Persons dealing in fertilizers not marked as above required, or who fraudulently affix any mark or label which untruthfully states the contents and character of the package sold, forfeit such manures, and render themselves personally liable for damages. Deficiency in any of the ingredients indicated by the mark or label is made a bar to the recovery of the debt created by the purchase of the manure.

Any person, instituting suit, can have an analysis made by the State geologist, and his certificate is presumptive evidence of the ingredients of the article sold. Several persons may unite in one such suit.1

Virginia, by statute, provides for the proper marking of all packages of fertilizers with the name of the manufacturer or dealer, his place of business, with the weight, value, and analysis of the contents of each package offered for sale.

For breaking this law a penalty is imposed of one hundred dollars on the first and two hundred dollars for each subsequent offense, and the vendee may recover the price paid.2

Such are the general features of the laws of States where the trade or business of dealing in fertilizers is governed by special statutes. In some States there are also restrictions upon non-residents from gathering, on the sea-shore, fish for manures, to be carried away, but such laws are local and of but little general value.

§ 41. Manure made on land belongs to owner of the soil.-Manure made upon the land, in the course of husbandry, becomes a part of the farm, and is generally subject to the laws governing real estate. In England, from the complicated relation of landlord and tenant under agricultural leases, exceptions to this rule, by local customs and peculiar circumstances, have so often occurred that the rule sometimes appears to be lost; but,

1 Public Laws of N. Car. 1871-72, p. 366-7.

2 Acts of Assembly of Virginia, 1870-71, p. 294.

82 Kent's Com. 348, Note 1, in which the distinguished writer says: "It would seem to be the law in England for the outgoing tenant to sell or take away the manure (Roberts v. Barker, 1 Cr. & M. 809). A critical examination of the case cited develops the fact that the decision turns upon the effect of an express stipulation where there is a custom which otherwise controls. A tenant held under a lease which contained an express agreement by which he covenanted not to sell or take away any of the manure in the fold, but should leave

notwithstanding the multitude of qualifications and exceptions which cover it, the rule can be found underlying them.

1

§ 42. English rule as to manure made on the farm.— By the English authorities, it is generally conceded that an agreement to cultivate lands in a husbandlike manner is an obligation not to carry away any of the straw, dung, or compost, but to use them for enriching the soil; and that, although under local usage the contrary might prevail as a custom, the general rule of law is such that the manure should remain upon, and it is a part of, the realty. But the converse of this proposition has sometimes been held to be true: that there was no rule whatever in the premises, and that local custom controlled entirely. 2 But the custom must be so well established as to cause the presumption that the contracting parties knew of the local usage, had it in mind in making the contract, and are therefore deemed to have entered into the relation with reference to the subjectmatter upon consideration, based upon the custom.

it for the landlord or the succeeding tenant; but there was in the lease no stipulation as to the tenant being paid for the manure.

By the custom of the country, the tenant would have been bound not to sell or take away the manure, but, leaving the last year's manure on the premises, he would have been entitled to receive pay for its value.

'It was held that an express agreement as to leaving the manure had been inserted in the written lease; that circumstances evidenced that the minds of the contracting parties had met, and the result was the written stipulation which, perforce, proved that no reliance was placed upon the custom; that, therefore, the custom not being in their minds, it formed no part of the contract, and should be disregarded; no pay was accorded for the manure.

Hence it would seem that the local custom, rather than the law, gave the manure to the tenant; and, granted the premise that a custom was requisite to give to him the manure, the law, apart from the custom, left the title with the land.

But Leniar v. Armitage (Holt's cases of nisi prius, 197) directly controverts this case of Roberts v. Barker, and decides that where a written agreement of lease, upon a matter of this character involving a custom, does not in terms exclude the custom, such custom will prevail and remain in effect.

In Webb v. Plummer, 2 B. & A. 746, the doctrine of Roberts v. Barker is sustained, and Leniar v. Armitage commented upon without approval.

1 Powley v. Walker, 5 D. & E. 373.

2 In Hutton v. Warren, 1 M. & W. 466, it is said that the obligation to expend manure, and right to remove it, must, in every case where there is no express contract, be governed by the custom of the country; there is no rule of law on the subject irrespective of such custom; "farmers are more fit than lawyers to decide such a question."

§ 43. Rule in America as to ownership of manure.In America, it is reasonably well settled that the manure made on the farm is a part of the realty, and, upon a sale of the land, passes to the vendee under the deed.

The case of Kittredge v. Woods 1 is not only a leading one, but states the doctrine now prevailing throughout the United States, with certain rare exceptions.

The action was trespass, for breaking and entering plaintiff's close and carrying away forty loads of manure. It appeared, on the trial, that the plaintiff was tenant of the farm, where the manure was made by cattle about the farm, in 1823. In 1824, plaintiff purchased one-half of the farm, and defendant the other half, and these parties held it in common until the 6th of April, 1824, when they divided, and defendant conveyed to plaintiff all of his interest in the part of the farm where the said manure was. Afterward, defendant entered and took away one-half of the manure, and thereupon the controversy arose, and the sole question involved was, "whether, when land is sold and conveyed without any reservation, manure lying upon it goes to vendee with the land?"

The learned judge who wrote the opinion (Richardson, C. J.) says: "As we find no adjudged case in which this question has been directly settled, we shall, in order to avail ourselves of the light which analogous cases offer, take a broader view of the subject than the relation between the vendor and vendee presents. Many things which are not affixed to the freehold go to the heir as appurtenances to the inheritance. Thus, it is said that young doves in a dove-house, not able to fly, belong to the executor. But the old doves go, with the dove-house, to the heir. (Wentworth, 57; Godolphin, 116.) So, keys of doors go to the heir, (Wentworth, 62) and chests containing the title-deeds of the inheritance (Wentworth, 64).

"And we are inclined to think that the principles of these decisions will give to the heir the manure which may have been carried and left upon the field in heaps for dressing, or which may be left lying in heaps about the barn, upon the land.

"It is well settled that when land is sold, whatever corn is

13 N. H. 503; Lee v. Risdon, 7 Taunt. 191; Elwes v. Mawe, 3 East, 38.

upon

the land passes, and we are of the opinion that all manure, whether it be in heaps about barns, or in other places upon the land, goes with the land to the vendee."

§ 44. Title to manure as between executor and heirsat-law. One of the most common cases where a question of this kind may arise, is between executors or administrators on the one point, and heirs-at-law on the other. It is said, in the English books, that the line, in this instance, is drawn more closely there than in any other. And it seems to have been settled that whatever has been in any way attached to the freehold for the benefit of the inheritance, and is necessary to its enjoyment, shall go to the heir.

1

Thus, in Lawton v. Salmon, 1 H. Bl. 259, note, it was decided that salt pans, used in the manufacture of salt, although they might be removed without injury to the building, should go to the heir.

Many things which are not affixed to the freehold go to the heir as appurtenances to the inheritance. Thus, it is said that young doves in a dove-house, not able to fly, belong to the executor, but the old doves go with the dove-house to the heir. So keys of doors go to the heir, and chests containing the titledeeds to the property pass to the heir. And so, by analogy, it appears that the principles of these decisions will give to the heir the manure which has been carried and left upon the fields in heaps for dressing, or which may be left lying in heaps about barns upon the land.2 Such was the conclusion arrived

1 In these cases, the contest arose as to certain fixtures, whether they went to the heirs or executor. It was held that the fixtures necessarily went to the heir, because they were of the realty.

It was said that the right between landlord and tenant did not altogether depend upon this principle. Many articles which, though originally chattels, might, when attached by the tenant to the freehold, cease to be such by becoming part of the freehold; and though it is in his power to reduce them to personalty by removing them during his term, they remain, so long as affixed, a part of the realty. (Strong v. Doyle, 110 Mass. 93.)

"Manure made in the course of husbandry, upon a farm, is so attached to and connected with the realty, that, in the absence of any express stipulation to the contrary, it passes as appurtenant to it." (Fay v. Mazzy, 13 Gray, 53.)

2 Fencing materials on a farm, part of the freehold, and if they are temporarily down or detached, without any intent on the part of the owner to put the fencing materials to another use, they still continue to be regarded as fixtures.

at in this case, and it has been agreed with in similar cases where they have arisen in the other States, except the instances and to the extent hereinafter noticed.

In Massachusetts, it was held that manure from the barnyard of the homestead of an intestate, standing in a pile on the land, although not broken nor rotten, and not in a fit condition. for incorporation with the soil, is not assets in the hands of the administratrix, and she is not chargeable therewith as part of the personal estate.

Manure made in the course of husbandry upon a farm is so attached to and connected with the realty, that, in the absence of any express stipulation to the contrary, it passes as an appurtenant to it.

The reason of the rule is, that it is for the benefit of agriculture that manure, which is usually produced from the droppings of cattle or swine fed upon the products of the farm, and composed with the earth or vegetable matter taken from the soil, and the frequent application of which to the ground is so

(Goodrich v. Jones, 2 Hill, 143, and to the same point, Walker v. Sherman, 20 Wend. 639.)

So, also, it has been held, where hop-poles had been used the preceding year, but, the crop being harvested, the poles had been piled up on the farm for use the next year, that the poles, though wholly out of the ground, and in piles, were in effect fixtures, and not subject to be treated as personal property. (Bishop v. Bishop, 11 N. Y. 123.) One of the judges dissented.

1 Fay v. Mazzy, 13 Gray, 53.

The ground on which the learned judge (Hoar) places this rule is that the manure, having been originally from the soil, should, to keep the estate in equalized value, return to it the enrichment of the droppings, does not appear to have been always the predicate of the proposition. In an old English case, Hindle v. Pollett, 6 Meeson & Welsby, 529, a tenant had stipulated that he would put and spread all the manure and compost then collected on the farm, and that he would not take away or sell any such from the premises. The tenant was attached, and sold out. His neighbor bought two of his cows, and, for convenience, left them in a pen on the land; brought from other premises hay, fed them there for a couple of days, and took away the manure-the droppings from the cows which he had bought, and which were from his feed. Held, that the manure belonged to the landlord, the owner of the soil, and that to take it away was a breach of the covenant.

Lord Abinger says: "The question is not by whose provender the manure was produced, but whether it was made on the farm. Now, suppose the farm was near some place where a large fair was held, and it was convenient to the farmer to take in the cattle brought to the fair for several hours, would he have a right to remove the manure made by these cattle? Would not all their droppings be manure made on the farm? Clearly so. This is manure made on the farmthe produce of the farm-and must be so regarded,"

FARM-4.