IT ז ent descriptions of representatives of the same owner of the inheritance; viz., between his heir and executor. In this first case, i. e., as between heir and executor, the rule obtains with the most rigor in favor of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel anything which has been affixed thereto. 2dly, Between the executors of tenant for life or in tail, and the remainderman or reversioner; in which case the right to fixtures is considered more favorably for executors than in the preceding case between heir and executor. The 3d case, and that in which the greatest latitude and indulgence has always been allowed in favor of the claim to having any particular articles considered as personal chattels as against the claim in respect of freehold or inheritance, is the case between landlord and tenant. But the general rule on this subject is that which obtains in the firstmentioned case, i. e., between heir and executor; and that rule (as 1 The opinion sufficiently states the case. found in the Year Book, 17 E. 2, p. 518, and laid down at the close of Herlakenden's Case, 4 Co. 64, in Co. Lit. 53, in Cooke v. Humphrey, Moore, 177, and in Lord Darby v. Asquith, Hob. 234, in the part cited by my brother Vaughan, and in other cases) is that where a lessee, having annexed anything to the freehold during his term, afterwards takes it away, it is waste. But this rule at a very early period had several exceptions attempted to be engrafted upon it, and which were at last effectually engrafted upon it, in favor of trade and of those vessels and utensils which are immediately subservient to the purposes of trade. In the Year Book 42 E. 3, 6, the right of the tenant to remove a furnace erected by him during his term is doubted and adjourned. In the Year Book of the 20 H. 7, 13, a. & b., which was the case of trespass against executors for removing a furnace fixed with mortar by their testator and annexed to the freehold, and which was holden to be wrongfully done, it is laid down, that "if a lessee for years make a furnace for his advantage, or a dyer make his vats or vessels to occupy his occupation during his term, he may remove them; but if he suffer them to be fixed to the earth after the term, then they belong to the lessor. And so of a baker. And so of a baker. And it is not waste to remove such things within the term by some: and this shall be against the opinions aforesaid." But the rule in this extent in favor of tenants is doubted afterwards in 21 H. 7, 27, and narrowed there, by allowing that the lessee for years could only remove, within the term, things fixed to the ground, and not to the walls of the principal building. However, in process of time the rule in favor of the right in the tenant to remove utensils set up in relation to trade became fully established; and accordingly, we find Lord Holt, in Poole's Case, Salk. 368, laying down (in the instance of a soap-boiler, an under-tenant, whose vats, coppers, &c., fixed, had been taken in execution, and on which account the first lessee had brought an action against the sheriff), 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 that after the term they became a gift in law to him in reversion, and were not removable. He adds, that there was a difference between what the soap-boiler did to carry on his trade, and what he did to complete his house, as hearths and chimney-pieces, which he held not removable. The indulgence in favor of the tenant for years during the term trade figures. has been since carried still further, and he has been allowed to carry away matters of ornament, as ornamental marble chimney-pieces, pierglasses, hangings, wainscot fixed only by screws, and the like. Beck v, Rebow, 1 P. Wms. 94; Ex parte Quincey, 1 Atk. 477, and Lawton v. Lawton, 3 Atk. 13. But no adjudged case has yet gone the length of establishing that buildings subservient to purposes of agriculture, as distinguished from those of trade, have been removable by an executor of tenant for life, nor by the tenant himself who built them during his term. In deciding whether a particular fixed instrument, machine, or even building should be considered as removable by the executor, as between him and the heir, the court, in the three principal cases on this subject (viz. Lawton v. Lawton, 3 Atk. 13, which was the case of a fire-engine to work a colliery erected by tenant for life; Lord Dudley and Lord Ward, Ambler, 113, which was also the case of a fire-engine to work a colliery erected by tenant for life, - these two cases before Lord Hardwicke, — and Lawton, Executor, v. Salmon, E. 22, G. 3; 1 H. Blac. 259, in notis, before Lord Mansfield, which was the case of salt pans, and which came on in the shape of an action of trover brought for the salt pans by the executor against the tenant of the heir at law), the court may be considered as having decided mainly on this ground, that where the fixed instrument, engine, or utensil (and the building covering the same falls within the same principle), was an accessory to a matter of a personal nature, that it should be itself considered as personalty. The fire-engine, in the cases in 3 Atk. and Ambler, was an accessory to the carrying on the trade of getting and vending coals; a matter of a personal nature. Lord Hardwicke says, in the case in Ambler, "A colliery is not only an enjoyment of the estate, but in part carrying on a trade." And in the case in 3 Atk. he says, "One reason that weighs with me is its being a mixed case, between enjoying the profits of the lands, 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." Upon the same principle Lord Ch. B. Comyns may be considered as having decided the case of the cider-mill; i. e., as a mixed case between enjoying the profits of the land and carrying on a species of trade; and as considering the cider-mill as properly an accessory to the trade of making cider. In the case of the salt pans, Lord Mansfield does not seem to have considered them as accessory to the carrying on a trade, but as merely the means of enjoying the benefit of the inheritance. He says, "The salt spring is a valuable inheritance, but no profit arises from it unless there be 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 accessories necessary to the enjoyment of the principal. The owner erected them for the benefit of the inheritance." Upon this principle he considered them as belonging to the heir, as parcel of the inheritance, for the enjoyment of which they were made, and not as belonging to the executor, as the means or instrument of carrying on a trade. If, however, he had even considered them as belonging to the executor, as utensils of trade, or as being removable by the tenant, on the ground of their being such utensils of trade; still it would not have affected the question now before the court, which is the right of a tenant for mere agricultural purposes to remove buildings fixed to the freehold, which were constructed by him for the ordinary purposes of husbandry, and connected with no description of trade whatsoever and to which description of buildings no case (except the Nisi Prius case of Dean v. Allaly, before Lord Kenyon, and which did not undergo the subsequent review of himself and the rest of the court) has yet extended the indulgence allowed to tenants in respect to buildings for the purposes of trade. In the case in Buller's Nisi Prius, 34, of Culling v. Tuffnell, before Ch. J. Treby, at Nisi Prius, he is stated to have holden that the tenant who had 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, might by the custom of the country take them away at the end of his term. To be sure he might, and that without any custom; for the terms of the statement exclude them from being considered as fixtures: "they were not fixed in or to the ground." In the case of Fitzherbert v. Shaw, 1 H. Blac. 258, we have only the opinion of a very learned judge indeed, Mr. Justice Gould, of what would have been the right of the tenant, as to the taking away a shed built on brick-work, and some posts and rails which he had erected, if the tenant had done so during the term; but as the term was put an end to by a new contract, the question what the tenant could have done in virtue of his right under the old term, if it had continued, could never have come judicially before him at Nisi Prius; and when that question was offered to be argued in the court above, the counsel were stopped, as the question was excluded by the new agreement. As to the case of Penton v. Robart, 2 East, 88, it was the case of a varnish house, with a brick foundation let into the ground, of which the wood-work had been removed from another place, where the defendant had carried on his trade with it. It was a building for the purpose of trade; and the tenant was entitled to the same indulgence in that case, which, in the cases already considered, had been allowed to other buildings for the purposes of trade; as furnaces, vats, coppers, engines, and the like. And though Lord Kenyon, after putting the case upon the ground of the leaning which obtains in modern times in favor of the interests of trade; upon which ground it might be properly sup ported; goes further, and extends the indulgence of the law to the erection of green-houses and hot-houses by nurserymen, and indeed by implication to buildings by all other tenants of land; there certainly exists no decided case, and, I believe, no recognized opinion or practice on either side of Westminster Hall, to warrant such an extension. The Nisi Prius case of Dean v. Allaly (reported in Mr. Woodfall's book, p. 207, and Mr. Espinasse's, 2 vol. 11), is a case of the erection and removal by the tenant of two sheds, called Dutch barns, which were, I will assume, unquestionably fixtures. Lord Kenyon says, "The law will make the most favorable construction for the tenant, where he has 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 so holden in the case of cider-mills, and 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." Lord Kenyon here uniformly mentions the benefit of trade, as if it were a building subservient to some purposes of trade; and never mentions agriculture, for the purposes of which it was erected. He certainly seems, however, to have thought that buildings erected by tenants for the purposes of farming, were, or rather ought to be, governed by the same rules which had been so long judicially holden to apply in the case of buildings for the purposes of trade. But the case of buildings for trade has been always put and recognized as a known, allowed, exception from the general rule, which obtains as to other buildings; and the circumstance of its being so treated and considered establishes the existence of the general rule to which it is considered as an exception. To hold otherwise, and to extend the rule in favor of tenants in the latitude contended for by the defendant, would be, as appears to me, to introduce a dangerous innovation into the relative state of rights and interests holden to subsist between landlords and tenants. But its danger or probable mischief is not so properly a consideration for a court of law, as whether the adoption of such a doctrine would be an innovation at all; and, being of opinion that it would be so, and contrary to the uniform current of legal authorities on the subject, we feel ourselves, in conformity to, and in support of those authorities, obliged to pronounce that the defendant had no right to take away the erections stated and described in this case. Vaughan, Serjeant, and Torkington, for the plaintiff. Postea to the plaintiff. BUCKLAND v. BUTTERFIELD. COMMON PLEAS. 1820. [Reported 2 Brod. & B. 54.] ACTION on the case, in the nature of waste, by tenant for life, aged 70, against the assignees of her lessee from year to year, who had become bankrupt. The bankrupt was the son of the plaintiff, and had also a remainder for life in the premises after her death. At Buckingham Lent Assizes, 1820, before Graham, B., the case proved was, that the defendants had taken away from the premises let to the bankrupt a conservatory and a pinery. The conservatory, which had been purchased by the bankrupt and brought from a distance, was by him. erected on a brick foundation fifteen inches deep: upon that was bedded a sill, over which was framework covered with slate; the framework was eight or nine feet high at the end, and about two in front. This conservatory was attached to the dwelling-house by eight cantilivers let nine inches into the wall, which cantilivers supported the rafters of the conservatory. Resting on the cantilivers was a balcony with iron rails. The conservatory was constructed with |