1

CO. LIT. 8 a. If a man buy divers fishes, as carps, breames, tenches, &c. and put them in his pond, and dyeth, in this case the heire shall have them, and not the executors, but they shall goe with the inheritance; because they were at libertie, and could not be gotten without industrie, as by nets, and other engines. Otherwise it is, if they were in a trunke or the like. Likewise deere in a parke, conies in a warren, and doves in a dove-house, young and old, shall goe to the heire.2

cover the principle upon which he proceeds when he said that 'If A. starts a hare in the ground of B. and hunts it into the ground of C. and kills it there, the property is in A., the hunter; but A. is liable to an action of trespass for hunting in the grounds as well of B. as of C.'

"I have some difficulty in understanding why the wrongdoer is to acquire a property in the game under the circumstances here supposed. If the animal had left the land of B. and passed into the land of C. of its own will, and had been, immediately it crossed the boundary, killed by C., it would unquestionably have been his property. Why then should not the act of a trespasser, to which C. was no party, have the same effect as to his right to the animal as if it had voluntarily quitted the neighboring land? And why not only should B. lose his right to the game, and C. acquire none, but the property, by this accident of the place where it happened to be killed, be transferred to the trespasser? It would appear to me to be more in accordance with principle to hold that if the trespasser deprived the owner of the land where the game was started of his right to claim the property by unlawfully killing it on the land of another to which he had driven it, he converted it into a subject of property for that other owner, and not for himself." Per LORD CHELMSFORD, in Blades v. Higgs, 11 H. L. C. 621, 639.

1 Parlet and Bartholomew v. Cray, Cro. Eliz. 372, accord.

2 But deer in a park, when reclaimed, cease to belong to the inheritance. Ford v. Tynte, 2 J. & H. 150. See Davies v. Powell, Willes, 46. — Ed.

As to the right to hunt over submerged lands, see Sterling v. Jackson, 69 Mich. 488; Hall v. Alford, 114 Mich. 165.

In Rexroth v. Coon, 15 R. I. 35, plaintiff, without B's permission, placed a hive on the latter's land. Afterwards defendant, also without permission from B., carried away a swarm of bees and a quantity of honey from the box. It was held that plaintiff could not maintain trover against defendant. — ED.

CHAPTER III.

TITLE-DEEDS.

LEATHES v. LEATHES.

CHANCERY. 1877.

[Reported 5 Ch. D. 221.]

THIS was a motion on behalf of the plaintiff, who was tenant for life in remainder of a settled estate under a will, that he might be at liberty to deposit in court the title deeds of the estate, and that they might be retained in the custody of the court till the hearing of the action, when they might be secured for the benefit of the several persons interested in the estate.

The deeds had come into the plaintiff's possession during the lifetime of his father, the testator, for whom he acted as solicitor.

The defendant, the first tenant for life, claimed to be entitled to the custody of the deeds, but the plaintiff alleged that he had long resided in Australia, also that, as there was a contest respecting the ownership of part of the estate, the defendant might make use of the deeds by showing them to those who had an adverse claim, to the prejudice of those entitled in remainder.

Ince, Q. C., and Chester, in support of the motion.

Chitty, Q. C., and Langworthy, for the defendant.

JESSEL, M. R. A legal tenant for life of freeholds is entitled to the custody of the title deeds as a matter of right, except in cases where he has been guilty of misconduct so that the safety of the deeds has been endangered, or where the rights of others intervene, and it becomes necessary for the court to take charge of the title deeds in order to carry out the administration of the property.

In Garner v. Hannyngton, 22 Beav. 627, 630, Lord Romilly held that the legal tenant for life is prima facie entitled to the custody of the title deeds." The question came before the Court of Exchequer in Allwood v. Heywood, 1 H. & C. 745, when the full court held that it was but reasonable that the plaintiff, who was legal tenant for life, should have the custody of the title deeds. There are many dieta to the same effect, including a passage in Sugden's Vendors and Purchasers, p. 446, n.

The only case the other way is that of Warren v. Rudall, 1 J. & H. 1, 13, where the deeds were in court, and Vice-Chancellor Wood stated the rule thus: "With respect to the title deeds, it is a settled doctrine

that this court never interferes as to the possession of deeds between a father tenant for life and a son entitled in remainder; but in the case of a stranger tenant for life the court will interfere; and this is in fact a particularly strong case, because the deeds are in court, and I am asked to deliver them out. The reversioner has no connection with the tenant for life; the title deeds must remain in court." There is a dictum of Lord Hardwicke in Pyncent v. Pyncent, 3 Atk. 571, to the same effect; but it is quite contrary to law, for the mere fact of the reversioner being a stranger to the tenant for life has nothing to do with the question.

Now I come to consider what are the circumstances in which the court will interfere. First, the court will interfere when there is any danger to the safety of the deeds if left in the custody of the tenant for life; and, secondly, where the court is carrying out the trusts of the property, and the deeds are wanted for that purpose. Beyond these cases the court cannot go.

The case of Stanford v. Roberts, Law Rep. 6 Ch. 310, was referred to. In that case there was a pending suit affecting the estate; and, as I understand the case, the Lords Justices were of opinion that there was an actual duty to be performed by the trustees, and Lord Justice James observed: "This case does not appear to me to turn on the mere question of legal title. There is a pending suit which relates to these estates, and which is being actively prosecuted. The only question, then, is where, having regard to the purposes of the suit, the deeds can be most conveniently kept. The Vice-Chancellor has, in the exercise of his judicial discretion, held that it is most convenient to allow them to remain where they are, and with that discretion we shall not interfere."

The other case referred to was that of Jenner v. Morris, Law Rep. 1 Ch. 603, 606. That was rather a peculiar case. A suit had been instituted for raising portions out of a settled estate. Pending the suit, the tenant for life took a number of the leases to Paris. He afterwards, under an order of the court, brought the whole of the title deeds and leases into court for the purposes of the suit. After the purposes of the suit had been satisfied and the portions raised by mortgage, he applied to have the title deeds and leases given up to him. This application was opposed by the mortgagees, and refused by Vice-Chancellor Kindersley. When the case came before the Court of Appeal, Lord Justice Knight Bruce said: "I cannot, without the consent of the mortgagees, concur in an order for delivery of these documents to a tenant for life who on a former occasion has, without any necessity, taken a number of them out of the jurisdiction." Therefore the sole ground of his decision was, that the tenant for life had taken them out of the jurisdiction, and that in his opinion there was danger to the deeds if they remained in his custody. Lord Justice Turner did not agree, but by consent an order was made for the delivery of the deeds to the tenant for life upon his giving security for their safe custody, and

for their production at reasonable times, and for their return into court if ordered.

In the present case, the first reason in support of the motion that I have to consider is, that the tenant for life has for many years resided in Australia. That is no reason at all. Secondly, it is urged that there is a contest as to the ownership of a portion of the estate, and that the tenant for life might show the deeds to the adverse claimants. There appears, however, no ground for such a suspicion.

The motion must be refused.

NOTE. HEIRLOOMS. "And note, that in some places chattels as heirlooms (as the best bed, table, pot, pan, cart, and other dead chattels movable) may go to the heir, and the heir in that case may have an action for them at the common law, and shall not sue for them in the ecclesiastical court; but the heirloom is due by custom, and not by the common law." Co. Lit. 18 b.

[Reported Year Book, 21 Hen. VII. 26, pl. 4.]

IN trespass the case was this. A man was seised of a house in fee simple, and made a furnace, viz. of lead, in the middle of the house, and it was not fixed to the walls of the house. He made executors and died, the heir entered, and the executors took the furnace, viz. of lead, and the heir brought an action of trespass.

Pollard. It seems that the action lies; for such things as are fixed and annexed to the freehold will descend to the heir with the inheritance, and so they will pass by feoffment with the freehold; as where vats are fixed in the ground, or in a brewhouse or dyehouse, they are appurtenant to the freehold, and altered from the nature of a chattel. And where a paling is made to enclose an enclosure or pond, the executors will not take it, but the heir will have it. So of things fixed to the inheritance they belong and pass with the inheritance and the freehold. And so in some cases such things as are not annexed to the land and the freehold descend and pass with the inheritance as the windows: they are not fixed, and yet neither the executors nor the termor will take them, but the heir will have them, because a house is not perfect without the doors and windows. But it is otherwise with glass, for a house is perfect enough, although it has no glass; and so there is a diversity. But in the case here, this furnace is altered by this fixing from the nature of a chattel. For it is adjudged in our books that an attachment in assise for a furnace is not good; and the reason is that it is not a removable chattel; and so the action here for the heir seems maintainable.

Grevill. Although this furnace is so fixed to the land, yet it is not therefore proved that it will go with the inheritance, so that it cannot