21. Merritt v. Judd 14 Cal. 59; Allen v. Kennedy, 40 Ind. 142; Stokoe v. Upton, 40 Mich. 581, 29 Am. Rep. 560; Holmes v. Tremper, 20 Johns. (X. Y.) 29 11 Am. Dec. 238; Robinscn v Harrison, 235 Pa. 613, 85 Atl. 879.

22. Bush v. Havird, 12 Idaho 352, 86 Pac. 529; Carlin v. Ritter.

68 Md. 478, 13 Atl. 370, 6 Am. St. Rep. 467; 16 Atl. 301; Wall v. Hinds, 70 Mass. (4 Gray) 256, 64 Am. Dec. 64; Waverly Park Amusement Co. v. Michigan United Traction Co., 197 Mich. 101, 163 N. W. 919; Ombony v. Jones, 19 N. Y. 234.

23. Royce v. Latshaw, 15 Colo. App. 420, 62 Pac. 627; Conrad v. Saginaw Min. Co., 54 Mich. 249, 52 Am. Rep. 817, 20 N. W. 39; Western North Carolina R. Co. . Deal, 90 N. C. 110; Van Ness v.

Pacard, 2 Pet. (U. S.) 137, 7 L. Ed. 374.

24. Penton v. Robert, 2 East. 90; Lee v. Risdon, 7 Taunt. 191; Miller v. Baker, 1 Met. (Mass.) 27; Duffus v. Bangs, 122 N. Y. 123, 25 N. E. 980.

As to be part of the realty is a trade fixture if the purpose of the annexation was to aid in the conduct of a calling exercised for the purpose of pecuniary profit, provided this calling is not exclusively agricultural in its nature, and the fact that the article has also the qualities of a domestic or agricultural fixture is immaterial in this regard.25

The right to remove trade fixtures exists in favor of a tenant for life as well as of a tenant for years or at will.26 The exceptional rule in regard to trade fixtures has no application in the case of annexations by the owner of a fee simple estate in the land, and fixtures of this character ordinarily pass, as do other fixtures, to the heir, grantee or mortgagee of the land.26a

- (b) Domestic and ornamental fixtures. The tenant under a lease has, from a quite early day, been allowed to remove what are known as domestic and ornamental fixtures, these being articles annexed by the tenant of a dwelling in order to render it more comfortable and attractive as a dwelling.27 This exception in favor of the tenant is said to be based on

25. See Wall v. Hinds, 70 Mass. (4 Gray) 256, 64 Am. Dec. 64; Holmes v. Trempei, 20 Johns. (N. Y.) 29, 11 Am. Dec. 238; Van Ness v. Pacard, 27 U. S. (2 Pet.) 137, 7 L. Ed. 374.

26. Dudley v. Warde, Ambler, 113; Estate of Hinds, 5 Whart. (Pa.) 138, 34 Am. Dec. 542; Overman v. Sasser, 107 N. C. 432; Lawton v. Lawton, 3 Atk. 13; Elwes v. Maw, 3 East, 38; In re De Falbe [1901] 1 Ch. 523.

26a. Fisher v. Dixon, 12 Clark & F. 312; Walmsley v. Milne, 7 C. B. N. S. 115; Climie v. Wood,:L. R. 4 Exch. 328; Harkness v. Sears, 26 Ala. 403, 62 Am. Dec. 742; Wight v. Gray, 73 Me. 297; cannot be exorcised if the premises will be thereby substantially injured, to the disadvantage of the reversioner;41 nor, according to some authorities, if the article annexed cannot be removed without losing its Identity, or being reduced to merely a collection of crude materials.42 Furthermore, if the tenant has substituted a new fixture for one on the premises at the time of taking possession, and this latter has been injured or permanently removed, he cannot remove the substituted article, since the effect would be to 'leave the premises in worse condition than when he took the lease.43 v. Muhlbach, 69 Md. 395, 1 L. R. A. 507, 16 Atl. 117. But see Williston, Sales. Sec. 65.

Burnside v. Twitchell, 43 N. H. 390; Foote v. Gooch, 96 N. C. 265, 60 Am. Rep. 411; 13 Am. & Eng. Encyc. Law (2nd Ed.) 635, 663. G71.

27. Gil'son v. Hammersmith & City Ry Co., 2 Drew & S. 603 (ornamental chimney pieces); Grymes v. Boweren, 6 Bing. 437, (pump); Gaffield v. Hapgood, 17 Pick. (Mass.) 192 (fire frame); Wall v. Hinds, 4 Gray (Mass.) 256, 64 Am. Dec. 64 (cistern and sink); Roffey v. Henderson, 17 Q. B. 575 (stoves, ranges, etc.); Raymond v. Strickland, 124 Ga. 504, 3 L. R. A. (N. S.) 69, 52 S. E. 619, (chandelier); Leigh v. Taylor [1902] App. Cas. 157,

R. P.-59

"the public policy and convenience, which permit the tenant to make the most profitable and comfortable use of the premises demised, that can be obtained consistently with the rights of the owner of the freehold."28 It has also been said that the tenant's right to remove such fixtures is grounded on the fact that they were put there by the tenant merely for his temporary domestic use while he occupied the premises.29 The executor of a tenant for life has been regarded as having a like right of removal as to such fixtures.30 But there is no right of removal as regards fixtures annexed by a tenant in fee simple.30a

- (c) Agricultural fixtures. It was decided in

England, in a case frequently referred to,31 that the principle on which a tenant is allowed to remove fixtures annexed by him for purposes of trade cannot be extended so as to allow him to remove fixtures annexed for agricultural purposes. There are, however, in this country, quite a number of dicta adverse to this decision.32 There is, moreover, at least one case in which an article annexed for the purpose of putting the agricultural products of the soil in form or conaffirming In re DeFalbe [19011 1 Ch. 523 (tapestries).

28. Gaffield v. Hapgood, 34 Mass. (17 Pick.) 192, 28 Am. Dec. 290, per Putnam, J.

29. Gibson v. Hammersmith & City R. Co., 2 Drew. & S. 603, 609. See Seeger v. Pettit, 77 Pa. 440, 18 Am. Rep. 452.

30. Leigh v. Taylor [1902] App. Cas. 157, affirming In re De Falbe [1901] 1 Ch. 523.

30a. Amos & Ferard, Fixtures (3d Ed.) 329; Hallen v. Runder, 1 Cromp., M. & R. 266; lee v Gas-kell, 1 Q. B. Div. 700; South Baltimore Co. v. Muhlbach, 69 Md. 395; Norton v .Dashwood [1896]

2 Ch. 497; Balnway v. Cobb, 99 Mass. 457. Contra, as between executor and heir, Squier v. Mayer, Freem. Ch. 249, cited in Re De Falbe [1901] 1 Ch. 523, 535.

31. Elwes v. Maw, 3 East, 38.

32. Van Ness v. Packard. 27 U. S. (2 Pet.) 137, 7 L. Ed. 374; Harkness v. Sears, 26 Ala. 493, 62 Am. Dec. 742; Davis' Adm'r v. Eastham, 81 Ky. 116; Perkins v. Swank, 43 Miss. 349; Dubois v. Kelly, 10 Barb. (N. Y.) 496; Wing v. Gray, 36 Vt. 261. See Carver v. Gough, 153 Pa. 225, 25 Atl. 1124.