On appeal to general term, the order of special term was reversed, and it was held, that the Iowa court had no jurisdiction of the subject-matter of the action, inasmuch as the acts constituting the cause of action were committed before either party was domiciled in that State, and were no cause of divorce in the State where they were committed; the doctrine being, that every State has the right to dissolve the marriage relations of all its domiciled inhabitants for causes occuring while such domicil continues. And, it was further held, that the Iowa court did not, by the service of process on the defendant at Columbus in this State, obtain such jurisdiction of the person of the defendant that the judgment can be regarded in this State as a valid and operative judgment; and, it was further held, that the plaintiff was not estopped from denying the validity of the Iowa judgment thus obtained by him, for the reason that if the marriage had not been, in fact, dissolved, the court cannot allow either party to deny its existence, and cannot give effect to any act of either party, which would, in effect, dissolve it. Holmes v. Holmes. Opinion by Parker, J. Miller, J., concurs. Hogeboom, J., dissents.

DOWER IN SURPLUS MONEY UPON MORTGAGE FORECLOSURE.

The plaintiff's husband executed three several mortgages upon real estate purchased by him to secure purchase-money. These mortgages all came into the hands of defendant D., who forclosed them, and the premises were sold. Considerable surplus money remained after the satisfaction of the mortgages. At the time of the foreclosure and sale judgments existed against the husband to a much greater amount than the aggregate surplus, and the holders of these judgments claimed the surplus. After the giving of the mortgages, and prior to the foreclosure thereof, the plaintiff united with her husband in a conveyance of all the mortgaged premises to V., and, subsequently to the foreclosure, and before the commencement of this suit, the husband died.

The plaintiff now brings this suit to recover her dower in the surplus. Held, that, by her uniting in the conveyance of the premises to V., her right of dower therein was extinguished, so that she cannot claim dower, as against defendants, judgment creditors of her husband. The cases of Malony v. Horan, 36 How. 260, and Meyer v. Mohr, 1 Rob. 333, cited and approved. Elmendorf v. Duflon et al. Opinion by Parker, J.

In an action brought by a judgment creditor of defendant Hugh McGuire to set aside an assignment of a bond and mortgage belonging to said defendant, and by him assigned to defendant Armstrong, and by Armstrong assigned to the wife of McGuire, also a defendant, it is based upon the ground that the assignment was without consideration, and was fraudulent and void as to plaintiff. Held, that the objection that the action should have been brought by a receiver is not valid, for the right of a judgment creditor to maintain an action of this character has been repeatedly held, and is still in force, and may be resorted to after execution returned unsatisfied in whole or in part. Also held, that the court did not err in holding that the bond and mortgage was a gift from the judgment debtor to his wife after he had become insolvent, and

while he had debts unpaid, and that the evidence presented a question of fact as to the intent from which only one inference could be drawn by the court. Also held, that the court properly refused to nonsuit the defendant Armstrong, he took the assignment and so made himself a party to its fraudulent transfer. It was quite as essential to set it aside as to him, as to annul the assignment made by him to the wife of the judgment debtor. Also held, that the court erred upon the trial in admitting evidence of Hugh McGuire's testimony, taken upon his examination in proceedings supplementary to execution upon plaintiff's judgment. It was objected to as inadmissible against Armstrong and Bridget McGuire, and it was admitted generally without any restriction as to its effect. It was competent evidence against the husband only. Judgment must be reversed and a new trial granted, with costs to abide the event. Bennett v. McGuire et al. Opinion by Miller, P. J.

HUSBAND AND WIFE.

M., with his family, occupied a house and lot belonging to his wife, and of which she had the legal title. Subsequently his wife left him and lived apart from him, he still continuing to occupy the premises. She then commenced this action to recover the possession thereof, and damages for withholding the same. Held, that when a married woman has the legal title to real property which her husband occupies exclusively of herself, refusing to permit her to participate in such occupancy, the proper action for its recovery is, since the passage of the laws of 1860 and 1862 concerning the rights and liabilities of husband and wife, not a suit in equity, but an action at law. Held, also, that in such an action the wife was, under chapter 887 of the laws of 1867, a competent witness on her own behalf. Minier v. Minier. Opinion by Parker, J.

INDICTMENT FOR PERJURY.

In the case of an indictment for perjury at an election held at Schenectady in 1870.

1. Objected to as not stating the number of inspectors of the election to be held.

2. And that the indictment does not state that the inspectors were acting for the second ward.

3. And that the indictment does not show manner and form in which the oath was administered.

4. And that the oath required by statute was administered to the defendant, or that he falsely swore to any part thereof.

5. That the indictment does not show that the place mentioned in the indictment was the legally appointed and duly constituted place for holding elections in said ward.

6. That he had voted previously at the fourth ward, at the house of Thomas L. Wasson, in said ward, without stating that he voted before a board of officers duly constituted and authorized according to law, or that any lawful election had been appointed or was held at the place named. Held, that, as to the first objection, the general allegation of jurisdiction to administer the oath is sufficient, without stating in detail the names or number of the inspectors who constitute the board. Held, as to the second objection, that it comes within the same principle and must fall with the first one. Held, as to the third objection, that it is not necessary to specify the particular mode in which the prisoner was sworn, or the particular oath he took; a general averment that he was duly sworn is enough. Held, as to the fourth objection, it is not necessary to set out

the whole oath, and that such parts as are alleged to be false and are material in a given case are all that is requisite. Held, as to the fifth objection, the remarks made as to objections first and second are applicable. Held, as to the sixth objection, assignments of perjury must be made by special averment negativing the oath. A general allegation that defendant swore false is not enough. The assignment of the perjury is too general and uncertain, and is not explicit enough to support itself or show that the defendant committed the crime. The indictment does not contain the substance of the offense with the circumstances necessary to render it intelligible and inform the defendant of the allegations against him. The conviction must be reversed. Barnard Burns v. The People. Opinion by Miller, P. J.

INSURANCE.

In an action on an insurance policy, held, that the plaintiff was properly nonsuited, for the reason that the warranty in the policy, as to keeping a watchman in the premises insured, had not been fulfilled.

That, although an execution had been issued, and the sheriff was in possession of the premises, yet the insured was not relieved from observing the terms of the policy, and there could have been no difficulty in continuing the watchman as had been done previously. The insured still held title to the property subject to the execution, and there was no act of the law which, of itself, necessarily and absolutely prevented a fulfillment of the warranty within any principle of law. National Bank of Ballston Spa v. President and Directors of Insurance Co. of North America. Opinion by Miller, P. J.

MECHANICS' LIEN.

In an action involving the construction of chapter 558, section 1, of Laws of 1869, p. 1335, amending the act in regard to mechanics' liens for labor, etc., in erecting buildings, which provides that the lien shall be created by filing notice of the claim in the county clerk's office, instead of as by the law of 1854, in the town clerk's office. The act of 1869 was passed May 4. On the 15th of May, 1869, a notice was filed in the town clerk's office, where the building was situated, in accordance with the provisions of the act of 1854.

The question to be determined is, whether the amendment applies to those who perform labor or furnish materials prior to May 4, when the law went into operation, or to those only who should hereafter perform labor or furnish materials. Held, that the law of 1854 remained in force except that portion which proIvided that the notice should be filed with the town clerk, and this was changed by act of 1869, at the time of its going into effect, and after that time it became the law.

Also the word "hereafter" in the amended act, relates back and must be considered as including a claim for labor performed or materials furnished after the act of 1854 took effect, and the place of filing the notice after the amendment of 1869 must be in the county clerk's office.

Notice of all claims prior to this amendment of 1869, as well as those after, stand upon the same footing, and the law is only changed as to the place of filing the notice.

New trial granted, with costs to abide the event. Moore v. Mausert et al. Opinion by Miller, P. J.

RIGHT OF WAY.

Breach of covenant for.-This is an action brought to recover damages by reason of a breach of the cov

enant of warranty in a deed from defendant to plaintiff.

The breach complained of was a private right of way previously conveyed by defendant to one Allen. The covenant was against every person claiming, or to claim, the premises or any part thereof. Held, that the fair import of the covenant is, that it extends to possession as well as title, and whenever there is any disturbance of either by force of a title paramount, the covenant is broken. It would include all outstanding adverse claims to the premises, or any part thereof, which affect the full enjoyment of the possession or the title to the same. The use of the right of way amounts to an eviction practically or a disturbance of the possession by force of a paramount title, and is sufficient to maintain the action. It is enough that there has been a disturbance of the fee, this in law is an eviction and constitutes a breach of the covenant. Also, held, that if the enjoyment of the right of way adverse to plaintiff's deed, and was a disturbance of plaintiff's possession, then he was entitled to recover, and the court erred in granting the motion for a nonsuit.

The judgment for defendant must be reversed, and a new trial granted, with costs to abide the event. Rea v. Winkler. Opinion by Miller, P. J.

STATUTE OF FRAUDS.

In the case of the contract for the sale of ten cows at $50 apiece, and two at $75 apiece. Defendant first agreed to sell the ten cows, and after this the purchaser asked the price of the other two, and the price was given in case the purchaser wanted them when he came for the others; after this $20 was paid on the contract to defendant, and it was agreed that the two cows should be counted in. Held, that there is no good reason why a contract for the purchase of property, at the option of the purchaser, when money is paid upon it, is not valid and binding upon the parties. There is no want of mutuality nor a want of consideration.

Judgment of county court for plaintiff affirmed, with costs. Brown v. Hall. Opinion by Miller, P. J.

USURY.

Action upon a promissory note for $210, and payable to S., or bearer, one year from date, with interest. The note was made by the defendant for the accommodation of S., the payee, without consideration between them, to enable S. to raise $200 thereon. S. applied to J. L. K., who had money to loan as agent of his father, J. K., and obtained for the note for $210 a loan of $200. The referee found that the ten dollars was wholly for the benefit of the agent.

Held, that the case differs from that of Condit v. Baldwin, 21 N. Y. 219, where the agent exacted a bonus to himself, and only the amount loaned with interest was secured to the bearer, which was not deemed usurious; as here, the excess of legal interest was added to the note, and necessarily accrued to the lender whose note it was, and that this was an illegal transaction, and that the note, though in the hands of a bona fide holder, was usurious and void. Juliand v. Grant. Opinion by Parker, J.

WILL-CONSTRUCTION OF.

In a case where the will provides for the accumulation of interest on an investment made for the benefit of minors by virtue of which the executrix received accumulations of interest for a number of years on account of the fund referred to. Held, that the provision was

void by the revised statutes, which provides that accumulations of such a character must terminate at the expiration of the minority of the minors for whose benefit the trust was created (1 R. S. 726, § 37; 773, § 1), and the executrix was liable to account for the same. Held, also, that the claim of the legatees is based upon the ground that they are presumptively entitled to the next eventual estate. 1 R. S. 726, § 40. That the devise to them was a valid one upon the death of the executrix and trustee, and the accumulations were only void because in contravention of the statute, they were, therefore, entitled to the whole estate. Further, held, the surrogate had ample power to compel the executrix to account under the revised statutes; provided, the accumulation of interest was received by her as such executrix, and the fact that the legatees rest their claim upon the ground that they are presumptively entitled to the next eventual estate does not deprive that officer of jurisdiction. Further, held, that the statute of limitations has an application to a case of this kind. Robinson, ex'r, v. Robinson et al. Opinion by Miller, P. J.

RESCISSION OF CONTRACT.

COBB v. HATFIELD et al.

Decided in Court of Appeals, November 24, 1871. Action to recover money paid for an interest in an oil property, brought as upon a rescission of the contract and sale for fraud. At the close of plaintiff's evidence he tendered to the defendants and offered to cancel the assignment and transfer. The defendants offered evidence to show that the plaintiff applied at the office of the oil company for the certificate of stock, which he was entitled to under the contract of purchase, that it was delivered to him and that he had accepted it and kept it and had never returned it or canceled it, or offered so to do. This evidence was rejected. Held, error. If plaintiff accepted and retained such stock after knowledge of alleged fraud, it amounted to a ratification of the contract; but if such stock was received before he had knowledge of the fraud, then he was bound, upon a rescission, to restore it to defendants; in either event, the evidence was material and should have been received. This action was for the recovery of one thousand dollars and interest paid by the plaintiff to the defendants upon the purchase of an interest in an oil property in Pennsylvania, upon the ground that the purchase had been induced by the false and fraudulent representations of the defendants as to the character, yield and value of the property.

The plaintiff claimed to recover as upon a rescission of the contract and sale. Upon the trial, the question of fraud was submitted to the jury, the court ruling and deciding that the plaintiff had done sufficient to rescind the contract, and that if the fraud had been proved and the purchase had been made of, and payment made to, the defendants, the plaintiff was entitled to recover. The jury found for the plaintiff upon the controverted questions of fact, and rendered a verdict for the amount claimed. Upon an appeal to the general term of the supreme court, from the judgment upon the verdict, the judgment was reversed for error in law, and a new trial granted. From the order granting a new trial, the plaintiff has appealed to this court, stipulating that if the order be affirmed, judgment absolute shall be rendered for the defendants. John H. Reynolds, for appellant.

W. C. Ruger, for respondents.

ALLEN, J. Under the complaint, the plaintiff might have treated the action as in case for the recovery of damages for the alleged fraud, and in such action no return of property received from the defendants, or other act restoring the defendants to the condition they occupied before making the contract, would have been necessary as a condition precedent to maintaining the action. But, upon the trial, the plaintiff expressly repudiated the contract, and claimed to recover the money advanced and paid, as upon a rescission of the contract, and, at the close of the evidence on his part, tendered to the defendants and offered to cancel the assignment and transfer, and claimed to recover in the action the consideration paid, and interest, "solely upon the ground of a rescission of the contract," for the alleged fraudulent representations of the defendants. The recovery was had for the money paid and interest thereon, the judge charging the jury that what had been done was sufficient to entitle the plaintiff to maintain the action; that it was a sufficient rescission of the contract. It is somewhat questionable whether the point upon which the supreme court reversed the judgment and granted a new trial was properly taken. No question was made at the trial, as to the necessity of an immediate rescission of the contract upon a discovery of the fraud, and the judge at circuit did not rule, and was not called upon to rule, in respect to the time at which the plaintiff should have rescinded the contract, and restored or tendered to the defendants what he had received. His attention was not called to that question, and, non constat, that had the question been directly raised, the plaintiff might not have shown an earlier revocation than was shown at the trial. The judge only passed upon the character and quality of the acts relied upon as a rescission, and not as to their timely and seasonable performance.

But passing this, a fatal error was committed on the trial, in the exclusion of evidence offered by the defendants. The assignment and transfer to the plaintiff was of an undivided share or interest in certain property, and entitled him to a proportionate number of shares of the capital stock in the Collins Oil Company, an incorporated association, when the corporation should be fully organized and prepared to issue stock certificates.

The capital stock of the corporation represented the interests of the proprietors of the property, of whom the plaintiff became one by his purchase of the defendants, and when he should receive his stock certificate, that, rather than the assignment and transfer from the defendants, would represent and evidence his ownership of the property and interests purchased. The corporation was organized and stock certificates were issued to the owners in October, 1865. The defendants offered to show that the plaintiff applied at the office of the company for his stock, and that it was delivered to him in fulfillment of the contract of purchase from the defendants, and that he had accepted it and kept it, and had never returned it or canceled it, or offered so to do. The evidence was excluded upon objection by the plaintiff.

It was said by both counsel, and such would seem to be the fact from the evidence, that the plaintiff received bis stock certificate after the commencement of this action. If so, it was necessarily after he had knowledge of the fraud of which he complains, and the act was a ratification and affirmance of the contract. He could not, with knowledge of the fraud which had been practiced upon him, take any benefit

under the contract or change the condition of the property, the subject-matter of the contract, and then repudiate the contract. The taking of a benefit is an election to ratify it, and concludes him. He cannot be allowed to deal with the subject-matter of the contract and afterward disaffirm it. The election is with the party defrauded, to affirm or disaffirm the contract, but he cannot do both. Massor v. Bovet, 1 Den. 69.

By accepting the stock certificate, he elected to abide by the purchase. But if the certificate of stock was received before the commencement of the action and before the plaintiff had knowledge of the fraud, he was bound upon a rescission of the contract to restore to the defendants all that he had received from them and all that he had acquired under it-to place the defendants in statu quo, as near as practicable. The law not only requires a disaffirmance of the contract at the earliest practicable moment after discovery of the cheat, but a return of all that has been received under it, and a restoration of the other party to the condition in which he stood before the contract was made.

To retain any part of that which has been received upon the contract is incompatible with its rescission. Massor v. Bovet, supra; Voorhies v. Earl, 2 Hill, 288. Hogan v. Weyer, 5 id. 389.

The contract, although fraudulent, was not ipso facto void, but only void at the election of the plaintiff, and a return of what he had received under it.

Where a party had parted with goods for the note of a third person, upon the fraudulent representations of the purchaser as to the solvency of the maker, and had recovered a judgment upon the note, the court held, that he could not rescind the sale without tendering an assignment of the judgment. Baker v. Robbins, 2 Den. 136.

The evidence offered was material upon the question of affirmance of the contract as well as in respect to the acts necessary on the part of the plaintiff to a rescission of it, and upon the right of the plaintiff to recover the money paid, and should have been admitted. If the fact had been proved as offered, that the plaintiff had received and kept his certificates of stock, a transfer, or delivery of these certificates, or a tender to the defendants was necessary to a complete rescission of the contract, and the evidence offered was competent and material.

It follows that the order granting a new trial must be affirmed, and judgment absolute given for the defendants.

This is a fit case to allude to the hazardous practice which is becoming so general, of risking an appeal to this court, from an order granting a new trial, with a stipulation, made necessary by statute, that in case the order is affirmed judgment absolute shall be given against the party appealing. There is but a single class of cases, and the individual cases coming within it are rare in which this course can prudently be adopted.

It is only proper and admissible when the sole question that can be presented upon the record relates to, and will determine the merits of the controversy unembarassed by incidental questions affecting the trial but not necessarily decisive of the true merits of the litigation. If every fact that can affect the result has been upon the trial adjudged favorably to the party against whom the new trial has been granted, and no exceptions have been taken to the admission or rejection of evidence, or to the rulings upon minor or incidental questions in the progress of the trial, which, if well taken, will entitle the exceptant to a new

trial;

in other words, if the objections and exceptions taken at the trial, and to the recovery, cannot be obviated upon a second trial, but the verdict and judgment must necessarily be adverse to the party against whom the new trial has been granted, if the order and decision stand, an appeal from the order, with the stipulation for judgment absolute in case the order is sustained, may be advisable. But ordinarily, as in this case, there are exceptions, which, if well taken, will entitle the unsuccessful party to a new trial, but the decision of which will not finally or necessarily determine the merits of the action or the rights of the parties, and in such cases the exceptions must be clearly frivolous to justify the hazard of an appeal from the order granting a new trial, with the consent to a judgment absolute upon an affirmance of the order. The decision of the questions presented by the record in this case was not necessarily fatal to the plaintiff, but they are made so by the appeal from the order, and the giving of the ordinary statutory stipulation, and the plaintiff loses the benefit of a second trial. The order must be affirmed and judgment absolute for the defendants.

Having thus examined, under the foregoing heads, what is the nature of the annexation necessary to ground the character of a fixture, and what are the circumstances which may take away that character from a thing in itself sufficiently annexed, it remains to consider in favor of what persons a right of removing fixtures exists, what is the nature of that right, how far it extends, and what are its effects with respect to third persons.

The most important relation in which this special right of removal appears is that of landlord and tenant. "Things may be annexed to land for the purposes of trade or of domestic convenience or ornament in so permanent a manner as really to form a part of the land; and yet the tenant who has erected them is entitled to remove them during his term, or it may be within a reasonable time after its expiration." Willes, J., in Climie v. Wood, L. R. 3 Ex. 329.

The rule may come into operation either during the tenancy or at its expiration, in an action in the nature of waste, brought against the tenant by the reversioner in respect of the removal of things which the tenant claims to be within the privilege, or in an action by the tenant against the landlord for hindering their removal; and it will be understood that it may equally arise between the assignees, whether special or general, of the original parties. Except, however, in the cases of bankruptcy and a seizure by the sheriff under a fi. fa. against the tenant, it most frequently arises after the tenancy. During the tenancy it seems that it may also arise under the question, whether certain things are or are not subjects of distress. This privilege has also been mixed up with the question of what are fixtures within the classes above referred to; but, as has already appeared, recent cases have effectually disentangled this confusion, and shown that a decision in favor of the removability of a thing by a tenant is no evidence that it is not a fixture, although a decision against its removability shows conclusively that it is.

As determined, then, by these cases, what is the nature and extent of the tenant's privilege? In Poole's

Case, 1 Salk. 368, where the sheriff had taken, in execution against the tenant, a soap boiler, vats, coppers, tables, partitions, and the paving of a courtyard, it was held, that "during the term the soap boiler might well remove the vats he set up in relation to trade, and that he might do it by common law (and not by virtue of any custom), in favor of trade and to encourage industry. But after the term they become a gift in law to him in reversion, and are not removable;" and further, "that the sheriff might take them in execution as well as the under lessee remove them, and this was not like tenant for years without impeachment of waste; in that case he (Lord Holt) allowed the sheriff could not cut down and sell, though the tenant might; and the reason is, because in that case the tenant hath only a bare power without an interest, but here the under lessee hath an interest as well as a power, as tenant for years hath in growing corn, in which case the sheriff can cut down and sell." In Hallen v. Runder, 1 C. M. & R. 266, where the tenant sued the landlord for the price of fixtures bargained and sold by him to the landlord on the expiration of his tenancy, Parke, B., said (p. 272): "The general rule is, that goods, by being affixed to the freehold, become parcel of it, subject to the right of the tenant, if he affixed them or purchased them, to remove them during the term, or to part with them to any incoming tenant.'

From these cases it appears that the right of the tenant is not, as has sometimes been erroneously inferred from the latter case, merely a right to remove, but also an interest; and that the fixtures subject to this right do not become the landlord's during the continuance of the period for exercising that right, but remain the tenant's till its expiration; otherwise the plaintiff in Hallen v. Runder could not have recovered for the price of fixtures bargained and sold, but only under the count for a price agreed to be paid for abandoning them. By virtue of this interest the tenant may separate them during the term, "and thus" (as was said in Hallen v. Runder, at page 275, following the words of Gibbs, C. J., in Lee v. Risdon), "reconvert them into goods and chattels."

Further, although by annexation they have lost their quality of goods and chattels (Lee v. Risdon), yet the right to them is not an interest in land, and is not, therefore, within the 4th section of the statute of frauds, but will pass by parol contract of sale, and an agreement for their sale will be binding though unwritten. The latter point was decided in Hallen v. Runder; the former at nisi prius in a decision which, as applied to the case in hand, is of doubtful authority. In that case (Petrie v. Dawson, 2 C. & K. 138) a verbal agreement for the sale by the reversioner of a fixture then in the possession of a tenant, who had not put it up, but to whom it had been demised, was sustained on the ground that it was a trade fixture. Now, however true it might be that a landlord could, without writing, sell his interest in a removable fixture erected by the tenant- that is, the interest he would acquire in the event of the tenant not removing it-it would not follow that he could so deal with a thing actually affixed, and included in the demise, and which would be part of the demised hereditaments, though mere chattels so demised would not. Robinson v. Leroyd, 7 M. & W. 48. And since the interest of the landlord in a fixture put up by the tenant when he had actually acquired it, would be his interest as owner of the hereditaments, since he must claim it on the ground of its being part of them, and would own it by virtue of his title to

them, it is difficult to see how even the lesser proposition, that he could before severance pass such a fixture, by means apt only for the conveyance of chattels, can be maintained.

Thus, then, during the period within which the tenant has the right of removal, he has an actual interest in the things affixed by him or purchased by him as fixtures; an interest which is neither an interest in chattels nor an interest in land, but it is a chattel interest in things for the time being affixed to land; an interest by virtue of which those things may be bargained and sold by him, and will pass to his assigns in bankruptcy." "Certainly it is an interest of a peculiar nature, in many respects rather partaking of the character of a chattel than of an interest in real estate" (per Williams, J., in London and Westminster Loan and Discount Company v. Drake, 6 C. B. [N. S.], 798), so singular that, on the one hand, in the case cited, a conveyance of fixtures by a tenant was held not to be defeated by his surrender of his term, on the ground that it was, as it was there expressly called, “a right or interest in land," and that, on the other hand, removable fixtures may be seized under an execution of fi. fa., as included in the tenant's "goods and chattels," as was decided in Poole's Case, and as has been ever since practiced and allowed. Whether and how far such fixtures are distrainable is, as has been seen, not clear.

This right of the tenant is, however, so frequently affected by special stipulation, that it is proper to notice such decisions of general application as have been made upon this head. The stipulation on which questions have usually arisen is to the effect that the tenant shall repair, and at the expiration of his term yield up, all "erections," "buildings," "improvements," "fixtures," on the premises, whether already there at the time of the demise, or placed there afterward by the tenant. The effect of such a stipulation as to things clearly within it was considered in Dumergue v. Rumsey, 2 H. & C. 777, and it was there held, that it made the fixtures, which it referred to, no longer the subject of seizure under an execution against the tenant; in fact, the landlord's title is by means of it accelerated, and the things affixed become at once his property and a part of the thing demised.

The construction of such a stipulation depends upon its terms. The cases of Earl of Mansfield v. Blackburn, 6 Bing. (N. C.) 426, where, in a demise of saltworks, salt pans were held to be included in a covenant to yield up the "works;" Thresher v. East London Water Works Company, 2 B. & C. 608, where a tenant who had covenanted to yield up all buildings was not allowed to remove limekilns, erected by him under an earlier lease, and actually included in the existing one; Hazlett v. Bush, 18 C. B. 893; West v. Blakeway, 2 M. & G. 729; Penry v. Brown, 2 Stark. 403: and Martyr v. Bradley, 9 Bing. 24, where the tenant covenanted to yield up all "erections and improvements," and was held not entitled to remove, in the first case plate glass windows; in the second, a greenhouse and vineries; in the third, a verandah; and in the fourth, a pair of new millstones; and Naylor v. Collinge, 1 Taunt. 19, where the tenant covenanted to leave all "buildings and erections," all turned on their own peculiar phraseology. The only points of interest determined by them are, that, on the one hand, such covenants will not be read as though removable fixtures (whether removable on the ground of ornament or trade) were to be excluded from them; and that, on the other hand, as shown by the case last cited, and by Beaufort v. Bates, 10 W. R.