in terms. If that be so, and if Lush v. Russell be good law, the defendant selecting a bad breach, and demurring, and the plaintiff joining in demurrer, the defendant would be entitled to judgment, because there would be nothing upon which the court *could give judgment for

the plaintiff. I have always understood, that, where, if a plead- [*119 ing were demurred to, there would be judgment for the demurring party; and such party, instead of demurring, relies on the matter of fact, and it is found against him; or if there be a demurrer to a plea setting up the answer in fact, and a subsequent demurrer thereto, the other party may obtain judgment in respect of the insufficiency of the former pleading. I do not, therefore, see any substantial distinction between Lush v. Russell and the present case. For these reasons, I must confess I do not so clearly see my way to the conclusion at which the rest of the court have arrived, though I have not much reliance upon the correctness of my own opinion on the matter.

BYLES, J.—I am of opinion that the plaintiff is entitled to judgment. It appears to me that the 5007. mentioned in the declaration is a penalty only, and that its non-payment constitutes no breach of any legal duty. The allegation at the end of the declaration is merely a legal consequence wrongly inferred. The pleas, therefore, are bad, as being pleaded to that which is an utterly immaterial allegation.

As to where a stipulation for liquidated damages will be treated as a penalty, and what will be considered

Judgment for the plaintiff.

such: see American note to Peachy v. Somersett, 2 Lead. Cases in Equity 772.

*STANSFELD and Others, Assignees of the Estate and Effects of THOMAS WHITE, the younger, a Bankrupt, v. [*120 THE MAYOR, ALDERMEN, AND BURGESSES OF THE BOROUGH OF PORTSMOUTH. Feb. 9.

By a lease, the lessee covenanted to erect a steam-engine, machinery, and buildings proper for carrying on the business of a shipwright, on the land demised, and to leave the same for the lessors at the expiration or other sooner determination of the term,-"it being by the said indenture declared that all steam and other engines, machinery, &c., set up upon the premises at any time during the term for the purpose of carrying on the trade of a shipwright, together with all fixtures, should not be removed therefrom, but should, upon the expiration or other sooner determination of the said term, belong to the landlords and not to the tenant, without any payment being made to him for the same." The lease then went on to provide "that the last-mentioned stipulation should not be construed to apply to any machinery or other articles which might be erected or set up on the demised premises by the lessee during the term, for any other purpose than that of carrying on the business of a shipwright; but that it should be lawful for the lessee at any time during the term, or at the expiration thereof, to remove and take away all such last-mentioned machinery, &c., from the said demised premises." The lease then contained a further proviso, that, in the event of the lessee becoming bankrupt, it should be lawful for the lessors to re-enter, "and upon such entry to take possession of, have, &c., as their own property, without paying anything for the same, all steam and other engines, &c., which should be found on the premises, and which should be used or employed in or about the business of a ship-builder thereon." The lessee having become bankrupt, the lessors re-entered for the forfeiture:-Held, that the assignees of the lessee were entitled to enter for the purpose of removing the fixtures other than those set up for the shipbuilding business, and to a reasonable time for that purpose.

THE first count of the declaration stated that the said Thomas White the younger, before he became bankrupt, under and by virtue of a certain indenture of lease, bearing date the 21st of December, 1855, became and was tenant to the defendants of a certain building and repairing-slip and ground, with the appurtenances thereto belonging, situate at Portsmouth, in the said indenture particularly described; and it was in and by the said indenture of lease, among other things, covenanted and agreed by the said Thomas White the younger, that he should or would, on or before the 25th of March then next, provide, set up, and erect a good and sufficient steam-engine or other sufficient apparatus, moving carriage, and all necessary machinery and building for the proper carrying on the business of a shipwright on the said slip, ground, and premises demised, to the satisfaction of the defendants, and the said slip, way, ground, buildings, erections, and engines, machinery, tackle, gear, and premises demised, or which *should be set up by the *121] said Thomas White the younger during the said term, with their and every of their appurtenances, should and would peaceably and quietly leave, surrender, and yield up to the said defendants at the end, expiration, or other sooner determination of the said term,—it being by the said indenture declared that all steam and other engines, machinery, tackle, gear, and utensils, set up upon the premises at any time during the said term for the purpose of carrying on the trade of a shipwright, together with all fixtures, should not be removed therefrom, but should, upon the expiration or other sooner determination of the said term, belong to the landlords, and not to the tenant, without any payment being made to him for the same: provided, nevertheless, that the last-mentioned stipulation should not be construed to apply to any machinery, tackle, gear, utensils, or other articles which should or might be erected or set up on the said demised premises by the said Thomas White the younger during the said term for any other purpose than that of carrying on the said business of shipwright; but that it should and might be lawful for the said Thomas White the younger at any time during the said term, or at the expiration thereof, to remove and take away all such last-mentioned machinery, gear, utensils, or other articles, from the said demised premises: and it was further provided, that, if the said Thomas White the younger should become bankrupt, then that it should be lawful for the said Mayor, &c., in and upon the said slip, way, ground, erections, buildings, and premises demised, or any part thereof in the name of the whole, to re-enter, and the same thenceforth to have again, re-possess, and enjoy as in their former estate and condition; and also upon any such entry to take possession of, have, hold, and enjoy as their own property, without paying anything for the same, all steam *and other engines, machinery, utensils, tackle, gear, matters, *122] and things whatsoever which should be found on the said premises, and which should be used or employed in or about the business of a ship-builder, in connection with the said slip, way, and premises demised Averment, that, whilst the said Thomas White the younger so held the said demised premises as tenant thereof to the defendants, he erected, set up, and fixed in and upon the demised premises certain machinery, tackle, gear, utensils, and other articles, for purposes other than that of carrying on the said business of a shipwright, the same being fixed and fastened in and upon the said premises in such a manner

that the same might and could be separated and removed without causing or doing any material damage or injury to the said demised premises; and that the said machinery, tackle, gear, utensils, and other articles always were used by the said Thomas White the younger for purposes of trade other than for the business of a shipwright: That, during the continuance of the said term, the said Thomas White the younger became bankrupt, and thereupon all the estate and effects, right, title, and interest whatsoever of the said bankrupt came to and of right belonged to the plaintiffs, as assignees as aforesaid; and that thereupon the plaintiffs, as such assignees as aforesaid, entered upon and took possession of the said demised premises, and of the said machinery, tackle, gear, utensils, and other articles in and upon the said premises: That afterwards, and whilst they continued in possession and occupation of the said demised premises as assignees as aforesaid, for the purpose of realizing the estate and effects of the said bankrupt, and before the expiration of a reasonable time for the separation and removal of the said machinery, tackle, gear, utensils, and other articles from the said premises, the defendants entered upon the said premises; and thereupon, whilst the plaintiffs continued in the possession *and occupation of the said premises for the purpose of realizing the estate and [*123 effects of the said bankrupt; and, although the plaintiffs would, within a reasonable and proper time in that behalf, have separated and removed from and off the said demised premises the said machinery, tackle, gear, utensils, and other articles, had the defendants suffered or permitted them so to do, the defendants then wholly refused to permit the plaintiffs then or at any time to separate or remove the same, and then, before a reasonable time for the separation or removal of the same had elapsed, wrongfully prevented and hindered the plaintiffs from separating and removing the said machinery, tackle, gear, utensils, and other articles from the said premises, and thence continually hitherto have prevented and hindered the plaintiffs from so doing, and the defendants have used and converted the same to their own use.

The defendants demurred to the first count,-the ground of demurrer stated in the margin being, "that it shows no right in the plaintiffs to trespass on the defendants' premises for the alleged purpose, nor any obligation on the defendants to permit the plaintiffs so to do." Joinder. Coleridge (with whom was Kinglake, Serjt.), in support of the demurrer.(a)-WILLES, J.-There is no *allegation in the declaration of notice to the tenant that the defendants were going into

[*124

(a) The points marked for argument on the part of the defendants were as follows:"1. That the rights of the late tenant or his assignees to remove fixtures no longer exists after the landlord's entry, upon a forfeiture of the term.

"2. That, after the entry of the landlords for a forfeiture, the possession of the late tenant or his assignee was wrongful, and that such possession could give no right to him or them to remove the fixtures.

"3. That the prevention of the landlords of the removal of fixtures after the entry for a forfeiture, can give no right of action to the late tenant or his assignees, in the absence of any express contract on the part of the landlords to allow such removal after the determination of the term.

"4. That the property in fixtures, as fixtures, is always in the landlord, subject to the tenant's right to remove them during the term.

"5. That the law allows to the late tenant no time after the expiration of the tenancy for removal of fixtures, and that a right to remove them after the expiration of the tenancy can be granted only by deed."

the land for the purpose of taking the fixtures. I do not see how the action could be maintainable without such notice. That should be inserted. Hannen, for the plaintiff, assented to the proposed amendment.] The declaration discloses no cause of action. It avers that the articles in question were used by the bankrupt for purposes of trade otherwise than for the business of a shipwright. Being unsevered from the freehold, they would not pass to the assignees as goods and chattels. The general rule of law is, that fixtures, unless removed during the term, or, at all events, during the period of the tenant's actual possession of the premises under a claim of right, become the property of the landlord: Penton v. Robart, 2 East 88, 4 Esp. N. P. C. 33; Mackintosh v. Trotter, 3 M. & W. 184;† Weeton v. Woodcock, 7 M. & W. 14;† Heap v. Barton, 12 C. B. 274 (E. C. L. R. vol. 74); Roffey v. Henderson, 17 Q. B. 574 (E. C. L. R. vol. 79); 2 Smith's Leading Cases, 4th edit. 159, 160. Here, the possession of the tenant, and of the assignees, was determined by the re-entry of the lessors. The rule is the same where the term is determined by an act over which the tenant has control, as by a forfeiture: Minshall v. Lloyd, 2 M. & W. 450;† Storer v. Hunter, 3 B. & C. 368 (E. C. L. R. vol. 10), 5 D. & R. 340 (E. C. L. R. vol. 16); Amos on Fixtures, 2d edit. 103. Where a term has determined by the lessee's own act, it has been held that he is not entitled to emblements: Davis v. Eyton, 7 Bingh. 154 (E. C. L. R. vol. 20), 4 M. & P. 820. That *125] shows the principle which ought to guide the court in the decision of this case. In Heap v. Barton, 12 C. B. 278 (E. C. L. R. vol. 74), Jervis, C. J., suggests that fixtures annexed to the freehold become by the act of annexation the property of the landlord, subject to the tenant's right to remove them during the term. In Bishop v. Elliott, 11 Exch. 113,† by indenture, C. demised to E. an unfinished messuage for the term of ninety-seven years: the indenture contained a covenant by E., that, at the expiration of the term, he would deliver up the demised premises unto C., "together with all locks, keys, bars, bolts, marble and other chimney-pieces, foot-paces, slabs, and other fixtures and articles in the nature of fixtures, which shall, at any time during the said term, be fixed or fastened to the said demised premises, or be thereto belonging" E. took possession of and completed the messuage, and fitted it up with things necessary for carrying on the business of a tavernkeeper and licensed victualler, and for that purpose put in the premises certain fixtures of the description called and known as trade and tenant's fixtures: B. afterwards contracted with E. to purchase from him an underlease of the premises, and the good-will, and also the furniture, fixtures, stock in trade, &c., at a valuation: in pursuance of this agreement, E. executed to B. an under lease, which contained a covenant on the part of the defendant in the same words as the above covenant by E. in his lease and it was held by the Exchequer Chamber that the covenant above set forth did not restrain B., the lessee, from disposing either of the tenant's or of the trade fixtures. In delivering the judgment of the court, Parke, B., there says: "It may be, that, by so construing the covenant, we reduce its operation to that merely which the general rule of law would have given the landlord without it. But this is an argument of little weight. No modern lease probably will be found which does not contain *covenants merely to secure rights subsisting at common law, but perhaps more easily enforced by the

*126]

help of an express contract. These particular words may have been introduced for greater caution, because of the language of some of the decisions quoted, or to bring an infringement of the right within the clause of re-entry." [WILLES, J.-The question here depends upon the construction of the contract into which the parties have entered.] The true construction of the contract, it is submitted, is this, that, as to all but the fixtures applicable to the ship-building trade, the common-law rights of the parties are to prevail, but that those which are put up for that purpose shall be the property of the lessors. The covenant imposes a limitation on the tenant's rights, but leaves the landlord's rights untouched. The proviso that that stipulation should not be construed to apply to any machinery, &c., erected by the tenant during the term for any other purpose than that of carrying on the business of a shipwright, was merely introduced for the purpose of clearing up any doubt which might exist as to the tenant's liability to leave all fixtures he might erect upon the premises at the expiration of the term. [WILLIAMS, J.-The proviso goes on," but that it should and might be lawful for the said T. White, at any time during the said term,' or at the expiration thereof, to remove and take away all such last-mentioned machinery, &c., from the said demised premises."] That is merely an affirmance of the common-law right of the tenant.

Hannen, contrà.(a)—There are two questions for the *con- [*127 sideration of the court in this case,-first, whether the assignees

of White had not a reasonable time for the removal of these fixtures after the determination of the term,-secondly, whether there is anything in the terms of the lease to lessen or control that right. 1. The first point has been distinctly raised in two cases,-In Weeton v. Woodcock, 7 M. & W. 14,† where, however, it became unnecessary to determine it,—and in Heap v. Barton, 12 C. B. 274 (E. C. L. R. vol. 74), which turned on the special agreement of the parties. In the last-mentioned case, Jervis, C. J., says: "The courts seem to have taken three separate views of the rule,-first, that fixtures go, at the expiration of the term, to the landlord, unless the tenant has during the term exercised his right to remove them,-secondly, as in Penton v. Robart, 2 East 88, that the tenant may remove the fixtures notwithstanding the term has expired, if he remains in possession of the premises,-thirdly, that his right to remove fixtures after his term has expired is subject to this further qualification, viz., that the tenant continues to hold the premises under a right still to consider himself as tenant." The second of these propositions, it is submitted, is the correct one. The third is supported only by a dictum of Alderson, B., in Weeton v. Woodcock, which is based upon something thrown out by Parke, B., in Minshall v. Lloyd, 2 M. & W. 460.† It may be convenient to see what was the *state [*128 of the authorities when Minshall v. Lloyd came to be decided,all of which will be found referred to in the notes to Elwes v. Maw,

(a) The points marked for argument on the part of the plaintiffs, were as follows:"That the declaration discloses a good cause of action; that it does not appear that the term was determined, so as to deprive the assignees of the right, while they continued in occupation of the premises, to remove machinery not erected for the use of the business of a shipwright; that the plaintiffs were entitled to a reasonable time after the bankruptcy to remove all articles in the nature of fixtures to which the bankrupt was entitled; and that, by the terms of the lease, the defendant did not, upon the bankruptcy of the tenant, acquire any right to the machinery, &c., erected for purposes other than that of carrying on the business of a shipwright."