delivered the opinion of the court,
There are several specifications of error in this case, all of which we think are sustained. The evidence referred to in the first and second specifications was competent to show that the tenants treated the fixtures as personal property. John Pettit was a son of the plaintiff below, and acted for' her in renting the property, collecting the rent, &c. During a portion of the time he ivas in partnership with Mr. Seeger. It was clearly competent to prove, upon the question of intention, tbat the firm treated the fixtures as their own property, and included them among their assets.
The remaining specifications of error refer to the charge of the court, and may be considered together. Under the earlier decisions physical annexation was undoubtedly the test. But this doctrine no longer prevails. It was overturned in Voorhis v. Freeman, 2 W. & S. 116, followed by Pyle v. Pennock, Id. 390 ; and numerous other cases which will be found collected in Hill v. Sewald, 3 P. F. Smith 271. The true rule to be deduced from these authorities is, that it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex. Where a tenant puts in fixtures or conveniences for his own comfort, the law raises no presumption that he intended them as permanent improvements, *441to be left for the benefit of his landlord; and as a general rule he will be entitled to remove them during his term. For any injury to the freehold by reason of such removal, he is of course liable to the landlord in damages.
The matter of fixtures should have been left to the jury as a question of intention. Instead of doing so, the learned judge applied the law to certain facts of the case, and instructed the jury substantially that, if there was physical annexation, the articles could not be removed. This was error.
Judgment reversed, and a venire facias de novo awarded.