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removable;] 3dly, that the Sheriff might take them in execution, as well as the under-lessee might remove them ,• and so this was not like tenant for years without impeachment of waste: in that case he allowed the Sheriff could not cut down and sell, though the tenant might, and the reason is, because in that case, the tenant hath only a bare power without an interest, but here the under-lessee hath an interest as well as a power, as tenant for years hath in standing corn, in which case the Sheriff can cut down and sell (a).

Where the tenant, however, has by law a right to carry away any erections or other things, on the premises which he has quitted, the inclination of Lord Kenyon's mind was, that he had a right to come on the premises, for the purpose of taking them away: but as to that point, the defendant in the principal case had let judgment go by default (b).

In trover for ten loads of timber, the case was, that the defendant had been tenant to the plaintiff, and erected a barn upon the premises, and put it upon pattens and blocks of timber lying upon the ground, but not fixed in or to the ground: and upon proof that it was usual in that country to erect barns so, in order to carry them away at the end of the term, a verdict was given for the defend- ant (c). But though Lord Chief Justice Treby thought proper in that case to take advantage of the custom of the country, yet it is apprehended that it would now be determined in favour of the tenant without any difficulty.—But when a purchaser of lands had brought an ejectment against the tenant from year to year, and the parties had entered into an agreement that judgment should be entered for the plaintiff, with a stay of execution till a given period; though in such agreement no mention was made of any buildings or fixtures, it was held that the tenant could not in the mean time remove buildings (a wooden stable standing upon rollers) or fixtures (posts or rails) from the premises, which he had himself erected before action brought; because the fair interpretation of such agreement was, that the defendant should in the mean time do no act to alter the premises, but should deliver them up in the same condition, as when the agreement was made, and judgment signed. For though he would clearly have been entitled to take away the articles, if he had done it during the continuance of his term from year to year, yet by the agreement the parties had made a new contract, which put an end to the term (d).

If, however, a man sell a house where there is a copper, or a brewhouse where there are utensils, unless there was some consideration

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given for them, and a valuation set upon them, they would not pass (a).

In an action of covenant brought by the plaintiff against the defendant who had been his lessee, under a lease containing a covenant that the lessee should leave all the buildings which then were, or should be erected on the premises during the term, in repair, &c. the breach assigned was, that the defendant took down and carried away two sheds, which had been erected during the term. The defendant pleaded performance of the covenants, and issue was taken on the breach as above assigned. The buildings in question were two sheds, called Dutch barns, which had been erected by the defendant during his term; and which his counsel contended he had a right to remove. Lord Kenyon. —If a tenant will build upon premises demised to him a substantial addition to the house, or add to its magnificence, he must leave his additions at the expiration of the term, for the benefit of his landlord: but the law will make the most favourable construction for the tenant, where he made necessary and useful erections for the benefit of his trade or manufacture, and which enable him to carry it on with more advantage. It has been held so in the case of cyder-mills, and in other cases; and I shall not narrow the law, but hold erections of this sort, made for the benefit of trade, or constructed as the present, to be removable at the end of the term. It was then contended, that by the express words of the covenant the tenant was to leave all erections on the premises at the end of the term. Lord Kenyon.—I am aware of the full extent of that, and not quite sure that it concludes the question. It means, that the tenant should leave all those buildings which are annexed to and become part of the reversionary estate (b).

A covenant by a tenant to yield up in repair at the expiration of his lease all buildings which should be erected during the term upon the demised premises includes buildings erected and used by the tenant for the purpose of trade and manufacture, if such buildings be let into the soil, or otherwise fixed to the freehold, but not where they merely rest upon blocks or pattens (c).

Fixtures.—Hangings, pier-glasses, &c. though forming part of the wainscot and fixed with nails and screws to the freehold, are not to be taken as part of the freehold, but are removable by the lessee of the house (d),—So marble chimney-pieces may be removed by the tenant (*).

The price of fixtures cannot be recovered under a count of goods sold and delivered (/).

(a) Expect Quincy. X Atk. 4 Poole's I (t) Naylor v. Collinge. 1 Taunt 19.

Case. I S.Ik. 368. | (4) Beck v. Rebow. 1 P. Wms. 94.

(3) Dean v. Allalley. 3 Esp. R, II. vide j (r) Ex-parte Quincy. 1 Atk.477-8.

Elwts v. Maw. 1 East. 38. 1 (f) Lee v.Risdon. 7 Taunt. 188.

Bat in trespass the plaintiff may recover the value of fixtures, under a count charging defendant with taking goods, chattels, and effects (.•). To trespass for breaking and entering, &c. and pulling down and taking away certain buildings, &c. the defendant, as to the breaking and entering, suffered judgment by default, and pleaded not guilty as to the rest. It was held, that such plea was sustained by shewing that the building taken away, which was of wood, was erected by him as tenant of the premises, on a foundation of brick, for the purpose of carrying on his trade, and that he still continued in possession of the premises at the time when, &c. though the term was then cxpired.-At the trial, Lord Kenyon observed, that the mere erection of a chimney would not prevent the right of taking away the rest of the building, which surrounded it, where the trade was carried on. In Dudley and Dudley, a steam-engine, to which a chimney necessarily belonged, was held to be removable. Modern determinations have, for the benefit of trade, allowed many things to be removed, which the rigour of former determinations, considering them as fixed to the freehold, prohibited. The case of cyder-mills is familiar to us all. The construction ought to be favourable to the tenant, and my opinion is, that he was warranted in removing the building in question; but I will reserve the point {b). And upon the case being argued afterwards, his Lordship said, That the old cases upon this subject leant to consider as realty whatever was annexed to the freehold by the occupiers, but in modern times the leaning has always been the other way in favour 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 improvement of the land, if he must leave every thing behind him which can be said to be annexed to it: bhall it be said, that the great gardeners and nurserymen in the neighbourhood of this metropolis, who expend thousands of pounds in the erection of green-houses, hot-houses, &c. are obliged to leave all these things upon the premises, when it is notorious that they are even permitted to remove trees, or such as are likely to become such by the thousand, in the necessary course of trade? If it were otherwise, the very object of their holding would be defeated. This is a description of property divided from the realty; and some of the cases have even gone further in favour of the executor of tenant for life against the remainder man, between whom the rule has been holden stricter; for it has been determined that the executor of tenant for life was entitled to take away the fire-engine of a colliery. The case of Fitzherbert v. Shaw (c), turned upon the construction of an agreement that such things should be left on the premises, and decided nothing against the general principle. Here tn

(-) PHt v. Shew. 4 Bam. & Aid. ao6. I (0 » H- B1' ,i8>
0) Penton v. Robart. 4 E»p. R. 33-'

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 pretence to say that he had abandoned them. And by Lawrence, J. it is admitted that the defendant has a right to take these things away during the term: and all that he admits upon this record against himself by suffering judgment to go by default as to the breaking and entering is, that he was a trespasser in coming upon the land, but not a trespasser de bonis asportatis,- as to so much therefore he is entitled to judgment (a).

Another exception is between tenant for life or in tail, and the reversion or remainder-man. The former also may remove brewing utensils, furnaces, coppers, fire engines, cyder-mills, &c. which he has erected, and by which he not only enjoys the profit of the estate, but carries on a species of trade; and if he does not remove them in his lifetime, they go to his executor (b). Reasons of public benefit and convenience have tended to establish this principle; and indeed it is but consonant to common ideas of justice: as for instance, in the case of a fire-engine, it is very well known that little profit could be made of coal mines without such an engine; and tenants for life 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 was set up (c). So, emblements go to the executor, and not to the remainder-man, the public being interested in the produce of corn and other grain. But corn growing belongs, it is said, to a devisee of land, and not to the executor. Though a devisee, of goods stock and moveables, shall take it from both (d). Hangings, chimney-glasses or pier-glasses, being matters of ornament and furniture, do not go with the house, but to the executor (e).

The rule however still holds as between heir and executor: the freehold descending on the heir, the executor cannot enter to take away fixtures without being a trespasser (b). Indeed, in questions between the heir or devisee and the executor, cupboards, presses, lockers, and other fixtures of the like kind, may with propriety enough be considered as annexed to and parts of the freehold. The law will presume, that it was the intention of the owner, under whose bounty the executor claimeth, that they should be so considered, to the end that the house might remain to those, who by operation of law or by bequest should become intitled to it, in the same plight he put it, or should leave it, entire and undefaced. But in capital cases* Mr. Justice Foster (f) was of opinion that such fixtures which merely

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supply the place of chests and other ordinary utensils of household, should be considered in no other light than as mere moveables, partaking of the nature of those utensils, and adapted to the same use. Therefore in favour of life, a distinction is to be taken between cases relative to mere property and such wherein life is considered.—An action of trover (a) was brought by the plaintiffs as administrators of Robert Lawton against the defendant for certain salt-pans which were put into wyche houses in Cheshire. The pans were brought in pieces. The wyche houses are of no use without the pans, nor is the brine of any use without them. There was room for the workmen to walk round them within the building. The pans were fixed by brick and mortar to the floor of the building ; and there was a furnace under it. The building and lodging rooms at the end of it, which building, with the pans, let for 8/. a week. The question was, whether these pans were to go to the executor or to the heir. The ancestor was seized in fee. Lord Mansfield delivered the opinion of the Court. All the old cases (and there are some to be found in the year-books, %hep. Touch. 469, 470.) lean in favour of the heir, and so rigidly, that if a tenant was to put up a wainscot or pictures let into the wainscot, &c. he should not take them away. There has been a relaxation of two species of property, the one between landlord and tenant, as marble chimney-pieces, and things which are necessary for trade, &c. and in the removal of these there is no hurt to the landlord. The tenant says, I leave the premises just as I found them. The other species in which there has been a relaxation is, between tenant for life and the 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 case it has been determined that the fire-engine 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. The same argument may be applied to the case of tenant for life and remainder-man, as to that of landlord and tenant; namely, that the remainder-man is not injured, but takes the estate in the same condition as if the thing in question had never been raised. The tenant for life will not erect such things unless they can go to his executor. But I cannot find any case (except that about the cyder-mill) where there has been any relaxation between the heir and executor. That case is not printed at large, but it most probably turned upon a custom. Now consider the present case, which is very strong. A salt brine in the county of Cheshire is a most valuable inheritance. But there is no enjoying the inheritance without the buildings and salt-pans: they are of no use but for that purpose, and the inheritance is of no value without them. To the executors they can

(a) Lawton v. Lawton. I H. Bl. R, 159.n. a,

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