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1st, That during the term the soap-boiler might well remove the vats he set up in relation to trade, and 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: But after the term they become a gift in law to him in reversion, and are not removable.
2dly, That there was a difference between what the soap-boiler did to carry on his trade, and what he did to complete the house, as hearths and chimney-pieces, which he held not 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 inight: 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.
CAVE v. CAVE.
BEFORE SIR NATHAN WRIGHT, LORD KEEPER. 1705.
(Reported 2 Vern. 508.} A QUESTION arising whether some pictures and glasses belonged to the heir or to the executor: the LORD KEEPER was of opinion,' that although pictures and glasses generally speaking are part of the personal estate ; vet if put up instead of wainscot, or where otherwise
wainscot would have been put, they shall go to the heir. The house ought not to come to the heir maimed and disfigured. Herlakenden's Case, wainscot put up with screws shall remain with the freehold.?
LAWTON v. LAWTON.
BEFORE LORD HARDWICKE, C. 1743.
(Reported 3 Atk. 12.] The material question in the cause was, whether a fire-engine set up for the benefit of a colliers by a tenant for life, shall be considered as personal estate, and go to his executor, or fixed to the freehold, and go to a remainder-man.
There was evidence read for the plaintiff, a creditor of the tenant for life, to prove that the fire-engine was worth, to be sold, three hundred and fifty pounds; and that it is customary to remove them; and that in
1 Only that part of the case which relates to fixtures is here given.
? See D'Eyncourt v. Gregory, L. R. 3 Eq. 382 ; Snedeker v. Warring, 12 N. Y. 170.
building of sheds for securing the engine, they leave holes for the ends of timber, to make it more commodious for removal, and that they are very capable of being carried from one place to another.
That the testator, the counsel for the plaintiff said, was dead, greatly indebted, and it would be hard, when he has been laying out his creditors' money in erecting this engine, that they should not have the benefit of it, but that the strict rule of law should take place.
Mr. Wilbraham compared it to the case of a cider-mill which is let in very deep into the ground, and is certainly fixed to the freehold ; and yet Lord Chief Baron Comyns, at the assizes at Worcester, 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 executor.
Evidence was produced on the part of the defendant, to show that the engine cannot be removed without tearing up the soil, and destroying the brick work.
Mi. Clark, of counsel for the defendant, cited Finch, fol. 135, under the head of Distress; and the case of Wortley Montague v. Sir James Clavering, about two years ago before Lord Hardwicke.
LORD CHANCELLOR. This is a demand by a creditor of Mr. Lawton, who set up the fire-engine, to have the fund for payment of debts es. tended as much as possible.
It is true the court cannot construe the fund for assets, further than the law allows, but they will do it to the utmost they can in favor of creditors,
This brings on the question of the fire-engine, whether it shall be considered as personal estate, and consequently applied to the increase of assets for payment of debts.
Now it does appear in evidence, that in its own nature it 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 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.
What would have been held to be waste in Henry the Seventh's time, as removing wainscot fixed only by screws, and marble chimney-pieces, is now allowed to be done.
Coppers and all sorts of brewing vessels, cannot possibly be used without being as much fixed as fire-engines, and in brewhouses especially, pipes must be laid through the walls, and supported by walls;
hat trade fixtures
and yet, notwithstanding this, as they are laid for the convenience of trade, landlords will not be allowed to retain them.
This being the general rule, consider how the case stands as to the engine, which is now in question.
It is said, there are two maxims which are strong for the remainderman: First, That you shall not destroy the principal thing, by taking away the accessory to it.
This is very true in general, but does not hold in the present case, the walls are not the principal thing, as they are only sheds to prevent any injury that might otherwise bappen to it.
Secondly, It has been said, that it must be deemed part of the estate, because it cannot subsist without it.
Now collieries formerly might be enjoyed before the invention of engines, and therefore this is only a question of majus and minus, whether it is more or less convenient for the colliery.
There is no doubt but the case would be very clear as between landlord and tenant.
It is true, the old rules of law have indeed been relaxed chiefly between landlord and tenant, and not so frequently between an ancestor and heir at law, or tenant for life and remainder-man.
But even in these cases, it does admit the consideration of public conveniency for determining the question.
I think, even between ancestor and heir, it would be very hard that such things should go in every instance to the heir.
One reason that weighs with me is, its being a mixed case 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 brewhouses, &c. of furnaces and coppers.
The case too of a cider-mill, between the executor and the heir, mentioned by Mr. Wilbraham, is extremely strong; for though cider is part of the profits of the real estate, yet it was held by Lord Chief Baron Comyns, a very able common lawyer, that the cider-mill was personal estate notwithstanding, and that it should go to the executor.
It does not differ it in my opinion, whether a shed over such an engine be made of brick or wood, for it is only intended to cover it from the weather and other inconveniences.
This is not the case between an ancestor and an heir, but an intermediate case, as Lord Hobart calls it, between a tenant for life and remainder-man.
Which way does the reason of the thing weigh most, between a tenant for life and a remainder-man, and the personal representative of tenant for life, or between an ancestor and his heir, and the personal representative of the ancestor? Why, no doubt, in favor of the former, and comes near the case of a common tenant, where the good of the public is the material consideration, which determines the court to construe these things personal estate ; and is like the case of emblements, which shall go to the executor, and not to the heir or remainder-man,
it being for the benefit of the kingdom, which is interested in the produce of corn, and other grain, and will not suffer them to go to the heir.
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 ingredient in my present opinion.
Upon the whole, I think this fire-engine ouglit to be considered as part of the personal estate of Mr. Lawton, and go to the executor for the increase of assets; and decreed accordingly.
(Reported 1 H. Bl. 259 note.] In this action of trover, brought by the executor against the tenant of the heir at law of the testator, to recover certain
vessels used in salt works, called salt pans, a case was reserved by consent, which stated, that the testator, some years before his death, placed the salt pans in the works ; that they were made of hammered iron, and riveted together ; that they were brought in pieces, and might be again removed in pieces ; that they were not joined to the walls, but were fixed with mortar to a brick floor; that there were furnaces under them ; that there was a space for the workmen to go round them; that there were no rooms over them ; but that there were lodgings at the end of the wych houses ; that they might be removed without injuring the buildings, though the salt works would be of no value without them, which with them were let for £8 per week.
The question was, whether the executor or the heir at law were entitled to them?
Mingay, for the plaintiff.
LORD MANSFIELD, after stating the case, said: All the old cases, some of which are in the Year-Books, and Brooke's Abridgment agree that whatever is connected with the freehold, as wainscot, furnaces,
1 “In the case of Lawton v. Lauton it was determined it (an engine) should go to executors, partly on the reasons there mentioned, and partly on the authority of the case of a cider-mill, there cited to have been so adjudged by Lord C. B. Comyns; that of Lawton v. Lawton, was the case of creditors ; but that makes no difference, because the question is, Whether part of the real or personal estate ?" Per LORD HARDWICKE, C., in Dudley v. Warde, Ambl. 113, 114. See D'Eyncourt v. Gregory, L. R. 3 Eq. 882; and IVadleigh v. Janrrin, 41 N. H. 503.