APPENDIX (E) (a). THE following remarks upon the decision of the Court of King's Bench in the case of Elwes v. Maw (3 East, 38) may be of interest to the reader, although it is not meant thereby to intimate any doubt as to the validity of that decision as an authority at the present day. It has been shown in Chap. II. § 1 (ante, p. 45 et seq.), that the passage there cited from the Year Book (20 H. 7), upon which, it appears, much reliance was placed by Lord Ellenborough, C. J., in Elwes v. Maw, in order to prove that an exception from the general rule of law obtained in early times specifically in favour of trade, is very far from having any such exclusive operation; and that, on the contrary, the general meaning of the expressions there found must be greatly narrowed and violated, not to include other erections besides those erected for trade or manufacture. And this observation applies with equal, if not greater, force to the rest of the early decisions; indeed, the instances mentioned in some of them, as paling, posts, &c., removable by a lessee, seem rather in the nature of agricultural erections (b). Neither Lord Hardwicke nor Lord Mansfield, in their judgments in Lawton v. Lawton, Lord Dudley v. Lord Warde, and Lawton v. Salmon, intimate any opinion that agricultural erections are subject to a different rule from that which prevails in respect of trading erections. Lord Hardwicke considered the collieries as profits of land, and held the fire engines to be removable, notwithstanding they were accessories to the enjoyment of the real estate. He also approved of the decision of Comyns, C. B., respecting the cider-mill," although," as he observed, "cider is part of the profits of the real estate" (c). Moreover, he remarks that the general ground on which the Courts proceeded in relaxing. the old rule in favour of tenants for life was, that it is for the benefit of the public to encourage such tenants to do what is See ante, p. 76. (b) Tide Br. Ab. Tit. Waste, pl. 104; Id. Tit. Chattels, pl. 7. And see Yr. Bk., 21 H. 7, p. 26; Cooke's Case, Moore, 177; Day v. Bisbitch, Cro. Eliz. 374. (e) Lord Ellenborough takes the same view of these cases, and admits that the erections were put up in part for the enjoyment of the profits of land. See 3 East, at P. 54. advantageous to their estates. So, Lord Mansfield in the case of Lawton v. Salmon, although he regarded the salt-pans as accessory to land (in which also Lord Ellenborough concurred. and said that they were not considered as the means or instrument of carrying on trade), yet thought that such articles would be removable by a tenant. And it must be presumed that his Lordship did not intend to confine his observations, as to the salt-pans being accessory to land, to the case before him, which was between heir and executor, for it would be a difficult proposition to maintain, that an article should be considered an accessory to land as between heir and executor, but an accessory to trade as between landlord and tenant. Again in Fitzherbert v. Shaw, Mr. Justice Gould is reported to have been clearly of opinion at the trial, that a tenant was entitled to take away a stable, a shed, and some posts and rails; and it may, therefore, at least be inferred from this opinion, that the principle on which the case of Elices v. Maw was decided, was not perfectly recognized, or generally understood, in the time of this learned judge. And so in the case relating to the barn, before Treby, C. J., it is certainly true, as observed by Lord Ellenborough, that, owing to the construction of the article, it did not come within the law of fixtures; but Mr. Justice Buller, in his comment upon this case, treats the barn as if it had been actually fixed, and expresses a decided opinion, that such a building would be removable, on the general ground of the exception in favour of tenants. The case of Dean v. Allalley has not, perhaps, such a distinct reference to agriculture as to amount to an express authority for the removal of agricultural erections. Yet, it should be observed that the concluding part of Lord Kenyon's judgment in that case extends the privilege to trade erections, or (disjunctively) to such as were constructed like the barns in question. Moreover, the description given of these buildings in the M.S. note cited by counsel in Elwes v. Maw, as well as their name, and the purposes for which such erections are usually made, confirm the supposition that Lord Kenyon's opinion may be considered an authority for the removal of at least some species of agricultural erections; and indeed Lord Ellenborough seems to have so treated it in one part of his judgment. That Lord Kenyon did assign a very extensive latitude to the rule in favour of trade fixtures, appears from his observations in the subsequent case of Penton v. Robart. According to this view of the authorities antecedent to the case of Elwes v. Maw, it seems difficult to acquiesce in the opinion expressed by Lord Ellenborough, that the doctrine sought to be established by the defendant "was contrary to the uniform current of legal authorities." The true state of the question (as observed in one part of his Lordship's judgment) appears rather to be, that no adjudged case had then gone the length of establishing that buildings subservient to purposes of agriculture, as distinguished from those of trade, were removable by the tenant who built them during his term. But admitting that no case is to be found among the more ancient authorities in favour of agricultural erections, it should be recollected that the mode of agriculture pursued in early times was extremely simple, and that the implements of husbandry then in use were defective and of very little value : inasmuch as, for a period subsequent to that over which the Year Books extend, the English may rather be considered a pastoral than an agricultural nation (d). But the rule laid down in the case of Elwes v. Maw appears liable to further objection, on account of the narrow grounds upon which it rests. It is universally allowed that the privilege in respect of trade is not confined to trade according to the strict meaning and construction of former Bankruptcy Acts; and it would seem that many branches of husbandry have a strong affinity to trade in an enlarged sense of the expression; for instance, the dealings of a farmer in stock, wool, and bark, &c., the making of charcoal, growing and preparing flax, or the manufacturing of hoops, which, in some of the counties of England, is a considerable source of the profits of a farm. In this view of the subject, the making of cheese on a farm, or the preparing of grain for market by means of a threshingmachine, may, with equal reason, be considered a manufacture or a species of trade, as the making of cider from the produce of an orchard annually renewing (e). But the strongest objection to the distinction established by the case of Elwes v. Maw is, that the principle on which trade fixtures are permitted to be removed, applies with equal reason to agricultural erections. The principle of the trade cases is (d) Vide Strutt's Antiquities, vol. ii., ou the Husbandry of the English. And see Fortescue de Laudibus Legum Angliæ, ch. 29. (e) Lord Ellenborough considers the cider-mill as an accessory to a species of trade. The manufacturing of cider and perry is an object of British husbandry, which in our fruit countries is of great importance. In the county of Worcester, where it seems the question in the Cider Mill Case arose, there is upon most of the farms a mill for the purpose of making cider from the fruit growing in the orchards and fields of the farm. The cider is made by the farm-tenants for the consumption of their families, and for the purpose of sale. In some instances the cider is sold directly from the mill and press, in the state of expressed juice, to persons who collect it from the different farms, and afterwards manufacture it for market. that of public policy, it being for the benefit of the public to encourage tenants to make useful additions to their premises, and to avail themselves of modern improvements in arts and manufactures. Husbandry, according to present practice, has become a scientific pursuit; the increased produce and profits of the land depend upon the expenditure of capital, and the exercise of intelligence in the improved modes of cultivation; and according to these improved modes much valuable machinery is employed, which requires to be substantially affixed to the premises and it is obvious that the industry of the farmer is more productive in proportion to the better disposition of his buildings, and the facilities he possesses for rearing and keeping stock, and storing and preparing his produce. If. therefore, the principle of the indulgence to tenants be deemed of beneficial tendency, as it affects the interests and protects the improvements of the manufacturer, the distinction must have been very refined upon which it was thought politic to deny the same advantages to the agricultural tenant. Indeed, Lord Ellenborough seems to have felt the force of this objection; and it is observable that, in one part of his judgment, he rested his argument against agricultural tenants on a more technical ground; for he said that machinery and erections might be removed when they were accessory to trade, because trade is a matter of a personal nature, and not real or local. But as this is a principle which obviously embraces a variety of claims which have no reference to trade, it would make the case of the agricultural tenant one of still greater hard-hip, than if the less comprehensive rule of confining the exception strictly to trading fixtures were insisted upon. From the above remarks the reader may be led to think that the decision in Elwes v. Maw drew, for the first time, an unnecessary distinction between trade fixtures and those for agricultural purposes. This distinction, however, the Legislature by the Agricultural Holdings (England) Act, 1883, has now gone far to abolish. APPENDIX (F). THE AGRICULTURAL HOLDINGS (ENGLAND) ACT, 1883. [46 & 47 VICT. c. 61.] An Act for amending the Law relating to Agricultural BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: PART I.-IMPROVEMENTS. Compensation for Improvements. tion. 1. Subject as in this Act mentioned, where a tenant has General right made on his holding any improvement comprised in the First of tenant to Schedule hereto, he shall, on and after the commencement of compensathis Act, be entitled on quitting his holding at the determination of a tenancy to obtain from the landlord as compensation under this Act for such improvement such sum as fairly represents the value of the improvement to an incoming tenant: Provided always, that in estimating the value of any improvement in the First Schedule hereto there shall not be taken into account as part of the improvement made by the tenant what is justly due to the inherent capabilities of the soil. As to Improvements executed before the Commencement of Act. 2. Compensation under this Act shall not be payable in Restriction as respect of improvements executed before the commencement of to improvethis Act, with the exceptions following, that (1) Where a tenant has within ten years before the commencement of this Act made an improvement mentioned in ments before Act. |