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Seceased but a furnace in his house a which he ras seized in jee sumple. turuare now not fired to the halla f thouse.

Heir entered & executors took furnace. Thereapon heir brought tresfairs di after in farmace) is fixed to to freehold, it is incident to the

freehold, and it will go and for alrags with the freehold action lies - Jud for Rio tumo Pollard's argument it affean that furnace was hired and annexed to freehold althe not fired to valls.

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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 ursie For Termal fixed such a thing to the ground, and not to the wall, be may well geans - then fired retake it during the term, (but if he lets it after the term, the lessor & pronad. 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 bigher 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 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. 1701.

[Reported Freem. C. C. 249.)
HELD, that a furnace, though fixed to the freehold, and purchased
with the house, and also bangings nailed to the wall, shall go to the
executor, and not to the heir, and so determined, contrary to Herluken-
den's Case, 4 Co., qu'il dit nest ley quoad præmissa."

- Under- lessee hada right to remone rata eta
used in his trade, theuse sheriff might take
Them in execution.

POOLE'S CASE.
Nısı 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 have them ; and although the lessee himself at his own costs put the glass in the win. dows, 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. iu C. B., it was resolved per totam curiam : that glass annexed to windows by pails, 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." [Ierlakenden's Case, 4 Co. 62 a, 63 b (1589).

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

Tud

661 Parten u farten i material question was whather a fire-engine set up for the benefit

la collier es a tenant for life shall be considered Jersenal of real it cts have relaxed struck construction of the lar which made everything

annexed to the freehold realte, because it is for the benefit of the fublic to enconnage tenants for life to do what is abrautageons to the estate during their term.

His is a muund care setereen enzozning the profits fland, and tanging wwe species 1 Trade; v kouridering ürü To listra i concure rerm mear the instancer in herhaner eter Venonal). Little profit can be made a coal mines wittent This engine & tenants for lives would be discouraged in erecting them if they must to frera The i reprerecitatines tai rewet reserver- viani Personal luajesty

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