2 Smith's Leading Cases, 4th edit. p. 144, beginning with the Year Book, 20 H. 7, fo. 13. In all the earlier authorities, the right of removal is expressly limited to the actual legal tenancy. [WILLIAMS, J.-Surely it is now settled that the right of the tenant to remove fixtures exists during the period during which he might be considered as tenant.] In Poole's Case, 1 Salk. 368, Lord Holt says, "that, during the term, the soap-boiler might well remove the fats he set up in relation to trade, and that he might do it by the common law (and not by virtue of any special custom) in favour of trade, and to encourage industry; but, after the term, they become a gift in law to him in reversion, and are not removable." In Penton v. Robart, 2 East 88, Lord Kenyon says: "The old cases upon this subject leant to consider as realty whatever was annexed to the freehold by the occupier: but in modern times the leaning has always been the other way, in favour of the tenant, in support of the interests of trade, which is become the pillar of the state. And some of the cases have even gone further in favour of the executor of tenant for life against the remainder-man, between whom the rule has been holden stricter; for, it has been determined that the executor or tenant for life was entitled to take away the fire-engine of a colliery." Elwes v. Maw, 3 East 38, turned entirely upon the question whether an agricultural tenant was entitled to the same privileges in this respect as a trader; and Lord Ellenborough, in a very elaborate judgment, held that he was not. So, in Lee v. Risdon, 7 Taunt. 188, 2 Marsh. 495, (E. C. L. R. vol. 4), speaking of fixtures which a tenant might lawfully remove, Gibbs, C. J., says, that, "unless the lessee uses during the term *129] his continuing privilege to sever *them, he cannot afterwards do it." And that doctrine received the assent of Abbott, C. J., in Colegrave v. Dias Santos, 2 B. & C. 76 (E. C. L. R. vol. 9), 3 D. & R. 255 (E. C. L. R. vol. 16). The observations of Bayley, J., in Storer v. Hunter, 3 B. & C. 368 (E. C. L. R. vol. 10), 5 D. & R. 240 (E. C. L. R. vol. 16), also strongly corroborate this view: and there the term was determined, as here, by a forfeiture. Lord Tenterden, in Lyde v. Russell, 1 B. & Ad. 394 (E. C. L. R. vol. 20), limits the right in the same way. In Minshall v. Lloyd, 2 M. & W. 450,† Parke, B., says, in like manner, that "the right of a tenant is only to remove during his term the fixtures he may have put up, and so to make them cease to be any longer fixtures." And in Macintosh v. Trotter, 3 M. & W. 184,† the same learned judge says: "Minshall v. Lloyd is a direct authority on this point. I gave my opinion in that case, not on my mere impression at the time, but after much consideration of this point,that the principle of law is, that whatsoever is planted in the soil belongs to the soil; quicquid plantatur solo, solo cedit; that the tenant has the right to remove fixtures of this nature during his term, or during what may for this purpose be considered as an excrescence on the term; but that they are not goods and chattels at all, but parcel of the freehold, and as such not recoverable in trover. That case is a direct authority, so far as my opinion and that of my Brother Alderson go; and I think it was a correct decision." That, however, still leaves it doubtful what that excrescence is. The true rule probably is this, that the tenant's right of removal continues whilst he remains in possession of the premises in continuation (whether rightfully or otherwise) of the same holding under the lessor. [WILLIAMS, J.-Who was in possession at the time

the cause of action arose ?] The assignees. [WILLIAMS, J.-No. The lessors had re-entered for the forfeiture, and they were in possession. WILLES, J.-It would seem that both were in possession. *If

two are in possession at the same time, the law, according to Lord [*130

Coke, "accords the possession to him who has title." CROWDER, J.— The assignees claim no title to the land.] It is submitted that the proper limitation of the tenant's right of removal exists only whilst he or his representatives continue in possession, without any determination of the tenancy, either actual or constructive. The fair construction of the lease is, that the tenant shall have a reasonable time to remove the fixtures other than shipwrights' fixtures (which by the contract were to be left) on the determination of his term. The contrary construction would be giving no effect whatever to the latter part of the covenant.

Coleridge, in reply.-The true principle is involved in the three propositions thrown out by Jervis, C. J., in Heap v. Barton, 12 C. B. 274 (E. C. L. R. vol. 74),-"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, 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." Fixtures annexed to the freehold are primâ facie the property of the owner of the soil. In aid of the tenant, and in favour of trade, an exception is engrafted upon that rule, enabling him to sever the fixtures, and so regain his property in them: if he does not avail himself of that right, the fixtures belong to the person to whom the freehold belongs. The law being so, the exceptions are equally clear and simple. Whichever be the rule adopted in the present case, the defendants' right must *prevail. The lease has expired, the lessors have entered, and the fixtures are theirs. Then, except [*131 for the limited purpose of realizing the bankrupt's effects, the assignees have nothing to do with the occupation of the premises: and, even if they had, the term being ended, the re-entry of the lessors was a revesting of the freehold in them, with all the rights belonging to it. And, as to the third rule,-whatever be its meaning,-after the re-entry of the lessors, the assignees could have no right to consider themselves as tenants. When a lessor re-enters lawfully, he enters upon the full and indisputable possession of that which, subject to the privilege of the tenant, has been his property during the whole of the term. [WILLIAMS, J.-The re-entry of the lessor can make no difference, if the tenant has by law a reasonable time for the exercise of his right of removal.] Then, as to the covenant,-the language is very peculiar: "it shall and may be lawful for the said Thomas White, at any time during the said term, or, at the expiration thereof, to remove," &c. That clearly does not entitle him to remove the fixtures after his term has expired.

WILLIAMS, J.-I am of opinion that the plaintiffs are entitled to judgment. A number of questions of no little difficulty have been raised in the course of the argument, as to the right of a tenant to remove fixtures at the determination of his term, and as to the period of time when he must exercise his right to disannex them from the freehold. A good deal of discussion has also taken place as to the effect of a determination of the VOL. IV.-7

term by the act of the tenant himself,-whether he puts himself in a different position as to his right of removal where the tenancy has been determined by a forfeiture. But, in the view we take, it becomes un*132] necessary to determine any of these points, *because it appears that the parties have themselves provided what shall be their respective rights upon the happening of such a state of things as has arisen. It appears that White, the bankrupt, became tenant of the premises under the corporation of Portsmouth under a lease whereby he covenanted to set up a steam-engine and machinery and buildings for the proper carrying on the business of a shipwright on the slip, ground, and premises, demised, "and the said slip-way, ground, buildings, erections, and engines, machinery, tackle, gear, and premises demised, or which should be set up by the tenant during the term, with their and every of their appurtenances, should and would peaceably and quietly leave, surrender, and yield up to the defendants (the lessors) 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 landlord, and not to the tenant, without any payment being made to him for the same." Then follows a proviso, "that the lastmentioned stipulation should not be construed to apply to any machinery, &c., which should or might be erected or set up on the demised premises by White during the term for any other purpose than that of carrying on the said business of a shipwright; but that it should and might be lawful for White 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." Stopping here, a controversy is raised as to the meaning of this stipulation. On the one hand, *133] it is insisted that it means to express no more than the common law would imply, viz., that the tenant is to have the right to remove the last-mentioned fixtures, provided he exercises that right during the term or at the end of it. But it seems to me that this proviso must be read in conjunction with that which immediately follows it, manifesting that the parties are contemplating the very state of things which has arisen,— that, if the lessee shall become bankrupt, it shall be lawful for the lessors to re-enter, and upon such re-entry to take possession of and enjoy as their own property, without paying anything for the same, all steam and other engines, machinery, &c., which should be used or employed in or about the business of a ship-builder. Surely it is impossible to doubt, that, when the parties have stipulated that the lessors shall have this right, it must be understood that they intended the right to be confined to the fixtures stipulated for, and not to apply to the others. It comes, then, to this, that the lessors are at the expiration or other sooner determination of the term to take the ship-building fixtures, and the tenant is to have the others; and, if so, it follows that the latter is to have a reasonable time for their removal. This right, then, being in the tenant, or his assignees, the declaration avers that they have exercised it within a reasonable time. On the face of the lease, a distinction is made between the two sets of fixtures; it being in effect stipulated that

the one set shall go to the lessors, and the other to the lessee; and, the declaration averring that the assignees of the latter were prevented from exercising their right to sever and remove them within a reasonable time after the lessors' re-entry for the forfeiture, the plaintiffs are entitled to the judgment of the court.

CROWDER, J.-I also am of opinion that the plaintiffs *are en

titled to judgment; and I ground my opinion entirely upon [*134

the

language of the lease, and consequently it is unnecessary to enter upon the consideration of the somewhat nice and difficult questions to which our attention has been directed in the course of the argument. The lease makes a clear distinction between the two sets of fixtures: as to the ship-builders' fixtures, there is an absolute prohibition against the tenants' removing them during the term, and an express stipulation that at its expiration they shall belong to the lessors: but, as to any other fixtures which may be set up on the premises during the term, there is this express proviso,-"provided nevertheless, that the last-mentioned stipulation shall not be construed to apply to any machinery, tackle, gear, &c., which shall or may be erected or set up on the said demised premises by the lessee during the said term for any other purpose than that of carrying on the said business of a shipwright; but that it shall and may be lawful for the lessee 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." It is insisted, on the part of the defendants, that this gives the lessee no larger or more extensive right than the common law already gave him. But that proviso, as it seems to me, must be read in conjunction with the important one which follows it, and which stipulates, that, in the event of the bankruptcy of the lessee, the lessors shall have power to re-enter upon the demised premises, and to possess themselves of the fixtures erected for the purpose of the business of a ship-builder. Looking at the whole instrument, it appears to me that the lessors have no title to the fixtures erected for purposes other than the business of a shipwright; that the lessee is entitled to these; and that he is to have a reasonable time for removing them. No effect could *by any other construction be [*135 given to the language of the provisoes. And, the declaration. averring that the re-entry of the lessors took place before the lapse of a reasonable time, it seems to me that a good cause of action is disclosed.

WILLES, J.-I am of the same opinion. The true construction of the lease is, that, in case of the bankruptcy of the lessee, the lessors may re-enter and take the ship-building fixtures, but no others. That being so, the assignees had a right to enter to take the others, and had a reasonable time for the exercise of that right. BYLES, J., had gone to Chambers.

Judgment for the plaintiffs.(a)

(a) See Leader v. Homewood, post, T. Vac. 1858, and The London and Westminster Loan and Discount Company v. Drake, post, Vol. V.

The right of a tenant to remove fix- during the term, and ceases at its extures erected or annexed by him to the piration; for after that time they are, freehold is one which must be exercised in the language of some of the cases,