coppers." Upon this principle the engines for raising coals were held to belong to the executor. And it may be stated as a general rule, that the representative of the particular tenant, i.e., for life or in tail, is entitled against the remainder man to fixtures wholly or in part erected for the furtherance of trade.

LANDLORD AND TENANT.

But this question most usually arises between landlord and tenant. The original rule was that the tenant, if he had affixed anything to the freehold during his tenancy, could not again remove it without the consent of the landlord. But several exceptions have been engrafted upon this rule, amongst which the one with which alone this treatise is concerned is this: that utensils set up in connection with and relation to trade may be removed by the tenant. This exception was grounded upon the public policy of encouraging trade, which would otherwise have been materially checked. And the law was very clearly laid down by Lord Ellenborough in the case of Elwes v. Mawe (3 East, 38), to which case a most lucid commentary has been appended in Smith's Leading Cases, 5 Ed. vol. ii. p. 185. Besides the engines above mentioned, this general exception has been held to extend to a shed called a Dutch barn, set up for trading purposes, and having a foundation of brickwork and uprights fixed in and rising from the brickwork, and supporting the roof, which was made of tiles; and to a shed built on brickwork, and to posts and rails.

It is difficult, however, to say with perfect precision how far this exception or protection may be carried with respect to particular items. Generally, when articles can be removed without causing any serious detriment and mischief to the freehold, or when they can be taken away without being themselves entirely demolished, or without losing their value, the removal will be lawful. A building entirely of brick, therefore, could hardly be removed, though when it has a brick foundation, and the erection is mainly of wood, it may be removed. A steam-engine may be removed, and so may furnaces, and all kinds of machinery, and stoves. How far the removal of storehouses and workshops may be sanctioned by the Common Law Courts it is not possible to say, and must depend upon the nature of each item which may be the subject of dispute hereafter.

Time for Removal.—Where fixtures may be removed at all, it is incumbent upon the tenant to remove them before the end of the term, or within a reasonable time after the expiration of the term, as defined by James L. J. in Ex parte Stephens re Lavies, infra, p. 87. The injury done by the severance should be repaired, and the premises left in the state they were in at the commencement of the tenancy, if anything in the nature of a fixture has been substituted for another then affixed, and afterwards replaced. In illustration of this rule, and of the law generally, a few leading cases will be here referred to.

In the important leading case of Minshull and another v. Lloyd,* a colliery had been leased with

* 2 M. & W. 459.

the right of putting up engines, &c., subject to a right of re-entry on non-payment of rent or insolvency. Certain engines were erected and affixed to the soil. The tenant afterwards assigned the property to trustees to secure an annuity. The landlord in June 1829 recovered possession by ejectment, and in the following November an execution creditor of the tenant who had so assigned seized the engines, &c., under a writ of fi. fa. The trustees then sought to recover the steam-engines in trover. It was held they could not do so, on the ground that the tenant had not severed them during his term. Mr. Baron Parke stated the law very clearly as follows: “We take these engines to have been in part affixed in a substantial manner to the freehold, in the ordinary way in which steam-engines are erected. The law is clearly settled that everything substantially and permanently affixed to the soil is in law a fixture. The principle of law is that quicquid solo plantatur solo cedit. The right of a tenant is only to remove during his term the fixtures he may have put up, and so to make them cease to be any longer fixtures. That right of the tenant enables the sheriff to take them under a writ for the benefit of the tenant's creditor. I assent to the doctrine laid down in Coombs v. Beaumont (B. & Ad. 72), that such fixtures are not goods and chattels within the bankrupt law, though they are goods and chattels when made such by the tenant's severance, or for the benefit of execution creditors. These engines were never goods and chattels at all, so as to pass to the plaintiffs. They had only the same right of removal as the tenant, which ceased in June 1829, and that right of removal would

not have enabled the tenant to sue in trover for them even during his term."

In Ex parte Stephens re Lavies, 7 Ch. D. 127, Lord Justice James stated the law as follows: "The law is clearly settled that the right of a tenant to fixtures is a qualified right. It is a right to have the fixtures if he removes them during his term, or during a certain time after its expiration, something which may be called an enlargement of the term, or to use the words of Baron Parke, an excrescence on the term, during which the tenant has a right to consider himself as still in possession of the premises as tenant under the landlord.”

Distrainable Fixtures.-In the case of Hellawell v. Eastwood and others (6 Ex. Rep. 295), it was held that machinery for the purpose of manufacture (ex. gra., mules for spinning cotton, fixed by screws into the wooden floors of a factory, or in some cases sunk in the stone flooring and secured by lead) is by law distrainable for rent. At common law, things fixed to the freehold could not be distrained for two reasons; that what is part of the freehold cannot be severed without detriment to the thing itself, and things which cannot be restored in the same plight and condition cannot be distrained for rent. The Court, therefore, considered whether these mules fell under either of these heads, as otherwise they were not protected. They held that not being perishable, they were not within the last category, and the only question was whether they were, when fixed, part of the freehold. This is a question of fact, depending on the circumstances of each case, and chiefly on the consideration whether the

mode of annexation was such that the article could be removed integre, salve, commode, without injury to itself or the building, and whether it was for the permanent and substantial improvement of the building, or merely for a temporary purpose. They held that the mules never became part of the freehold. They were slightly attached, and would have passed to the executor; they never ceased to have the character of moveable chattels, and were therefore liable to be distrained. It seems that the case was decided on the principle that articles of this kind included in this case are not fixtures at all; that they never changed their legal character of chattels belonging to the tenant, but were merely to be regarded as so much furniture.

A more recent case on this branch of the law is Taylor v. Cameron, L. R. 5 Q. B. 306. Three railways were connected with a coal mine, one within the mine, one within a yard attached to the colliery, and the third extending from the yard and effecting a junction with a public railway. The lessee of the mine had mortgaged it to the plaintiff, who had entered into possession. The rent being in arrear, the lessor distrained, among other things, the three railways. The railways were The railways were constructed in the following manner: The surface of the ground was prepared by having ballast spread upon it; sleepers were then embedded in the ballast and the ballast packed, and the rails were fastened to the sleepers by nails. In order to remove the rails they were wrenched off the sleepers by means of bars and picks; and to remove the sleepers it was necessary to loosen the ballast by means of picks, and then with