heir; for which the reason seems to be, that they were sown by him with the intention of being reaped, and of being thus ultimately converted into personal estate. The law, however, makes in this case a distinction between an heir and a devisee; for a devise to a man of a particular piece of land, will suffice to carry also the emblements growing thereon at the testator's death, because in giving the principal subject he shall be presumed to mean to give it with the attendant advantages (d).

Further, the emblements of the terretenant are subject, like his moveables, to be distrained upon for any arrears of rent that he may owe to his landlord. Formerly, indeed, this was otherwise; for at common law it was the moveables only of the tenant that were liable to a distress; and the emblements were considered for this purpose, as parcel of the freehold itself, and were consequently exempt (e). But now by stat. 11 Geo. II. c. 19, landlords are permitted to distrain corn, grass, hops, or other produce of a similar nature (ƒ), growing on the demised premises.

In case of a judgment also against the terretenant, his emblements are liable to be taken upon a writ of execution, directing a seizure of his goods and chattels : a rule not introduced like the last, by statute, but the effect of legal construction, founded on the similarity which exists, in other particulars, between the law of emblements and that of personal property; and more particularly on the circumstance of their devolving on the executor, and not the heir (g).

We may dismiss the subject of emblements with the remark, that they comprise, by their definition, not only corn

(d) Anon., Cro. Eliz. 61; West v. Moore, 8 East, 339; Co. Litt. by Hargrave, 55 b.

(e) 1 Roll. Ab. 666; ibid. pl. 4; 3 Bl. Com. 9, 10; Co. Litt. by Harg. 47 b, n. (1).

(ƒ) Clark v. Gaskarth, 8 Taunt.

431; Clark v. Calvert, ibid. 742. See 56 Geo. 3, c. 50, s. 6; 14 & 15 Vict. c. 25, s. 2.

(g) Gilb. Exec. 19; Poole's case, 1 Salk. 368; Peacock v. Purvis, 2 Brod. & Bing. 368.

of all kinds, but other annual products, such as hops, hemp, flax, saffron, melons, cucumbers, turnips, and carrots (h), but that, on the other hand, fruits on the tree, and the natural grasses (i), are not emblements.

2. Fixtures;-which may be defined as things of an accessory character, annexed to houses or lands; and in that sense will include, not only such matters as grates in a house, or steam engines in a colliery, which follow in some respects the law of personal chattels, but such things also as windows and palings, which are for every purpose parcel of the realty. The definition, however, implies, that to be a fixture (j), the thing must not constitute part of the principal subject, as in the case of the walls or floors of a house; and that, on the other hand, it must be in some actual union or connection with the principal subject,-and not merely brought into contact with it, as in the case of a picture suspended on hooks against a wall, or a wooden barn resting, by its weight alone, upon a brick foundation (k).

By an antient rule of the common law (the result, perhaps, of that paramount regard which in former times was paid to land as compared with personal property), every fixture, or thing annexed to the realty, becomes, immediately on the annexation, part of the realty itself (7); the maxim being, that quicquid plantatur solo, solo cedit. This

(h) Co. Litt. 55 b; Toller, Exec. 193.

(i) 2 Bl. Com. 123; Toller, Exec. 193.

(j) The term fixtures (which is popular in its origin, though it seems now to be fully incorporated into the language of the law), is not used with much uniformity of meaning. It is often taken to express such annexations only as are legally removable, and this use of it is preferred, in an able treatise, to the more general one adopted in the text (see Amos on

Fixtures). But it seems more convenient to understand it in a sense suitable to the popular distinctions between landlord's and tenant's fixtures, and fixtures removable and irremovable; see 2 Smith's Leading Cases, 114. See also Elliott v. Bishop, 10 Exch. 496.

(k) See Elwes v. Maw, 3 East, 55; Wansbrough v. Maton, 4 Ad. & El. 884; Wiltshear v. Cottrell, 22 L. J. (Q. B.) 177.

(1) Lee v. Risdon, 7 Taunt. 191.

of course implies that in a general point of view, the fixture is thereafter governed by the same law which applies to the land, or subject real, with which it is incorporated, and ceases to follow the law of personalty (m). Yet are there numerous cases in which the contrary is true, and in which the fixture retains, after its annexation, the quality, in some respects, of a personal chattel; being in truth exceptions. gradually established by the course of judicial decision (n), as incident to the ordinary rule which merges the fixture in the freehold, because reason and convenience seemed evidently to require that rule to be so qualified. These cases are as follows:

First, as between the heir and the personal representative of the terretenant, though the fixtures will in general pass, with the rest of the freehold, to the heir, yet such of them' as are put up merely for ornament or domestic use, are understood to devolve to the personal representative, provided at least they be capable of removal, without material damage to the inheritance, and be not essential to its enjoyment (o). And the same rule, subject to the same qualification, seems to apply to such as are placed or erected for purposes connected with trade (p).

Next, as between the tenant of a particular estate and the person in remainder, though in general the former is bound to commit no waste, and to keep the inheritance entire and unimpaired; yet it would seem that such fixtures as are mentioned under the last head, if put up by himself, may also be lawfully removed by him (or by his personal representative, as the case may be), and that

(m) Vide Horn v. Baker, 9 East; 215; Minshall v. Lloyd, 2 Mee. & W. 450; Macintosh v. Trotter, 3 Mee. & W. 184; Sheen v. Rickie, 5 Mee. & W. 175.

(n) Buckland v. Butterfield, 2 Brod. & Bing. 54.

(0) 2 Bl. Com. 428; Amos on Fixtures, 157; Williams, Exec. 647,

5th ed.; 4 Burn's Ecc. Law, 301, 7th edit.

(p) Amos on Fixtures, 138-150; Toller, Ex. 198; Williams, Ex. ubi sup.; Elliott v. Bishop, 10 Exch. 496. It is to be observed, however, that the whole law of fixtures, as between heir and executor, is rather unsettled.

either during the continuance of the estate, or on its determination (g).

Again, as between landlord and tenant, it is held that the latter, though guilty in general of waste, if he despoils the freehold, may nevertheless take away during the continuance of his term, or at the end of it, but not after he has quitted the premises (r), such fixtures as he has himself put up on the demised premises, either for the purposes of trade, or for the ornament or furniture of his house (s). But this right does not extend to erections for ornament or pleasure, if they are of such a nature that their removal would be of material detriment to the freehold; for these fall under the general rule, and not under the exception, and must consequently be yielded up to the landlord, at the end of the term, as parcel of the inheritance (t). Nor did this right, at common law, extend to things annexed to the realty for purposes merely agricultural. It is now enacted, however, by 14 & 15 Vict. c. 25, s. 3, that if a tenant of farm or lands shall (with consent in writing of the landlord for the time being) at his own expense, erect any buildings or machinery, either for agricultural purposes or for the purposes of trade and agriculture (having been under no previous obligation to do so), such erection shall be the property of and removable by the tenant, though permanently fixed to the soil,—so that in removing them he do not injure the land or building of the landlord, or at all events do put the same into as good plight and condition as they were before the erection was made, and provided he give the landlord one month's

(4) Williams, Ex. 647, 5th ed. See Heap v. Barton, 12 C. B. 274; Wilde v. Waters, 16 C. B. 637.

(r) Penton v. Robart, 2 East, 88; Lyde v. Russel, 1 Barn. & Adol. 394; Weeton v. Woodcock, 7 Mee. & W. 14.

(s) Grymes v. Boweren, 6 Bing. 437. As to "trade" fixtures, see Elliott v. Bishop, 10 Exch. 496.

(t) Buckland v. Butterfield, 2 Brod.

& Bing. 54. The question whether fixtures are goods and chattels, sometimes arises also in reference to the special provisions of the bankrupt law. On this subject see Boydell v. M'Michael, 3 Tyrw. 974; Ex parte King, 1 Mont., D. & D. 119; Ex parte Heathcote, Mont., D. & D. 711; Ex parte Tagart, 1 De Gex, 531; Fletcher v. Manning, 1 Car. & K. 350.

notice of the intention to remove the erection, and the landlord shall not elect to purchase the same at a value to be ascertained by two referees or an umpire.

In all cases, however, it is material to remark, that the legal right of the tenant to remove fixtures is capable of being controlled or modified by the previous disposition or stipulation of the parties; a circumstance that, as between landlord and tenant more particularly, is of frequent occurrence, it being very usual for tenants to covenant that they will remove none of the fixtures that shall be annexed during the term to the demised premises, but will deliver them up, at its expiration, to the landlord's use. It is also worth notice, that the question of property in fixtures has been held liable to modification by the effect of a special usage, if any such can be shown to have long prevailed in the particular neighbourhood (u).

Besides these exceptions from the general rule of law that identifies fixtures with the freehold, they are liable, moreover, when in possession of a tenant for years, who is entitled to remove them, to be seized under a writ of execution against his goods and chattels (x); but when in possession of the tenant of the freehold, they are exempt from the operation of any such process (y); and fixtures are in no case subject to a distress for rent (z).

3. Shares in public undertakings connected with land ;The property in public undertakings of this description (such as mines, canals and rail-roads, to which the public are subscribers) is in the nature of realty, so far as regards. the land itself, or the right of using it; and is, for some purposes, of the same nature as regards the fixtures connected with the concern (a). But where the undertaking is

(u) Williams, Ex. 647, 5th edit.; Davis v. Jones, 2 Barn. & Ald. 165. (x) Poole's case, Salk. 368; vide sup. as to emblements, p. 228.

(y) Gilb. Execution, 19; Winn v. Ingilby, 5 Barn. & Ald 625.

(z) Co. Litt. 47 b; Gorton v. Falkner, 4 T. R. 565.

(a) See Comyn v. Kynets, Cro. Jac. 150; Stoughton v. Leigh, 1 Taunt. 402; R. v. Palmer, 1 Barn. & Cress. 549; R. v. Mayor of Bath, 14 East, 609; R. v. Lord Granville, 9 Barn. & Cress. 188; Minshall v. Lloyd, 2 Mee. & W. 450.