "W. 184. It appeared, in the principal case, that the assignees had not removed the fixtures till three weeks after the lessor's entry ; aiid, at the trial, the CHAP. 11 SEC. T.] TIME OP RBMOVIKGI- FIXTURES. 79 *Assuming that, according to tKe case ofPenton y. Rohart, the [*105] rifflit to fixtures would not be abandoned, and tlie presumption Delivery of pos- ° - J 1 ± session without of a gift to the landlord is not to be inferred as long as the pos- prejudice, 4c. session is retained, a question might arise whether the tenant's right would be preserved if, by some formal act or declaration, he expressly signiiied his intention not to abandon the fixtures at the end of his term. For example, if he were to accompany the delivery of possession of the premises, with a protestation that he does so without prejudice to his right of talcing away his fixtures at a future time, and does not intend to give them to the landlord.(a) Or, again, whether any recognition of the tenant's right on the part of the landlord' might have the effect of revest- ing the' property in the tenant. (5) On these points, nothing satis- factory is to be collected from the authorities ; and, as it has never been intimated by the courts what might be the effect of such proceedings, and they probably would be held to be inoperative on the principles explained in the case of Marston v. Roe, 8 A. & E. 59, they cannot safely be relied upon in practice. Indeed, it is a common and very proper precaution, to provide for the removal of fixtures after the end of the demised term, by a par- ticular provision in the tenant's lease,(c) *It may, perhaps, be thought that the presumption of a gift to [*106] the reversioner has no very reasonable foundation, and may often sitt in law to the . reversioner. be productive of considerable hardship and inconvenience, it can only be explained on the principle, that the tenant, by the very act of annexing a chattel to the freehold, makes it a part of the reversioner's property, and retains only a qualified right in it, viz. that of reducing it again to a chattel state. The omission, therefore, to exercise this right within the time limited by the law, is considered tantamount to an express gift to the owner of the land. jury found that such removal was not within a reasonable time after the entry. This eircumstanee furnished aa additional ground for the decision of the court. (a) This is stated to have been done in the case of Davis v. Jmes, 2 Bar. & Aid. 166. (6) See lyyde v. Eussell, and MinshaU V. Lhyd, sup. ; West v. Bldkeway, 2 M. & G. 729. (c) See HaUen v. Runder, 1 C. M. & B. 266 : where a tenant forbore to remove his fixtures during the term, his landlord agreeing to take them at a valuation, and held that he might afterwards recover their value. As to the continuiag possession and right of property of an outgoing tenant, see Beaiiy v. Gibbons, 16 East, 116, as explained in the next section. 80 LANDLOED AND TENANT. [PAET I. bie'^miesTprop." ^^ ^^ obvioiis that the rule established in the several aiithoritieg erty affixed. above Considered cannot apply to cases where, from the construc- tion of the property in question, and its connection Avith the realty, it is not accounted a fixture at all, but is considered in law to remain a mere chattel. Thus, where a tenant erected a barn on the demised premises, which was so constructed that it was not united to the soil, but rested on the foundation by its own weight alone, it was held that, although the tenant left this barn on the premises after the expiration of his term, he did not relinqiiish his right to it, but might afterwards recover it from his landlord by action.(a) Tenants of un- It was observcd, at the bearinning of the section, that the pre- certain interests. _ ' o o ' j. ceding remarks were to be understood as ajoplying only to ten- ancies, the determination of which might be previously ascer- [*107] tained. Although no decision *has expressly established that tenancies which are of uncertain nature and duration are excepted out of the general rule, yet it cannot be doubted that tenants of such interests, as tenants for life, at will, &c., are not so restricted, but will be allowed to remove their fixtures ivithin a reasonable iime after the expiration of their estates.(ffi) For no laches can be imputed to them in not availing themselves of their privilege during the term ; neither can a gift to the reversioner be im- plied.(&) This inference is supported by the analogy of the rule in the case of emblements, where a similar indulgence is allowed to tenants for .life, &c., on the equitable principle, that a party shall never be prejudiced by the sudden determination of his term.[l] (a) Wamhorough y. Maton, 4 A. & E. SS4. See, also, Davis v. Jones, 2 B. & AJd. 165, that the property in chattels is not lost. And see sup., p. 102. (a) See the note to the case of Weeion v. Woodcock, sup., p. 104. (6) Vide 22 Ed. IV, 27 ; Cro. Jac. 204. And see Lit., sea 69. [1] A mortgagee in possession, after recovery on a hill in equity by a mortgagor to redeem, and before possession taken under the judgment, may take down and re- move bmldinga erected by him on the laud mortgaged, the materials of which be- longed to him, and not so connected with the soil, that they cannot be removed without prejudice to it. Taylor v. Townsend, 8 Mass. Rep. 41L CHAP. II. SEC. YI.] TERMS OF THE TENANCY, ETC. , 3I *SBCTio]sr VI. ■ [no8] Of the Right of a Tenant in Fixtures, as affededhy the Terms of his Tenancy, everjr other branch of law, that individuals, on entering into a '^°'^''- contract, may agree to vary the strict position in which they would otherwise legally stand towards each other ; that is, where no absurdity or general inconvenience would result from the transaction. " Modus et conventio vincunt legem.'''' A tenant, therefore, in consequence of the conditions *under which he [*109] holds, may be placed in a totally different situation from that in which he has hitherto been regarded.(a) And the following authorities will show to what extent his privileges may be affected in different cases. In the case of Nay lor y. Collinge,{b) a. defendant covenanted ^y ';"|''="''' '" by his lease that he would repair the demised messuage and (a) The reader must observe that this section more particularly relates to the terms of the tenancy, as affecting the right to things put up by the tenant himself, and which are properly the subject of the law of fixtures, and that it does not refer to those provisions in leases, Ac, which concern things annexed to the freehold at the time of the demise ; as when a person, on becoming tenant, agrees to purchase of the landlord articles affixed to the demised premises. In letting houses, &c., a stipulation is often made that '^fixtwes are to be taken at a valuation." Here there is an absolute transfer of property, as on a sale of growing timber. The effect of agreements of this latter description, are considered in the chapter relating to the conveyance of fixtures, {Post, oh. 5,) where wiU be found some observations upon the interest acquired by a tenant on taking a demise of premises together with fixed utdnsils or machinery. (a) It was said by Dodderidge, J., that " There win be a great difference between an action of covenant, and an action of waste ; and that same thing done may be a breach of covenant which shall not be waste." 2 Bulst. 113. (6) 1 Taunt. 19. And see Brown v. Blimdeh,, Skin.. 121., 6 82 LANDIiOED AND TBNAJST. [PART I, premises, and all erections and buildings then already erected and built, and also all other erections or buildings that might thereafter he erected and built in or upon the said premises. In an action brought upon this covenant, the breach (as far as is material to the present inquiry) respected certain erections and buildings which, during the term, had been raised upon the de- mised premises by the defendant himself, as tenant and occupier thereof. They were let into and fixed to the soil, and had been built and used for the purpose of trade and manufacture only. These buildings the ^defendant had removed : and the question was, "whether they were comprehended within the terms of the covenant, and whether the tenant's right of removal was re- stricted therebj^ It was contended by the defendant, that, since the buildings were removable as trade erections, they could not be considered to fall within the restraining words of the covenant. But the court held, that the parties were precluded from all general ar- r*1101 gunient *respecting the right of removing fixtures by the ex- press words of the covenant. The court could not go out of the covenant, which, under the general terms of erections and build- ings, included erections and buildings raised for the purposes of trade. If the tenant meant to exclude buildings of this nature, it ought to have been so expressed. In the case of i?. v. Topping, {a) a lease was granted of certain premises on which steam engines, machinery, and other fixtures employed in the mining and smelting trades, were erected. These engines, &c., were standing on the premises at the date of the demise, but did not form part of the demise ; having been purchased by the lessee from the outgoing tenant. Some other engines, &c., were put up by the lessee himself during the term. The lessee covenanted to repair " all and every the said build- ings, lands, mines and engines," &c., and to deliver up the same in good repair; but the word "engines" was not mentioned in any previous part of the lease. It was also agreed that in case the indenture of lease, or the mines and premises thereby de- mised, or any part thereof, should be extended or taken in exe- cution, the terms should cease and the lessors be at liberty to re-enter. The lessor covenanted that the lessees might erect (a) M'Glel. & T. 544. CHAP. II. SEO. VI.] TERMS OF THE TENANCY, ETC. 8^ engines, &c., and might remove tliem during the term, or within twelve months after ; as well as all such other engines as had theretofore been erected, "except as in the cases and events therein be- fore mentioned,^' (viz., inter al. the forfeiture of the term, and entry by the lessor.) The lease having been ^forfeited by the prem- [*111] ises being taken in execution under a writ of extent, it was held that the lessee was precluded from removing any of the engines and fixtures, and that the lessor was entitled to the whole of them — on the ground that this appeared to be the intention of the parties according to the construction of the lease. And Alexander, Ch. B., observed, that if there had been no provisions respecting the machinery, it might have been taken away by the tenant, according to the general rules ; but such rules were lia- ble to be varied by agreement of the parties ; and he thought that the terms of the indenture showed it to be intended in this case, that in the event that had happened, the lessor should have the fixtures as well as the land and buildings. In, another case, an action was brought upon a covenant in the lease of a house, by which the defendant covenanted to repair the premises, and all erectiong, buildings, and improvements which might be erected thereon during the term, and to yield up the same in good repair, &c. The defendant, during the term, had erected a veranda, the lower part of which was at- tached to posts which were fixed in the ground. And Abbot, J., was of opinion, that without entering into the question whe- ther, independently of the covenant, the veranda was removable, it clearly fell within the terms of the covenant, and consequently the defendant could not remove any part of it.(a) The same principle governed the decision of several modern cases. Thus, in Martyr v. Bradky^ib) a *tenant took a lease of r*-|-|o-i a water mill, together with two pair of stones, gear works, ma- chines, &c., in or af&xed to or about the mill ; and covenanted to leave the same, together with all locks, &c., and other fixtures, fastenings and improvements,, which during the demise should be fixed, fastened or set up, in, or upon or about the premises, in good plight, &c., reasonable use and wear only excepted. During the term, the tenant had substituted two new mill stones for two (o) Perry v. Brown, 2 Stark. N. P. 0., 403. (J),9Bing. 24 g4 LANDLOED AND TENAJSIT. [PAET I. old ones which he found on the premises. The lower atone was rammed in and fixed with mortar; the upper one revolved on its axis. When he quitted the premises, he took away the new stones, and left in their place those which he found on entering. It was held by the Court of Common Pleas, on the authority of the preceding decisions, that, by the terms of the covenant, the tenant was precluded from taking away the new stones. For the words "-improvements, fixed, fastened, or set up," com- prehended alterations in the working part of the mill ; and the stones were an improvement, and an essential part of the mUl. In this case the court thought that it made no difference, that it had been proved that it was the general custom for a tenant to remove such stones. In another case, also in the Common Pleas, a lessee covenanted to yield up the demised premises at the expiration of the term, together with all erections and improvements which during the term should be made, erected or set up. During the term the lessee erected a green-h.ouse on the demised premises ; it was built of wood on a frame fixed tfpon a wooden plate, which was laid upon mortar placed and bedded *in the indents of walls erected for the purpose for the front and sides ; the back being formed by an old wall ; no holes were made in any part of the walls, the green-house being erected with a view to removal. Before the expiration of the term, the lessee removed the green- house, leaving the walls and ground flues, and doing no injury to the premises. It was held that, under the terms of his cove- nant, the lessee*was not entitled to take away the green-house and that the removal was a breach of it. For the court was of opinion, that the green-house was to be considered an " erection or an improvement," and, therefore, within the meaning of the covenant entered into between the parties.(a) Analogous to these cases is that of E. Mansfield v. Black- hurne.{b) In that case the general right of the tenant to take {a) West V. Blakeway, 2 Man. & G. 129. In the above case, two of the. judges expressed an opinion that, according to the construction of the building in question, it became annexed to the freehold. A second point decided by the case was that a parol Ucense and permission given by the lessor to the lessee to remove the build- ing, was no answer to an action on the covenant. (6) 6 Bing. New 0. 426. [*113] CHAP. II. SEC. TI.] TERMS OP THE TENANCY, ETC. 85 away tiie property in dispute was admitted ; but the question was considered not to turn on any rule of law relating to fixtures, but to depend only upon the legal construction of the covenant entered into between the parties, and which was equally appli- cable, whether the property was a fixture or not. In this case, a renewed lease was granted of certain salt works, messuages, wych- houses, erections, and other things erected upon the premises. In the lease the tenant covenanted to repair the buildings, works, &c., and to leave the premises and the works, engines, &c., in good repail- at the end of the term. *It appeared that under the [*114] former lease the lessee had put up at his own expense divers erections, engines, &c., for carrying on the manufacture of salt; and had also put up certain salt pans. These pans were com- posed of plates of iron, which rested by their own weight, with- out any fastenings, upon low brick walls. They had rings in their sides, by which they could be lifted off. They were used in the boiling of the salt, and are necessary for making it ; and are essential to the existence of salt works. It was held, that by the words of the covenant the lessee was r:strained from taking away the salt pans at the end of his term. For, -v^thout regard- ing whether the pans were re novable as mere chattels, as not being affixed to the freehold, the court considered that inasmuch as they were a necessary and constituent part of salt works, they must be understood to be included under the general description of works, and to fall within the terms and meaning of the cove- ^ nant " to leave all and every the premises demised." The same principle was also recognized in a case recently de- termined by the Vice-Chancellor. There a lessee of a, mill and steam engine had covenanted to repair, " reasonable wear, &c., excepted." During the term the lessee had substituted a new steam engine of greater power, in lieu of the one which was on the premises when the lease was granted. The Vice-Chancellor was of opinion, that the right of the lessee was to be determined by the covenant in the lease ; that the substituted engine was subject to the stipulation in the lease as to the old engine ; and that the lessee was not entitled to remove it.(a) *A very recent case decided in the Court of Exchequer de- r*1151 serves attention here, as it affords a further illustration of the (a) Sunderlomd-^. Newton, 3 Sim. 450. See, also, TTeetorav. Woodcock, t M. & W. 14. 86 LANDLORD AND TENANT. • [PAET I. effect of the covenants in a lease, upon the claim of a tenant in removing fixtures of which a general description only is found in the lease. This is the case of Foley v. Addenbroke :{a) the facts are very special, and may be collected from the case itself, where they are stated at great length, and the description of the fixtures in question particularly set forth. It was an action for the breach of the covenants in a lease of certain iron stone mines ; by which the lessee covenanted (amongst other things) to erect a furnace, &c., and iron works on the premises, and to repair and yield up in repair the furnaces, fire engine, iron works, dwelling-houseSj and all other erections, buildings, improvements, and alterations, to be thereafter erected, built, or set up, except the iron work castings, railways, whimseys, gins, machines, and the movable implements and materials used in or about the said furnaces, fire engine, iron works and prem- ises. In an action on this covenant, the breach assigned was for not repairing and leaving in repair the furnaces, &c. To this breach, it was pleaded (with other pleas) that everything was left in repair other than and except the iron work castings, and other matters which the defendant had a right to remove. It appeared that the lessee had built on the premises extensive iron works, consisting, amongst other things, of casting-houses, a forge and mill, furnaces, tlast fire engines, boilers, gins, &c., [*116] houses, buildings, and *sheds. It was held, that under the above covenant, the tenant was entitled, to remove whatever was in the nature of a machine or part of a machine, but not what was in the natixre of building or support of building, although made of iron. And that, applying this rule, the tenant was enti- tled to remove the blast, steam, or fire engines, cylinders, pipes, and apparatus connected therewith ; furnaces fixed in brick- work ; wrought iron boilers resting on brick-work, and sur- rounded by flues and brick- work ; boiler grates, consisting of bearers of cast iron set in brick-work, with bars, doors, &o. ; cast- ings and iron work of the engines ; puddling furnaces, mill fur- naces ; gasometer,- and other fixed property specified in the case, and of the same nature with the steam or fire engines. On the other hand, the court held that he was restrained by the lease from removing (besides buUdings) brick pillars, or iron work substituted for brick-work, such as hoops, bearers, &c., be- (a) 13 M. & "W. 114. CHAP. IL SEC. TI.] TEEMS OP THE TENANCY, ETC. 87 longing to the furnaces ; cast iron eolumns for supporting the buildings, &c. : such things not being in the nature of machines or implements, (a) All the authorities, therefore, concur in establishing that not- withstanding the property in question may have belonged to the tenant, and whether it is permanently fixed to the freehold or not, it may still become irremovable, if, by the interpretation of the contract between himself and his landlord, it appears to have been contemplated by them that it should not be taken away at the expiration of the term. *Moreover, from some of the same authorities, but particularly r*1171 from an analogous one which followed the first mentioned case By a subsequent of Kaylor v. OolUnge, and where the authority of that decision was approved by the Court of King's Bench, a further inference may be deduced, which may be mentioned in this place. The -case referred to is that of Thresher v. Uast London WatenvorJcs €ompany.{a) And from that decision it appears that a lessee would be restrained by a general covenant to repair, from pull- ing down an erection which he had made before the commence- ment of his lease and during the time he held the premises under a previous tenancy. So that an erection made during a pre- ceding lease, supposing it might have been removed whilst that lease continued, is no longer removable when the premises are conveyed to the same lessee by general words (as for instance, land, premises, or buildings) in a subsequent lease, although the latter contains only the common covenant to repair. It is not thought necessary to enter at large into the case, because it con- tains many complicated facts; but it virtually establishes the above proposition.(S) The court also expressed an opinion in this case, that perhaps no matter dehors the lease could be alleged to prevent the cove- nant to repair from attaching ; and that, at any rate, there ap- (a) There are other important points decided in this case, which are noticed in «ther pages of the work. (a) 2 Bar. & Cr. 608. (6) The building in question was erected by an under-lessee of the tenant, which under-lessee, as against his immediate landlord, could not remove it. It is obvious, however, that this does not vary the principle of the case. See in Sx pairte Lloyd, 1 Mont * Ay, 511.. 38 LANDLORD AND TENANT. [PART I. [*118] peared nothing *sufficient for that purpose in the particular facts before them.(a) By a new agree- j^ ^g iq ^jg remarked, that prior to the determination of any of the foregoing cases, there had been a decision which, in effect, proceeded upon the same principle. For it had been adjudged in the case of Fiizherbert v. Shaw,{h) that a tenant was precluded from removing fixtures by an implied dereliction of them, arising out of the nature of the transaction between himself and his land- lord; although there was, in that case, no express covenant or agreement on the part of the tenant in respect of fixtures. In Fiizherbert v. Shaw, the defendant had been holding certain premises from year to year since 1765. In 1787, they were pur- chased by the plaintiff, who, having given the defendant notice to quit, afterwards brought an ejectment against him to obtain possession. In March, 1788, (while the action was pending,) the parties entered into an agreement that judgment should be signed for the plaintiff, but with a stay of execution till the Michaelmas following; and it was stipulated that the defendant should remain in possession in the mean time. In this agreement no mention was made of any buildings or fixtures. Between the time of entering into the agreement and the ensuing Michaelmas, the defendant removed several things from the premises, which Mr. J. Grould, at Nisi Prius, considered would have been remova- r*119] bis during the tenancy; but he thought that, by the *agreement, the parties had made a new contract, which put an end to the term. And the Court of Common Pleas decided, that without entering into the general question as to the right to remove the articles as fixtures, the defendant was precluded from taking them away by the fair interpretation of the agreement; from which it must be implied, that he was to do no act in the mean time to alter the premises. It may perhaps be thought, from comparing the two last men- tioned decisions, that this general principle is deducible from them, viz. : that where 'a tenant has an existing right to remove (a) As to which, see Doe dem. Freeland v. Brnt, 1 T. R. '701 ; and the dictum of BuUer, J., that whether parcel of the thing demised, or not, is always matter of evi- dence. And see post, ch. 5. {b} 1 Hen. Bl. 258. CHAP. 11. SEC. VI.] TERMS OF THE TENANCY, ETC. 89 fixtures erected by him during his term, that right may be di- vested by any new agreement for the enjoyment of the land in Avhich there is no mention of the fixtures.(a) It is proper to notice, -that there is a Nwi Prius case, that of Dean v. Allaley^ih) respecting the Dutch barns, in which Lord Kenyon expressed an opinion not altogether consistent with the doctrine laid down in the foregoing cases. In that case, an ac- tion was brought upon a covenant in a lease similar in *terms [*120] to that in Naylor v. Collinge, the tenant having covenanted to leave all the buildings in repair which then were, or should be, erected upon the premises during the term. When this cove- nant was pressed upon Lord Kenyon, he is reported to have said, that he was fully aware of the extent of it, and not quite sure that it concluded the question : it meant that the tenant should leave all those buildings which were annexed to, and be- came part of, the reversionary estate. For reasons, however, which have been elsewhere assigned, this case must at all times be considered of uncertain authority.(a) The principle laid down in the case of Naylor v. Collinqe and ?y "^«, i- r ^ "'' his coni the other decisions, is applicable generally to the law of fixtures, ^■'^''y as it relates to landlord and tenant. And consequently a tenant may, by the special terms of his agreement, not only vary his rights as to the description of articles he is entitled to remove, but may enlarge the time for their removal, and subject himself to greater restrictions, or secure to himself greater privileges in (a) It might be questionable whether the right would be diyested immediately on the making qf the agreement, or only from the time the agreement takes effect, in conveying the possession of the premises. The principle mentioned in the text would probably apply to a case, where an out-going tenant has agreed that when he quits possession, he wiU leave his fixtures for an in-coming tenant, who has taken a lease of the premises to commence at the expiration of the former tenant's interest. Here, if the landlord was not a party to the agreement, the question might arise, how far the second tenant would be clothed with the rights of the former tenant- For the landlord might contend that, as the fixtures were not actually severed by the first tenant, they formed a part of the demise to the new tenant ; and that the latter would, therefore, be hable for waste if he removed them. (6) 3 Esp. N. P. a 12. (a) And see a similar covenant in Davis v. Jones, 2 Bar. & Aid. 165. From these cases, and from the report of Naylor v. ColUnge, it might perhaps be inferred, that such a covenant would not include erections that are not actually afSxed to the free- hold, as a barn on rollers, &c. The later decisions, howevei-, seem to qualify this proposition. terms of contract gen- 90 LANDLOED AN"D TENANT. [PART I. the ultimate disposition of tliem, than would attach to hini merely as tenant.(Z') Thus, where a tenant has, by the terms of his lease, the privilege of selling his fixtures by valuation to an in-coming tenant, it is conceived that (in conformity with the principle laid [*121] down in Beaty v. Oiihons, 16 East, 166) .he ^\'oiild have a *right of onstand on the premises, and that his property in the fixtures would not determine at the expiration of his lease. Indeed, a tenant may, by the terms of his holding, acquire an almost unlimited right to remove things which he af&xes to the freehold. For if a lease or demise for years is made with an ex- press clause ^'■without impeachment of waste" this condition will have the same eifect as where it is inserted in a conveyance of an estate for life, (a) By entering into special conditions of this na- ture, the parties entirely change the situation in which they would stand towards each other from the mere relation of land- lord and tenant. And in all these cases, the claims in contro- versy cannot be determined b)^ the law of fixtures, but resolve themselves into questions of construction ; in which the only point for determination is, whether the property in dispute falls within the terms of the agreement, exception, proviso, &c.(&) cuBtom, whether It might be matter for consideration, whether the established of the same efifect ..... „„ as contract. custom 01 a particular district m respect oi fixtures would not operate in- the same manner as a contract which specifically re- lates to them. In claims between landlord and tenant, it has r*122] often been determined that custom has this effect, when not *op- posed to the express words of an agi:eement.(a) But it does not appear that this doctrine has been applied to the case of fixtures. It would be material to ascertain how far such a principle would apply. For the decisions are not very explicit as to the degree (6) Vide Burn v. Miller, 4 Taunt. "745 ; Fairhurn v. Eastwood, 6 M. & "W. 679, as explained in 2 Smith's Leading Cases, 118. (a) 1 Cm. Dig. tit. 8, ch. 2, sec. 12. And see Poole's case, 1 Salk, 368. As to the effect of the clause, "without impeachment of waste,'' in a conveyance of life es- tate, see post, ch. 3, sec. 3. (&) Sometimes clauses for removing fixtures are inserted in leases, merely for the sake of avoiding disputes. It is not unusual tc have a condition, in leases of miUs, collieries, &c., that the tenant shall be at hberty to remove all the machinery and erections he puts up. (a) Wigglesworlh v. SalUson, Doug. 190 ; Senior v. Armiiage, 1 Holt's N. P. G, 191. And see 4 Bar, & Aid. 588, and 16 Ves. l'!3. CHAP. II. SEC. VI.] TERMS Off THE TENANCY, ETC. 91 of weiglit to be attached to evidence of custom in cases of fix- tures; and out-going and in-coming tenants are mucli in tlie habit of viewing their own rights with reference to the practice of antecedent tenants, and the usage of the particular neighbor- hood. And where a tenant has paid for an article by valuation on entering upon his tenancy, he has a right to presume that he shall be valued out as he was valued in ; particularly if such a practice has prevailed during a succession of 'tenancies, and is known to be the common custom of the country.(6) (6) See anii, p. 45 ; and Ma/riyr v. Bradley, cited above. 92 TENANTS FOR LIFE, ETC. [PART I. [*123] *CHAPTER III. OF THE RiaHT TO FIXTURES, BETWEEN TENANTS FOR LIFE AND IN TAIL, OR THEIR PERSONAL REPRESENTATITBS, AND THE BEMA.IN- DER-MAN AND REVERSIONER. Section I. Of the Right of the Personal Eepresentatives of Tenant fm- Life or in Tail, in respect of Fixtures put up for Trade, or for Trade, combined with other Ob- jects, Section II. Of the Right of the Personal Representatives in respect of Fixtures put up for Ornament or Convenience. Section III. Of the Rights of Tenants for Life or in Tail, during their Lives, in respect of Fixtures. Section IV. Of Fixtures put up by Ecclesiastical Persons; wherein of Dilapidations. SECTION I. Of the Right of the Personal Representatives of Tenant for Life or in Tail, in respect of Fixtures put up for Trade, combined taith other Objects. Questions respecting the right to fixtures have arisen be- tween another class of persons, viz. : between the personal repre- sentatives of tenant for life, or in tail, and the remainder -man or reversioner. On these occasions, it is insisted on the one hand, that when personal chattels have been annexed to the freehold [*124] by the tenant for life or in tail, they become part of *the inher- itance, and, in consequence, pass to the succeeding owner of the land : whilst on the other side, it is contended that such annex- ations continue in the nature of chattels, and are to be deemed a part of the personal estate of the deceased tenant ; or, to speak more correctly, that his executors are entitled to sever them from the freehold, and to reduce them to a state of personalty in in- crease of assets. b'^'tenaifts' to? ^^^ relative interests of these parties, viz. : the personal re- life, or in tail, prescntatives of tenant for life or in tail, and the remainder-man CHAP. III. SEO I] TRADE FIXTTJRES, ETC. 93 or reversioner,' in respect of things whicli. have been annexed to the freehold during the parUcular estate, becomes now the subject of consideration. It does not appear that questions of this nature were presented to the courts at a very early period. Indeed, up to the present time, there are only two cases to be found in the reports, in which the rights of the personal representatives of tenant for life or in tail, have been in controversy. These Cases, however, are of considerable importance, and are often referred to as leading decisions upon the doctrine of fixtures. On which account they have already been noticed in the course of this work, on more than one occasion. ♦ The first is the case of Lawton v. Lawton, before Lord Chan- s'«»™ engines in ' collieries, per- cellor Hardwicke.(a) It was determined in this case, that a_/ire™°a' '=»*'''«■ engine (or steam engine,) erected in a colliery by a tenant for life, should be considered personalty, and go as assets to his executor, and that *the remainder-man should not take it as part of the [*125] real estate. The nature of this erection has already been described in a preceding chapter, (a) Lord Hardwicke,, in delivering his judgment in this case, ob- served, " It does appear in evidence that, in its own nature, the fire engine is a personal movable chattel, taken either in part or in gross, before it is put up : but then, it has been insisted that fixing it, in order to make it work, is properly an annexation to the freehold. " To be sure, in the old cases, they go a great way upon the an- nexation to the freehold ; and, so long ago as Henry the Seventh's time, the courts of law construed even a copper and furnaces to ■ be part of the freehold. Since that time, the general ground the courts have gone upon, of relaxing this strict construction of law, is, that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during their term. "It is true, the old rules of law have indeed been relaxed, chiefly between landlord and tenant, and not so frequently be- (o) 3 Atk. 13. (a) Vide ante, p. 35. 94 TENANTS FOR IIFE, ETC. [PABT I. tween an ancestor and heir at law, or tenant for life and remain- der-man. But, even in these cases, i-t does admit the considera- tion of public conveniency for determining the question. Furnaces, Ac, in " Qnc reasou that weighs with me is, its being a mixed case, r*126] between enjoying the profits of the *land and carrying on a species of trade ; and considering it in this light, it comes very near the instances, in brew-houses, &c., of furnaces and coppers." Lord Hardwicke then proceeds to point out the analogy of the case of landlord and tenant, and says, that in the reason of the thing, the situation of tenant for life comes near to that of a com- mon tenant, where the good of the public is the material con- sideration. And he remarks, that the indulgence resembles, in its principle, that of emblements, where the chief consideration is the benefit of the kingdom. He thus concludes his judgment: "It is very well known that little profit can be made of coal mines without this engine ; and tenants for lives would be discouraged in erecting them, if they must go from their representatives to a remote remainder- man, when the tenant for life might possibly die the next day after the engine is set up. These reasons of public benefit and convenience weigh greatly with me, and are a principal ingre- dient in my present opinion." The decree, therefore, was, that the engine should go for the increase of assets in the hands of the executor. It may perhaps deserve to be mentioned, that in this case the application to the court was made on behalf of a creditor of the deceased tenant for life. Upon this. Lord Hardwicke observed, that the court could not construe the fund for assets further than the law allowed, but would do it to the utmost r*1271 *^®y °°^^-^*^ ™ ^^'^°^ °^ creditors. On a subsequent *occasion, however, he declared that this- circumstance made no differ- ence in the nature of the question.(a) The next case is that of Lord Dudley v. Lord Warde.ilS) It came before Lord Hardwicke a few years after the former dc (a) In Dudley v. Warci£. (6) Ambler, 113. CHAP. III. SBC. I.] TRADE FIXTURES, ETC. 95 cision, and is similar to it in almost every respect. It was a bill by the executor of Lord Dudley, wlio was tenant for life or in tail (it did not appear whicb) against the defendant, wbo was the remainder-man, to have cuTtsdn fire engines, erected in a col- liery, delivered up as part of the personal estate of Lord Dudley. Lord Hardwicke said that the question was, whether the fire engines erected by a particular tenant, or by tenant in tail, were to be considered as part of the owner's real or personal estate. "The case," he observes, "being between executor of tenant for life or in tail, and a remainder-man, is not quite so strong as between landlord and tenant, yet the same reason governs it, if tenant for life erects such an engine." Referring to hie decision in Lawton v. Lawlon, he says, "If it is so in the case of a tenant for life, query, how would it be in cases of tenant in tail? Tenant in tail has but a particular es- tate, though somewhat higher than tenant for life. In the rea- son of the thing, there is no material difference ; the determina- tions have been from a consideration of the benefit of trade. A colliery is not only the enjoyment of the estate, but in part carry- ing on a trade. The reason of emblements going to the *executor [*128] of a particular tenant holds here, to encourage agriculture. Sup- pose a man. of indifPerent health, he would not erect such an engine, at a vast expense, unless it would go to his family." The decree therefore was, that the fire engine, erected by- the testator, should go as assets to his executor. In the determination of each of these cases, Lord Hardwicke oidevmius, expressly declared that his judgment was partly founded on the authority of the case of the cider mill decided by Ch. B. Comyns. This decision has been already referred to ;(a) and, assuming it to be a valid authority, the inference from it would be that a cider mill let into the ground may be deemed part of the personal estate of a tenant for life or in tail. The doctrine laid doAvn in these cases of Lawton v. Lawton, and Lord Dudley v. Lord Warde, has been recognized and con- (a) See amte, p. 36, and oh. 4, aeo: 1, post. 9g TENANTS FOE LIFE, ETC. [PART I. firmed by many subsequent authorities. Thus, in the case of Lawton v. Salmon., it was said by Lord Mansfield, " There has been a relaxation in another species of cases, between tenant for life and remainder-man, if the former has been at any expense for the benefit of the estate, as by erecting a fire engine, or any- thing else, by which it may be improved ; in such a case it has been determined that the fireengine should go to the executor on a principle of public convenience, being an encouragement to lay out money in improving the estate, which the tenant would not otherwise be disposed to do."(&)[l] r*129] *Iji li^6 manner, Lord Kenyon speaks of an exception having been allowed in favor of the personal estate of tenants for life or in tail.(a) And in Elwes v. Maiv,{b) Lord Ellenborough cites the before mentioned cases, and enters into a particular explana- tion of the principle on which he considers them to have been decided.(c) Nature of these In examining these decisions, it will have occurred to the fixtures. ° . ' . 1 • T reader that there are two miportant circumstances to be noticed in them : First, that the erections in dispute were held to be in the nature of personal estate, on account of their relation to trade. Secondly, that they were put up for the purpose of enjoying the profits of land, as well as for the object of trade. Lord Hard- wicke compared the cases before him to the familiar instances in which the right of removal had been allowed to common tenants on the particular ground of trade. And he says that a colliery is not only an enjoyment of the estate, but in part carrying on a (6) 1 li. Bl. 260, in notis. (a) 2 East, 91. (6) 3 East, 54. (c) And see Bui. N. P. 34. See, also, the case of Siuart v. the Marq. of Bute, cited in the next chapter, where it appears that fire engines would pass under a he- quest oi things in the natwe of personal estate ; 3 Ves. 212 ; 11 Tes. 65'?. [1] In Miller v. Plumb, 6 Cowen, 665, which regarded an ashery, the distinction between the relation of vendor and vendee ; and vendee, tenant and landlord; is con- sidered and recognized. As between vendor and vendee, the potash kettles set in an arch of masonry with a chimney, would pass as fixtures by a sale of the premises ; but as between landlord and tenant, they fall within the relaxation of the rule in favor of erections for trade and manufactures. CHAP. III. SEC. I.] TRADE FIXTURES, ETC. 97 trade.(c?) And further, he calls it a mixed case, between en- joying the profits of land and carrying on a species of trade. This is also the view which Lord Ellenborough takes of these cases. It appears, therefore, from these authorities, that there are two Executors en- classes of fixtures which form part of *the personal estate of a fixtures, ana to tenant for life or in tail, and which are excepted out of the gen- mixed purpose, eral rule in favor of the inheritance, on the ground oi public benefit [*130] and conveniejice.{a) These two classes of fixtures correspond, in respect of their total or partial relation to trade, to those which have been treated of in the preceding chapter of this work, as removable between landlord and tenant. The general nature of such erections has been already explained ; and it will not there- fore be necessary to enter into a more particular account of them on the present occasion. It wUl be suflicient to refer the reader to the first and third sections of the second chapter ; in the former of which, cases of trade fixtures in general, have been investi- gated ; and in the latter, those mixed cases in which trade and the profits of land are combined. Considering the few occasions on which the claims of tenant Extent of the ex- for life or in tail have come before the courts, it is almost impos- sible to point out how far the construction, magnitude, and mode of annexation of an article, might affect the right of the executor to take it as part of the personal estate. An attentive examina- tion of the grounds of decision in the two cases above cited, Lawton v. Lawton, and Lord Dudley v. Lord Warde, will afford the best criterion for determining these questions. *And in the first place it is to be observed, that in the appli- r*1311 cation of the general principle, as recognized in those cases, the Affected by the particular state of the facts was much relied upon by the court. of°he'artide.*°' For, although the consideration of trade, as conducing to the (d) The working of mines and coUieriea is conaidered in equity as a species of trade. See 3 Atk. 264 ; Amb. 56 ; 1 Tes. 308 ; 1 Jao. & Walk. 302. (a) Lord Ellenborough treats these exceptions as resting on the ground, that trade is a matter of a personal nature ; and therefore, whatever is accessary to trade ought itself to be deemed personalty. See cmte, p. 34 It should be noticed, also, that lord Hardwioke speaks in his judgments of the encouragement to be aiforded to tenants for life, &o., in the general improvement of their estates. See ante, p. 29. And see per Lord Mansfield, in Lawton v. Lawkm, vh. sup. 7 ag TENANTS FOE LIFE, ETC, [PAET L -pvibliQ benefit, was the substantial ground upon whicb the fire engines were deemed personalty, yet Lord Hardwicke mentions several other reasons in support of the executor's claim. Thus he adverts to the nature of the engines, as being movable chat- tels in gross or in part before they were put up ; and he com- pares them in this respect to the ordinary utensils of a brew- By the injury to ijouse. Affain, iu answer to an obiection as to the injury the the inheritance. o ! J . , inheritance would sustain in being deprived of the erections, he relies on the circumstance that the colliery could be enjoyed without them ; so that it was only a question of majus and mi- nus, whether it was more or less convenient for the collieries. He admits, also, that it is a general maxim, that the principal thing shall not be destroyed by taking away the accessary ; and says that it did not affect the question before him, because the engines were the principal, and the walls and sheds over them the accessaries.(a) Lord Hardwicke, therefore, appears to con- sider, that if the removal of the erections would have occasioned any substantial damage to the estate, or if they had been so far essential to the enjoyment of the land, that the inheritance could not have subsisted without them, the executor would not have r*182] been entitled to them, *but they must have gone to the remain- der-man as parcel of the freehold. Analogy of deoi- In the uext placc it niav be observed, that in determining the sions between -^ ■ . ' ■ n i i other parties, cascs Under Consideration, the court took notice of the analogy of corresponding claims, which had been the subject of discussion between other parties. And these were supposed to furnish a criterion for the decision of like questions arising between ten- ants for life, &c., and those in remainder. In many instances this analogy would doubtless afford a safe mode of determining whether an article is to be deemed part of the real or the per- sonal estate. But it must be borne in mind that in resolving questions of fixtures according to this method, it is very neces- sary to attend to the distinction which is supposed to exist, as to the degree of favor with which the law regards the claims of some individuals over those of others. Frequent allusion has been made to this distinction in the course of the work. And as it appears that the claims now under consideration have been contrasted, on the one hand, with those of the executors of tenants (a) It had been objected in argument, that as the fire engines were annexed to cer- tain sheds, the sheds ought not to be injured by taking away the accessarial engines. CHAP. III. SEC. I.] TEADB HXTUEES, ETC. 99 in fee, and on the otlier, -vvitli those of a common tenant for years, the present seenis a convenient opportunity for noticing the opin- ions that are entertained upon this subject. deci- between heir and execu- tor. There is no doubt that the personal representatives of tenant ^."^^"sy^J, for life or in tail, would have at least the same privilege in re- moving fixtures against the remainder-man or reversioner,, that the personal representatives of the deceased owner in fee have against the heir. For, in the case of executor and heir, the rule is said to obtain with the most rigor in favor of *the real estate ; [*133] and the case of tenant for life or in tail has been called an " in- termediate " one, between that of heir and executor, and that of landlord and tenant.(a) Accordingly, it seems to be generally understood, that any determination in favor of an executor's claim to remove fixtures against an heir, will support a similar claim between whatever parties it may arise. With respect, however, to inferences to be drawn from deci- ^0^°^ betw^n sions in favor of a tenant for years, it is certainly a remark often J^nanT.'' *'"' met with in the judgments of the courts, that questions relating to fixtures between the representatives of tenants for life or in tail, and the remainder-man, are to be construed less liberally than in the case of a common tenant and his landlord.(6) There does not, however, appear to be any case, the determination of which has proceeded upon a known or recognized distinction between these parties. For it cannot, upon authority, be affirmed of any specific article, that it is removable as between tenant and landlord, but that it is not removable as between tenant for life, and the remainder-man. Lord Hardwicke seems to treat the two classes much in the same light, and considers their claims to be founded on similar reasons. And, although he says that the case of a tenant lor life is not quite so strong as that of a com- mon tenant, yet many of his arguments are drawn from the close analogy between them. In like manner Lord Mansfield *appears [*134:] to consider that the rule in respect of trade holds eqiiaUy in the one case as in the other. And even in Uhves v. Maw, where the distinction is most pointedly laid down, the explanation which Lord EUenborough gives of the leading decisions relating to fix- (a) See this rule applied by Lord Hardwicke, in respect of the cider miU, Ante, p. 128. (6) 2 Bast, 91 ; 3 Bast, 51. 100 , TENANTS POR LIFE, ETC. [PART I- tures, proceeds upon a principle that is alike applicable to every description of claimants.(a) However, as this distinction has been so often noticed by the highest authorities, it ^YOuld not be safe to disregard it in practice. And this general observation may be offered on the subject : that, although everything which belongs to the representatives of a tenant for life or in tail, on the ground of its relation to trade, may be considered a fortiori removable by a tenant against his landlord, a decision between these latter parties must not be relied upon as forming a conclu- sive ground of determination, where the claims of the former in- dividuals are in question. Nevertheless, from the analogy which prevails between the two classes, it will always be found useful, in determining the rights of tenant for life or in tail, to consult any corresponding cases that have been decided between a com- mon tenant and his landlord. M^whv'faToved'" There does not appear to be any reason assigned in the judg- ments of the courts, why the general rule of law should be con- strued most strictly in the case of heir and executor, and most liberally in the case of a common tenant. Perhaps, in addition to the known partiality of the law towards the interests of the heir, the reason may have been, that the courts considered that [*135] it was not equally necessary to relax *the general rule in respect of each description of claimants ; and that the objects of public policy might be attained by a slighter deviation from the ancient strictness where one class of individuals was concerned, than in the case of others. For, as there is no community of interest in respect of fixtures between a tenant and his landlord, the tenant would generally be deterred from making expensive improve- ments for the benefit of his trade, if he were compelled to leave them at the end of his term. Whereas the interests of a tenant for life is often, (as in family settlements,) connected intimately with that of the remainder-man. And in the case of a tenant in fee, the question is merely one of real or personal assets ; and whether the property, after his death, is transferred to his real or his personal representative, is a consideration which probably would not at all influence him in making annexations to his free- hold.(a) (o) See anie, p. 34. (a) See the judgments in Fisher v. Dixon, Dom. Pr. referred to ch. 4, post. CHAP. III. SEO. I.] TRADE FIXTURES, ETC. The practical inference to be deduced from the observation in the foregoing pages is, that in ascertaining whether a particu- lar article set up in relation to trade, forms part of the personal estate of tenant for life or in tail, the first inquiry will be, whe- ther it is governed by the case of the fire engines, or that of the cider mill, decided between the executor and the heir of the de- ceased owner in fee. The analogy of the different cases between landlord and tenant may next be resorted to ; with that caution, however, which, it has been seen, is necessary on such occasions. In every instance, the general principles of trade fixtures, *as [*136] they apply to each class of individuals, must be borne in mind. And, lastly, regard must be paid to all those circumstances ari- sing out of each particular case, which have been particularly alluded to in the concluding part of the first section of the pre- ceding chapter. For, from Lord Hardwicke's observations upon this subject, it will appear that, besides other considerations, the question whether part of the real or the personal assets may be materially affected by the nature and construction of the article, its value to the inheritance, and the injury its removal will cause to the estate, (a) It is, indeed, not unreasonable to expect, that, at the present day, a decision of the courts would carry the relaxation in favor of the personal estate, further than to the removal of mere ma- chinery, like the fire engines, before Lord Hardwicke. For, in the time of Lord Hardwicke, Poolers case was the only reported authority which expressly recognized the exception in respect of trade fixtures. Whereas, since that period, the general principle of the exception has been gradually extended, and has been acted upon by the courts with increasing liberality. (6) [1] (a) As to the effect oi custom.m. questions of fixtures, see orate, p. 45. (6) It is presumed that the executor will have a reasonable time for the removal of fixtures after the death of his testator. Vide 22 Ed. IT, p. 21 ; Cro. Jac. 204. A question, however, might arise, whether if he should be guilty of neglect in taking them away, it would amount to an ahandonment of them ; or whether, as ar fas re- spects the claim of the executor, the property wiU not continue in the nature of per- sonalty. [1] The late Chancellor Kent, (nomen prceclarum et venerabile,) in his valuable com- mentary on American law, Vol. II, p. 343, states the principles of the Law of Fix. tures as generally received and adopted in the United States, with succinctness and perspicuity. He remarks, that "In modem times, for the encouragement of trade 102 TENANTS FOB LIFE, ETC. [PART I. *137] *SE0TIO]Sr II. Of the Right of the Personal Representatives of Tenant for Life or in Tail, ill respect of Fixtures 'put up for Ornament or Convenience. In the preceding section it was observed, that the only direct authorities relating to fixtures put up by tenants for life, or tenants in tail, were those of Lawton v. Lawton, and Lord Dud- and manufactures, and as between landlord and tenant, many things are now treated as personal property, which seem, in a very considerable degree, to belong to the freehold. The law of fixtures is in derogation of the original rule of the com- mon law, which subjected everything affixed to the freehold, to the law governing the freehold ; and it has grown up into a system of judicial legislation, so as almost to render the right of removal of fixtures a general rule, instead of being an excep- tion. 1"he general rule which appears to be the result of the cases, is, that things which the tenant has affixed to the freehold, for the purposes of trade or manufac- tures, may be removed when the removal is not contrary to any prevailing usage, or does not cause any material injuiy to the estate, and which can be removed with- out losing their essential character or value as personal chattels. Thus, things set up by a lessee in relation to his trade, as vats, eoj)pers, tables and partitions belong- ing to a soap boiler, [Pooh's case, 1 Salk. 368,) may be removed during the term. The tenant may take away chimneypieces, and even wainscot, if put up by himself, (Ex parte Quincy, 1 Atk. ill,) or a cider-mill and press erected by him on the land, {Holmes v. Tremper, 20 Johns. 29,) or a pump erected by him, if removable without material injury to the freehold. Grymes v. Boweren, 4 Moore & Payne, 143 ; 6 Bingham, 437. So a building resting upon blocks, and not let into the soil, has been held a mere chattel. Naylor v. GoUinge, 1 Taunton, 21. A post windmill, erected by the tenant, (Rexy. Londonffwrpe, 6 Term. E. SI'I • also, Rex v. Oiley, 1 B. & Adolph. 161,) and machinery for spinning and carding, though nailed to the floor, {Gresson v. Siout, 17 Johns. 116,) and copper stills, and distillery apparatus, though fixed, (Reynolds v. Shuler, 5 Cowen, 323 ; Raymond v. White, 7 Cowen, 318,) are held to be personal property. On the other hand, iron stoves fltxed to the brick- work of the chimneys of a house, have been adjudged to pass with the house as part of the freehold, where the house was set off on execution to a creditor. God- dard v. Chase, 7 Mass. E. 432. But in another case in the same court, between mortgagor and mortgagee, the possessor, on the termination of that relation, was al- lowed to take down and carry away buildings erected by him on the land, and standing on posts, and not so connected with the soil but they could be removed ■without prejudice to it. Taylor v. Townsend, 8 Mass. Eep. 411. The tenant may also remove articles put up at his own expense for ornament, or domestic conveni- ence, unless they be permanent additions to the estate, and so united to the house as materially to impair it, if removed, and when the removal would amount to a waste. The right of removal will depend upon the mode of annexation of the article, and the effect which the removal would have upon the premises. Buckland v. But- terfield, 2 Brod. & Bing. 54. In the case of Blood v. Richardson, (N. T. Court of Common Pleas, 1831,) the tenant was held to be entitled to remove a grate and othec CHAP. ni. SEC. II.] FIXTURES FOR ORNAMENT, ETC. 103 ley V. Lord Warde; and these, it lias been sliown, were decided upon the ground of an exception in favor of trade. But besides trade erections, there are also articles of another description, fixtures put up by him for his own accommodation ; and the law of fixtures, In its .application to the relation of landlord and tenant, partalies of the liberal and com- mercial spirit of the times. Questions respecting the right to what are ordinarily eaUed fixtures, or articles of a personal nature affixed to the fi:eehold, principally arise between three classes of persons. 1st. Between heir and executor ;_ and there the rule obtains with the most rigor in favor of the inheritance, and against the right to consider as a personal chattel anything which has been affixed to the freehold. (New Yorli R. S. part 2, oh. 6, tit. 3, art. 1, declares that things annexed to the freehold, or to any building, for the pur- pose of trade or manufacture, and not fixed into the wall of a house, so as to be es- sential to its support, go to the executor as assets ; and that all other things an- nexed to the freehold, descend to the heir or devisee.) 2d. Between the executor of the tenant for life, and the remainder-man or reversioner ; and here the right to fixtures is considered more favorably for the executors. 3d. Between lardlord and tenant ; and here the claim to have articles treated as personal property, is received with tlie greatest latitude and indulgence. 4th. There is an exception of a broader ■extent, in respect to fixtures erected for the purpose of trade, and the origin of it may be traced baclf to the dawnings of modern art and science; (20 Hen. VII, 13 a and b, pi. 24, in which case the exception was allowed in favor of abalier and a dyer affixing furnaces, or vats, or vessels, pur occupier son occupations, but the exception was ahnoii too liberal for the age, and 21 Hpn. VII, 21, it was narrowed to things fixed to the ground, and not to the walls of the principal building.) Lord EUen- borough, in Elwes v. Maw, (3 Bast. 38,) went through all the eases from the time of the Tear Books, and the court concluded, that there was a distinction between an- nexations to the freehold, for the purposes of trade or manufactures, and those made for the purposes of agriculture ; and the right of the tenant was strong in the one case, and not in the other. It was held that an agriculttiral tenant, who had erected for the convenient occupation of his farm, several buildings, was not entitled to re- move them. Had the erections been made for the benefit of trade or manufactures, there would seem to have been no doubt of the right of removal. The strict rule as to fixtures, that applies between heir and executor, applies equally as between ven- dor and vendee ; and manure lying on the land, and fixtures erected by the vendor for the purposes of trade and manufactures, as potash kettles, for manufacturing ashes, pass to the vendee of the land. Miller v. Plumb, 6 Cowen, 665 ; Kirioan v. Latour, 1 Har. & John. 289 ; Kittredge v. Woods, 3 N. H. R. 503. The mam mill wheel and gearing of a factory, and necessary to its operation, are held to be fix- tures and real e.state, in favor of the right of dower, as against the heir. Powell v. Monson and Brimfield Manufacturing Company, 3 Mason R. 459. Such machinery will also pass to the vendee as against the vendor. Farrar v. Siackpole, 6 Green- leaf, 154. Fixtures go along with the premises to a lessee, if no, reservation be made at the time of the contract; (Oolgrave v. JDios Santos, 2 Barn. & Cress. 16,) and the ■tenant must remove fixtures put up by him, before he quits the possession, on the expiration of his lease. Lee v. Bisdon, 1 Taunt. 183 ; Hx parte Quincy, 1 Atk. 417 ; ■2 Barn. & Cress. 76; Poole's case, 1 Salk. 368; Penton v. Boba/rt, 2 East. 88. If not yemoyed during the term, they become the property of the landlord. IJyde v. Bus- 104 TENANTS FOR LIFE, ETC. " [PART I. which, though fixed to the freehold, may be considered in the nature of personal estate ; viz., matters of ornament and conve- nience. Matters ot orna- The right of the personal representative of tenant for life or ment, &c., per- D x i • ■ i sonai estate. in tail to take away matters of ornament or convenience, is to be inferred from the circumstance that fixtures of this description have been allowed to form part of the personal estate of a de- ceased tenant in fee. This inference is warranted by the rule laid down in the preceding section.(a) And it will be recollected, that a similar mode of reasoning was used in investigating the claims of a common tenant against his landlord, where, perhaps, the analogy is not quite so direct as in the present case. r*1381 *^* ^'^^ ^°^i however, be found, that the claims of the per- Tapestry, fur- soual representatives of tenant for life or in tail, in matters of ''''°^'' ^'"'"°' *" ornament, &c., can be carried to any great extent upon the au- thority of decisions between heir and executor. For, on refer- ring to the cases cited in chap. 4, sect. 2, it appears, that the articles which an executor of a tenant in fee has been held enti- tled to take, as part of the personal estate, consist merely of (a) See ante, p. 132. sell, 1 Bam. & Adolphus, 394. The French law coincides with the English in re- spect to fixtures made for embellishment; the tenant may remove them, provided they can be removed without being destroyed, and without deteriorating the prem- ises. Lois des Batiments, pair Le Page tomll, 190, 205. It has been strongly ques- tioned by high authority, (Van Ness v. Pacard, 2 Peters, 137,) whether erections for agricultural purposes, ought not, in this country, to receive the same protection in favor of the tenant, as those fixtures made for the purposes of trade, manufactures, or domestic convenience. They may be necessary for the beneficial enjoyment of the estate, and the protection of its produce ; and pubhc policy and the interest of the owner of the soil, are equally j)romoted by encouragement given to the tenant, to cultivate and improve the estate. In Whiting v. Brasiow, 4 Pick. 310, the agricultural tenant received a liberal ap- plication of the exception, in favor of the removal of fixtures. He was allowed to remove all such improvements as were made by him, the removal of which would not injm-e the premises, or put them in a worse pUght than they were in when he took possession. The case oi Holmes v. Tremper, 20 Johns. 29, may also be referred to, as containing a just and enlarged view of the subject ; and the tenant was al- lowed to remove a cider mUl and press, erected for his own use. But the same policy of encouraging and protecting agricultural improvements, wiU not permit the out-going tenant to remove the manure which has accumulated upon a farm during the course of hia term. Lassell v. Eeed, 6 Greenleaf, 222. CHAP. III. SEC. II.] FIXTURES i'OR ORNAMENT, ETC. 105 hangings, glasses, and tapestry nailed to tlie walls of a house, fur- naces, grates, iron hacks to chimneys, and sucli like.(a) These in- stances, therefore, only establish an indulgence extending to things which subsist as complete chattels in themselves, and which, having been put up as mere ornamental furniture, or for temporary domestic convenience, are not united to the fabric of the house by any permanent or substantial annexation. It is very questionable whether it would be safe to conclude, ^fj°f^°'tween that a matter of ornament put up by a tenant for life, &c., might 'tenant'.'* *°* be claimed as personalty by his executor, on the ground that it would be a removable fixture, as between landlord and tenant. Upon this subject the reader will find some observations in the concluding part of the last section; and he will collect from thence how far the decisions in favor of a common tenant may be applied to questions between tenants for life, &c., and those in remainder. It would seem, indeed, from some expressions of Lord Hardwicke and Lord Mansfield, mentioned on a *former [*139] occasion,(a) that these judges were disposed to give a very libe- ral construction to the privilege of the personal representative ; for they appear to consider that he is entitled to remove things which have been pnt up for the general improvement of the estate. There is, however, no instance in which the courts have acted upon this principle : and it would by no means be safe to rely upon it in any practical question. In the absence, therefore, of direct authority upon the subject. General observa- cases respecting the right of the personal representatives to ""'^' things set up by tenants for life or in taU, which cannot be brought within the class of trade fixtures, must in general be left to be inferred from determinations between the heir and execu- tor of the owner in fee. And where none of those determinations are in point, the question whether part of the real or personal estate, must be examined with reference to the general principles on which the exception in favor of matters of ornament had been allowed in other cases. It will always, however, be material in the practical application of those principles, to take into con- (a) See the oases of Squier v. Mwyer, 2 Preem. 249 ; Sa/rvey v.Sm-vey, Str, 1141; and SecJe v. Seiow, 1 P. "Wms. 94. (a) See ante, p. 130, in notis. 106 TENANTS FOE LIFE, ETC. [PART I. sideration the manner in whicli the article is constructed and affixed, and the injury which may be occasioned to the rever- sionary interest by its removal.(&) [*140] *SECTIO]Sr III. Of the Rights of Tenants for Lfe or in Tail^ during their Lives, in respect to Fixtures. The two former sections have treated of the right of property in fixtures after the death of & tenant for life, or a tenant in tail : and the rules laid down were intended to apply only to the claims of the personal repireseyiiatives of those individuals, as against the party who has succeeded to the estate in reversion. But it might be useful to inquire what are the privileges of the tenants themselves in respect of things they annex to their own freehold ; and to distinguish between the powers they possess from the general principles of tenure as incident to their estates, and those which they derive under the law affixtures. Right of tenant And first, with respect to a tenant in tail. There can be no in toM. ' . ■■■ . doubt that a tenant in tail, by reason of the nature of his estate, and independently of the law of fixtures, may remove whatever he has affixed to the premises, without reference either to the mode of its annexation, or the purpose for which it was put u.p. For a tenant in tail may commit every kind of waste ; and a court of equity will in no case whatsoever restrain him by in- junction.(a) The same observation holds in the case of the [*14:1] grantee of tenant *in tail ; and if there be subsequent grantees, it applies to them also.(a) The tenant in tail, however, must exercise his powers during the continuance of his estate ; for at the instant of his death they cease ;(5) and the right which sur- vives to his personal representative, under the law of fixtures, is of a very inferior nature. (i) See the observations in the concluding part of sect. 4, of chap. 2. " (a) PeAins, see. 58; Gas. Temp.Talb. 16; 2 Tern. 251; 3 Mad. 532. Andsee 1 Cru. Dig. tit. 2, oh.- 1, sec. 23. (a) 3 Leon. 121 ; 1 Bac. Abr. 260. (6) Cru, Dig, vM swp. CHAP. III. SEO. Ill] RIGHTS DURING LIFE. 107 Secondly, witli respect to a tenant for feje— althougli in general f^;Ffe}^°* '™^°* lie is not permitted to commit waste of any kind, but is impeacti- able for it, unless the contrary is provided by positive limita- tion, (c) yet, by inference from tlie right which it has been seen is possessed by his executor after his death, it must be concluded that he is entitled du:qpg his life, to remove the same description of things that his executor might claim as part of the personal estate. And since the tenant for life is punishable for every act of waste, it is apparent that his title to sever a thing from the freehold cannot arise from a power incident to Ms estate, but ac- crues to him by virtue of the law of flxtn.res only. By the same mode of reasoning it may be inferred, that if a ^^"'^ ^°^ person is tenant pour auter vie, he will have all the rights after the death of cestui que vie, that his own executor would have if he were tenant for his own life. But if the tenant for life holds his estate without impeachment Sejant for life of waste, his situation is altogether different. For in this case:?""'"^^'^**- his powers are much more extensive, and, like those of tenant in tail, arise *merely out of his estate. So that, whenever he [*142J severs a thing from the freehold, he must be considered to do it by virtue of a right, quite independent of the law of fixtures. Still, however, the interest of tenant for life without impeachment, so far differs from that of tenant in tail, that if a case may be supposed where the removal of an erection put up by the tenant for life himself, would, from its circumstances, amount to an act of malicious waste or destruction, it is conceived that he would not be allowed to take it away.(a) The distinction between the rights which belong to a tenant from his not being impeachable for waste, and those which he derives from the law of fixtures, is pointed out by Lord Holt. He observes, in Pooleh case,{b) (in reference to the taking of fix- (c) 1 Cru. Dig. tit. 3, oh. 2. (a) There have been many important decisions upon the restraints imposed in Chancery, on the clause "without impeachment of waste." See Vane v. Lord Ber- nm-d, 2 Vern. 138; S. G. Preo. Ch. 454; 1 Eq. Ab. 399; 1 Salt. 161; Eoli v. SomerviUe, 2 Eq. Ab. 159; Pachington v. Packirngton, 3 Atk. 216 ; Aston v. Aston, 1 Tes. 264 ; O'Brien r. O'Brien, Amb. lOt ; Sirathmore v. Boives, 2 Br. Eep. 88 ; 3farq. Downshire v. Lord Sands, 6 Tes. 10'? ; Lord Tamworih v. Lord Ferrers, 6 Ves. 419 ; Day v. Merry, 16 Tes. 315. See, also, 1 Br. Rep. 166; 2 Atk. 383 ; 16 Tes. 185 ; 1 T. R. 56 ; Com. Dig. tit. Chancery, D. 11. (6) 1 Salk, 368. 108 TENANTS I'OR LIFE, ETC. [PART I. tares in execution,) that the case of tenant for years without im- peachment is not like that of a common tenant. In the former case, he allowed that the sheriff could not cut down and sell, though the tenant might ; and the rea^n was, because in that case th* tenant had only a bare power without an interest : but a common tenant has an interest as well^as a power, as tenant for years has in standing corn, in which case the sheriff can cut down and sell. [*143] *The rights of a tenant in tail after possibility of issue extinct^ Temint apres in removing things afl&xed to the freehold, may be considered as ^'^^ * ^' being the same as those of a tenant for life without- impeachment t of waste.(a) But the grantee of tenant in tail apres possibility is in the situation of a bare tenant for life.(6) Tenant by the A tenant by the courtesy is punishable for waste, like a com- mon tenant for life. So likewise is a tenant in dower. {c) And hence the rights of these parties in fixtures will resemble those which belong to tenants for life. Eights of tenants From Comparing the rights enioyed by the owners of these for life, Ac, and n i i ■ ■> ■! J of their execu- Several interests and by their personal representatives, it may be tors, compared. . . . ^ „ -, \ . seen that the privilege of removing fixtures after the determina- tion of the particular estate, does not arise out of the principle that whatever a testator might have removed in his lifetime, his executor is entitled to remove after his death. For it has been shown, that the rights of tenants in tail, and tenants for life, differ both in nature and degree ; whereas the rights of their executors are in all respects similar. The distinction seems to be, that in the case of tenant in tail or tenant without impeachment of waste, the testator removes articles af&xed to the freehold simply by reason of a power incident to an estate in land ; whereas the right of the executor is commimicated to him by the law, with a [*144] ^6w to public benefit and *convcnience. The analogy of the doctrine of emblements, which is frequently of use in explaining the law of fixtures, seems, in this instance, calculated to mislead. (a) 4 Co. 62 ; 11 Co. 19 ; 1 EoU. Rep. Ill ; 15 Ves. 419, 430 ; 2 Preem. 53, 218 ; 2 Show. 69, 2 Bq. Ab. 151; Com. Dig. Chano. D. 11; Doot. Stud. Dial. 2, chap. 1. (6) 3 Leon. 241; Co. Lit. 28, a. (c) 2 Inst. 145, 301, 353. CHAP III. SEC. lY.] SIXTURES, DILAPIDATIONS. 109 Many legal inferences of a curious nature appear to result from tlie comparison here suggested. Thus, in respect of the rights of the executor of a tenant in tail : it is apprehended, that if his testator leaves issue in tail, the executor will not be entitled to greater privileges as to fixtures against the heir in tail, than the executor of tenant in fee simple may be found to have against the heir in fee ; although the heir in tail takes j)er formam doni. Consequently, the right of the executor of a tenant in tail may vary according as it is opposed to that of the heir in tail, or to that of the remainder-man and reversioner. That is to say, if there he any difference between the right of an executor against the heir in fee simple, and the right of an executor of tenant in tail against the remainder-man and reversioner, the same differ- ence will be found between the1?ight of the executor of tenant in tail against the issue in tail, and that of the executor of tenant in tan against the remainder-man and reversioner. It would not, however, be proper to enter further into questions of this nature, since the legal authorities appear to be wholly silent upon them. The object of the present section has been princi- pally to illustrate the principles laid down in the first chapter of the work ; and it is obvious that this illustration could not have been offered at an earlier period, nor until the rights of the sev- eral parties whose claims have been examined had been fully developed. *SECTIO]Sr IV. [*145] Of the Right to Fixtures put up hy Ecclesiastical Pe?-sons: and herein of Dilapidations. To this chapter may, perhaps, most conveniently be referred RemoTai of ta- another description of cases, in which the right of removing astioai persons, property annexed to land occasionally comes in question ; and this is in the instance of persons holding ecclesiastical benefices. The claims arising between these persons and their successors, Their rights sim- • 111 T n ■• T ^ ■'^'" '° *°8e of m respect oi annexations made by them to the freehold, seem tenants for life, very nearly to resemble those which have been the subject of the preceding sections. And, accordingly, Bishop Gibson in 110 ECCLESIASTICAL PBBSONS. t^^S''!^ !• his Codex, (a) in treating of dilapidations, refers to tlie cases of Bech V. Bebow, Cave v. Cave and Herlalenden' s case, whioli have frequently been cited in this treatise. And he says, that " he sets them down as parallel to the disputes which sometimes hap- pen between succeeding incumbents and executors of their pre- decessors, as to what may or may not be taken away, and how far the taking of them away shall be accounted dilapidation." May remove The qucstlons generally in dispute between ecclesiastical per- hangings, grates, -'■ „" ■ -i-1'j-X, Ac. sons, relate to matters of ornament or convenience erected m tne parsonage-house, &c., by the resident incumbent. And, with respect to things of this description, it is laid down by the author [*146]. of *the Ecclesiastical Law, (a) that " If an incumbent enter upon a parsonage-house, in which there are hangings, grates, iron lacks to chimneys, and such like, not put there by the last incumbent but which have gone from successor to successor, the executor of the last incumbent shall not have them, but it seemeth they shall continue in the nature of heirlooms : but if the last incum- bent fixed them there only for his own convenience, it seemeth that they shall be deemed as furniture, or household goods, and shall go to his executor." iD- It may, therefore, it is conceived, be laid down, that an incum- bent or his executor will, in general, be entitled to fixtures of the same description, as those which form part of the personal estate of a deceased tenant for life, and which have been de- scribed in the second section of this chapter. Ornaments of The omamcnts of a bishop's chapel are considered by the law do not^ piss^to as in a manner fixed to the realty, and in the nature of heirlooms. ' e exec . ^^^j qj^ j^^ vacaucy of a see, they pass to the succeeding bishop, and do not belong to the executors of the deceased party, as in the case of other chattels, the property of a sole corporation.(&) Removal after Where an incumbent voluntarily determines his own interest, resignation, c. gj^]^gj. Tqj accepting a benefice, or by resignation, it may be con- cluded that he would not be allowed afterwards to remove his fixtures. On the same principle that he is not in such a case (a) Gibson's Cod. Jur. Ecol. p, 152. (a) Bum's Eccl. Law, p. 304. (6) Bishop of Ga/rlish^s case, Tear Book, 21 Edw. Ill, 48 ; Gorven's case, 12 Rep. 106. CHAP. III. SBC. IV.] FIXTITRES, DILAPIDATIONS. Ill *entitled to emblements. (a) Perhaps, liowever, it may be thouglit, [*147] that the right of removal would not be altogether abandoned until the possession of the fixtures is actually relinquished ; in conformity with the doctrine laid doAvn in the case of Penton v. Rohart and other cases, as explained in a former chapter.(6) Dilapidation is a kind of ecclesiastical waste, and is thus de- Dilapidations, fined by Degge in the Parson's Counsellor, p. 134 : " A dilapi- dation is the pulling down, or destroying in any manner, any of the houses or buildings belonging to a spiritual living, or the chancel ; or suffering them to run into ruin or decay ; or wast- ing and destroying the woods of the church ; or committing or suffering any wilful waste in or upon the inheritance of the church." The species of waste that constitutes dilapidation is such as is committed to the rectory house, barns, out-buildings, &c., belonging thereto, and to the woods, hedges and fences of the same ;(c) asalsotothe chancel of the church. These the incum- bent for the time being is bound to keep in good and substantial repair. But it is confined to these things, and to fixtures and other annexations which become part and parcel of the freehold: and, therefore, a neglect to cultivate the glebe land in a hus- bandlike manner does, not amount to dilapidation.(d) *The remedy for dilapidation is in its nature similar to that r*1481 provided against the owners of particular estates. For bishops. Remedy for, by, rectors, parsons, vicars and other ecclesiastical persons, are con- whom. ^^^^™ sidered in questions respecting the waste of lands which they holdyitre ecdesice, as tenants for life.(a) An action lies at the common law for dilapidation, upon the custom of the realm ■,{b) though the right to sue in the temporal courts was not settled till the case of Jones v. Hill, (3 Lev. 268 ; S. G., Garth. 224.) It lies also in the spiritual courts by the canon law.(c) And remedies have moreover been provided by {a) Buhner r. Bulwer, 2 Barn. & Aid. 410. See jjosi, eh. 4. (6) See ante, p. 91. (c) 4 M. & S. 188 ; 2 Ad. & El. MS. (d) Bird v. Relph, 4 B. & Ad. 826. (a) 2 Ron. Ab. 813; EoU. Eep. 86 ; Amb. 176;' 2 Atk. 217. (6) Lil. Ent. 21, 67, 68 ; 2 T. R. 630 ; 3 Bl. Com. 91. (c) Eespecting the proceedings in the Ecclesiastical Court, see Gribson's Codexi 751, et seq. ; 1499, ei seq. ; and 3 Bl. Com. 91. 112 ECCLESIASTICAL PERSONS. [PART. I. particular Statutes, 13 Eliz. c. 10 ; 14 Eliz. c. 11 ; 17 Geo. Ill, c. 53 ; 57 Geo. Ill, c. 99.{d) The action may be brought by tbe suc- cessor against the predecessor if liying, or if dead, then against his executor, &c. The action against the executor of the tort feasor was in this respect an anomaly, and an exception to the general rule that actio personalis moritur cum persona.ie) hav'e^ tte°° Sgai ^^^ ^^ ^^^ succcssor have not the legal estate in the parsonage- estate, house, lands, &c., he cannot bring an action for dilapidations.(/) If, however, the successor, being entitled to the legal estate, is [*149] put into *possession of a part of the glebe, it is equivalent to an induction into the whole.(a) On exchange of Upon au cxchangc of livings by agreement, after mutual in- stitution and induction, one incumbent may sue the other for dilapidation ; and this although neither party at the time may have contemplated any such claim. For they have the same rights as in a common case of presentation ; and it cannot be implied in such an agreement that either party was not to be liable for dilapidations.(6) o *'. Prebendary. ^ prebendary, or his personal representative, is liable to the Seciuestrator. succcssor for the waste of a prebendal house. (c) So also a se- questrator may be sued for dilapidations.((i) viear^ accepting An action for dilapidations lies by the succeeding vicar against his predecessor, who by taking a benefice, had lost his vicarage.(e) ourate with in- But it has been held, that a curate appointed by the impro- id) It is said also to be good cause of deprivation, if an eoolesiastioal person dilapi- dates the patrimony of the church. 3 Bl. Com. 91 ; Degge, part 1, ch. 8, p. 92 ; Wood's cckss, cited 12 Mod. 23T ; 3 Inst. 204; Godbolt's Rep. 259. (e) Seeposi, part 2, ch. 1, sec. 1. (/) Wright Y. Smithies, 10 East, 409; Browner. Ramsden, 8 Taunt. 559; S C, 2 B. Moore, 612, (a) Bulwer v. BvMer, 2 Barn. & Aid. 410. (6) Downes v. Oraig, 9 M. & W. 166. And see this case as to the validity of an agreement to waive a claim for dilapidations under such circumstances. (c) Baddiffe v. -D' Oyley, 2 T. R. 630. ^) Subbard y. Beckford, 2 Hag. Consist. Rep. 301 ; Whinjkldv. Watkins, 2 Phil- limore's Rep. 1. (e) Tin. Abr. Dilapidationa. CHAP m. SBC. ni.] FIXTURES, DILAPIDATIONS. 113 priatQr, and licensed by tlie archbisliop, but not instituted or in- ^"Jt*M° ducted, is not liable to be sued for dilapidations.(/) or in- daction. The examples here offered, will be suificient to point out the ctenerai uabuity -I T ■ fi 1 ^ of incumbents. general doctrine of the law concerning dilapidation. The sub- ject has been discussed and considered at great length in a mod- ern case, Wise v. *Metcalfe,{a) in the King's Bench; in which the [*150] liability of the incumbent and his representatives, and the prin- ciple upon which the compensation for dilapidations is to be es- timated, are very clearly defined. The rule laid down by the court is, that the incumbent is bound, not only to sustain and repair the parsonage-house, buildings, &c., &c., but even to re- store and rebuild them if necessary, according to the original form, without addition or modern improvement. But this obli- gation extends only to that which is useful, not to such as is matter of ornament or luxury ; such as papering, whitewashing or painting, except so far as is necessary to preserve the timber from decay. For farther information on this subject, the reader is referred to the authorities cited in the notes.(6) (/) Pawley v. Wiseman, 3 Keb. 614. (a) 10 B. & C. 299. (5) Tiner's Abrid. Dflapidations, with Serj. Hill's notes, in Lincoln's Inn Library. Stillingfleet's Boolesiastioal Cases, part 1, p. 60, et seq. ; Degge's Parson's Counsellor, by EUis, p. 134, ei seq. ; G-odolphin Rep. l'!3, et seq. ; Watson's Complete Incumbent, p. 399 ; Gibson's Codex, '751, et seq. ; Bum's Ecclesiastical Law, Dilapidations; Woodeson's Tin. Leot. ToL III, 205 ; Cripp's Treatise, 216, et seq. ; Bird v. Reiiph, 2 Ad. & El. 173. And see stat. 13 Bliz. ch. 10; 14 Eljz. eh. 11 ; 1'7 Geo. Ill, ch. 53 ; 51 Geo. Ill, ch. 99 ; 1 & 2 Tic. «h. 106, sec. 41. See, also, as to proceedings for ' waste, by action, and by prohibition, and injunction, in the second part of this work ; also RoU. Eep. 335 ; 11 Bep. 49 a. 114 HEIR AND EXECUTOR. [PART I. j^*151^ *CH AFTER IV. OP THE RIGHT TO FIXTURES BETWEEN HEIR AND EXECUTOR.— AND HEREIN, OP CHARTERS, HEIR-LOOMS, EMBLEMENTS, ETC. Section I. Of the Right of the Uxecutor to Fixtures put up for Trade, or for Trade combined with other Objects. Section II. Of the Right of the Executor to Fixtures put up for Ornament or Convenience. Section III. Of Charters, Heir-Looms, Emblemeyits, &c. Fixtores between heir and execu SECTION I. Of the Right of the Executor to Fixtures put up for Trade, or for Trade combined with other Objects. There is a third class of person's, according to the division " proposed at the beginning of the second chapter, between wjiom questions as to fixtures not nnfrequently arise ; viz., the personal representative and the heir of a tenant in fee. The respective claims of these individuals in things affixed to the freehold re- main now to be considered.(a) The simple inquiry is this :■ — ^K the owner of the inheritance annexes a personal chattel to the soil, in whom will the right of property in it vest after his de- „.^ .--, cease ; *in his personal representative, or in the heir who takes ^ ^ the inheritance in the land? [1] There appears to be more uncertainty in the doctrine of fix- tures, as it applies to the case of heir and executor, than to that (a) Por the right to fixtures as between the executor and the devisee of a tenant > in fee, the reader is referred to ch. 5, post. [1] The rule in New York, as between grantor and grantee, vendor and vendee, mortgagor and mortgagee, and heir and personal representative, is, that whatever is annexed or affixed to the freehold, by being let into the soil, or annexed to it, or to some erection upon it, to be habitually used there, particularly, if for the purpose of enjoying the realty, or some profit therefrom, is a part of the freehold. Buckley v. Buckley, 11 Barb. S. 0, R. 43. CHAP. IT. SEC. 1.] TRADE EIXTtTEES. 116 of any other class of persons. And as the difficulty seems in this instance to relate, not merely to the extent of the executor's right, but to the existence of the right itself, it may be proper, before proceeding to an examination of the cases, to consider the early opinions upon this subject, with more attention than was thought necessary when considering the claims of other parties. In the early periods of the law, it was considered an inflexible f;™""" aut^ori- rule, that whatever was affixed to the freehold, should descend to the heir as part and parcel of the inheritance. On referring to the aiithorities, it will be found that so long ago as in the reign of Henry VII, questions between the executor and the heir as to things set up by the owner in fee, came before the courts ; and it was then clearly laid down, that the executor was not en- titled to anything that was connected with the testator's freehold. Thus, in the Year Book, 20 Hen. VII, c. 13, trespass was brought by the heir against the executors of an owner in fee for taking away a furnace fixed with mortar to the freehold. And the court held thaj the taking by the executors was tortious. In another case, in the Year Book, 21 Hen VII, c. 26, an ac- tion was brought against an executor for removing a furnace which was not fixed to the walls, but *to the middle of a house. r*153] On this occasion the court thought that the circumstance of the annexation being to the earth only, would not support the exe- cutor's claim to the furnace, though it might give a lessee a right to it. They held, therefore, that the furnace belonged to the heir, and that the action well lay by him. And it was said by Kingsmil, J,, that the furnace, after it is fixed to the freehold, is incident to, and becomes parcel of the freehold ; and that the heir should have posts fixed to the ground by the ancestor ; and so of vats fixed in a brew-house or dye-house : for " when they are fixed they are for the continual profit of the house ; and, therefore, it is more reasonable that the heir should have them, to whom the freehold to which they are joined belongs, than the executors, who have nothing to do with the freehold." And Reid, Oh. J., observed, " The executors shall have all manner of chattels which were their testator's ; but it is where they are prop- erly in the nature of chattels ; therefore, here, when this furnace is fixed, it is, as it were, a thing of a higher nature, and in a IIQ HEIE AND EXECUTOR. [PAET I. manner is made incident to this, as in the case put of tables dor- mant, the heir shall have them, and not the executor : and for this reason, that when they are joined to the inheritance, it is agreeable to reason that they should pass with the inheritance." The same principle appears to have governed the decision of a case reported in Keilwey (88,) Hil. T. 22, H. YII. See also the Year Book, 8 Hen. VII, 12 ; Owen, 71 ; Cro. Jac. 129 ; 4 Kep. 63, 64.(a) [*154] *The several early text writers, who have treated of the Te- Textm-iiers. spcctive claims of the heir and executor, express themselves in exact conformity with these cases. In Swinburne's Treatise of Wills, (a) the author, in stating what matters are to be put into the inventory of the executor, observes, that " glass, annexed to the windows of the house, is parcel of the inheritance, and the executor shall not have it. The like may be concluded of wain- scot, howsoever it may be affixed ; and if the executors should remove it, they are punishable for the same. And not only glass and wainscot, but any other such like things ^affixed to the free- hold, or to the ground with mortar and stone : as tables dor- mant, leads, bayes, mangers, &c., for these belong to the heir, and not to the executor." So, in Shepherd's Touchstone, (6) it is said that an executor or administrator "shall not have the incidents of a hoiise, as glass, doors, wainscot, and the like, no more than the house itself; nor pales, walls, staulks," &c. And again, " tables dormant, furna- ces of lead and brass, and vats in a brew and dye-house, stand- ing and fastened to the walls, or standing in or fastened to the ground in the" middle of the house (though fastened to no wall ;) (a) Vide, also, Br. Ab. tit. Chattels, pi. 7, (citing the above oases.) "The same law of paling, and windows, and posts or doors of a house, they shall go to the heir, and yet they are not fixed. But it is not a perfect house without them." It is then added, "the contrary ot glass, for the executor shall have this; for ihe house is per- fect wUhoul the glass. Per Pollard, quod non fuU negaium. See, also, Br. Ab. tit. Executors, 95 ; RoUe's Ab. 819 ; Bac. Ab. Executor, H. 3. Of glass, however, Lord Coke observes, that waste may be committed of it, for it is a parcel of the house, and shall descend as parcel of the inheritance to the heir, and the executors shall not have it. 4 Co. 64 ; Serlakenden's case. Went. 0£ Ex. 62. (a) Part 6, sec. 1, p. tSS, 1th ed. ; Id. 256. And see Godolphin's Orp. Leg. part 2, ch. 14. Law of Test. 380. (6) Pages 469, 4T0. CHAP. IV. SEC. 1] TRADE OP FIXTURES. 117 a copper or lead fixed to the house ; the doors within and with- out that are ""'hanging and serving to any part of the house, shall [*155] not go to the executor or administrator to be divided and sold ' from the house, albeit the executor or administrator have a lease for years of the house, and by that means hath the house also. But if the glass be from the windows, or there be wainscot loose, or doors more than are used, that are not hanging or the like, these things shall go to the executor or administrator." The same doctrine is laid down in Wentworth's Office of Exe- cutors.(a.) And among other things, mill stones, [1] anvils,(6) doors, keys and window shutters are enumerated, of which it is said, none of these be chattels, but parcel of the freehold, or thereunto pertaining, and therefore shall not go to the executors. So, in Noy's Treatise, (c) " The heir shall have not only the glass and wainscot, but any other of such like things affixed to the freehold or ground, as tables, dormants, furnaces, vats in the brew-house or dye-house." And again, " all chattels shall go to the executor, as vats and furnaces fixed in a brew-house or dye- house by the lessee, but if they be fixed by tenant in fee, the heir shall have them." On referring to authorities of a still later date, it will be found that the rule of law is laid down with the same degree of strict- ness in favor of the heir. Thus, in Comyn's Digest, (c?) it is said that goods *and chattels annexed to the freehold go to the heir, r*1561 as the glass in a window, the doors and locks of a house. And the author refers to several of the foregoing cases. To the same (a) p. 62. This and the -work last cited, are attributed to the same author, Mr. Justice Doddridge. (6) As to miU stones and anvUe, aeepost, part 2, ch. 11, see. 1 ; and the conclud- ing page of this section. (c) Pages 237 and 144, 9th ed. {d) Tit. Biens, B. [1] The water wheels, mUl stones, running gear, and bolting apparatus of a grist and flouring mill, and other fixtures of the same character, are constituent parts of the miU, and descend to the heir at law as real property, and do not pass to the executor or administrator of the deceased owner of the mill as part of his personal estate. Eotiser. Mouse, 10 Paige Ch. E. 158. 118 HBIE AND EXECUTOR. [PART I. effect is the doctrine laid down in Back. Ab. Vol. Ill, p. 63, and in Vin. Ab. Yol. II, p. 166.(a)[l] Sir Michael Forster, in his Eeport of Crown Cases, in discuss- " ing the qxiestion whether a cupboard or chest let into a wall is so far a part of the house, as to make the breaking it open to be burglary at common law, or an offence within the statutes re- specting housebreaking, considers that in general the annexa- tion of articles of this description makes them part of the free- hold, and the propertjr of the heir ; though the rule in criminal cases is otherwise, in favorem viice. He says, " With regard to cupboards, presses, lockers, and other fixtures of the like kind, I think we must, in favor of life, distinguish between cases relative to mere propert)^, and such wherein life is concerned. In ques- tions between the heir or devisee and the executor those fixtures may with propriety enough be considered as annexed to and parts of the freehold. The law will presume that it was the in- tention of the owner under whose bounty the executor claimeth, that they should be so considered ; to the end that the house r*1571 might remain to those, who, *by operation of law or by his be- quest, should become entitled to it, in the same plight he pnt it, or should leave it, entire and undefaced.(a) (a) It has been laid down, that dung in a heap is a chattel, and goes to the ex- ecutor; but if spread upon the land, so that it cannot be taken without taking the soil with it, then it is accounted parcel of the freehold. Sty. 66 ; S. C, nomine Ccur- ver T. Fierce, Aleyn, 32. See, also, Noy's Max. 119, 9th ed. ; ffiggon v. Morti- more, 6 C. & P. 616 ; Blewett v. Tregonning, 3 Ad. & El. 554 ; and the judgment of Littledale, J., and Patterson, J., in that case. In the civil law, dunghills were con- sidered accessaries of the soil. {a) Cr. Gas. 109. [1] It has been held, that manure lying about a barn yard, passes by a convey- ance of the land, as an incident to the inheritance. Kittredge v. Woods, 3 New Hamps. 503. The manure referred to in this decision, as well as in the English cases, was, no doubt, manure gathered in from the farm, and produced mainly by , the feeding and depastTiring of sheep, cattle and horses, on its succulent vegetables and grasses ; such manure would partake of the accessarial character imputed to it by the civil law ; but, it is apprehended that a different question would be pre- sented, not only between landlord and tenant, but also between vendor and vendee, heir and executor, if the manure were not^ produced directly or indirectly from the land, but were foreign to the soil, as in the case of guano, poudrette, marl, lime, and other fertilizing appHances, purchased and brought upon the premises, but re- maining in heaps, unspread upon the land, at the close of a tenancy, or upon a sale and conveyance, or descent oast. CHAP. IV. SBC. I.] TRADE FIXTURES. 119 Such, therefore, was the established rule of law with regard to ^"'i^'" ii«"3i»m annexations to the freehold, as observed with great rigor for a long period of time. But this strictness has, in later times, given way to a more liberal construction in favor of the executor and the personal estate in certain cases; and a departure from the ancient rule, with regard as well to fixtures put up for trade, as to those put up for other purposes, has been recognized, to a cer- tain extent, by several modern authorities which are entitled to the highest consideration. Many, however, have hesitated to acquiesce in the propriety of this departure from the general rule. And with respect to the particular class of fixtures which are put up in relation to trade, an important judgment of the House of Lords in a recent case, appears to throw very considera- ble doubt upon the authorities in question. For in that case it was laid down that the principle upon which a relaxation in favor of trade is founded, is not applicable to questions between the heir and executor of the owner of the inheritance. Such appears to be the result of the case of Fisher, App. v. Dixon, Besp., (Dom. Proc. June, 1846 ;)(5) as far at least as respects machinery put up by the owner of the inheritance for the purpose of the beneficial enjoyment of the land, in the trade and business he carries on there, and which is necessary for such *enjoyment. This decision it will of course be necessary r*1581 to consider at length. But as it is the first instance in modern times in which this restriction has been expressly laid down, and the effect and operation of this restriction in particular cases re- mains yet to be determined, it will be proper first to review the several authorities above alluded to, in which a relaxation in favor of the personal estate has been allowed in things partly or wholly essential to trade. There is no case to be met with in the reports, in which an cider muis. exception in favor of trade fixtures was allowed as between ex- ecutor and heir, until after the indulgence had been confirmed to a common tenant on the authority of Poolers case.{a) For the first instance in which this principle appears to have been recog- nized as between these parties, is in a decision of Chief Baron Comyns respecting a cider mill. In an action of trover brought (S) 12 CI. & F. 212. {a) Mio, T. 2 Ann, ; 1 Sajk, 368, 120 HEIR AND ESECUTOR. [PART I. by an executor against the lieir for a cider mill let into the ground, and affixed to the freehold, the Chief Baron held at Nisi Prius, that it was personal estate, and directed the jury to find for the executor. This' decision was mentioned for the first time in the discus- sion of the case of Lawton v. Lawton.ib) Lord Hardwicke, on that occasion, approved of the Chief Baron's determination, and speaks of the decision with great respect ; and in the case of Lord Dudley v. Lord Warde,{c) which came subsequently before [*159] him, *he said expressly, that his judgments were partly founded upon that authority. The case itself is nowhere reported, nor are the facts particularly mentioned. But the ground upon which it is generally supposed to have proceeded is, that it fell within the rule in favor of trade fixtures, and that the mill was to be considered in the nature of personalty, because the making of cider was a species of trade. Such appears to have been Lord Hardwicke's view of the de- cision. For in one part of his judgment in Lawton v. Laioton, he says, that in cases between ancestor and heir, as well as be- tween other parties, the law " does admit the consideration of public conveniency for determining the question." And more- over he observes, that the rule with respect to fixtures is like that of emhlements, which, for the benefit of the kingdom, the law gives to the executor, and will not suffer them to go to the heir. Mr. J. Buller considers the cider mill as on a footing in this respect with other trading fixtures of the same sort, as " brewing vessels, coppers, and fire engines."(a) As does also Lord Ken- yon, in the case of Bean v. Allalley.{b) And so Lord Ellen- borough, in Mwes v. Maw, clearly recognizes the authority of the Chief Baron's decision, and explains it by observing that the cider mill was to be considered as properly an accessary to the trade of making cider.(c) (6) 3 Atk. 14. It was cited by Mr. Wilbraham in argument ; and the mUl is de- scribed as "let very deep in the ground, and is certainly fixed to the freehold." (c) Amb. 114. (a) Bui. N. P. 34. (6) 3 Bsp. 0. N. P. 11. (c) 3 East, 54. CHAI*. IV. SBO. I.] TRADE FIXTURES. 121 The above mentioned decision is the only one to be found, in which it has been expressly held that the *exception on the [*160] ground of trade operates in favor of the personal estate against the claim of the heir.(a) It has, however, been generally regarded as a valid authority ; and is considered to have introduced a rule somewhat restraining the rigor of the ancient law, and establishing that in certain cases erections for the purpose of trade may be removed by the execu- tor as part of the owner's personal assets. Both Lord Hardwicke and Lord EUenboroiigh seem to have been of this opinion. For in the case just cited, of Lawton v. Lawton, Lord Hardwicke observes, " It is true the old rule of law has indeed been relaxed chiefly between landlord and tenant, and not so frequently between an- cestor and heir at law, or tenant for life, and remainder-man." And with reference to the fire engines in collieries, he savs, "I^re engines in , , ^ • collieries. think, even between ancestor and heir, it would be very hard that such things should go in every instance to the heir.'' And Lord EUenborough appears to have considered, that the question whether property in dispute was part of the real or the personal estate, depended on the point whether it was properly accessary to the realty, or was the means or instrument of carrying on a trade. And although the reasons assigned by these learned judges for the exception in favor of trade differ in some re- spects,(J) yet it may *be observed that neither of them intimate r*1611 that the principle of the exception is less applicable to the case of ancestor and heir than to that of any other parties. [1] (o) In Skmairi y. Ecurl of Bute, a testator gave aU his waggon ways, kc, and all implements, utensils, and things used for the working of his collieries, and which might he deemed as of the natwre of personal estate, to be held with the collieries. Under this bequest, fire engines (among other things) were considered to pass. 3 Ves. 212 ; 11 Ves. 657. But it does not appear that the question.as to the fire en- gines was viewed with reference to the law of fixtures, the principal point in the case relating to other property. (6) Bee ante, p. 31. [1] In House v. House, 10 Paige Ch. R. 1^. The Revised Statutes of New York, (2 E. S. part 2, ch. 6, tit. 3, art. 1,) provide that "things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support," shall not go to the heir at law, but be considered assets, and go to the administrator, to be applied and distributed as personal property. On this foundation, the administrator claimed the miU stones, bolts, and other ma- chinery of a flouring mUl; but "Walworth, Ch., held, previous to the adoption of the 122 HEIR AND BXECXJTOR. [PART I. Again, in a recent case, ttat of Trappes v. Harter,{d) Lord Lyndhnrst, G. B., witli reference to the property there in dispute, viz., machinery set up in calico printing works, observes, that it was clear that as between landlord and tenant it might be re- moved by the tenant, if put there by him ; "as between heir and executor, it wou.ld have passed to the executor. In Lawton v. Lcnvton, which was the case of a fire engine in a colliery, Mr. Wilbraham compared it to the case of a cider mill, which is let very deep into the ground, and is certainly fixed to the freehold ; and yet Lord Chief Baron Gomyns, upon an action of trover brought by the executor against the heir, was of opinion that it was personal estate, and directed the jury to find for the execu- (a) 2 Cr. & M. 180. Revised Statutes, a distinction was supposed to exist in relation to what was sup- posed to be part of the realty, as between landlord and tenant, and as between the heir at law and the personal representative. It also was supposed, that an out-going tenant might be permitted to remove fixtures of a paiUcular description, placed by him on the premises for special purposes, which, as between the heirs and personal representatives of the owner of the freehold, would have descended to the heirs. The legislature, in adopting the provisions of the Revised Statutes, probably intended to put the administrator on the same footing with the tenant, as to the right to fix- tures. Such, at least, was the recommendation of the revisers, but it was impossi- ble to define in a short sentence of three lines, what was to be considered a part of the freehold itself^ and what were mere fixtures or things annexed, for the purpose of trade or manufactures. And, therefore, we must go back to the common law and decisions ot the courts, to ascertain what is a substantial part , of the freehold, and what a mere fixture or thing annexed to it. "We must also resort to the same sources of information, to ascertain what is to be considered part of a building, and what is in its nature mere personal property, and only annexed temporarily for the purposes of trade or majiufactures ; and in this case of a flouring mill, it could not have been the intent of the legislature to authorize the personal representatives of the decedent owner of the mUl, to strip it of its water wheels, mUl stones, bolting apparatus and running gear, leaving to the heir the mere shell, walls, floor partitions and roof. Fixtures of the character enumerated, are not merely conveniences for trade and manufacture, but are essential to the proper enjoyment of the inheritance, and are, therefore, as much part of the freehold, as the building and water power, which, with them, constitute the mUl ; they constitute part of the realty, and must go to the heir. Thus, the old rule was eiphcitly carried out, and a construction given to the statutory provision. But in a more recent case, (1850,) it was held that aU the erections connected with a cotton factory, and other mills propelled by water power, including the dams, water wheels and gearing, and machinery fast- ened to the ground or building, are prima facie part of the realty, and descend to the heir at law, and do not pass to the administrator as personal estate. They must also pass to the remainder-man, as between him and tenant for Hfe. BwMey v. Buckkyi 11 Barb, Sup. 0. R, 4.3, CHAP. iv. SEC. I.] TRADE FIXTURES. 123 tor." And after referring to the case of Lawton v. Salmon, and to tliat of Shoes v. Mawe, liis Lordsliip adds, " Applying these authorities to the case before them, the court were of opinion that the machinery erected for the purposes of trade in a neigh- borhood where such machinery was commonly removed, and was capable of removal without injury to the freehold, was not to be considered as belonging to the inheritance, but was part of the personal estate." These learned judges, therefore, as also Mr. Justice Buller and Lord Kenyon, as already noticed, *all concur, both in admitting [*162] the validity of the decision respecting the cider mill, and in as- signing the principle upon which they consider this exception in favor of the personal estate to be founded. But, moreover, according to this view of the authorities, it frade' and other would appear that there is a further inference to be drawn from "''•'''"^ ''™''^^* the decision respecting the cider mill, in conjunction with the instances with which it is classed by Lord Hardwicke, of the steam engines in a colliery ; that is to say, that the executor would be entitled to remove articles of a similar description, where they are erected for a purpose in which both trade and the profits of land are combined. Lord Hardwicke, speaking of the cider mill, says, that "it is an extremely strong case," for "cider is part of the profits of the real estate ; yet it was held by Lord Oh. B. Comyns, a very able common lawyer, that the cider mill was personal estate notwithstanding, and that it would go to the execu- tor." Lord BUenborough also remarks, that " it is a mixed case between enjoying the profits of land, and carrying on a species of trade." It is material to attend to this circumstance ; because, considered in this view, these several authorities point out two distinct classes of fixtures, which are to be deemed part of the testator's personal estate ; and which it will at once be perceived are the same species of things as those which are considered to form personal estate in the case of a deceased tenant for life or in tail.(a) Admitting, however, that a relaxation from the general rule of law has been sanctioned to a certain *extent by the ruling of Ch. P1631 B. Comyns, and the dicta of the learned judges as above cited, (a) See seoe. 1 and 3, of ch. 2. 12i HEIR AND EXECUTOR. [PART I. still there is no doubt that the exception contended for must be understood with considerable qualification. For it will be seen from the important decision of Lord Mansfield in the case of Laivton v. Salmon^ that if the property in dispute is absolutely essential to the value and enjoyment of the real estate, it cannot be deemed part of the personal assets. And, moreover, by the recent decision of the House of Lords already referred to, the validity of this exception in favor of the personal estate on the ground of trade, is still further, weakened, if not altogether im- pugned. Ind'?sSfa?to These decisions, therefore, are now to be considered. In Law- ^^l^^^l^J''°^"'- ton, Executor v. ^/moji, before Lord Mansfield, (B.22 G. III,)(a) an action of trover was brought by an executor against a tenant of the heir, to recover certain vessels called salt pans, which were used in salt works, and had been erected by the testator in his lifetime. Upon a case reserved by consent, it appeared that the salt pans were made of hammered iron, and rivetted together. They were brought in pieces, and might be again removed in pieces ; and they were not joined to the Avails, but were fixed with mortar to the brick floor. There were furnaces under them, and space for the workmen to go round ; there were no rooms over them, but there were lodgings at the end of the wych-houses. It appeared also that they might be removed without injuring the buildings, [*164] *though the salt loorhs would he of no value without thevfi ; which, with them were let for 8Z. per week.(a) Lord Mansfield, in pronouncing the judgment of the court, after referring to the cases between landlord and tenant, and ten- ant for life and remainder-man, proceeded thus : " But I cannot find that between heir and executor there has been any relaxation of this sort, except in the case of the cider mills, which is not printed at large. The present case is very strong. The salt spring is a valuable inheritance, but no profit arises from it un- less there is a salt work, which consists of a building, &c., for the purpose of containing the pans, &c., which are fixed to the (a) 1 H. BL 260, in notis ; S. C, 3 Atk. 15, in notis. And see the note of this case in Luder on Elect., Vol. II, p. 580. (a) See the description of salt pans in & Mansfield v. Blaclcburne, 6 Biug. N. 0. 426- CHAP. IV. SEC. I.] TRADE FIXTURES. ' 125 ground. The inheritance cannot ie enjoyed without them : they axe accessaries necessary to the enjoyment and use of the principal. The owner erected them for the benefit of the inheritance : he could never mean to give them to the executor, and put him to the expense of taking them away, without any advantage to him, who could only have the old materials, or a contribution from the heir, in lieu of them. Biit the heir gains 81. per week by 'them. On the reason of the thing, therefore, and the inten- tion of the testator, they must go to the heir. It would have been a different question if the springs had been let, and the ten- ant had been at the expense of erecting these salt works: he might very well have said, ' I leave the estate no worse than I found it.' That, as I stated before, would be for the encourage- ment and convenience of trade, and the *benefit of the estate. [*165] For these reasons, we are all of opinion that the salt pans must go to the heir." From the expressions used by Lord Mansfield in this case, it oase of imcton ^ * 'J _ ' T. Salmon exam- appears, that although the right of the heir was treated as a para- '°<^*- mount one in general, the decision of the case turned rather upon the circumstance of the erection in question being accessary to the realty, than upon the unbending nature of the heir's claim. For Lord Mansfield dwells strongly upon the circumstance that the salt pans were erected for the enjoyment of the estate, and as the proper means of deriving the profits of the land.(a) It is accord- ing to this view of the subject that Lord Ellenborough explains the decision, and endeavors to distinguish it from the case of the cider mill, and other cases, which falls within the class of trade fixtures. He says, " Lord Mansfield does not seem to have con- sidered the salt pans as accessary to the carrying on a trade, but as merely the means of enjoying the benefit of the inheritance." Upon this principle he considers them as belonging to the heir, as parcel of the inheritance for the use of which they were made, and not as belonging to the executor as the means or instrument of carrying on a trade.(6) It does not, indeed, appear by what criterion cider mills, salt compared with the decision of Ch. B. Oomyn. (a) It is observable that Lord Mansfield in his judgment, refers to several distinct grounds of decision, such as the intention of the party in maldng the erection, and the comparative value of the property to the respective claimants. It is difficult to form an opinion whether any, and what stress is to be laid upon these considerations. (6) Elwes V. Maw, 3 East, 54. ;^26 HEIR AND EXECUTOR. [PART 1. [*166] pans, or any otter similar articles *wliicti are plainly connected both with trade and the profits of land, are to be deemed acces- sary to the one or the other purpose exclusively. And it is in this particular that the difficulty of reconciling the decisions in question consists. Perhaps it may be thought that the cider mill was not so indispensably necessary to the value and enjoyment of the principal as the salt pans ; because the produce of the fruit trees might be rendered to a certain degree profitable without the manufacture of cider ; whereas the salt brine could not be available at all but by the instrumentality of the salt pans, and the inheritance would have been of no value without the annex- ation. And this- distinction, it may be recollected, is similar to that rehed upon by Lord Hardwicke on another occasion. For he assigned as a reason why the fire engines should not pass to the remainder-man, that the colliery might be worked without them, although perhaps more advantageously with them; the enjoyment of the estate with or without the engines being only a question of majus and minus. It must be confessed, however, that these distinctions are very- refined ; and many cases may occur where their application would be attended with much difficulty, and where it might be almost impossible to pronounce what is the precise nature and object of an erection. Thus it would have been very difficult to have concluded, a priori, that the manufacture of cider, or the working of a colliery, were not so far the means of enjoying the benefit of the inheritance, as to bring them within the principle r*1671 ^^^^ *down in the case of Lawton v. Salmon.[a) And on the other hand, it is almost impossible to say that trade was not in some measure pursued by the instrumentality of the salt pans* Indeed all that can be said upon this subject is, that perhaps these articles were more connected with land and less with trade than the cider mill ; and that in erecting and using them, the consid- eration of enjoying the profits of land predominated over the intention of following a trade, more in the one case than it did in the other. * Although, therefore, the ■ case of Lawton v. Salmon must be taken to depend, in some measure, on its own peculiar facts, still (a) As to whicli, see per Lord Mansfield, in WeUs v. Parker, 1 T. R. 38. And see the instances referred to in the case of Keane v. Rogers, (9 B. & 0. SIT,) in a question whether brick making was within the bankrupt laws then in force. CHAP. IV. SEC. I]. l-RADB FIXTURES. 127 tlie decision mtist be deemed greatly to weaken tlie effect and to narrow the extent of tlie indulgence wliioli the ruling of Chief Baron Comyns would have established. Indeed, it is apparent from Lord Mansfield's expressions, that he himself entertained doubts upon the validity of the latter decision. For he observes that it is a solitary determination at Nisi Prius ; and (according to the report in 3 Atk. 16,) he conjectured that it was probably founded upon custom. (J) *But the case of Fisher, App. v. Dixon, Resp.{a) is next to be r*168l considered. And in this case not only is the decision as to the cider mill treated as too doubtful in its circumstances to be relied upon as an authority, but, as before observed, the principle itself on which it is supposed to have proceeded, viz., the encourage- ment to be afforded to trade, which has been so frequently ap- plied to the solution of similar cases, is declared not to be appli- cable to ordinary questions between heir and executor under the circumstances presented by this case. It was an appeal to the House of Lords against a decree of the Court of Sessions of Scotland, arising out of the following case : J. Dixon, deceased, was an extensive coal and iron mine owner, and was, at the time of his death, engaged in working mines ; some of which were his freehold property, having been pur- chased by himself, while of the rest he was tenant imder leases for various terms. A very valuable portion of his property con- sisted of engines, colliery utensils, rails, &c., employed in the business he carried on. After his decease a question was raised whether these engines, machinery, &c., were to be considered heritable property, and to pass with the estate to the heir, or movable property, and belonging to the executors. (6) In thS extract from Oomyns' Digest, in the former part of the section, the Chief Baron lays it down, that mill stones go to the heir ; from whence it might per- haps be inferred, that his opinion was, that in general, mills were part of the inherit- ance, and could not be separated from it. See, also, Sid. 207, where it is said to have been held by Fenner and Clench, Justices, that the sails of a windmill go as parcel of the freehold of the miU to the heir, and not to the executor. As to re- moving windmills, see "Ward's case, 4 Leon. 241 ; 1 Brod. &, Bing. 506 ; 6 T. E 311 ; 6 Mod. 181 ; 1 B. & Ad. 161. (a) 12 CL & Pin. 312. And see the report of the same case in 4BeU, 286, where the proceedings, before the courts in Scotland, and the able judgments pronounced there, are given at length. 128 HEIR AND ESEOUTOR. [PART I. The Lord Ordinary, before whom the cause was appointed to be heard, referred it to one, and afterwards to a second ref- [*169] -eree, to report as to the nature *of the property, &c. The second referee described all the machinery as capable of being moved and replaced, but said that the removal would be very expensive ; that it would more or less deteriorate the value of the machinery; that for that reason machinery was ofterT left by the tenant, and its value made a matter of arrangement between him and the landlord ; and that some parts, such as the steam engine for pumping the mines, must, if removed, be instantly replaced, or very serious damage Avould arise to the mines. He also referred to the practice of the country, and said, that the practice at coal and iron works, similar to those of the deceased, was to remove the mechanism of the engine, and other machinery, from one part of the premises to another, as occasion required. The prac- tice, also, was for the tenant, at the termination of a lease, to re- move the whole of such engines and machinery, if not previously belonging to the landlord. • And in the event of the exhaustion of the mineral field, or any permanent bar arising to the profita- ble working of the minerals, the "whole of the engines and ma- chinery was removed by the tenant, or worker of the field, or by the proprietor, if his property. The case was afterwards further debated before the Lord Or- dinary ; and accounts and inventories were put in, from which it appeared that the steam engines and rails were treated and de- scribed by the testator as " movable property," but the lands as heritable. The Lord Ordinary referred the case as one of difficulty to the Lords of the Second Division ; and their Lordships determined [*170] *° consult the Lords *of the First Division, and the permanent Lords Ordinary. The majority of their Lordships finally ex- pressed an opinion to the effect, that the machinery which was fixed to the soil, and could not be used without being so fixed for the purpose of the profitable use of the land, was heritable. From this decision there was an appeal to the House of Lords. On the hearing of the appeal, it was argued for the appellant, that this machinery employed by the testator to work the mines, was used by him in the course of his trade^ and, therefore, it fell within the principle of law, which, in favor of trade, treats such CHAP. IV. SEO. I] TRADE FIXTURES. 129 ' articles as personal property. The case of the cider mill, and those of Lawton v. Lawion, and - Lord Dudley v. Lord Warde, were relied upon as establishing that proposition, Laivton t. Salmon was distinguished on the ground that the salt pans were a necessary part of the estate itself, which without the pans, would be almost useless to the owner. They were accessaries to the necessary enjoyment of the inheritance ; but the machi- nerjr in the present case was an accessary, not to the enjoyment of the estate, but to the carrying on of the testator's trade ; and the expressions of Lord EUenborough.in Elwes v. 'Maw^ as to a thing being an accessary to a matter of 'a personal nature, were also cited. Tor the respondents it was urged, that the machinery in ques- tion rendered the land capable of profitable employment, was erected for this sole object, and for the better enjoyment of the estate. The case of Lawton v. Salmon was much relied upon, *and it was urged that the facts of the cider mill case were too [*171] imperfectly known to be considered an authority. It was, more- over, insisted, that the principle of the convenience of trade ap- plied only to cases where the erections were not made for the better enjoyment of the land, but merely for the purposes of trade ; and where such erections were put up by persons having only a transitory interest in the land, and where they are claimed by the creditors of those persons. The judgment was pronounced at a subsequent period. Lord Brougham said, that, upon the fullest consideration he had been able to give both to the English and the Scotch authorities which were cited, he entirely agreed with the majority, of the court be- low. He observed, " Great reliance was of course placed upon the case before Lord Hardwicke in our Court of Chancery here, and a similar case which occurred in the Court of Exchequer, I think in Lord Lyndhurst's time.(a) But there was an attempt made to distinguish this case in principle from that, and to show that there was another inconsistent decision in the cider mill case. Now it is a remarkable circumstance, that of that case we have only a very indistinct and unsatisfactory report. We have really nothing that can be called a record of that case. It was cited in the case before Lord Hardwicke ; and I must also say, (ffi) Trwppes v. Barter, sup., p. 161. 130 HEIR AND EXECUTOR. [PAET L tliat if the cider mill case is to be taken as it is represented to iis, as regards the substance of the case and in its result, my mind [*172] goes not at all with *that decision. It is contrary, undeniably, to the general principles of our law upon the subject ; and if the same question were to arise to-morrow, with the circumstances which are represented to have attended that case, it would not, in my opinion, lead to the same result. Therefore I lay it out of view. We have a most imperfect account of the circum- stances, and above all, of the most material circumstances, of how 'the mill was affixed to the soil. For if a cider mill be fixed to the soil, though it is a manufactory, and erected for the pur- poses of a manufactory, if it is really solo injixiim, it is perfectly immaterial whether it is for the purpose of a manufactory, or a granary, or a barn, or anything else. It is a fixture on the soil, and it becomes part of the soil. Can any man say that one of the great brew-houses would belong to the executor, because it is erected for the purpose of a manufacture, and whoUj^ uncon- nected with the land ?" His Lordship therefore recommended that the judgment of the court below should be affirmed. Lord Cottenham, after some preliminary observations, said, ',' The principal stress of the argument on the side of the appel- lant, has been that this is to be protected, because it is necessary for the encouragement of trade that this property should be con- sidered as not belonging to the real estate, but as belonging to the personal estate. The principle upon Avhich a departure has been made from the old rule ,of law, in favor of trade, appears to me to have no application to the present case. The individual [*173] who erected the machinery was the owner of the land, *and of the, personal property which he erected and employed in carry- ing on the works : he might have done what he liked with it ; he miglit have disposed of the land ; he might have disposed of the machinery ; he might have separated them again. It was, therefore, not at all necessary, in order to encourage him to erect those new works which are supposed to be beneficial to the pub- lic, that any rule of that kind should be established, because he was master of his own land. It was quite unnecessary, there- fore, to seek to establish any such rule in favor of trade as ap- plicable here, the, ^vhole being entirely under the control of the person who erected this machinery. "If, therefore, this be clearly a question of real or personal es- CHAP. IV. SEC. I.J TRADE FIXTURES. 131 tate, and if tlie rule, whicli in some cases has been acted upon, of making a departure from the established principle m favor of trade, has no application to the present case, what does it come to ?. Of course we throw out of consideration all the cases which have arisen between landlord and tenant, and between tenant for life and remainder-man, because the departure which has taken place there in some cases has no application to the present case. Then the case being simply this, the absolute owner of the land, for the purpose of better using that land, having erected upon and affixed to the freehold, and used for the purpose of the bene- ficial enjoyment of the .real property, certain machinery, the question is, is there any authority for saying, that, under these circumstances, the personal representative has a right to step in and lay bare the land, and to take away all the machinery neces- sary for the enjoyment *of the land ? Let us consider for a mo- [*174] ment, if that is the principle, to what extent it is to go. It is put by Lord Cockburn(a) (and a very strong illustration it is, if the owner of the land should dig a well, and erect machinery for the purpose of using that well, is it competent to the personal representative to come and take away that machinery, and leave the well useless ? He thinks it is not. Where is the distinction between the two cases? Such machinery is capable of being taken away with very little, if any, damage to the land. Al- though, therefore, machinery is, in its nature, generally, personal property, yet, with regard to machinery, or a manufactory erected upon the freehold for the enjoyment of the freehold, nobody can suppose that that can be the rule of law ; and so with respect to other erections upon land. It is not necessary to go beyond the present case, which is a case of machinery erected for the better enjoyment of the land itself. The principle probably would go a great deal further; but it is more advisable to confine the ob- servations I have to make to the particular circumstances of this case. There is no case whatever whidh has been cited in which that doctrine has been recognized, except the one which has been referred to, (the cider mill case,) as to which we really know nothing, except that at the Worcester Assizes, a good many years ago, a cider mill was held to belong to the personal estate. Why it was so held, under what circumstances, and whether it was a cider mill fixed to the freehold or not, we do not know. We know nothing except *that this machine, called a cider mill, r*1751 (a) In the Court of Session. 182 HEIR AND EXECUTOR. [PART I. was decided to go to tlie personal representative. It is impos. sible to extract a rule of law from a case of which "we know so little as that. And with that exception there is a iiniform course of decisions, whenever the matter has been discussed, in favor of the right of the heir to machinery erected under the circum- stances of the present case ; and if the corpus of the machinery is to be held to belong to the heir, it is hardly necessary to say, that we must hold that all that belongs to that machinery, al- though more or less capable of being used in a detached state from it, still if it belongs to the machinery and belongs to the corpus, the article, whatever it may be, must necessarily follow the same principle, and remain attached to the freehold." His Lordship, therefore, was of opinion that the judgment should be affirmed. Lord Campbell also concurred in the same view of the case ; and said, he " had no doubt in the world that the property in dispute should go to the heir both upon reason and upon prece- dent. That none of the arguments respecting the benefit of trade at all apply to a question as between heir and executor, in a case ' like this, where the owner of the fee being the absolute owner of the land and of the machinery erected upon it, the whole of it is in him, and he may dispose of it as he shall think fit for the benefit of the family. "Then with reference to the authorities by which we are bound ; whatever speculative notions we might entertain with respect to propriety and expediency, if we entertained a different [*176] opinion upon *that subject, all the cases are quite uniform both in England and in Scotland to show that such property shall go to the heir. The only case the other way which has been re- ferred to is that of the cider mill, where the essential circumstance is left entirely in doubt, whether, in fact, the mill was fixed to the freehold or not."(a) (a) His Lordship then proceeds to show, that the cider mill might have been a mere movable, by citing the following instance: he says, " we Icnow that a cider mill is not necessarily affixed to the freehold, a familiar instance of which is given in the Ticar of Wakefield ; where, when a match was proposed between one of the Misses Primrose and young Parmer Flamstead, Moses said, ' I hope that if my sister marries young Parmer Plamstead, he will lend us his cider mill.' I take it, that the cider mill there was movable, and was not affixed to the freehold, but mio-ht have been carried from the farm of Parmer Plamstead to the vicarage of the Primroses." CHAP. IV. SEC. I.] TRADE FIXTURES. 133 The interlocutor was therefore affirmed with costs. Such is the case of Fisher, App. v. Dixon, Resp. And in the present state of the law, more especially *with reference to this [*177] decision and the interpretation it may hereafter receive, it would be extremely difiicult to deduce any fixed principle for deter- mining in practice whether a particular article affixed by the owner of the inheritance to his own freehold, 'for a purpose in which trade is wholly or partially concerned, may be accounted personal estate in the hands of his executor. This difficulty is, moreover, not a little increased, by observing the contradictions which are to be found in some of the judicial opinions upon this subject. For the same judges who have unhesitatingly admitted the authority of the cider mill case, and appear to consider it reasonable that the strict rule of law should be relaxed between ancestor and heir, have, in delivering their opinions, not merely drawn a distinction as to the degree of indulgence to be shown to the executor's claims, but have laid it down in express terms, that the general rule still obtains in its former strictness when- ever the heir and the real estate are concerned. This is observable of some of Lord Hardwicke's expressions. Kemarks of the -'- judges upon the For, in Dudley v. Warde, in alluding to the exception which j^'^'^ j^^j'^J^^^™ prevails in the case of. landlord and tenant, he says, " But this*""^- does not hold between the heir and executor." (a) Again, he The reader -will probably be of opinion, that this illustration of the learned judge hardly meets the case ; and that the longings of Moses might have been fully grati- fied, and the cider miU left in its proper and fixed place. In the cider counties, it is the constant pracljce of the smaller fruit growers, to carry their fruit to be ground and pressed at a neighboring mill ; since to carry the mill to the fruit, would be next to impossible ; a small sum is frequently paid for the accommodation, the grower employing his own horse to worls the machinery. It is no uncommon thing for a farmer to accommodate his neighbor with the loan of his bam, threshing floor, or riolc staddle. And to lend a house to a friend, is an expression which scarcely im- pUes that the house shall be moved from its site to complete the obligation. Cer- tainly, to the eminent authorities who have adopted and approved the Chief Baron's decision appear to have considered that the cider mUl in dispute was clearly affixed to the freehold, as it was expressly described to be when the case was first brought forward. Indeed, the question could hardly have arisen at all, had it been other- wise. • From the very nature and construction of such mills, and the heavy machin- ery by which they are worked, it would seem to be impossible that they could be used unless they were very deeply let into the soU. A fuU and accurate description of the mill house, press, and apparatus of a cider mUl, may be seen in Marshall's Rural Economy of Gloucestershire. (ffi) Amb. 113. And see Lord Hardwicke's observations respectiag the fire en- 134 HBIB AND EXECUTOR. [PART I. says, ill Ex parte Quince7j,{b) " The rule as to fixtures as between heir and executor is another thing ; the freehold descending on the heir, the executor cannot enter to take away fixtures without [*178] *being a trespasser. But there is another rule between landlord and tenant." In like manner Mr. Justice Buller(«) remarks, that " The general rule of law is, that whatever is fixed to the free- hold becomes part of it, and cannot be moved ; but many excep- tions have been admitted of late to this general rule as between landlord and tenant, or between tenant for life or in tail and the reversioner : hut the rule still holds as letween heir and executor.''^ Yet it is evident that Mr. J. Buller did not dissent from the de- cision of the cider mill case, because he classes the mill among trade fixtures.(&) And so, lastly. Lord EUenborough, who, in Ehxcs r. Haw, distinctly recognizes the principle of trade as be- tween heir and executor, yet sets out in his judgment in that case with saying, that the rule between these parties is the gen- eral rule, not subject to any exception. (c) General observa- Under these circumstanccs, therefore, it has been considered the more desirable course to present to the reader, m the forego- ing pages, a comprehensive detail of all the cases and opinions which bear upon the subject, without attempting to lay down any rule as applicable to the solution of particular cases. It may, however, be remarked, that many of the arguments which ['•^179] have been adopted by the courts in *support of the claims of other classes of persons in questions of fixtures, seem to be enti- tled to equal weight in the case of heir and executor. Thus with Meet or custom, regard to custom, it will be.recoUected that Lord Mansfield ob- served of the cider mill case, that the decision might probably have been founded on that consideration. And it appears that in other instances between heir and executor, custom has been considered by the coiirts to form a valid ground for the determi- gines, in the second question discussed in this case, and upon which Lord Talbot had pronounced an opinion. (6) 3 Atk. 411. (a) Bui. K P. 34. (6) And see his recognition of the case of Harvey v. Earvey, as noticed in the next section. (c) 3 East, 51. And see the same position laid down by Lord Mansfield, in Lmo- ion V. Salmon. See, also, 1 Taunt. 191 ; 5 Bar. & Aid. 625 ; 2 Bar. & Ores. 77, 78 ; 4 Bar. & Ores. 691. It will be seen from the next section, that notwithstanding these general expressions of the courts, the rule has undoubtedly received a relaxa- tion in the case of matters of ornament, &c. CHAP. IV. SEC. I.] TRADE PIXTUEJES. 136 nation of such questions. Thus in 11 Vin. Ab. 154, it is said to have been ruled by Eyre, Oh. B., at Winchester Assizes, 1724, that in Hampshire a granary built on pillars was by custom a chattel, and belonged to the executors. And so, in the case of Lowiher v. Cavendish,{d) -which respected the construction of a devise of certain lands and mines, a question was made whether the waggon ways, staiths, and fire engines used in working the mines, passed along with the mines. And the Lord Keeper directed that it should be referred to the Master to inquire whether the timber and other materials laid down for making the -w^aggon ways, and the fire engines placed for the better working of the mines, are deemed and reputed in the county of Cumberland, and other counties in the north, fixed to the free- hold, and pass to the heir or remainder-man, or go to the execu- tor of the party erecting the same. See, also, to the same effect in the judgment of the court in Trappes v. Sarter, 2 Or. & M. 181 ; Suj}. p. 161. With respect to these and other topics arising out of the facts of each particular case, the reader is *referred [*180] to the observations in the concluding part of the section relating to trade fixtures between landlord and tenant. « It should be borne in mind on every occasion, that it is a gen- eral maxim of law, that in questions between an heir and an ex- ecutor, the heir and the real estate afe to be preferred ; and that it is, moreover, a rule which has itself become almost a maxim, that the inheritance shall never be suffered to descend to the heir prejudiced or imperfect. (1) « It is scarcely necessary to remind the reader, that if an article ^'le'^"' ^- ^ -^ ' tually fixed be- appears to be so constructed, that it is, in fact, not let into or ^?°^l^° "'^ ^*'=" united to the land or to any substance previou.sly connected therewith, it then remains in law a mere personal chattel, and as such belongs to the executor, whatever be the magnitude or character of the structure. Thus, where a windmill built of wood had a brick foundation in the ground, but the wood-work (a) 1 Ed. 99. [1] " The greatest indulgence in favor of considering particular articles as chattels, is allowed in' cases between landlord and tenant ; and the greatest rigor in favor of the inheritance, obtains between the heir and executor." Case of the Olympic The- atre, 2 Browne, 285; Millers. PUmb, 6 Cowen, 665, 136 HESR AND EXECUTOR. [PAET I. was not inserted into the brick-work, but rested upon it by its own weight alone, and no part of the machinery of the mill touched the ground or the foundation, it was held that the mill was not parcel of the freehold, and nothing more than a chattel ; and Bayley, J., said, " In this case the windmill would clearly have gone to the executor and not to the heir."(a) SracTi"e^y°°aS- This rule, howevcr, must be understood as not applying to neaed. things which are in their nature incident to the realty, though not actually connected with it, as mill stones, keys, &c., and [*181] other like objects *referred to in a preceding page.(a) In the case of Fisher v. Dixon^ above cited, it was ruled, that if the cor- pus of machinery belonged to the heir, all that belongs to that machinery, although more or less capable of being detached from it, and more or less capable of being used in such detached state, must also be considered as belonging to the heir.(l) ■ (a) E. V. Otley, 1 B. & Ad. 161. (ffl) P. 155. See Woody. Hewitt, 14 Law J. R. Q. B. 248 ; AnU, p. 15. [1] In the case of Walker v. Shlrman, (20 Wend. 636,) it appeared that pladntifF and defendant were tenants in common, owners of the fee, seised in equal undivided moieties of a certain factory and machinery therein, a house, bam and twenty acres of land In making partition of the estate between the parties, some portions of the machinery found in the factory were treated by the commissioners as personal prop- erty, and not a;, belonging to {he realty, and the suit was instituted to set aside their report, but it was not shown that the machinery in question was in any manner affixed or fastened to the building, or to the land, and the report was therefore con- firmed. The opinion of the court -Whs dehvered by Justice Cowen, whose untiring diligence, thorough research, accurate discrimination, and sound practical views in the apphoation of general principles to particular cases, won for him the liigh respect of the legal profession ; whUe the frani simpUcity of his character, and unaffected kindness of his heart, endeared him greatly to those who were admitted to his friend- ship. On this occasion, the learned judge collated and reviewed aU the cases of impor- tance in relation to the Law of Fixtures, which had then come under the cogni- zance of the courts of the several United States, illustrating tliem by references to the adjudged EngUsh oases, and to the elementary works of Amos and Ferard and Gibbons, and other authors. This review, in connection with the remarks of Chancellor Kent, (Comm. Tol. II, 343,) the clear enunciation by Judge Story, {VanNess v. Paca/rd, 2 Peters, IS"! ; Ante, 62, n.,) of the limitations upon the adoption of the common law of England as the common law of America, the construction given to the Revised Statutes of New York by Chancellor Walworth, {House v. House, 10 Paige 0. R. 157 ; Ante, 161, n.,) the sUght shades of diversity of opinion, noticeable in Mott v. Palmer, ( 1 Comstock, 564, 1851; Post, 211, n.,) and some others of the cited cases, form together, sub- CHAP. IV. SEC. II.] FIXTURES EOR ORNAMENT, ETC. 137 *SECTlt)N II. [*182] Of the Right of the Executor to Fixtures put up for Ornament or Convenience. Having, in the last section, considered how far the decisions of the courts have proceeded in introducing a deviation from the general rule of law, as between heir and executor, on the ground stantially, (with exceptional oases governed by some partial adoption of the civil law or local custom,) the American Law of Fixtures. Any work treating of the subject, if it were to notice these authorities, only with meagre reference, would be so manifestly deficient, that no hesitancy has been entertained in incorporating the essence of them in the notes to this edition ; true it is, that they may be better con- sulted in the various volumes in which they And their appropriate places, but even in our largest cities, few beside the elders of the profession can boast of hbraries em- bracing the lore of ancient days, and the voluminous reports and treatises of the busier age in which we live, and although this want may be in some degree sup- plied by laborious and time consuming recourse to public libraries ; stiU, there are, throughout the Union, many thousands of acute and zealous professional gentlemen, who cannot command extensive private collections, nor yet avail themselves of re- sort to a public library ; therefore, it is proper, in any American reprint of an au- thoritative English work, to make ample quotation and use of the decisions of our own courts, and of the arguments on which they rest. In Walker v. Sherman, Justice Cowen says: "This question is one between tenants in common, the ownera of the fee ; and is, we think, to be decided on the same principle as if it had arisen between grantor and grantee, or as if partition had been effected by the parties through mutual deeds of bargain and sale. As between such parties, the doctrine of fixtures making a part of the freehold, and passing with it, is more extensively applied than between any others. As between tenant for life or years and reversioner or remainder-man, all ersctions by the former for the purposes of trade or manufactures, though fixed to the freehold, are considered as his personal property, and as such, may be removed by him dm-ing his term, or be made available to his creditors on a. fieri facias. On his death, they go to his execu- tors or administrators ; yet by a conveyance, they pass to the vendee. Fructns in- duslriales, it is well known, always go, on the owner's death, to the executor or admuiistrator, not to the heir ; whereas, they are carried by a devise or other con- veyance of the land, to the devisee or vendee. Spencer's case, "Winch's Rep. 51. Austin V. Sawyer, 9 Cowen, 39. Wilkins v. VasJibinder, 1 "Watts, 318, and the cases there cited overruling Smith v. Johnston, 1 Pennsylv. Rep. 471, contra. The general rule is, that any thing of a personal nature, not fixed to the freehold, cannot be con- sidered as an incident to the land, even as between vendor and vendee. The EngUsh cases on this subject are, most of them, well collected and arranged in Amos & Ferard's Law of Fixtures, p. 1, oh. 1, and p. 180, oh. 5, Am. ed., 1830.* For some still later, see Gibbon's Law of Fixtures, 15, ch. 2. The American cases are mostly * Ferard, 214. 138 HEIR AND EXECUTOR. [PART I. of trade, it is in the next place _to be inquired, whetlier tlie rule has been relaxed between these parties, in respect of articles which have no reference to trading purposes. collected in 2 Kent's Comm. 345, (3d ed.) note c. I have said, that as a general rule, they cannot be considered an incident unless they are affixed. This is not universally so. A temporary disannexing and removal, as of a mill stone to be picked, or an anvil to be repaired, will not take away its character as a part of the freehold. Locks and keys are also considered as constructively annexed ; and in this country it must be so with many other things which are essential to the use of the premises. Our ordinary farm fences of rails, and even stone walls, are affixed to the premises in no other sense than by the power of gravitation. It is the same with many other erections of the Ughter kind about a farm. I shall hereafter have occasion to notice these and a few other like instances of constructive fixtures. I admit that some of the cases are quite too strict against the purchaser ; but as far as I have looked into them, and I have examined a good many, both English and American, they are almost uniformly hostile to the idea of mere loose movable machinery, even where it is the main agent or principal thing in prosecuting the business to which a freehold property is adapted, being considered as a part of that freehold for any purpose. To make it a fixture, it must not only be essential to the business of the erection, but it must he attached to it in some way ; at least, it must be mechanically fitted, so as, in ordinary understanding, to make a part of the build- ing itself " The question has been occasionally examined in this court as between grantor and grantee, and in some other relations. The most material cases are Reermance V. Vernoy, 6 Johns. Rep. 5; Cresson v. Stout, 11 Johns. Eep. 116, 121; Milltr v. Plumh, 6 Cowen, 665 ; Amtin v. Sawyer, 9 Cowen, 39 ; and Raymond v. Whilk, 1 Id. 319. None of them treat a personal thing as a fixture short of physical annexa- tion j and some are pecuUarly strong against the purchaser. The first related to a sale of land, on which was a bark miU, and a stone for grmding bark, to be used in a tannery. The court said, it seems to be the better opinion that the mill was per- sonal property : for the mill stone, with the building covering it, was necessary to the tanning business, a matter of a personal nature. Taken upon that reason, a saw mill or grist mUl would hardly have passed by such conveyance ; yet it has been settled ever since the Year Book, 14 Henry YIII, 25, that the stones of a grist miU are a part of the freehold, though removed for the purpose of being picked ; and they shall pass by a sale of the land. Amos & Perard on Fixtures, p. 183.* In Cres- son V. Stout, Mr. Justice Piatt expressed his opinion, that frames in a factory for spuming llax and tow, though fastened by upright pieces extending to the upper floor, and cleats nailed to the floor round the feet, neither of the machines being nailed to the building, would not be considered as a part of the freehold. He thought, therefore, that they might be levied on as personal property, under afi. fa. against the owner. But the question was not finally decided. Had the judgment debtor been a mere tenant for life or years, the machinery erected by him would doubtless have been subject to execution against him. But he appears to have owned the fee, subject to a mortgage. "In the case of Swift v. Thompson, 9 Conn. R. 63, the dictum of Piatt, J., was followed with respect to cotton machinery, the posts of which were fastened to the * Ferari, 2].8. CHAP. IV. SEC. II.] FIXTURES FOR ORNAMENT, ETC. 139 At common law the heir was entitled not only to erections which might be deemed essential additions to the inheritance, but to things that had been affixed to the testator's freehold for floor by wooden screws set into the floor. By unscrewing, the machinery could be removed without injury to the buUding. Daggett, J., said, ' We resort, then, to the criterion estabhshed by the common law ; could this property be removed without injury to the freehold ? The case finds this fact. This, then, should satisfy us . The views of the learned judge are sustained by the strong case of Gale v. Ward, 14 Mass. R. 352. There, the owner of the freehold had carding machines in his wooUen factory, ' not nailed to the floor, nor in any manner attached or annexed to the building, unless it was by the leather band which passed over the wheel or pul- ley, as it is called, to give motion to the machines. This band might be slipped off the puUey by hand, and it was taken off, and the machines removed from time to time, when they were repaired. Each machine was so heavy as to require four men to move it on the floor, and was too large to be taken out at the door. But it was so constructed as to be easily unscrewed and taken in pieces ; and the machines were so taken in pieces, when removed by the deputy sheriff.' He had levied upon them as being the personal property of the freeholder, entirely distinct from the realty. Parker, Ch. J., said, ' They must be considered as personal property, be- cause, although in some sense attached to the freehold, yet they could easily be dis- connected, and were capable of being used in any other huUding erected for similar purposes. It is true, that the relaxation of the ancient doctrine respecting fixtures has been in favor of tenants against landlords ; but the principle is correct in every point of view.' But see Union Bank v. Emerson, 15 Mass. R. 159, and Whiting v. Brastow, 4 Pick. 310. Gale v. Ward is questioned by Richardson, Ch. J., in Kit- iredge v. Woods, 3 New Hamp. R. 506. Some of the doctrine in McLiniock v- Graham, 3 M'Cord, 553, was equally strong with that in Gale v. Ward. A stiU. was fixed in a rock furnace, which furnace was builtinside and against the wall of a house that had been erected for the express purpose of a still. The whole stood on a tract of land sold under s,fi. fa. against the owner, and the court said the still did not pass. But there was evidence of the still being excepted at the sheriff's sale and sold to another ; so that the question' did not rest entirely on annexation. Be- sides, as to this point, the case was afterwards shaken by Fairis v. Walker, 1 Bail 540, which I shall presently notice more at large. Hutchinson, Ch. J., in WdherTjee V. Foster, 5 Verm. R. 142, denied that potash kettles set in brick arches, with chim- neys, are real estate. But he cited no authority. The case of Dwik v. Braddyli, 1 M'Clel. 211 ; 13 Price, 445, treats cotton machinery, placed and fastened for the pur- poses of stability, by a tenant for years in a manufactory, as subject to be distrained by Ms landlord for rent, and to be taken in execution against him. This, doubtless, was so under the peculiar circumstances of that case. Mr. Gibbons' remarks upon this ease. Gibbons on Fixtures, 20, that such machinery would seem not to be a fix- ture, if fastened by bolts or screws, and capable of being removed and replaced with- out injury, either to the machinery or the building. But the question, whether it should be deemed a fixture as between the owner of the freehold and his devisee or grantee could not arise ; and, according to the report in Price, the court expressly refused to pass on the question of fixture; according to M'CleUand, they silently omitted to notice the point. "The third ease which I noticed as decided in this court, was Miller v. Plimb, This regarded an ashery; and the court recognized and acted on the general dis- 140 HEIR AND BSECTTTOE. [PAET I. mere ornament, or for tlie general improvement of tlie estate, and notwithstanding they might be in themselves of a chattel and movable nature. Thus, it will be recollected, that it was tinction, that things in any way fixed to the freehold, e. g., potash kettles set in an arch of mason work mth a chimney, though the arches were placed on a platform and not fastened to the building, would pass by a sale of the premises ; but it was held, that smaE kettles, not fixed in any way, though necessary for use ia the ashery, would not pass. The distinction between the relation of vendor and vendee, tenant and landlord, was distinctly considered and recognized. See also Reynolds v. ShuW 5 Cowen, 323. The same distinction was held by Savage, C. J., in Raymond y. WJiile. The question there was in respect to a heater used ia a tannery, but ia no way attached to the buUding. It was placed in a leach or vat, which latter was de- tached from the building, except that a small piece of board was tacked with nails to the vat and to the side of the building. But there was no necessity for fastening the vat, and the fastening was of no use, except to keep the side standing while the vat was put together.' The question was really one between landlord and tenant. But Savage, 0. J., said the heater could not be considered as part of the realty, even if the person who placed it had owned the tannery. 1 Cowen, 321. In Kirwan v. Latour, 1 Harr. & Johns. 289, the sheriff had sold under a fi.fia. against the owner, u. house and lot with the appurtenances. This house was built for a distillery ; and the implements necessary to carry on the business were on the premises at the time of the sale. In trover by the owner for these, the court held that the pumps, cis- terns, U'on grating, door, distUlery and horse mills passed by the sheriff's deed, but not the joists, vats, buckets, spigots and faucits. The case went on the distinction between things - affixed to the freehold, and the mere loose utensils necessary for carrying on the business. The former were held to pass, though Chase, J., conceded that a tenant erecting them might have taken them away. It being as he said, the same as a question between ordinary vendor and vendee, ' everything passed which was annexed tothefi-eehold.' Id. 291. The same thing was said as to the fixtures in an iron foundry. Hare v. Eorton, 5 Barn. & Adol. "715. Park, J., said, 'Prima facie, a mere conveyance of the foundry would have passed them.' Taunton, J., said, if the deed had only mentioned the foundry, the fixtures would have passed. ' There are many cases which show this.' Patterson, J., said, ' I should be sorry to bring into question the decision of this com-t, that a conveyance of premises wiU pass all that is attached to them.' And the Union Bank v. Emerson, 15 Mass. R- 159, narrows the general reasons of Gale v. Ward. It holds that a kettle fixed in brick-work in a fulhug mill passed to the mortgagee of land, on which the fuUing mill stood, though the appurtenances were not mentioned. The court recognized the usual distinction in favor ot tenants. So they did in Whiting v. Brasiow, 4 Pick. 310. In Fairis v. Walker, 1 Bail. 540, the plaintifi' sold and conveyed his plantation to the defendant. On this, cotton was grown ; and a cotton gin was in a gm-house on the premises attached to the geai's. The plaintiff brought trover for the gin ; but the court were of opinion that it was a fixture, and passed with the freehold. They said that, as between heir and executor, or vendor and vendee, ' AU things which are necessary to the fuU and free enjoyment of the freehold, and are in any loay attached to it, are held to be fixtures and pass with it.' In the case of the Olympic Theatre, 2 Browne, 279, 285, the court said, 'The permanent stage is so fixed to the freehold, that it ought to be considered as a parj of it. But the movable scenery and flying stages are not necessary accessaries to the enjoyment CHAP. IT. SEC. II.] FIXTURES FOR ORNAMENT, ETC. 141 said in the Year Books and other early cases, that the executor should take nothing but what was properly in the nature of chat- tels. And that fixed furnaces, tables dormant, tenches, the cover- of the inherilanGe. They were only necessary for the purposes of theatrical exhibi- tions, which in this respect must be considered as a species of trade. We are, there- fore, of opinion, that they do not belong to the inheritance, and consequently are not subject to the liens, particularly when conflicting with the claims of execution creditors.' The court recognized the distinction in favor of tenants ; but they ap- pear to consider the rale as also very strict against the heir when the question arises between him and the executor, which has been said to be the same in respect to fixtures, as between vendor and vendee. Spencer, C. J., in Holmes v. Tremper 20 Johns. R. 30. Miller v. Plumh, 6 Cowen, 665. In the case of the Olympic Theatre, the court say, 2 Browne, 285, 'The general rule appears to be, that where the instrament or utensil is an accessary to anything of a personal nature, as to the carrying on a trade, it is to be considered a chattel ; but where it is a necessary accessary to the enjoyment of the inheritance, it is to be considered as a part of the inheritance ; a rule as broad as that stated in Heermance v. Vernoy ; and which has since been utterly repudiated by the Pennsylvania cases. In Gray v. Holdship, 11 Serg. & Eawle, 413, a copper kettle or boiler in a brew-house, was held to be a part of the freehold, though very slightly attached ; and the court mention the wheels, stones and bolting cloths of a mill as parallel and famihar instances. Id. 415. So the. engine by which a steam saw mill is propelled, thus performing the usual ofBce of a water wheel. The court mentioned the gears of a mill as part of the freehold- Morgan v. Arthws, 3 Watts, 140. And see Lemon- v. Miles, 4 "Watts, 330, S. P. ad- mitted. So a steam engine with all its fixtures, used to drive a bark mill in a tan- nery, being erected by the owner of the freehold, was held to pass by a sale of the latter. Ives v. Ogelsby, 1 "Watts, 106. In Massachusetts, two stoves fixed to the brick-work of a chimney were held to pass. Goddard v. Ghase, 1 Mass. R. 432. In Gibbons on Fixtures, 11, the learned author remarks that ' In Horn v. Baker, 9 East, 215, it was not doubted but the distillers' vats supported upon brick-work and timber, but not let into the ground, and vats standing on horses or frames of wood, were goods and chattels ; and that stills set in brick-work and let into the ground were fixtures.' He adds that a copper merely resting on a brick-work socket, and a water butt standing on the ground, or a wooden" stool, are not fixtures. Other- wise, if the copper were fastened in brick-work. " A deed conveying a saw mill, was held to pass a mill chain, dogs and'bars, they being in their appropriate places at the time. Farrar v. Stackpole, 6 Greenl. 154. The great diificulty arose as to the chain. This was attached by a hook to a .piece of a draft chain, which was fastened to the shaft by a spike. The chain was prepared for being hooked and unhooked at pleasure. The premises in question were here conveyed as a saw mill eo noTnine. The chain was commonly used in drawing logs into the mill The court, therefore, thought that it might pass as being essential to the mill, and therefore included in the terms of the conveyance. But, they added, ' we are also of opinion, that it ought to be regarded as appertaining to, and consti- tuting .a part of the realty.' See, in connection with this, the remarks of Hart, "S^ce Ch., near the close of his opinion in Lushington v. Sewell, 1 Sim. 435, as to what wiU pass by the devise of West India land by the name of a plantation. " Certain things are fixtures or not, in their own nature, independent of the fact of annexation. Accordingly, some things which are entirely detached from the ^42 EBIE AND BXECUTOU. . [PAKT t ing of heels, and the like, . should go to the heir no less than the trees growing on the land, or the doors and timbers of the house. freehold are, notwithstanding, holden constructively to belong to and pass mth it. Such cases arise where the fixture is detached for some temporary purpose. "We before noticed the removal of a miU stone to be picked as one instance. Amos & I'er. on Fixt., 183.* So, where the stones andirons of a grist mUlwere accidentally detached by a flood carrying away the main body of the miU, they were still holden to continue a part of the realty, and therefore not to be seizable on fi. fa., at the suit of a creditor, as personal property. Goddard v. Bolster, 6 Greeiil. 421. On the other ha'nd, articles of furniture movable in their nature, are not fixtures, though at- tached by screws, nails, brackets, &c. Such are hangings, pier-glasses, chimney- glasses, book cases, carpets, blinds, curtains, &o. Gibbons on Fixtures, 20, 21. "Whatever its use or object, however, unless the thiag were physically annexed to the freehold in some way, it has in general been held not to pass even as between vendor and vendee. Tliis was held of a stove standing on the floor durmg winter, the funnel running into the chimney, but being loose, and not plastered in. The stove was up at the time of the conveyance. WilUaiiw v. Bailey, 3 Dane's Abr. 152. So of a padlock and loose boards used for putting up corn in the bins of a corn house, said in Whiting v. Brastow, 4 Pick. 311. So of a heater, placed loose in the vat of a tannery. Savage, Ch. J., in Raymond v. White, before cited. The case of the stove has been questioned, as I shall notice hereafter. " The cases of constructive annexation, where the article is seldom or never cor- porally attached to the realty, are few, and may be set down as exceptibns to the . general rule. They are said to be the charters or deeds of an estate, and the chest containing them, deer in a park, fish in a pond, and doves in a dove-house. 2 Com. Dig. Biens, B., 6 Greenl. lf>1. 3 Dane's Abr. 156. 3 New Hamp. R. 505. The deer, fish and doves are set down by Amos & Fer. on Fixt. 168,* as heir-looms; and so of various other animals. Heir-looms are a class of property distinct from fixtures. But ' the doors, windows, locks, keys and rings of a house will pass as fix- tures, by a conveyance of the freehold, although they may be distiact things : be- cause they are constructively annexed to the house.' Amos & Fer. on Fixt. 183, and the books there cited. Many other obvious cases may be supposed. One is, our ordinary "V"irguiia fence on country farms. No vendor would consider that as mere personal property. And in Kiilredge v. Woods, 3 N. Hamp. R. 503, it was held that manure lying about a barn yard, passed by a conveyance of the land as an incident. " These instances seem fuUy to justify the coui'ts when they speak of the great difficulty in fixing on any certain criterion which shall govern all cases. They lead to a straui of reasoning by Mr. Dane, m the 3d vol. of his Abridgement, p. 156, as well by "Weston, J., in Farrar v. Siackpole, by which, if followed out in practice, the machinery now in question might well be considered as a part of the realty ; and therefore, the subject of partition. Mr. Dane says, that in all the instances put by him, the articles ' are very properly a part of the real estate and inheritance, and pass with it, because not the mere fixing or fastening to it is alone to be regarded ; but the use, nature and intention.' Mr. Dane questions the decision in Williams v. * Perard, 218. * Ferard, 199. CHAP. IT. SEC. II.] BIXTUEES FOR OKNAMENT, ETC. 14g This principle is found to govern all the earlier decisions. fjshu>fe^xeoator But in progress of time, a more liberal construction of the rule °™amcnt, &c. appears to have been admitted between these parties. For about Bailey, before cited, denying that the stove passed. 3 Dane's Abr. 15*1. See, also, Amos & Fer. on Fixtures, 154, 155.* And Weston, J., says, (6 Greenl. IS'?,) ' Modern times liave been fruitful of inventions and improvements, for the more secure and comfortable use of buildings, as "well bs of many other things which administer to the enjoyment of hfe. Venetian blinds, which admit the air and exclude the sun, whenever it is desirable so to do, are of modern use ; so are hghtning rods, which have now become common in this country and in Europe. These might be removed from buUdings without damage ; yet, as suited and adapted to the buhdings upon which they are placed, and as incident thereto, they are doubtless part of the in- heritance, and would pass by deed as appertaining to the realty. But the genius and enterprise of the last half century has been in nothing more remarkable than in the employment of some of the great agents of nature, by means of machinery, to an infinite variety of purposes, for the saving of human labor. Hence, there has arisen in our country a multitude of establishments for working in cotton, wool) wood, iron and marble ; some under the denomination of mills, and others of facto- ries, propelled generally by water power, but sometimes by steam. These estab- lishments have, in many instances, perhaps in most, acquired a general name, which is understood to embrace all their essential parts ; not only the building which shel- ters, encloses and secures the machinery, but the machinery itself. Much of it might be easily detached without injury to the remaining parts, or the building, but it would be a very narrow construction, which should exclude it from passing by the general name by which the estabhshment is known, whether of mill or factory. The general principles of law must be applied to new kinds of property, as they spring into existence, in the progress of society, .according to their nature and inci- dents, and the common sense of the community. The law will take notice of the mutations of language, and of the meaning of new terms, applied to new subjects as they arise. In other words, it will understand words used by parties in their con- tracts, whether executed or executory, whether in relation to real or personal estate, according to their orduiary meaning and acceptation.' He then supposes the steam saw mill at Bath, to be conveyed by its name of a steain saw mill, and adds, ' If you exclude such parts of the machinery as may be detached without injury to the other parts, or to the building, you leave it mutilated and incomplete, and insufficient to perforrn its intended operations. The parties, in using the general term, would in- tend to embrace whatever was essential to it, according to its nature and design ; and the law would doubtless so construe the conveyance as to effectuate the lavrful intention of the parties.' In aid of these views, undoubtedly, comes the reasoning of Lord Mansfield on the question between the heir and executor, respecting the saltpans. Lawton v. Salmon, 1 H. Black. 259, u. ; S. 0.^ 3 Atk. 16, n. 1. 'The present case is very strong. The salt spring is a valuable inheritance ; but no profit arises from it unless there is a salt work, which consists of a building, &c., for the purpose of containing the pans, &c., which are fixed to the ground. The inheritance cannot be enjoyed without them. They are accessaries, necessary to the use and enjoyment of the principal. The owner erected them for the benefit of the inherit- ance. He could never mean to give them to the executor,' &o. This case shows * Ferard, 1S6, 18T. 144 HEIR AND EZECUTOR. , [PART I. the beginning of the reign of Queen Anne, the courts seem to [*183] have *considered that articles fixed up merely as liousehold furni- ture, or for purposes of common domestic convenience, should not how the fire engines in Lawion v. Lawton, 3 Atli:. 12, ere'oted by the tenant for life, and there claimed hy and allowed to his executor against the remainder-man, would have been decided, had the question been between the executor and heir, or vendor and vendee. The case of the cider mill fixed in the ground, which was awarded to the executor as against the heir,' turned upon a custom. 3 Atk. 14, n. 2 ; 1 H. Black. 260. Mr. "Wilbraham, who argued for the executor and against the re-' mainder-man, in 3 Atk. 14, and who succeeded, still gave his opinion, when the salt pan case came before Lord Mansfield, that it would have been different in re- spect to the heir ; and Lord Mansfield expressly adopted his opinion. These salt pans were very sHghtly fixed with mortar to the floor, and might be removed with- out.injuring the buildings. A steelyard hung in a machine-house, was considered a fixture. Eex v. Inh. of St. Nicholas, Gloucester, 262. It was fixed for weighing coal and other things brought to market. Lord Mansfield said it must be annexed to the freehold in the nature of the thing. ' "What is the house ? It is the machine- house. They are one entire thing, and are together rated by the common known name which comprehends both: and the principal purpose of the house is for weigh- ing. The steelyard is the most valuable part of the house. The house, therefore^ apphed to this use, m'ay be said to be buUt for the steelyard, and not the steelyard for the house.' One question was whether the whole machine was ratable as real estate, the steelyard inclusive, for the support of the poor. Messrs. Amos k Perard, speaking of this case, say, ' the machine which had been rated was clearly affixed to the freehold ; and the court seem to rely upon that circumstance in deliveriag their judgment.' Amos & Per. on Fixt., 209.* They then advert to another case in Caldecott, 266. It is Eea v. JSogg. There the sessions rated a buUdhig by the name of ' the engiue house.' The sessions stated, at first, that ' the engine is not fixed to the preroises, but capable of being moved at pleasure.' The whole buUding and machine were asseSsed at £36, though the building, iudependent of the machine, was worth only two guineas. The court directed the case to be restated. They required the sessions to state whether the enghie was worked 'with water or horses ; whether the house was a dwelling-house, or built for the purpose ol re- ceiving the engine, and whether it was used for any other purpose ; and in what manner the engme was put up in the engine-house, and what its size and bulk.' The counsel afterwards consented to a set of facts; among them, they agreed 'thait the engine was worked generally with water, but frequently by hand ; that the building was not a dwelling-house, nor was it erected for the purpose of receiviug the engine, but formerly was used for the purpose of turning bobbins, and as a weaver's shop ; but is now used for the purpose of carrying on the cotton manufac- tory, there being in the same building two other engines, one of which was used for the purpose of carding and the other for tumming cotton, which tumniing is another process of the same manufactory. All the engines are placed on iihe floor and no ways annexed or fastened to the same, but may be moved at pleasure, and carried out and worked in any other place, either by means of water or manual labor, and are not adapted to any particular building. The frame in which the en giue stands is twelve feet in length, three feet eleven inolies in breadth, and two * Eerard, 261. CHAP. IT. SEC. II.] FIXTUEES FOR ORNAMENT, ETC. 145 be accounted strictly a part of tLe inheritance, but should go to the executor in the nature of personalty. Thus, in the case of Squier v. Mayer, in_Chancery,(a) it was Pumaes!., hand- held, by the Lord Keeper, that a furnace, though fixed to the (a) 2 Freem. 249. feet nine inches in height ; the semi-diameter of the largest cyhnder, with a small roUer at the top rising twenty inches above the frame, the engine sinking in the same, seventeen inches. Still the difficulty as to annexation remained ; for one question was whether the machine was ratable except as a part of the real prop- erty. Caldecott, in support of the assessment, complained that the return was eva- sive in merely saying that the engine was not annexed or fastened to the floor; whereas it might be fastened to the building in some other way. The opposing counsel said it was placed on the floor like a chair. Ashurst, J., said the case was stiU imperfect ; for it is not stated negatively, that this engine, while it is in a state of working, is not in some way or other fixed to the house. It is only stated that it is not fixed to the fl^or : but it may be fixed- to the walls of the building without being fixed to the floor. "We can assume no facts on either side ; but one should suppose thai it must be fastened m soTne way, otherwise, as it is worked by water, the weight of the water must displace it ; and if so, it is exactly the case of T?ie King v. St. Nicholas, in Gloucester. BuUer, X, said, speaking of the right to the enguie, as betaeeu executor and heir, or tenant and landlord, ' If the engine were cha/rly dis- Unci, it would, in aU cases, go to the executor. But here, all being under lease for a term, all would go to the executor.' Grose, J., said, ' This is an engine-house fitted up with an engine, but whether that is fixed or not is uncertain. The engine is evidently a part of the house : for Walmesley is stated to be lessee of the premisesi which comprehend the whole, both 'house and engine. I therefore consider this as an entire thing.' Messrs. Amos & Ferard, in commenting upon this case, admit that it is generally considered as deciding that a poor rate may be assessed on mere per- sonal property rented with a building. But they say, the better opinion seems to be that it cannot; and they seem to rely on what Ashurst, J., said, as showing that the engine was probably considered real estate. " The two last cited oases seem to allow that the slightest permanent annexation of machuieiy is sufficient to make' it a part of the realty; and sustain the reasoning of Weston, J., in Farra/r v. Siachpole, so far as it maintains that the chain was a fix- ture, because it was hooked for use as a part of the permanent machinery. He said ' the chain is the last in the parts of the machinery, to which the impelling power is communicated, to effect the object in view. Its actual location in the succession of parts can make no difference.' See also the remarks of Amos and Ferard on Fix- tures, p. i, note (a) on the case of Davis v. Jones. A later case is somewhat mate- rial Golegrave v. Dias Santos, 2 Barn. & Cress. Ye, was decided in Tr. Term, 1823, by the King's Bench ; S. C, 3 Dowl. & Ryl. 255. It arose between the vendor and vendee of a mansion-house with the lands, called DownseE HaU, in Essex. A con- veyance was executed, and the defendant entered into possession. To the house be- longed certain artides which were all taken possession ot with it by the vendee, and • Ferard, 4. 10 146 HEIR AND EXECUTOR. [PART- 1. freeliold and purcliased with, the house, and also hangings nailed to the walls, should belong to the executor, and not to the heir. And it is added in the report, that " this was so determined, conirsisj io-Herlalcenden^s case, (4 Co.,) '■ quHl dit n!est ley quoad prcemissa.' " none of them had been excepted either in tlie particulars of the sale, which was by auction, or the deed of conveyance. They consisted chiefly of 'bells and bell pulls, stoves, grates, blinds, shelves, coppers, a water butt, and other articles of the same kmd,' 3 Dowl &Ryl. 255; or according to 2 Barn. & Cress. Stoves, grates, kitchen ranges, closets, shelves, breviTng coppers, cooling coppers, mash tubs, locks, bolts, blinds &o. The plaintiff, the vendor, demanded them aU of the defendant, the vendee, by the name of fixtures ; and, on the latter refusing to deliver them, brougjit trover ; which it was held would not lie for any of tliem. It was conceded that some of the articles might be movables ; in 2 Barn. & Cress., Abbott, C. J., said, ' three or four trifling articles;' what they were is not stated by either report ; but the recovery was denied for the whole, inasmuch as there was a general demand and refusal of the whole as fixtures. Maryatt and Piatt mentioned stoves, bell pulls, shelves and water iutis, as movables, none of which were permanently attached to the house, or could be considered as part of it. Bay ley, J., a.sked, ' is that so clear 7 To whom would such articles pass, the heir or executor?' The counsel submitted they would pass to the executor. Best, J., asked, 'Is not Wynne v. Ingleby, 1 Dowl. & Ryl. 24'7, a case of ranges, ovens and set pots, taken by afi. fa., against the owner of the free- hold, see S. 0., Nom., Winn v. Ingilty, 5 Bam. & Aid. 625, an express decis^ to the contrary ? Has the vendor a right to dismantle a house in order to remove such articles?' For this colloquy, see 3 Dowl. & Ryl. 256. I cannot learn from the books, that there has been much litigation concerning fixtures as between vendors and vendees of houses since the decision of Colgrave v. Bias Santos. The rule of that case has lately been held to prevail as between mortgagor and mortgagee. Longstaffv. Meogoe, 2 Adolph. & Ellis, IGT. Yet the English cases are extremely dif&cult to reconcile, especially those which have arisen between heir and executor See Amos & Perard on Fixtures, ch. 4, sec. 2, p. 161. " There is also considerable conflict hi the American cases, as may be seen by those which I have cited. The inconsistency appears to have arisen occasionally from not attending to the distinction maintained by the older cases, between the two relations of vendor and vendee, and tenant and landlord; though sometimes it has also arisen from a difference as to the mode of annexation. In Powell r. Monson & Brimfteld Manufacturing Company, 3 Mason, 459, both the New York and Massa- chusetts cases were cited, to prove that the wheel and gearing of a cotton factory were not to be considered a part of the freehold, 'in such sense that the widow could have dower of them. Story, J., was driven to say that the carding machine in Gah V. Ward, though attached to the wheel by a leather band, was not strictly a fixture ; and that the fastening in Gresson v. Stout, would not make the machinery so. Tet certainly the wheel, and most, if not all the gearmg mentioned and described in 3 Mason, might have been as easily removed as many other things attached to the free- hold, which have been treated as movables. The case of the cotton gm, in 1 Bailey, the EngUsh steelyard and engine cases cited from Oaldecoti & ColgraA)e v. Uius San- * lerard, 182. CmA?. IV. SEC II.] MXTURES FOR ORNAMEIirT, ETC. . ' 147 This doctrine, however, seems to have been qualified in the *''='">'es, pier ' ' -*■ _ glasses, 4c. subsequent case of Cave v. Cave, in the same 'Court, (Trin. T. 1705,) where the authority of HerlakenderHs case was again recog- •tos, with several other English cajses, show that a very slight affixing for permanent use is sufficient. The mere hbofciag of a chain in Farrar v. Stackpole, was sufficient under the circumstances. "Why is the key of a door look deemed a fixture ? Be- cause it makes a part of the .permanent machinery used to secure the door. Tet it is kept entirely Separate, except when employed in locking and unlocking the door. The mode of annexation must evidently depend o* the raaaner in which the parts ■of machinery are used. The saws in a saw mUl may be in two sets, one at worlc, while the other is undergoing repairs or filing and sharpenieg ■; and either maybe ■easily rempved without violence to the frame where they belong ; are either to be ■considered the less fixtures for these reasons ? Gibbons says, if a copper fastened In brick-'Work, have a movable cover, the latter is'a fixture ; because the copper is the principal thing, -and the latter a mere appendago. Gibbons on Fixtmires, I'Z. The case of ^avis v. Jones, 2 Barn. & Aid. 165, has accordingly been thought unex- jilainable by the principles professedly adopted in the case itself. Certain jibs making part of an entire machine, which was clearly a fixture, *-ere treated as mere personal property. See Amos & Ferard on Fixtures,* p. 4, note {a}. The ancient distinction, ho^frever, between actual annexation and total discon- nection is the most certain and practical ; and should, Aerefore, be maintained, ex- •cept -where plain authority or usage has created exceptions. The reasoning of Mr. Dan^ and of the learned judge in Fairrwr v. Staclcpole, before cited, while it cannot 'be too extensively a,pplied to modern machinery in subordination to that distinction, ■does not appear to be sustained by authority, when it seeks to raise a general doc- trine of constructive fixtures, from the moral adaptation ' of what is in fact a mere movable, to the carrying on a farm or factory, Ac, however essential the movable may be for such purpose. The argument in that shape proves too much. Such adaptation and necessity might be extended even to the use of domestic animals on «, &rm, and certainly to many implements in a manufactory which -could never be recognized as fixtures, -without utterly confounding the rule by whicli the rights of the heir or the purchaser have been long governed. The judicial application of the rule is already sufficiently nice and difficult. As between heir and executor^ it was partially altered by 2 B. S. 24, sec. 6, sub. 4, 2d ed. By this, "things annexed to the freehold, or to any buflding, for the purpose of trade or manufacture, and not fixed into the wall of a house, so as to be essential to its support," pass to the ex» ecutor. And see 3 Id. 638, 9, (2d ed.,) Appendix. This pro-vision certainly indicates .anything but a legislative intent to enlarge the rights of freehold. Taken literally, it would strip the heir of the wheels, gearing, and all the other machinery fixed in the ordinary way to a mUl or manufactory inherited by him. It is certainly con- trary to the aEcient common law-; (see 11 Vin. 16'7, Executor, (Z) pi. 6; Amos & Fer. on Fixt. 133, and cases there cited on to p. 138 ;) and seems to derive very •questionable countenance from tnore modem authority. Squire v. Mayer, a short note of which is given in 2 Freem. 246, goes the farthest towards our statute rule; but how very doubtful -this and some other modern causes of the like tendency are, , may be seen by Amos & Fer. on Fixt, ch, 4, sec. 2, p. 151,f and cases there cited. * Ferard, 4, Ferard, 153, 184. 14S ' HEIR AND EXECUrOK, [PART I. nized.(Z)) For upon a question whether some 'pictures belonged to the heir or to the executor, the Lord Keeper was of opinion, " that although pictures and glasses, generally speaking, were (h) 2 Vern. 508 ; Law of Test. 3-80; 3 Bae. Ab. 63. See the decree of the court in this case, noted in Wms. Executors, p. 517, 2d. ed. See, also, Gibbons on Pixt. 11, 12. As between devisee and executor, the sugges- tion of Vioe-Chaucellor Hart, in ImsMngton v, Sewell, 1 Sim.. 435, 480, seems to go beyond any adjudged case in favor of the freehold. He inclined to think that the devise of a West India estate would pass the incidental Btocls of slaves, cattle and im- plements ; because such things are essential to render the estate productive ; and denuded of them, it would be rather a burden than a benefit. . It is, I think obvious, not only from our statute, but from both the English and American cases, that there is a stronger tendency to consider fixtures for the purpo- ses of trade as mere personal property, than we find either in regard to those of an agricultural or domestic character. See Gibbons on Fixt, 10, 11. Amos & Per. on Pixt. ] 38,* ed. of 1830, By several English eases cited in these treatises, the execu- tor was, in respect to trade fixtures, preferred in his claim against the heir, though the doctrine is far from being settled. By several American cases, we have seen that such ilxtures were denied to have passed, even as between the vendor and vendee of the freehold ; though such a rule derives no countenance, or certainly very little from any Enghsh authority ; and seems to be against the weight of American adjudication. On the whole, I collect from the cases cited, and others,, that, as a general rule, in order to come within the operation of a deed conveying the freehold, whether by metes and bounds of a plantation, farm or lot, &,c., or in terms denoting a mill or fac- tory, &c., nothing of a nature personal in itself wiU pass, unless it be brought within the denomination of a fixture, by being in some way. permanently, at least, habitu- ally attached to the land, or some building upon it. It need not be constantly fast- ened. It used not be so fixed, that detaching will disturb . the earth, or rend any part of the building. I am not prepared to deny, that a machine movable in itself, would become a fixture from being connected in its operations by bands, or in any other way, with the permanent machinery, though it might be detaVhed, and re- stored to its ordinany place, as easy as the chain in Farrar v. ^Stackpole. I think it would be a fixture notwitlistanding. But I am unable to discover, from the papers before us, that any of the maohines in question before the commissioners were even sMghtly connected with the freehold. Per aught I can learn, they were aU worked by horses, or by hand, having no more respect to any particular part of the building, or its water wheel, than the ordinary movable tools of such an establishment. These would have their common place, and be essential to its business. So, a threshing machine, and 'the other implements of the farmer. But it would be a solecism to call them fixtures, where they are not steadily, or commonly attached, even by bands or hooks, to any>;part of the realty. The word fixiwres is derived from the things signified by it being fastened, or fixed. " It is a maxim of great antiquity, that whatever \s fixed to the realty, is thereby made a part of the realty, to which it adheres, and partakes of all its incidents and. properties." Toml. Law Diet. Pix- tures.' Hence, fixtures are defined to be " chattels or articles of a personal nature, *Fei-ard,169. CHAP. lY. SEO n.] FIXTURES FOR ORNAMENT, ETC. 149 part of the personal estate, yet, if put up instead of ivamscot, or where otherwise wainscot would have been put up, they should go to the heir. The house ought not to come to the heir maimed and disflgared. Herlakenden's case, wainscot put up with screws, shall remain with the freehold." [*184] But there was another determination almost immediately after Glasses fixed . ^ -^ with screws. the foregoing case, which in its *principle seems to carry the doctrine of Squier v. Mayer to a very considerable extent. A "bill was filed in the Court of Chancery, upon a covenant made by a testator to convey a house and all things affixed to the free, hold thereof. And the Lord Keeper held, (a) that hangings and looking-glasses fixed to the walls of a house with nails and screws, and which were as wainscot, there being no luainscot underneath were only matters of ornament and furniture, and not to be taken as part of the house or freehold. And he was of opinion that for this reason they were not within the testator's covenant. According, therefore, to -this construction it may be inferred, that in the opinion of the Lord Keeper, hangings and glasses fixed up with screws and nails, and even if put 'up in lieu of wainscot, are to be deemed part of the personal estate. For a covenant of this nature may properly be considered to pass to the covenantee everything which am heir would take by de- scent. (5) (a) Beck v. Rebmo, 1 P. Wms. 94; An. ItOS; 15 Tin. Ab. 43 ; 2 Ad. & Bl. 3*7. (5) See Birch t. Dawson, cited pogt, cli. S, -wlieEe looking-glasses, nailed to the walls, 'were Asemei fixed furniture. •which have been affixed to the lasid." Id. " It is an ancient prineiple of law," aays Weston, J., in Fa/rrar v. Stackpole, " that certain things, which, in their nature, are personal property, when attached to the realty, become part of it as fixtures." And see Amos & Fer. on Fixt., ch. 1, p. 1. It is not to be denied, that there are .strong dicta, and perhaps we may add the prineiple of several adjudicated exceptiojis, upon which we might, with great plau- sibility, declare the machines in question, so essential to the purposes of the manu- factory, although entirely dissociated with the freehold, a fit subject for entering in- to the list of constructive fixtures. The general importance of the rule, however, -which goes upon corporal annexation, is so great, that more evil will result from frit- tering it away by exceptions, than can arise from the hardship of adhering to it in ■particular cases. Nor can we possibly say, as in the case ©f the steelyard or engine in the cotton ■manufactory, cited from Caldecott, that the machines in question must, in the na- ture of the thing, be annexed to the freehold. It appears, by the papers before us, that they have been used with the factory for several years, and have passed with :Jtin eonveyances. But the affidavSta do not staie that thej are afSxed in any way. 150 HEIE AKD EKECUTOB. [PART Z. bS'Ti Aim^ ^ decision proceeding upon similar principles occurred after- '"'^"- wards at common law. The litigating parties in this, case were the heir and the executor of the deceased owner of the land, and the determination is expressly in favor of the personal estate. In the case of Harvey v. Harvey, [c) in an action of trover broxight. by an executor against an heir, Ch. J. Lee held, that hangings^ [*185] tapesfi-y and iron *lachs to chimneys, belonged to the executor^ who recovered accordingly against the heir.(a) Of the above decisions it is to be observed, that the case of Beck V. Rehow has frequently been cited and approved of by the courts on subsequent occasions. And the case oi Harvey y^ Har- vey is expressly recognized as law by Mr. Justice BuUer in his treatise on the law of Nisi Prius.Qi) Decisions not The courts, howcvcr, have in several modem instances shown uniform as to the . . • • i j? l j executor's claims a vcry great reluctance to acquiesce m the principle oi these de- terminations. Lord Mansfield, in the case of Lawkm v. Sal- mon,{c) speaks as if the relaxation in favor of carrying away mat- ters of ornament existed only as between landlord and tenant.. And Lord Ellenborough appears to have been under the same impressio.n.((i) In a late case, also, it was said by the court of' Set pots, oTens, King's Beuch, that certain articles consisting of set pots, ovens- and ranges, fixed up by the owner of a house, would go to the heir and not to the executor.(e) And in another case, in which stores,, ciossts, there was a question whether stoves, closets, shelves, brewing ves- sels, locJcs, blinds, c&c, passed to the purchaser of a house, upon a, sale and conveyance of the house, the court, said,(/) that some of the articles, viz., the stoves, cooling coppers, mash tubs, water tubs and blinds, might be removable as between landloa:d and tenant, but would not belong to the executor, but to the heir, r*186] ^^"^ were as between *those persons parcel of the freehold. And so, on a still more recent occasion, it was said by Mr. Justice ho^m. ™''' -^^y-^®y» ^^^^ staveSfll] grates and cupboards, were parcel of the free- (c> 2 Str. 1141. (a) As to hangings, see ante, p., 82, in naiis. (J) Bui. N. P. 34 a. (c) 1 H. Black. 280. (d) Elwes V. Maw. (e) Winn v. Ingelby, 5 Bar. & Aid. 625k (/) Oolegrave v. Dias Sanies, 2 Bar. & Cres. te. [1} In Godda/rd y.. Chase, {1 Mass. 432,) stoyes, fixed; iato tlua brlck-wodc of tha CHAP. lY. SEC. II.] PIXTURBS FOR ORNAMENT, ETC. 151 told, and tho-ugli they might be removed by a tenant during the term, yet they would go .to the heir and not 'to the executor, (a) According, therefore, to these authorities, the courts seem to consider that the old rule of law has received only a very partial relaxation in the case of heir and executor.(6) It is, however, material to observe, that in the cases before Lord Mansfield and Lord EUenborough, the conflicting claims of the heir and execu- tor did not come into discussion; and therefore, the effect of the decisions in favor of the personal estate was not particularly ad- verted to in their judgments. And so with respect to the cases last referred to, the question as to the heir's claim arose there only collaterally, and was not, as in Squier v. Mayer and Harvey V. Harvey, the express subject of determination. There is, indeed, much uncertainty as to the real extent of the °J!/°er°s°' °' '*" executor's claims in these cases; and as the authorities are so few in number, and appear, moreover, so contradictory to each other, it may be useful to see how these questions have been treated by the modern text writers. Mr. Justice Blackstone in his Commentaries, (Vol. II, p. 428.) ^X°'^i"''' speaking of the doctrine concerning heir-looms, says, " On the .other hand, by almost general *custom, whatever is strongly [*187] affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, quod ah cedibus non facile re- velUtur, is become a member of the inheritance, and shall there- fore pass to the heir ; as chimney pieces, pumj>s,{a) old fixed or dor- mant tables, benches, and the like." (a) B. V. InhahUanis of St. Dunstcm, 4 Bar. & Ores. 686. As to cupboards, see svp. p. 76. (6) And see the observations upon this subject in the last section. (a) As to pvMvps, that these are removable by a tenant. See 6 Bing. 437 ; Svp. p. 180. chimneys of a house, Tvere held to be fixtures, so that they could not be removed by the owner of the house, which had been levied on under an execution against him ; aliter, ut semile et sub modo, as between landlord and tenant. Eex. v. Irihdb. of St. Duncan, 4 Bar. & Ores. 636. The case of Goddard v. Gfiase, is distinguishable from that olFreeland v. Southworth, 24 Wend. 191. Inasmuch as in the former, the stoves were set in the chimneys, so that it was necessary to pull down the fireplaces in order to get them out; while in the latter, they could be removed without injury to the building. 152 HEIR AND TBKTANT. [PART I. Wainscots, posts, j^ Wooddeson's Vinerian lectures, it is said, (S) that "many- things which appear to he of a personal or chattel kind, never- theless shall descend. to the heir, and not go to the executor, such as things annexed and fixed to the freehold, which in some measure are necessary for the enjoyment of the inheritance, and which greatly contribute to its value, as wainscot in a house, and the posts and rails of an enclosure. "(c) Tables, ovens, And, in Bums' Ecclesiastical Law,W) in allusion to the case jacks, clock cases Ac- of Harvey v. Harvey^ it is observed that the law seemeth now to be holden not so strict as formerly : and if these things can be taken away without prejudice to the fabric of the house, it seemeth that the executor shall have them ; as tables, although fastened to the floor ; furnaces, if not made part of the wall ; grates, iron ovens, jaclcs,(e) clock cases, and such like, although fastened to the freehold by nails or otherwise." General observa tions. The result of the several opinions and authorities upon this r*l881 subject appears to be, that there are some *species of articles which, as being put up merely for purposes of ornament, or com- mon domestic use, may be accounted part of the testator's per- sonal assets. And if the cases of Squier v. Mayer, Beck v. Rebow and Harvey v. Harvey, are to be considered still unimpeached, these decisions establish an important modification of the ancient doctrine, and seem to carry the exception almost as far as in the case of landlord and tenant. Nevertheless, the observations of the j udges in the several cases which have been referred to, must be considered as restrictive of any general right to fixtures on the part of the executor : and indeed it would seem-that much of the reasoning upon which the decision in the case of Fisher v. Dixon (cited at length in the preceding section) was founded, applies to the case of annexations made by the owner of the fee for pur- poses of ornament or convenience, as strongly as to the case of an- nexations by him for purposes of trade. It may, at all events, be laid down as a clear rule in all cases, (a) that if an article put up for ornament or convenience is so annexed to the freehold that the inheritance would be greatly deteriorated by its sever- (6) Vol. II, p. 3T9. (c) As to rails, fences, &o., see swp. p. 38. \d) Vol. IV, p. 301, Ith ed. (e) As to jacks being parcel of the freehold, see 1 Sid. 201. (a) Vide, 3 Bac. Ab. 63. CHAP. IV. SBC. III.] CHARTERS. 153 ance, it must be considered an essential part of the freehold, and the executor will not be entitled to take it as part of the personal estate.(6) *SECTIO]Sr III. [*189] Of Charters, Heir-looms, Emblements, &c. There are certain species of things connected wijih the sub- ject of the present treatise,. which, like fixtures, are of a very technical character, and partake partly of a real and partly of a personal nature. It is proposed to investigate the doctrine rela- ting to property of this mixed nature. And as the questions to which it gives rise usually occur between heir and executor, the present seems the proper place for considering it. AjuA first — ■ Of Charters. Charters or deeds relating to the inheritance, are the eviden- pas"'° with the tial muniments of the estate. They are, as Lord Coke expresses '*°*- it, the sinews of the land. On this account, the law provides that they shall always follow the land to which they relate, and shall vest in the heir, and pass to the alienee, as incident to the estate, et ratione terrae.ifl) If the land is forfeited, (as for treason or felony,) the charters or evidences which belong to the land are also forfeited.(6) *From this, their strict relation to land, they have even been r*1901 accounted for some purposes not to be chattels, (a) And, there- fore, it is said, that if a man gives and grants omnia bona et ca- talla, his charters concerning his land shall not pass by these words. (6) They are, nevertheless, so far in the nature of '. Brooks, 4 C. & P. 131. As to the distinctions taken in early times, with respect to the property in deer that were tame, or which could bo identified by some peculiarity, as white deer, see Eeeve's Hist. Vol. HI, p. 318. CHAP. IV. SEC. III.] CHURCH OENAMBNTS, ETC. 163 pliies, acMevements, &c., hung up in a dLurcli, belong to the heir in the manner of heir-looms. The same rule holds as to monuments, tombstones, and effigies, &c., set up in the church. And notwithstanding these things may be absolutely affixed to the walls or fabric of the church, yet the parson shall not take them although the freehold of the church is in him. For Lord Coke says,(5) " If a nobleman, knight, esquire, &c., be buried in a church, and have his *coat armor and pennons i 203] with his arms, and such other ensigns of honor as belong to his degree or order, set up in the church, or if a grave stone or tomb be laid«or made, &c., for a monumeftt of him, in this case albeit the freehold of the church be in the pardon, and that these be annexed to the freehold, yet cannot the parson or any take them or deface them, but he is subject to an action to the heir and his heirs in the honor and memory of whose ancestors thej^ were set up.(a) And so it was holden Mich. 10 Ja., and herewith agree the laws in other countries. Note this kind of inheritance. And some hold that the wife or executors that first set them up may have an action in that case against those that deface them in their tune."(&) It was holden, however, by the Court of Common Pleas, in a modern cas'e,(c) that the property of a tombstone remained in the party who erected it, and that he might maintain an action of • trespass against a person who wrongfully removed it from the churchyard and afterwards erased the inscription. (c^) The *prop- [*204] erty of a coffin and shroud remains, it is said, in the executors or ^hmud. ^°'* (6) Co. Lit. 18 b. (a) Unless they were set up without the consent of the ordinary. See Gib. Cod. 454; 1 Str. 57^. (&) See 12 Rep. 105, Oorveri's case; 3 Inst. 110, 202; 1 Roll. Ab. Descent, E; Sid. 206; Cro. Jao. 367; Cro. Eliz. 366 ; 2 Roll. Rep. 140; Doot. & Stud, pages 305, 309 ; Com. Dig. Cemetery, C. See, also, Hitchcock v. Walford, 6 Scott, '?92. As to the right to erect monuments in a church, see 3 Inst. 202 ; Degge, p. 211, Yth ed. And see 1 Bar. & Aid. 508 ; 1 Haggard, 14, 205 ; 1 Str. 516 ; 2 Str. 1080 ; 3 Add. 15; 1 Lee, 640; Brecksy. Wool/ry, 1 Curt. 880. (c) 'Spooner v. Brewster,'^ Bing. 136; 2 Carr. M". P. C. 34; Com. Dig. "Cemetery." {d) As to the right of the incumbent to grant the privilege of making a vault, and erecting a tablet, &c., in a church, and the interest thereby conferred, see the authori- ties referred to in the preceding notes, and the case of Bryan v. Whistler, Glk, 8 B' & C. 288. See, also, Rogers' Eccl. Law, 18t. 154 HEIR AND EXEOUTOE. [PART I. other person who was at the charge of the funeral ; and it may- be laid as theirs in an indictment for stealing them.(a) ii Mourning hung But things that are fixed up in a church not in honor of indi- scaffoiding, Ac. 'viduals, but for other purposes, as when a church is hung in mourning, or when ornaments or erections, as scaffoldings, &c., are put up on public occasions, these become the property of the parson, in consequence of his possession of the freehold, and on the ground of their being a tacit gift to him.(6) Pews and seats. With respcct to pews and seats erected in a church, these be- come by annexation parcef of the freehold of the incumbent ; though the use of them is in those who have the use of the church, (c) And, therefore, if seats have been annexed to the church without legal authority, it is said that the property of the materials when pulled down is in the parson, who may sue the wrongdoer in trespass. But as to seats put up by the parishioners by good authority, it seems, according to the ecclesiastical wri- ters, that the property of the materials upon removal will be in the parishioners, and that the churchwardens and not the parson r*2051 ™^y maintain an action for taking them *away.(a) With re- spect, however, to movable seats in a church, the party that set them up may remove them at his pleasure. (5) BeiisT If a man hang up bells in the steeple, they become church goods, although they may not be expressly given to the church : he cannot thereTore afterwards remove them ; and if he does, he may be sued by the churchwardens, to whom the custody and possession of the goods of the church belong, though the property (a) ■Wms. Exors. p. 505 ; 2d. ed. (5) Vide Cases and Opinions, Vol. I, p.'ZTS. Upon this point, however, see Cramp V. Bayley, Glk., Kent Lent Ass. 1819, cited in the notes to the edition of Degge's Parson's Counsellor; by Ellis, p. 218 ; And see Prideaux's Directions, p. 8T, and the , authorities there referred to. It is certainly true that the soil and freehold of the church and churchyard is in the parson ; but the freehold is in him, not for his own emolument, but for public purposes only, as for supplying places for sepulture, &c. "With respect to, trees in the churchyard, see post (c) 8 H. Til, 12 ; Br. Ab. Chattels, pi. 11 ; IT. R. 430 ; 5 Bar. & Aid. 361. And see 1 Phill. Eep. 322. (a) Degge, p. 213, 1th ed. ; Burns' Ecc. Law, Vol. I, tit. Church; Noy, 108 ; Vide, Shaw's Par. Law, ch. 25, sec. 9 ; Prideaux, 13. (b) Degge, 211. This, however, seems to be questionable. Wats. ch. 39 ; Bums' Just. tit. Churchwardens, sec. 3. And see Shaw, ch. 25, sec. '? ; Prideaux, 32. CHAP IV. SEC. III.] EMBLEMENTS. 165 of tiiem is in tlie parishioners. (c) The property of the bell ropes Beii ropes. is in the ohurchwardens.(c?) So, if a man take the organ out of a church, the churchwardens organ, may have an action of trespass against him; because the organ belongs to the parishioners and not to the parson, and the par- son cannot sue the taker in the Ecclesiastical Court.(e) And the succeeding churchwardens may sue, although the trespass was done in the time of their predecessors. (/) The trees growing in a churchyard belong to the incumbent, Trees m cimrch- and he may bring his action, if' they be cut down.(^) * Of Emblements. [*206] It will be useful to advert, in the last place, to another species of property which has often been compared to fixtures, and re- specting which, questions frequently arise between the heir and the personal representative of the deceased owner of the inherit- ance. There are certain vegetable products of the earth, which, al- Emblements be- o J- ' ' tween heir aoil though they are annexed to and growing upon the land at the «^«°"'°i'- time of the proprietor's death, yet, as between his heir and his executor, are considered as a chattel interest, and will pass to the executor. (c) 11 H. IV, 12 ; Degge, 217 ; Bums' Ec. Law, uh. sup.; Com. Dig. Esglise, E. 3; Cro. Eliz. 145; 2 Salk. 54'7 ; 1 Sid. 281; 2 Keb. 22. That beUs are parcel' of the freehold of the church, see 11 H. IV, 12; Sid. 206; 1 Lev. 136, S. 0. As to the origin of beHs and chimes, and some curious observations upon them, see Lutw. Eep. Nelson, p. 32'7 ; 1 Salk. 164; Roll. Ab. Prohijpition, K. ; Sid. 206. See, also, Hook's Church Dictionary, tit. BeUs. (d) Jackson v. Adams, 2 Bing. N. C. 403. (e) 1 Roll. Ab. 393. (/) Cro. Eliz. 145, 119 ; 1 Leon. I'ZT. (§■) Br. Ab. Tresp. 210 ; Lindw. 261 ; 2 Atk. 21'?. The preamble of the ancient Stat., 35 Ed. I, see. 2, entitled " Staiutum ne Sector prosiernai Arhores in Gcemi- ia/rio,'' recites, that " Forasmuch as a churchyard that is dedicated, is the soil of the chureji, and whatsoever is planted belongetli to the soil, it must needs follow, that those trees which be growing in the churchyard, are to be reckoned amongst the goodsof the church, the which laymen have no authority to dispose ; but as the Holy Scripture doth testify, the charge of them is committed only to priests to be disposed of," &c. The statute then directs that the timber shall be applied to the repair of the chancel, &o. Of this statute, Lord Coke observes, that it is but a dec- laration of the common law; 11 Co. 49. IQQ HEIR AND EXECUTOR. [PART I. beion'^'^to^' *he ^^ general, trees and tte fruit and produce of them, from their ''"'■■ intimate connection with the soil, follow the nature of their prin- cipal ; and, therefore, when the owner of the land dies, they de- scend to the heir, unless they have been .previously severed. So it is of hedges, bushes, &c.(a) For all these are the natural or [*207] permanent profit of the earth, and *are reputed parcel of the ground whereon they grow, (a) Year's crop of -^^j.^ (,qj.q ^nd othcr products of the earth which are produced corn, &c., goes to J- p ^ ^ the executor, annually by labor and industry, (and thence called j^mc^ms indus- iriales,) having been sown with the intention of being afterwards separated from the realty, are held to partake of a personal na- ture. Hence, if the proprietor sows or plants his land, and dies before gathering the produce, his personal representative is enti- tled to take the proiits of the crop, or the emblements, as a compen- sation for the labor and expense of tilling, manuring and sowing the land.(l) And this rule of law is founded on a consideration of public benefit, and is said to be for the encouragement of hus- bandrjr, and the increase and plenty of provisions.(6) rloTs^'&c. '"''"' It is ^°'^ ^^^^7 established, that not only corn and grain of all kinds are emblements, but everything of an artificial and annual profit that is produced by labor and manurance. Thus, hemp, flax, saffron and the like;(c) and melons, cucumbers, artichokes, * (a) Com. Dig. Biens, H. ; U Rep. 48. Trees removable "by a nurseryman belong to Ms executors ; as to which, see ante, p. 68. (a) It would seem that not only the natural fruits, that is, such as grow of their own accord, and without any great labor or cost, but all growing fruits, though pro- duced by skill and culture, are the property of the heir. Vide, Swinb. pages 934, 935 ; Noy's Max. 116 ; 9th ed. ; God. Orp. Leg. part 2, ch. 14, sec. 1, and part 3, oh. 21, sec. 13; Cro. Car. 515; 3 Bac. Ab. 64; Com. Dig. Biens, B. ; Off. Ex. 58; 2 Freem. 210 ; Eodwelly. Phillips, 9 M. & "W". 167. (6) Co. Lit. 55 b; 1 RoU. Ab. 726, et seq. ; Swinb. Wills, page 210.; Com. Dig. Biens, G. 1 ; 2 Bl. Com. 122; Ch-aves v. Weld, 5 B. & Ad. 105. Emblements is de- rived from the French " emblavence de hied ;" i. e., com sprung or put up above ground. ■ Cowell's Diet. (c) Id. ib. ; God. Orp. Leg. part 2, oh. 13 ; 2 Freem. 210 ; GUb. Law. Ev. 208, 216, 6th ed. ; Harg. Co. Lit. 55 b. [1] The Revised Statutes of New York, (part 2, ch. 6, tit. 3, art. 1,) provide that crops growing on the land of deceased at the time of his death, and every kind of produce raised annually by labor or cultivation, exceptiag grass growing, and fruit not gathered shall be deemed assets, and go to the executors or administrators. CHAP. IV. SEC. III.] EMBLEMENTS. 167 &c. And hops also, altlioiigli they spring from old *roots ; be- [*208] cause they are annually manured and require cultivation, and an additional expense is incurred annually which is necessary to make them grow.(a) And so of turnips, carrots, potatoes, &c.{b) Of the latter kind of produce, it is said indeed in "Wentworth's Artichokes. Off. Bx.,(c) that roots in the groand and artichokes also, shall not go to the executor but to the heir; because they cannot be taken without digging and breaking the soil which belongs to the heir. This opinion, however, is contrary to the general principle of emblements, and to the rule as laid down by Lord Coke : and it appears now to be generally understood, that the executors shall have emblements of all aniiual crops sown by the testator, and which are growing at the time of his decease. (cZ) In one case, that of Kingsbury v. Collins, (e) it seems to have^^'"*^^- been assumed by the Court of C. P., that a crop of teazles ^was the subject of emblements. But the case can hardly be con- sidered an authority to that effect. For, as was observed lay the Court of K. B., on a subsequent occasion when this case was re- lied on,(/) the point had not been argued, and the court did not appear to have been made acquainted with the nature of the crop or its mode of cultivation ; or it might be that in the year when this plant is fit to gather, so much labor and expense is incurred *as to put it on the same footing as that of hops. [*209] But the growing crop of grass, even if sown from seed, or ■^■^"^"'^^ grasses though ready to be cut for hay, cannot be {aken as emblements ; because, as it is said, the improvement is not distinguishable from what is the natural product, although it may be increased by cultivation. It seems, however, from some authorities, that, the artificial grasses, as clover, saintfoin, and the like, by reason (a) Id. ib. ; Harg. Co. Lit. 55 b, note 364. And see the explanation given as to these in 5 R & Ad. 119. '(5) Id. ib. ; Law of Test. 380; Cro. Car. 515; 5 B. & 0. 832, 840. (c) Off. Ex. 61, 62 ; Gflb. Bvid. 216 ; God. Orp. Leg. part 2, oh. 14, sec. 1. (d) Tide 1 EolL Ab. 728 ; God. Orp. Leg. part 2, ch. 14; Com. Dig. Biens, G. L; 3 Bac. Ab. 64; 2 Bl. Com. 123; Harg. Co. Lit. «6. sap, (e) 4Bing. 202. if) Graves V. Weld, 6 K & Ad. 105, 168 HEIR AND EXEiOUTOB. [PART I. of tte greater care and labor necessary for their production, are within thb rule of emblements, and belong to the executor, (a) eiover. -g,^^ ^-^j^ respect to these latter crops and others of a like na- ture, the claim of emblements, even if admitted at all, must be understood in a much more limited sense. For in a modern de- cision of the Court of K> B., in which th-e doctrine of emble- ments was YeTj elaborately discussed, it was holden that the privilege is confined to such species of crops as yield a present annual profit, and to that year's crop which is growing when the interest of the party determines. And, therefore, that the right to take a crop of clover,, did not extend to the full period of its profitable maturity, viz., the second year from its sowing,, but that if the doctrine of emblements applied to such a crop at all, it could be taken only during the year in which it is sown ;. although the value at that time did not compensate for the cost and labor of its cultivation. (5) [*210] *"With respect to the parties who are entitled to emblements. Who may have it is to bc obscrvcd that the privilege is not confined to the case e emen s. ^^ ^-^^ pcrsoual representatives of a tenant in fee as against the heir; for the law allows a similar indulgence to many individu- als claiming different degrees of interest in land. It would be foreign to the object of the present treatise to enter into a partic- ular enumeration of the several persons entitled to this privi- lege ;(a) but it may be useful to notice a few instances, for the purpose merely of explaining the manner in which the right is aifected by the nature of the estate,, and by the mode in which it is determined. Thus, if a tenant for life, whether for his own or pour auier vie, sows the land and dies before the severance of the crop, his executors shall have the emblements ; because, in this case, the estate of the tenant is said to be determined by the act of God.(a)[l] (a) I EoU. Ab. '728 ; Hob. 132 ; 2 Freem. 210; 3 Salt. 160 ; Com. Dig. ud. sup..; Bac. Ab. ub. svp. ; Uilb. Ev. 215 ; 4 Bum. Ecc. L. 299., (6) Graves v. Weld, 5 B. & Ad. 105; see Mr. Serjt. HiU's MS. note in 9 Vin. Ab_ 368 ; Shep. Touch, by Preston, p. 469. (a) Tlie reader is referred to the valuable. Treatise on the Law of Executors, by Mr. E. V. (now Mr. Just.) "Williams, Vol. I, p. 496, et seq., 2d ed. (i) Co. Lit. ub.sup.; RoU. Ab. ul>. sup. , [11 Therefore, if tenant for hfe make a lease for years, and die before the term, the- CHAP. IV. SEC. III.] EMBLEMENTS. 169 So, where a life estate is determined by the act of law; as if a lease were made to husband and wife during the coverture, and the husband sows the land, and they are divorced causa prcBconiracius, the husband in this case shall have the emble- ments, for the sentence of divorce is the act of law.(c) A tenant at will, when the landlord determines the will, is entitled to emblements ; [2] so also is a lessee for years of tenant for life. And so a tenant of any other estate which is determin- able on an uncertain *event.(a) Indeed "the general rule is, • [*211] that whenever a man has an imcertain interest and sows the land, and his estate determines, yet he has a title to the corn that he has sown on the land, though the property of the land is altered,"(6) But if the tenant's estate is determined by his own act, as for forfeiture by waste, &c., there shall be no emblements. (c) And upon this principle the court decided in a modern case, that a parson resigning his living was not entitled to emblements of the glebe land.(c^ And as the privilege is founded on public policy, and the jus- tice of affording a recompense to the party, who by his own in- dustry, and at his own expense has cultivated the land, the, benefit of emblements cannot be claimed by a person although he has an estate Avhich is uncertain, if he is not the actual party (c) 4 Co. 116 ; Eoll. Ab. ub. sup. (a) See the authorities cited in the preceding notes. See, also, Perk. sec. 513, et seq. ; Shep. Touch. 244, ill ; Swinh. on Wills, part 3, see. 6, p. 253; 2 Bl. Com. 123, 146. (6) Gilb. Bvid. 208. (c) There are many instances ■where a party is deprived of emblements, owing to a voluntary determination of the estate ; as a/emme copyholder durante viduitate on her marriage ; tenant at will on outlawry; forfeiture of estate by condition broken, &o. Vide 5 Co. 116; Cro. Eliz. 4j61 ; 1 Roll. Ab. Emb. pi. 3. Davis r. Eyton, 1 Bing. 154. (d) Bulwer, Glk. v. Bulwer, 2 Bar. & Aid. 470. The advantages of emblements are extended to the parochial clergy by St. 28 H. VIII, ch. 11 ; Vide Swinb. on "Wills, part 2, sec. 26 ; 2 Bl. Com. Kb. sup. ; 1 Cru. Dig. tit. 3, ch. 1, sec. 54. under tenant for years, if he have sown the land, is entitled to the crop, and to in- gress, egress and regress to preserve, harvest and carry it off. Bevans v. Briscoe, 4 Harris, & Johns. E. 139. [2] Stewariv. Doughty, 9 John. Eep. 198. 170 HEIR AND EXECUTOR. [PART I. wlio has sown the land, and the charge has been incurred dur- ing the existence of a previous estate. Thus, if A. seised of land sows it, and then conveys it to B. for life, remainder to 0. for life ; and B. dies before the corn, is reaped ; in this case B.'s [*212] executors shall *not have it, but it shall go with the land to C. ; for here the reason of industry and charge fails.(a)[l] So, where a party has not the exclusive property in the land, as in the case of a joint tenant who dies ; the corn sown goes to . the survivor, and the moiety shall not go to the executors of the deceased tenant.(6) Devise of embie- But although, in general, the right to take the emblements belongs to the personal representative, as against the heir of the deceased owner of the inheritance, yet if there is an express de- vise of the land itself, the growing crops pass to the devisee, and the executor shall not take them. For it is presumed then in favor of the devisee, that it was the testator's intention to pass not only the land itself, but that which appertained there- to, (c) On the other hand, this presumption is rebutted if the growing corn is expressly devised away, or there is any per- sonal bequest in the will which can apply to emblements, as goods, stock, &o. For in this case the legatee will be entitled to the crops, and will take them against the heir, the executor, and the devisee of the land.(c^) Interest in the Where there is a right to emblements, the law confers a free Innrl until Rpvpr- * land until sever- ance. (a) Hob. 132; "Winch. 31; Cro. Eliz, 61, 463. (6) Cro. BUz. 61 ; Co. Lit. 55 b. (c) 1 Roll. 89, 121 ; Winch. 51 ; Perk. sec. 59 ; Cro. Eliz. 61 . 461 ; Bui N. P. 34 a. And see Cox v. Godsahe, 6 East, 604, n. ; 8 East. 339. See, also, Mr. Hargrave's note to Co. Lit. 55 b, (N. 365,) where he says, that it is not easy to account for the distinction which gives corn growing to the devisee, but denies it to the heir, though it has been attempted. (dj See the authorities in the last note. ' As to who may devise emblements, see Tin. Ab. Devise, 1. [1] Where land has been purchased and conveyed in trust for husband and wife during their joint lives, and the life of the survivor, and the crops growing at the death of the husband, were sown by the vendor, before conveyance made, held that such crops, as emblements, survived to the wife under the trust, and was not part of the husband's personal estate ; but it would have been otherwise, had the land been sown by the husband after his purchase. Sazleit, Adm. v. Glenn, 1 Harris & John. R. 11. CHAP. IT. SEC. III.] EMBLEMENTS. 171 entry, egress and regress, in order to cut *and carry tHem a-way.(a) [*218] "Witli respect, however, to the nature of the interest which the tenant or the personal representative has in the land until the corn is ripe, there is but little information to be found in the authorities ; neither does it satisfactorily appear whether any compensation is to be made for the occupation of the land in the mean time.(&)[l) The reader who' may be desirous of pursuing the subject fur- ther, will find the doctrine of emblements very fully treated of in Co. Lit. 55 b ; in Perkins' Profitable Book, sec. 512, et seq. ; in Gilb. Law Ev. 208, et seq., 6th ed., and in Com. Dig. Biens, G. ; Vin. Abr. Emblements and Executor, with Mr. Serjt. Hill's Notes in Line. Inn Lib. ; and Bac. Abr. tit. Executor. See also Wms. Exors. Vol. I ; and the note to Graves v. Weld, in 2 Nev. & M. 734. [2] (a) Co. Lit. 56 a. (6) See Plowden's Queries, 239 ; and see per Bayley, J., in Mians v. Solerts, 5 B. & C. 835. [1] Wiiere tenant for life dies in possession, or has leased for years to an under- tenant, and dies, the reversioner or remainder-man is not entitled to the occupation of the lauds on "which a crop is growing, until such crop is taken off, or reasonable time elapsed to have taken it oflf; but after the crop is so removed, if the tenant still occupy the land, the remainder-man would be entitled to recover for the use and occupation. Bevans v. Briscoe, 4 Harris & John. R. 139. [2] The law of Pennsylvania, as regards the right to emblement, differs from the law of New York, (in which the EngMsh law has been mainly followed,) in allow- ing, by custom, the way-going crop to a tenant for a term certain, whether such right be recognized by contract or. not ; and such tenant" may maintain trespass for it, against the landlord or vendee, after the lease has expired. Diffedorfer v. Jones, cited 5 Binney, 289; 2 Binney, 481; Stulh v. Dickey, 5 Binney, 285; Briggs v. Brown, 2 Serg. & Rawle, 14. And the right to such crop remains, notwithstand- ing the vendee, obtain possession by hob. fa. poss. on a judgment in ejectment ob- tained by the landlord against a former tenant ; and the record of the ejectment is not a justification of a trespass by the vendee. Briggs v. Brown, Ibid. 172 TRANSFER OF FIXTURES. [PART I. [*2M] *CH AFTER V. OF THE TRANSFER OF FIXTURES BY SALE, MORTGAGE, DEVISE, ETC., AST) IN CASE OF BANKRUPTCY. In tbe present chapter it is proposed to consider in wliat cases fixtures will pass by tlie terms of a conveyance, whether it be by grant, mortgage, lease, &c. ; by devise, or other species of aliena- tion ; and to point out the questions of law which ordinarily oc- cur upon the transfer of property of this description ; and such also as arise in the event of bankruptcy. And, first, as to a conveyance by sale: — it is to be observed, that in general undei the name of land are comprised all build- ings and erections afiixed to the soil. Thd term land has accord- ingly been held to convey houses, &c., erected thereon, although not mentioned, and notwithstanding other houses and buildings are specifically described in the conveyance.(a)[l] Chattels affixed Upon this principle it was laid down, in very early times, that anceotthe land, where mere personal chattels are annexed to the freehold, they are made incident to the freehold, and will be included in a con- veyance of the land in general terms. And, therefore, in the Year Book, 21 H. YII, 26, it was said, that vats fixed in a brew- [*215] house or dye-house should always go with the ^'freehold, and pass by feoffment together with the inheritance. This doctrine has been recognized by the courts in several more modern determinations. Thus in the case of Eyall v. Rolle,{a) it was said by Parker, Ch. B., that by a conveyance by way of mortgage of the freehold, fixed utensils would pass. And in a still more recent case in the Common Pleas, (&) a windmill, (a) Com. Dig. Grant. E. 3 ; Co. Lit. 4 a ; 2 RoU. Ab. Graunt. 1 ; 1 Levi. 131. (a) 1 Atk. 115. (6) Steward v. Lombe, 1 Brod. & Bing. 507. [1] Fawis T. Water, 1 Bail. 540. Plaintiff conveyed to defendant his cotton plantation ; a cotton gin was in a gin-house attached to the gears ; plaintiff brought trover for the gin, but it was held to be a fixture, and that it passed with the free- hold under the rule, as between heir and executor, or vendor and vendee. CHAP, v.] SALE, ETC. 173 wliicli was described as a wooden edifice built on brick- work, and anclaored into the ground by spores and land ties, being one foot under the surface of the earth, but removable at pleasure, was found by the jury not to he a fixture ; nevertheless its connection with the land was of such a nature, that it was considered that by a conveyance of the land, the purchaser would have been en- titled to the mill without any mention of it in the deed.(c) And it appears that the principle applies equally to cases where so fixtures, personal chattels have been af&xed to the freehold, and there is a subsisting right to remove them under the law of fixtures. Thus in the case of Thresher v. East London Water Works Co.,{d) the court seem to have been of opinion, that if a tenant takes premises under a renewed lease containing the terms land, build- ings, erections, &c., such general words will comprise fixtures which have been put up pending a former lease ; and that con- sequently, the tenant will be precluded from *setting up any [*216] claim to remove 'the fixtures, Avhatever may have been his rights antecedently to the new lease. So, in the case of Fitzherhert v. Shaw,{a) a tenant had entered into a certain agreement with his landlord, in the construction of which -the court thought that it was implied that the premises should be redelivered to the lessor in the same state as at the time of the agreement ; and although there was no mention of fixtures in the agreement, yet it was held that they' were subject to the same stipulation, with the land itself, because they formed a part of the land. This rule respecting the passing of personal chattels attached to the*freehold by a conveyance of the freehold itself, was much discussed by the Court of King's Bench in a modern case. In Oolegrave v. Dias Santos,{b) the plaintifli' being the owner of a free- hold house, advertised it for sale ; and printed particulars were circulated, whicji took no notice of certain fixed articles, consist- ing of mash tubs, grates, closets, shelves, &c., which were fixed in and belonged to the house. The defendant becoming the pur- (c) Per Richardson, J., Ibid. And see per Bayley, J., as to machinery in a mine, 5 B. & C.«854; also per Parko, B., in Sitchman v. Walton, 4 M. &W. 409. (d) 2 Bar. k Cr. 609. (a) 1 H. Bl. 258. (6) 2 Bar. & Or. 76. 174 a?EANSFEE OF FlXTUBSa. [PART I, diaser, the house was" conveyed to him, and possession given, the fixed articles still remaining in the house. Afterwards the plain- tiff insisted that a valuation of these things should be made, and that ,the defendant should pay for them ; but the latter contended that they passed to him together with the freehold, and refused r*2171 to P^-y foi" ^^'^^ or deliver them *up. Upon these facts the ■ court held, that the articles in question passed to the defendant, together with and as part of the house. They said that the plaintiff ought to have insisted upon his right before he executed the conveyance ; for if he might afterwards insist on payment for the utensils, he might also, after the sale of the house, refuse to sell what was af&xed to it, and might do great injury to the house by taking them away. If the house descended, the articles in question would descend to the heir ; so also if it had been de- vised ; and the law was considered to be the same in the case of a purchase. [1] The above authorities, therefore, may be considered to estab- lish the general proposition, that by a conveyance of the free- hold to a purchaser, all things annexed to the freehold will pass with the land as parcel thereof And it appears from the obser- vations of the court in the before-mentioned case of Thresher v. East London Water Works Co., that the circumstances must be very special which would prevent the operation of this general principle ; and that perhaps no matter dehors the instrument of conveyance is capable of having that effect.(a) And things con- And it may be observed, moreover, that a similar rule obtains aexeiJ"'^ ^° with respect to personal chattels which are incident to the freehold ; [2] these also will pass by a grant of the freehold (a) As to the effect of collateral circumstances dehors the instrument, see CoUgrave V. Dias Santos, cited above, in respect of there being no stipulation for the appraise- ment of fixed articles on' the sale of a house. So Ex parte Quincey, Post, in respect of there being no consideration. See also Doe dem. Freetandy. Bwt, 1 T. R. '701. PhUl. on Bvid. Vol. I, ch. 10 ; and the cases referred to in treating of conveyances by way of mortgage, Post. [1] When a farm is sold, without any reservation, the same rule would apply as to the right of the vendor to remove fixtures, as exists between the heir and exec- utor. Per Spencer, Ch, J., Holmes v. Tremper, 20 Johns. 29 ; see, alsOj, MiUer v. PlmnT), 6 Cowen, 665. [2] An ordinary Virginia fence is a constructive fixture, no vendor would consider that as mere personal property. Cowen, J., Walker v. Sherman, 20 Wend. 636. CHAP, v.] SALE, ETC. . 175 itself, [3] althougli at the time of *the grant they are.actually sev- [*218] ered from it. And, therefore, by a conveyance or lease of a house, the doors, windows, locks, keys, and rings of the house will pass, [3] ifoii V. Patoier, 1 Comstook, 564. Ruggles, Justice. Mott covenanted in grant ■^o Palmer, that "he is the lawful owner of the premises above granted, and seised of a good and indefeasible estate of inheritance therein, clear of all incumbrances." Action was brought by the grantee to recover the value of a rail fence, wliioh stood on the land when the deed was executed, but did not belong to the grantor — it hav- ing been built by a third party, upon lease, to fence in for a certain purpose, part of grantor's land, and to take away the fence whenever he liked. The 4efendant, the grantee, after the conveyance, removed and converted the fence to his own use ; the party licensed by the grantor to build the fence, with leave to take it away again, sued the grantee for the value thereof, and recovered — the grantor being witness against the grantee. In this action, brought on the covenant by the grantee against the grantor, is the grantee entitled to recover the value of the fence ? A grantor undertakes to convey everything described in the deed, and by covenant of seisin assumes to own all he undertakes to convey. In a deed, the word land includes not only the earth, but everything within it, and buildings, trees, fixtures and ffences upon it. Qood/ricli v. Jones, 2 HiU. 143 ; WaXlKr v. Sherman, 20 Wend. 639, 640, 646 ; Green v. Armstrong, 1 Denio, 554 ; 'Com. Dig. Grant, E. ; Co. Litt. 4 a ; 2 EoU. 265 ; and aU. the incidents to the land expressed or not — and fixtures belonging to the owner of the land cannot be reserved by parol when the land is conveyed ; the reservation must be in writing. Noble v. Bosworth, 19 Pick, 314. If the fence was the grantor's, it would have passed, not by the force of the term " appurtenances," but as part of the land. Trees, buildings, fixtures and fences are corporeal in nature, and subject of seisin, like the land, of which, in law, they are regarded as part. A rail is personal property, but when used in construction of a fence, its legal character is changed, and it becomes real estate, and, governed by the law relating to land, de- scends to the heir as inheritance, or passes by deed as part of the freehold. But the earth, vrithin certain boundaries, may be owned by one man, and the buildings, trees and fences on it, by another. A man may have an inheritance in an upper chamber, although the title to the lower buildings and soil be in another ; (Shep. Touchstone, 206 ; 1 Instit. 48 b ;) and it is a corporeal inheritance. 10 Tin, 202. Buildings and fixtures put up by a tenant for purposes of trade belong to him, and are removable without consent of his landlord. Holmes v. Tremper, 20 Johns, 30 ; Miller v. Plumb, 6 Cowen, 665 ; Doty v. Gorkam, 5 Pick. 489. Herlakenden's case, (4 Co. R. 63,) presents an instance in which one man owned the land, another the trees. In Rogers v. Woodbury, (15 Pick. 156,) a man had built a house on land which did not belong to him, the court said, " it might or might not be parcel of the realty ; if the owner of the land owned the building it . would be so, if not, and the owner of the building had no interest in the land, such building would be personal property." Smith v. Benson, (1 HiU, 176,) was the case of a dwelling and grocery belonging to one man, although standing on the ground of another; and in Bussell v. Richards, (1 Pairf 431,) the owner of land on which another, with his consent, had erected a saw mill, executed a deed for the land and mill, but it was held, no title passed to the mill, because it belonged to him who built it. The conclusion, as applied to this case, would be that the deed purports to pass real estate only, but, the fence being personal property of another, was not 176 TEANSPER OP FIXTURES. ■ [PART I. although th.ey may be distinct things; because they are con- structively annexed to the house. And so, by a grant of a mill, the mill stone passes, notwithstanding at the time of the convey- part of the premises granted, and therefore not within the covenant, -which relates only to the realty. The fence, in one sense, was not a part of the thing granted; it did not pass -by the deed, but the fence was within the description of the thing granted as clearly as the land itself, and, therefore, was part of what the deed pur- ported to convey, and of which the grantor covenanted he was the owner. It all amounts to this — the grantor undertook to convey the fence as part of the realty, by a deed which would have been effectual, if he had been the owner, as by his deed he professed to be. It is, therefore, a case in which the covenant of seisin af- fords a remedy, and it is just the grantor should pay the grantee, because there is notliing to show the grantee was informed by the grantor, or others, that the fence was not owned by the grantor. Bronson, J. The fence stood on the land conveyed ; and as between vendor and vendee, was part of the thing granted. Goodrich v. Jones, 2 Hill, 142 ; Thayer v. Wright, 4 Denio, 180 ; Green v. Armstrong, 1 Id. 554. The soil may be owned by one, the buildings and fences by another ; as between such owners, these structures . will be regarded as personal property ; they are, however, in their nature, real es- tate, and will pass with the soil, to the heir or grantee. The fact that fences may be owned by one, and the soil by another, does not tend to show how much the grantor attempted to convey ; that must be settled by the deed. The covenant of seisin, in the usual form, goes to the title, and is broken the moment it is made, if the vendor had not then the lawful title to the whole and every part of the premi- ses I The covenant included the fences, to which the covenantor had no title. Johnson, J. There is no reser\-ation of the fence in the deed which purports to convey the entire premises. The question is, what upon the face of the instrument the grantor undertook to convey and to covenant that he was seised of. The un- dertaking is one thing ; its effect upon the sulijeot matter, and the rights of parties' under it, another. lie undertook to convey what it is conceded did not belong to hun, his covenant is broken and he is liable. "Wright, J., and Gray, J., assenting. Gardener, J., dissenting. Rails upon a fence are constructive flxtui-es; (3 Kent. Comm. 347, n. ;) they are in then- own nature personal property, and become parcel of the realty, as the term fixtures imports by their annexation to the land ; the annexation which will convert personal into real, is not effected by placing the chattel upon, or even by afSxmg it to the land; it must be affixed to the land "perpetui usus causa." Id. 34'7, et ante; WalJcerv. Sherman, 20 Cow. 647, 655 ; 3 Dane's Abr. 156 ; 4 Ad. & El. 884. The rails were never so attached, and the covenant of seisin had no appMoation. Upon annex- ation by agreement with the owner, for the pm-poses of trade, (3 Kent. 345 ; ' R. S. jiart 2, ch. 6, tit. 3, art. 1,) or of agriculture, {Whiting v. Brasiow, 4 Pick. 310,) the chattel does not become part of the freehold, but remains personal property. But it is said the grantor was estopped from denying that the fence was parcel of the land, but, the grant was of land, so was the covenant ; it is a perversion of such contract to turn it mto a warranty, that everything upon the land is parcel of the freehold ; the ownership of the property determines its character, whether it is part of the freehold, or an appurtenance, or a mere chattel. 4 Kent. 468. The declara- tion isfelodese: 1st, the plaintiff avers the rails were attached to the land and" Chap, v.] sale, etc. 177 ance it is severed from the mill and removed for a temporary purpose ; for it still remains, in contemplation of law, parcel of the mill.(a) On the other hand, notwithstanding there mav be general unieas where cx- ' , ^ . press ^ provision words in a conveyance, &c., which would include fixtures, yet if '» *e contrary, it can be collected from the deed itself that these words are qual- ified by other stipulations found in the deed, so as to make it appear that the intention of the parties was restrictive of the gen- eral terms employed, in such a case the prima facie inference ^ arising from the general expressions is modified and controlled. The case of Hare v. HortonQ)) affords an example of such a qual- ification of the general rule. In that case a party in a convey- ance by way of mortgage conveyed an iron foundry, dwelling- houses, &c., with the appurtenances; together with all grates, boilers, bells, and other fixtures in the said dwelling-houses ; and all trees, houses, &c., easements, profits, &c., to the said *foundry, [*219] messuages, and lands appertaining. There were in the foundry certain cranes and presses, a steam engine, and other fixtures used for the purposes of the business carried on there, and valued at £600. It was held that the specification of the grates and fixtures in the dwelling-house excluded the articles in the foundry, and showed that the latter were not intended to pass ; though it was admitted that they would have passed under the general terms in the granting part 'of the deed, if the others had not been mentioned. (a) Shep. Touch. 90 ; 11 Co. 50 ; Liford's case, 6 Mod. 187. And see Went. Off. Ex. 62 ;• Pyot v. Lady Si. John, Cro. Jac. 329 ; 2 Buls. 113, S. G. ; Place v. Fogg, 4 Man. & E. 211 ; Martyr v. Bradley, 9 Bing. 24; Msher v. Dixon, 12 CI. & E. 312; Dam. Proc. As to detached pipes and .conduits passing by a grant of a house, see Nicholas v. Ohamberlain, Cro. Jac. 121 ; Archer v. Bennet, 1 Lev. 131 ; Cro. Car. 169 ; Sup. p. 180. (6) 5 B. & Ad. 115. And see Longsiaffy. Meagoe, Post. ' therefore part of the premises ; this was necessary to bring the averment within the grant. And 2d, by way of breach, that they were not at the time the property of defendant. The two propositions are utterly repugnant — if the raUs were owned by one who had no interest in the land, they were personal property, and could not be parcel of the freehold ; but if parcel of the land, then they could not be the property of the third person. In Sogers v. Woodbury, (15 Mass. 158,) in trover for a flsh- house, held " if the owner of the land did not own the building, and the owner of the building had no interest in the land, the building was personal property." See Smith V. Benson, 1 Hill, 116 ; 4 Co. 63 ; 3 McCord, 553 ; 8 Mass. 411 ; 1 Fairf. 429. Jewett, J., and Jones, J., also dissented, but gavff no opinion. 12 178 TRANSFER OF FIXTURES. [PARTI. It is, however, proper to mention, that there are two cases which appear to be in some degree at variance with the princi- ples laid down in the foregoing decisions. For in the case Ex parte Quincey,{a) Lord Hardwicke seemed to have been of opin- ion, that the fixed utensils of a brew-house would not pass by a conveyance of a brew-house with the appurtenances. And in another case, {Beck v. Rebow, 1 P. Wms. 94,) it was held, that a covenant to settle a house and all things fixed to the freehold of the house, did not comprise certain matters of ornament which at the time of the deed were affixed to the house, and united to it- by screws and nails. But of the former of these cases, it may be observed that it was never finally determined.(5) And with respect to the case of Bech V. Rebow, it is particularly to be remarked, that the property in dispute appears to have been of a description similar to that which in other cases has been held removable, as between [*220] lieir *and executor. It may therefore be thought, perhaps, that without infringing the rule in ordinary cases, the court consid- ered that articles of this description, which are so much in the nature of personalty as to be assets in the hands of the executor, might be an exception to the general rule, and ought not in strictness to be comprehended under the general terms of a con- veyance. [1] Bxecutor's fix- And it is observable that the distinction here suggested seems tares, whether , -, • 2. _d ■ • jy ^i _j. * j.1, they also pass, to dcrivc support irom some expressions oi the court m the case of Colgrave v. Dias Santos above cited. The principle, how- ever, has not been recognized in any other determination ; and, on the contrary, it appears from the whole current of authorities referred to in the course of this work, that things fixed to the (a) 1 Atk. ill. (b) The conveyance was by way of mortgage. For a more particular examina- tion of the case, see post, in the division which treats of mortgages. [1] In KinoauY. Latowr, 1 Harr. & John. 289 ; on fi. fa. against the owner, sheriff sold " house and lot with the appurtenanoea" The house was built for a distUleiy, and the implements necessary for the conduct of the business were on the premises. In trover to recover them, it was held that the pumps, cisterns, irqn grating, door, distillery and horse miU. passed by the sheriflPs deeds ; but not the joists, vats, buck- ets, spigots and faucits ; the distinction was taken between things fixed to the free? hold, and mere loose utensils for carrying on the business. •CHAt. Y.] SALE, ETC. ^79 freehold are, in all cases, to be deemed efesential parts of tlie free- hold, while they subsist in a state of* annexation, notwithstand- ing they may be subject to a right of being afterwards severed from the freehold, and converted into personal chattels. From the principles which have been discussed in the prece^ ■ding pages, 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 ap' pendages belonging to them. Thus, upon an agreement for the sale of a house, if it is in- stipulations re- tended that things of a personal nature which are attached to the =p«<="°s^""'''=- house should not be included* in the purchase, it is, in general,, rsooi-i necessary to make an express reservation of them, [1] 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.(a) It frequently happens that in agreements of sale, and in a de- Fixtures to be mise of premises, there is an express stipiilation that ■" the fixtures uon. are to be taken at a 'Valuation f and 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 "With respect to the precise import of these terms in different wimt fixtures cases, there is very little assistance to be derived from the au- "* '° ""^ ^*'°«''- thorities; and the practice of the individuals who are usually referred to on these occasions, seems to be governed by no uni- form or very definite rule. It would seem, however, that when a stipulation of this kind occurs on the sale of a house, those house. (a) It will be found very useful in praotioe, whenever premises""-containing fix» tures 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 Bae. Ab. Leases A, ; Bul. N. P. 156. [1] The reservation of fixtures which are personal property, may be by parol. Seermance v. Vemoy, 6 Johns. 5. Sge, aiao,' AusUn v. Sawyer, 9 Co*en, 39. 180 TRANSFBB OF FIXTURES. [PAET I. things only are, in strictness, to be comprehended in the valna. tion, which would be deensed personal assets as between heir and executor, and which would not pass with the inheritance as part of the freehold of the house. (6) . On a demise. ("*2221 "When the like stipulation occurs upon a demise of premises, 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 anything but what properly falls within the rule here suggested. On assignment. go^ where a tenant by assignment of his lease pending the term, or at his out-going, disposes of his fixtures under a similar agreement, he may be considered as transferring to the pur- chaser 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. 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 oc- cupied. 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. Purchase of fix- Wlicn a tenant at the commencement of his term purchases comfng tenant, of tlic 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 r*2231 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 ten- ant would not absolutely lose his right of property in the arti- cles, by omitting to sever them before the expiration of his term ; unless, indeed, it is implied in the purchase, that he should hold (6) See HikJuman v. Walion, 4 M. .& "W". 409. CHAP, v.] SALE, ETC. 181 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.(a) Again, a tenant's lease sometimes contains an express demise S™g'^ith LFd^s of fixtures : as in leases of collieries, breweries, mills, &c., which a®^^^- are let together with the machinery, plant, and fixed utensils.(6) In these cases the tenant is not at liberty to sever the articles, and use them as personal chattels during the term ; for immedi- ately upon .the severance, the property vests in the landlord, and the tenant by his wrongful act forfeits all future interest in it.[l] The tenant, it is to be observed, has not the dominion of the property demised, but only a qualified right to use it during the term in a particular way, viz., as annexed *to the freehold.(a) Al- [*224] though, if it is tortiously severed, he may indeed maintain an action against the wrong doer ; as will be seen hereafter in the second part of the work. Lastly, if, at the time of making a demise, nothing is said re- specting the fixed articles belonging to the premises, the tenant (a) See the remarks of Parker, Ch. B., Ryall v. Eolle, 1 Atk. IVS. If after a grant of fixtures, the grantee should take a lease of the land itself, it might perhaps be contended that the fixtures become re-annexed to the land by the second grant, and that the only interest -which the grantee takes, is that which is derived under the lease. Vide 2 Anders. 52 ; Owen, 49. (b) The value and importance of the fixtures in collieries and other like works, has given rise to very special terms in the leases of property of that description. Of thesa, see several instances in Storer v. Hunter, 3 Bar. & Ores. 368 ; Horn v. Baker, 9 East, 215 ; Duck v. BraddyU, 1 M'Oleland, 219 ; and in the cases cited in the next division. (a) Fanrant v. Thompson, 5 Bar. & Aid. 826 ; Gorribs v. Beaumont, 5 B. & Ad. 72 ; Bycdl V. Eolle, ub sup. The tenant's interest in the fixtures is similar to that he en- joys in respect of trees growing on the demised premises ; per Bailey, J., in Far- rant V. Thompson. As to the nature of a tenant's interest in movable utensils and machinery which are demised together with the premises, see 5 Rep. 15, Spencer^s case; Gordon v. Harpur, '7 T. R. 9 ; Dyer, 212 b; 1 Atk. ITO; 2 N. Rep. 223; 1 Bos. & Pul. 82, 83, in notis. And see the cases referred to in the preceding note. [1] It follows, that if a person who has a right by contract to enter upon, and en- joy land for agricultural purposes, cuts timber for any purpose, other than the culti- vation, improvement and enjoyment of the land as a farm, the timber thus separa- ted from the freehold, becomes the personal property of the owner of the inheritance, and he may maintain trover for it aganist any one in possession, although he be a bona fide purchaser from the occupant Moore v, Wmte, 3 Wind. 104 182 TRANSFER OF FIXTURES.. [PART I. will be entitled to the use of them during the term as part of the demise ; and the landlord cannot afterwards remove them, neither can he insist upon their being valued, or that any additional consideration shall be paid for them.. Thus where a party accepted a demise of a house containing- fixtures, and took possession^ and there was no proof of any . agreement that he should pay for the fixtures,, it was held that the acceptance of the demise and taking to the fixtures,, did not raise an implied contract to pay for them.(5) Mortgage of Fixtures. ™ii°sj affixed With respcct to the transfer of fixtures hy way of mortgager — gage of the land, it is to be obscrved, in the first place, that this species of prop- [*225] erty may be mortgaged *either in connection with or in separation from the realty. And there appears to be no sound reason for- supposing that fixtures are not included under general terms in mortgage conveyances, as well as in conveyances of any other description.(a)[l] It has, however, been thought,, that a con- ■ trary doctrine is intimated by Lord Hardwicke in the ease Ex parte Quincey,(b) which has already been referred to, as well as in some other more recent authorities. In the case Ex parte Quincey, a person sold the utensils and granted a lease of a brew- house, and afterwards mortgaged the brew-house with the appur- tenances to another person. The lessee sold his lease and uten- sils to A, who, for a sum of money, mortgaged the whole to the original proprietor, who afterwards became bankrupt ; and the right to- these fixtures was litigated between his assignees and the first mortgagee of the brew-house. Under these circum- stances Lord Hardwicke was inclined to think, that the fixed (5) Goff-v. Harris, 5 Man^& Gr. 51.3. And see the same case as to the effect o£ paying money into court as an admission of a liability in respect of the fixtnres. (ffi) As to a supposed distinction between mortgage and other conyeyanoes, see Eaton V. Jacques, Doug. 438 ; WesterdellY.Dale, 1 T. R. 306 ; Williams Y. Bosanqwt^ 1 Brod. 4 Eing. 238. (6) 1 Atk. 417. Vide Powell on Mortg.ToUI, p..40; VoLn, p..lO40. Andsee- Sugden's Tend., & Pur. 30. [1] As between mortgagor and' mortgagee, fixtures put up for manufacturing on property leased for a term of years, are included in and pass by a mortgage of the- land. Day v.. Parkins, 2 Sandt Ch.. Rep^ 359.. CHAP. V. MORTGAGE. 183 Utensils of the brew-house did not pass by the mortgage. " For," he observed, "there is some description generally of things in a brew-house : the manner of describing the parcels shows that it was not meant to mortgage the utensils, for the word appurte- nances seems only to intend things belonging to the out-houses. It is said that a mortgage is a purchase ; but then it is a redeem- able one. How does it stand ^between a purchaser and a vendor? [*226] If a man sells a house where there is a copper, or a brew-house where there are utensils, unless there was some consideration given for them they would not pass." The case, however, stood over ; and it does not appear that it was ultimately determined. The opinion here expressed by Lord Hardwicke appears to be at variance with his Lordship's observations in a prior decision, that of Ryall v. Rolle, hereafter cited. Indeed, the case itself does not seem to warrant the position which some writers have , deduced from it, that fixtures will not pass by a mortgage of land as part of the mortgaged estate, unless they are specifically mentioned. [1] For, allowing to it full weight as a final decision, the case must be considered to have been determined entirely with reference to its own peculiar circumstances ; to the intent of the parties, and to the construction put upon the language of the conveyance. And the same observation applies to, and wiU explain several unieaa not la- of the more recent decisions upon this subject. Thus, in the pa°tfes. ' case of Hare Y. Horton,{a) noticed at length in a preceding page, the court distinctly recognize the principle that under a convey- ance of land by way of mortgage, property af&xed thereto would in general pass, and that there was no distinction between such a conveyance, and a general conveyance by sale, &c. : but they thought that in this case it was to be collected from the terms of the deed itself, that the trade fixtures in dispute were never *in- [*227] tended by the parties to be included in the mortgage. So, like- (o) 5 Bur. & Ad. 115 ; Sup. 218. [1] Union BanJev. Emerson, 15 Mass. 159. It appears to be unnecessary to refer to the fixtures in a mortgage. Here was a mortgage of a fulling mill in whioli was a kettle for dying, fixed in brick -work^t was held that the kettle passed to the • mortgagee of the land on which the fuUing mill stood, though the appurtenances were not mentioned. The court recognized the usual distinction in favor of tenants. 184 TEANSFEE OF FIXTUEES. wise, in the case of Trappes v. IIarter,{a) it was lield tliat certain fixed machinery did not pass to the mortgagee ; and this, even although the mortgage deed contained an express mention of fixed property in very general terms. But the court came to that conclusion from the very special circumstances of the case, and without at all impugning the general principle above laid down. For they considered that it appeared from the facts of the case, that the fixtures in question ivere not meant by the par- ties to be included in the mortgage deed : and that the words in the deed which would seemingly have embraced them, were sat- isfied by other fixed property about which no question was made. pasMho^ugh^no't The case of Longstaff y. Meagoe,(b) may be further cited as an mentioned. exprcss authority in favor of the rule that fixtures pass by a mortgage of the land itself [1] And in that case the court was of opinion, that even although no mention is made of fixtures, they pass with the estate, and constitute a part of the mortagee's security. It was an action of trover for certain counters, presses, grates, coppers, workb'oards, cupboards, glazed doors, movable partitions, &c. The lessee of a house containing these fixtures executed an assignment of the premises by way of mortgage, not mentioning the fixtures : and afterwards he assigned the prem- ises and all his estate and effects to trustees. The trustees being [*228] in treaty for a sale of the fixtures *to a third party, the mortgagee, whose principal and interest were due, took forcible possession of the house, and refused on demand to deliver up' the fixtures : whereupon the trustees brought an action of trover. It was held that they were not entitled to recover the fixtures, as against the claim of the mortgagee. By mortgage of Lastly, in the case of Place v. Fagq,(a) it was held that bv a mill, the Btones •" JJiy J J and tackling (a) 2 Or. & Mee. 153. See, also, Boyddl v. M-Michad, 2 Or. & M. 182 ; 1 Gr. M. & E. 177. (6) 2 Ad. & EU. 167. (a) 4 M. & Ey. 277. [1] Fixtures are embraced by a mortgage, and a bill against waste by their re- moval may be filed. Bdbinson v. Preswicle, 3 Edwards Ch. E. 246. CHAP, v.] MORTGAGE. 185 mortgage of a mill, tie stones, tackling and implements neces- sary for tlie working of the mill pass to the mortgagee.(5)[l] Although, then, it clearly appears from all these authorities that a mortgage of lands cannot be construed to pass any differ- ent rights, with respect to things attached thereto, than other conveyances, yet the decisions referred to may be useful to show the utility of expressing in clear terms in mortgages, (as well as in other instruments of conveyance,) the intention of the parties with regard to the transfer of -property annexed to the free- hold.(c) Moreover, it may be collected from several of the decisions ™°s? p^=^ ' ^ though annexed above cited, that there is no distinction in respect of fixtures ''"^'' ^^^ '"°"- ' ^ gage. which are annexed by the mortgagor subsequent to the mortgage. For the security extends alike to all, and the mortgagee is enti- tled to everything he finds affixed to the mortgaged premises: unless, indeed, (as in other cases,) where *there is evidence of any [*229] intention to except them, (a) So, whether the fixtures have been added by the mortgagor Ana though an- 1. tp . T. '11 -t 1 . , . oo nexed out of a himselt, or m partnership with others, and at their joint expense, pattnerswp fund As where a trader mortgages his premises, and then enters into a partnership, and the firm continue to carry on the business on the same premises, and erect additional fixtures thereon; the (ft) And see the same principle acted upon in Ex parte Wilson, 2 Mont. & Ay. 61 ; Ex parte Belcher, Id. 160 ; and in other cases referred to, post, under the head of bankruptcy. (c) See Sugden's Tend. & Pur. p. 30. And see, also, Wheeler v. Monteflore, 2 Q. B. 133. (a) And see Ex parte Belcher, 2 Mont. & Ay. 160; Ex parte Price, 2 Mont. D. & D. 518 ; Expwrte Beynal, Id. 443 ; Eitchman v. Walton, 4 M. & "W. 409. [1] Vanderpoel v. Van Allen, 10 Barb. S. 0. R. ISt. Brown, J. Fixtures have been defined to be " chattels, or articles of a personal nature, affixed to land," vari- ous articles of machinery for carding, spinning, twisting, boUing and preparing cotton, yam, ka., standing on the floor of a miU, over the openings made for the passage of the leather working bands, and not otherwise fixtures to the building than by such bands, and some cleats tacked to the floor, held not to be so attached as to make them fixtures. The machinery in this case was claimed by plaintiff as fixtures by virtue of a mortgage executed by defendant ; and on the other hand it was claimed by the creditors of the mortgagor under an execution against his property, and also under a chattel mortgage, as chattels. 186 TBANSFEE OP iFISTURES. [PART I. mortgagee is not affected by, and has no concern with the ques- tion of, the partnership claims ; but he is entitled to everything belonging to the estate, as against the mortgagor.(S) mongagor.''^ ""^ Scveial qusstions have arisen respecting the effect of the mort- gagor retaining possession of the fixtures after granting a mort- gage of the land to which they are attached. The ground of ob- jection in these cases has been, that as fixtures may be regarded in the nature of personal chattels, the possession of them after a conveyance would, in general, be deemed inconsistent with the deed, and strong proof of fraud.(c) Agreeably to this view of the subject. Lord Hardwicke, in the case Ex parte Quincey, first cited, thought that there would have been a difiiculty on account [*280] of the mortgagor's possession,, if it had not *appeared that there was an express agreement between the parties that he should have a right of entering upon the brew-house. It is, however, ' now clearly established, that things afiixed to the land partake so much of the nature of realty, that the retaining possession of them together with the land after an assignment, will not avoid the conveyance on the ground of fraud. In this respect, there- fore, a mortgage of property in a state of annexation, differs from a mortgage of things severed from the freehold, or of mere per- sonal chattels transferable from hand to hand, (a) This subject will be found more fully discussed in the cases referred to in the next division of the chapter. It will be suffi- cient in this place, to cite the two following authorities, in which the rule is very clearly laid down. In the case of Ryall v. Iiolle,(^) a brewer having borrowed money, as a security conveyed and as- signed his dwelling-house and brew-house, and all the coppers and utensils of trade belonging 'thereto, by way of mortgage, (5) Expa/rte Cotton, 2 Mont. D. & D. '?25. There is no difference in the rule as to fixtures passing by a mortgage, whether it is a mere equitable mortgage, or a lieu by deposit of title deeds ; nor, again, whether it is an absolute mortgage in fee, or for a term. (c) See the Statute 13 Eliz. ch. 5 ; Twyne's case, 3 Co. 80 ; Edwards v. Harbm, 2 T. R. 587 ; 'Reid v. Blades, 5 Taunt. 212 ; Bryson v. Wylie, 1 Bos. & Pul. 83 ; East- ■woody. Brmon, 1 E. & M. N. P. C. 312. {a) Even with regard to personal' chattels, it is not in every case necessary that there" should be a change of possession ; provided the omission is consistent with the deed. The want of delivery of the goods is only evidence that the transfer is color- able. Mariindale v. Booth, 3 B. & A. 498. (6) 1 Atk. 165 ; S. G., 1 Tes. 348. ChIp. y.] MORTGAGE. 187 subject to redemption ; and afterwards continued in possession. On a question between the first mortgagee and the subsequent mortgagees and creditors, as to the validity of the first mortgage, which was disputed on the ground of fraudulent possession by the debtor, the court were clearly of opinion, that the first mort- gage was not invalidated on this account, nor was the mortgagee *deprived of his lien upon the fixed utensils. The court said, [*231] moreover, that neither the mortgagor nor any other person had a right to remove the fixtures untO. the mortgage was satisfied. In like manner, in the case of Steward v. Lombe,{a) a person having mortgaged a windmill of a peculiar construction, con- tinued in possession of it after the mortgage; and it was holden that the possession was not fraudulent. And the court observed, that it was not to be expected that the mortga- gee should come to reside in the mill. The mortgagee, in con- formity with the usual practice in such cases, permitted the mort- gagor to continue in possession, and constructive possession of , the land under the deed Avas a sufficient possession of the mill standing on the land ; and the more so, as this was not an abso- lute conveyance, but a mere pledge to be kept till money lent on the security of it was repaid. If the party relinquished pos- session, it would probably defeat all the ends of the mortgage. The mortgagee could only have taken possession by entering the land unnecessarily, or by occupying the mill to his own personal inconvenience. (6) In this case it may be obseiVed, that the mill had been erected by the owner of the fee, and was not seizable under a writ of fieri facias against him ; and the court appear in some measure to have relied upon this circumstance.' This distinction has been • insisted on in some other cases also. But it is clear *that the [*232] principle of the decision holds equally in the case of the mort- gage of a mere chattel interest ; as where a tenant having erected fixtures during the term, afterwards mortgages his interest in the premises, (a) The circumstance of the fixed property being in (a) 1 Brod. & Bing. 506 ; 1 Powell on Mortg. 36. (i) See, also, Eubha/rd v. Bagshaw, 4 Sim. 326, decided on the authority of lih© above oases ; Fleiclier v. Manning, 1 Car. & Kir. N. P. 350. (a) Ace. per Parke, B., and Alderson, B., in MinshaM v. Lloyd, 2 M. & "W. 459, e( seq.; and per Alderson, B., in BoydeU v. M'Michael, 1 Or. M. & R. 266. 188 TRANSFER OP FIXTURES. [PART I. the latter case seizable under a jkri facias in the hands of the tenant, cannot make it so far a personal chattel, that the mort- gagor's retaining possession of it after\yards together with the land, would be deemed fraudulent. noT'femove "^flx- ^^ follows from the principles laid down in the preceding th^^mortBa°e"^P^S®®' ^^*^ from the relation in which the mortgagor stands to the mortgagee, that althovigh the mortgagor may continue in possession of the estate and of the fixtures after the niortgage, he- is not at liberty to disannex and remove any of the fixtures from off the premises. The case of Hitcliman v. WaUon{b) is also an authority to that effect. It was there holden that where a lessee for years had mortgaged all his interest in the premises, and be- came bankrupt, the mortgagee might sue the assignees who had taken down and removed the fixtures from off the premises ; and might declare in case as reversioner : and moreover, that he could recover in trover against them for the value of the fix- tures, whether they were on the premises before the lease, or were afterwards erected by the mortgagor; and whether they belonged to the lessor at the end of the term or not.(c) r*2331 *Banliruptcy. The Statute 21 Jas. I, c. 19, relating to bankruptcy, and the more recent enactment, 6 G. IV, c. 16, have given rise to some questions respecting fixtures, which depend upon the peculiar nature of this species of property. The points in most of the cases before the courts have arisen on the bankruptcy of the mortgagors of premises and fixtures, who have remained in pos- session of the property after the mortgage. And the question has been whether the assignees are entitled to claim the fixtures as part of the goods and chattels of the bankrupt, or as being in their reputed ownership at the time of the bankruptcy ; or whe- ther the mortgagees can legally claim them, as part and parcel of the mortgaged estate. By the 11th section of the former statute, "it was enacted that (5) 4 M. & W. 409. And see Ex parte Reynall, 2 M. D. & D. 450, and the cases there referred to. (c) For some further points as to the mortgage of fixtures, as well when conveyed together with the land, as when mortgaged in separation from it, see the case of Byall V. Bolle, ub. sup. CHAP. V. BANKRUPTCT. 189 if any person or persons shall become bankrupt, and at sucb 'time as they shall so become bankrupt, shall by the consent and permission of the true owner and proprietary, have in their pos session, order and disposition, any goods or chattels^ -whereof they shall be reputed owners, and take upon them the sale, alteration or disposition as owners, that in every such case, the commis- sioners shall have power to sell and dispose the same, to and for the benefit of the creditors which shall seek relief Ijy th? com- mission, as fully as any other part of the estate of the bankrupt." *The provisions of this section of the statute, are re-enacted in [*234] nearly the same words in the new statute, 6 G. IV, c. 16, s. 72 ; and the decisions under the former act may be considered as au- thorities in the construction of the latter. In pursuing this inquiry, it will be proper to notice in the first rixed articles place the case oi Horn v. Baher ;{a) the particulars of which will chattels " within be found in a former page. The question arose there, under the bankruptcy. Statute of James, by which the subject was then governed. Cer- tain stills fixed to the freehold had been leased together with a distill house for a term; the lessee became bankrupt; and it was holden that the stills did not pass to the assignees under the de- scription of goods and chattels within the meaning of the statute. And the court drew a distinction between these articles, and certain other utensils which were not fixed, but merely stood upon frames or horses ; and the latter they held would pass to the assignees under the words of the statute.(Z*)[l] (a) 9 E. 215. (6) With respect to the movable utensils in this case, there was nothing to rebut the reputed ' ownership of the banlcrupt as to them ; but the court considered that they would not have passed to the assignees had there been a known usage of trade of leasing such things together with the premises ; for then the use and possession of them would not have carried the reputed ownership. As to which, see Storer v. '■Hunter, and other eases, post. And as to trading articles not fixed passing to the assignees, see Bryson v. Wylie, 1 Bos. & 'Pul. 83 ; Ex parte Dale, 1 Buck. 365 ; Ex parte Eicliardson, Id. 480 ; Lingard v. Messiter, 1 B. & C. 308 ; Rornbhwer v. Fraud, 2 B. & A. 32^. [1] Gibbons on Fixtures, 11, remarks, "in Sorn v. Baker, (9 East, 215,) it was not doubted but the distiller's vats, supported upon brick-work and timber, but not let into the ground, and vats standing on horses or frames of wood, were goods and chattels ; and that stills set in brick- work and let into the ground were fixtures. A 190 TEANSPBE 01" FIXTURES. [PAllT t This case and that of R^Jall v. Bolk,{c) which has also been already noticed, may be considered as the leading decisions upon this subject : and the principle to be deduced from them, viz., [*235] that fixtures constitute *part of the freehold, and are not to be taken as goods and chattels, within the meaning of the bank- ruptcy acts, has been recognized and affirmed by a series of very important decisions of modern date. Thus, in the case of Clerk v. Crownshaw in the Court of King's Bench,(a) a tenant took a lease of a mill and iron forge, and bought the fixed and movable implements therein ; but it was agreed that they should be delivered up at the determination of the term at a valuation, if the lessors gave notice of their desire to have them. The tenant afterwards assigned the premises and machinery by way of mortgage, but continued in possession of them, and became bankrupt. It was holden that this case fell within the principle of Horn v. Baker ^ and was governed by it ; and a like distinction was taken, as in that case, between the fixed and the movable property in the mill. Again, in another case which followed soon afterwards in the same court, a similar question arose. In Coombes v. Beaumont,(b) a steam engine, &c., fixed up in a colliery, was leased to a tenant to be used by him during the term, but to be held as the prop- erty of the landlord. It was ruled, on the authority of Horn v. Baker, that these engines did not come under the description of '■'■goods and chattels f and did not pass as such to the assignees under a commission of bankrupt against the tenant. See, also, Boydell v. M'-Michael, Post; Hallen v. Runder, 1 C. M. & K. 766, r*236] ^^ ^^ same effect ; also per Parke, B., in Minshall v. *Lloyd, 2 M. & W. 459 ; and per Abinger, Oh. B., in Hitchman v. Walton, 4 M. & W. 414. There is a decision upon this subject in the Court of Ex- chequer which has given rise to much discussion, and perhaps (c) 1 Atk. 165; Sup., p. 230. (o) 3 B. &. Ad, 804. (6) 5 B. & Ad. 12. copper merely resting on a brick-work socket, and a water butt standing on the ground, or a wooden stool, are not fixtures j otherwise if the copper was fastened in in brick-work." CHAP. T. BAJJKRDPTCY. 191 to some misapprehension : and in wliich the doctrine laid down in the above cases appears not to have been altogether adopted by the court. A distinction, moreover, seems to have been there taken in respect of cases where the annexation in question has been made for trading purposes, and has been erected by the owner of the freehold himself, who afterwards becomes bank- rupt. This is the case of Trappes v. Harter.{a) In that case certain partners, the owners in fee of some premises and calico print works, mortgaged the same, together with the steam en- gine, mill gearing, fixed machinery, and things erected and being on the premises, which in any manner constitute fixtures and appendages to the freehold. They continued in possession ; and afterwards became bankrupt. And it was holden that the ma- chinery did not belong to the inheritance, but was part of the personal estate of the bankrupts, and as such was declared to pass to the assignees. The facts of this, case are very special and complicated. They may be collected from the summary given in the judgment de- livered by Lord Lyndhurst, Ch. B. " The bankrupts had car- ried on the business of calico printers in partnership. Many years ago the land and' buildings in question were purchased, and the conveyance was taken to one of the partners ; *but it is [*237] clear that the estate was treated throughout as belonging to the partnership. The machinery was erected by the partners for the purposes of carrying on the partnership trade. It consisted prin cipally of articles which could be removed without the slightest injury to the freehold. They were fixed by bolts and screws, so that they could be drawn off without any damage to the build- ing. All the rest of the .machinery was so fixed that it was ca- pable of being removed ; and it Avas actually removed without any material injury either to itself or the freehold. In taking the account of stock the land and buildings were always placed under one head, and the machinery under another. In the part of the country where these premises were situate, it appears that machinery of this description is constantly bought and sold dis- tinctly from the freehold."(ffl) (a) 2 Cr. k M. 153. (o) His Lordship here remarka, "It is clear that as betwesn landlord and tenant, it might be removed by the tenant if put there by him ; as, between heir and execu" tor, it would have passed to the executor. The machinery in this case appears to have been in the reputed ownership of the bankrupts ; and they obtained credit by reason of their possession of it." 192 TRANSFER OP FIXTURES. [PART I. The court took time to consider ; and, in delivering a very elaborate judgment, the Ch. B., after reviewing several of the principal cases in which fixed property had been considered to form part of the personal estate, said : "Applying these author- ities to the present case, we think that this machinery, erected for the purposes of trade, in a neighborhood where machinery is commonly removed, and which was capable of removal without [*238] injury to the freehold, is not *to be considered as belonging to the inheritance, but as part of the personal -estate." And he thus concludes his judgment : " It appears to us, therefore, that there was sufiicient to satisfy this mortgage deed without the ma- chinery in question; and that it was not intended to pass, and did not pass, under this mortgage deed : it follows, that it was per- sonal estate, and passed to the assignees." Conceding to this case its full effect as a valid authority, it must be regarded as having been decided entirely upon its own peculiar circumstances ; and especially with reference to the in- tent of the parties to the mortgage deed. And although the dicta of the judges certainly seem to favor the proposition that trade fixtures erected under the circumstances mentioned, are to be looked upon as personal chattels, yet the general question as to fixtures being goods and chattels within the bankrupt acts is not really touched by the case. For the court having decided that the machinery in question was not included in the mortgage, it necessarily passed to the assignees with the bankrupt's estate. This decision, therefore, cannot be regarded as impugning the doctrine which had been so clearly established by all the pre- vious Cases. It is to be noticed, also, that in another case, that of Boydell v. M'Michael,{a) decided in the same court, and very shortly after the one in question, the doctrine laid down in Horn v. Baker was again distinctly recognized and adhered to. And it must further be stated, that in the still more recent and important [ 239] case of Minshall v. Lloyd,{b) (also in the *same court,) when this case of Trappes v. Ilarter was cited in argument as an authority with regard to the property in fixtures, it was observed by Parke, B., that some doubt had been thrown on that case as far as it bore upon the point in discussion. (a) 1 Or. M. & R. 11%. (b) 2 Mee. & Wei. 456. CHAP, v.] BANKRUPTCY. 1'93 From the principles laid down in the foreo-oina; decisions, it Right of the as- ■*- -1 Eignees to a ten- may be inferred that where a tenant for years becomes a bank- anfa fixtures, rupt, the articles and utensils which he has himself attached to the demised premises, and which are removable by him at the end of his term, will not pass absolutely to the assignees like his other goods and chattels, or those in his possession or disposition. (a) There is no doubt, however, that the assignees may lay claim to them on the ground of their succeeding to the bankrupt's inter- est in the term ; but if they renounce the bankrupt's lease, it is conceived, they will have no right to take the fixtures. Per- haps, indeed, a severance [1] of the fixtures woiild, of itself be deemed an acceptance of the demise, and subject the assignees to the covenants contained in the tenant's lease. But independently of the construction put upon the words Possession of ax- ■^ "^ ^ ^ tures not a re- *^ goods and chattels" in the statutes, as laid down in the foregoing p^'ea ownership, cases, it has been established that property affixed to the free- hold is not within the intent of the statute ; because the posseS' sion of such property does not create a visible ownership in the bankrupt, so as to procure him unmerited credit. *For creditors [*240] are not deceived by the possession of property of this descrip- tion ; and it differs from the case of personal goods, where the possession and power of disposal are the only evidence of owner- ship to which a creditor can look. ' This proposition forms, indeed, in part, the ground of decision in several of the cases which have been already referred to. And the rule resulting from it, that the doctrine of reputed ownership does not attach to property af&xed to the freehold, has been es- tablished by a series of decisions both at law and equity. (a) Fixtures erected by the tenant liimael^ are in favor of creditors so far consid- ered as goods and oliattels, that they are seizable under s, fieri facias which contains Jy the words "goods and chattels," See post, part 2. [1] Goddard v. Bolster, 6 Grenl. 427, the question of severance Was considered. In this case, it appeared that the mill stones and irons had been detached by a freshet, which carried away the main body of the mill, and it was claimed that such stones and iron were subject to seizure on fi. fa. as personal property ; but it was held, that notwithstanding such accidental severance, they continued to be part of the fealty, and therefore not seizable as personal property. 13 194: TEANStER OF nXTUEES. [PART I. Thus, in the case of Steward v. Lombe,{a) Ch. J., Dallas inti- mates an opinion, that if the ,-nortgagor of the mill had become bankrupt, the mill would not have passed to his assignees, be- cause it would not have been a case in which the appearances could excite a false credit by reason of the possession of the debtor after the assignment. On the same principle, the case of Rufford v. Bishop, in Chan- cery, was decided by the M. E.(6) There the owner in fee of certain iron works mortgaged them, together with the steam en- gines, furnaces, and other erections thereon: he continued in possession, and afterwards became bankrupt. It was considered [*241] by *his Honor, that the possession of the fixed machinery did not necessarily infer that the property belonged to the bankrupt, so that he might acquire a false credit therefrom. And accord- ingly he held that it did not pass to his assignees, as being in his order and disposition. The case of Hubbard v. Bagsliaw, which followed soon after in the Vice-Chancellor's Court, (a) is an authority to the same effect. There a tenant in fee of a messuage and cotton mills, in which was a steam engine and boilers, &c., mortgaged the same in fee together with the machinery ; but he remained in posses- sion until his bankruptcy. It appeared that the steam engine was in part af&xed to the foundation of the mill, and the rest secured by bolts and screws. The Yice-Chancellor held, with reference to the cases of Steward v. Lomhe and Ryall v. Eolle, that the steam engine did not pass to the assignees on the ground of reputed ownership. Analogous to these cases is that of Boydell v. McMichael, in the Court of Exchequer. (&) There a lessee of a house for a term, purchased the fixtures from the lessors by valuation : he after- (a) 1 Brod. & Bing. 511. And see He Tastety. Walker, 1 Buck. 153. In Sinclair V. Skvenson, (2 Bing. 514,) the assignees of a bankrupt were held entitled to certain implements and fixtures on the ground of reputed ownership. But that decision rested on the fact of fraud between the parties, in making a pretended lease of the premises and fixtures to the bankrupt ; and the principle established in fforn v. Ba- Iter, kc, was not adverted to. (6) 5 Russell, 346 ; cited 4 Sim. 336. (a) 4 Sim. 326. (6) 1 Or. M. & R. \11. CHAP, v.] BANKRUPTCY. 1&5 wards assigned the lease of the house by way of mortgage, and the fixtures were included in the assignment : he remained in possession, and afterwards became bankrupt. It was holden, on the authority of Horn v. Baiter, that the fixtures did not pass to the assignees, as goods and chattels within his order and disposi- tion at the time of the bankruptcy. And the reason assigned by *Parke B., was, that from the nature of fixtures, they are a part [*242] of the freehold during the term, and that with regard to real property, the possession is considered as nothing, and the title only is looked to. Prior to the foregoing decisions, a case of a similar description had occurred in the Court of King's Bench ; but the determina- tion was there made to rest on less general grounds. In the case of Siorer v. Hunter, (a) it was held that the possession by a tenant of certain fixed machinery which he had taken on lease together with some collieries, and of new machinery which he had erected to 'replace some of the old, was not to be considered a reputed ownership within the meaning of the statutes of bank- ruptcy ; either during the term, or after he had forfeited it be- tween a judgment in ejectment by his landlord, and the execu- tion of the writ of habere facias possessionem. But in this case, the court relied principally on an usage which was proved, of demising the machinery with the collieries, the landlord retain- ing the right to it on the determination of the tenant's lease ; for it was said that this usage rebutted the presumption of a reputed ownership arising from the possession of the articles. (5) Of this case it may be remarked, that in some of the other decisions on the subject, the prevalence of a custom in the neigh- borhood, of demising fixtures together with the premises, or of selling them *without reference to the freehold, has been advert- [*248] ed to by the judges as an ingredient in their determinations. It has been seen, however, that the rule which establishes that the doctrine of reputed ownership is not applicable to things fixed to the freehold, is founded on a more general principle, depend- ing on the nature and character of the property itself. It is ap- («) 3 Bar. & Cr. 368. See, also, Clerk v. Grovmshaw, vh. sup., and the remarks of Taunton, J., in that case. (6) See Rufford v. Bishop, Trappes r. Ha/rter and Hubbard v. Bagshaw, ub. sup. ! Ex parte Scarth, 3 M, & Ay. 240. See, also, in Horn v. Baker, 9 E. 215. 196 TRANSFER OF FIXTURES. [PART I. pretended, therefore, that in this case of Storer r. Hunter, tHe claim of the assignees could not have been supported in any point of view ; for, according to the general rule, the possession of the fixed articles would not have created a reputed ownership, even if there had been no usage in the case ; and from the deci- sion of Horn v. Baker, and the other cases, it follows, that not- withstanding the bankrupt retained the visible ownership of the machinery, it would not have passed to the assignees under the words of the statute ; and lastly, the assignees could not have taken the fixed property as part of the bankrupt's estate and effects, because it appears from the statement of the case, that before the act of bankruptcy, the lease had been forfeited, and the term was at an end.(a) One further case remains to be noticed. A. having contracted to purchase a factory with a steam engine and fixtures, took pos- session on jDart payment of the price ; he never himself assumed the actual occupation, nor worked the machinery ; but retained [*2-i4] the *man who before had the charge of it under the vendor in ' the same employment : the remainder of the purchase money not being paid, he requested the vendor to resell and pay himself; and accordingly the latter immediately took possession of the property, and engaged the man in charge still to continue so on his behalf. . On the following day, A. became bankrupt : it was held that under these circumstances, the steam engines and fix- tures were not in the reputed ownership of the bankrupt at the time of his bankruptcy.(a) Tenant's fixtures In the application of the rule as laid down in the preceding are not excepted. .,..., ^ . . , . ° pages, a distmction has been insisted upon m some of the cases, between fixtures which are put up by a tenant, and those an- nexed by the owner of the freehold to his own estate ; and it has been contended that the former partake so much of the nature of personalty that they ought to be considered goods and chat- tels within the meaning of the clause of order and disposition. This doctrine has been admitted by some of the judges in the (a) See the explanation of this case given by Parke, J., in Coombs v. Beaumont, 5 B. & Ad. 16. The case was tried a second time at the Derby Spring Assizes, ] 826, and a verdict was found against the assignees. It was brought down for trial a third time at the following Summer Assizes, but was compromised. (o) Ex parte Watkins, 1 Dea. 296. This case was decided without regard to the question, whether the property in dispute was to be regarded as personalty. CHAP, v.] DBYISE. 197 courts of bankruptcy ; at least in respect of trade fixtures erected by a tenant, and which might be removed without damage to the freehold.(5) But on considering the true nature of fixtures, of whatever description, and that for whatever purpose they may have been erected, they all alike change their character by an- nexation, and participate in that of the freehold, it seems difficult to understand the principle of such *a proposition : and certainly [*245] no such distinction has been allowed to prevail in the courts of common law, in the series of cases from Horn v. Baker down- wards. It is, moreover, especially opposed to the decision in the case of Boydell v. McMichael. Indeed, it is difficult to reconcile the practice in bankruptcy as found in some of the reported cases, with the general rule as it is laid down in every one of the deci- sions, with the exception, perhaps, of that of Trappes v. Harter. For further authorities on the doctrine of order and disposition as applied to the case of fixtures, the reader may refer to the following cases : Exp. Broadwood, 1 ' M. D. & D. 631 ; Exp. Scarth, 3 M. & A. 240; Exp. Spicer, 3 M. & A. 273; Exp. Eeynal, 2 M. D. & D. 443, where the cases are examined ; Exp. Price., Id. 518 ; Exp. Bentley, Id. 591 ; Exp. Heaihcoate, Id. 711 ; Fletcher v. Manning, 1 Car. & Kir. N". P. 350 ;- and to the au- thorities referred to in the preceding page. Many also of the cases which have been treated of under the head of mortgage conveyances, will be fouad to be applicable to the present subject. Devise of Fixtures. With respect to the transfer of fixtures by devise, it may be Annacauons to observed, that where a testator has a devisable interest in awhat'^o^ases aeTN house, &c., he may devise the incidents of the house, and things "^ that are annexed to the house, either together with, or in separa- tion from the freehold. On the other hand, if the estate itself is not devisable, the things which are annexed to it are not in gene- ral devisable ; and therefore a tenant for *life or in tail cannot r*2461 devise the doors, windows, or wainscot of a house, nor personal chattels that are affixed to the house, and which form part of it; (6) See Ex parte Lloyd, 1 M. & Ay. 494, 506 ; Ex parte Wilson, 2 M. & Ay. 61, 70 ; Ex parte Belcher, Id. 162 ; Ex parte King, 1 M. D. & D. 119, where the court were divided in opinion; and Expa/rte Austin, 1 Dea. & Ch. 208 ; in whioli case, however, no judgment was given. 198 TRANSFER OF FIXTURES. [PART I. but such a devise is void.(a) But even in this case, the testator mskj devise away such fixtures as are severable from the free- hold, and which would go to his personal representative ; be- cause these are not incident to the inheritance. tuheland^''^'^ In general it may be considered as a rule, that the devisee of land will be entitled to all articles which are affixed to the land, whether the annexation takes place prior or subsequent to the date of the devise ; according to the legal maxim " quod cedificaiur in area legata cedit legato^ By a devise, therefore, of a house, aU personal chattels which are annexed to the house, and which are essential to its enjoyment, will pass to the devisee.(6) And in like manner, things that are constructively annexed to the house, as the locks, keys and rings, &c., of the house, will go to the devisee.(c) And so of any other matter that is incident to the principal thing, although it may be distinct from it ; and, there- fore, if the owner of a mill take out one of the mill stones to pick or gravel it, and devise the mill while the stone is severed from it, yet it shall pass as part of the mill.((^) Ss"'"fixtoe3 ^^ ^^ conceived, however, that an exception from this rule will 3*6 of the'Lnd"" ^^ found to cxist in respect of the class *of fixtures Avhich have r*247] been described in the first and second sections of the preceding chapter. For, as the articles there referred to are considered not to pass to the heir as loart of the inheritance, but are held to be personal assets in the hands of the executor, it would seem to fol- low, that as oetween the executor and the devisee of the land, the devisee would not be entitled to them under a general devise of the realty. This point, however, is not altogether free from difficulty : for although in ordinary cases the devisee takes the land in the same condition as it would have descended to the heir, yet, ,it should be recollected, that the devisee of land is en- titled to emblements, (which are very analogous to fixtures,) and may claim them as against the executor, notwithstanding the heir would not have taken them with the estate.(a) (a) Shep. Touch. 340, 322; Cowell's Inst. tit. 20, pi. 12. (b) Shep. Touch. 469, 4'?0; Serlakenden's case, i Co. 62. And see Colegrave v. Sias Santos, 2 Bar. &, Ores. 80. (c) Liford's case, 11 Co. 50. See ante, p. 218. (d) 6 Mod. 181 ; Place v. Fagg, 4 M. & Ry, 271. And see Martyr v. Brc Ring. 24. (a) See ante, p. 212. CHAP, v.] DEVISE. ^ 199 In one case, wliicli was a conveyance by deed, a testator had covenanted to grant a house and all things fixed to the freehold of the house ; and on a question between the covenantee and the de- fendant, who was the executor and devisee of the house in trust to settle it according to the covenant, it was held, that articles of the description just referred to, viz., hangings and looking-glasses fixed to the walls of the house, were not within the testator's covenant, because they were not to be taken as part of the house. (&) From this decision it might perhaps be inferred that such fixtures would not be comprised under a corresponding de- vise in a will. *Under the Statute of Charitable Uses, 9 G. II, which in cer- [*248] tain cases avoids devises of lands and bequests relating to inter- r^^bequesf^^OT ests in real property, it was held by the Vice Chancellor, that poses!^'''^ '"^" fixtures in a leasehold house of a testator, such as he was entitled to remove, would pass under a bequest of residue of personal es- tate for charitable purposes ; for these were considered by the Vice-Chancellor as mere personal chattels.(a) With respect to the language of a devise relating to fixtures, ri^'b^edta'T de- it should be observed, that where it is the intention of a testator '"*'■ expressly to devise fixtures in separation from the freehold, or that the devisee of the land should take all appendages belonging to the land, it is necessary to specify the articles by some appro- priate term or description. For there are decisions to the effect that things fixed to the freehold, will not be included under terms which are usually applied to property of a mere chattel nature. Thus under the term "/wrwiVwre," in a devise, it was holden '"'u' no* p^sa as •' ^ ' "furniture." that the devisee was not entitled to .articles fixed to the freehold of the testator's house, notwithstanding they were matters of mere ornament. In the case of Allen v. Allen,Q)) a testator gave to the defendant, inter alia, his furniture, jewels, &c.; on a bill brought by the heir of the testator, it appeared that the defend- ant claimed under this devise certain marble slabs and chimney- pieces fixed up in a house of which the testator was the owner (6) Beck V. Eebow, 1 P. Wms. 94. (a) Jolmsion v. Swan, 3 Mad. 45 T. (i) Mosely, 112, "SxA s^e Paton -v. Sheppard, post 200 TEANSFEB OF FIXTURES. [PAET I- [*249] in fee, and certain *ot]ier slabs and chimneypieces belonging to a bouse of whicb tbe testator was tenant for years. It was con- tended that all these things passed to the devisee, because they were ornaments every day taken down by tenants, and also upon executions. But the Lord Chancellor held, that by the word furniture, the devisee was not entitled to the marble slabs or chimneypieces or anything fixed to the freehold on the testator's- own estate. And he said, that glasses in pannels were to be con- sidered as part of the freehold, but not if they were screwed in ; and that there was a great difference between the heir and de- visee, or the executor and devisee, and a landlord and tenant. Nor as "house- So, whcrc a tcstator gave by his will all his household goods hold goods." ' D J n' /-ii and implements of household ; it was held by Lord Talbot, Chan- cellor, that under this bequest a clock in the house would pass, '■' if not fixed to the house."{a) From whence it may be concluded that articles of this description, if actually fixed to the freehold, would not be included under a devise of household goods.ilj) But included un- The temi "• -fixed furniture^^ however, will be sufficient to com- ea- "fixed lurni- j j i i ture." prehend articles of this description ; and may embrace, perhaps, even more than the term '^fixtures" in its strict sense. Thus a testator bequeathed his leasehold messuage, with the grates, cof- fers, locks, &;c., and other '''■fixtures and fixed furniture to A. for [*250] life ; and the household goods, *furniture, plate, &c., and other properties in the messuage, not being comprehended under the preceding terms yixii*res and fixed furniture,'' to him absolutely. There were in the messuage some looking-glasses, which were standing on the chimneypieces and nailed to the walls, and a bookcase standing on brackets and screwed to the wall. It was held that these were comprehended under the term "fixed fur- niture" in the will, and that A. took only a life interest therein.(a) Mr. Serjeant Hill, in his MS.notes,(J) in referring to the above mentioned case of Allen v. Alleji, remarks that it seems admitted (a) Slanmng v. Style, 3 P. "Wins. 334. (6) And see Bum. Eec. Law, Vol. IT, pages, 168, 110 ; Swinb. on "Wills, part 1, see. 10 ; God. Orp. Leg., part 3, ch. 20, see. 12. See, however, Stewart v. Marq. of Bute, ante, p. 160, innotis. (a) Birch Y. Dawson, 2 Ad. & El. 37. See the report of the case at Nisi Priiis,, where Littledale, J., expl-esses a doubt whether a carpet tacked to the floor is fixed furniture. 6 Car. & P. C58. (6) See his copy of Tuier's Ab. in Lmo. Inn, lib. Vol. XIV, p. 319, tit. House E. CHAP, v.] DEVISE. 201 in the case that the legatee of "furniture" should have the slabs ^ , and chimneypieces in the testator's dwelling-house, of which he was only tenant for years. The distinction seems to be, that in the latter'case, the articles maybe considered to, partake more of the nature of personalty, because the testator has only a chattel interest in the estate itself (c) And there is a modern decision in conformity with this view ^f^ tv.m^ml% of the case. For where a testator made a bequest of his " liouse- hold farniture" it was holden that fixtures consisting of stoves, blinds, bell pulls, and other articles generally considered as ten- ant's *fixtures, and belonging to the testator in a leasehold house [ '251] occupied by him, would pass : and the Vice-Ohancellor said the articles in question were not less furniture because they were fixed to the house.(a) In the case of wills, hdwever, the intention of parties more intention of tes- than any particular form of expression, is the criterion to be re- sorted to, for ascertaining whether things affixed pass by a con- veyance of the real or of the personal estate. And Avith respect to this, it may be observed, that the intention of a testator may frequently be indicated by the circumstance of the articles hav- ing been used together with the premises during the lifetime of the party.(&) Thus where a testator devised his copyhold estate, consisting inferred from -L -^ ' *^ unity of occupa- of a brew-house and malt-house ; under this devise the plant of tion. the brew-house was held to pass with the brew-house itself, al- though there was a bequest of the personal estate to another ; for the court, without reference to the doctrine of fixtures, pre- sumed that from the circumstance of their having been in lease together, the testator must be understood to have devised them together, (c) (c) The case before the court does not, however, seem to involve this point. It is clear the heir "was not entitled to the fixtures on the leasehold estate ; but the ques- tion would stiU remain, whether, as between the devisee and the executor, they would pass to the devisee as furniture. (a) Paton v. Skeppard, 10 Sim. 186. (6) As to the effect of custom in such oases, see Lowther v. Cavendish, 1 Ed. 99 ; Sup. 119. (c) Woody. Gaynon, Amb. 395. And see upon this subject, 3 Wils. 141 ; 1 Bos. & Pul. 53 ; 2 1. E. 498 ; 2 Bing. 456 ; 1 Bar. & Ores. 350. 202 TEANSFBR OF FIXTURES. [PART I. ^ass'by ^'T There does not appear to be any aathority respecting tlie attested. proper formalities of a will which is intended to pass fixtures in separation from the land, and whether it must formerly have [*252] been duly executed according *to the provisions of the Statute of Frauds. Perhaps a distinction may be thought to exist be- tween a devise of articles which are in the nature of personal estate, and which would be assets in the hands of the executor, and those appendages to the freehold which would descend to the heir, notwithstanding they were antecedently of a chattel nature.' In the former case the subject of the devise has a close analogy to emblements, which are said to pass by an unattested will. The question, however, does not appear to have been hith- erto discussed.(a) Form of Agreement^ &c. It remains now to mention a few particulars respecting the proper formalities to be observed in agreements and conveyances relating to fixtures. filturS™hether ^hc most important question that occurs upon this subject is, within the Stat- -whether contracts which relate to the sale and transfer of fixtures, ute of Frauds. i cf jy can be considered to fall within the provisions of the Statute of Frauds. Although this question may be supposed to have fre- quently arisen, as well upon original demises between landlords and tenants, as upon assignments between out-going and in- coming tenants, and upon sales under executions, yet there does not appear to be any instance in which it has been the subject of express judicial decision. Where, indeed, the contract 'relates r*253] to a transfer of fixtures together with the land, it *clearly falls within the fourth section of the statute ; and it is apprehended that in such a case any agreement for the sale, valuation, &c., of the fixtures, although it may be of a chattel interest only, must be in writing, and executed according to the formalities required by the statute, (a) But the question seems to be more doubtful (o) Vide Swinb. on Wills, part 3, see. 6 ; Roberts on Wills, ToL I, p. 88. And see now the recent statute, which requires that wills, whether of real or personal estate, should be alike attested. (a) See as to an agreement for house and furniture being within the statute, MicheUn v. Wallace, 1 Ad. & El. 49. So, per Wylde, C. J., an agreement to take premises, and to pay for furniture and fixtures, &c., is an agreement relating to aJi interest on land, and must be in writing. Vaughan v. Hancock, 16 Law J. R. 0. P. 1. CHAP, v.] STATUTE OF FRAUDS. 203 when things annexed to the freehold are sold in contemplation of an immediate severance, and the contract takes place between parties who do not transfer any interest whatever in the land; as between an out-going tenant at the expiration of his term, and the in-coming tenant nnder a new demise. For in this case the subject of the contract is, in the view of the parties, a bare chat- tel ; and, as was observed by Lord Ellenborough in the case of Parker v. Staniland^ih) it does not follow because articles are not at the time of the contract, in the shape of personal chattels, as not "being severed from the land so that larceny might be com- mitted of them, that therefore the contract for the purchase of them passed an interest in land within the fourth section of the Statute of Frauds. [1] It deserves also to be noticed that in the case of Mayfield v. Wadsky, in the King's Bench,(c) as well as in other cases, it seems to have been considered by the court, that a parol contract for the sale of growing crops might be good ; at least where, as between out^going and in-coming tenant, *there [*254] was no sale of any interest in the land itself (a) However, if fixtures, while they subsist in a state of annexa- After an ap- tion, are to be considered an interest in land, and within the p''*'^*'"™ • provisions of the Statute of Frauds, it appears from analogy to the cases relating to the sale of trees, &c., ±hat a contract which could not be enforced for want of the requisites of the statute, would give a right of action where it has been executed by an appi'aisement having been made of the fixtures.(6) The case of Hallen v. Bunder, (c) is an authority on this point ; Agreement for SBpLQ 01 UXtilUTOS by valuation, not „ within the Btat- (6) 11 Bast, 362. ute. (6) 3 Bar. & Ores. 360. (a) And see 1 Bing. 6. See, also, Evans v. Edberts, 5 B. & C. 829, that a sale of a growing crop o£ potatoes is not -within the fourths ; and S. C, as to a sale of emble- ments. See further in E. Falmouth v. Thomas, 1 Cr. cfe M. 89 ; Jones v. Flint, 10 Ad. A El. f 53 ; Sainsbury v. Matthews, 4 M. & W. 343. In Bodwell v. Phillips, 9 M. & W. 501, it was held that the sale of a growing crop of fruit is witMn the statute. (6) Vide Poulter v. KiUingbeck, 1 Bos. & PuL 397 ; Teal v. Auty, 2 Brod. & Bing. 99. See, also, Salmon y. Watson, 4 B. Moore, '13, as to the effect of an appraise- ment of fixtures. (c) 1 C. M. & E. 266. [1] "Wheat growing may be sold by parol, and the right of property wiU pass without writing. Such sale does not pass any interest in the land, and is not within the Statute of Frauds. Austin v. Sawyer, 9 Cowen, 39. 204 TRANSFER OF FIXTURES. [PART I. and indeed the decision goes further, perhaps, and appears to support the view taken above, that a sale of fixtures does not transfer any interest in land within the Statute of Frauds. In that case a tenant a few days previous to the exjDiration of his tenancy, agreed with, his landlord, and at his request, to leave the fixtures, the latter engaging to take them at a valuation ; the tenant accordingly gave up possession of the premises with the fixtures to the landlord ; and the fixtures were afterwards valued by brokers on each side at above £10 ; and they signed the ap- [*255] praisement. It was held that under these circumstances *this was not a sale of any interest in land, within the 4th sect, of 29 Car. II, c. 3. Nor within the Jt would sccm also, that in this case the court considered that 17th sect., as a ' - sale of goods, a note in writing was not necessary as upon a sale of goods above £10, under the 17th sec. of the statute. sfonary Interest ^^ ^ ^^^^ °^s® ^^ ^'^^^ Prius, (North Circ.,) it was ruled by parof^g?eeLent'' CrcswcU, J., that a reversionary interest in trade fixtures, e. g.^ a valid. steam boiler, would pass to a purchaser under a parol agreement, and that a deed was not in such a case necessary. (a) Stamps on Instruments relating to Fixtures. tures^'sfam* m' ^ ^^^ observations occur with respect to the provisions of the stamp acts, as they apply to schedules or inventories of fixtures, and the amount of stamps on agreements, leases, &c., of fixtures. These schedules or inventories are either annexed to or in- dorsed upon instruments of lease, &c., or they are distinct instru- ments which are merely referred to in the lease. According to the provisions contained in the general stamp act, 55 G. Ill, c. 184, a schedule or inventory, &c., which is put or indorsed upon, or annexed to, a deed or agreement, must be included in the cal- culation of the number of words as part of the instrument.(6) But "a schedule, inventory, or catalogue of any fixtures, &c., which shall he referred to in or by, and be intended to be used or given in evidence as part of, or as material to, any agreement, r*2561 *lease, tack, bond, or other instrument, &o., but which shall be (a) Pet/rie\. Dawson, 2 Car. & Kir. 138. (6) Lake v. AshweU, 3 East, 326. CHAP. T.] STAMPS. 205 separate and distinct from and not indorsed on or annexed to ■ sucli agreement, &c.," is subject to a duty of £1 5s.; and if it contains 2,160 words or upwards, for every entire quantity of 1,080 words over and above the first 1,080, a further progressive duty of £1 5s. is payable.(a) Under this latter provision of the act, it seems that an inven- tory of fixtures referred to by any instrument cannot be given in evidence unless it has the proper stamp : but it has been held that the circumstance of such an inventory not being stamped^ will not vitiate the deed itself to which it refers.(&) ' With respect to other provisions contained in the stamp act ; stamps on agree- it appears that an agreement for the sale and purchase of fixtures requires a stamp, where the amount is £20 and upwards : for such an agreement is not within the exception in the stamp act relative to the sale oi goods, wares, or merchandizes.(c) It has been held that an instrument containing an agreement for the purchase of fixtures in a house, and which contains also a present demise of the house, cannot be given in evidence to prove the sale of the fixtures in an action for their value, xinless it has a lease stamp ; the one contract being auxiliary to the other; an agreement stamp is not sufiicient.(c?) *Wliere a lease reserves one rent for a house, and there is [*257] another separate and distinct reservation for the furniture and fixtures, the stamp must be to an amount in proportion to the two reservations.(a) In the case of Buxton v. BedeII,{b) it was held that an execu- tory agreement for the making and pu.tting up of machinery in a house, was not within the exemptions of the stamp act in favor of agreements for or relating to the sale of goods, &c., but that it • (a) By t & 8 Vic. oh. 2 1, the duty on certain agreements, formerly charged by the stamp act with a duty of £1, is reduced to 2s. 6d. (6) Duck V. Braddyll, 1 M'Clel. 21'f ; 13 Price, 455. (c) Wick V. Hodgson, 12 Moore, 213 ; Marson v. Short, 2 Scott, 243 ; Chanter v. Dickenson, 6 Scott N. R. 190. And see Pinner v. Arnold, 2 0. M. & E,. 613. (d) Gorder v. Drakeford, 3 Taunt. 382. And see 1 Camp. C. IST. P. 381 : 3 Stark. C. N. P. 128 ; Clayton y. Bwtenshaw, 5 B. & C. 41, and the cases cited in note (c), '{a) Ooster v. Cowling, 1 Bing. 456 ; Clayton, v. Burtenshaw, lib, sup. (6) 3 E. 393. 206 TEANSPBR OF PIXTUEES. [PART L must be stamped like any other agreement : tliis decision, liow- ever, has been overruled by more modern cases.(c) Auction duty. rj\^Q (j^^-y formerly payable on the sale of fixtures by auction is now abolished. stamps on vaina- ^qj. ^he stamps required on valuations of fixtures, and for other points connected with such valuations, the reader is referred to the Appendix, No. III. (c) WUks V. Atkinson, 6 Taunt. 11 ; Eughes v. Breeds, 2 C. & P. 159 ; GarbvM v. Watson, 5 B. & Aid. 613 ; Pinner v. Arnold, 2 C. M. & R. 613 ; Mwrson v. Short, 2 Scott, 243 ; Chanter v. Dickenson, 6 Scott M". R. 190. See the stat. 9 G. IT, oh. 14, sec. 8, as to stamp duties on executory contracts for the sale of goods of the value of £10, and upwards within that statute. CHAP. VI.] EIGHTS AND LIABILITIES IN EBSPBCT OP. 207 *CHAPTER VI. [*258] ON THE EIGHTS AND LIABILITIES OE PAETIBS IN EESPECT OP LAND AS INOEEASED IN TALUB BY THB ANNEXATION OP PEESONAL CHATTELS. The law, in a variety of instances, determines the liabilities of persons to perform public duties, or to contribute to public charges in consequence of the possession of real property. In lilie manner it confers many important rights on freeholders and tenants of inferior estates, by reason of their interest in land. In these instances it is frequently necessary to ascertain the precise value of the property; and wherever that value has been in- creased by the annexation of personal chattels to the freehold, it will be important to take into consideration the nature and doc- trine of fixtures. Thus, First: — With respect to the liabilities of persons ^Q^^^^olf^^oti- make contribution to the poor rates. The statute 43 Eliz. c. 2, |°yo°7ed%ra™ enacts that competent sums, to be levied for the purposes therein vexations, specified, should be raised by the taxation of every occupier of lands and houses in a parish. And in the construction of this statute, it is held, that land and houses are to be rated according to their annual value, although that value may be in part de- rived from the annexation of personal chattels.(a) *Thus, where a corporation, being possessed of a house, erect- [*259] ed a machine in the street, leading by the house for the purpose as by a steelyard of weighing wagons, &c., loaded with coal, &c., at 2d. per ton. house. The steelyard of the weighing machine was, and always had been in the house. The corporation was rated for the machine- house according to the annual value, not only of the house itself, but of the clear profits of the machine. The court held the rate good; and Lord Mansfield observed, that the nature of the thing showed that the machine was annexed to the freehold; they were (a) The mode in which the net annual value is to be estimated, is now provided for by the Stat. 6 and 7 Will. IV, ch. 96, sees. 1, 3. The object of the statute is merely to determiae the relative liabilities of parties, aaid in no way affects the prin- oiples discussed in the text. 208 ANNEXATIONS TO LAND, [PAET I. one entire thing, and were together rated by tlie common name (the machine-house) which comprehends both ; the steelyard was the most valuable part of the house ; the house therefore ap- plied to this use might be said to be built for the steelyard, and not the steelyard for the house. And Willes, J., said, that if the machine be appurtenant to the building, its clear profits are un- ?y™a mSTa* ^oubtedly ratable. If a billiard table stand in a house, and the *>'*■ house should in respect of such table 1^ at a higher sum, it would be ratable whilst the table continued there, and was so let at the advanced rate.(a) Sachine."*"^"* Ill another case,(6) a building called the engine-house, consisted of a bay of building in which there was a carding machine for manufacturing cotton. The engine was generally worked with water, but frequently by the hand. The building wherein the [*260] engine stood was not a dwelling-house, nor was ^t *erected for the purpose of receiving the engine. The engine was placed on the floor ; and the case stated that it was not annexed or fastened to the floor, but might be moved at pleasui-e and carried out and worked in any other place, either by means of water or manual labor; arid was not adapted to any particular building. The court thought that this case was not distinguishable from the preceding one of Rex v. St. Nicholas, Gloucester ; and accordingly they held, that the house and engine ought to be rated as one entire subject. By a malt-mil). ^ -^yas obscrvcd by Mr. Justice Grose, in the course of his judgment' in this case, that if a tenement were to be fitted up as a malt-house, and a malt mill put into it, and the whole was let together, the whole ought to be estimated together according to its improved value. fLlnd rSiwTy ^ga™) whcrc the lessee and occupier of a coal mine erected steam engines for draining and working the mine, and laid down a railway for the use of the mine, and thereby improved its an- nual value ; it was held that he was ratable for such improved value, at the amount as increased by reason of the improvement from the engine and railway. (a) . (a) Sex V. St. Nicholas, Gloucester, Cald. 262. (6) Bex V. Hogg, Oald. 266; 1 T. E, 121. (a) R. V. Lord Gran'Oille, 9 B. & C. 188. CHAt. VI.] RIGHTS AND LIABILITIES 1)S RESPECT OF. 209 To the like effect is the more recent case of B-ex v. Birming- %j''i'°^^^^„il kam and Stafford Gas Company,{b) in wliich the same general principle was adhered to. And in delivering the judgment in that case, Lord Denman, 0. J., said, in respect of machinery at' tached *to houses, &c. *' Such machinery constitutes a mode of [*261] occupying : that really is clear from the beginning to the end of all the cases on the subject. The principle has never been called in question ; and even where the machine has not been attached, a house has been held ratable in respect of it, if the value of the house has been increased by the machine." In another case, which followed shortly afterwards, (te) the rule is laid down in the same terms. And Denman, C. J., said, " Real property ought to be rated according to its actual value as combined with the machinery attached to it, without consider- ing whether the machinery be real or personal propertj', and liable or not to distress or seizure under a Ji. fa., or whether it would go to the heir or executor, or at the expiration of a lease to the landlord or tenant."(6) There is an ambiguity in some of the above cases as to whether whether lana is the chattel must be actually affixed to the premises in order to spect of chattels make it the subject of a rate upon land and houses. In the case flxed*° "» y a - of Sex V. St. Nicholas, Gloucester, the machine which had been rated was clearly affixed to the freehold ; and the court rely upon this circumstance in delivering their judgment. It has, however, been thought that the case of Rex v. Hogg goes the length of determining that things let together with a house under the same *demise, and yielding a profit, are ratable [*262] whether affixed or not.(a) But the better opinion appears to be that the profits arising from a personal chattel not attached to the premises, ought not to be included in a rate professedly raised upon land and houses only. And it is observable that in Rex V, Hogg, Mr. Justice Ashurst, adverting to the construction of <6) 6 Ad. & E. 634. ifl) R V. Cfwst, 7 Ad. & B. 951. And see Brown v. Lord Granville, 10 Bing. 69. (V) As to the grinciple to be adopted as the proper measure of the ratable value of a rail/way, see R. v. Grand Junction Railway Go., 4 Q. B. 18 ; J?, v. Great West. R. Comp., 6 Q. B. 119. (o) Nolan's Poor Laws, Vol. I, pages 82, 84, in notis. And see per Denman, Ch. J., in R V, Birmingham and Stafford Gas Oo. mp. See the rule in the case of set- tlements, R. v. Londonffwrpe, post. 14 210 ANNEXATIONS TO LAND, [PART I. the carding macliine, remarks that although it was stated that the machine was not fixed to the floor, yet that it might be fixed to the walls of the building, and that it was to be supposed that it must be fastened in" some way, otherwise, as it worked by water, the weight of the water must displace it.{b) water-pipea laid The principle above considered applies also to another class of m land ratable. ^ ^ ^^ cases ; as where pipes, &c., are laid in the ground for the con- veyance of water or gas, and profit is derived thereby to the pro- prietors. These pipes, &c., are to be deemed a part of the soU, and are ratable as such in the parish in which they are situated, according to the profits derived from the pipes ; although the ownership of the land itself may be in other individuals. The company of the Rochdale Water Works were rated in the township of Spotland, in the county of Lancaster, in respect of the trunks and pipes, and other apparatus for the conveyance [*263] of water belonging *to the company, fixed in the ground in the township of Spotland, and for the profits arising therefrom within the township. It was contended, on the part of the Rochdale Company, that the act of Parliament by which they were incor- porated merely gave them a license to carry pipes through the lands of others : but the court determined that the company were clearly ratable to the poor by reason of their occupation of the land in which the pipes were placed.(a) ftas pipes rata- The Same principle governed the case of Eex v. The Birming' ham Oas Compa7iy.{})) And again, in a still more recent case,(c) it was held that a public gas company were liable to be rated in respect of the increased value of the land, arising from the profits of the gas pipes in the parish in which the pipes were laid ; and that the company were to be considered occupiers of the land in which the pipes were fixed, although they had no interest in the land through which the pipes passed, but merely a license to (6) For a description of a carding machine, see E. v. MiOer, 2 East, 189. In Trappes v. Harter, (2 0. & M. Ill,) Lord Lyndhurst, 0. B., observes that the screw- ing of a stocking frame to the floor to keep it steady, would not make it a fixture. As to which, see Duck v. Braddyll, 1 M'Cleland, 217. (a) Rex V. RocMcde Water Works Compcmy, 1 Maule & Selwyn, 634. (6) 1 B. & C. 506. (c) Rex T. Brighton Gas Company, 5 B. & 0. 466 ; 9 B. & C. 112 ; Ace. R. v. Garnbridge Gas Co., 8 Ad. & Bl. 13. CHAP. VI.] EIGHTS AND LIABILITIES IN EESPECT OP. 211 place them there, and had the power under an act of Parliament of removing them when they thought Qi. The court, in deciding the question, adverted to the two last mentioned cases, and said that the pipes were to be considered a part of the land, for they were not merely laid upon the land, but affixed thereto, and the land must be disturbed to come at the pipes. And, in the dis- cussion of the case, they compared the pipes to the case of a tun- nel under a river, which they said would be ratable. And, with *respect to the power of taking them up and altering their [*264] position as provided for by the act, they said, that the privilege was not greater than in the case of trade erections put up by a tenant, &c., which, although they might be removed under the J'\°?J''* fixtures law of fixtures, yet, until, actually severed, were subject to be rated, because, in the meantime, they constituted a part of the land. But in applying the rule here laid down, one obvious principle Distinction , , . . . , , ^ where the princi- is to be attended to ; viz., that when the prmcipal subject matter pa' not ratable, is not liable to be rated, neither is anything that is annexed thereto and which is accessary to the subject matter, liable. Thus, in the case of an iron-stone mine, which by express statute is exempted from rate, a steam engine erected for the purpose of clearing and draining such mine is within the exception, and cannot be rated.(a) Secondly. In questions respecting the right to parochial settle- Settlements by • -^ o 1 ' n iT'rt/^ occupation, Ac, merits, it is frequently necessary to refer to the doctrine of fix- "fiand improved tures. For it may often happen that the value of land, as in- creased by annexations made to it, would amount to the sum which is requisite to confer a settlement ; but if those annexa- tions were not to be taken into calculation, it would fall short of it. Thus a question arose as to the value of a tenement, by the House improvei rating, &c., of which it was contended a settlement was gained of stoves, 4c.' under the Statute 3 W. & M. ch. 11, sec. 6, an'd 35 G. Ill, ch. 101, which then governed the subject, and the latter of which required . that the *tenement should be of the yearly value of 1*2651 ^lO.(a) The pauper occupied a house in the parish of St. Dun- (o) R. v. JBilsion, 5 B. & C. 851. (a) See the note to the next case. 212 ANNEXATIONS TO LAND, [PART I. Stan's, at the rent of £10 per annum, and was rated and had paid an assessment in that parish : it was proved that the houses were rated at half their value in that parish ; and the pauper's house was assessed at £3 10s. annual value ; but it had been let, to- gether with the fixtures therein, to other persons as well as to the pauper, at the same rent of £10. The fixtures consisted of stoves, grates and cupboards. The stoves and grates had not originally belonged to the house, but had 'been put in by a ten- ant ; and the landlord had taken them in part payment of rent about six years before : they were fixed in with brick-work, but might be removed without doing injury to the chimney places ; the cupboards stood on the ground, supported by holdfasts, and these might also be removed without doing any other injury to the walls than leaving a few marks of nails. It was further proved that the use of these several articles was worth about six- pence per week ; and that the tenement, including the ■ use of them, was worth £7 10s., and without them about £6 per annum ^ The Court of Quarter Sessions confirmed the order, but stated their opinion to be, that if any deduction, however small in amount, was to be made in respect of the above mentioned ar- ticles, the tenement would not be of the annual value of IQl. The court of K. B. confirmed the order of sessions ; and Mr. Jus- tice Bailey, in delivering his judgment, observed, that although [ 266] these fixtures, if they had belonged to *the tenant, might have been removed by him during the term, yet, as they actually be- longed to the landlord, they were parcel of the freehold, and would have gone to the heir, and not to the executor, and that the tenement was therefore of the annual value of £10. Chattels must But iu thcsc cascs, in order to confer a settlement, the property fixed. by which the value of land is improved must be actually afiixed to the soil ; notwithstanding it has been seen that, in questions upon rates, some doubts have been entertained upon' this subject. I'ost or other Thus, in a case which was prior to the Stat. 59 Geo. Ill, ch. dOiJ)) windmill, not ' -^ ' i\ / fixed. ■ (a) Rex V. St. Dunstan's, Kent, 4 Bar. & Ores. 686. (b) Since the Statutes 59 G. Ill, ch. 50, & 6 G. IV, ch. 57, (which materially alter the conditions for gaining a settlement, and amongst other things, make it to de- pend on the amount and payment of the rent of the premises,) there does not ap- pear to have been any decision on the subject involving the principle discussed in the text ; nor from which it may be collected whether any modification of the rule is introduced by those statutes. It may be observed, that with regard to some of the conditions for conferring a settlement required by the latter of those statutes, the CHAP. VI.] RIGHTS AND LIABILITIES IN RESPECT OF. 213 where a settlement was sought to be established by the renting of a tenement of the yearly value of £10, the pauper rented a tenement at £6 per annum, and also a piece of ground at the yearly rent of 10s. M. ; on this piece of ground he built a post windmill at an expense of £120, which he was at liberty to re- move at pleasure : it was constructed upon cross traces, laid upen brick pillars, but not attached or affixed thereto, which is the usual mode of building mills of that nature. He worked the mill himself for about three quarters of a *year, and let it for a [*267] short time at the rate of £9 per annum, and during that period he resided on the other tenement. The mill was considered the property of the pauper, and he afterAvards sold it as a chattel, and it was taken away by the purchaser without any interrup- tion from the. landlord ; no rates were ever paid or demanded for the miU, or the ground on which it stood. It was contended that the value of the land must be taken to be increased by the erection of the mill upon it ; and it was com- pared to the cases of a rabbit warren, or a land-sale colliery, where the value of the rabbits, and of the horses, gins, ropes, and other chattels for working the collieries, might be taken into ac- count for making up the value required. But Lord Kenyon observed, " This windmill, as described in the case, is nothing but a chattel. And if in questions of this kind we were merely to consider the ability of the pauper, with- out at the same time considering whether he rented a tenement, we should abandon the statute altogether and the decisions upon it. It might as well be said that an iron malt mill would give a settlement. This post windmill was the sole property of the tenant himself, and it was not fixed in the ground, but detached from it. But in order to confer a settlement, it should be so con- nected with the land, as, in legal contemplation, to fall within the description of a tenement."(a) same construction is to be put upon them as in the previous statute which was re- pealed by it. The statutes since passed, viz. : 1 'WiLl. IT, ch. 18, and 4 & 5 "Will. IT, ch. 16, do not affect the subject in question. (a) R. V. Londonthorpe, 8 T. R. 31T. See, also, B. v. Minworth, 2 E. 197, and the judgment of Le Blanc, J., in that case. I^ instead of a bona fide letting, there is a mere license to use a part of the machinery of a mill, or a mere standing place in a mill for the party's own machinery, to be worked by the steam power of the mill, this would not confer a settlement. See R. v. Dodderhill, 8 T. R. 449 ; E. v. Ham- 214 ANNEXATIONS' TO LAND, ETC. [PART I. [*268] *So, in a more recent case, a pauper rented a cottage, &c., witli a windmill ; these were together of the annual value of £10, but exclusively of the mill the tenement was not of that value. The mill was of wood, and had a brick foundation ; but it was not inserted in the brick-work, or annexed to it, but rested upon it by its own weight alone ; and no part of the machinery of the mill touched the ground or the foiindation. It was held, on the authoritjr of the preceding case, that as the mill was not affixed to the freehold, nor to anything connected with it, it was not parcel of the tenement, and therefore the pauper gained no set- tlement, (a) at*^iecuons"m Thirdly. The principles which have been discussed in the pre- erty toproved'b " ^^'^^■'^S P^gcs would, it is conccivcd, apply to the subject matter annexations. Qf ^q qualiiications in respect of property required by statute, in order to confer. the right of voting in the election of members of Parliament. There is, however, only one case to be found upon this subject. It was the case of a vote at an election for the coimty of Bedford. A voter had polled for a windmill, which appeared in evidence to be fixed on a post, upon pattens, in a foundation of brick-work, and to be upon a plot of ground enclosed with a fence, put up by the voter in a common field. [*269] It did not appear in whom the title to the ground *was, further than as it might have been inferred from possession. The vote in respect of this mill was held good by a committee.(a) It may be observed of this case, that the committee seem to have recognized the principle, that whatever was affixed to the freehold was to be considered as land ; and that if it enhanced the value of the land to the requisite amount, it would confer a right of voting. On the facts as stated in the report, it does not appear satisfactorily in what manner the windmill was connected with the soil. The case, however, does not waiTant an inference that the right of voting would accrue in respect of property, the value of which is increased by a personal chattel which is not actually affixed to the freehold.(5) mersmitJi, 8 T. R. 450 ; S. v. Millei; 2 E. 189 ; Robinson v. Learoyd, •? M. & "W. 48 ; Posi, part 2, ch. 2, sec. 1. (a) E. V. Oiley, 1 B. & Ad. 161. And see Wanshorough v. Maion, 4 A. & E. 884, where this case was recognized and a similar building was held not to be parcel of the freehold. (a) 2 Lud. Case 12, p. 440. {b) See B. v. Oiley, sup. PART II. CHAPTER I. OF THE REMEDIES BT ACTION, ETC., IN EBSPEOT OF FIXTURES. Section I. Of the Action of Waste, and of Case, in the nature of Waste, as applied to Fixtures. Section IL Of Injunctions for Waste, and of equitable Bdiefin . the case of Fixtures. Section IIL Of other Bemedies hy Action in respect of Fixtures. SECTION L Of the Action of Waste, and Case in the nature of Waste, as. applied to Fixtures. Having in the preceding division of the work treated of the rights of different parties with regard to th^ property in fixtures ; the next subject for consideration is the means by which those rights may be enforced, and the remedies provided by the law when they ,are infringed. The - owners of the inheritance, in whom, in early times, the injury to things power of legislation was principally vested, secured themselves fSoidi's°wa3?e! against such injuries to the freehold committed by their particu- lar tenants, by means of *the law of waste. And it was held to r*27n be equally waste to damage or remove a personal chattel which had been annexed to the freehold, as where the substance of the freehold itself was impaired. Accordingly, Lord Coke, in treat- ing upon this subject, observes, that " if glass windows, though put in by the tenant himsel:^ be broken or carried away, it is waste. So it is of wainscot, benches, doors, furnaces, and the like, annexed or fixed to the house either by the reversioner or the tenant."(a) ( i waste committed tioual advantage ; that, if waste has already been committed, the court will at the same time that it enjoins from farther waste, also grant an account, and decree satisfaction for waste which has been actually done.(a) So that a party has by this means the same redress that he would have obtained by recovering damages in a court of law. Again, where waste has been already committed, as in timber that has been cut down, the coiirt will prevent the defendant from taking advantage of (a) See ante, p. 142 ; in rwtis. (6) 1 Eq. Ca. Ab. 400 ; 3 P. "W. 26S ; Amt. 105 ; 3 Atk. 94, 210, '723 ; 6 Ves. '781. (c) 3 Atk. 21; 1 Br. Ch. Ca. 588; 6 Ves. 14'7 ; 1 Ves. 308; 10 Ves. 290; 11 Ves. 128, 138, 281; Dick. G10- Swanst. 208. (a) 3 Atk. 262 ; Eden, 159, CHAP. 1. SEC. 11.] INJUNCTION, ETC. 225 his wrongful act, by restraining him by order frora taking it away. (5) The rehef by injunction will not be granted on sHght or un- i^'Ja^ a safflpient certain grounds; for, in the affidayit upon which it is founded, J™<="™- it is not sufficient that the plaintiff merely swears that he appre-, hends, or has been informed, that the defendant intends to com- mit waste ; but there must appear an actual waste, or some act from which the intention is fully evinced, as sending a *surveyor [*285] to mark out trees, &c.(a) Threats, however, will form a suffi- cient ground for an injunction ; for it is not necessary to stay till waste is actually done. (6) And in like manner, an injunction has been granted against a tenant for life who insisted on a right to commit waste where he had none, although no waste was in fact committed.(c) From the view here given of the nature of the proceeding by injunction to rc- mj unction, it appears that it is a remedy which may frequently vai ot things be adopted by the reversioner for the purpose of restraimng atoia. tenant for life or for years, who intends or rather threatens to sever things from the freehold under a claim arising out of the law of fixtures. It seems, indeed, to be more particularly appli- cable where a tenant at the expiration of his term insists on a right of taking away substantial buildings which the owner of the land contends are not within the privilege of removal.(c^) Thus, an injunction was granted by the Vice-Chancellor untii the rigiit against the assignees of a bankrupt lessee, to restrain them from iawr°"°'^ ^^ selling or removing a steam engine, &c., from the premises, until the claim in dispute, was determined at law. In this case, a lease was granted to the bankrupt of a mill, and steam engine, &c. ; in which lease he covenanted to repair the premises and (&) 1 Tes. jun. 93. As t'o Whether equity -will entertajn a biU for an account where an injunction is not also prayed for, see 3 Atk. 263, 381 ; Amh. 54 ; 2 P. AV. 240; 1 Br. Ch. Ca. 194; 3 Br. Ch. Ca. 3'7 ; 1 Tes. jun. f8; Dick. 211; Fonb. on Eq. Vol. I, p. 14. (a) 2 Atk. 182; 5 Ves. 688; 1 Yes. 309, 417; 10 Tes. 54. (6) 2 Atk. 182 ; 6 Tes. 706 ; Dick. 101 ; 1 Jac. & "Walk. 653. (c) Bam. 497. (d) As to relief in equity against executors for the waste of their testator, and the distinction in this respect between legal and equitable waste, see Eden on Inj. 211, et seq. ; Vide svp. p. 276. 16 226 REMEDIES, ETC. [PABT n. steam engine, and to leave them in repair at the end of the term, [*286] reasonable wear, *&c., excepted. It appeared, that during the term the lessee had added to the buildings, and removed all the works of the engine, except the jQy-wheel, shaft, &c., and had attached to them a new engine of greater power. The Yice- Chancellor was of opinion, that although, if the engine had been, worn out by wear and tear, the lessee would have been under no obligation to repair it ; yet, having taken away the existing en- gine and substituted another for it, the latter was subject to the same stipulations in the lease as the old engine, and that it could not therefore be removed. Accordingly, he granted an injunc- tion against the assignees to prevent this, subject to an action to be brought by the lessors to try the right.(a) be°aotuaii "af- ^^*' ^^ ^^^ thesc cases, to entitle a party to relief by injunc- axecj. ^JQjj^ on the specific ground of waste, it must appear that the property in dispute is actually affixed to the freehold. For, where a bill was brought praying an injunction and account, which stated that the defendant had committed waste, by de- stroying a dovecote, and by removing the locks from the doors of the house, the chains from the lawn, the statues, images, and fences from the pleasure ground, wardrobes, presses and closets, forming part of the wainscot of the house, the Lord Chancellor, in giving his- judgment, said, " The foundation of this motion to revive the injunction is, first, a clear act of waste; second, ar\ act removing things supposed to be fixed to the freehold, wain- scot, presses, &c. As to the dovecote, a clear act of waste is r*287] "proved, — therefore against *waste the injunction must be revived. But I cannot grant it against removing the presses, eo nomine, if not fixed to the freehold.(a) other remedies Bcsidcs the spccific remedy by means of ini unction to stav in equity. . , ^ ^ . •' '' waste, as above described, it appears that there are a variety of other methods by which the right to fixtures may be incident- ally determined in a court of equity. For instance, by means of an injunction to restrain a breach of covenant.: or upon a de- cree for an account, &c. And from a reference to several of the (o) Sunderland v. Newton, 3 Sim. 450. And see Hooper v. Sroderich, (9 Law J. E. Eq. 321,) as to the mode of deciding the right to fixtures on injunction. See, also, ilitC 123 ; 1 Br. C. C. 51. ' (a) Kimpion v. Eve, 2 Tes. & Bea. 349. And see 2 Dy. 108 b. CHAP. I. SEC. II.] INJUNCTION, ETC. 227 cases detailed in the former part of this work, it will be seen that many important questions relating to the law of fixtures have arisen in proceedings instituted in the equity courts.(6) The liability of ecclesiastical persons for waste has been ex- agalnstecdesias- plained on a former occasion.(c) And with respect to the rem- """^ ''""""'■ edy in such cases, it is to be observed, that besides an action by the successor, either in the spiritual court, or in the courts of common law, to recover damages for waste already committed, it seems that the Court of Chancery has jurisdiction to issue a writ of prohibition of waste, to restrain such persons from com- mitting waste in their ecclesiastical possessions.((i) And by an- alogy to this proceeding, a *court of equity now more frequently [*288] interferes by injunction ; as, for instance, against a rector at the suit of the patron.(a) And so, an injunction was in one case granted to stay waste against the widow of a rector at the suit of the patroness, during a vacancy.(5) It seems, also, that bishops, deans and chapters may be restrained by injunction at the suit of the crown, (c) (J) See Lawton v. Lawton, 3 Atk. 13, where the right to fixtures between the ex- ecutor of tenant for Ufe and the remainder-man, was determined on a bill by a creditor of the deceased tenant for hfe. So, in Lord Dudky v. Lord Warde, Amb. 113, a biU in equity was filed by the executor of a tenant for hfe against the re- mainder-man, to have fire engines deUvered up as a part of the personalty. In Ex parte Quincy, 1 Atk. 4,11, the question arose on a bankrupt petition. (c) See ante, p. 148. (d) 2 RoU. Ab. 813. And see the case of Jefferson v. The Bishop of Durham,, 1 Bos. & Pul. 105. See, also, 2 Bum. BcC. Law, tit. Dilapidation ; 1 Cru. Dig. tit. 3, ch. 2, sec. 74 ; 3 Swanst. 493, 499. A very learned account of the introduction of the writ of prohibition of waste will be found in Jefferson v. The Bishop of Durham; in which case it was determined, after much discussion, that the Court of Common Pleas has no power to issue an original writ of prohibition to restrain a bishop from committing waste in the possessions of his see, at least at the suit of an uninterested person ; and doubted whether the Court of King's Bench had such a power. (a) 2 Atk. 217 ; Bam. 399, S. G. ; Amb. 176; 1 Bos. & Pul. 119. (6) 2 Br. Ch. Ca. 552. , (o) Amb. 176; 3 Mer. 427. 228 EBMEDIES, ETC. [PAET. II. [*289] ^SECTION III. Of other Remedies hy Action in respect of Fixtures. OF TRESPASS. Trespass to fix- FiXTUBES, as Constituting in their nature a part of the land tures, before and . i • j ji 11 after severance, -while iu a State 01 annexation, are subject to the general rules which govern the action of trespass, in its application to injuries to - real property. And when severed from the freehold, and after their personal nature is revived, they may properly be sued for in an action of trespass de honis asportatis. ciSS% fi^lt Thus, upon the same principle that in trespass quare clausum for fixtures. /re^z< for au injury to land, it is essential that the plaintiff should have actual possession of the land at the time of the act com- plained of, a landlord cannot, during a subsisting term, support trespass quare clausum fregit against a stranger for the removal of fixtures attached to his freehold. [1] In the case of the tenant, however, this would be the proper form of action in which he might recover compensation for the like injury.(a) ■ So, where a tenant, under color of the law of fixtures, wrong- fully severs from the freehold articles put up by himself during the terni, or which have been demised to him together with the [*290] premises, the landlord cannot, pending the term, support *an ac- tion against him as for trespass to real property, (a) For the same reason, and because in respect of real property there i^ no constructive possession, the heir could not, till after entry, try the question with the executor,' whether articles de- scend with the inheritance or are properly fixtures, in an action {a) As to analogous caaes of trespass for cutting down trees, see 4 Co. 63 ; Br. Ab. Tresp. 2'!3 ; Com. Dig. Tresp. A. 1, 2 ; Biens, H. ; Viner's Abr. Tresp. S. ; 7 T. R. 9 ; 1 N. R. 25; 2 Mau. & Sel. 499; 1 Saund. 322, n. 5. And see 1 Price, 53. (a) Tide Eitchman v. Walton, 4 M. & "W. 409. It seems that trespass Tvould lie in such a case against a strict tenant at wUl, because it is said his term is put an end to by the severance. See 8 Ed. IV, p. 8 ; 12 Ed. IV, p. 8 ; Litt. sec. 11 ; Sa- Tille, 84 ; Dyer, 121 b. [1] Taylor v. Townsend, 9 Mass. R. 415. CHAP. I. SEC. III.] TRESPASS. 229 of trespass quare clausum fregit. After entry, however, this would be the proper form of proceeding.(6) But, where fixed articles hare been severed from the freehold ^f^^^^a^j and so reduced to a chattel state, the party in whom the right of'"' *^'"'''='- property is vested from the time of severance, may support tres- pass de bonis asportatis for the removal ; because the general property of personal chattels draws to it the legal possession. The' reversioner may, therefore, sustain this action against a ten- ant in possession pending a lease, for, the removal of things which the tenant, either from the circumstance of their having been demised to him, or for any other reason, has no right to sever and take away.(c) And so a tenant, although the property in fixed articles may belong to the landlord by the terms of the demise or otherwise, may maintain this action *against a stranger [*291] who wrongfully removes them : for during the term he has a special property therein.(a) It would seem, that a tenant, after the severance of articles to Tenant's pi-oper- , . , . . ty »n things de- which he is not entitled as fixtures, could' not, in general, main- ™'sed, after se- ' . verance. tain trespass against his landlord for removing them.(&) In one case,(c) indeed, an action of trespass was brought by a tenant against the bailiff of his landlord, for removing certain fixed articles which it appeared had been demised to him together with the house, and for which he recovered damages. But no' objection as to the form of action, with reference to the plain- tiff's interest, seems to have been taken on that occasion \(d) and it may be observed, moreover, that the articles in question had been wrongfully severed under the authority of the landlord himself; and it might, therefore, be considered, that the landlord (5) 21 Hen. VH, 26; 2 Mod. 1. (c) For the principle, see 11 Co. 81 ; Udal v. Udal, Aleyn, 82 ; Post, 292 ; 2 Campb. N. P. C. 491 ; 2 Chit. Rep. 636. And see Berry v. Seard, as cited in Viner'a Abr. Trespass, S. pi. 10. As to -which, see Serj. Hill's MS. note, Ibid. See, also, Fa/rrant V. Thompson, 5 Bar. & Aid. 826 ; Biggon v. Mortimer, 6 Car. & P. 616; Post, 304. (a) See Sitchman v. Walton, uii sup. ; and per Parke, B., in Boydell v. WMichael, 1 Cr. M. & R. 111. (6) And semb., not against a stranger, according to Evans v. Evans, 2 Camp. C. N. P. 491. (c) Pitt V. Shew, 4 Bar. & Aid. 206. (d) This case was prior to that of Farrmd r. Thompson, in which it -was clearly laid down, that the property of fixed articles demised with the premises, reverted to the landlord on severance, post, 303. 280 REMEDIES, ETC. [PART n. and the defendant who acted under him, were estopped from in- sisting that the tenant's interest was put an end to by the sever- ance.(e) Right to bring It may be collected from the foregoing remarks, that the right trespass, before ^ i-i?- jj-j^'U^.j.l ana after sever- to bring an actiou of trespass de *Donis asportatis tor cnatteis r*992] which have been disannexed from the freehold, and to bring trespass quare dausum fregit for injuries to them previous to the act of severance, will frequently reside in different individuals. And this proposition may be illustrated by the case of Harrison V. Parker.{a) In that case a person had, at his own expense, erected a bridge on the soil of another with his permission ; part of the bridge having been pulled down, and the materials taken away by a wrongdoer, it was holden, that the original owner might maintain trespass for the asportation, because the exclusive right of property in the materials reverted to him by the act of severanc(3. And Lord EUenborough observed upon this occa- sion, that the case would have involved a different question, if the injury complained of had been to the materials while in a state of annexation. TncranaVspOTtl I* may be questionable whether an action of trespass de bonis ?o*i°taued''act!'°' asportatis for the removal of fixtures after their severance, could be maintained in a case where the severance and removal are one continued and entire act. In the case of Tidal v. Udal,(b) it is said, that the court agreed, that "if a lessee for years cuts down timber trees and lets them lie, and after carries them away, so that the taking and carrying away be not as one continued act, but that there be some time for the distinct property of a divided chattel to settle in the lessor, that an action of trespass vi et armis would lie in such case against [*293] *the lessee : and that in such case felony might be committed of them ; but not where they were taken and carried away at the same time." (e) See Twigg v. Potts, 1 C. M. &. R. 89. In the case of trees, it has been held that, where pollards are not excepted in a demise, and the tenant would be entitled to them if blown down, and has the usufruct in them during the term, the lessor cannot by wrongfully severing them acquire a right to them ; and the tenant may maintain an action against him for the wrongful cutting. Ghannon v. Patch, 5 B. & 0. 897. (a) 6 East, 154. See, also, 8 Taunt. 614, et seq. (&) Aleyn, 82. CHAP. I. SEC. in.] TRESPASS. 231 If the principle contained in this passage be correct, it would seenx to apply equally to the case of fixtures.(a) The question, however, does not appear to have undergone much discussion ;(&) but the reader will find some further remarks upon it in the en- suing division respecting the action of trover, to which the authorities more immediately relate. With refer enfe to the form of the declaration in an action of roi-m of aeciar- ing. trespass for injuries to fixtures, — it may be observed, that it is necessary to give an appropriate description to the property in question. And where the subject matter of complaint arises, whilst it is in a state of annexation to the freehold, it is advisable, in order to meet objections upon this point, to describe the prop- erty in terms applicable to it only in a fixed state.(c) Formerly, the plea of the general issue would in *ordinary r*294:l cases have raised the question between the contending parties as pjea. to the right of property in fixtures. But now, by the new rules, a special plea is necessary for that purpose. The case of Welsh v. Nash,{a) although it arose under the old form of pleading, ■ may, perhaps, deserve notice here ; not so much from its supposed variance with the rules of pleading as then existing, but because it has sometimes been thought to im- pugn the general doctrine as to the right of property which ac- crues from the annexation of things to the freehold. It was held in that case,, that a defendant could not, under the general issue, justify cutting certain posts and rails which the plaintiff had erected upon his, the defendant's own soil. It is to be observed of this case, that the question in controversy came before the court upon a case reserved, in which, as was said by the court, (a) And see the position as laid down in Bui. ST. P. 84. See also, Vin. Ab. Trees, A. G. ; Com. Dig. Biena, H. ; 2 EoU. Abr. 119. (6) Vide Spooner v. Brewster, 2 Bing. 136 ; Ward v. Andrews, 2 Chit. Rep. 636 ; Wheeler v. Moniefiore, 2 Q. B. 140. (c) See the observations of Parke, B., in BoydeU v. M'Michael, 1 Cr. M. & R. 111. In Pitt v. Shew, 4 Bar. & Aid. 206, it was held, that the value of fixtures might be recovered under a count charging tha defendant with breaking and entering the plaintiffs house, and taking his goods, chattels, and effects. In this case it is probable that the articles were not taken away till some days after the severance under the distress. See the facts as stated on the motion for a new trial, 4 Bar & Aid. 208. See, also, Sheen v. Sickie, post, 299 ; and Twigg v. Potts, post, 309. (a) 8 East, 394. And see 5 Bar. & Aid. 603.. 232 EBMBDIBS, ETC. [PART II. the posts and rails were meant to be stated as the property of the plaintiff. This being so, there was no room for the legal pre- sumption that they passed to the defendant as owner of the soil. For, as the record stood, the state of the facts was, that the plain- tijfs posts and rails were "wrongfully standing on the defendant's land : the general rule of pleading then necessarily applied, that as the defendant's answer was, that the articles were damage feasant on his soil, such answer should haver been specially pleaded. According to this view of , the decision, the question which might have been raised in this case, as to the legal conse- [*295] quence of annexing a ^personal chattel to the soil of another, is altogether untouched.(a) Trover. Trover lies for Where' fixturcs have been unlawfully severed from the free- fixturea severed . ^ _ -^ hold and carried away, an action of trover may be brought to recover their value. The mere act of severance, however, is not a sufficient ground for sustaining the action : there must be a sub- sequent asportation, or some unlawful assumption of property to make the conversion, which is the gist of the action. (J) Smata'anneMd^ ^^^ ^s trovcr is not maintainable except for the conversion of personal chattels, this action cannot be brought for the recovery of fixtures so long as they are annexed to and remain parcel of the realty. This rule is recognized by Lord HaTdwicke in the case Ex parte Qidncy.{c) And in Lee v. jRisdon,{d) Ch. J. Gibbs observes, that it never was heard of that trover could be brought by a tenant for his fixtures remaining unsevered at the expira- tion of his term. So, also, in the case of Davis v. Jones,{e) where it was held that trover would lie for certain jibs, which were de- tached pieces belonging to some fixed machinery, the ground upon which the action was sustained was, that these articles [ 29dJ might be considered, from *their nature and construction, to be (a) Upon this question, viz., tlie legal effect of the annexation of a personal chat- tel to the freehold of another person, see some curious decisions referred to in part 1, eh. 1, p. 12, et seq. ^ (6) Bac. Abr. Trover A. And see 2 Mod. '245 ; Bui. N. P. 44 b. See, aiao, Lyde V. Bwsell, 1 Ad. & Bl. 396 ; Longsiaffy. Meagoe, 2 A. & E. 16'7. (c) 1 Atk. 418. (d) 1 Ta,unt. 191. (e) 2 Bar. & Aid. 165. CHAP. I, SEC. in.] TROVER. 233 mere movable cliattels.(o) And Abbott, Ch. J., said, that if the jibs were to be considered as annexed and parcel of the freehold, then admitting that the plaintiffs might have removed them during the term, as being erections for the benefit of trade, yet they could not, after the term, maintain trover for them ; because the action of trover was maintainable in respect of personal chat- tels only. (6) The same principle governed the more recent decision of Min- shall V. Lloyd.(c) In this case trover was brought for certain steam engines, and other fixed machinery of a colliery. A lessee while in possession of the premises erected the machinery ; and having forfeited his interest during the term, the lessor ob- tained possession under a proviso for re-entry. Afterwards the machinery was seized under &fi. fa., a,t the suit of an execution creditor ; and trover was brought for it against the sheriff, by certain trustees claiming under an assignment made prior to the lessor's re-entry. The decision of the case turned xipon the prin- ciple that the right of the tenant having determined while the articles continued fixed, he could not maintain an action of trover for them as goods and chattels. So neither could a party claim- ing under him by the assignment recover in trover, as the ma- chinery was never goods and chattels at all, so as to pass to them ; and they had no greater right *than the tenant himself, [*297] which was only that of removing the property during the term. In confoi-mity with the same rule, and on the authority of the case last mentioned, it was holden, on a subsequent occasion, that even during the term a tenant cannot maintain trover for fixtures which, remained unsevered when the action was brought, (a) In the foregoing case of Minshall v. Lloyd, it was stated by (a) In 11 Yin. Ab. 154, Tit. Executors, it is said, that a granary built on pillars in Hampshire, is, by custom, a chattel which goes to the executors, and may be recov- ered in 1/rcmer. (b) And see 2 Bar. & Ores. '79 ; Cro. Jao. 129. See, also, the remarks of Lord Bl- lenborough in JBifrn v. Baker, 9 Bast. 231. (c),2 M. &"W. 450. (a) Mackintosh y. Trotter, 3 M. & W. 184. See, also, Lyde v. Russell, 1 B. & Ad. 394, in which case a tenant on quitting the premises left Ms fixtures, and although they were afterwards severed by the landlord, it was held that the tenant could not maintain trover for them. 234 REMEDIES, ETC. [PART II. Parke, B., that the decision of the case of Davis v. Jones pro- ceeded entirely on the ground above explained ; viz., that the jibs in question were not fixtures at all, but mere personal chat- tels. And a like distinction prevailed in a more recent case, that of Wansborough v. Maton.{b) There an action of trover was brought for a barn. This barn appeared to be a wooden build- ing, erected on a foundation of brick and stone ; the superstruc- ture of the barn rested by its own weight alone, upon certain stone staddels or blocks, and in part on a foundation of brick- work : both the stones and the brick foundation were let into the ground, but the barn was not attached to them either with mortar or otherwise. It was held that an action of trover would lie for a barn so constructed ; because not being united to the freehold it was not part of it, and no fixture at all. And the court said that the case was not distinguishable from that of B. V. Otley,{c) where such a building was considered to be no part of the tenement. [*298] *However, in trover, it will not be intended that the property wopeHy^' pre- in demand is connected with the freehold, unless that fact ex- S* °°* *° ^^ pressly appears.(a) Thus, where the declaration was that the plaintiff was possessed, ut de bonis propriis, of a portal with hinges, a hand mill, a lead, and a loashing vat, and lost them, &e. After verdict for the plaintiff, it was objected in arrest of judg- ment that these things appeared to be fixed to the house, and are as parcel thereof, and not accounted as goods ; for the portal is a door of a house ; and the handmill, and lead, and the wash- ing vat are always fixed things. Sed nan allocatur : for it is al- leged in the declaration, that the plaintiff was possessed of them, ut de propriis : and it may be, that these things were severed from the freehold and things lying by ; and it shall be so in- tended when the plaintiff so declares, and the contrary appears not to the court by any matter shown in the defendant's plea.(5) , (6) 4 Ad. & E. 884. (c) 1 B. & Ad. 161. See note (a) in the preceding page. (o) It wlU have been observed, that several of the most important early questions respecting fixtures, have, in fact, been determined in actions of trover ; as in the in- stance of the cider mm, before Ch. Bar. Comyns; the hangmgs and tapestry in Har- vey V. Harvey ; and the salt pans in Lawton v. Salmon. It does not distinctly ap- pear whether the property in these cases had been separated from the land before the commencement of the action. (6) Wood V. Smith, Cro. Jac. 129 ; Com. Dig. Action on the case. Trover, &. 1. See, also. Dyer, 108 ; 2 Ves. & Bea. 349. And see the principle upon which the OHAP. I. SEC. III.] TROTER 285 Nor does the term " &x.tnreB" in pleading, necessarily nieaiiTevm"flxtm-es" tilings affixed' to the freehold. For, where a declaration in tro- '° p'*"'^"'^- ver was for certain goods, chattels and fixtures, to wit, beds, &c., stoves, ranges, shelves, *grates, closets, cupboards and ovens, it L ■^""J was held that the term " fixtures" did not necessarily mean things affixed to the freehold, but might and should after verdict receive an interpretation which would support the declaration. And per Parke, B., " the objection is that the damages having been assessed generally on the whole record, the judgment ought to be arrested, on the ground that a part- of the subject matter of the action, viz., the fixtures, was such as could not be made the subject of an action of trover If it had clearly appeared that the plaintiff meant to sue in respect of " fixtures" properly so called — ^things affixed to the freehold — the declara- tion would be bad after the assessment of general damages. But after verdict we ought to make every reasonable intendment in favor of the declaration."(a) From the nature of the action of trover as thus applied to the ™^*'herr°the severance asportation are subject of fixtures, a question arises, whether this action could =^^^''''°''® ''°* be supported, if the severing and carrying away of the article is ™° oontimied one continued and entire act ? act. There does not appear to be any case in which this question has been discussed with reference to the doctrine of fixtures ; but it seems to have arisen incidentally in respect of the cutting down and carrying away of timber. In 2 EoUe's Ab. 119, tit. Masresme, it is laid down, that if lessee for life or years cuts tim- ber trees, and immediately barks them and carries them awayi yet they belong *to the lessor who has the inheritance : for they [*300] are parcel of the inheritance ; and the lessoj" may have trover and conversion for them, although he never seizes them before •the carrying them away, and that the lessee carried them away immediately after the felling and barking, so thai all was but one entire act. Between Berry and Heard, adjudged upon a special verdict in B. R. This case of Berry v. Heard is found in several' of the. books case ofMblei v. Smith, 4 T. R. 503, was decided, post, 309. As to the shelves in a house, that they shall be intended fixed, see 2 Bulst. 113 ; Cro. Jac. 329, S. G. So of racks in a stable, Anon., 2 Vent. 214. (a) Sheen v. Richie, 5 M. & "W. IIS. See Hallen v. Eimder, cit^i post, p. 310. 236 REMEDIES, ETC. [PART II. of reports, and is stated in a manner somewliat differently in eacli of tliem.(a) It established a principle wliicfL had been for a long time doubted, viz., that a landlord has such a possession of timber cut down during the continuance of a lease, that he could maintain trover for it ; because the lessee has only an interest in it while it was growing, and which determined the instant it was cut down. This was, in fact, the principal question raised in the case, and the observations of the court are for the most part applied to this point. It appears, however, from a reference to the case, that the court did also take into considera- tion the objection as to the cutting and carrying away of the trees being one continued act. For they advert to the rule of law, that in criminal cases such a taking would 'be no felony ; and, according to the report of the' case in Palmer, Mr. Just. Doddridge is said to have remarked, that in respect of the harldng of the tree, there must have been an interval between it and the cutting down of the tree.(Z)) [*301] *There is another case, Tidal v. Udal,{a) in which the same point arose, and which has been mentioned on a former occasion. In the discussion of that case, it is said to have been agreed by the court, that an action of trespass vi et armis would lie against a lessee for the taking and carrying away of trees, if the same he not as one continued act. The case itself was an action of trover ; and the effect of the decision, according to the note in Comyn's Digest, Biens, H., was, that a lessor may maintain trover for the harh of trees cut, although they are carried away or converted at the time of cutting, or afterwards. It is observable, that in the , judgment of this case, the above mentioned decision of Berry v. Heard was referred to by the court, and in terms which in sub- stance correspond with the abridgment of it given by EoUe. There is also a farther case, which may perhaps deserve to be noticed in reference to this subject. In Noy's Kep. 125, in the case of Sir Jos. Skidness v. Hibson, it was determined, that if a stranger enters my close and cuts my trees and carries them away, I may have trover, although that after the catting and be- fore the carrying away I could not 'claim them, and no actual ' (a) Palmer, 321 ; Sir W. Jonea, 255 ; Bend. 141 ; Cro. Car. 242. (6) And see per Houghton, J., in the same report, (a) Alyn. 82 ; Ante, p. 292. CHAP. 1. SEC. m.] TROVER 237 possession in me. The decision of this case, however, seems rather to turn ilpon the right of property in the trees, than upon the form of action, or the nature of the injury complained of.^ ' Since the determination of these early cases, the point does not appear to have been the subject of legal *discussion. It was, r*302] however, adverted to by the Court of Common Pleas on one oc- casion. For, in the case of Clark v. Calvert,{a) Chief J. Dallas is reported to have proposed the question, whether an action of trover could be maintained for trees cut down and carried away at the same time ? In criminal law, indeed, it is a clearly established rule that there must be an interval between the severance and removal of a thing to make the taking of it a felony.(J) But the principle upon which this rule proceeds in' criminal cases, seems, in some essential particulars, to be inapplicable to proceedings of a civil nature. Perhaps the subsequent detention of the article in a chattel state may be thought to amount to a conversion, for which an action of trover might be sustained. And at all events, a very short interval between the acts of severing and taking away the fixture, would be sufficient to remove an objection so very tech- nical in its nature. And, in practice, it may be found a useful precaution, to make a demand of the property previous to bring- ing the action, because a refusal after demand would probably be deemed evidence of a new conversion. The case of Wansborouqh v. Maton, which has been alreadv ^'''^* amounts •'to conversion. Cited, (c) though not strictly applicable as a case of fixtures affords an illustration of what will ,amount to a conversion so as to support this action. ' A tenant in that case, after the expira- tion of his term, *left a barn on the premises, which he was enti- [*303] titled to remove as not being attached to the freehold. He de-'' manded it afterwards of the landlord off the premises. The lat- ter refused to allow the removal ; and afterwards, when a suc- ceeding tenant was in possession, came thereon and prevented (a) 3 B. Moore, 101. And see Davis v. Connop, 1 Price, 53. (6) But see now the statutable provisions referred to in oh. 3, p,ost. (c) Supra, p. 106. 238 EEMEDIBS, ETC. [PAET H, the first tenant from entering to take the barn away. This was held to be a conversion so as to support an action of trover against the landlord.(a) In what cases trover lies for fixtures. With respect to the particular cases in which the action of trover may be resorted to as a mode of determining the right of property in fixtures, — it is only necessary to consider the gene- ral principles which govern this form of action, with reference to the interest of the plaintiff and the nature of the injury com- plained of. Thus, in the case of landlord and tenant, where cer- tain mill machinery had been demised with the mill for a term, and the tenant himself, without permission of his landlord, severed the machinery from the mill, which was afterwards seized and sold under an execution against the tenant, it was holden that the property in the machinery instantly vested in the landlord, when separated by the wrongful act of the tenant ; and, therefore, that the landlord was entitled to bring trover for it against the purchaser, even during the continuance of the tenant's term.(6) By landlord So v^hcrc a tenant a short time before his tenancy expired, in . against tenant , j l t for removing soil taking away a dung heap belonging to himself, dug into and [*S04] took away a quantity of the *virgin soil beneath, it was held at N. P., by Parke, B., that the landlord might maintain trover {or tresp. de bonis asp) for the removal of the earth. His Lordship was of opinion that by such wrongful act the soil became, by operation of law, the personal property of the landlord ; and was so completely revested in him as to enable him to maintain such action.(a) Or against the Again, in the case of Weeton v. Woodcock,^}) which has been Mt'f after°'ent?y already referred to for another point, and the facts of which case appear a?ife, p. 104, it was held that a landlord who had entered for a forfeiture of a lease, (wherein was a proviso that the term should cease on the bankruptcy of the tenant,) might recover in trover against the assignees of the tenant, who having, before the (ffi) 4 A. & B. 884. See Longsiaffy. Meagoe, 2 Ai & E. 166, as to what is not a conversion. See, also, Wood v. Smith, Cro. Jae. 129. (6) Farrant v. Thompson, 5 Bar. & Aid. 826 ; 3 Stark. C. N. P. 131. And see Berry v. Heard, ante, p. 300 ; 1 Price, 53. (o) Eiggon v. Mortimer, 6 Car. & P. 616. (6) 1 M. & W. 14. CHAP. I. SEC. III.] TROVER. 239 landlord's entry, taken possession under the bankruptcy, had afterward and while in possession, removed and sold a trade fixture. But if fixtures are wrongfully severed and removed by a third ^^l^^^fi^g 'h^ party, the tenant has during the term a suf&cient interest in them '^'^"'" to entitle him to maintain trover ; and this, even although at the end of the term he may be bound by the terms of the demise to • leave them for the use of the landlord.(c) And so, where a landlord under a distress for rent seized and severed certain fixtures and afterwards sold them, it was held that trover would lie by the tenant, and that the articles might be described in the *declaration as " goods and chattels." For [*305] the landlord could not wrongfully distrain and sever the fixtures, and then take advantage of such wrong, and defend the dis- tress by insisting that the plaintiff having (for the purposes of the action) treated the things as goods and chattels, had thereby waived the illegality of the distress.(a) But upon these subjects the reader is referred to the remarks is a concurrent m the preceding division respecting the action of trespass. And trespass, as an action of trover may be supported whenever trespass de bonis asportatis is maintainable, the observations which have been offered relaltive to the latter form of action, will suf&ciently point out by and against whom an action of trover may be main- tained for the tortious conversion of property after its severance from- the realty. The action of trover, however, is in some respects a more ex- tensive remedy than trespass, and is sometimes a preferable mode of proceeding in the case of fixtures. For example, where a sheriff had illegally taken in execution a furnace fixed to the land, and sold and delivered it to a third person, it was held that trespass cauld not be maintained against the latter, because he came to the possession without any fault on his part. (i) It is (c) BoydeU v. iPMichael, 1 C. M. & R. 111. And see Hitchman v. Walton, 4 M. & W. 409, 416. See, also, from this case, that the reversioner may, during the term, maintain trover for fixtures after they are wrongfully removed. (a) Dalion v. Whiitem, 3 Q. B. 961. See, also, Twiggy. Pdtts, 1 0. M. & R. 89. (fi) 2 Roll. Ab. Tresp. 556, pi. 50 ; Br. Ab. Tresp. pi. 48; Cro. Eliz. 374; 16 Hen. VII, fol. 3 ; 21 Hen. VII, fol. 39. And see 9 Price, 28'7. 240 REMEDIES, ETC. [PART II. presumed, however, that an action of trover would have been maintainable in this case ; at least after a demand and refusal.(c) [*306] *It will also frequently be found convenient in practice to adopt the action of trover, for the purpose of joining it with an action on the case in nature of waste, (a) ' Plea. According to the present rules of pleading, the general plea of Not Guilty, does not operate in denial of the plaintiff's title to the property :. this question caii now be raised only by a plea specially traversing it.(&) Actions founded upon Gontracl. tS'' to "Ti- Fixtures frequently become the subject of an action in form ex spect oi fixtures, contractu. For not only does the transfer and disposition of them arise, in general, out of the particular stipulations of parties, which can only be enforced in an action of this nature, but the right of property in them depends in numerous instances upon express or implied agreements by which the general law of fix- tures is modi#ed or controlled. mainutaabfeT' Thus, a tenant, by reason of the special terms of his lease, &c., may be restricted from removing articles which, by the general law of fixtures, he would be entitled to take away. So an in- jury committed by a tenant to things fixed to the freehold may, in some cases, be regarded as an untenantlike use of the demised [*307] property, which would amount to a breach of *an implied -con- tract under which the premises are held. And in like manner there are a variety of cases in which agreements are made be- tween landlords and tenants, respecting the purchase and valua- tion of fixtures at the beginning or end of a lease, and for which an action in form ex contractu is the proper remedy. (c) See a point as to the form of the demand for fixtures, in dlgroAie v. Dias San- tos, 2 Bar. & Ores. 11. See, also, LongstaffY. Meagoe, 2 Ad. & El. 166, sup. 303. (a) As in ffitchman v. Walton, 4 M. & W. 409. In this case it was held, that the mortgagee of a lease was entitled to declare in case as reversioner, and to recover in trover against the assignee of the tenant (who had become bankrupt) for the removal of fixtures: and this, although by the terms of the lease, all the fixtures were to be left for the landlord at the end of the term. See the case, ante, p. 232. (6) Id. ib. CHAP. I. SBC. in.] ASSUMPSIT, ETC. 241 Again, where things fixed to the freehold ha^e been tortiously removed and converted, the party in whom the property is vested may sometimes waive the tort in respect of the unlawful taking, and proceed for the value of the articles in an action of assump- sit. And it was upon this principle, that a compensation might be recovered m the case of waste committed by a testator in wrongfully severing articles a,ffixed to the freehold. For, if it can be shown that the personal estate has thereby received any benefit, his executor will be answerable to that extent in an ac- tion for money had and received.(a) With respect to the form of declaring in cases of this nature, Headings, it is to be observed, that wherever it is necessary in pleading to briescribed'' describe property existing in a state of union with the freehold, it ought not to be referred to in terms which are applicable to personalty merely. Thus, the value of fixtures sold cannot be recovered under a count for "goods" sold and delivered. This point was so ruled by Lord BUenborough in the Msi Prius case of Nutt V. Butler. (b) There, an out-going tenant had left on the premises *certain fixtures, consisting of grates and other fix:ed ar- r*'»n81 tides, which the defendant", the in -coming tenant^ Ead agreed to take and pay for. The plaintiff declared, in assumpsit,' for,, ■*■ -^ ^ ' ■*■ ' I rice of fixtures "aroods sold and delivered;-" and Lord EllenboroUgh held, that"^"' recoTeraWe ^ '■ ° ' as for goods sold. the price of the articles could not be recovered under this count, inasmuch as they did not come within the description of goods sold and delivered, being fixed to the freehold, and not a sepa- rate and undivided chattel. The same point was afterwards adjudged by the Court of Com- mon Pleas, in the case of Lee v. Risdon.(a) And on that occa- sion, Ch. J. Gibbs, in dehvering judgment, observed, that al- though such things might originally have been goods and chattels, yet when afiixed, they ceased to be so by becoming part of the freehold. And though it might be in the tenant's power to reduce them to the state of goods and, chattels again, by severing them during the term, yet until they were severed, they were parts of the freehold. (a) HamWy v. Trott, Cowp. 3'71. And see Cases and Opinions, Tol. II, p. 304. See now the provisions of the recent statute, mte, p. 2-76. (V) 5 Esp. N. P. c. i-re. (a) t Taunt 188 ; 2 Marsh. 496, S C. And see Saknon y. Watson, 4 Bay Moore, 73; EnowUs v. Micjid, 13 East, 248; Sorn v. Baker, 9 East, 215. 16 242 REMEDIES, ETC. [PAET H. The importance of attending to the distinction taken in these cases, as arising out of the peculiar nature of iixtures prior to an actual severance, is further shown by the following decision. In an action of replevin, the declaration was for taking goods and chattels, to wit, a lime kiln. To an avowry for rent arrear, there was a plea in bar that the lime kiln was affixed to the freehold : [*309] and it was held, that *the plea was inconsistent with th.e decla- ration, and a departure in pleading. For the court considered, that treating the lime kiln as a chattel would have been correct only if speaking of a movable thing, as a portable oven for ba- king lime. (a) The case of Pitt v. Shewih) seems, perhaps, in some degree to militate against the above decisions. It was held in that case, that under the words "goods, cJtattels, and effects " the plaintiff might recover in trespass for the value of fixtures which had been illegally distrained and sold by the defendant. [1] But it is probable- that the fixtures there in dispute had been severed from the freehold before the sale by the defendant. (c) It is how- ever, to be observed, that Chief J. Abbot does not appear to have relied upon this circumstance as the ground of decision ; for he is reported to have stated as a reason for his judgment, that fix- tures might be taken in execution under & fieri facias, which con- tains similar words, (d) However, notwithstanding this decision, it will not be correct in ordinary cases, or where the circumstances are not in every respect similar, to describe the property as goods and chattels, un- less the entire cause of action arises after a severance of the fix- (a) Mblet v. Smith, 4 T.^E. 504. And see JDalton v. Whiiiem, 3 Q, B. 961 ; ■ V. Poits, 1 Cr. M. & E. 93. (6) 4 Bar. & AM. 206 ; Ante, pages 240, 244, et seq. {c) This view of tlie case is approved by Parke, B., in HaUen v. Sunder, post. See, also, by the same judge, in T'wigg v. Poits, uh sup. (rf) And see 1 Bing. 6, where it was held that growing crops might, under certain circumstances, be considered as falling under the description of goods and chattels- See per Parke, B., in Marson v. Short, 2 Soott, 249. [1] By severance of a thing fixed to the freehold, it becomes personal property, for which replevin may be maintained. Gresson v. Stout, 11 John. 116 ; Reynolds v. Shuler, 5 Cowen, 323. CHAP, I. SBC. in.] ASSUMPSIT, ETC. 243 tures from the freehold. And no difficulty *will result in prac- [*310] tice from this rule, because the pleader will, in every ease of a contract executed, be safe if he adheres to the popular term of "fixtures."(a) Thus, in a late case, a tenant on entering a house purchased ^^"^'^j'^'"''*'" certain fixtures therein, and afterwards erected others, all of which he was entitled to remove during the term ; he agreed, at the request of his landlord, a few days before the expiration of his tenancy, to forbear to remove the fixtures, the landlord agree- • ing to take them at a valuation. Accordingly, at the expiration of the term, he delivered up the house to the landlord leaving the fixtures on the premises, and the landlord took possession of them, together with the house ; on the following day the fixtures were valued by brokers on each side, and the valuation was signed. In an action of indebitatus assumpsit by the. tenant for the price and value of ^^ fixtures™ bargained, and sold, and sold and delivered, it was held that the action was maintainable in this form, although the fixtures were never severed from the freehold. (5) It may, perhaps, be useful to mention, that besides the proper ro™ ot counts, description of fixtures in pleading as above noticed, it is fre- quently necessary to distinguish *the cases in which the plaintiff [*311] ought to declare in a special count, and when a general count will be sufficient. Thus, where a party had agreed, as in the case last mentioned, to take fixtures at a valuation, and a valua- tion has accordingly been made, there is no necessity for resort- ing to a special form of declaring. For it has been held, that the appraised value of fixtures may be recovered under the common count on the insimul computassent ; the valuation of the appraisers being in effect an ascertainment of the price by the parties them- selves, (a) . But, where there was an agreement between the (a) See Wick v. Hodgson, 12 B. Moore, 213. (6) Bcdlen v. Bwnder, 1 C. M. & R. 266. See, also, Mackintosh v. Trotter, 3 M. & "W. 184. And with these, compare the case of Sheen v. Bickie, cited above, p. 299, and Birch y. Dawson, 2 Ad. & E. 51. See, also, per Parke, B., in Otark v. Bulwer, 11 M. & W. 251. In the principal case, Lord Lyndhurst, C. B., and Bayley,.B., seem to draw a distinction between cases where the action is brought by the owner of the inheritance, and by a tenant. Bayley, B., also observed, that the sale effects a severance when the purchase is complete, but not before. (a) Salmon v. Watson, 4 Bay Moore, 13. 244 EBMEDIES, ETC. [PART II. plaintiff and the defendant, that the defendant should accept an assignment of a lease from the plaintiff, and should also take the fixtures, &c., at a valuation, and the fixtures were valued and possession given, but the lease was never assigned ; it was held, under Lord Bllenborough's direction, that in this case, indebitatus assumpsit would not lie for the price of the fixtures, but that the plaintiff should have declared upon the special agreement, the contract being entire.(6) In another case, where a contract was entered into "to build an engine for the sum of £ — ■ to be completed and fiaxd by the middle or end of December," and it appeared that the different parts of the engine were constructed at the plaintiff's manufac- tory, and sent in parts at different intervals to the defendant's colliery, a distance of twenty miles, where they were fixed piece- meal, and so made into an engine ; it was held that on the con- r*812] tract being executed, the price *agreed upon could not be recov- ered in indebitatus assumpsit " for the price and value of an en- gine, and other goods sold and delivered." For " the engine was not contracted for to be delivered, or delivered as an engine in its complete state, and afterwards affixed to the freehold ; — there was no sale of it as an entire chattel, and delivery in that char- acter, — and, therefore, it could not be treated as an engine sold and delivered. ISTor could the different parts of it which were used in the construction, and from time to time fixed to the free- hold, and therefore became part of it, be deemed goods sold and delivered, for there was no contract for the sale of them as mova- ble goods. The proper form of count is in indebitatus assumpsit^ for work, labor and materials, or for erecting and constructing an engine."(a) Where there was a written agreement to let apartments " at seventy -five guineas per annum : fixtures as follows," (enumera- ting them,) " the rent to commence at the time possession is taken." In assumpsit on this agreement for not giving posses- sion of the apartments, it was held that it was no variance that the declaration omitted to state that part of the agreement which (6) Neal v. Viney, 1 Camp. N. P. 0. 471. {a) Clark v. Bukver, 11 M. & W. 243. And see GoUeril v. Apsey, 6 Taunt. 322 ; Tripp V. Armitage, 4 M. & W. 68'7, cited in the principal case. See, also, Firmer v. ArruM, 2 Cr. M. & R. 613. CHAP. I. SBC. in.] ASSUMPSIT, ETC. 245 referred to the fixtures. For the gravamen of the action was the not giving possession of the apartments, and the fixtures were not the substance of the agreement. (6) *It will not be necessary on the present occasion, to enter more minutely into the rules and forms of pleading in these cases; because, except as regards the points already noticed, there does not appear to be any distinction between actions founded on contracts concerning fixtures, and such as relate to- any other subject matter of agreement. (6) W(wd T. Smith, 11 Price, 19; Vide Vaughan v. Bancock, 16 L. J. E. 0. P. 1. [*313| 24g REMEDIES, ETC. [PART II. [*314] *CHAPTER II. OP OTHER LEG-AL PROCEEDINGS IK RESPECT OP FIXTURES. Section I. On the Exemption of Fixtures from Distress. Section" II. On taking Fixtures under Legal Process. Section I. On the Fxemption of FixtMres from Distress. Things annexed Jt IS an' established rule of law, tliat things adherina; to the to the freehold ' o o not distrainabie. freehold cannot be taken under a distress, whether for rent, ser- vices, fines, or duties, &c.(a) And this rule holds, not merely in respect of such things as become, by annexation, parcel of the inheritance, and are not afterwards severable, but it applies to fixtures of whatever nature or construction, and whether put up for trade or for any other purpose. Ground of the The reasons for this exemption are thus explained by Chief Baron G-ilbert.'(5) " A distress was anciently no more than a pledge in the hands of the lord, to compel the tenant to pay the [*315] service, or *perform the duty for which it was taken ; and, there- fore, at common law, it could not be sold, but like all other pawns or pledges, was to be restored to the owner when the ser- vice or duty was performed, (o) The nature of contracting by pawns or pledges is, that upon payment of the money for security whereof they were given, the pawn or pledge ought to be re- stored to the owner in the same plight and condition it was de- livered." Afterwards, he observes, " whatever is part of the freehold cannot be distrained ; for what is part of the freehold cannot be severed from it without detriment to the thing itself (a) Quxre, as to a distress for poor's rates, or other similar demands which are in the nature of executions ? See 1 Burr. 588. (6) Gtilb. Dist. pages 34, 48. And see the reasons assigned in Simpson v. Sa/r- topp, ■Willes, 514 ; and Pitt v. Shew, 4Bar. & Aid. 201. (a) Upon the origin of the right of distress, and the principles by which it ought to he governed, see Pothier, Traiie du Gontrat de Louage, part 4, oh. 1. CHAP. 11. SEC. I.] DISTRESS. 247 in the removal ; consequently, tliat cannot be a pledge which cannot be restored in statu quo to the owner. Besides, what is fixed to the freehold is part of the thing demised ;' and the na- ture of the distress is not to resume part of the thing itself for the rent, but only the inducta et illata upon the soil or house."(5) The rule upon this subject is mentioned in very early author- ities. In the Year Book, 21 Hen. YII, c. 13, the court, in dis- cussing the right of the heir to take furnaces, fixed tables, the covering of beds, &c., treat such things as being clearly exempt from distress ; and a similar opinion is expressed in the Year Book, *21 Hen. YII, 26.(a) And, in conformity with these [*316] cases, Lord Coke lays it down generally, that furnaces, cauldrons, or the like, fixed to the freehold, cannot be distrained. (5) In- deed, all the authorities concur in stating this principle to be a part of the common law.(c)[l] And it is to be observed, that the privilege in these cases is Are absolutely absolute : for things fixed to the freehold cannot be 'distrained, even although there is no other distress upon the premises. In this respect, therefore, the privilege is of a higher nature than that in favor of instruments of trade and agriculture ; for these are only partially exempted, and are liable to be taken when* there is no other suffiLcient distress to be found.(c^) The same principle, it may also be remarked, extends to things g„ ^ ^-^^^^^ „„„. which are only constructively annexed to the freehold. For the nexea!™'^ '"" doors and windows of a house hanging only upon hooks, and which are movable, are not distrainable. And so of a mill stone, (6) "What is subsequently erected ia considered in law as part of the demised premises, and is said to be potentially demised ; and, therefore, an action of waste would lie against a lessee for not repairing a house erected by himself on the de- mised land, and the writ might be in domibus dimissis. Lord Darcy v. Askwith, Hob. 234 Upon this subject, see 1 Taunt. 151. And see Serj. Hill's MS. note in Vin. Abr. Waste, B. Line. Inn. Lib. (a) See, also, Br. Ab. Chattels, pi. 7 ; Distress, pi. 29. (J) Co. Litt 47 b. (c) Yid-e 1 Roll. Abr. Dist. H. 45 ; Com. Dig. Dist. 0. ; Davies v. Powell, 'Willee, 46; iSmpsora V. S(»-io?)p, WiUes, 514; Gorton Y.Falkner^ 4, T.'R. 567, 569; PitiY. Shew, 4 B. & A. 206. And see as to a lime kiln, Nibleti v. Smith, 4 T. R. 504. That a replevin does not lie for things afSxed to the freehold, see Bac. Ab. Re plevin, P. (d) Vide Simpson v. Eariopp, Willes, 514 ; Gorton v. Fallmer, 4 T. R. 569. [1] Reynolds v. Shwkr, 5 Cowen, 323. 248 REMEDIES, ETC. [PART II. whioii, though not annexed to the freehold, is yet essentially parcel of the mill.(e) forTtemp'S?Iry -^'^'^ i* is hcH, that evcn a temporary removal of such things ?-"STh-j for purposes of necessity, is not sufiicient *to destroy the privi- '- -• lege.[l] Thus, in the Year Book, 14 Hen. VIII, p. 25, it was adjudged, that if a mill stone is severed and lifted out of its place, in order to be picked, it is not distrainable ; for it still continues parcel of the mill, as it lies all the time on the other stone : and the removal is of necessity, and for the good of the commonwealth.(a) And it was further said, that it wovld be the same although the stone was detached and carried away for the purpose of picking.(6) Smith's anvu In the report of the last mentioned case a qucere is subjoined, Sinawe. '^"" whether the anvil of a smith would be free from distress. And Brooke, in his abridgment of the case, (Distress, pi. 23,) has the like qucere.[_2~} Chief Baron Gilbert, in alluding to this question, states ex- pressly, that the anvil would be protected ; for, he says, it is ac- counted part of the forge, though it be not actually fixed by nails to the shop. Lord Kenyon, however, referring to the same in- stance on a more modern occasion, appears to consider that the ancient authorities respecting the smith's anvil, proceeded upon the ground of its being affixed to the freehold. (e) (e) 14 Hen. Till, p. 25 ; Finch, book 2, p. 135 ; Ante, 218. Charters, &c., cannot be distrained ; for they are not chattels in law. Br. Ab. Dist. 29, Replevin, 34 ; Brownlow, 168. (a) And as to this, see Br. Ab. Dist. pi. 23 ; Finch, «6. sup. ; 11 Rep. 50 ; Gilb. Dist. 49 ; 6 Mod. 187. And Place v. Flagg, 4 M. & R. 21'?. (6) But if it is whoUy severed and removed from the mill, then it is not part of the mill, and is distrainable. Finch, ub. sup. And so, if a man has two mill stones, and one only is in use, and the other lies by, not used. Willes, 516. (c) Gorton v. Faliner, 4 T. R. 56Y. And see Comyn's Dig. Distress, C. So in Jollie and Broad's case, 1 RoUe, 202, 'where it is said that miE stones and anvils can- [1] Beynolds v. Slmkr, 5 Cowen, 323. [2] Suppose the anvil, the mill stones, &c., separated from the freehold not tem- porarily, for the purpose of repair, but permanently, for the purpose of being sold, and stiH remaining on the demised premises, would it not be Uable to be distrained. They would have ceased to be part of the freehold, or to savor of the realty, they would be simply personal chattels, and as such unquestionably hable to distress. Sutherland, J. Reynolds v. Shuhr, 5 Cowen, 323. CHAP. II. SEC. I.] DISTEESS. 249 *In a case before the Court of Exchequer,(a) it was argued [*318] upon one occasion, that the rule above laid down, of chattels an- nexed to the freehold being protected from distress, was not to be taken as a general rule, but was to be understood only of things which could not be restored to the owner in statu quo. And therefore, it was insisted that certain machinery put up in a factory by a tenant, which was fixed only by bolts and screws to the floor, might be distrained ; because it oovld be removed and replaced without sustaining any injury whatever. But it was answered, that the instance of the mill stone, above noticed, established a principle which admitted of no such exception ; for, in that case, the article might be taken away without detriment either to itself or the principal, thing. The determination of the case ultimately proceeded upon a different ground, and the point was not noticed in the judgment of the court.(5) And the strict rule of law, as it was laid down by the earlier authorities, has been adopted by the Court of Q. B., in a modern case. For it was there expressly held that tenant's fixtures, viz., kitchen ranges, stoves, coppers and grates, were not distrainable for rent. Moreover, the reason for the rule, as it has been above explained, was on that occasion declared by the court to be the correct one.(c) *It may perhaps deserve to be mentioned in this place, that r*319] the principles of the common law were so repugnant to any dis- Growing corn tress being levied upon the freehold itself, that even fructus industriales, as corn, grass and other things growing upon the soil, could not be distrained.(a) This, however, was altered by the Statute 11 G. II, ch. 19, sec. 8, as between landlord and tenant. For by that statute, landlords are enabled to distrain not be distrained, it is on the ground of their being instruments of trade. See Fwigg v. Foiis, as reported 3 Tyr. 969, where trespass was brought for seizing, under a distress for rent, fixtures, as anvils, bellows, Tioes, &c. ; the point, however, was not raised in this case. (a) Duck V. Braddyll, M'Cleland's Eep. 2lV ; 13 Prince, 455, 5'. 0. (6) See the remark of Lord Lyndhurst, C. B., in Trappes v. Sartor, 2 C. & M. 177, as to a stocking frame screwed to the floor. (c) Darby v. Harris, 1 Q. B. 895. And see Twigg v. Poiis, in the Exc. 1 Cr. M. & R. 89. See, also, Dalion v. Whittem, 3 Q. B. 961 ; where held, that if a landlord under a distress for rent severs fixtures and disposes of them, he is liable in trover. (a) 5 Ed. 2 pi. 135 ; 18 Ed. 3, 4 ; 2 Inst. 82 ; 1 Roll. Abr. 666 ; 2 Mod. 61 ; 4 Bar. & Aid. 208, per Abbot, C. J. 250 EXECUTION, ETC. [PART II. corn, grass, hops, &c., or otlier produce growing on the demised premises, for arrears of rent. The provisions, however, of this Nursery trees Statute have reccived a strict construction. For it has been de- is raina e. ^-^^ j^ ^-f^^^ ^^^^ apply Only to producc of a similar nature to that specified in the act: and, therefore, it was held that trees and shrubs growing in a nursery ground remain as at common law, and are not distrainable.(5) Under this head, one further case may perhaps deserve notice. It is in the instance of an action brought (under the Statute 4 Gr. II, ch. 28,) against a tenant holding over premises which had been let to him, together with the use of a fixed steam engine. A tenant took a room in a woollen factory together with a sup- ply of power by means of a shaft revolving in the room, and connected with a steam engine belonging to the landlord fixed up in another part of the mill. In an action for double value against the tenant for holding over the room, &c., it was held that in estimating such double value, the value of the power [*320] supplied from the engine was not to be ^included, although both were let together and the rent was entire. In the course of the argument in this case, it was observed by Parke, B., that the question seemed to be, whether the amount claimed could be recovered in the shape of rent by distress, (a) [*321] *SBCTION II. On seizing Fixtures under Legal Process. nSer'process?''* ^"^ scems to have been formerly considered that things annexed to the freehold were not liable to be taken in execution, like the movable goods and chattels of the debtor.(a) But this rule of law has given way to a more liberal construction in favor of (6) 8 Taunt. 431 ; 2 Bay M. 491. S. 0. A-cc. 8 Taunt. '?42 ; 3 Bay M-. 96, S. 0. (a) Eohinson v. Learoyd, 1 M. & "W. 48. ' (a) 20 Hen. Til, 13 ; 21 Hen. Til, 26 ; Day v. Auslin, Oro. EUz. 3'74; Owen, 10, /S. G. And see 1 Roll. Ab. Execution, 891 ; Com. Dig. Execution, 0. IT. ; Pro- cess, D. 6 ; G-llb. Exec. 19. Under tlie writ of attacliment in real actions, the sher- iff could only talf e the movable goods of the defendant, and not a chattel real, or a thing affixed to the freehold. Com. Dig. Process, D. 6 ; Tin. Abr. Attach, B. C. 2 Inst. 254. CHAP. II. sec; II] ■ EXECUTION, ETC. 251 creditors in modem times ; and for their benefit, fixtures are now considered to be so far in tbe nature of personal chattels, that in certain cases they may be seized and removed under a writ of fixri facias or other similar process. Thus it was holden, in Poolers case,{b) that articles put up by a tenant in relation to his trade, and which he was entitled to remove at the end of his term, might be seized in execution by a sheriff under a, fieri fitcias. And although this decision related to trade utensils, and a dis- tinction seems to have been taken by Lord Holt on this particu- lar ground, yet it is now generally understood that the rule is the same with respect to other fixtures, whether put up for orna- ment cff any other purpose, and that all are alike to be *considered r*3221 as goods and chattels for the benefit of execution creditors.(a) It is not, however, decided by any of the cases, that all articles and erections of whatever magnitude and construction, if put up by a tenant for trade or other privileged object, are liable to be 'seized in execution. Indeed, in the case of Steward v. Lombe,{b) Mr. Justice Burrough expressed himself of opinion, that such a structure as the mill which was then the subject of dispute, and which has been described in a former part of this work, could not be taken in execution, although it might be erected by, and was in the possession of a tenant. And it is to be observed, that it is only in the peculiar case of But not tilings fixtures, that the la-^r regards things attached to the realty as per- tul^'^of powers] sDnal chattels in favor of creditors. For the same privilege does not exist in respect of articles which are removable under powers appendant to estates, or by virtue of the private agreement of parties. And, therefore, it was observed by Lord Holt, in Poolers case above cited, that there was a difference between a common tenant and a tenant for years, without irnpeachment of (b) 1 Salt 368 ; 1 Brod. & Bing. 512. And see Syali v. Eolk, 1 Atk. IVO, 176. (a) So ruled in Plcice v. Fogg, 4 M. & E. ill. Andsee E. v. Topping, M'Cl. & T. 544. See, also, 5 Bar. & Mi. 625 ; 1 Stark. N. P. C. 43 ; 4 Bar. &, Aid. 201, per Ab- bot, Ch. J.; and per Parke, B., in MinshaU v. Lloyd, 2 M. & W. 459. In the case of Allen V. Alien, Moseley, 112, it seems admitted in argument, that marble chimney- pieces and glasses are ornaments every day taken down by tenants, and also upon executions. (6) 1 Brod. & Bing. 506. owner in fee. 252 EEMBDIES, ETC. [PAET H. waste ; for in the latter case, he said, that the sheriff could not cut down and sell, though the tenant himself might. [*323] *Moreover, it has been held that a sheriff is not allowed to take cess ^atoat'the in cxecution, articles which have been set up by the owner in fee upon his own freehold. In the case of Wynn v. Ingleby,{cC) a sheriff had, under a writ of fieri facias, seized certain fixed arti- cles, consisting of set pots, ovens and ranges ; and it appeared that the house to which they were attached, was the freehold of the person against whom the writ issued. The Court of King's Bench determined, that the articles in- question were not liable to be seized in execution. And they said that the freehold belong- ing to the party made it different from other cases, and that,~as against him, the articles could not be taken as goods and chat- tels. So, also, in the above mentioned case of Steward v. Lornbe, where a person seised in fee of land, with a windmill erected thereon, mortgaged the land and mill, it was holden that the mill could not be taken in execution by a creditor of the mort- gagor, although he continued in possession after the mortgage. ' The court, indeed, in this case, confined their attention principally to another point; but Mr. Justice Eichardson seemed to think that there might have been a difference if the mortgagor had, as tenant for years, erected the mill. Whether execu- The Same poiut was again ruled in the more recent case of aeizabie. Place V. Fagg.Q)) Nevertheless it does not appear to be satisfac- torily established by any of these cases, that articles erected by the ownet of the freehold can in no instance whatever, be taken p _^^ in execution *by virtue of a writ of fieri facias. The judgment of the court in the case of Wpin v. Ingleby, has indeed been sup- posed to have decided this point. But it is observable, that the court in that case, as well as in the case last referred to, assumed that the property in question would descend 'to the heir as an essential part of the freehold, and would not pass as personalty to the executors. The decisions, therefore, cannot perhaps be regarded as authorities for the exemption generally of fixtures which tenants for life, in tail, or even in fee, may set up, and (a) 5 Bar. & Aid. 625. (6) 4 Man. & Ry. 277. See, also, per Bayley, B., in Eallen v. Eunder, 1 Or. M. & E. 266 ; 3 Tyr. 960. CHAP. II. SEC. II.] EXECUTION, ETC. 253 ■which their executors -would be entitled to, as partaking of the nature of personalty, (a) It remains only to observe, in respect of another class of fixed wxed articles '',-'■ , demised, may be articles, viz., those which are demised to a tenant, together with '?i^en in execu- , . . JO tion. the premises to which they are attached, (as in the case of a brew- ery, &c., leased with the plant and machinery,) that the sheriff is authorized to seize and convey the lessee's interest in the fixed property, of whatever nature it may be ; although he cannot sell the articles as divided chattels in separation from the free- hold.(6) But if a tenant has wrongfully severed things which have been demised to him, together with the premises, *in this case the [*325] sheriff cannot afterwards take them under an execution against the tenant ; because the property when reduced into a chattel state, immediately vests in the landlord, even during the contin- uance of the tenant's term.(a) Where a sheriff has taken fixtures in execution together with when shens a lease of the premises to which they are attached, and is author- turea separately, ized to sever them from the freehold to satisfy the writ, he is bound to sell the fixtures separately, if he cannot find a purchaser for the whole.(5) It has been held that fixtures demised with a paper mill, and Not under an ex- nii • -i o o TIT *'^°* ^°^ duties, used by the tenant m the maniilacture of paper, are not liable to inder 84 g. m, be seized under an extent for duties to the crown, as " utensils" for the rnaking of paper, within the meaning of that term as used in the Stat. 34 Geo. Ill, ch. 20, sec. 27.(c) (ffi) Growing crops, which are fructus industriales, and go to the executor, are seiz- able in execution as goods and chattels. Gilb. Exec. 19 ; 1 Salk. 368 ; 2 Brod. & Bing. 368, per Richardson, J. As to which see Evans v. Roberts, 5 B. & C. 835, - 841. [1] As the right of seizing things attached to the realty seems to be closely connected with the right of removal under the law of fixtures, it may be useful, in determining questions of this description, to inquire into the nature of the power under which the party hiyiself might remove the articles in question. As to the dis- tinctions upon this subject, see ante, part 1, ch. 3, sec. 3. (6) See Ryall v. RoUe, 1 Atk. 165, et seq. ; "Wentw. Off. Ex. 61 ; citing Austin's case. See, also, Gordon v. Harpur, 1 T. B. 11, 12. (a) Farrami v. Thompson, 5 Bar. k Aid. 826. (6) Barnard v. Leigh, 1 Stark K P. C. 43. (c) Att. Gen. v. Gibbs, 3 Y. & J. 333. [1] Wheat growing is a chattel, and if raised upon the land of another by virtue of an agree- ment between him and the defendant, may be levied upon, and sold under an execution against the latter. Whipple v. Post, 2 Johns. 428 ; Steioart v. DougMy, 9 Johns. 108. 254 REMEDIES, ETC. [PABT II. [*326] *CHAP.TEIl III. OF CRIMINAL LAW IN ITS APPLICATION TO PROPERTY AFFIXED TO THE FREEHOLD : WHEREIN OF DEODANDS. sn^ect^'of'' i*a^- FIXTURES are not the subject of larceny at common law. For ceny, at common ^^ constitutc larcenj there must be a felonious taking and carry- ing away the personal goods of another ;(a) and fixtures, by reason of their adherence to the freehold, cannot be regarded as per- sonal goods. Accordingly, in the case of Lee y. Bisdon,{b) Chief Justice Gibbs, referring to this species of property, says — -"felony cannot be committed of these things ; for if a thief severs a copper, and instantly carries it off, it is no felony at common law." And he then adds, "if, indeed, he lets it remain after it is severed any time, then the removal of it becomes a felony, if he comes back and takes it ; and so of a tree which has been some time sev- ered."(c) This principle, that the taking of property fixed to the free- [ 327] hold, even though done aiiimo furand\ does*not amount to fel- ony unless an interval elapses between the severance and remo- val, has been recognized by all the writers upon criminal law.(a) It is thus explained by Sir William Blackstone in his Commen- taries.(6) " Lands, tenements and hereditaments, (either corpo- ' real or incorporeal,) cannot, in their nature, be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed by the rules of the common law ; but the (ffl) Vide Bract. Lib. 3, ch. 32 ; 3 Inst. W1. (6) 7 Taunt. 190. And see per Bayley, J., 2 Bar. & Ores. 80. (c) So, if a man cut and carry away corn at the same time, it is trespass only and not felony, because it is but one act ; but if he cut it and lay it by, and carry it away afterwards, it is felony. Per Hale, Ch. J., 1 Mod'. 89. But ia all these oases, a slight interval between the severance and removal wiU make the act a felony. That dung spread upon land is not the subject of felony, see Aleyn, 31. And see ante, p. 156. (a) Vide 3 Inst. 109; Hale's P. C. 510; Hawk, book 1, ch. 33, sec. 21 ; East, P. C. 587. And see Freem. 22 ; Aleyn, 83 ; Palm. 32t ; Str. 1134; Leach C. C. 587. (6) Vol. IV, p. 232. CHAP, m.] CRIMINAL liAW. 255 severance of them was, and in many things is still, merely a tres- pass ; which depended on a subtlety in the legal notions of our ancestors. These things were parcel of the real estate ; and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immovable. And if they were severed by violence so as to be changed into movables, and at the same time by one and the same continued act, carried off by the person who severed them, they, could never •be said to be taken from the proprietor, in this their newly ac- quired state of mobility, (which is essential to the nature of lar- ceny,) being never, as such, in the actual or 'constructive posses- sion of any one, but of him who committed the trespass. He could not, in strictness, be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods." *The reasoning contained in this passage may not, perhaps, be r*3281 deemed very satisfactory at the present day.(a) The rule itself, however, must be understood as the established rule of common law ; and it is applicable to every species of property annexed to land, except in certain cases which have since been made the subject of express legislative provision. But the principle that fixtures are to be deemed parcel of the Fixtures not con-, freehold, seems to have been relaxed in cases where it would the^ freehow, L operate to the prejudice of a prisoner. For it has been doubted' whether a press or cupboard, let into the walls of a house, is to be so far deemed a part of the house, as to make the breaking it open to be burglary, or an offence within the statutes relating to house-breaking. Sir Mich. Foster is of opinion that it ought not ; and he thinks, that in capital cases, such fixtures which merely supply the place of chests and other ordinary utensils of house- hold furniture, should, in favor em vitce, be considered in no other light than as mere movables, partaking of the nature of those utensils, and adapted to the same use.(6) There are, however, certain cases in which the legislature has Legislative pro- at different periods interfered to afford protection to property oSui^s'lc!'"' (a) Concerning the reasonableness of this rule of Criminal Law, see Hobbes' Dia- logue between a Pliilosopher and Student; Hobbes' Tracts, Vol. II, p. 118. (6) Post. C. C. 109. And see Hale, P. C. Vol. I,- p. 555 ; Vol. II, 355, 358; Bast, P. C. 489 ; Kelynge, 59, 69. 256 BEMBDIES, ETC. [PART n. fixed to the freeliold, where, from its nature, it would be partic- ularly exposed to theft or injury. The earlier enactments made with this view have been wholly repealed ; and other provisions, [*329] *having the same general object, but of a more comprehensive nature, have been introduced by the larcency act, 7 & 8 Geo. IV, ch. 29, and by other statutes passed at the same period. steaung fixed By scc. 44 of that statute, to steal, or rip, cut, or break with in- tent to steal, any glass or woodwork lelonging to any building whatsoever, (a) or any lead, iron, copper, brass, or other metal, or any utensil or fixture, whether made of metal or other mate- rial, respectively fixed to any building; (J) or anything made of metal fixed in any land, being private property, or for a fence to any dwelling-house, garden, or area, or in any square, street, or other place dedicated to public use or ornament,(c) is made fel- ony, and is punishable as directed in the act.((i) [' 330] *]3-y gee. 45, it is made felony for tenants, &c., to steal any fix- fe'r'rtth ^ou™ ti^i'es let to be used with any house or lodging. Stealing growing By SCC. 38, and followiug sections, it is made felony in certain ' ' ' cases, to steal, cut, &c., with intent to steal, growing trees, shrubs, fruit, plants, vegetable productions, (a) cultivated roots, &c. In (a) What is a.luilding within the act, see R. v. Worral, 7 Car. & P. 516. (6) See E. v. Gooch, 8 Car. & P. 293. An indictment for stealing a copper pipe fixed to the dwelHng-house of A. & B., is not supported by proof of steahng a pipe fixed to two rooms, of which A. & B. are separate tenants in the same house, 1 Mood. C. C. 418. (c) That a churchyard is a place dedicated to pubhc use, so that stealing brass fixed to a tombstone therein is within the statute, see E. v. Blick, 4 Car. & P. 3'7'Z. See, also, Beece's case, 2 Russ. by Greaves, 65 ; and a similar decision in Jone's case. 2 Russ. by Greaves, 66. [d) The repealed statutes which referred to certain of the offences above specified, were the 4 G. II, ch. 32, and 21 G. Ill, ch. 68 ; and as these were, in many respects, similar in terms with the recent statute, the eases which have been decided to be witliin them, may be usefuUy consulted ia questions on the latter statute. For these decisions, see Hickman's case, 1 Leach 0. G'. 318 ; Eex v. Parker, 1 Leach C. C. 320, in noiis; Senior's case, 1 Leach C. C. 496. And see Eex v. Eichards, and Eex V. Norris, Russell and Ryan's C. C. 28, 69. In Sedge's case, 1 Leach, 201, it was held that window-sashes, which were neither hung nor beaded in the frames, but only fastened to the frames by laths nailed across, were not fixed to the free- hold. But the late statute appears to comprehend aU cases of this description. (a) The words "plant or vegetable production," in the 42d sect, of the Statute 1 & 8 G. IV, ch. 29, do not include young fruit trees. Badge's case, M. & M. 341. CHAP. III.] CRIMINAI, LAW. 257 certain, however, of the like cases, the offence is made punish- able on summary conviction. And by sec. 40, of the same act, provision is made against the ^™=«3> s^'^^. . offences of cutting, stealing, cutting, breaking, or throwing down with intent to steal, any part of any live or dead fence, or any wooden post, p9,le, or raU, &o., or any stUe or gate, &c. Again, by sec. 37, the stealing the ores of any rffetal, &c., or coals, ores, ooais, 4e„ &o., from any mine, bed, &c., is declared to be felony.(6) In like manner, with respect to malicious injuries committed to Malicious inju- fixtures, or to private property of a like description, provision is &r '° *'''""^°'' made by the Stat.-7 & 8 G. IV, ch. 30. For by sec. 3 of that stat- ute, the maliciously cutting, &c., or damaging silk and other ap- ticles (as specified) in the loom, or on any machine or engine, &c. ; or cutting, &c., any loom,, frame, machine, engine, &c. ; or any implement, whether fixed or movable, employed in manu- facturing the above goods, is declared to be felony. *Also, by sec. 4, it is made felony unlawfully and maliciously r*3311 to cut, break, or destroy, &6.f any threshing machine, or any ma- to machinery, chine or engine, whether fixed or movable, employed in any*"' manufacture whatever, (except such as are provided for in the foregoing section.)(a) Again, by sec. 7, of the same statute, provision is made against in mines, the like mischief committed in mines ; and it is thereby made felony maliciously to pull down or destroy, or damage with in- tent, &c., any steam engine, or other engine for working, &c., ' mines ; or any staith, building, or erection used, &c., in a mine ;(5) or any bridge, wagon-way, or trunk for conveying minerals from a mine. (6) For a decision on this section of the act respecting mines, see R. v. Webb, 1 Mood. C. 0. 431. The Stat. 2 & 3 Tict, eh. 58, sec. 10, provides specially for the case of mines in Cornwall, and the taking away of the ore and minerals therefrom by the workmen. (a) The destruction of a part of a threshing machine which has been taken to pieces and separated, is within the statute ; B. v. Maoka/rell, 4 Car. & P. 448. An^ see further upon the construction of this statute, B. v. Bartlelt, and B. v. Ghub, 2 Dea. C. L. ISlt ; B. v. West, Id. 1518; B. v. Fidler, 4 Car. & P. 449. (6) What is an erection used in conducting the business of a mine, see Beg. v. Whitlmgham, 9 Car. & P. 234. And for other points upon the stat., see S. 0., & if. V. Norris, 9 Car. & P. 241., 17 258 REMEDIES, ETC. [PAET 11. ehinwy &c "by ^o, witli regard to offences committed against property of this wies"* ^'^™" nature, by riotous assemblies of persons : — By the statute 7 & 8 G. TV, ch. 30, sec. 8, the demolishing or pulling down by persons riotously assembled, of mills, &c., or any machinery, whether [*332] fixed or movable, (c) employed in any manufacture ;(tZ) *or any steam engine, or other engines for mines ; or any bridge, wagon- way, or trunk for conveying minerals from mines, as in the act specified, is declared to be a capital felony.(a) thThundref"'' ^7 ^^*^- 7 & 8 Gr. IV, ch. 31, a remedy is given against the hundred for injuries of this description.(J) Deodands. The peculiar nature' which personal chattels acquire by reason of their annexation to the realty, gave rise formerly to some nice questions connected with the subject 6f deodands. And although this curious branch of law may, perhaps, henceforth be rather matter of study for the antiquarian than the practical lawyer, (singe deodands have recently been entirely abolished by the legislature,)(c) still it seems proper not to pass wholly unnoticed the few striking cases upon this subject which are to be found in the books ; inasmuch as they throw a light on the principles out of which the general law of fixtures has grown up, and serve to (c) "Undir a previous statute against this offence, (52 G. m, ch. 130,) it was de- cided that the engines intended "by that act, were such powerM engines connected with tlie soil, as are analogous to erections or buildings. And, therefore, a frame for manufacturing lace- work, fixed to tlie floor for the mere purpose of keeping it steady, and removable from one part of the room to another, was held not to be within that statute. Orgell v. SmUh, 6 M. & S. 182. The determination whether the machinery destroyed was part of the works belonging to the mill, or was inde- pendent of it, was held to be a question for the decision of the jury. 1 Price, 343. {d) By Statute 2 & 3 Wm. IV, ch. V2, the provisions of this statute are extended to threshing machines. (a) The punishment for these offences is altered by Statute 4 & 5 Tict, ch. 56, sec. 2, explained by 6 & 1 Vic, oh. 10. (6) By the police act, 2 & 3 Vic, ch. 41, penalty on summary conviction is awarjied hi the case of wilful damage to any part of a building in any thoroughfare or public place, or to any wall, fence, &c, or any fixture or appendage thereto ; or to any tree, shrub, or seat in any public walk, park, or garden, committed within the limits of the metropolitan police districts. And in ch. 11, sec. 38, of 2 & 3 Vict., there is a provision for wilful damage to premises and furniture by tenants, &c., within the same hmits. (c) See the Statute 9 & 10 Vict, ch. 62. CHAP, in.] DEODANDS. 259 explain the nature of this species of property in its strict relation to land. The ancient authorities laid it down, that if, in *case of misad- , [*333] venture, the death of a mam was occasioned by means of a thing af&xed to the freehold, it was liable to be forfeited to the king as a deodand in the same manner as any movable chattel.- But, J^°nl^a^ed. "^ according to later opinions, it was considered that there could not be a deodand in such a case, unless the thing was actually separated from the freehold before the accident happened. . Thus, in the Axminster parish case,{a) a man ringing a bell in ^^r'^^i,'!^" " " a church was drawn up and strangled by 'the rope. Two jus- tices, Hide, Ch. J., and Windham, J., were of opinion, that the bell was not forfeited, because parcel of the freehold ; but the other two justices, semb. contra.{b) The case was adjourned, and was not afterwards moved.(c) However, in the discussion of this case, it was said, that if a '^ "J"" "' *'"^' door or gate is forced, per vim venti, *against a man and kills [ ooi] him, that it shall not be. deodand. Quod fuit concessum per Cur. (a) In like manner, it is said to have been held by Clench and windmiu. Fenner, Justices, that the sail of a windmill, which causes a (a) 1 gid. 207 ; 1 Lev. 136, S. G. ; 1 Kob. V23, 14,5, S. G. ; Sir. T. Ray, 97, S. P. and aeems to be S. G. And see Rex v. Wheeler, 6 Mod. 187, per Roll, Ch. J. See, also, Norffv. Gaiickay, Dyer, foL T8, in notis. (6) In Woodwa/rdv. Mackpeth,. Gomh. 132, it'is said that churoli bells are chattels not fixed to the freehold, though the frames are. See 1 Salk. 164 ; Ante, 205, m notis. If a person hang a beU in the steeple, it becomes church property. 2 Salk. 571. (c) Another argument urged against the forfeiture in the Axminster case, was that the bell had already been dedicated to God. This argument is founded on the ex- planation given of a deodand by some of the old writers ; viz., "athing given or rather forfeited to God for the pacification of his wrath, where any Christian man came to a violent end without the fault of any reasonable creature ; which- thing so given to God was to be sold and distributed to the poor by the king's almoner, for an expia- tion for that dreadful event." Fleie says, the price is to be distributed to the poor for the soul of the king, his ancestors, and all faithful people departed this life. Lib. 1, ch. 25. Other ancient authorities consider it a payment for the purchase of pro- pitiatory masses for the soul of the deceased, and, therefore, originally, belonging to the church, though afterwards vested in the king as a forfeiture. 2 Inst. 281. "While others again state it to belong to the crown by conunou right, to be distributed in pious uses, ' ' (a) 2 Rolle, 23. 260 EEMBDIES, ETC. [PART II. death by striking against a man, cannot be a deodand.(6) And Clench, J., held, that the linen of the sail was liable to forfeiture ; which Fenner denied, because it participated of the nature of the sail itself. A mill stone, 4c. g^^ accordiug to a more modern case, a mill stone, or the wheel of a forge or mill, which occasions a death, cannot be accounted a deodand.(c) A tree. ^j^^j gQ ^ ^j,gg^ ^q^ scvcred, but which is blown by the wind against another, (i) fhta^^'is first *- On the other hand, if the thing was severed from the freehold vered. bcfore causing the death, then it was liable to forfeiture. fioae fautas.""" Thus if a bell fell from a steeple, or a mill stone fell from the mill, and killed any one in its descent, then it would hare been forfeited as a deodand ; because it was a chattel from the mo- . ment of its severance, (e) Or a jack-weight. _^^^ g^ -f ^ jack- Weight fell and killed a man, the weight would be forfeited, but not the jack which moved it.(g') [*335] And, in like manner, if a mass of earth was *separated from Or earth falling, the soil, and in falling crushed a man.(/i.) Or trees cut, 4c. g^^ j^|. ^^^ -^^ felling a tree gave notice to the bystanders, but nevertheless the tree, in its fall, killed one, the tree was for- feited.(a) And so, where a tree was blown against another, and a branch of the latter was thereby broken off, and in falling, killed a man, it was said that there should be a deodand of the branch. And, (6) 1 Sid. 207. (c) 6 Mod. 187 ; Sir T. Ray. 97 ; 3 Inat. 57, Keb. 745. See 1 Salk. 220, per Pol- lexfen, Ch. J., in tlie case of the Lord of the Manor of Hampstead. See, also, Pinch B, 3, ch. 18. {d) 1 Sid. 207. And see 1 Salk. 220 ; Hale's P. C. 420 ; CoweU's Diet. tit. Deo- dand. (e) 1 Keb. 723; Sir T. Ray. 97. (g) 1 Sid. 207, arg. (h) 1 Sid. 207 ; 1 Keb. 745. (a) Coke's Copyholder, 45. CHAP, ni.] DEODANDS. • 261 9,ccording to some authorities, both the tree and the branch should be forfeited.(6) The above instances will suffice to show the strict application of the general principle of the common law to the subject of deo- dands. Should the reader be desirous of pursuing the subject further, he is referred to the following authorities, where will be found some curious points and distinctions arising out of the pe- culiar character of things connected with the realty. Bract. Lib. 3, tract 2, cap. 5; Britt. cap. 17 ; West's Symb. Indict, sec. 49; Staund. Cor. Lib. 1, ch. 12 ; Coke's Copyholder, 46, 47 ; Nels. Lex Man. Tit. Deodand, 96. For more modern authorities, he may consult 1 Hale P. C. 420; 1 Hawk. ch. 26; Com. Dig. Waife, E, 2 ; 2 Bac. Ab. 898 ; 7 Vin. Ab. 535 ; Fost. on Homi- cide, Disc. 2, ch. 1. (6) Staundf. Lib. 1, ch. 12. In a late case, where a death was occasioned by the explosion of a steam engine boiler, a question was made whether both engine and boiler were deodand. Beg. v. Brownlow, 11 Ad.& E. 119. By the Statute 3 & 4 "W. IT, ch. 99, sec. 29, ei sect., provision was made for the more effectually levying of deodauds by the crown. APPENDIX. APPENDIX: CONTAINma A SUMMAET OP PRACTICAL RULES AND DIRECTIONS RELATING TO PIXTURBS BETWEEN LANDLORD AND TENANT. No. I. General Rules respecting Fixtures between Landlord and Tenant; pointing out what Fixtures a Tenant may take away ; the Time ivi^in which they may he removed, &c., &c. I. A TENANT may take away certain things which, he has himself affixed to the premises for the purposes of his trade and manufacture. This rule may be illustrated hy the following examples, which are to be met with in decided cases. Vessels and utensUs of trade, such as furnaces, coppers, brew- ing vessels, fixed vats, salt pans, tables, partitions, and the like. (1 Salk. 368 ; 3 Atk. 13 ; Amb. 113 ; 1 Hen. Black. 259 ; 3 East, 56 ; Bui. K P. 34: 6 Bing. K C. 439.) Machinery in breweries, collieries, mills, &c. ; as steam engines, cider mills, and the like. (3 Atk. 12 ; Amb. 114 ; Bui. K P. 34 ; 3 Bast, 53 ; 3 Esp. K P. C. 11 ; 2 Bar. & Aid. 165.) Also certain buildings for trade, such as a varnish-house ; at least if they arp built on plates laid on brick- work. (2 East, 88.) Seej?os<, p. 345. And so, sheds or buildings called dutch barns, formed of up- rights rising from a foundation of brick- work. (3 Esp. N. P. C. 11 ; but see 3 East, p. 47, 55, 56.)[1] [1] Ante, pages 34, 40, note. 266 APPENDIX. [*340] *By reference to these particular instances, the tenant must be guided as to his right to remove the ordinary articles which he puts up in the course of his trade, (a) But it has not been established in the courts of law that a ten- ant may remove substantial and extensive additions to the prem- ises, although he may have built them exclusively for the con- venience of his trade : such as lime kilns, pottery or brick kilns ; • wind or water mills; (6) or workshops, store-houses, and other buildings of that description. [1] JSTor, iadeed, is it satisfactorily laid down, that trade erections even of a less substantial nature than these, are in all cases removable by a tenant. Cases, there- fore, of this description, wUl be subject to considerable doubt, ' whenever the removal of the property would much, deteriorate the freehold to which it is attached ; or where the structure and subsl^ance of the thing itself will be destroyed in taking it away. (12 CI. & Fin. 312.) In questions respecting the right to remove erections of this description, the reader must refer to the observations in the con- cluding part of the 1st section of chap. 2, part 1. If, however, a building is merely an accessary to the principal thing, such as an engine-house built to protect a removable steam engine ; in such a case it seems the tenant would be al- lowed to remove the accessarial building. (3 Atk. 12 ; 3 E. 55.) II. Besides trade fixtures, a tenant may also remove certain fixtures which he has put up at- his own expense /or the ornament and furniture of his house. (a) The following may be cited among the numerous examples of erections which ordinarily occur in practice, and which seem to be of the nature of trade fixtures ; the plant of a brewer, distiller, &c. ; pumps, engines, cisterns, cranes, forges, presses, &c. ; shop-fittings, such as counters, desks, drawers, shelves, partitions, glass fronts, gas pipes, &c., iron safes, closets or repositories, reservoirs ; with other things of the same description, as usually erected in manufactories, shops, or ware-houses, for the convenience of trade. * (6) With respect to kilns, see 4 T. R. 504 ; 2 Bar. and Cress. 608. As to wind- mills, see 4 Leon. 241 ; 6 T. R. SIT ; 8 T. R. sn ; 1 Brod. & Bing. 506 ; 1 B. & Ad- 161 : 4 Ad. & E. 884. [1] A tenant may remove buildings of this description, although not erected for the purposes of trade exclusively. Van Ness v. Facard, 2 Peters, 137. LANDLORD AND TENANT. 267 ,*An(i Tinder tHis class of fixtures, certain articles are conipre- [*341] • hended which are not strictly of an ornamental nature, but which are set up by the tenant for ordinary domestic use and convenience. Of the first class, the following examples are found in the au- thorities :■ — ■ Hangings, tapestry, and pier-glasses, nailed to the walls or panels of a house ; and even, as it is said, where they are put up in lieu of wainscot ; marble, or other ornamental chimneypieces; wooden cornices ; marble slabs ; window blinds ; wainscot fixed to the walls by screws, and the like. ( 2 Freem. 249 ; Moseley, 112 ; 1 P. Wms. 94 ; Str. 1141 ; 3 Atk. 12 ; Am'b. 113 ; 1 Hen. Black. 260 ; 2 Saund. 259, n. 11 ; 3 East, 53 ; 7 Taunt. 191 ; 2 Brod. & Bing. 58; 1 Bar. & Ores. 77 ; 7 Car. & P. 3815 ; 2 Ad. &E. 37.) 3 Ad. & E. 75.(a) But articles of this description can be removed only where they are so attached to the premises, as not to have become part of the substance and fabric of the house. For it appears that a tenant cannot remove an article, though put up for ornament, if he has so substantially united it to the house, that it would ma- terially impair the freehold by removing it. So neither will he be allowed to take away Erections which may be considered as permanent additions or improvements to the estate. The right of removal in each case must depend on its own particular cir- cumstance. (3 Esp. C. ]Sr. P. 11 ; 2 Br. & B. 58.) Thus it has been held, that he is not entitled to pull . down a conservatory built on a brick foundation, and which is intimately connected with the dwelling-house. (2 Brod & Bing. 54; 4 B. Moore, 440 ; 2 Stark. N. P. C. 403 ; 16 Law J. R. Exc. 61.) *Nor even a pinery erected on brick-work, although built in [*342] a garden and detached from the house itself (Id. ibid.) And see the same cases as to a veranda. ISTor brick pillars built on a dairy floor to hold the pans. (7 Car. & P. 328.) (a) As to ohimneypieoes and -wajiiscots, see the notes, pages 85, 81. Some of the cases referred to were not decided between landlord and tenant ; but it has been shown, in the former part of the treatise, that they may be considered authorities as between these parties. 268 APPENDIX. With respect to the second class of fixtures, viz., those put up by a tenant for ordinary use and convenience, the following articles may be enumerated ; and they are the only instances to be met with in the legal authorities : — Grates, ranges and stoves fixed in brick- work ; iron backs to chimneys; beds fastened to the ceiling ; bookcases; bells; fixed tables ; furnaces, coppers ; pumps ; iron fences and hurdles ; mash tubs, and water tubs fixed ; cofPee mills, malt mills, &c. ; jacks; cupboards fixed with holdfasts; clock cases; iron ovens: and the like : all these are removable by a tenant. (Year Books, 8 Hen. VII, 12 ; 20 Hen. VII, 13 ; 21 Hen. VII, 26 ; Cro. EKz. 374 ; 2 Freem. 249 ; Str. 1141 ; 1 Atk. 477 ; 6 T. E. 379 ; 7 Taunt. 191 ; 5 Bar. & Aid. 625 ; 1 Bar. & Cress. 77 ; 4 Bar. & Cress. 686; 1 B. & Ad. 394; 6 Bing. 437; 2 Ad. & E. 37; 8 Ad. & E. 75 ; Burn. Ecc. Law, 301.) But with respect to these fixtures also, it is particularly to be observed, that they must be so affixed and connected with the premises as to occasion but little damage in their removal ; other- wise the tenant will not be allowed to take them away. (9 Bing. 24 ; 3 Sim. 450 ; 3 A. & E. 75 ; 13 M. & W. 174.)(a) III. A tenant in husbandry has not the same privilege as a tenant in trade. For he cannot take away things which he has affixed to the demised premises at his own expense for purposes which are merely agricultural. [*343] *Thus it has been held, that a tenant cannot remove a beast- house, carpenter shop, fuel-house, cart-house, pump-house, or fold yard wall, erected for the use of his farm, even though he leaves the premises exactly in the same state as he found them on his entry. .(3 Bast, 38.) This rule, however, is confined to articles of a strictly agricul- tural nature. For, if the object and purpose of an erection has also relation to a trade of any description, the tenant may take it (a) The following examples are of frequent occurrence in practice ; and although there has been no legal decision respecting them, they seem to be of the same na- ture as the instances mentioned in the text; shelves, cabinets, &o., planned and fitted ; dressers, presses, bins ; fixed cisterns and sinks ; iron chests ; turret and other clocks ; lamps ; and other articles of similar nature and construction. LANDLORD AND TENANT. 269 away, notwitlistandiiig it is the means or instrument of obtaining the profits of land : subject, however, to the former observations as to the extent and character of the addition. Thus, a tenant may take away a mill for making cider; or machinery for working mines and collieries; or, as it would seem, utensils set up for manufacturing salt from springs upon the demised premises. (3 Atk. 12 ; Amb. 113 ; Bui. N. P. 34 ; 1 H. Bl. 259, n.) Fixtures of this description belong to a class of cases which have been denominated mixed cases. With respect to the right of removing them, the reader is referred to sec. 3, oh. 2, part 1 ; as'the questions to which they give rise are sometimes attended with much difficulty. IV. A nurseryman or gardener is legally entitled, before the end of his term, to remove and dispose of the young trees, shrubs, &c., which he has planted for the purpose of sale. (2 Bast, 91 ; 7 Taunt. 191 ; 4Taunt. 316.) And fruit trees, also, though of full bearing age, if they are nursery trees such as he might fairly deal with in his trade. (3 Scott's N. E. 508.) f It has been held, however, that he cannot, at the close of his term, plough up strawberry beds in full bearing, without having any reasonable object in view. (1 Camp. IST. P. C. 227.) It is not satisfactorily determined that a gardener or nursery- man is allowed to take down hot-houses, green-houses, forcing- pits, &c., which he has built during his tenancy. (2 *East, 90 ; 3 [*344] East, 45, 56 ; 2 Brod. & Bing. 58.) And refer to part 1, ch. 2, . sec. 3. But a private person is not at liberty to sell and remove young fruit trees, shrubs, &c., planted by himself, not in the way of trade. (4 Taunt. 316.) . Nor even a border of box : nor flowers. (4 Bar. & Ad. 65.) As to a tenant's property in hedges, bushes, pollards, &c., see pages 69, 291, of the text. 270 APPENDIX. V. A tenant must remove his fixtures before the expiration of his tenancy ; for he is not at liberty to insist on his claim after- wards. (1 Salk. 368 ; 1 Atk. 477 ; Amb. 113 ; 7 Taunt. 191 ; IB. &C. 79; IB. & Ad. 894; 7 M. &W. 14; 2M.&W.450; 1 0. M. & R. 275.) This must be considered as the rule in general cases. But if . a tenant continues in possession of the premises after the end of his term (although against the will of his landlord,) it seems that he may be entitled during his continuing occupation, to re- move the fixtures which, he had previously neglected to take away. But even in this case he may be liable to an action at the suit . of his landlord, for being wrongfully on the premises after his tenancy has expired. (2 East, 88.) As to this, see part 1, ch. 2, sec. '5. If, however, the interest which the tenant has in the demised premises is uncertain, as, if he is tenant strictly at will, or tenant pour auter vie, &c., in this case he will, in general, be allowed a reasonable time to remove his fixtures after the actual determi- nation of his tenancy. The several rules laid down in the foregoing pages, are alike applicable, whether the tenant holds by lease under seal, or by parol demise. With respect also to the description of fixtures which a tenant is authorized to remove as against his landlord, there is no distinction whether the party is lessee for life, for years, or merely tenant from year to year, &;c. [*345] *^I- But in applying these rules to practice, it should be ob- served, that the rights both of landlord and tenant, in respect of " fixtures, are frequently varied and controlled by the express terms of the demise, or by the circumstances under which the tenancy was originall}'' created. Thus, if a tenant covenants, to repair the demised premises and all erections, &c., built, or that may be afterwards built thereon, such a covenant will prevent the tenant from taking down an erection put up by himself, even although it was intended for the LANDLORD AND TENANT. 271 purpose of trade, and migM have'been remoTed but for tlie cov- enant in question. (1 Taunt. 19 ; 2 Stark. C. N. P. 403 ; 2 Barn. & Ores. 608 ; M'El. & Y. 544 ; 9 Bing. 24 ; 6 Bing. N. C. 426 ; 8 Sim. 450; 13 M. & W. 174.) And, therefore, before a tenant severs an article from tbe free- hold, it is necessary that he should examine his claim, not only with reference to the general law of fixtures, but also as it may be affected by any covenant or stipulation, express or implied, in his lease, &c. (See ante, part 1, chap. 2, sec. 6.) So, if a tenant, at the expiration of his term, is desirous of re- newing it, or if he enters into any fresh agreement respecting the premises, he should be careful to make a stipulation as to his fixtures ; otherwise, by making such fresh engagement, he may lose his property in them altogether. (2 B. & 0. 608 ; 1 H. Bl. 258.) VII. A tenant may so put up machinery, or so construct an erection or building, that it will not be considered to be af&xed to the freehold in contemplation of law. And then, whatever its purpose may be, and however substantial it is in itself, the landlord will have no right to it at the end of the term. For, unless a thing is absolutely attached to the realty, by being let into the ground, or united to the freehold by means of naUs, screws, bolts, mortar, or the like, the law regards it as a mere loose and movable chattel. Thus, if a tenant erects a barn, granary, stable, or any other building, upon blocks, rollers, staddles, stilts, or pillars, *the [*346] landlord is not entitled to it as a part of his freehold. (3 Bast, 55 ; 1 H. Bl. 259 ; 3 Esp. K P. 0. 11 ; 1 Taunt. 20 ; 11 Vin. Ab. 154; Bui. K P. 34 ; 4 B. & C. 884.) So, a varnish-house, laid upon a wooden plate resting on brick- work, the quarters being mortised into the plate, is a chattel, and removable by the tenant. (4 Esp. N. P. 0. 33 ; 2 East, 88 ; 4 Ad. & B. 884.) So,, a post windmill ; at least if laid on cross traces not at- tached to the ground. (6 T. E. 377 ; and sae 1 Bred. & Sing. 272 APPENDIX. 506 ; 4 Leon. 241 ; 8 T. E. 377 ; 1 Bar. & Ad. 161 ) 4 Ad. & E. 884.) So, vessels or utensils supported on brick-work, frames, or horses standing on tlie ground. (9 East, 215.) And the like, of machinery let into caps or steps of timber ; and even, as it seems, although fastened by pins. (2 Bar. & Aid. 165.) By adopting, therefore, these or other similar modes of con- struction, a tenant may not only make valuable additions to his premises with perfect safety, but also avoid the effect of a cove- nant in his lease respecting the repair of buildings, &c., erected by himself after the commencement of the term. (See 1 Taunt. 19 ; 2 Bar. & Aid. 165.) It will frequently be found a great security to tenants, and may avoid litigation, to have special clauses inserted in their leases, &c., as to the disposal of their fixtures at the end of their term. It may be provided by these clauses, that the tenant shall be allowed to remove his fixtures within a reasonable time after the end of his term ; or that he may leave them on the premises to be valued to an in-coming tenant ; or that the landlord shall take them at an appraisement to be made in a manner specified. ■ And these provisions are particularly recommended, where the tenant intends to make considerable improvements and additions to the premises ; or where his fi:^tures are, from the nature of' his occupation, of a valuable description, as in collieries, brew- r*3471 eries, &c. ; or where they are in any manner connected *with the produce and profits of land, as in the instance, particularly, of farm leases, (a) (a) The following precedents are inserted with a view of showing generally the nature of the provisions here recommended. Proviso in the Lease of a Colliery, for re-valuing Fixtures to the Landlord at the End of the Term. It is provided, that at the expiration or other sooner determiaation of the present demise, the said A. B. (the tenant) shall and wiU leave and yield up unto the said C. D., (the landlord,) his heirs, &c., all and singular the engines, gins, machines, rail- roads, machinery, effects and things belonging to and used in the said ooUieries or coal- works; and that an inventory and valuation shall, three months previous there- LANDLORD AND TENANT. 273 to, be made and taken by two indifferent persons, to be for that purpose appointed by the said A. B. and 0. D., or their representatives, or by an umpire to be ap- pointed by the two referees, in case they shall differ about the same ; and such in- ventory and valuation shall thereupons.be compared with the present inventory and valuation ; and in case the amount thereof shall fall short of the amount of the pres- ent valuation, the difference shall be paid by the said A. B. uijto the said C. D., his heirs, &o., on demand ; but in case the amount of the inventory and valuation, to be taken as aforesaid, on the expiration or other sooner determination of the demise, shall exceed the amount of the present inventory or valuation, then the said C. D., his heirs, &c., shall pay unto the said A. B., his executors, &c., the difference in value thereof, within three months from the time of such valuation being made. See' 2 Bar. & Cres. 369 ; 6 M, & "W. e'lB ; 3 B. & Aid. 804 ; 9 E. 215. Demise of Premises for a Nwrsery ground, with Liberty to remove Trees, &c. To have and to hold the said' close to the Said A. B., as tenant thereof to the said C. D., from year to year, as long as they, the said A. B. and C. D., shall respectively please ; the said close to be holden as and for a nursery ground, with the power and liberty of planting and raising thereon, and of removiug from time to time and taking away, such trees and plants as shall or may, at any time during the said demise, be planted or raised by the said A. B., his &o., on the said nursery ground, in the way of his trade and business as a nurseryman, intended to be carried on upon the said demised premises. See 3 Bay Moore, 99. A similar proviso should be inserted in respect of green-houses and other like erections ; and so of frames, pits, stoves, sheds, &o. ^Provision in the same that the Landlord sJiall take the Threes by Appraisement at the r*3481 ■Ifnd of (he Term. And ifis provided, that at the end or expiration, or other sooner determination «f the said demise, a fair valuation and appraisement shall be made by two indiffer- ent persons, (one to be chosen by each of the said parties to the said indenture, or their respective executors, administrators or assigns,) of all and every the fruit trees and bushes that shall be then standing 'and growing, and which shall have been. planted and set by the said A. B., (the tenant,) his executors, administrators, or as- signs, upon the said demised premises, and that he, the said A. B., his executors, admiaistratdrs, or assigns, shall yield and deliver up the same trees and bushes to the said CD., (the landlord,) his executors, admiaiatrators, or assigns, at the value or appraisement thereof to be made and fixed as aforesaid ; and the said 0. D., his executors, or administrators, shall and will, well and truly pay, or cause to be paid, to the said A. B., his executors, administrators, or assigns, immediately after such valuation or appraisement shall be made by two indifferent. persons as aforesaid, all such sum or sums of money for such trees and bushes, as the same trees and bushes shall be valued and appraised at. See 2 Chitty's Rep. 482, Special Provisions respecting Fixtwes, in a Crown Lease of Mines. It shall and may be lawful to and for the said A. B., (the lessee,) and his, &c., to remove and carry away all and every the engines, machines, and fixed materials in, upon, about, or belonging to the said quarries, works and premises respectively, of any of them, together with all tools, implements, stores, matters and things whatso- 18 274 APPBNBIX. ever, Nvhich at any time during the said term hereby granted, shall by the said A. B., his executors, administrators and assigns, or any of them, have been brought upon, kept or used, in, upon, or withia the same quarries, works, or premises, or any part thereof, doing as little damage to the said premises as may be. FRO- VIDED NEVERTHELESS, that if the commissioners for the time being of Her Majesty's woods, forests and land revenues, or the Surveyor-General for the time being of her Majesty's land revenue, or her Majesty's agent or agents for the time being of the said premises, by the direction of the said commissioners or Surveyor- General, shall give or deliver vmto the said A. B., his executors, administrators and assigns, or any of them, or to his or their agent or agents for the time being, at the said quarries, works, or premises, or cause to be left at or upon the same premises, or some part thereof; three calendar months at the least, before the expiration or other sooner determination of the said term hereby granted, notice in writing, signi- fying that the said engines, machiaes and materials, or any of them, in, upon, about, r*3491 °^ belonging tq *the said respective quarries, works and premises, or any part there- of respectively, will be taken for the use of her Majesty, her heirs and successors, at a fair valuation ; that then and in such case, the same shall be respectively valued by two indifferent persons, one of such persons to be named and appointed by the said commissioners or Surveyor-General- for the time being, and the other of such persons to be named and appointed by the said A. B., his executors, administrators, or assigns ; and that, upon the said A. B., his executors, administrators, or assigns, being paid according to such valuation for all and every such engines, machines and materials, as shall be so proposed to be taken as aforesaid, the same and every of them shall be accordingly left by the said A. B., his executors, administrators, or assigns, in and upon the said respective quarries, works and premises, for the use of her Majesty, her heirs and successors : anything herein contained to the contrary thereof in anywise notwithstanding. LANDLORD AND TENANT. 275 »No.II.' [*350] Miscellaneous Rules and Directions respecting the Demise, Purchase, ValvMion, &c., of Fixtures, letween Landlord and Tenant, and between Out-going and In-coming Tenants. Upon" the demise of a house, &c., it is usually agreed between the landlord and the tenant, that " by which the following duties are imposed upon every valuation or appraisement of any estate or effects, real or personal, &c. ; or of the annual value thereof ; or of any dilapidations ; or of any repairs wanted ; or of the materials, &c., except, &c. ; viz., where the amount of such appraisement or valuation does not exceed £50, a duty of 2s. and Qd. ; where it Qxceeds £50, but does not exceed £100, a duty of 5s. ; where it exceeds £100, and does not exceed £200, a duty of 10s. ; where it exceeds £200, and does not exceed £500, a duty of 15s. ; and where it exceeds £500, a duty of 20s. Where nothing but the mere value of fixtures is referred to appraisers, for the purpose of ascertaining the amount due be- tween two parties, it- is suificient that the written valuation has an appraisement stamp ; and an award stamp is not necessary. (12 East, 1; 2 Chit. Kep. 399.) And where a valuation is made merely for the information of parties and to guide their judgment, and is not intended to be binding upon them, a stamp on the appraisement is not neces- sary, although the vendee agrees afterwards to pay a price accord- ing to the valuation. (5 M. & S. 240 ; 2 Or. & M. 361.) An inventory of fixtures, appraised and signed by brokers whom the landlord and tenant appoint for the purpose, will en- able the landlord to recover the price of them, as upon an ac- count stated, without giving further evidence of the contract for the sale of the articles, or of their value. (4 B. Moore, 73.) *And it would seem, that where fixtures are purchased and [*358 possession delivered of them upon such an inventory and ap- 282 APPENDIX praisement, it amounts to a part performance, sufficient in equity to take an agreement for the sale of premises out of the Statute of Frauds. (4 Ves. 91.) For further information upon the appraisement -of fixtures, refer to chap. 5, of part 1, page 254, 256. INDEX. Tlie paging corresponds with that of the latest London edMion, which is tote fovmd on the ma/rgin. ABANDONMENT, of fixtures by tenant, what amounts to, 95, 106, {n. 1,) 62. when negatived, 99, 105. , ACCESSARY BUILDINGS, &o., what so considered, 41, 131. when removable, 41, 115. general rules respecting, 41, 88 (ra.), 131, 165, 1'75, 180, 334. ACCOUNT, in equity, for waste, 284. stated, price of fixtures when recoverable under, 311. ACTION. See tit. Bemedies. ADMINISTRATOR. See tit. Executor. AGREEMENTS, between landlord and tenant, how affecting the right, to fixtures, 108, et seq. between out-going and in-coming tenants, 222. Appendix, 353. , executory, for putting up fixtures, 257, 311. by parol, for removing fixtures, not valid where a covenant exists, 113. for a fresh demise, may prevent the removal. 111, 118. for taking lease and fixtures, an entire contract, 311, 312. relating to fixtures, whether within Statute of Frauds, 252. stamps on, 255, 256. Appendix, 351. see tit. Sale, Contracts, Covenant. AGRICULTURAL ERECTIONS, are not removable, 50, but see (n. 1,) 136; {n. 1,) 62, 181. decisions respecting, examined, 5f . decisions modifying the general rule, (ra. 1,) 20. see tit. Barns. American doctrine and policy in respect thereof, (n. 1,) 62, 136, 181. ALIENO SOLO, annexations made in, 11, 292, 294. when a right of entering, 11, 94. AMERICA, law of, relating to fixtures. See the Introduction.- ANNEXATION, of chattels to the freehold, general rule of law respecting, 19, (». 1,) 181. legal effect of, 9, 19, 214, 258. 284 INDEX. ANNEXATION-^coMtoKeA ■when made by a stranger to the soil of another, 9, 12, 292, 294. mode of, by nails, bolts, screws, &a, 5, 6, 74, 80, 86, 87, 184. by mortar, 5, 163. See tit. Mortar. if not complete, the property considered a mere chattel, 3, 6 (n.\ 43. and a covenant to repair does not attach, 120 (re.) examples of imperfect annexation, 3, et seq. 215, 268, 329 (n.) right of removal depends on the mode of, 44, 81, 92. constructive, description oi; 6, 181, 217, 228, 246, 262 («.), 316, 334. And see tit. Freeliold. ANVILS, whether they pass to the executor as against the heir, 155. whether exempt from distress, 155, 317 («.), 171. APPRAISEMENT OF FIXTURES. Appendix, No. III. effect of, with reference to the Statute of Frauds, 254. evidence of an account stated, 311. stamps on, 257-357. And see tit. Valuation. APPRAISERS, directions to, as to valuing fixtures, 221. Appendix, 350, 354. ARMORIAL TROPHIES, &c., in churches, right of the heir to, 203. ASSETS, personal, fixtures, when. considered, 124, 137, 152, 182. when liable for waste of testator, 276, 307. emblements considered as, 206. See tit. Executor, Em-. ASSIGNEES of bankrupt, fixtures do not to pass to, 234. as goods and chattels, 234 nor as in bankrupt's order and disposition, 239. whether put up by tenant or by owner in fee, 244. . may claim fixtures together with bankrupt's lease, 239. removal of fixtures by, whether an acceptance of a lease, 239. claims of mortgagees against, 233. And see tit. Banlmi/pt. ASSIGNEE of lease, entitled to things aflSxed if not expressly excepted, 222. what he must pay for, when fixtures to be valued, 221. directions to, with respect to fixtures. Appendix, 351, 355.' ASSUMPSIT, action of, for price of fixtures, in what cases maintainable, 306. price of fixtures not recoverable in, as for " goods sold," 307. recoverable, as for "fixtures" sold, 310. when recoverable, on an acoouftt stated, 311. on demise of house together with fixtures, 312. on contract for making and putting upmaehiaery, 311. pleadings in, fixed property how to be described, 307. when necessary to declare specially in, 311. when maintainable for waste of a testator, 307. ATTACHMENT, in real actions, fixtures not seizable under, 321. ATTESTATION, of will devising fixtures, 251. INDEX. 285 B BANKRUPTS, ataiutes relating to, as affecting fixtures, 233. fixtures in possession ol^ do not pass to assignees, 234. as goods and chattels, 234. nor as in reputed ownership, 239. especially if consistent with usage of trade, 242. decisions relating to,~ in the bankruptcy courts, 244. leases to, what amounts to acceptance of by assignees, 239. See tit. Assignees of Bankrupt. BANKRUPTCT, of tenant, effect of in regard to fixtures, 239, 242. See tit. Bankrupts. BARaAIN and sale, of fixtures, form of. Appendix, 353. BARK MILLS, personal property, necessary to business of personal nature, {n. 1,) 6. BARNS, not removable, 51, 59. if built on blocks, rollers, staddles, &o., removable, 3, 5, 6, 43, 119, 297, (»•!,) 62. Dutch, when removable, 31, 54, 59. BEAST-HOUSE, not removable, 50. BEDS, fixed, 15, 182. BEES, in hives, whether they pass with the inheritance, 200. BELLOWS, of blacksmith, whether liable to distress, 3lT. BELLS, removable, 16. in churches, considered parcel of freehold, 205, 333. ^ property of, in whom vested, lb. not forfeitable as deodands, 333. origin of, 205 (».) BENCHES. fixe'd, formerly passed with the inheritance, 12, 182, 189. BEQUEST, of furniture, whether fixtures included in, 248, 250. or of household goods, 249. > or of household stuff, 82 (n.) or of things in nature of personal estate, 160. of "household furniture" in leasehold house, will pass fixtures, 250. for charitable uses, will pass fixtures, 248. of emblements, right of legatee under, 212. See tit. Devise. BILLIARD TABLE, fixed, poor's rate in respect of, 253. BISHOP, chapel of^ fixed ornaments in, 196. injunction against, for waste, 288. prohibition against, for waste, 288 {n.) hounds belonging to, pass to the crown, 201 (n.) BLINDS, removable by tenant, 16, 185, {n. 1,) 181. whether part of personal estate, 185. 286 INDEX. BLOCKS, • buildings on, removable, 3, 6 («.), 29Y. BOLTS, annexation by, 8"?, 231, 241. BOLTING- APPARATUS, of mills, (n.l,) 155, 161. BOOKCASES, fixed to wall, removable by tenants, 76, {n. 1,) 181. BOX, edgings, in gardens, tenant may not remove, 70. for charters, when belonging to heir, 190. is not the subject of larceny at common law, 190 (n.) BREW-HOUSES, fixtures in, removable, 35, 126, 154, 159, 185. plant, and pipes of, 35, 223. lease of, with utensils, tenant's interest in, 223. sale or mortgage of, passes the fixed utensils, 214, 219, 225. unless a contrary intention appears, 218, 225. BRIDGE, built alieno solo, property in materials of, 292. BRICK-WORK, grates, &c., set in, removable by tenants, 76. BROKERS, valuation of fixtures by, directions to. See tit. Appraisers. BUILDINGS, for trade, whether removable, 41, 42, 116, 172, (n. 1,) 340. for mere agricultural purposes, not removable, 55. placed on blocks, rollers, &o., removable, 5, 37, 38, 39, 43, 179, 266, 268, («. 1,) 136. covenant to repair does not attach to, 120 (n.) do not pass to heir as parcel of the inheritance, 180. See Accessa/ry Buildings. BUSHES, tenant's right to, 69 (n.) are parcel of the inheritance, 206. waste to destroy, 69 (n.) See tit. Pollards. c CALICO WORKS, machinery in, removable by tenants, 161. CARDING MACHINE, fixed to bouse, liable to poor's rate, 259. and spinning machinery for tow, flax, cotton, &o., as personal property, when movable without injury to freehold, (n. 1,) 6. CARPENTER'S SHOP, on farm, not removable, 50. CARPETS, tacked to floor, whether " fixed furniture," 87, 260 (n.) CART-HOUSE, on farm, not removable, 50. CASE, action of, for wrongful removal of fixtures, 275. founded on injury to the reversion, lb. substituted for writ of waste, lb. , by and against whom maintainable, 276. by mortgagee, 306 («.) for ecclesiastical dilapidations, 148. INDEX. 287 CASE, action of) — continued. whether it lies for permissive waste, 218 [n.) whether maintainable where a special covenant exists, 277. OATTLDRONS, fixed, not the subject of distress, 316. CHAPEL, of bishop, fixed ornaments in, 146, 196. CHARITABLE USES, fixtures pass under a bequest for, 248. CHARTERS, of laud, pass with the inheritance, 189. unless relating to personalty, 191. are not distrainable, 190 (k.) nor the subject of larceny at common law, lb. chest containing, whether it belongs to the heir, 190. CHATTELS, fixtures not considered as, 10, 103, 234, 296, 307, 308, except in favor of creditors, 321. become realty by annexation to land, 9, 103, 308. when annexed, pass by conveyance with the land, 214, etseq. in what cases they pass with the inheritance, 155, 180, 189, et seq. in the nature of heir-looms, see tit. Heir-looms, tnaj be limited as heir-looms, 197. when placed alienoaoh, properly accruing, 14, 102 {n.), 292, 294. CHIMNEY BACKS, removable, 74, 138, 146, 185. CHIMNEY-GLASSES. See tit. Glasses. CHIMNEY-PIECES, when removable, 73, 76, 87, 187, 249, 322{n.), {n. 1,) 136. do not pass as " furniture" in a will, 248. whether they pass when testator had a chattel interest, 250. CHURCH, freehold of, in whom, 204 {n. things annexed to, property in, 202. armor, pennons, Sec, hung in, whose property, 195. njouruing, hung in, whose property, 204. scaffolding erected in, on public occasions, whose property, lb, pews and seats fixed in, whose property, lb. materials of, when severed, lb. bells of, 205. organ of, Jb. monuments erected in, property in, 203. vaults, tablets, &e., privilege of erecting in, 203 (n.) CHURCHYARD, the freehold of parson, 204. trees growing in, property of, 206 (n.) tombstones in, stealing from, 329 (n.) CHURCHWARDENS, property of, in things fixed to church, 204, 205. may sue for trespass in the time of their predecessors, 205. CIDER MILLS, removable as between landlord and tenant, 36, 54, 64, 128, 159, 161, (n.l,) 36, 64, 136, whether personal estate, between heir and executor, 36, 158, 162, 166, 174. decisions relating to, examined, 166, 167, 171, 174. nature and description of, 61 (n.), 172, 176 (m.) CITIL LAW, rules of, as applied to fixtures, 16 («.) And see the Introduction. CLOCK CASES, 187. 288 INDBX. CLOOES, fixed, will not pass as " household, furniture'' in a will, 249. CLOSETS, removable by tenants, 16 (n.), 87 (n.), 286. And see tit. Cupboards. OLOVEE, whether the subject of emblements, 209. COAT ARMOR, hung in churches, descends as an heir-loom, 195, 203. action for defacing, wlio may bring, 203. COFFEE MILLS, 76 (n.) COPElir, to whom it belongs after burial, 204, COLLAR OF S. S., descends aa an heir-loom, 195. COLLIERIES, machinery and fixtures in, removable by tenants, &c., 34, 64, 103, 124, 160. are not personal estate between executor and lieir, 168. are liable to be rated, 260. do not pass to tlie assignees in bankruptcy, 235, 242. worlsing of, a species of trade, 54, 64, 129. leases of, with the machinery, tenant's interest in, 223. provisions relating to, 223. Appendix, 347. stealing or destroying machinery of, 331. CONDUITS, pass by grant, &c., of house, 218 (a) co:nskrvatory, attached to liouse, not removable, 177. And see tit. Greenhouses. CONSTRUCTION, of fixed articles, how affecting the right of removal, 81, 84, 85, 87, 92. CONSTRUCTIVE ANNEXATION, nature of, 6 (re.), 181, 218, 228, 246, 316. See tit. Annexation. CONTRACTS, of parties, may control the general law of fixtures, 108, 116, 119, 120. as by covenant to repair, 109, 111, et seq. by agreeing to a valuation, 221, 311, 312. for falsing lease and fixtures, nature of tenant's interest, 108 [n.), 223. when an entire contract, 311, 312, 253 (n.) > for making and putting up machinery, 311. between vendor and vendee, see tit. Sak. for sale of fixtures, whether witliin the Statute of Frauds, 252. stamps on, 256. Appendix, 351. See tit. Agreements, Sale, Covenant. CONVERSION, in trover, what amounts to, 303. CONVEYANCE, of fixtures, sec tit. Sale. COPPERS, in brew-houses, &c., removable by tenants, Ac, 40, 76, 125, {n. 1,) 40, 136. CORN, growing. See tit. Einhlements and Crops. CORNAGE, tenure by, 196. CORNICES, ornamental, removable by tenants, 80. INDEX. 289 COTTON GIN, (n. 1,) 181, 214 COTTON MILLS, machinery and fixtures o^ do not pass to assignees of bankrupts, 241. COVENANT, may control the general law of fixtures, 108, et seq. as by a covenant to repair, 109. by an agreement for valuation, 221, 311, 312. parol license to remove fixtures, not effectual against, 113 (n.) to repair, whether it extends to things not actually fixed, 120. whether it bars an action for waste, 277. to settle a house, and things afiSxed, construction of, 247. COSTS, in waste, by Statute of Gloucester, 273. by Stat. 8 & 9 "Wm. Ill, o. 11, lb. CRIMINAL LAW, application of, to fixtures, 326. fixtures when considered personal chattels, infavorem vita, 328. See tit. Fdony. CROPS, growing. See tit. Emblements. (See n. 1,) 207, 253. may be seized in execution, 324 (n.) are not subject to distress at common law, 319. made liable to distress, by 1 1 G. II, a 19, lb. not the subject of felony at common law, 327. larceny of, by statute, 330. when considered goods and chattels, 309, («. 1,) 207. belong to survivor of joint tenants, 212, (n. 1,) 207. contract for sale of, whether within the Statute of Frauds, 254, (n. 1,) 253. CROWN JEWELS, considered heir-looms, 195. assured inseparably to the crown by James I, 196 (n.) sold by order of Charles I, lb. CUPBOARDS, removable by tenants, 76 ( n.), 186, 288. not burglary to break into, 328. house improved by, may confer a settlement, 264. CURTESY, tenant by, liable for waste at common law, 271. right of, to fixtures, 143. CUSTOM, effect of, with regard to fixtures, 26, 45, 92, 112, 122, 167, 169, 179, 237, 242, 251 (».), 296 (a), 237, 251 (n. 1), 45, 181, 213. how far evidence of the nature and character of fixtures, 45, 121, 237, 243, 356. whether it has the same effect as express contract, 121. evidence of, at Nisi Prius, 45. of London, to erect scaffolding on adjoining land, 13. to remove utensils after tenant's term,. void, 102 (n.) is the foundation of the right to heir-looms, 192, 194. of trade. See tit. Usage. D DAIRY, brick pillars in, whether removable, 56 (n.), 82 {n. 1,) 67. DAMAGE, to freehold, by removing fixtures, 83. See tit. Injury. DEEDS, pass with the inheritance, 189. See tit Charters. 19 290 INDEX, DBBE, in legal parka, pas3 with the inheritance, 199. unless testator had a chattel interest enly, 201. or if they are tame, 201. waste to destroy the stock of, 200. DEMAND, of fixtures, when necessary, 302, 303, 305. DEMISE, of house, passes the fixtures if not excepted, 221. of premises with fixed articles, tenant's interest in, 111, 112, 118 (a), 223, 303, is an entire contract, 311, 312. acceptance of, does not imply an agreement to pay for the fixtures, 224. terms of, may vary the tenant's right to fixtures, 108, 119. renewal of, may affect the tenant's right under a previous demise, 111, whether agreement for is within the Statute of Frauds, 253 (n.) Stipulations in, as to valuing fixtures. See tit. Valuation. DEODANDS, origin of, 333 («.) law of, as formerly applied to fixed property, 332. things fixed were not the subject of; Jb. otherwise, if severed before the accident, 334. application of the old rule to particular eases, 333, now abolished by statute, 332. DEVISE, fixtures may be the subject of, 245. of land, when it passes things annexed, 246. of house, passes the incidents, 246. of mill, passes the stones although severed, 248. of land, passes emblements, unless otherwise bequeathed, 212. of fixtures, how they are to be described in, 248, et seq. of heir-looms, apart from the land, when void, 198. of chattels, limited as heir-looms, 197. to charitable uses, passes fixtures, 248. of fixtures, whether attestation formerly required, 251. construction of, inferred from unity of occupation, 251. DETISEE, of house, land, &c., his right to fixtures, 245, 251. aa against the executor, lb. as against the heir, 244. whether right of, the same as that of the heir, 246. is entitled to emblements against the executor, 212, 247. See tit. Devise. DILAPIDATIONS, legal doctrine of, 147. application to fixtures, 145. remedy for by action, for and against whom, 148, et seq. other remedies for, 148, 287. may be a cause of deprivation, 148 (n.) DISTILLERIES, fixtures in, when removable, 4, 234, (n. 1,) 136. DISTRESS, things fixed to freehold not liable to, 314. nor things constructively affixed, 316. though temporarily removed, 317. charters, not the subject of, 316 («.) growing crops not the subject of, except by statute, 319*. trees in nursery grounds not the subject of, lb. for double value under Stat. 4 G. IV, c. 28, 320. DOMESTIC FURNITURE, fixtures for, removable, 83, 137, 187. INDEX. 291 DOMESTIC FViWllVRK—Oontrnmed. principle and extent of the rule, lb. See tit. Ornamental Fixtures. DOORS, considered part of the freehold, 154, 218, 2'71. are not distrainable, 316 ; but see {n. 1,) 31Y. nor forfeitable as deodanda, 333. outer and inner, distinction formerly made between, 86 (n.) hanging upon hooks, hinges, &o., 11, 15, 218, 316. DOVECOTES, waste to destroy, 286. DOWER, tenant in, liable for waste, 211. right of, to fixtures, 143, (». 1,) 136. DRESSERS, 8T (n.) DUNG, when spread on land, belongs to the inheritance, 156 (n.) when in a heap, considered personalty, 136. in removing, tenant must not carry away the soil, 303. when spread, not felony to carry away, 326. See Manure, and see note 1, 136, 156, 181. DUTCH BARNS, removable by tenants, 37, "54. DYER'S VESSELS, removable by tenants, 23, (n. 1,) 40. whether personal estate as against the heir, 153, 164, 155. B EARTH, falling, deodand in respect of, 334. tenants may not carry away, in removing dung, 303. ECCLESIASTICAL PERSONS, considered tenants for life In respect of waste, 148. their right to fixtures, 145. within what time they must remove them, 146. dilapidations by, remedy in case of, 148, 281. by prohibition, 287. by injunction, 288. extent of their liability to repair, 150, 206 («.) See Parsons, Bishops, Emblements, DilapidaMons. EFFIGIES, fixed in churches, property of, 202. ELECTION, vote of freeholder in respect of a post windmill, 268. See tit. Voting. EMBLEMENTS, doctrine relating to, 206, («. 2,) 213. what things accounted, lb. whether artificial grasses, clover, &o., are, 209. vrho are entitled to, 216, («. 1,) 207. benefit of, extended to clergy by statute, 211 (».) bequest of, interest of legatee, 212. whether they confer an interest in the land, 213. may be taken in execution, 324 («.) contract for sale of, not within the Statute of Frauds, 264 (n.) iSxturea compared to, 107, 126, 159, 247. 292 INDEX. ENGINES, in collieries, &o., removable by tenants, &o., 34, 41, 64, 124, 131. not part of the personal estate as against the heir, 168. do not paaa to the assignees ia bankruptcy, 235, 242. liable to be rated, 260. covenants in leases respecting, 223 {n.) Appendix, 34V, 352, 353. See Machinery and Steam Engines. EQUITABLE MORTGAGEE. See tit. Mortgage. EQUITY, remedy in, for tortious removal of things fixed, 281. in what cases relief granted by, 282. by injunction, 281. See tit. Injunction. by account, 284. by prohibition, 282, 28T. in the case of ecclesiastical persons, 287. proceedings in, vj^hen preferable to action at law, 281. when the right to fixtures is doubtful, 285. construction of statutes by, 272. ERECTIONS, made after lease granted, 315 (n.) after mortgage, lien extends to, 228. in substitution for others, covenants attach to, 112, 114. See tit. Buildings. ESTREPEMENT OP WASTE, at common law, 282. by Stat, of Gloucester, pendente placito, Jb. ESECUTOR, right of, to fixtures, as against the heir. &c. See Tenant in Fee, Tenant for Life, Tenant in Tail. of tenant in fee, least favored with respect to fixtures, 132, 249. of tenant for life or tail, less favored than common tenant, 28, 133. distinctions examined, 133, 134, 135, 160, 180. recent decision as to his claim to trade fixtures against the heir, 163. is entitled to all tilings not legally affixed, 180. is allowed a reasonable time to remove fixtures, 136 (n.) is entitled to emblements, as against the heir, 210. not against the devisee of the land, 212. is liable for waste in his own time, 276. and for waste of his testator, 276, 285 (re.) may sue for waste to testator's estate, 276. See Emblements, Heir-looms. EXECUTION, tenant's fixtures, liable to, 321. whether things fixed by owner in fee, liable to, 323. or things which go to the executor as personal estate, lb, or a mill, Ac, 230, 322. lease demising iixed articles may be seized in, 324. growing crops may be seized in, 324. things removable under powers, not liable to, 322, 324 (n.) And see tit. Sheriffs. EXTENT, articles fixed in pape^mill, not liable to, as "utensils," 325, F FACTORIES, generally, («. 1,) 181. macliinery and fixtures in, liable to be rated, 261. do not pass to assignees of bankrupt, 241, 243. See tit. Machinery. INDEX. 293 FARM, erections on. See tit. Agriauiiiural ErectioTis, FELONY, stealing fixtures, not the subject of, at common law, 326. unless an interval between severance and removal, lb. statutes relating to, 328. malicious injuries to fixtures, is, 330. demolishing fixtures by rioters, is, 330. See tit. Larceny. FENCES, 38. See tit. Bushes ; also, («. 1,) 181. dilapidation of, 14'7. FENDER, of mill hatch, property in, 14. FIRE ENGINES. See Steam Engines. FISH, when they pass with the inheritance, 199. house, {n. 3,) 217. FIXTURES, different applications of the term, 1, 11. which to be preferred, 11. definition of, 2. civil law, rules of, applied to, 16 (n.) See the Introduction, foreign laws relating to, 16 {n.) See the Introduction, must be actually annexed to the freehold, 2, 19. constructive annexation of, 6 (».) And see OonstrucUve Annexation. degree of annexation requisite, 3, 6. are considered part of the freehold itself, 9. except in particular cases, 10, 321, 328. are analogous to emblements, 107, 126, 147, 206, 247. and to growing trees, 11 (n.), 224 (n.) pass by conveyance, mortgage, demise, Ac, of land, 214, 224, (n. 1,) 217. are ratable as land, 258. may confer a settlement, when rented with house, 264. may be taken in execution against a tenant, 321. pass by a bequest to charitable uses, 248. are not the subject of distress, 314. nor of larceny, at common law, 326. not forfeitable as deodands, 333. are not goods and chattels within the meaning of the bankrupt laws, 234. are not recoverable in trover, while fixed, 295. nor in assumpsit, as "goods and chattels," 307. whether recoverable in trespass, as "goods, chattels, and effects," 293 (n.). 309. how to be described in pleading, 293, 298, 309. when put up in substitution for others, 90, 112, 114. questions relating to, arise between three classes of persons, 18, 52, 132, 160. between landlord and tenant, 18. between the personal representatives of tenant for life or in tail, and the remain- derman or reversioner, lb. between the personal representative of tenant in fee, and the heir, lb. when removable, between landlord and tenant, 18, 64, 71, {n. ],) 62. between personal representative of tenant for life, &o., 123, 137. between personal representative of tenant in fee, &c., 151, 182. when removable, in the case of ecclesiastical persons, 145. right to, as between vendor and vendee. See tit. Sale and Purchase. as between mortgagor and mortgagee. See tit. Mortgage and Mortgagor. as between assignees of bankrupt and other parties. See tit. Bankrupt and Assignees of Bankrupt. as between heir and devisee. See tit. Devise and Devisee. right of removal of, explained, 6. is a relaxation of the ancient rule of law, 6, 20, 72, 130, 160. differs from the right exercised by the owner of the estate, 8, 140, 142. and from that accruing by virtue of powers, 142. 294 INDEX. FIXTURES.— Continued. and from that acquired by purchase, 108 (n.), 221. may be varied by the terms or circumstances of a contract, 108, 120. considerations on which it depends, the relative situation of the claimants, 1, 52. the purpose and object of the erection, 7. the intention of the party in annexing it, 7, 47, 164, 173. its nature before annexation, 7, 35. its construction and mode of annexation, 35, 43, 85, 139. its comparative value as annexed, and when severer!, 7, 164, 174. the destruction occasioned to it by removal, 8, 33, 48, 81, 82. the injury caused to the freehold by the act removal, 7, 46, 88, 139, 164, 166, 180, 188. the existence of custom in respect of similar articles, 7, 44, 92, 167, 179, 237, (n. 1) 45. may be removed when set up for purposes of trade, 17, 123, 151 (n. 1,) 6, 34, 62. or for trade combined with other purposes, 64, 129, 151, 160, [n. 1,) 34, 62, 67. or for purposes of ornament, 71, 137, 182. or for domestic use and furniture, 71, 137, 182. are not removable when put up for agricultural purposes, 50. time and manner of removing. See tit. Eemoval and Injv/ry. allowance for and re-delivery of, at end of tenancy, &o. Appendix, 346, 353. sale and conveyance of See tit. Sale and Reversionary Interest. parol reservation of, (n. 1,) 221. transfer of] in cases of banlsruptoy, 233. devise of. ) mortgage of. > See the respective titles, valuation of. ) FLOWERS, in gardens, when not removable, 70. FOLD YARD, walls of, not removable, 50. FORGE, wheel of, not liable to forfeiture as a deodand, 334. FOREIGN LAWS, relating to fixtures, 16 («.) And see the Introduction. FRAMES, in nursery grounds, whether removable by tenants, 70 (n.) FRANCE, laws of, respecting fixtures, 16 (■«.) And see the Introduction. FRAUDS, Statue of, 4th sect, of, whether contracts for sale of fixtures are within, 252. after an appraisement, 254, 17th sect, of, contracts for fixtures need not be in writing under, 255. 5th sect, of, whether a devise of fixtures is within, 251. FRAUDULENT CONTETANCE, possession of fixtures by mortgagor, not evidence of; 231, 241. FREEHOLD. ancient rule of law in favor of, 9, 19, 180. modern relaxation, between three classes of persons, 20, 52. degree of relaxation, diiferent in the several cases, 52, 127, 178. decisions in favor of one class, how far applicable to others, 28, 72, 132, 133, 138, 178. fixtures are considered part of, 9, 215, 264, 271, 295, 315 («.) unless in favor of creditors, 321, or, infavorem vital, 328. INDEX. 295 FREEHOLD.— Continued. injury to, by removal of fixtures, 88. See tit. Injury. And see tit. Annexations. FREEHOLDER, right of voting of, in respect to annexations to land, 268. FRUCTUS nSTDUSTRIALES, may be taken in execution, as goods and chattels, 324 (n.), (a 1,) 181. And see tit. Crops and Bmi^ments.- FRUIT, growing, belongs to the heir, 206, 20T (n) falling into the land of another person, 14 (re.), 102. FRUIT TREES, removable, by whom. See tit. Vrees. destruction of; waste, 69 (a) FUEL-HOUSE, for agricultural purposes, not removable, 50. FURNACES, are removable fixtures, 23, 25, IS, 116, 126, 138, 183, 181, («. 1,) 136. cannot be distrained, 316. FURNITURE, fixtures put up as, are removable, 11, 131, 182. principle and extent of the rule, 83, 84, 139, 185, 188, fixed, what so considered, 81 (n.), 184, 249, 250 («.) fixtures pass in a will as, 248. And see tit. Ornamental Fixtu/res. GARDENS, conservatories, pineries, &c., in, not removable, 16. See next title, frames and glasses in, whether removable, 18 (n.) trees in, right of removing. See tit. Trees. flowers in, not removable by private persons, 10. box edgings in, not removable by private persons, lb. stealing from, 329, 330. leases of, provisions in for removing and valuing trees. See Appendix, 348. See next title, and Emblements. GARDENERS, may remove trees, shrubs, &o., planted for sale, 68. and fruit trees, though in bearing, 68. not allowed to destroy strawberry beds in bearing, 69. whether they may remove hot-houses, &c., 10, 16, 19. executors of, entitled to remove fruit trees, &o., 206 {n.) fruit trees belonging to, not distrainable, 319. GATES. See tit. Doors. stealing of; 330. not liable to forfeiture as deodands, 333, GIBBET, whose property, when erected in private land, 13. GIFT, of fixtures to reversioner, when inferred, 95. negatived by continuing possession, 101, 106. whether negatived by delivering up premises without prejudice, 105. or by a declaration of intention, lb. presumption of, does not arise where tenant's interest is uncertain, 101. nor unless the property is legally affixed, 106. GLASS, parcel of the freehold, 12, 86 (n.), 155. And see tit. Windows. 296 INDBS. GLASSES, pier and chimney, fixed by nails, removable by tenant, 74, 16, 19, 138, 24T, 249. put up in lieu of wainscot, or in panels, whether removable, 183, 184, 249. in nursery grounds, whether removable, TO. GOODS, sold and delivered, fixtures not recoverable as, 308. GRANARY, l'Z2. on pillars, a chattel by custom of Hampshire, 119. GRASS. See tit. Eniblemmts. GRATES, removable,|'75, IS (n), 138, 146, 185, 187, 265, (n. \,) 136. GRAVE-STONES, property in, 202, 203. stealing from, 329 (ra.) See tit. Executors. -GREEN-HOUSES, whether removable, TO, 76, 19, 112. GROWING CROPS. See tit. Eniblemmts. sale of, whether within the Statute of Frauds, 263. may be distrained, 319. may be taken in execution, 324 (».) GTMOLDS, doors, &c., hung on, 6 (n), 15, 218. are not distrainable, 316. H HANGINGS, are removable, 12, 74, 82, 138, 183, 184. pass by will, as "household stuff," 82 (n.) HATCH, of mill, placed on the land of another, property in, 14. HATCHMENTS, in churches, property in, 202. HAWKS, whether they pass with the inheritance, 200. HEARTHS, whether removable, 12, 87 (n.) HEDGES, are parcel of the freehold. 206. See tit. JBushes. HEIR, ancient rule of law, in favor of, 152, 180. relaxed by modern decisions, 157, 158, 180. conflicting authorities on the subject, 155, 168, 177, 185. ' right of to fixtures, as against the executors. See Tenant in Fee. as against the devisee, 245, 246. is more favored than landlord in regard to fixtures, 132, 177. or than the remainder-man, lb. is entitled to things accessary to the realty, 163, 168, 175. as the apparatus of salt worlss, 163. or engines and machinery in mines, &c., 168. to things constructively annexed, 115, 175, 181. not to things neither actually nor constructively annexed, 180. INDEX. 297 B.'^IU.— Oontinued. to heir-looms, 192. to the charters and deeds of the estate, 189. to chattels animate, as deer, &c., 195, 199. to trees, hedges, &o., 206. remedy of, for tortious removal of things fixed to the freehold, 290. See tit. Remedies. cannot maintain trespass till after entry, 290. may maintain action for injury to monuments, &c., of ancestor, 203. See tit. Reir-homs, Charters, EmUements. HEIR-LOOMS, nature of, explained, 192. ■what are, 193. right to, depends on custom, 193, 194. whether they may be of fixed chattels, 192, 193. whether devisable apart from the estate; 197. may be granted away by the owner in his lifetime, 198. things in the nature of, 194, et seq. chattels may be limited as, by deed or will, 191. See tit. Crown Jewels, Collar of S. S. HOLDFASTS, fixtures fastened by, 16 (n) HOLLAND, laws of^ respectiug annexations to freehold, 16 (n.) HOOKS, windows or doors hung on, are constructively annexed, 6 (n.), 15, 218, 316. HOPS, the subject of emblements, 201. HORNS, ancient, pass with the inheritance, 196. HOT-HOUSES, whether removable, 10, 16, HOUNDS, whether they belong to the heir, 200. muta canwm, of bishops, 200 (n.) HOUSE, fixtures of; when removable. See tit. Fixtures. substantial additions to, not removable, 41, 55, 19, 81 (n.), 92, 112. permanent improvements to, not removable, 81. injury to fabric of, prevents removal, 44, 46, 81, 88, 90, 131, 180, 188. lease or conveyance of, passes things fixed, 214, 221, 224, 315 (n.) demise of with the fixtures, tenant's interest in, 223. what things constructively annexed to, 6 (n.), 155, 218, 246, 316. locks, keys, doors, windows, &c., of, 6, 12, 153, 218, 246, 316. detached pipes and conduits of, 218 [n.) value of, increased by fixtures, ratable in proportion, 258. with fixtures, may confer a settlement,. 264. fixtures of, when not considered part of, infavorem vitcB, 328. on demise of, and fixtures to be valued, what tenant must pay for, 221. Appendix, 350, 353. HOUSEHOLD STUFF, bequest of, hangings pass by, 82 (n.) And see tit. Bequest. HURDLES, iron, 38 («.) HUSBANDRY, annexations for, not removable, 50. See tit. Agricultwal Erections. 298 INDEX. IMPEACHMENT OP -WASTE, clause of exemption from, in leases or life estates, 121, 141, 322. equitable construction of, 142. things severable by virtue of, not seizable under a fieri facias, 322. IMPROVEMENTS, permanent, not removable, St. what is comprehended under, 112, 115. IN-COMING TENANT. See tit. Tenant. what fixtures to pay for, to the landlord, 221, 223. to the out-going tenant, 221, 350, 353. interest acquired by, on purchasing fixtures, 108, 119, 222. remedy of, when fixtures sold to him without title, Appendix, 354. cautions and directions to, on the purchase of fixtures, 355. on taking a demise of premises, 119 (n.), 222. Appendix, No. II. on taking assignment of lease, lb. on taking an under-lease, lb. on a fresh agreement for the premises, 117, 118. See tit. Sale. INCUMBENTS, ecclesiastical, what fixtures removable by, and by their executors, 145. whether entitled to remove fixtures after resignation, &c., 146. not entitled to emblements after resignation, 211. right of, to grant vaults, &c., in churches, 203 (ra.) property of, in trees in churchyard, 205. See tit. Dilapidations. Ecclesiastical Persons. INJUNCTION, remedy by, to prevent removal of things afiixed, 281. in what cases it lies, 284. nature of the proceedings in, 282. granted with account of waste committed, 284. granted until the right to fixtures determined at law, 285. lies against ecclesiastical persons, 282. INJURY, to freehold, how affecting the right to remove fixtures, 44, 46, 81, 88, 131, 161, 180, 188, 237. liabihty of tenants to repair, on removing fixtures, 46, 90. INTENTION, of parties, how affecting the right of removal, 47, 92 (a), 165 (n.) may control general terms, in sale of fixtures, 218, 222. or on mortgage of fixtures, 226. how to be inferred in a will, 251. INVENTORY OF FIXTURES. See tit. Schedule. IRON "WORKS, machinery and apparatus of, 115. JACKS, removable, 187. JACK -WEIGHT, liable to forfeiture as a deodand, 334. JE-WBLS. See tit. Grown Jewels. JOINT TENANTS, survivor of) entitled to corn growing, 212. K KETTLES, in fulling mills, {n. 1,) 181. INDEX. 299 KEYS, are parcel of the freehold, 6 (».), 81 (m.), 155, 218, 246. pass by grant, Ac, of house, 218, 246. KILNS. See til. Lime Kilns. LAND, lease or conveyance o^ passes things affixed, 214. whether it passes executor's fixtures, 220. improved by annexations, rate, settlement, &c., in respect of, 258, 264. See tits. Himse and Freehold. LANDLORD, ancient rule of law in favor of; 19, 53, 71, 211. modern relaxation of, in respect of trade and other fixtures, 20, 29, 12, (n.), 180. what things he is entitled to, as against the tenant. See tit. Tenant. cannot claim erections placed on blocks, rollers, &o., 6 (ra.), 43, 106. Appendix, No. I, p. 345. fixtures belong to, if not removed before the expiration of tenancy, 95. fixed articles demised, revert to on severance, 223, 290, 303. parol consent by, to remove fixtures, effect o^ 105, 113. stipulations by, for allowance for fixtures at end of lease. Appendix, 34T, 348. respecting the revaluing and redelivery of fixtures to him. Appendix, 348, 353. remedies by, for tortious removal of articles claimed as fixtures. See tit. Remedies. LARCENY, fixtures not the subject of, at common law, 326. made felony by statute, 328. in stealing property fixed to buildings, &o., 329. trees, shrubs, vegetables, &c., 330. gates, fences, posts, &c., Tb. ores from mines, lb. by tenants and lodgers, of fixtures, lb. LEAD, affixed, stealing of, 328. LEASE, things affixed pass by, unless excepted, 214, 224, (n. 1,) 136. covenants in, may enlarge or restrict the tenant's right to fixtures, 108, 120. of house and fixtures, nature of tenant's interest. 111, 112, 223, 291, 303, 312. construction of, whether by matters dehors the deed, 11'?. renewal of, may affect the tenant's right to fixtures. 111, et seq., 223 (n.) assignment of, what fixtures to be valued on, 222. Appendix, 351, 355. fixtures pass with, to assignees of bankrupt, 239. whether severance of fixtures by assignees, is an acceptance of, 239. may be taken in execution, together with fixtures, 324. See tit. Mcemtion. clauses in, on demise of collieries, mines, nursery grounds, Ac, 223. Appendix, 34T, 348, 352. stipulations in, respecting the valuation of fixtures, 221. Appendix, 350, 353. respecting the repair and redelivery of fixtures to landlord. Appendix, 351, 352. schedule, or inventory of fixtures in. See tit. Schedule. LICENSE, by parol, to remove fixtures, not sufficient where a covenant exists, 113. buildings erected by permission on land of another are personal property, {n. 1,) 9. such license may be by parol, and is not within the Statute of Frauds, (n. 1,) 62. LIMB KILNS, whether removable by tenants, 42, 308, 316 (n.) 300 INDEX. LOCKS AND KEYS, are parcel of the house, 6 (re.), 155, 218, 246. LONDON, ordinance in, respecting fixtures, see the Introduction. custom ofi to erect scaffolding in adjoining land, 13. LOOKING-GLASSES. See tit. Glasses. M MACHINERY, removal o^ see tits. Steam Engines, and Trade Fixtures. in mines, calico works, &c., whether personal estate as between heir and executor, 168, 236. construction of, so as to remain personal property, 4, 8'7 (n.\ 331, (fl. 1,) 136. though firmly fixed for carrying on trade is still personal property, (n. 1,) 62. demise of, together with premises, 223. put up in substitution, 112, 114. removal of, by tenant, what repairs necessary, 90. is subject to poor's rate, 260. does not pass as "goods," &c., to assignees of bankrupt, 235, 241, 242. malicious damage to, felony, 330, 331. demolishing of, by rioters, felony, 331. MALICIOUS INJURIES, to fixtures, machinery, &e., 330. to erections and engines in mines, 331. MALT MILLS, poor's rate in respect olj 260. MANGERS, 154. MANUFACTORIES, removal of; 43, 172. See tit. Buildings. fixtures in. See tit. Trade Fixtures. MANURE, {n. 1,) 136, 156, 181. MASH TUBS, removable by tenants, 76. MILLS, what description of, removable, 6 (ra.), 35, 16 (ra.), \61 (ra.), 112, 215 {n. 1,) 138. machinery of, when removable, lb. 112. And see tit. Machinery. mortgage of, passes the stones and tackling, 228. whether seizable under a fieri facias, 230, 322. sails and wheels of; considered part of the freehold, 161 {n.\ 334. hatch of; placed on soil of another, 15. gearing, [n. 1,) 181. chain, dogs, and bars of saw milt, (n. 1.) 181. And see tit. Windmills, Cider Mills, Malt Mills, Coffee Milk, Cotton Mills. MILL STONES, are considered part of the freehold, 6 (n.), 155, 218, 246, 316, {n. 1,) 155, 161. pass by devise or conveyance of the mill, 215, 246. or by mortgage of the mill, 298. put up in substitution for others, 112. are not distrainable, 316 (re. 1,) 311. although removed for picking, 311. are not forfeitable as deodands, 334. MINES, working of, a species of trade, 56, 64, 129, 168. machinery of, removable by tenants, 34, 64, 124, 164. is not personalty as against the heir, 161, 168. malicious injuries to, felony, 331. provisions in leases of, 348, 352. INDEX. 801 MONtTMENTS, in churches, property in whom vested, 203. action for defacing, who may bring, 203. privilege of erecting, 203 (w.) stealing brass from, felony, 329 (ji.) MORTAR, annexation by, 23, 82, 112, 152, 154, 163. MORTG-AGE, of fixtures, apart from the land, 225. of land, conveys all things annexed, 225, (n. 1,) 225, 226, 227. unless a contrary intention appears, 226. although only an equitable mortgage, 229 (n.) of house, conveys the fixtures, though not mentioned, 227. and though subsequently put up, 228. of mill, passes stones and tackling, 228. possession after, by mortgagor not fraudulent, 229. See tit. Mortgagor. MORTGAGEE, claim of, to fixtures, as against assignees of bankrupt, 233. remedy of, where fixtures are wrongfully removed, lb. as against mortgagor redeeming in equity (n. 1,) 107. MORTGAGOR, may not remove fixtures pending the mortgage, 232. posses.=lon of fixtures by, not fraudulent, 229. does not create a visible ownership against creditors, 240. See tit. Mortgage. MOURNING, hung in churches, the incumbent entitled to, 204. MUTA CANUM, of bishops. See tit. Mounds. N NAILS, annexation by, 74, 75, 87, 184. NEW YORK REVISED STATUTES, part 2, ch. 6, tit. 3, art. 1. what fixtures go to executor as assets, {n. 1,) 136. what to heir as real estate, (n. 1,) 136. NURSERY GROUNDS, trees, &e., in, not distrainable, 319. provisions in leases of, as to removal, &c., of trees. Appendix, 348. See the next Title, NURSERYMEN, may remove trees, &c., planted for sale, 68. whether they may remove hot-houses, &c., 70, 79. stock of, goes to their executors, 206 (ra.) See Gardeners and Gardens. ONSTAND, right of, by out-going tenant, in respect of fixtures, 120. ORDINANCE, of Loudon, respecting fixtures. See the Introduction, ORGANS, iu churches, property in whom vested, 206. 302 INDEX. ORNAMENT, matters of, relaxation of the ancient rule of law, in favor of, 11,'-15i, 182. principle of the relaxation, 83. are not considered part of the freehold by the civil law, 82 (n.) See the next Title. ORNAMENTAL FIXTURES, may be removed by tenants, 11, 19, (n. 1,) 136. description of, removable by them, 73, et seq. may be removed by the executors of tenants for life or in tail, 137. by the executors of tenants in fee, 182. by ecclesiastical persons, 145. right to remove, how qualified in these several cases. See under the respective titles, Tenant, Tenant for Life, &c. must depend on the particular case, 80. things in the nature of, when removable, 84, 138, 187. And see tit. House and Domestic Furniture. ORNAMENTS, fixed in churches, properly in whom vested, 202. belonging to a bishop's chapel, 146, 196. OUT-GOING TENANT, what fixtures he may remove. See til. Tenant. sale of fixtures by, to landlord or in-coming tenant, 221, 222, 353. stipulations for revaluation, Ac, of fixtures at the end of his term, Appendix, 348, 350, 353. ' his right of onstand in respect of fixtures, 120. And see tit. In-coming Tenant OVENS, 76, 185, 187. whether liable to execution against the owner in fee, 323 PALING, 38, 153 (n.), 154. stealing ofj 330. PANELS, glasses in, 183, 184, 249. PARK, deer in, pass with the inheritance, 199. unless tame, or the testator's interest was a chattel, 201. whether the heir can claim except in respect of a legal park, 199 («,) PARSON, soil and freehold of the church is in, 204 [n.) cannot remove monuments, &c., legally set up in the church, 203. right of, to grant a vault in, 203 (n). entitled to mourning hung in the church, 204. ^ to timber and scaffolding erected on public occasions, 204. to the materials of pews and seals when severed, 204. to trees in churchyard, 205 (ti.) organ of church does not belong to, 205. See tit. Incumbent and Dilapidations. PARSONAGE-HOUSE, fixtures in, when removable, 145. See tit. Dilapidations and Incwribeni. PARTITIONS, 40, 277, («.l,) 136. PARTNERS, fixtures put up by, after mortgage, 229. PAVEMENT, whether removable, 40, INDEX. SOS PAYMENT, of money into court, e£fect of aa to a claim for fixtures, 229 («.) PENNONS, hung in a church, property in whom, 195, 202. PERMISSIVE WASTE, action on the case, whether it lies for, 279 (re.) does not lie against tenants at will, lb. PERSONALTY. See tit. Assets, personal. PEWS, property in whom, 204. materials of, when severed, lb. PICTURES, fixed to the wall by screws, &c., 73, 183. ancient, considered as heir-looms, 195. PIER-GLASSES. See tit. Glasses. PIGEONS, whether they pass with the inheritance, 200, 201, 202 (n.) waste to destroy the stock of, 200. tame, larceny to steal, 202 (re.) PIGEON-HOUSE, waste to destroy, 286. on farm, not removable, 51. PILLARS, buildings on, not considered part of the freehold, 6 (re.), 179, 266, 268, granary built on, a chattel by custom in Hampshire, 179. of brick and mortar, 116. in a dairy not removable, 82. PINERY, erected in garden, not removable, 77. PINS, fastening by, whether a complete annexation, 5, 81, 237. PIPES, in brew-houses, &o., removable, 35, 116. laid in ground for water or gas, ratable, 262, 263. pass by grant of a house, 218 (re.), 219. afBxed, stealing ofj 328 (re.) PLANT, in breweries, &c., removable, 35. passes by a mortgage of the brewery, 219. demised with brewery, nature of the tenant's interest, 223. Appendix:, 352. PLANTS. See tit. Trees. POLLARDS, property in, 66 (re.), 291 (?!.) POOR'S RATE, land, &c., improved by annexations, ratable to, according to improved value, 258. as by a weighing machine, 259. by steam engines or other machinery, 260. by water or gas pipes, 262. by a tunnel under water, 263. unless where the principal matter is not ratable, 26i. whether the property must be actually affixed, 261. mode of assessment to, 258 (re.), 261. PORTRAITS, ancient, considered as heir-looms, 195. 304 INDEX. POSSESSTON, of fixtures, not a reputed ownership, 239. after a mortgage, nor fraudulent, 229. by tenant, after the expiration of his term, effect of, 96, 105, 356. delivery of, by tenant, without prejudice, effect of, 105. POSSIBILITY, tenant apres, what he may remove. See tit. Tenant in Tail, POST WINDMILL, 6 (n.) renting of, will not confer a settlement, 266. vote at election in respect of, held good, 268. POSTS, 25, 38, 153, 187, 294. buildings on, not considered part of the freehold, 6 (k,), 266, 268. stealing of, 330. POTATOES, the subject of emblements, 208. POTS, fixed, 185. whether seizable in execution against owner in fee, 323. POTASH KETTLES, (n. 1,) 181, 128. POWERS, right of removal under, as distinguished from the right to fixtures, 8, 140, 142, 144, things removable under, not liable to execution, 322. PREBKNDARY, liable for dilapidations, 149. PRESSES, removal of, 87 (re.), 156. not to be considered part of the house, in favorem vitcB, 328. See tit. Cupboards. PRINCIPAL, not to be destroyed by taking away the accessary, 47, 131, 165. See tit. Accessary Buildings, PROHIBITION OP WASTE, at common law, 282. under the Statute of Gloucester, lb. against ecclesiastical persons, 287. PRUSSIA, laws of, relating to fixtures, see the Introduction. PUMP-HOOSE, erected ou farm, not removable, 51. PUMPS, removable by tenants, 80, (n, 1,) 13fi. whether they go to the heir, 187. Pt^RCHASB, of house, articles affixed are included in, 214, 221, (n. 1,) 136. unless an express provision to the contrary, 218. of fixtures, nature of the interest acquired by, 108, 221, 222. Appendix, 286, 290. And see tit. Sale, PUSEY HORN, a charter of conveyance, 196. E RACKS, of stables, parcel of the freehold, 298 (».) RAILS, 38, 187. Btealing of, 330. IN DBS. 305 RAILWAY, land improved by, ratable according to the increased value, 260. RANGES, 185. whether seizable in execution against owner in fee, 323. And see tit. Grates and Stoves. RATING, of land, improved by chattels annexed. See tit. Poor's Sate. REOTORT-HOUSB, fixtures in. See tit. Incti/mbent and Dilapidations. REMAINDER-MAN; what annexations belong to, as against the executor, &c. See tit. Tenant for Life, &o. remedies of, for the tortious removal of things affixed. See tit. Remedies. REMEDIES, for the tortious removal of fixtures, &a at law, 210. in equity, 281. by landlord, against tenant, by action of case in nature of waste, 215. of trespass, 289. of trover, 295, 303. of assumpsit, Ac. 307. by injunction, &c., 306. by landlord, against a stranger, 289, 290, 303, 306. by tenant, against landlord, or a stranger, 290, 304. by remainder-man or reversioner, against tenant for life, 215. against executor of tenant for life or in tail, 216, 290, SOT. by executor of tenant for life or in tail, against remainder-man, 216, 287 (»s.) by heir, against executor of tenant in fee, 276, 283, 290. ' in the ease of ecclesiastical persons, , by action for dilapidations, 148, by injunction and prohibition of waste, kc, 150 («.), 287. by proceedings in the ecclesiastical courts, 148. by vendor against purchaser, for the price of fixtures sold, 308. by purchaser against vendor, for selling fixtures without title. Appendix, 354. And see Waste, Injunction, Assumpsit, Covenant, Trespass, Trover, Distress, Execution. REMOVAL OP FIXTURES, right of, explained, 6. is an exception from the rule of law respecting the freehold, 10. on what considerations it depends. See tit. fixtures. not dependent upon size of buildings, but upon its connection with trade, (n. 1,)34. distinguished from the right incident to the ownership of the estate, 8, 140. and from rights under powers appendant to estates, 142, 143. and from the right acquired by the purchase of fixtures, 222. may be qualified by contract, 19, 108, 111, 112, 120. within what time to be exercised, in different cases, 94, 103, 105, 106. And see tit. Time, Tenant damage occasioned by, must be repaired, 46, 90, 351. special provisions respecting, in leases, &o. Appendix, No. IL RENEWAL, of lease, effect of. See tit. Lease. REPAIR, of fixtures demised, 352. of fixtures substituted by tenant, 90. Appendix, 362. of damage to premises by removing fixtures, 46, 90. covenant for, how varying the tenant's right to fixtures, 109, 112, 114. does not extend to buildings on blocks, rollers, &c., 120 (n.) REPLEVIN, does not lie for fixtures, 316 («.) See {n. 1,) 809. And see tit. Distress. 20 306 . INDEX. REPUTED OWNERSHIP, possession of fixtures not considered to be, 259, et seq. reservation of fixtures by parol, (ra. 1,) 221. RETERSIONBR, see tit. Landlord. claims of, against executor of tenant for life or in tail. See Tenami for Life and in Tail. remedies of, for the tortious removal of things affixed. See tit. Bemedies. RBTERSIONART INTEREST, in fixtures, sale o^ by parol agreement, valid, 255. RINGS, pass with a house, 211, 246. RIOTOUS ASSEMBLIES, demolishing of fixed machinery by, in mills, mines, &c., 331. ROLLERS, erections placed on, not considered part of the freehold, 5 («.), 36. Appendix, 345. covenant to repair, does not extend to, 120 (n.) ROOTS, the subject of emblements, 208. larceny to steal, 330. s. SAILS, ofwipdmill, considered part of the freehold, 167 (».), 334. not forfeitable as deodands, 334. SALE, of house, Ac, wnen fixtures included in, 214, et seg., 221. of house and fixtures, what things to be valued on, 221. Appendix, No. II. of reversionary interest in fixtures, 255. of fixtures, by landlord to tenant, 222. Appendix, No. II. by out-going to in-coming tenant, 222. Appendix, 353. nature of the interest conferred by, 108 («.), 222. effects a severance when complete, 310 («.) remedy of purchaser, if made without title, 354. whether agreement for, is within the Statute of Frauds, 253. stamps on agreements relating to, 255. Appendix, 351. schedule on, see tit. Schedule. bargain and sale, Ibrm of. Appendix, 353. SALT PANS, are removable as trade fixtures by a common tenant, 2, 36, 114. belong to the heir with the estate, 163. decision respecting them, considered, 165. SAND, blown upon a close, becomes part thereof, 14. SASHES, window, when not considered fixed, 329.. SCAPPOLDING-, erected in churches on public occasions, property to whom accruing, 204. custom of London to erect in adjoining land, 13. SCHEDULE, of fixtures, when it should accompany lease or other conveyance, 221. is not receivable in evidence unless stamped, .256. stamp required on, in different cases, Ih. SCOTLAND, law of, in respect of fixtures, 16 (ra.) And see the Introduction. SCREWS, nails or bolts, annexation by, 74, 75, 87, 184, 237, 262 (n.) I Jf D B X. 307 SEATS, see tit. Benches. fixed in churches. See tit. Pews. movable, in churches, property of, 205. SEQUESTRATOR, liable for dilapidations, 149. SETTLEMENT, parochial, in respect of land improved in value by fixtures, &c., 264. to confer, things must be actually affixed, 266. a windmill on posts, or not fixed, insufSoient, 266. SEVERANCE, of fixed articles, efieot of, in transferring the right of property, 223, 238, 291, 292, 303, 310 (».), («. 1,) 181, 239, 309, 311. is efieoted by sale of fixtures when complete, 310 (n.) of fixtures demised, vests the property in the landlord, 223, 303, 304. of fixtures by assignees of bankrupt, see tit. Bankrupt. and removal, if continuous, not felony, 326. whether trespass or trover is maintainable in such case, 292, 299. See tit. Removal of Fixiwres. SHEDS, when removable by tenant, 38, 42, 116, (». 1,) 62. not removable, when put up for mere agricultural purposes, 50. when considered accessary buildings, 40 (?i.), 42. SHELVES, 8V (n), 298 (n.), 185. SHERIFF, what fixtures may be taken in execution by, 321. may talie fixed articles demised, together with a lease, 324. but not when severed by the tenant, 325. when bound to sell fixtures in separation from the lease, li. vendee of, his liability for tortious levy, 305. And see tit. Exeawtion. SHROUD, to whom it belongs after burial, 204. SHRUBS, by whom removable. See tit. Trees and Bushes. in nursery grounds cannot be distrained, 319. stealing of, 380. SHUTTERS, 155. SLABS, of marble, removable by a tenant, 249. Appendix, 341. .will not pass as furniture in a will, 248. unless the testator had a chattel interest, 250. And see Chimney-Pieces. SOAP WORKS, fixtures in, removable by tenants, 27, 40. SPECIAL OCCUPANT, property of, in deer, fish, &c., 201 (ra.) S. S., collar of, an heir-loom, 195. STABLE, on rollers, not considered part of the freehold, 5 (n), 36. Appendix, 345, nor when put up under license, (». 1,) 62. STADDLES, barns built on, not part of the freehold, 6 (n.), 291. STAMPS, on schedule of fixtures, 255. on deed, with schedule annexed, &o., lb. 808 INDEX. STAMPS.— Confeued on agreements relating to sale, kc, of fixtures, 256. on lease of fixtures, 25T. on appraisements of fixtures. Appendix, No. III. STATUTE OF FRAUDS. See tit. Frauds, Statute of. STATUTES, equitable construction of, 272 (n.) STEAM ENGINES. See tit. Engines. in collieries, &e., removable by tenants, &c., 34, 64, 103, 104, 110, 116, 124, 161, 231 (n.) whether they pass to the executor as against the heir, 161, 168, 179. do not pass to assignees of bankrupt, as goods, 235, 242. whether they pass by bequest of personal estate, 160 (».), 179. walls or sheds of, considered accessaries, 42, 131. if annexed to land, liable to poor's rate, 260. malicious injuries to, felony, 331. deodand of, whether of boiler also, 335 (».) STBBL-TARD, attached to house, rate in respect of, 253, (n. 1,) 181. STILLS, if fixed, do not pass to assignees of bankrupt, 234. See (n. 1,) 181. otherwise, if placed on horses or frames, Jb. STOOKING-PRAME, screwed to floor, whether a fixture, 87 (»i.), 331 (».) STONES, becoming imbedded in soil, property in, 14. STOVES, are removable, 76 (n.), 138, 146, 156, 185, 186, 187, {n. 1,) 40, 76, 186. STRAWBERRY BEDS, when not to be destroyed, by gardeners, &o., 69. SUBSTITUTED FIXTURES, covenants attach to, 90, 112, 114. rules relating to, 90, 112, 114. Appendix, 352. SWANS, whether they pass with the inheritance, 200, T TABLES, fixed or dormant, 27, 71, 153, 154, 187, {n. 1,) 136. billiard, when fixed, ratable with house, 253. TABLETS, in churches, right to erect, 208, (n.) property in whom vested, 202. TAPESTRY, fixed to walls, removable, 74, 138, 183. And see tit. Scmgings, TEAZLES, whether the subject of emblements, 208; TENANT, not liable for waste at common law, 21, 271. made liable by Statutes of Marlbridge and Gloucester, 272. right of, in removing fixtures, is a relaxation of the law of waste, 20. this relaxation when first allowed, 27. whether it proceeded originally on the ground of trade, 24, et seq. is more favored in respect of fixtures than other classes of persons, 28, 132. what fixtures he may remove, may remove trade fixtures, 27. I N D K X . 809 TENANT.— Cojiiiwed. principle and extent of this rule. See Trade and Trade flioiures. particular instances of trade fixtures, 34, et seq. And see Appendix, No. L general rules respecting his right to trade fixtures, 48. may remove fixtures for trafle combined with other purposes, 64. particular instances of these mixed eases, 66. may remove fixtures put up for ornament, 71. principle and extent of this rule. See tit. Ornament. particular instances of ornamental fixtures, 73. Appendix, 341. general rules respecting his right to ornamental fixtures, 91. may remove fixtures put up for domestic use and furniture, 88. particular instances of these fixtures, 76. Appendix, 342. may remove buildings placed on blocks, pattens, plates, %.i 3, 5 (n.), 43, 120 («.) And see Appendix, No. I, 345. is not allowed to remove agricultural erections, 60. cannot remove fruit trees, shrubs, flowers, &o., 69. unless in nursery grounds, Ac, 69. See tit. Nurserymen and Gardeners. may be prevented from removing fixtures by the terms of his lease, &c., 108 et seq,, 120. as by a covenant to repair, 109. or by taking a new lease, 117, 118. or by circumstances implied from an agreement with his landlord, 118. must remove his fixtures within the terra, 94, (n. ],) 136. unless he continues in possession, 96. or his interest in the premises is uncertain, 106. is bound to repair damage occasioned by the removal of fixtures, 46, 88, 90. ^ what fixtures he is to pay for, on taking possession, to his landlord. 221, 224. to an out-going tenant, 222. And see Out-going and In-coming Tenant Appendix, No. II. nature of the interest he acquires on the purchase of fixtures, 108 {n.}, 222. See tit. Sale. '■ nature of his interest when fixtures are demised to him, 290, 291. how far he is bound to repair the articles demised. Appendix, 352. or to substitute others in lieu of them. Appendix, 352. mortgage of fixtures by. See tit. Mortgage. bankruptcy of, right of his assignees to fixtures. See tit. Bankrupt. his fixtures seizable' under a fieri facias, 321. remedies by and against, for tortious removal of fixtures, &o., 290, 291. See Remedies .and Waste. stipulations by, for revaluation of fixtures at the end of his term. Appendix, No. II. rules and directions to, respecting the purchase, valuation, &o., of fixtures. Appendix, No. I, and No. II. And see tit. Fixtwes, Demise, Covenant, Yahation. TENANT AT WILL, not included in the provisions of the Statute of Gloucester, 279 (ra.) not hable for permissive waste, 279 in.) may be sued in trespass for voluntary waste, 290 (re). may remove improvements placed by him on the premises, (ra. 3,) 48. So, also, tenant for years, (». 1,) 34. TENANT BY THE CURTESY, whether liable for waste at common law, 272 (w.) what he may remove, 143. And see tit. Tenant for Life. TENANT IN DOWER, liable for waste at common law, 271. what may be removed by, 143. And see tit. Tenant for Life. TENANT FOR LIFE, whether punishable for. waste at common law, 272. made liable by Statutes of Marlbridge and Gloucester, 272. his r^ht in respect of fixtures, 124, 141, (». 1,) 34. when his estate is without impeachment of waste, lb. And see tit. Impeachment of Waste. when he may devise chattels affixed to the freehold, 245. 310 INDES. TENANT FOR \jWE.— Continued. ancient rule of law relaxed in favor of liis personal estate, 125, 128. this relaxation when first allowed, 124. not so extensive as in the case of a common tenant, 133. executor of, what fixtures he is entitled to, as personal assets, is entitled to trade fix- tures, 124, 129. extent of this privilege, 130, 135. particular instances described, &c. 124. general rules respecting his right to trade fixtures, 130. is entitled to fixtures for trade and other purposes combined, 129. is entitled to fixtures for ornament or domestic furniture, 137. particular instances described, 138. general rules respgcting his right to ornamental fixtures, 139. his right to fixtures, as compared with that of his testator, 142. how far it may be inferred from the right of a common tenant, 133, 138. and from that of an executor of tenant in fee, 132. is allowed a reasonable time for the removal of fixtures, 136 (n.) remedies by and against, in respect of fixtures See tit. Remedies. TENANT IN TAIL, is not liable for waste, 140. nor the grantee of, lb. how far liable when he is tenant apres possibility, 143. ancient rule relaxed in favor of his personal estate, 124. And see tit. Tenant for Life. executor of, what fixtures he is entitled to as personal assets, See tit. Tenant for Life. as against the heir in tail, 144. his right to fixtures, compared with that of a common tenant, 133. and with that of executor of tenant in fee, 143. remedies by and against, in respect of fixtures. See tit. Remedies. TENANT IN EBB, ancient rule of low in favor of his heir and real estate, 152, 180. modern relaxation in favor of his personal estate, 157, 182. this relaxation when first allowed, 157. is less extensive than in other cases, 62, 132, 160. contradictory opinions respecting the degree of relaxation, 152, 166, 168, 188. executor of, what fixtures he is entitled to as personal assets, is entitled to certain trade fixtures, 158, etseq. to certain fixtures for trade combined with other purposes, 161. not to things accessary to the realty, 163. as salt pans in salt works, 163. cider mills, 158. See tit. Cider Mills. whether entitled to machinery in calico works, 161, 166. is entitled to fixtures for ornament and convenience, 182, particular instances, described, 183. general rules respecting his right to ornamental fixtures, 188. derisions relating to these fixtures not uniform, 177, 185, 18S. is entitled to such things as are not legally affixed, 180. or not constructively affixed, lb. And see tits. Executor, Heir, Heir-looms. TENANTS IN COMMON— OWNERS OP THE EBB. the rule, between such, as to fixtures, the same as between grantor and grantee, (». 1,) 18, 181. THRESHING MACHINE, maliciously breaking, &e., 331. TIMBER, annexed to house or soil of another, right of property which accrues, 13, 292. See tit. Trees. - TIME, for removing fixtures, limitation of, 95, et seq. when claimant's interest is uncertain, 106. when it expires by his own act, 103. INDEX. 311 TOMBSTOjSTES, property in whom vested, 203. trespass may be brought for remoTing, &o., lb. stealing brass plates from, felony, 329, (m.) TRADE, • privilege of, a ground for the removal of iixtures, 21. whether recognized in the early decisions, 24. when fully established, 27. principle on which it is founded, 28, 29, 113. what occupations come within it, 54, 61, 64, 6"?, 129. usage of, how far applicable to the right to fixtures. See tit. Citsiom. whether it rebuts reputed ownership, 234 («.), 237, 242. TRADE FIXTURES, description of, 21, 33, et seq. in what cases removable by tenants, 21, 33, et seq., 48, {n. 1,) 6, 34, 40. form part of the personal estate of tenants for life, or in tail, 129. whether personal estate between executor and heir, 157, 161, 163, 16S. right of removal of, by what circumstances affected, 44, 48, 108, 131, 178. whether buildings may be so considered, 41, 43, 47, 172. particular instances of, described, 33, et seq. of a mixed character, removable, 61, 64, 67, 129. particular instances described, 66, 67, 68. And see tits. Tenmt, Tenant for Life, in Tail, and to Fee. TRANSFER, of fixtures, 214, et seq. See tits. Sale, Purchase, Goniracts. TREES— See tit. Bushes. and fruit of, go to the heir with the land, 206. right of tenants to, 69, 291 (».) property in, when growing in churchyard, 206. when roots grow in adjoining land, 14. when planted alieno soh, 12, 13. fruit or boughs of, falling into adjoining land, 14 (n.), 102 (n.) destruction of, in gardens, Ac, is waste, 69 (».) may be removed by nurserymen, Ac, 68. or by their executors, 174, (n.) not by private persons, 69. not the subject of larceny at common law, 327. made so by statute, 330. not distrainable in nursery grounds, 319. when not the subject of deodands, 334. pollard, property in, 69, 291 {n.) provisions in leases for valuation and removal of. Appendix, 348. TRESPASS, quare claxisumf regit for fixtures, when it lies, 289. de bonis asportatis, in what oases maintainable, 290, 304. right to maintain by different parties, before and after severance, 292. whether it can be brought, if the severance and asportation are one continuous act, 292. Ilea for removing and defacing tombstones, 203. for voluntary waste against tenant at will, 290 (n.) does not lie against vendee of sheriff, on tortious sale of fixtures, 305. form of declaring in, 293. whether fixtures may be described as goods, chattels, and-effeots, 293. plea in, disputing title, 293. evidence of title to fixed property not admissible under the general issue, 293. whether when affixed in alieno solo, 11, 294. TROVER, action of, fixtures, not the subject ofj while annexed, 295, (n. 1,) 223. cannot be sustained for mere severance without removal, 'lb. whether maintainable when the severance and removal is one continuous act, 299. lies for removing the soil in taking away dung, 303. 312 INDEX. TROTER.— Gmtinued. .when a concurrent remedy with trespass, 305. in what cases maintainable in respect of fixtures, 295, 303, wiien it may be brought by a landlord, 303. by a tenant, 304. by a mortgagee, 306 (.n ) property claimed in, not presumed to be fixed, 298. even though described as "fixtures," lb. what amounts to a conversion in the case of fixtures, 302. when a demand necessary, 302, 303, 305. what a sufficient demand in, 305. plea in, 306. under general issue, evidence of title not admissible, 306. TRUNKS, under ground, poor's rate in respect of, 263. in mines, &c, malicious injuries to, 331. TUBS, fixed. And see tit. Vat's. removable by tenants, 16, 185. TUNNEL, under ground, poor's rate in respect of, 263. u UNDER LEASE, cautions to tenants on talcing. Appendix, 351, 355. And see tit. In-coming Tenant. UNITY OE OCCUPATION, devise construed with reference to, 251. USAGE. See tit. Custom. of trade in leasing fixtures, rebuts reputed ownership, 234 (».), 237, 242. V. VALUATION. See tit. Appraisement. "fixtures to be taken at," what artieles to be included, 221. upon the sale of house, 222. between landlord and tenant, 105 (».), 121. between out-going and in-coming tenant, 222. of fixtures, cautions and directions concerning, to out-going and in-eoming tenants, 122, 310, 311. Appendix, 351, 353, 355. to landlords, 224. to brolcers. Appendix, 350, 354. to persons advancing money on fixtures. Appendix, 355. covenants and stipulations in leases respecting. Appendix, 347, 352, et seq. stamp on. Appendix, No. III. TARNISH-HOUSE, when removable as a trade erection, 5 (n.), 39. decision relating to examined, 39, 100. TATS, for trade, removable, 4, 23, 40, 155, (n. 1,) 136. TAULTS, privilege of making in a church, 203. TENDOR AND PURCHASER. See tits. Sale and Purchase, {n. 1,) 128, 135. TERANDAS, not removable, 81, 111. INDEX. '313 VICAR, liable for dilapidations, 149. YOTING, right of, in respect of property increased in value by annexations^ 268. w. ■WAINSCOT, of house, whether removable, 74, 15, 86 («.), 154, 156, 183, 18T, (n. 1,) 1S6. if loose, goes to the executor, 155. • pictures and glasses put up in lieu of; 1i, 183, 249. "WALLS, fixtures annexed to, early distinctions respecting, 22, 26, 46, 89. injury to, by removal of fixtures, 46, 80, 81, 88, 90, 131. ■when considered accessary buildings, 131. inclosing a foldyard on farm, not remova,bIe, 51. "WARDROBES, 81, 286. See tits. Presses and Closets. "WASTE, ■who punishable for, at common law, 2T1. whether tenants for life or by curtesy, 272 (n.) who hable under the Statutes of MarliTidge and Gloucester, 271, 279 (n.) tenant not liable for pulling down building erected by himself for trnde, (n. 1,) 34. removal of things fixed to the freehold is, in general, 6, 17, 72, 79, 86, 271, 281. or of things constructively annexed, 6. or of fruit trees, 68. of fixtures, an exception to the general rule, 20. trivial damage does not amount to,, 89 (re.), 274. distinction between legal and equilable, 285. of stranger, tenant how liable for, 275, (n.) of testator, executor how liable for, 276. See tit. Executor. of executor in his own lime, remedy for, 276. of ecclesiastical persons, remedy for. See tit. Dilapidations. of tenant at will, remedy of landlord for, 290. remedies for, at law and in equity, 271, 281. by action of waste, and case in the nature of waste, 271. by prohibition of waste, 282, 287. by writ of estrepement of waste, 282. by injunetion, 282, 288. See tit. Jnj)i,nction. by account, &c., 284. ancient form of proceeding in, by writ of waste, 271. by, and against whom maintainable, 272. instances of in recent times, 274. now abolished by statute, 275. modern form of proceeding in, by action on the case in nature of waste, 276. right to fixtures, how determined in, 275. whether maintainable in case of express covenant, 277. whether maintainable lor permissive waste, 279 (n.) "WATER PIPES, poor's rate in respect of, 262. "WATER TUBS, removable by tenant, 76. "WATER WHEELS AND MILLS, &c., {n. 1,) 155, 161. "WELLS, machinery of, not personal estate, as against the heir, 174. "WILL, when fixtures pass by ; see tits. Devise, Devisee. 314 INDEX: WILLOWS, when tenant may out, 69, (n.) WINDMILLS, pass by conveyance of land, 215. mortgage of| passes the stones, &o.,»228. sails, &e., of, considered parcel oC, 1 67 (n.), 228, 334. when deemed personal chattels, 6 (n.), ISO, 266, 268, (». 1,) 136. whether liable to execution under a fieri facias, 323. possession of after mortgage, not frauiuleut, 231. nor a reputed ownership, 240. built on posts, Ac, will not confer a settlement, 266. voting in respect of, 268. See tit. Mills. WINDOWS, considered parcel of the freehold, 6 (n.), 72, 86 (n.), 154, 218. pass by conveyance or lease of the house, 218. removal of, waste, 72. And see tit. Glass. not considered affixed, when fastened by cross-laths, 218, 329 (n.) are constructively annexed, if hanging on hooks, 6 (a), 218, 246, 316. are not distrainable although hung upon hooks, 316. See (n. 1,) 317. WINDOW SHUTTERS, considered parcel of the freehold in favor of the heir, 155, (». 1,) 317. KF 636 A95 1855 c.l Author Amos, Andrew Vol. . Title The law of fixtures .... Copy Plllgi iiwii m' llilpiiiiilii^ liiiiiitiiiii- iiillliiii