1 S. P. Ex p. Spicer, 2 Deac. 335; Ex p. Watkins, 1 Deac. 296. 15 Russ. 358. 2 Nev. & M. 235. 41 Mont. & Ayrt. 494. that the tenant had, at the time of his bankruptcy, the reputed ownership of the movables, but not of the fixtures1. The doctrine of reputed ownership has, therefore, no application to fixtures; nor does it apply to such chattels as are subject to a custom of being let. Thus, in Rufford v. Bishop2, the evidence before the master having established that it is the custom in the county of Stafford for the machinery affixed to the freehold to be furnished by and to continue to be the property of the lessor: it was held, that the mere possession of the bankrupt did not necessarily infer the property in them. So, in Coombs v. Beaumont 3, from which it appears that 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, will not pass to the assignees of the tenant on his bankruptcy. So, in Ex parte Lloyd, A. who was in partnership with B., deposited with their bankers the titledeeds of a freehold cotton-mill, belonging to him, as a security for advances made for the firm of A. and B., a steam-engine and other machinery having been, previously to the deposit, erected by A. and B. for the purposes of their trade: they continued in possession of the premises and machinery up to the period of their bankruptcy: it was held, that the steam-engine and machinery, though removable by tenant as fixtures erected by him for the purposes of trade, yet, being firmly attached to the walls and floors of the buildings, and being such fixtures as are frequently put up by the owners of cotton-mills, aud let with the mill to a tenant, were not to be considered as in the reputed ownership of the bankrupts, and were well mortgaged. In Boydell v. 1 Cr. M. & K. M'Michael 5, where A. took the lease of a house and premises for a term of years, and took the tenant's fixtures in the house at a valuation from the landlord, and afterwards assigned the term by way of mortgage, expressly including the fixtures, and subsequently became bankrupt, it was held, that the fixtures did not pass to his assignees. "The reason is this: that, with regard to real property, the possession is considered as nothing, but Per Parke, B., that the title only is looked to6." So, where the owner mortgaged 177. Id. 179. * Ex parte Wilson, Id. 61. certain lands, factories, and buildings, together with the steam engines, and also the movable and fixed machinery in and about the same, and afterwards became bankrupt, it was held, that the fixed machinery belonged to the mortgagee and not to the assignee 7. Effect of an agreement to take the fixtures at a valuation.]— In the demise of a house, &c., it is usually agreed, that "the tenant shall take the fixtures at a valuation." The proper construction of those words would seem to be, that the tenant shall pay for all such fixtures as, if they had been erected by himself during the term, he could have removed; but in practice it is usually left to the broker, who is called in to make the appraise ment. If nothing be said about the fixtures in the agreement for the lease, it seems that they are so much a part of the house, that they would be regarded as being thrown into the bargain, the compensation for their use being included in the rent. Hence, in leases, it is important, where the object is that the fixtures should be valued and paid for separately, to make express reference to them by schedule or otherwise. When a tenant, at the - expiration of his interest, renews his term, or takes any fresh interest in the premises, he should be careful to reserve his right to take away his fixtures; for otherwise, he may, in certain cases, lose his right to the property of them. Fixtures as between out-going and in-coming tenants.]—In transactions between out-going and in-coming tenants, when it is agreed that the in-coming tenant shall take the fixtures at a valuation, those things should be valued by the broker, which, under the general law of fixtures, are removable as between landlord and tenant; and all such fixtures should be included in the appraisement, though the out-going tenant may have originally purchased them of the landlord. Of course, the out-going tenant is not entitled to have such fixtures included as against the landlord he cannot legally sever, although they were originally erected at his own expense. If the fixtures were erected on the premises prior to the first demise, or their removal would be in contravention of any provision in the lease, they ought not to be valued to the incoming tenant. If fixtures which have been so valued to the in-coming tenant, should, in fact, prove to have belonged to the house, and to have been scheduled in the original lease, he may, on an action for money had and received, recover from the outgoing tenant the sum he paid for them; and it is no defence to such an action that the out-going tenant did not know that the articles belonged to the landlord, and had himself purchased them of a preceding tenant. In taking an assignment or underlease of premises, the party so taking should, in purchasing the fixtures, consider the duration of his interest; for, otherwise, if the term be short, and he have paid the full value of the fixtures, he will be in considerable hazard of subjecting himself to a loss. In either case, he should stipulate that the landlord shall consent to a valuation of them at the end of the term. To prevent any dispute, and intercept any collateral claims of the landlord, he should always be made a party in transactions between the out-going and in-coming tenant. In general, however, it may be observed, that the rights of in-coming and out-going tenants as to fixtures, are very much regulated by custom: and the custom of valuing a particular article, as between out-going and in-coming tenants, is, as we have seen, considered by the court a good criterion for determining the nature of the property, and whether it be a fixture or not. 11 Mee. & Wel. 475. SECT. 8.-EFFECT OF LOCAL CUSTOMS AND USAGES AS TO 'WAY-GOING CROPS. The effect of local customs in modifying the relative rights of landlord and tenant, and those of out-going and in-coming tenants, being considerable, and such customs having, of late years, frequently come under the consideration of the courts, the leading cases will be here adverted to. "It has long been settled," observes Mr. Baron Parke in Hutton v. Warren, in the course of a judgment in which all the cases are very ably reviewed1, "that, in commercial transactions, extrinsic evidence of custom and usage is admissible, to annex incidents to written contracts, on matters with respect to which they are silent. The same rule has been applied to contracts in other relations of life, in which known usages have been established and prevailed; and this has been done upon the principle of presumption, that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to those known usages. Whether such a relaxation of the strictness of the common law was wisely applied, where formal instruments have been entered into, and particularly leases under seal, may well be doubted; but the contrary has been established by such authority, and the relations between landlord and tenant have been so long regulated, upon the supposition that all customary obligations, not altered by the contract, are to remain in force, that it is too late to pursue a contrary course, and it would be productive of much inconvenience, if this practice were now to be disturbed. The common law, indeed, does so little to prescribe the duties of landlord and tenant, since it leaves the latter at liberty to pursue any course of management he pleases, provided he is not guilty of waste, that it is by no means surprising that the courts should have been favourably inclined to the introduction of those regulations in the mode of cultivation, which custom and usage have established in each district, to be the most beneficial to all parties." Accordingly, in Wigglesworth v. Dallison 1, the tenant was allowed a 'way-going 'Doug. 201. crop, though there was a lease under seal. "The lease," observed Lord Mansfield, "being under seal, does not vary the case. The custom does not alter or contradict the agreement in the lease; it only superadds a right, which is consequential to the taking, as a heriot may be due by custom, although not mentioned in the grant or lease." Senior v. Armytage, Holt, 197; 1 Mee. & Wels. 476. Holding v. Piggott, 7 Bing. 465. On the same principle, a custom for the tenant to provide labour, tillage, sowing, and all materials for the same, in his 'waygoing year, and for the landlord to make him a reasonable compensation, is valid in law, and may be insisted upon, although the farm be held under a written agreement, provided the custom be not thereby expressly or by implication excluded2. So, if the lease contain no stipulation as to the mode of quitting, the offgoing tenant is entitled to his 'way-going crop, according to the custom of the country, even though the terms of holding may be inconsistent with such a custom3. The tenant may, of course, by the terms of his taking, waive the benefit of the special custom of the country. As where the custom was, that the out-going tenant was entitled to an allowance for foldage from the in-coming tenant; and the lease specified certain payments to be made by the lessor or in-coming to the out-going tenant at the time of quitting the premises, among which there was not included any payment for foldage, it was held, that the terms of the lease excluded the custom, and that the out-going tenant was not entitled to any allowance in respect of foldage 4. Upon this case it has been observed Webb v. by Parke, B. 5, that "no doubt could exist in this case, but that the language of the lease was equivalent to a stipulation, that the lessor should pay for the things mentioned, and no more." where the tenant held under the terms of an expired lease, Plummer, 2 Barn. & Ald. 746. So, 5 by Hutton v. & Wels. 477. Warren, 1 Mee. so taking should, in purchasing the fixtures, consider the duration of his interest; for, otherwise, if the term be short, and he have paid the full value of the fixtures, he will be in considerable hazard of subjecting himself to a loss. In either case, he should stipulate that the landlord shall consent to a valuation of them at the end of the term. To prevent any dispute, and intercept any collateral claims of the landlord, he should always be made a party in transactions between the out-going and in-coming tenant. In general, however, it may be observed, that the rights of in-coming and out-going tenants as to fixtures, are very much regulated by custom: and the custom of valuing a particular article, as between out-going and in-coming tenants, is, as we have seen, considered by the court a good criterion for determining the nature of the property, and whether it be a fixture or not. 11 Mee. & Wel. 475. SECT. 8.-EFFECT OF LOCAL CUSTOMS AND USAGES AS TO 'WAY-GOING CROPS. The effect of local customs in modifying the relative rights of landlord and tenant, and those of out-going and in-coming tenants, being considerable, and such customs having, of late years, frequently come under the consideration of the courts, the leading cases will be here adverted to. "It has long been settled," observes Mr. Baron Parke in Hutton v. Warren, in the course of a judgment in which all the cases are very ably reviewed1, "that, in commercial transactions, extrinsic evidence of custom and usage is admissible, to annex incidents to written contracts, on matters with respect to which they are silent. The same rule has been applied to contracts in other relations of life, in which known usages have been established and prevailed; and this has been done upon the principle of presumption, that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to those known usages. Whether such a relaxation of the strictness of the common law was wisely applied, where formal instruments have been entered into, and particularly leases under seal, may well be doubted; but the contrary has been established by such authority, and the relations between landlord and tenant have been so long regulated, upon the supposition that all customary obligations, not altered by the |