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

1 See Keilw. 88, pl. 3.

"Nota, reader, Mich. 18 & 19 Devon : it was adjudged in C. B. that waste might

SQUIER v. MAYER.

Bad for

BEFORE SIR NATHAN WRIGHT, Lord KEEPER.

[Reported Freem. C. C. 249.]

1701.

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.1

Under- lessee hada right to remore rata ete aised in his trade, theure Sheriff might take Then in execation.

POOLE'S CASE.

NISI PRIUS.

1703.

[Reported 1 Salk. 368.]

TENANT for years made an under-lease of a house in Holborn to J. S., who was by trade a soap-boiler. J. S., for the convenience of his trade, put up vats, coppers, tables, partitions, and paved the back-side, &c. And now upon a fieri facias against J. S., which issued on a judgment in debt, the sheriff took up all these things, and left the house stripped, and in a ruinous condition; so that the first lessee was liable to make it good, and thereupon brought a special action on the case against the sheriff, and those that bought the goods, for the damage done to the house. Et per HOLT, C. J., it was held,

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