this rule still applied to agricultural erec- | removable, and that whether so or not tions. The question in that case related to must depend on the particular case, we are a beast house, a carpenter's shop, a fuel of opinion that no case has ever extended house, a cart house, a pump house, and a the right to remove nearly so far as it would farm yard, stated to be " necessary for the be extended, if such right were to be esoccupation of the farm, which could not be tablished in the present instance, under the well managed without them:" and the facts of the report; and therefore we agree tenant was held liable to an action in the with the learned judge at the trial in thinknature of waste, for having removed them.ing that the building in question must be The judgment in this case is considered one of the most striking specimens of Lord Ellenborough's power and learning.

considered as annexed to the freehold, and that consequently the removal of it would be waste."

So an ordinary tenant is not entitled to take away growing trees, without a special agreement; nor flowers planted in the ground; nor a border of box; for a border of box is intended to be permanent; and it might as well be contended that a tenant could take up hedges.h

3. It is a distinct question, within what time must the tenant exercise this right of removal, supposing the fixtures to be of the kind which are removable. A clearer statement of the understood and general rule upon this point cannot be made, than is contained in the following observations of Gibbs, C. J., in a case in which the rule was not indeed the principal question. That great Judge, so eminent for learning, accuracy, perspicaciousness, and precision, said, "The right between landlord and tenant does not altogether depend on the principle, that the articles continue in the state of chattels : many of those articles, though originally goods and chattels, yet when affixed by a tenant to the freehold, cease to be goods and chattels, by becoming part of the freehold; and though it is in his

Of the principle, that the tenant has no right to remove fixtures which from their nature, structure, mode of annexation, or other peculiarities, may most reasonably be regarded as permanent improvements, the case of Buckland v. Butterfield affords an illustration. There the question was, whether a pinery and conservatory, erected by the tenant, were removable fixtures: the conservatory, it was stated, was erected on a foundation of brick work, fifteen inches deep, on which was a bedded sill; on this sill the conservatory was placed, and it was attached to the dwelling house by cantilions, which were set nine inches into the wall, and were fastened thereto with wedges: over the conservatory was a balcony, with iron rails resting on the cantilions; and there was a communication by folding doors between the balcony and the drawing room. The pinery was erected in the garden, on a brick wall four feet high. Dallas, C. J. said, "Passing over all that relates to trade and agriculture, as not being connected with the present subject, it will be only necessary to advert, as bearing upon it, to the doctrine of Lord Kenyon, in Pen-power to reduce them to the state of goods ton v. Robarts, referred to at the bar. The and chattels again, by severing them during case itself was that of a building for the his term, yet until they are severed, they purpose of trade, and consequently standing are part of the freehold; as wainscots upon a different ground from the present; screwed to the wall; trees in a nursery but it has been cited for the dictum of Lord ground, which when severed are chattels, Kenyon, which seems to treat of green but standing, are part of the freehold; cerhouses and hot houses, erected by great tain grates, and the like: and unless the gardeners and nurserymen, as not to be lessee uses, during the term, his continuing considered as annexed to the freehold.prwilege to sever them, he cannot afterwards Even if the law were so, which it is not necessary to examine, still, for obvious rea- So in the Year Book of the 20 H. 7, sons, such a case would not be similar to 13 a. & b. (as cited by Lord Ellenborough, the present. But in Elwes v. Maw, speak-in Elwes v. Maw), which was the case of ing of this dictum, Lord Ellenborough said, trespass against executors for removing a "There exists no decided case, and I be- furnace fixed with mortar by their testator, lieve no recognized opinion or practice, on it is laid down, that if a lessee for years either side of Westminster Hall, to warrant make a furnace for his advantage, or a dyer such an extension. Allowing, then, that make his vats or vessels to occupy during matters of ornament may or may not be

g 4 Moore R. 440.

do it."

h As to all these things, see Empson v. Soden, 4 B. & Ad. 655.

his term, he may remove them; but if he | King's Bench, in Penton v. Robart, gave a suffer them to be fixed to the earth after the term, then they belong to the lessor. And so of a baker. And it is not waste to remove such things within the term, by

some.

correct exposition of the general principle ; and was not Fitzherbert v. Shaw decided upon the understood general principle? The defendant's tenancy had been determined by a notice to quit, and an ejectment brought to recover possession; whereupon the defendant agrees that judgment should be signed, with a stay of execution. No mention was made of fixtures or buildings in the agreement: the fixtures in question, were removed between the time of entering into the agreement, and the time for giving

So Tindal, C. J. (than whom no modern Judge was ever more replete with the venerable sense of the ancient common law), in his judgment, already quoted, says, "that a tenant for years may remove articles of ornament during the term, although affixed to the freehold." And in Fitzherbert v. Shaw, it was ruled at Nisi Prius, and con-up possession. At the trial, Gould, J., said, firmed afterwards in banc, that a tenant who that the defendant would clearly have been had removed fixtures after his term had entitled to take away the articles, if he had been put an end to by agreement, was lia-done it during the continuance of his term, ble to an action in the nature of waste for but that by the agreement the parties had the removal. All the legal dicta concur in made a new contract, which put an end to this decision; but in Penton v. Robart there the term." Is it not clear, that it was beis a contrary decision: in that case the cause the term was at an end, as evidenced Court held, that a tenant who had removed by the agreement, that the learned judge a trade fixture while he was in possession, thought the tenant had lost the right of rebut after his term had expired, was not lia-moval? It was, in substance, as if the ble to an action for the removal. That the learned judge had said to the jury, “Withdefendant was in possession merely as a out adverting to the ejectment, and withtrespasser, appeared on the record, for he out considering the defendant in the unfasuffered judgment by default. As to the vorable light of a person whose possession breaking and entering, the Court said, "let was wholly and absolutely wrongful, here a verdict be entered for the plaintiff as to is an agreement by which the term had been the trespass in breaking and entering, determined; and as a consequence of the damages Is., and for the defendant as to determination of the term by means of the rest of the trespass." Lawrence, J., the agreement, I am of opinion, that in said, "it is admitted now, that the defend-point of law the defendant had no right ant had a right to take these things away to remove the fixtures in question you during the term; and all that he admits will therefore find your verdict for the upon this record against himself, by suffer- plaintiff the damages are for your considing judgment to go by default as to the eration." It is expressly stated, that no breaking and entering, is, that he was a mention was made of the fixtures in the trespasser in coming upon the land, but not agreement, it may be assumed to have been a trespasser de bonis asportatis; as to so made merely for the purpose of saving the much therefore he is entitled to judgment." expense of going to trial; and its effect in Lord Kenyon upon this point said, here the defendant's favor was merely to secure to the defendant did no more than he had a him, though a trespasser, continued quiet right to do; he was, in fact, still in posses-possession. It could not do less than this to sion of the premises at the time the things were taken away, and therefore there is no pretence to say, that he had abandoned his right to them." And referring to the case of Fitzherbert v. Shaw, his Lordship said, "it turned upon the construction of an agreement that such things should be left on the premises, and decided nothing against the general principle."

:

have any operation; if it did more, it made the defendant a new tenant; and upon that supposition, the decision is still stronger in support of the view of the law taken by Gibbs, C. J., in Lee v. Risdon.

A legal analogy remains to be noticed, which we think must ultimately be decisive of this question. Growing crops are liable to be seized under a fi. fa. against the tenBut what is the general principle? con-ant, so long as he remains tenant; but afsidered as a point in dispute, it is a mere petitio principii to say, that the Court of

i Lee v. Risdon, 7 Taunt. 188. j 1 H. Bl. 258.

ter his tenancy has been determined, they cannot be seized, although he remains in possession; Why? because, after his tenancy has expired, he could not remove them himself, his possession being wrongful.

Law of Fixtures.-Amendment of the Law of Copyholds.

173

"The Bill introduced by Sir John Campbell to enable owners of manors and their tenants, who have merely life interests, and are under legal disabilities, to effect enfranchisements of particular estates, is founded on the Report of the Real Property Commissioners. The Report states that copyhold tenements, being generally of small value, would not afford the expense of the appointinent of Commissioners to regulate the terms of enfranchisement; but the grounds of that conclusion are not explained. Enclosure acts frequently contain powers of enfranchisement which are exercised by Local Commissioners without difficulty.

Thus, in Hodgson v. Gascoigne, the sheriff | published another work, containing Forms seized the growing crops of a tenant under of a Schedule and Award for the Enfrana writ of fi. fa.; before they were sold, a chisement of Copyhold Lands, and the diswrit of habere facias possessionem upon a charge of Heriots by Local Commissioners, judgment in ejectment, at the suit of the on the requisition of a majority of the parties landlord, was delivered to him; thereupon, interested. From the latter publication we the sheriff deeming his authority over the extract the following remarks on Sir John crops at an end, delivered possession of the Campbell's Bill, which, on account of Mr. premises to the landlord, leaving the crops Bray's experience and practical knowledge standing, and the execution creditor brought of the subject, appear to us to deserve paran action against the sheriff for not selling ticular consideration: them. The demise in the declaration in ejectment was anterior to the delivery of the writ of fi. fa.. The Court held the sheriff not liable to the action; "For," said Abbott, C. J., the property in the growing corn, in fact, was not vested in the tenant at the time of the seizure, for after the judgment was obtained in ejectment, the defendant is to be considered in point of law as a trespasser, from the day of the demise laid in the declaration. From that time, therefore, the property was divested out of him, and he had no property at the time when the fi fa. was delivered to the sheriff. The landlord, in an action for mesne profits, might have recovered the value of all the crops." And in the course of the argument, this case was put: "Suppose the tenant had sold the crops to a purchaser, and after the sale, the sheriff entered under the habere facias possessionem; would the landlord in that case have been entitled to the growing crops?" To which, Bayley, J., replied, "I think that he would, if the sale took place subsequently to the day of the demise laid in the declaration in ejectment. For, from that time, the tenant must be considered as a wrong doer."

Here we shall take leave of the question, well assured that our readers will perceive it to be of too much practical importance to have been passed over in silence, or to have been stated without some discussion. In our next article on this subject, we shall consider how the right as between landlord and tenant, is affected by special agreements, and treat of the various other relations; e. g., those of execution creditor and tenant; execution creditor and owner of the freehold, &c., in which the right to fixtures comes in question.

According to my estimate, the expense of enfranchisement by local Commisioners and an would be about one-third of a year's value, or award in the mode which I have suggested, three guineas for a copyhold tenement of the yearly value of 101., being little more than half the sum paid for the admission of an heir or devisee, exclusive of the fine, and rather less than the expense of a license to grant a lease, while the cost of a deed would be avoided.

franchisement can be effected unless both par"At present,' says the Report, "no enties are entitled to the fee simple, and enfranchisement has been much impeded by this difficulty.'

"As far as my experience goes, the great impediment on the part of the lords is not the want of power, but the obvious consideration land remaining copyhold in the same manor that every partial enfranchisement renders the less productive. In most of the manors of which I am steward the lord has the power of enfranchising, either as absolute owner or by means of powers vested in his trustees; and yet there have been few enfranchisements, and those at prices fifty per cent. above what I should have thought adequate, if all the copyhold property had been enfranchised at once. The power proposed to be given by Sir John Campbell's Bill to the owner for life of a manor is open to this objection-that, there being no trustees authorized to interfere, the interest of the succeeding owner is not protected, and however unimportant may be his actual loss,

AMENDMENT OF THE LAW OF he will be disposed to regard every enfranchise

COPYHOLDS.

AMONGST the plans for reforming the Law relating to Copyhold Property, we noticed, some time ago, a pamphlet by Mr. Reginald Bray (vol. 9, p. 373). He has lately

ment with suspicion. It is a mistake to suppose that the interests of both are the same;

for it will be the interest of the owner for life

to enfranchise with those who are least likely to pay a fine during his ownership, and to defer the enfranchisement of estates from which he has a better prospect, until a fine has fallen in ;

174

Amendment of the Law of Copyholds.-- Duration of Writ of Execution.

while the interest of the owner in expectancy | the plaintiff. On the 19th day of November fol

will be exactly the contrary. The power is rendered still more objectionable by its being extended to cases in which land, and not money is to be the equivalent. Another obstacle to the successful operation of Sir John Campbell's Bill is the expense of separate deeds for every enfranchisement, however small.

lowing, judgment was signed, and a writ of capias ad satisfa. issued, directed to the Sheriff of Middlesex, and returnable on the 31st day of January following.

The defendant, however, was not arrested on this writ, and an alias ca. sa.. in pursuance of the statute 3 & 4 W. 4, c. 67, s. 2, tested "The Commissioners are of opinion that on the day it issued, viz., on the 30th day of heriots should be at once abolished upon a June, 1833, and returnable immediately after pecuniary commutation. They propose that execution, was issued. On this writ the dethe claim to the heriot in specie should be com- fendant was arrested on the 9th day of Decemmuted into a right to a sum of money, for which ber, 1835, and on the following day a sumthe lord should be allowed to destrain on the mons was served, to set aside the alias ca. sa. for tenant, or to maintaiu an action against the irregularity, which summons was attended beperson succeeding to the tenancy. Even if a fore Mr. Baron Parke on the 11th Dec.; on sum so low as five pounds,' they say, 'were which occasion, the defendant's attorneys paid for each heriot, not only would the tenant raised three points: first, that the alias writ of be greatly relieved, but the change would prob- execution ought to have been tested on the ably be found for the advantage of the lord, as return-day of the former writ, and not having he would not then scruple to enforce his right, been so tested, the second writ was void.a Seand no attempt would be made to evade it.' condly, that the alias writ of execution, though The Commissioners appear not to have con- returnable immediately after execution, could. sidered that the law throws the burden of the not be in force for more than a twelvemonth heriot on the executors of the deceased holder, and a day, on the principle of a judgment; the and that the adoption of their proposition law presuming such judgment to be satisfied would relieve the personal property of every without a sci. f. after that period, unless a existing life-owner at the expense of his suc-writ issues in the interim. Thirdly, that the cessor. They are also mistaken, in supposing that the tenants in general of heriotable property would be relieved by a composition on such terms, for it will be found that a large proportion of the holders of heriotable property are cottagers, to whom the heriot is little more than a nominal incumbrance. It would be quite impossible to award a fair compensation for heriots, without reference to the circumstances of each estate; and for this reason, if for no other, the appointment of local commissioners appears to be the only mode of overcoming the difficulty.

"The abolition of manorial tenures seems called for by the public, not only with a view to the improvement of property, but from the growing love of independence, and for the very purpose of breaking that link of property, which it was the chief merit of such tenures to constitute and it is no less desired by the profession, because the practice of copyhold courts is understood by few, and is therefore continually interfering with the general laws of real property."

continuances vice comes non misit brevé ought to have been entered on the roll.

The learned Baron, after referring to the case in 2 Salk, and another in 2 Rayı, stated, he would adjourn it until the continuances were entered on the roll; but on the case of Deemer v. Brooke having been produced to his Lordship, he dismissed the summons, stating that the continuances might be entered at any time.

reference to the last case, and it does not ap[Our Correspondent does not give a sufficient pear in the Digests.-ED.]

NOTES ON LAW AND LAWYERS.
No. II.

THE LAWYERS OF JOHNSON'S TIME.

WE have already said that many of Johnson's friends were lawyers; and this will be fresh in the recollection of the readers of his lives. His first friend and patron was a lawyer:-Gilbert Walmsley, the Registrar

DURATION OF WRIT OF EXECU. of the Ecclesiastical Court of Lichfield. Two

of his biographers and intimate companions, -the one in the earlier part of his life, and the other in the latter, were lawyers: Sir John Hawkins and Mr. Boswell. But besides these, many of the most distinguished advocates of his day esteemed him, and sought his friendship. These we shall now notice.

And first let us mention the only survivor of the circle, Lord Stowell, who, as Mr. and Dr. Scott, receives such frequent men

This was an action of trespass, brought by the plaintiff, who is the rector of All Souls Church, Portland Place, against the defendant, a gentleman of fortune, to recover the sum of 10. 58., the amount of damage done by the defendant to the iron-work surrounding the church. The cause was tried at the Sitting after Trinity Term, 1832, and a verdict found for 2 Salk. p. 590.

a See Tidd's Practice, vol. 2, p. 1059; and

Notes on Law and Lawyers.

175

tion in Boswell's pages, and who has con- | system; it puts people in good humour, tributed, through Mr. Boswell and Mr. and makes them agree when they otherCroker, much interesting matter relating to wise might not a dinner lubricates busiJohnson. The acquaintance began on John-ness.'" (Vol. 8, p. 67.)

In 1778, Dr. Scott was elected a member of the Literary Club, being the thirtythird member elected (see vol. 2, p. 326), and is now the only survivor of his own generation; and we lastly find that he was one of Johnson's executors (in conjunction with Sir Joshua Reynolds and Sir John Hawkins) and legatees. Vol. 8. pp. 402, 403.

We shall now give some of Johnson's opinions of the lawyers of his day, which we shall take as they turn up. Lord Thur

son's visiting another lawyer and intimate friend, Sir Robert Chambers, the Indian Judge, at Oxford; and when Chambers went to India, Lord Stowell, according to his own words, "seemed to suceeed to his place in Johnson's friendship." (Boswell, vol. 2, p. 22, n. edit. 1835.) From that time an intimate friendship subsisted between them until the death of Johnson. In 1773, Dr. Johnson, in his well-known tour to Scotland and the Hebrides, was accompanied from Newcastle to Edinburgh by "Mr. Scott of University College, Oxford;" | low was a great favourite of his. Speaking and to have the enjoyment of his company, Johnson delayed his journey considerably. On the 14th of August 1773, they arrived in Edinburgh; and the commencement of the tour is characteristic of both. "Mr. Scott's amiable manners and attachment to our Socrates," says Boswell, "at once united me to him. He told me, that before I came in, the Doctor had unluckily had a bad specimen of Scottish cleanliness. He then drank no fermented liquor. He asked to have his lemonade made sweeter, upon which the waiter, with his greasy fingers, lifted a lump of sugar and put it into it. The Doctor in indignation threw it out of the window. Scott said, he was afraid he would have knocked the waiter down. He was to do me the honour to lodge under my roof: I regretted sincerely that I had not also a room for Mr. Scott." (Vol. 4, p. 12.)

of another law lord, Lord Loughborough, according to Mr. Croker, "who, it seems, once took a fancy to associate with the wits of London, but with so little success that Foote said, What can he mean by coming among us? He is not only dull himself, but the cause of dulness in others.' Trying him by the test of his colloquial powers, Johnson had found him very defective. He once said to Sir Joshua Reynolds, This man now has been ten years about town, and has made nothing of it'-meaning, as a companion. He said to me, I never heard any thing from him in company that was at all striking; and depend upon it, Sir, it is when you come close to a man in conversation that you discover what his real abilities are: to make a speech in a public assembly is a knack. Now I honour Thurlow. Thurlow is a fine fellow he fairly puts his mind to yours."" (Vol. 8, p. 168.) In 1778, Boswell records a dinner with This was said when he was at the bar; and Mr. Scott, at his chambers in the Temple, after his Lordship was advanced to the Seal, at which Johnson and himself were the he said of him, I would prepare myself only guests; and the long conversation for no man in England but Lord Thurlow. they had together is fully given (see vol. 7, When I am to meet with him, I should wish p. 97-106); and no doubt this was one to know a day before." (Vol. 8, p. 329.) of many such meetings, as, in another vol-Lord Thurlow reciprocated this feeling of ume, the pleasure of such entertainments is admiration towards Dr. Johnson. We find frankly admitted by Lord Stowell, who that, at the request of the latter, he nomi(says Mr. Croker) was himself very con-nated Mr. Macbean to a place in the Charvivial, and readily confessed his own par- ter House, and that his Lordship exerted tiality to a bottle of port. One day, when all his influence to obtain an increase of the some one objected to the practice of having pension of the great moralist in his last dinners for parish or public purposes, Sir,' | years. See vol. 8, p. 339. said Lord Stowell, I approve of the dining

In the following we find many familiar names occur. Sir Alexander [Macdonald, brother of Sir Archibald Macdonald, C. B ] observed, that the Chancellors in England are chosen from views much inferior to the office, being chosen from temporary political views. Johnson. Why, Sir, in such a government as ours, no man is appointed to an office because he is the fittest for it,