Part I. Heap v. Alteration of sequent demise to same tenant. into an agreement that judgment should be signed for the plaintiff, but with a stay of execution till the Michaelmas following, till which time the defendant was to continue in possession. In this agreement no mention was made of any buildings or fixtures. Between the time of entering into the agreement and the ensuing Michaelmas, the defendant removed several things from the premises (≈), which Gould, J., at Nisi Prius, considered would have been removable during the tenancy; but he thought that, by the agreement, the parties had made a new contract, which put an end to the term. And the Court of Common Pleas decided, that without entering into the general question as to the right to remove the articles as fixtures, the defendant was precluded from taking them away by the fair interpretation of the agreement; from which it must be implied, that he was to do no act in the meantime to alter the premises. In 1852, the same Court expressly followed this decision, placing a like construction on a similar agreement, under which judgment was allowed to go by default against the tenants (a). From the cases of Fitzherbert v. Shaw and Heap v. rights by sub- Barton, and others already mentioned in this section, but particularly from an analogous one which followed the first-mentioned case of Naylor v. Collinge (b), and where the authority of that decision was approved by the Court of King's Bench, a further inference may be deduced, which may be mentioned in this place. The case referred to is that of Thresher v. East London Waterworks Co. (c); and from that decision it appears that a lessee would be restrained by a general covenant to repair, from pulling down an erection which he had made before the commencement of his lease, and during the time he held Thresher v. (*) See these articles described, ante, p. 59. (a) Heap v. Barton, 21 L. J., C. P. 153. And see Deeble v. M'Mullen, 8 Ir. C. L. R. 355; Sharp v. Milligan, 23 (b) Ante, p. 146. the premises under a previous tenancy (d). So that an Chap. II. 8. 6. erection made during a preceding lease, supposing it might have been removed whilst that lease continued, is no longer removable when the premises are conveyed to the same lessee by general words (as for instance, land, premises, or buildings), in a subsequent lease, although the latter contains only the common covenant to repair. It is not thought necessary to enter at large into the case, because it contains many complicated facts; but it virtually establishes the above proposition (e). Bank. Upon this point, the American case of Watriss v. First Watriss v. National Bank of Cambridge (ƒ), may be usefully referred First National to. There a tenant, having a lease expiring on the 1st of January, 1871, accepted from his landlord in October, 1870, a lease for a further term to come into operation on the expiration of the first (g). The new lease contained a provision that the tenant should deliver up the premises on the determination of the second lease, (d) The building in question was erected by an underlessee of the tenant, which under-lessee, as against his immediate landlord, could not remove it. It is obvious, however, that this does not vary the principle of the case. By sect. 58 of the Agricultural Holdings Act, 1883, a tenant who has remained in his holding during a change of tenancy, is not to be deprived of his right to compensation by reason only that the improvements were made during the former tenancy. See the section, post, in Appendix (F.). There is, however, no similar provision as to the right of removing fixtures. (e) It is evident that the Chief Judge in Ex parte Lloyd Part I. in as good order and condition as the same now are." The question for the determination of the Supreme Court of Massachusetts was, whether the acceptance of the new lease and occupation under it on the 1st of January, 1871, were equivalent to a surrender of the premises to the lessor on the expiration of the first term. For, if they did amount to a surrender, the Court thought it clear that the tenant could not afterwards recover trade fixtures annexed during the first term. After stating that it is clear from the cases that the right of a tenant in possession after the end of the term to remove fixtures within a reasonable time, rests on the fact that he is still, in comtemplation of law, in occupation as tenant under the original lease; or, in the words of Parke, B., in Mackintosh v. Trotter (h), under what may be considered “an "excrescence on the term," the judgment proceeds: -" But "a very different question is presented when the same "tenant continues in possession under a new lease containing different terms and conditions, making no refer"ence to the old lease, reserving no rights to the lessee in "fixtures annexed during the previous term and not " removed before its expiration, and containing covenants "to deliver up the premises at the end of the term in the "same condition. This is not an extension of, or holding over under, an existing lease; it is the creation of a "new tenancy. And it follows, that whatever was a part "of the freehold when the lessee accepted and began his occupation under the new lease must be delivered up "at the end of the term, and cannot be severed. . . 66 "The occupation under the new lease is in effect a sur"render of the premises to the landlord under the old "(i). In support of their decision, the Court referred to the above-mentioned cases of Fitzherbert v. Shaw and Thresher v. East London Waterworks Co. (j). (h) Ante, p. 134. (i) See Lyon v. Reed, 13 M. & W. 285, 305. And see 2 Sm. L. C. 884 et seq. (8th ed.). (j) In the case of Kerr v. Kingsbury (33 Am. Rep. 362), In the above case, it will be seen, the Court relied on Chap. II. s. 6. the fact that the new tenancy was in no proper sense a Alteration of renewal of the old one, and they laid stress on the pro- renewal of rights by vision contained in the new lease, that the tenant should term. deliver up the premises in as good condition as they were in at the commencement of the new tenancy. Notwithstanding this, it is thought that even in cases of what is commonly called renewal of leases, the same rule must apply. In such cases there is in reality the grant of a new interest in the premises to the tenant, although upon the same conditions as those under which he formerly held. All, therefore, which formed part of the demised premises at the expiration of the first term must, unless excluded by the agreement of the parties, have passed to the landlord as part of the reversion out of which the new term is granted to the tenant. If the view here taken is correct, it seems to follow that the tenant's right of removing fixtures will be lost, although the further tenancy may arise merely from his holding over, and paying rent after the expiration of his term; for he thereby becomes a tenant under a new tenancy from year to year (k). show that It is, of course, competent to the tenant to show that Evidence to by the agreement under which he continues in possession tenant's of the premises, his right of removing fixtures annexed rights the Supreme Court of Michigan came to a contrary decision, holding that, as no grounds of public policy require the removal of fixtures before the expiration of a term, when the tenant continues in possession under a new lease, the new lease ought not to be considered to include the fixtures as part of the demised premises, unless from the lease itself an under standing to that effect is (k) Bishop v. Howard, 2 reserved. Part I. Semble, right divested by any new agreement in which no mention of fixtures. during the first term was reserved, and that, consequently, they were excluded from the subject of demise under the new tenancy. But the onus of proving such an agreement would, it is submitted, be upon him. In Thresher v. East London Waterworks Co. (1), the Court of King's Bench said, that it might be questionable whether any matter dehors the lease could be alleged to prevent the covenant to repair contained in the new lease from attaching to the erection which was there in question. It seems, however, that extrinsic evidence of such an agreement between the landlord and tenant would be admissible upon the question parcel or no parcel, which is always one of fact (m). It may, perhaps, be thought upon a consideration of the foregoing decisions, that this general principle is deducible from them, viz., that where a tenant has an existing right to remove fixtures erected by him during his term, that right may be divested by any new agreement for the enjoyment of the land, in which there is no mention of the fixtures (n). (1) Ante, p. 156. (m) Doe d. Freeland v. Burt, 1 T. R. 701, per Buller, J.; Lyle v. Richards, L. R., 1 H. L. 222; Francis v. Hayward, 22 Ch. D. 177. And see post, p. 279. (n) Semble, a mere agreement for increase or abatement of rent under an existing term would not be such a new agreement for the enjoyment of land. It would be rather the confirmation of an existing tenancy with a variation of one of its terms. See Donellan v. Read, 3 B. & Ad. 899; Clarke v. Moore, 1 Jon. & Lat. 723, 729. And see Crowley v. Vitty, 7 Exch. 319. The principle mentioned in the text would probably apply It is right to add here, to a case, where an out-going |