A pump erected by a tenant during his term, and very slightly affixed to the freehold, is removable as a tenant's fixture.

CASE for injury to the reversion. At the trial before Garrow, B., at the last Norfolk assizes, it appeared that the defendant, who occupied as tenant from year to year certain premises belonging to the plaintiff, had, at his own expense, erected on the premises a pump, which he took away when he quitted them.

The pump was attached to a stout perpendicular plank; this plank rested on the ground at one end, and at the other was fastened by an iron bolt or pin to an adjacent wall, from which it was distant about four inches. The pin, which had a head at one end and a screw at the other, passed entirely through the wall.

The tube of the pump passed through a brick flooring into a well beneath. *438] This well had originally been open, but the defendant had arched it over when he erected the pump; and, in withdrawing the tube, four or five of the floor bricks were displaced, but the iron pin which attached the perpendicular plank to the wall was left in the wall when the plank was removed. Under the direction of the learned Baron (who thought the pump parcel of the freehold, inasmuch as it could not have been the subject of larceny at common law), the jury found a verdict for the plaintiff, damages 4l., with leave for the defendant to move to enter a nonsuit.

Wilde, Serjt., having obtained a rule nisi accordingly,

Storks, Serjt., now showed cause. The general rule is, that what is fixed to the freehold cannot be removed by the tenant without incurring the consequences of waste. The exceptions to this rule have been carefully enumerated by Lord Ellenborough in Elwes v. Maw, 3 East, 50, and, as between landlord and tenant, seem resolvable into utensils set up in relation to trade, and matters of ornament, as marble chimney pieces, pier glasses, and the like; and the pump in question does not fall within either of those descriptions. A greenhouse, which has been deemed removable when erected by a nurseryman for the purpose of his trade (per Lord Kenyon in Penton v. Robart, 2 East, 88), yet in ordinary cases has been held irremovable. Buckland v. Butterfield, 2 B. & B. 54. As between landlord and tenant, the rule with regard to fixtures is less rigid than as between persons standing in any other relation; and custom *439] has introduced another exception. Articles of general utility *and domestic convenience, (a) affixed during the term, have always been holden to belong to the tenant, and are either taken away or valued as between him and the incoming tenant, upon the determination of the term. Such articles are,

coppers, ovens, grates, and the like. No doubt a pump might be so imbedded in the freehold as to render its removal improper; but if it be so slightly fixed as the pump in question, and can be moved entire, it falls within the exception of articles, for domestic convenience. If this were a landlord's fixture, the tenant might be precluded from removing even a barometer attached to a wall by a nail.

Suppose the well had been deep, and it had been found convenient to draw the water by means of a steam-engine, would the landlord have been entitled to retain the engine?

TINDAL, C. J. It is difficult to draw any very general and at the same time precise and accurate rule on this subject; for we must be guided in a great decree by the circumstances of each case, the nature of the article, and the mode in which it is fixed. The pump, as it is described to have been fixed in this case, appears to me to fall within the class of removable fixtures. The rule has always been more relaxed as between landlord and tenant, than as between per

(a) See Amos on Fixtures, where all the cases are collected. VOL. XIX.-26

sons standing in other relations. It has been holden that stoves are removable during the term; grates, ornamental chimney pieces, wainscots fastened with screws, coppers, and various other articles: and the circumstance that, upon a change of occupiers, articles of this sort are usually allowed by landlords to be paid for by the incoming to the outgoing tenant, is confirmatory of this view of the question.

*Looking at the facts of this case; considering that the article in dis- [*440 pute was one of domestic convenience; that it was slightly fixed; was erected by the tenant; could be moved entire; and that the question is between the tenant and his landlord; I think the rule should be made absolute.

PARK, J. The rules with regard to property of this description vary according to the relation in which parties stand towards each other. The rule as between heir and executor is more strict than as between landlord and tenant, and even as between landlord and tenant it has been relaxed in modern times; for in Lawton v. Lawton, 3 Atk. 13, Lord Hardwicke held, that wainscot might be removed by the tenant, although it would have been waste to have removed it in the time of Hen. 7.

Perhaps we ought not to look with too much nicety as to the mode in which articles are fixed, when it has been holden that the tenant may remove ovens, coppers, and the like. The present case, however, is clearly distinguishable from Buckland v. Butterfield, where a conservatory was deeply fixed in the soil, and formed part of the house to which it was attached; and, however I may regret it, seeing that the value in dispute is so small, I am compelled to say that the verdict which has been given is wrong.

GASELEE, J., concurred.

BOSANQUET, J. I am of opinion, that this pump was removable by the tenant. Whether property of this kind be removable or not, depends in some degree on the relation between the parties: and in the relation of landlord and tenant the rule is less strict than in others: *it is more so as between heir and executor, and as between executor and remainder-man. My appre[*441 hension has been lest we should be thought to lay down any principle which would apply to cases different from the present. But considering that this is a case between landlord and tenant; that the pump was erected by the tenant; that it is an article of domestic use; and can be removed entire; I think the verdict ought to be set aside. Rule absolute.

ADCOCK v. FELTON. Feb. 12.

Return, " 'next after fifteen days of St. Hilary," irregular.

AN attachment of privilege had issued in this cause on the 29th of January, returnable on Wednesday next after fifteen days of St. Hilary.

Storks, Serjt., obtained a rule nisi to set it aside for various irregularities: and, among others, because there was no such return day as Wednesday next after fifteen days of St. Hilary.

"In fifteen days of St. Hilary," would have been Wednesday the 27th of January. The Wednesday next after, was the 3d of February, legally styled the Morrow of the Purification. As to which,

Jones, Serjt., who showed cause, answered, that an attachment of privilege must be made returnable on a day certain, and not on a general return day co nomine; but that the general return day might be taken for the day certain as well as any other, provided its style, as a general return day, were not adopted. The plaintiff, therefore, would have been irregular if he had made his writ returnable on the Morrow of the Purification eo nomine, because [*442 that was the style of the day in its quality of a general return day; but he was

regular, and showed that he meant to employ it as a day certain, by styling it the Wednesday after fifteen days of St. Hilary.

TINDAL, C. J. The return is irregular. It has always been the practice to reckon from one return day to the next ensuing, and then to commence a fresh computation. Parties ought to pursue the old course, and not introduce new terms, which may tend to perplex. Rule absolute.

RUSSELL v. DICKSON. Feb. 12.

The Court will not take judicial notice of the sheriff's book.

JONES, Serjt., on the part of one of the bail, moved to set aside a cognovit, and ca. sa. in this cause, for irregularity, on an affidavit that the damages laid in the declaration were 3007.; and that the cognovit was given for 500l., conditioned for payment of 2507. 17s., and 287. 18s., and, that by the writ of ca. sa. as appeared by an entry in the book kept at the office of the sheriff, the sheriff was commanded to take the defendant to satisfy 4047. 11s. damages recovered by the plaintiff.

It appeared that the cognovit had been sanctioned by the bail themselves, who had signed a consent that it should not exonerate them from their liability; and the only question was, Whether the sheriff's book was sufficient evidence of the irregularity in the amount of the ca. sa.

*

*443] Wilde, Serjt., who showed cause, contended, that the sheriff's book was not a public document, but a mere memorandum, and no evidence when the writ itself might have been inspected.

Jones urged, that upon motions supported by affidavit the same strictness was not observed with regard to evidence as in trials at Nisi Prius, and the party might not be able to obtain the writ.

TINDAL, C. J. The question is, Whether we are to take judicial notice of the sheriff's book. That may show one thing, and the writ another. The party might have gone to the office, and have ascertained whether the writ was returned. Rule discharged.

GREEN v. POLE. Feb. 12.

Plaintiff, who had taken a verdict subject to an award under an order of nisi prius, after the case had been heard, and just before the award was about to be made, revoked the arbitra tor's authority, with circumstances savouring of mala fides, and gave fresh notice of trial. The order of nisi prius not having been made a rule of court, the Court refused to stay proceedings.

By an order of Nisi Prius, and with the consent of all parties, a verdict was taken in this cause for 10007. damages, subject to the award of a barrister. Before the arbitrator made his award, the plaintiff revoked his authority by deed, and gave notice for trial at the sittings in this term.

At the time of the revocation, the order of Nisi Prius had not been made a rule of Court.

Taddy, Serjt., therefore, on the part of the defendant, obtained a rule nisi to *444] stay the proceedings till the *Court should further order, upon an affidavit, which stated, that after all the evidence had been gone through on both sides, at great length, before the arbitrator, the 8th of December last was fixed for the counsel to sum up the case, and that the plaintiff revoked the arbitrator's authority, without any application to postpone that meeting for the purpose of obtaining witnesses in reply to the defendant's case.

In answer to this the plaintiff's attorney deposed, that at the last meeting previous to the 8th of December, the plaintiff's counsel stated, that evidence would be adduced to contradict the defendant's case; that application was afterwards made to six individuals, who were able to give material evidence for the plaintiff, and to contradict and discredit certain of the defendant's witnesses; and that in consequence of their refusal to attend the arbitrator, the plaintiff revoked his authority.

Wilde and Andrews, Serjts., who showed cause, contended, that the revocation of the arbitrator's authority was no ground for staying the proceedings, particularly as the order of Nisi Prius was not made a rule of Court; Clapham v. Higham, 1 Bingh. 87.

Taddy urged the mala fides of the plaintiff. It appeared, on his own showing, that his witnesses had refused to attend the arbitrator, which could only have arisen from their inability to establish his case.

All who submit to arbitra

TINDAL, C. J. We have every inclination, if we had the power, to make this rule absolute; but we have no power to do so. tion have the right to revoke the arbitrator's authority before the *award [*445 is made. The only way of deterring them, is, by making the order of Nisi Prius a rule of Court, when the fear of an attachment may induce them to submit. Rule discharged.

BOOTH and Another v. MIDDLECOAT and Others. Feb. 12.

One of several defendants in an action of debt having pleaded bankruptcy, plaintiff entered a nolle prosequi as to him:

Held, that such defendant was not entitled to his costs under 8 Eliz. c. 2, although before plea the plaintiff was apprised of the bankruptcy.

DEBT on a bail-bond.

As soon as an appearance had been entered, and before plea pleaded, the attorney of the defendant Middlecoat told the plaintiff's attorney that Middlecoat was a bankrupt and had obtained his certificate. The plaintiff's attorney took no step to discharge Middlecoat, who thereupon pleaded his bankruptcy and certificate, and ruled the plaintiffs to reply; whereupon a replication was filed as to the other defendants, and a nolle prosequi entered as to Middlecoat. Russell, Serjt., obtained a rule nisi for the plaintiffs to pay Middlecoat his costs of this action under the statute 8 Eliz. c. 2, s. 2, which gives a defendant his costs in case a plaintiff after declaration suffer a suit to be discontinued, or otherwise be nonsuited in the action.

In the case of Cooper v. Tiffin, 3 T. R. 511, in which the plaintiff, after declaration, discovering that the defendant was an infant, entered a nolle prosequi, the Court on argument said, "That the case of nolle prosequi could not be distinguished in reason from that of a discontinuance, for that in this, as well as in that, the party might afterwards commence another action for the same cause; and that the practice had been to give costs in such cases." And [*446 though in Harewood v. Matthews, 2 Tidd. 981, 9th edit., the Court refused the defendant his costs on a nolle prosequi, the plaintiff there had no notice, as in the present case, of the defendants' non-liability before plea pleaded. In Jackson v. Chambers, 8 Taunt. 643, the defendant was allowed her costs under the statute, 8 Eliz. c. 2, s. 2, although, upon the argument, Vaughan, Serjt., cited the case of Harewood v. Matthews.

Wilde, Serjt., showed cause. A defendant who is discharged neither by discontinuance nor nonsuit, may sometimes be within the equity of the statute; as, if he were never liable to the action; which was the case of the infant in Cooper v. Tiffin; but if he be prima facie liable, and his plea is a defence arising since he incurred the obligation on which he is sued, he is not entitled to his costs upon a nolle prosequi, at least in actions on contract; and Harewood

v. Matthews is in point. Cases in tort are essentially different, because there one joint wrong-doer cannot levy contribution of the others; and this explains the decision in Jackson v. Chambers, which Dallas, C. J., distinguished also on another ground from Harewood v. Matthews.

Russell. In the present case, the plaintiff having had notice before plea pleaded that the defendant was not liable, and yet having unnecessarily compelled him to incur the expense of pleading, the case is the same as if the defendant had never been originally liable.

TINDAL, C. J. I think this case is not within the principle of the 8 Eliz. c. 2, s. 2, which gives a defendant his costs, in case a plaintiff after declaration suffer a suit to be discontinued, or be otherwise nonsuit in the *action. *447] It has been said, that in some cases a nolle prosequi is within the equity of this statute: that is, where what has been done amounts to a discontinuance or a general nonsuit. We do not impeach the decision of Jackson v. Chambers, where there were several defendants in trespass, and the one in whose favour a nolle prosequi was entered, would have no means of obtaining costs against the others: but we accede to the practice as laid down in Harewood v. Matthews, and neither on the particular circumstances of the case, nor under the equity of the statute do we think the defendant entitled to his costs. PARK, J. It is impossible to distinguish Harewood v. Matthews, which has decided the present case. Rule discharged.

DOE dem. HOLT and Others v. ROE. Feb. 12.

1. D. having given a cognovit for 3571., mortgaged certain premises as a security for the payment of that sum, and the costs of the judgment, and all other costs and charges whatsoever attending the same.

The mortgagee having levied execution, her right to the goods seized was disputed in an action at the suit of certain persons, who claimed to be assignees of D. under a bankruptcy. The mortgagee failed upon a first trial, but succeeded in a second, D. proving not to be bankrupt:

Held, that the mortgagee could not claim from D. the costs of this action, as costs or charges attending the judgment confessed by D.

2. D. having stated at the execution that certain goods levied were not his property, and the sheriff having, by inquisition, ascertained that they were, the mortgagee was holden entitled to claim of D. the costs of the inquisition, if she had paid them to the sheriff.

ONE Dally being indebted to Rebecca Holt, the lessor of the plaintiff, gave her a cognovit for 3577. 188., with a stay of execution till November 1825.

*448] *Upon an application for further time to pay, he, by indenture, demised to her the premises sought to be recovered in this ejectment, for ninety-nine years, with a proviso for making void the indenture upon payment of the before-mentioned debt and interest by instalments, without any deduction or abatement whatsoever; the first instalment to be paid in August 1826. The indenture also contained a covenant by Dally, that, after default made in such payment, it should be lawful for the said Rebecca Holt and Robert Rees to enter into the said premises and quietly possess and enjoy the same; and for further assurance by Dally, it was further declared that it should be lawful for the said Rebecca Holt and Robert Rees to enter up judgment on the said cognovit signed by Dally, and that such judgment, when so entered up, should stand and be as a security for payment of the said sum of 3577. .18s. with interest, and costs; and that in case default should be made in payment of the said sum of 3571. 188., or the interest as aforesaid, or any part thereof as therein mentioned, it should be lawful for the said Rebecca Holt and Robert Rees to issue execution on the said judgment, and thereunder from time to time to levy, until the whole of the said sum of 3577. 18s. and interest should be fully paid and satisfied, together with the costs of such judgment, and all other costs and charges whatsoever attending the same.

In October 1826 (the first instalment due in August not having been paid)

S