There are also certain fixtures as to which the right of removal is unsettled, but has been the subject of discussion in determining some of the cases already referred to; of these doubtful articles, the subjoined is a list :

It is not material in regard to the right of removal by a tenant whether he held for life, or merely from year to year, &c.; and there is no distinction whether the tenancy is created by deed or parol agreement. Those fixtures that are removable must, generally speaking, be removed before the expiration of the tenancy, or its determination by forfeiture (a); although it seems if the tenant hold over (even wrongfully) after his tenancy has expired, he may sever and remove them whilst he continues in possession (b). And the sheriff, on executing a fi. fa. against the goods of a lessee, has the same power of taking fixtures as the lessee had of removing them (c).

2. By Contract.-Where upon the creation of a tenancy, there has been any contract respecting the fixtures, the general rules already mentioned will of course be subject to the terms of such contract; for it is a general principle that parties may, by entering into a contract, vary the strict position in which they would otherwise stand towards each other.

A tenant under a covenant to keep in repair all erections built and "thereafter to be erected and built," and to surrender them in such repair at the end of the term, cannot remove fixtures, although, had it not been for the covenant, they would have been legally removable as trade fixtures (d).

The same rule was adopted with respect to a veranda where there existed a similar covenant (e). And in Martyr v. Brad

ley (f) it was held that a covenant to leave at the end of a term a water-mill," with all fixtures, fastenings, and improvements set up, &c. during the term, in good condition, reasonable use and wear excepted," included a pair of new millstones, although the custom of the country justified their removal.

A tenant may also, by the terms of his contract or demise, extend the time for removing fixtures, or otherwise vary his restrictions or privileges upon the subject (g). Therefore before a tenant removes fixtures he should examine his right to do so, not only with reference to the general law of fixtures, but also as it may be affected by the terms of his tenancy.

It may be observed, that it is important to make the question of fixtures a matter of agreement, for they are considered so much an integral part of the house, that, upon an agreement for a lease, &c. if no mention is made of the fixtures in the house, it seems they would be considered as thrown into the bargain, and a compensation for their use included in the rent of the premises (h). And if a tenant at the close of his term renew his lease, and acquire a fresh interest in the same premises, he should take care to reserve his right to remove those fixtures which he had, under the old tenancy, a right to sever. For by entering into such new engagements without express reservation of the right of removing his fixtures, and without detaching them from the premises during the first tenancy, the tenant may sometimes lose his property in them altogether (i).

Where there is an express demise of the fixtures as part of the land, or where they are tacitly let therewith, there is conferred on the tenant the mere right to use the articles as fixtures; he cannot disunite them from the premises, and if he do so they become mere goods, and the absolute property of the landlord; and the right of user would at once cease (k).

(f) Martyr v. Bradley, 2 Moore & S. 25; 9 Bing. 24, S. C.; and see Hare v. Horton, 5 B. & Ad. 715; ante, $56.

(g) See Burn v. Miller, 4 Taunt. 745; Naylor v. Collinge, 1 Taunt. 19. See also Rex v. Topping, M'Clel. & Y. 544, as to the effect of forfeiture upon covenants in a lease as to repairing, removing fixtures, &c. As to effect of a custom in a particular district, Wigglesworth v. Dallison, 1 Dougl. 201; id. 207, post, 367.

(h) Colegrave v. Dias Santos, 2 B. & C. 76; 3 D. & R. 255, S. C.; Thresher v. East London Waterworks Company, 2 B. & C. 608; 4 D. & R. 62, S. C. That is, in such case, the tenant would impliedly be entitled to the use of them during the term; Amos, 189.

(i) Id.; Fitzherbert v. Shaw, 1 Hen. Bla. 258.

(k) Farrant v. Thompson, 5 B. & Ald. 826.

3. As between out-going and in-coming Tenants.-The right to remove fixtures, as between these parties, is in general governed by the principles which regulate questions respecting them between landlord and tenant; the greater part, therefore, of the foregoing observations will apply to the relation of outgoing and in-coming tenants.

There is usually an agreement between these parties, that the fixtures shall be taken at a valuation. Where this is the case all those articles should be valued to the in-coming tenant, which, under the general law of fixtures, are removable between a landlord and his tenant; including those which had been originally purchased of the landlord by the out-going tenant. But those articles which, as against the landlord, the out-going tenant cannot legally take away, cannot be claimed by the latter to be inserted in the appraisement; nor is he entitled to an allowance for them merely because he may have put them up at his own expense. And with respect to things which are generally removable by tenants, if any of these were affixed to the premises prior to the demise to the out-going tenant, and were not purchased by him of the landlord; or if the removal of them would contravene any proviso or agreement in the contract of demise, they should not be valued to the in-coming tenant.

Where an agreement respecting fixtures is about to take place between an out-going and an in-coming tenant, it is advisable that the landlord should be made a party to the transaction. For otherwise the latter may perhaps afterwards insist that, as the fixtures were not removed during the out-going tenant's term (/), they fell in with the lease; and that the in-comer took them only as part of the demised premises, and consequently is not entitled to remove them. If there be no immediately in-coming tenant at the end of a term, and the out-goer wishes to leave his fixtures to be valued to the next tenant, it is necessary that he should obtain the consent of his landlord to allow them to remain on the premises. For if the fixtures remain on the premises after the expiration of the term without such consent, the tenant loses his property in them (m).

(1) See ante, 363, 364.

(m) Minshall v. Lloyd, 2 M. & W. 450. Trover would not be maintainable by the tenant against his landlord

for them, even after severance, id.; but see 2 Smith's Leading Cases, 118; and Davis v. Jones, 2 B. & Ad. 166.

The valuation or appraisement of fixtures requires a stamp before it can be received in evidence (n`.

6thly. OF AWAY-GOING CROPS, TILLAGES, &c.

It appears to be a general rule that a tenant from year to year is impliedly entitled to emblements, that is, crops of corn sown, and the produce of annual artificial roots, &c. where his interest is determined by the happening of an uncertain event, over which he has no control, after the crops, &c. have been sown, &c. and before they arrive at maturity; as where the tenancy is determined by a notice to quit from the landlord (o). Emblements, however, can be claimed only in a crop of a species which ordinarily repays the labour by which it is produced within the year in which that labour is bestowed (p).

But the right to away-going crops, that is, the produce of crops sown during the last year of the tenancy, but which have not arrived at maturity at the expiration of the tenancy, and which right we are about to consider, depends upon principles different from those which govern the law of emblements. The right to emblements, strictly so called, obtains only in the case of tenants and persons who have an uncertain estate and interest in land, and which is put an end to suddenly by death or the act of law, between the sowing and severance of the crops (q). The claim to away-going crops now under consideration, may apply as well to persons who have certain as to those who have contingent interests in the land; it may hold in the case of tenancies for a term of years, or in the instance of a yearly tenancy, whether it be determined by the landlord or the tenant (r). This right is created either by the custom or usage of the country or neighbourhood, or by virtue of express contract between the parties. It is, however, observable, that where the law of emblements does not apply, and there is neither any prevalent custom or usage, or any contract to confer the right to

(n) Stamp Act, 55 G. 3, c. 184, Sched. pt. 1, tit. Appraisement.

(0) Kinsbury v. Collins, 12 Moor, 424; 4 Bing. 202, S. C.; see 2 Bla. C. 123, 404; Shep. Touch. 244; Woodf. by Harrison, 482. A tenant, for a term of years certain is not entitled to emblements. Id. Co. Lit.

55, b; and per Lord Mansfield, in Wigglesworth v. Dallison, 1 Dougl. 201; id. 207; post, 367.

(p) Graves v. Weld, 5 B. & Ad. 105; 2 Nev. & M. 725, S. C. (g) Supra, note (o). (r) Onslow v.

16 Ves. 173.