realty as well as fixtures, if it is intended that the fixtures should be paid for separately, a stipulation to that effect should be inserted (m); for without such stipulation fixtures would pass to the vendee like timber upon land (n). Contracts for the sale of fixtures are not within the Statute of Frauds, as they are not goods or chattels within the meaning of the statute; nor do they, although annexed to the freehold, constitute an interest in land (o). But a memorandum of the actual sale of fixtures requires a conveyance stamp, and it makes no difference that it is in the past tense (p). A reversionary interest in trade fixtures will pass by an agreement in writing though not under seal (q). Where a lessee, who had power to remove a greenhouse fixed to the freehold, agreed to sell the lease, together with the greenhouse and furniture, plants and crops, for a certain sum, but was afterwards unable to obtain the lessor's consent to the assignment of the lease, which was necessary; it was held that the contract was an entire one, and that the lessee could not sue for the price of the greenhouse (r). A steam-engine erected for the purpose of working a colliery, to be used by the lessee of such colliery during his term, but to be held as the property of the landlord subject to such use, was held not to pass to the assignees of the tenant on his bankruptcy, on the ground that it did not come within the description of "goods and chattels" in the 12 & 13 Vict., c. 106, s. 125, nor had the bankrupt the actual or apparent ownership (s). In a later case it was held that fixtures,

(m) Colegrave v. Dias Santos, 2 B. & C. 76.

(n) Crockford v. Alexander, 15 Ves. 138; Boydell v. M'Michael, 1 C. M. & R. 177.

(0) Hallen v. Runder, 1 C. M. & R. 275; Lee v. Risdon, 7 Taunt. 191.

(p) Horsall v. Hey, 2 Ex. 778. (q) Petrie v. Dawson, 2 C. & K. 138.

(r) Sleddon v. Cruikshank, 16 M. & W. 71.

(8) Coombes v. Beaumont, 5 B. & Ad. 72, ex parte Broadwood Id. 631.

part of which were erected before a mortgage and part afterwards, and which were by law removable as between landlord and tenant, as well as on the principle of the benefit of trade, passed to the mortgagee and not to the assignees of the bankrupt mortgagor under the same section (t). Where copper-roller manufacturers, being seised in fee of a mill and land, erected thereon steam-engines, machinery, &c., for the purpose of their trade, and then mortgaged in fee the mill and land, with all fixtures, &c., and afterwards became bankrupt; it was held that the mortgagees were entitled to all the machinery, &c., fixed to the freehold, and that the deed did not require to be registered as a bill of sale under the 17 & 18 Vict., c. 36 (u). But a mortgage of trade fixtures without the mill or land to which they are annexed is a mortgage of personal chattels within the meaning of 17 & 18 Vict., c. 36, as explained by sect. 7, which includes "fixtures and other articles capable of complete transfer by delivery" (v). And such fixtures will be deemed to be in the order and disposition of a mortgagor in the event of his bankruptcy, whilst he remains in possession thereof (w). The registration of the mortgage under the Bill of Sale Act (17 & 18 Vict., c. 36), makes no difference in this respect (x). By a mortgage of a mill, the stones, tackling, and implements pass to the mortgagee (y). So do looms and other machinery fixed to the floor (). So do trade fixtures which before or after the mortgage have been affixed to the freehold by the mortagor for

(t) Ex parte Reynel, 2 Mont. D. & De G. 443.

(u) Mather v. Fraser, 2 K. & J. 536, 25 L. J. Ch. 361; Boyd v. Shorrock, L. R. 5 Eq. 72, 37 L. J. Ch. 154.

(v) Waterfall v. Penistone, 6 E. & Bl. 876, 26 L. J. Q. B. 100. (w) Whitmore v. Empson, 23 Beav. 313, 26 L. J. Ch. 364.

(r) Badger v. Shaw, 2 E. & E. 472, 29 L. J. Q. B. 73; Re Daniel, ex parte Ashby, 25 L. T. R. 188.

(y) Place v. Fagg, 4 M. & R. 277; Ex parte Bentley re West, 2 Mont. D. & D.

(z) Boyd v. Shorrock, supra; Re Dawson, Tate, & Co., 16 W. R. 424.

the purpose of trade, and not for the improvement of the inheritance, and which are capable of being removed without damage to the freehold (a). An equitable mortgage of a leasehold public-house with the fixtures therein, consisting of ordinary house fixtures and trade fixtures, will be sufficient to prevent any of them being in the order and disposition of the lessee on his becoming bankrupt (6). Under an equitable mortgage, by the simple deposit of a lease unaccompanied by any memorandum, the tenant fixtures will be included (c).

Upon the demise of a house, it is usually agreed be- Valuation. tween the landlord and tenant that the fixtures shall be taken at a valuation-i.e., such fixtures as a tenant would ordinarily be entitled to remove if he had put them up. It is expedient that such fixtures should be enumerated in the conveyance by schedule or otherwise, when it is intended that they should be paid for separately from the premises demised (d). If the landlord agrees to make an allowance for the fixtures at the end of the term, it would seem that those fixtures only should be valued which were paid for by the tenant at the commencement (e).

When it is agreed between an outgoing and incoming tenant that the fixtures on the premises are to be taken at a valuation, the broker should value such things to the incoming tenant as under the general law of fixtures are removable between a landlord and his tenant, and all fixed articles upon the premises

(a) Culwick v. Swindell, L. R. 3 Eq. 249, 37 L. J. Ch. 173; Climic v. Wood, L. R. 3 Ex. 257, 37 L. J. Ex. 158.

(b) Ex parte Barclay, 5 De G. M. & G. 403.

(c) Williams v. Evans, 23 Beav. 239.

(d) Colegrave v. Dias Santos, 2. B. & C. 76; Thresher v. East London Waterworks, 608.

(e) See Amos on Fixtures, 351.

falling within this description should be included in the valuation, although they may in fact have been originally purchased of the landlord by the outgoing tenant. But the outgoing tenant cannot insist on anything being appraised which, as against his landlord, he is not authorised by his lease to sever. If an incoming tenant agree with an outgoing tenant for the purchase of his fixtures, he should require that the landlord be made privy to the transaction, otherwise the incoming tenant may find that he has no right to remove them at the end of his tenancy (ƒ). The rights of incoming and outgoing tenants are regulated in a great degree by custom (g). The valuation of the fixtures requires an appraisement stamp (h).

(f) Elliot v. Bishop, 10 Ex. 496, 11 Ex. 113; Burt v. Haslett, 18 C. B. 162, 893. See Minshall v. Lloyd, 2 M. & W. 450.

(g) See Davis v. Jones, 2 B. &

Ald. 165; Wetherall v. Howells, 1 Camp. 227.

(h) Amos on Fixtures, 357. See Stamp Act, 1870, 33 & 34 Vict. c. 97.

A CHANGE of parties may take place either by the act of the parties themselves, as by assignment, attornment, or underletting, or by the operation of law, as through the death of either party, or through bankruptcy, marriage, or proceeding at law under a writ of execution.

1. BY LANDLord.

A landlord may by deed assign his reversion (a), By landlord. and the consequences of such assignment as they affect the covenants will be considered, post, ss. 3-5. So also he may mortgage his property subsequently to the making of the lease, and such mortgage will ope

(a) Beely v. Perry, 3 Lev. 155.