be severed from the inheritance, for by such a reason if anything was fixed to the land by the tenant for term of years, it will be immediately called parcel of the inheritance, and the termor will not take it; and this is not so, for although he fixes a post in the ground during the term, and he retakes it within the same term, yet the lessor will not retake it. And in our case here it appears that this furnace was fixed to the ground within the house, so that the inheritance is none the worse for it, and where a furnace was fixed to the wall of the house, the better opinion in 42 E. III. was that it is not waste, although the termor takes it; and so it seems here, that the executors will take it, and the action is not maintainable.

Eliot. There is a difference when such a thing is fixed by the reversioner, and when the termor; for when it is done by the reversioner, and then he leases it rendering a certain rent, now it is made parcel of the reversion, for it makes the rent which is reserved on such a lease more than it would be if such a fixing had not been made. As where one makes vats and fixes them in a dyehouse or brewhouse, and then leases the house rendering a certain rent, now, by common reason, the rent is the greater, wherefore neither the termor nor the executor will take them; but where they are put in by the termor, he takes them: but here he who had the fee simple fixed this furnace, in which case the executors cannot take it, for the reason aforesaid.

KINGSMILL, [J.] After it is fixed to the freehold, it is incident to the freehold, although it is not parcel of the freehold, and it will go and pass always with the freehold; and although he to whom the freehold belongs after such fixing is outlawed, this furnace will not be distrained nor forfeited, and the reason is because it is annexed and fixed to the freehold; and for this reason the heir will have them after the death of his father, for such posts as are fixed by the father will belong always to the heir, and never to the executors. And where one is seised of land in fee, and buys documents concerning the same land, and dies, in that case the heir will have the documents, and not the executors; and the reason is because they concern the title to the land, although they are but chattels in themselves. And where one has fixed vats in a brewhouse or dyehouse and dies, the heir will have them; for when they are fixed, they are for the continual profit of the house, and therefore there is more reason that the heir should have them, whose is the freehold to which they are joined, than the executors, who have nothing to do with the freehold. But as to the lessee for term of years, if he has fixed such a thing to the ground, and not to the wall, he may well retake it during the term, (but if he lets it after the term, the lessor will take it,) for the taking of it is not any waste, because the house is not injured by it. But in the case here, it seems that the action is maintainable for the reasons aforesaid.

FISHER, [J.,] was of the same opinion.

READ, [C. J.]. The executors will take all kinds of chattels which belonged to their testator, but that is where they are properly in the

nature of chattels; now here when this furnace was annexed and fixed to the land, it is as to a thing of higher nature, and in a way is made incident to it. As in the case that has been put of sleeping tables, the heir will have them after the death of the father, and not the executors, and in reason it follows that when they are joined to the inheritance, it is in accordance with reason that they pass with the inheritance until they are severed by him who has authority to sever them, and that is he in whom is the inheritance. And as to the reason which has been given that the testator might have severed, and given or sold them, and that the executors can in like manner, that is no reason, for the testator could give the trees, and so cannot the executors; and as has been said at the bar, the furnace cannot be attached in assise nor distrained, and so by all the cases aforesaid it seems that the action lies; and so was the opinion of the whole court. Quod nota.1

SQUIER v. MAYER.

BEFORE SIR NATHAN WRIGHT, LORD KEEPER. 1701.

[Reported Freem. C. C. 249.]

HELD, that a furnace, though fixed to the freehold, and purchased with the house, and also hangings nailed to the wall, shall go to the executor, and not to the heir, and so determined, contrary to Herlakenden's Case, 4 Co., qu'il dit nest ley quoad præmissa.2

1 See Keilw. 88, pl. 3; Henry's Case, Year Book, 20 Hen. VII. 13, pl. 24. "Notu, reader, Mich. 18 & 19 Devon: it was adjudged in C. B. that waste might be committed in glass annexed to windows, for it is parcel of the house, and shall descend as parcel of the inheritance to the heir, and that the executors should not have them; and although the lessee himself at his own costs put the glass in the windows, yet in being once parcel of the house he could not take it away, or waste it, but he should be punished in waste; and upon the said judgment a writ of error was brought in B. R., and there the judgment was affirmed. Nota also, inter Warner & Fleetwood, Mich. 41 & 42 Eliz. in C. B., it was resolved per totam curiam: that glass annexed to windows by nails, or in other manner, by the lessor or by the lessee, could not be removed by the lessee, for without glass it is no perfect house; and by lease or grant of the house it should pass as parcel thereof, and that the heir should have it, and not the executors; and peradventure great part of the costs of the house consists of glass, which if they be open to tempests and rain, waste and putrefaction of the timber of the house would follow, which agrees with the judgments given before. It was likewise then resolved, that wainscot, be it annexed to the house by the lessor or by the lessee, is parcel of the house; and there is no difference in law if it be fastened by great nails or little nails, or by screws, or irons put through the post or walls (as have been invented of late time); but if the wainscot is by any of the said ways, or by any other, fastened to the posts or walls of the house, the lessee cannot remove it, but he is punishable in an action of waste, for it is parcel of the house; and so by the lease or grant of the house (in the same manner as the ceiling and plastering of the house), it shall pass as parcel of it." Herlakenden's Case, 4 Co. 62 a, 63 b (1589).

2 Sec accord. Beck v. Rebow, 1 P. Wms 94; Harvey v. Harvey, 2 Stra. 1141.

CAVE v. CAVE.

BEFORE SIR NATHAN WRIGHT, LORD KEEPER. 1705.

[Reported 2 Vern. 508.]

A QUESTION arising whether some pictures and glasses belonged to the heir or to the executor: the LORD KEEPER was of opinion, that although pictures and glasses generally speaking are part of the personal estate; yet if put up instead of wainscot, or where otherwise wainscot would have been put, they shall go to the heir. The house ought not to come to the heir maimed and disfigured. Herlakenden's Case, wainscot put up with screws shall remain with the freehold.2

In this action of trover, brought by the executor against the tenant of the heir at law of the testator, to recover certain vessels used in salt works, called salt pans, a case was reserved by consent, which stated, that the testator, some years before his death, placed the salt pans in the works; that they were made of hammered iron, and riveted together; that they were brought in pieces, and might be again removed in pieces; that they were not joined to the walls, but were fixed with mortar to a brick floor; that there were furnaces under them; that there was a space for the workmen to go round them; that there were no rooms over them; but that there were lodgings at the end of the wych houses; that they might be removed without injuring the buildings, though the salt works would be of no value without them, which with them were let for £8 per week.

The question was, whether the executor or the heir at law were entitled to them?

Mingay, for the plaintiff.

Davenport, for the defendant.

LORD MANSFIELD, after stating the case, said: All the old cases, some of which are in the Year-Books, and Brooke's Abridgment agree that whatever is connected with the freehold, as wainscot, furnaces, pictures fixed to the wainscot, even though put up by the tenant, belong to the heir. But there has been a relaxation of the strict rule in that

1 Only that part of the case which relates to fixtures is here given.

2 See D'Eyncourt v. Gregory, L. R. 3 Eq. 382; Snedeker v. Warring, 12 N. Y. 170; Ward v. Kilpatrick, 85 N. Y. 413; Norton v. Dashwood, [1896] 2 Ch. 497.

species of cases, for the benefit of trade, between landlord and tenant, that many things may now be taken away, which could not be formerly, such as erections for carrying on any trade, marble chimney-pieces and the like, when put up by the tenant. This is no injury to the landlord, for the tenant leaves the premises in the same state in which he found them, and the tenant is benefited. There has been also a relaxation in another species of cases between tenant for life and a remainder-man, if the former has been at any expense for the benefit of the estate, as by erecting a fire-engine, or anything else by which it may be improved; in such a case it has been determined that the fire-engine should go to the executor, on a principle of public convenience being an encouragement to lay out money in improving the estate, which the tenant would not otherwise be disposed to do. The same argument may be applied to the case of tenant for life and remainder-man, as that of landlord and tenant, namely, that the remainder-man is not injured, but takes the estate in the same condition as if the thing in question had never been raised.

But I cannot find, that between heir and executor, there has been any relaxation of this sort, except in the case of the cider-mills, which is not printed at large. The present case is very strong. The salt spring is a valuable inheritance, but no profit arises from it, unless there is a salt work; which consists of a building, &c. for the purpose of containing the pans, &c. which are fixed to the ground. The inheritance cannot be enjoyed without them. They are accessories necessary to the enjoyment and use of the principal. The owner erected them for the benefit of the inheritance; he could never mean to give them to the executor, and put him to the expense of taking them away, without any advantage to him, who could only have the old materials, or a contribution from the heir, in lieu of them. But the heir gains £8 per week by them. On the reason of the thing, therefore, and the intention of the testator, they must go to the heir. It would have been a different question if the springs had been let, and the tenant had been at the expense of erecting these salt works; he might very well have said, “I leave the estate no worse than I found it." That, as I stated before, would be for the encouragement and convenience of trade, and the benefit of the estate. Mr. Wilbraham, in his opinion, takes the distinction between executor and tenant. For these reasons, we are all of opinion, that the salt pans must go to the heir.

Postea to the defendant.1

1 "In former times it has been said that the heir was a favored person; but, in my opinion, no distinction can be maintained between a claim by the executor against the heir and a claim by the executor against the devisee." Chitty, J., in Norton v. Dashwood, [1896] 2 Ch. 497, 500.

TRESPASS for breaking and entering plaintiff's house, and taking his fixtures, goods, and chattels. Justification under a writ of fi. fu directed to the defendant, Ingilby, as sheriff of the county, under which the defendant, Hauxwell, his bailiff, peaceably entered the premises, and seized, &c. Replication de injuria, &c. At the trial at the last assizes for Yorkshire, before Cross, Serjeant, the only question was, whether the defendants were justified in seizing, under the execution, some fixtures, consisting of set pots, ovens, and ranges. It appeared that the house where these were fixed was built on the plaintiff's own freehold, and the learned serjeant was of opinion that under these circumstances they were not seizable by the sheriff under an execution. The plaintiff accordingly had a verdict; and now

Littledale moved to enter a verdict for the defendants.

PER CURIAM. The verdict is right, for these were fixtures which would go to the heir, and not to the executor, and they were not liable to be taken as goods and chattels under an execution. Here, the house where they were fixed was the freehold of the plaintiff, which distinguishes this case from those cited. Rule refused.

UPON appeal against an order of two justices, whereby Samuel Stammers and his four children were removed from the parish of St. Mary, Lambeth, in the county of Surrey, to the parish of Otley, in the county of Suffolk, the sessions confirmed the order, subject to the opinion of this court on the following case:

Samuel Stammers, the pauper, rented of James Bedwell, of Ipswich, carpenter, in the appellant parish, a windmill called a smock-mill, a brick-built cottage, and a small garden, at the rent of £30 per annum, during the space of six years, and three quarters of another year, ending midsummer, 1827; and during the whole of that time held, occupied, and actually paid for the same the said sum of £30 per annum, and was rated to and paid several rates for the relief of the poor of the parish of Otley in respect of the cottage and garden, and also of the mill, at the estimated value of £6 per annum. The cottage

and garden, with the mill, are together of more than the annual value