Part I. Custom or usage. the freehold by its removal ;-and the comparative value to the respective claimants. These, or some of these considerations, are almost always adverted to in confirmation, if not as principal grounds of decision. For example, with regard to custom, Treby, C. J., in deciding the case of Culling v. Tufnal (r), relied altogether upon the usage of the country; though there certainly were other reasons upon which he might have supported the tenant's claim. Lord Mansfield evidently admits the effect of custom in respect of fixtures, for he is stated to have been of opinion, that the case of the cider mill was probably decided on that particular ground (s). In Lawton v. Lawton (t), however, where it was stated that it was customary to remove fire engines, Lord Hardwicke made. no observation upon the circumstance; neither did he notice it in the subsequent case of Lord Dudley v. Lord Warde (u). Lord Ellenborough also, in a nisi prius case, alludes to the effect of custom, in giving the tenant a right to remove things, which, by the general law, as affixed to the freehold, belonged to the landlord (v). And in the case of Davis v. Jones (w), evidence was given that it was usual between out-going and in-coming tenants to value machines like those in dispute; and the Court thought, that such a practice might be taken to indicate the nature and character of the articles (x). As considerable weight is often attached to the effect of custom or usage in trials at nisi prius, in questions relating (r) Bul. N. P. 34. (s) Vide Lawton v. Salmon, (t) 3 Atk. 13. (w) 2 B. & Ald. 165, 168. (x) See Vin. Ab. tit. Exe cutors, p. 154; Grymes v. Boweren, 6 Bing. 437, 439; Martyr v. Bradley, 9 Bing. 24, 29; Trappes v. Harter, 2 Cr. & M. 153, 180; Hubbard v. Bagshawe, 4 Sim. 326; Longbottom v. Berry, L. R., 5 Q. B. 123, 136; Day v. Austin and Bisbitch, noted ante, p. 48, note (p). And see the cases cited in Chap. IV., post, p. 239. to fixtures, it may be useful to add here a few remarks Chap. II. s. 1. upon the subject. from usage. custom. It must be remembered that a local custom strictly so Custom as called is not to be confounded with what is sometimes distinguished called "custom of the country," which generally means no more than the prevalent usage of the country where the lands lie (y). Nor is custom to be confounded with a mere usage of a particular trade (≈). A local custom is the common law of the district in which it prevails, and it has therefore in that district the binding force of law (a); whereas the only effect of usage is to add an implied term to contracts in respect of those matters to which the usage has reference. A custom must be limited to some defined Essentials of space of which the law takes cognizance, as, for instance, a county or a parish (b); and therefore the law will not recognize the usage of a particular private estate (c). Again, it is of the essence of a custom that it should be immemorial, and it will be defeated by evidence of nonexistence within legal memory. As an instance of custom properly so called, the customs of the High Peak of Derbyshire, prior to their establishment by statute, may be referred to. Thus, it has been held in a very recent case (d), that a person engaging in mining operations by virtue of these customs, and erecting substantial stone and brick buildings, may remove them as against the landowner at any time whilst he continues to work the mine, or within a reasonable time after he has ceased to do so (e). The (y) Legh v. Hewitt, 4 East, at p. 159; Dalby v. Hirst, 1 Brod. & Bing. 224. (z) Partridge v. Bank of England, 9 Q. B. at p. 425. (a) Hammerton v. Honey, 24 W. R. 603. (b) Legh v. Hewitt, supra. (c) Womersley v. Dally, 26 L. J., Ex. 219. (d) Wake v. Hall, 8 App. Cas. 195. It should be noticed (e) Upon custom generally, Part I. usage. operation of custom, however, may be either expressly or impliedly excluded by the terms of a contract between landlord and tenant; if not so excluded it will of course Essentials of bind them (f). On the other hand, a usage need not be immemorial, and to substantiate it it is sufficient if it appear to be so well known and acquiesced in, in other words, of such notoriety, that it may be reasonably presumed to have been an ingredient tacitly imported by the parties into their contract (g). It follows from what has been said that a usage is dependent upon the existence of contract, from which alone it derives its binding force (h), whereas a custom is of an entirely independent nature, and operates as a law, unless excluded by contract. The object of this species of evidence in cases between landlord and tenant is generally to establish a prevalent usage, with reference to which the claimants may be supposed to have contracted that relation. It is not necessary to prove that the usage has existed from time immemorial; but the effect and validity of the evidence will depend upon the length of time it has continued, the extent of the district or neighbourhood over which it prevails, and the absence of instances which show a contrary practice. The usage must be collected not from what the witnesses say they think it is, but from what was publicly done throughout the district (i). The evidence adduced in Leake, Prec. Pleadings, p. (f) Hutton v. Warren, 1 (g) Ghose v. Manickchund, 7 Moo. Ind. App. 263, 282; Grissell v. Bristowe, L. R., 3 C. P. at p. 128. (h) See Dann v. City of London Brewery Co., L. R., 8 Eq. 155, 162. (i) Tucker v. Linger, 21 Ch. D. 18, 34, per Jessel, M. R. In this case (affirmed in H. L., 8 App. Cas. 508) it was held that a custom of the country for a tenant to remove and sell flints turned up in the course of ploughing was good, and was not excluded by the terms of a lease reserving to the lessor all " "minerals." proof of a custom of the country is frequently of a very Chap. II. s. 1. loose and indefinite description; and the instances relied upon in support of it are often found, when properly inquired into, to have no other origin than the special agreements of parties (j). A decision upon the exclusive effect of custom or usage, in cases of trading and other fixtures, appears to be a desideratum in this branch of the law; since, among brokers and other practical men, it is frequently the only guide by which they are directed in making their appraisements, and in deciding disputes that are referred to them. In adopting a usage, such persons only profess to follow legal principles and authorities, by which they are necessarily bound, and therefore it is always a question for the Court whether their practice be in accordance with these (k). The parties, however, may be bound by a particular practice, although it be unreasonable, if they have so agreed (). With regard to the injury occasioned to the premises by Injury to the premises. the removal of things that have been affixed to them, it will be recollected that the distinctions taken in the old cases in favour of removing furnaces fixed to the floor and not to the walls, and doors which were not outer-doors, and other similar instances, proceeded upon the principle that the walls were not the worse, nor the house impaired (j) As to injunctions for waste in removing things contrary to the custom of the country, see Pratt v. Brett, 2 Madd. 62; Onslow v. 16 Ves. 173; Kimpton v. Eve, 2 Ves. & Bea. 349, 352; Bailey v. Hobson, L. R., 5 Ch. 180. For a collection of agricultural customs in different parts of the country, see Woodfall's (k) Atwood v. Sellar, 5 Q. (1) Stewart v. West India, &c. Steamship Co., L. R., 8 Q. B. 88. Part I. by taking them away (m). In Lawton v. Lawton, Lord Hardwicke said, that it was a very true maxim in the doctrine of fixtures, that the principal thing shall not be destroyed by taking away the accessory (n). And it is observable that when Lord Mansfield, in Lawton v. Salmon, admitted that a tenant would be entitled to remove salt pans, he seemed to rest his opinion principally upon the argument that the premises would come to the landlord in the same state as if they had never been erected (o). And so in the instance of the jibs in Davis v. Jones, the circumstance that neither the caps in which they were fixed nor the chief buildings would be injured by the removal, was stated as an additional reason for the judgment of the Court (p). The result of the decisions therefore seems to be, that if fixtures cannot be removed without material injury to the freehold the tenant has no right to inflict that injury, or to remove them at all (q). In all cases, however, injury to the freehold must be spoken of with less than literal strictness. To deprive a tenant of the right of removal there must be real injury to the premises, for ex necessitate rei, the severance of a fixture requires a certain amount of force, and even a screw or nail can scarcely be drawn without some attrition. Where, for instance, all the harm done is that which is unavoidable to mortar laid on brick walls, this is so trifling that the law, which is reasonable, will regard it as none (»). (m) See Yr. Bk. 21 Hen. 7, (n) 3 Atk. 15. (0) 1 H. Bl. 260, in notis. (p) 2 B. & Ald. at p. 168. And see post, p. 124, where will be found some remarks upon the liability of the tenant to repair damage occasioned to the freehold by putting up and taking down fixtures. (q) Gibson v. Hammersmith Rail. Co., 32 L. J., Ch. at p. 341; Wake v. Hall, 1 App. Cas. at p. 204, per Lord Blackburn. (r) Martin v. Roe, 7 E. & B. 237, 242; Parsons v. Hind, |