Part I. Principle of the relaxa tion. glasses are removable, because only matters of ornament and furniture (i). Lord Hardwicke and Lord Mansfield, both speak of marble chimney-pieces being removable (k). Lord Ellenborough still more pointedly says, that the tenant is allowed to remove matters of ornament, as ornamental marble chimney-pieces, pier-glasses, &c. (7). And Dallas, C. J., makes use of the same expressions, and states that the exception has been in favour of matters of ornament, as ornamental marble chimney-pieces, pierglasses, and the like (m). The same observation applies to the more modern case of Bishop v. Elliott (n), in which the Court of Exchequer Chamber emphasized the ornamental nature of the article as the test of removability. From the authorities, therefore, considered in this view, a rule has been deduced, that a tenant is entitled to take away certain things which he has at his own expense affixed to the demised premises for the purpose of ornament and furniture. And the principle on which this rule is founded appears to be, that as annexations of this nature must generally be designed for temporary purposes only, it would greatly incommode tenants in the enjoyment of their estates, if, by every slight attachment to the freehold, the reversioner should obtain the absolute property in the (i) As to hangings, these are esteemed by Swinburne as mere chattels; for they are mentioned by him as being comprehended under the term household stuff, and passing under a general legacy of household stuff. Swinb. on Wills, pt. 7, § 10, p. 945 (7th ed.); and see ante, p. 7. Speaking of wainscot being parcel of the house, as between executor and heir, he notes in the margin, "Quamvis "jure civili, quæ ornatus gratiâ 66 magis quam perficiendi do 66 mum ponuntur, ædium partes non sunt." Id. pt. 6, § 7, p. 759 (7th ed.) See also Godolph. Orph. Leg. pt. 2, ch. 14, p. 126 (3rd ed.) (k) Ante, p. 108. (1) Ante, p. 109. (m) Ante, p. 112. And see Leach v. Thomas, 7 C. & P. 327; Avery v. Cheslyn, 3 A. & E. 75. (n) 24 L. J., Ex. 229. And see Gibson v. Hammersmith Rail. Co., 32 L. J., Ch. at p. 341. article annexed. Hence it is obvious that the tenant's right Chap. II. s. 4. of removal in respect of this class of annexations depends upon very different grounds from those which prevail in the case of fixtures put up for trade and manufactures. mental. But on recurring to the facts of the cases which have Fixtures not been cited, it appears that some of the articles held to be strictly ornaremovable by a tenant, are not matters of mere ornament and decoration. They consist rather of instruments and utensils affixed for purposes of general utility or common domestic convenience. It is notorious also in practice, that a great variety of articles are considered to belong to the tenant, and as such are taken away or valued to the incoming tenant, which cannot be said to have been put up with a view to ornament; neither are they in any manner connected with trade. Although, therefore, articles of this description are not strictly referable to the head of ornamental fixtures, yet it is now generally understood that they fall within the same principle, and may be removed by the tenant at the end of his term (0). Perhaps in these cases, the personal nature of the property is the principal ground upon which it is protected. For it is observable that the species of annexations, which have been held to be removable, are utensils and machines which are perfect chattels in themselves, and are, for the most part, such as serve as substitutes for mere moveable furniture; whilst the privilege has in no case been extended so far as to permit the removal of anything in the nature of a building or erection, though of a temporary character and easily moveable. This view would seem to be supported by the decision of Wood, V.-C., in the above-mentioned case of Jenkins v. Gething (p). The Vice-Chancellor there held that the greenhouse was not removable, (o) See Grymes v. Boweren, 6 Bing. at p. 440; Bishop v. Elliott, 24 L. J., Ex. at p. 37; Ex parte Barclay, In re Gawan, 5 D. M. & G. at p. 410; Climie v. Wood, L. R., 4 Ex. at p. 329; (p) Ante, p. 113. Extent of the of removal. because it could not be looked upon as an ornamental adjunct of the house; and he did not even refer to the question whether it was affixed for the purposes of the tenant's convenience. It must have been on the latter ground, however, that he held that the heating-pipes were removable (9). But in considering a tenant's right of removing articles erected by him for domestic convenience, it may in the future be necessary, in some cases, to refer to the provisions of the Agricultural Holdings Act, 1883. For, as has been pointed out in a former page ("), the section of that Act which confers a right of removing buildings, and engines, machinery, fencing and other fixtures, makes no mention of the purposes for which such things may have been erected. It seems, therefore, that under that provision a tenant to whom the Act applies (s) may claim a right of removal in respect of domestic convenience more extensive than that to which he would have been entitled apart from the statute. Having now considered the general doctrine as to the tenant's right removal of fixtures put up for ornament or convenience, it remains to inquire how far the exception in favour of this description of property may be extended; and to examine whether the tenant is subject to any greater restriction in the exercise of this privilege of removal, than he is in respect of the class of fixtures which have been treated of in the preceding sections. On referring to the cases with a view to this inquiry, it will be found, that although an article appears to be such that, its object alone considered, it would fall within the description of things that are removable as matters of ornament or convenience, there may, notwithstanding, be certain particulars connected (9) See also the opinion of Graham, B., as to the pinery in the case of Buckland v. But terfield, ante, p. 111. withits erection, which will enti rely prevent the exercise Chap. II. s. 4. of the tenant's right. For in the class of fixtures described in this section, the operation of a principle is found, which, in the trade cases, is hardly adverted to in any of the judicial decisions. And this relates to the mode of annexation of the article. annexation. In one of Lord Hardwicke's decisions (t), the right of Mode of removing the wainscot is stated with a qualification of its being fixed only with screws. In a subsequent case (u), Lord Hardwicke states its removability without this qualification; but he says it is a very strong case. In Elwes v. Maw (x), Lord Ellenborough, alluding to the same article, again introduces the mention of the screws; and this is repeated by Gibbs, C. J., in Lee v. Risdon (y), and again in the judgment of the Court in Buckland v. Butterfield (≈). In the last-mentioned case, Dallas, C. J., says, "There 66 may be that sort of fixing or annexation which, though "the building or thing annexed may have been solely for "ornament, will yet make the removal of it waste;" and upon this ground, viz., that it was so annexed as to be permanently incorporated with the principal building, it was determined that the conservatory (the construction of which has been particularly described in a former page) could not be taken away. In like manner, in Grymes v. Boweren (a), Tindal, C. J., among other circumstances, relies on the fact that the article was only slightly attached to the freehold. It must be admitted, that the removal of wainscot is Extent of a very strong case; that is, if the dictum of Lord Hard- privilege in respect of wainscot con(z) Ante, p. 112. See also sidered. Jenkins v. Gething, ante, P. 113; Martin v. Roe, 7 E. & B. at p. 249. And see Noy, Max. p. 167. (a) 6 Bing. at p. 440, ante, p. 114. Part I. wicke is to be understood as referring to the ordinary wainscot of a house as now erected. Wainscot is one of the things which Lord Coke expressly points out as not removable by a tenant (b); and in Day v. Bisbitch (c), Anderson, C. J., lays down the same rule. In the earlier cases it was said, that a lessee could not take down partitions that he had fixed to the freehold (d). Lord Hardwicke does not state upon what authority he founded his opinion in respect of this article, but there probably may have been a decision on the subject which has not been reported. It would be important to know the time when such a decision took place, as it might be the means of ascertaining the particular description of wainscot which was held removable, by inquiring into the state of refinement in domestic economy at that particular period. For if it was only that kind of covering for walls described in Beck v. Rebow (e), and other cases, which consisted of pictures or tapestry, put up with hooks or screws in lieu of wainscot (as was the practice in former times), it is obvious that it would be no authority for the removal of the wainscot of a modern house. This was no doubt the kind of erection referred to by Doderidge, J., in Bridgman's case (f), where he says, that wainscot may as well be removed as arras hangings. In all questions of this sort, it is particularly necessary to consider the decisions with reference to the degree of improvement in modern manners, as compared with those of earlier times (g). In Henry the VII.'s time, it was said that glass should not be considered to belong to the heir as parcel of the house, because it was not necessary to the house, which was perfect without it. So in Cooke's case (24 Eliz.) (h), the Court took (b) Ante, p. 105. (g) See the remarks of Platt, B., in Elliott v. Bishop, 24 L. J., Ex. at p. 40; and see S. C. in Exch. Ch., id. pp. 230 (per Maule, J., in argument) and 232. (h) Supra. |