THE INCREASE OE ANIMALS. 45 



others are wearing out by the attrition of time, yet, when 

 taken altogether, being reproductive, the estate must be made 

 to keep up its own repairs." ^* However, when the animals 

 are such as cannot produce young ones as a set of horses or 

 mules, or a single beast, the owner of the life interest is not 

 bound to supply the place of one dying without any fault of 

 his.^^ Under a lease that gave the lessee the increase of a 

 flock, but required the flock to be grown to a certain number 

 which were to be delivered to the lessor at the end of the 

 term, it was held that a delivery of the specified number was 

 required and not merely a delivery of such a number as the 

 lessee was able to raise by the exercise of reasonable care and 

 prudent husbandry.*® 



It has been already stated that where an animal is hired its 

 increase belongs to the bailee. But in the case of a gratu- 

 itous loan the offspring belongs to the lender and must be 

 returned at the determination of the loan and is not subject 

 to seizure under an execution against the borrower." And 

 putting a mare to pasture in consideration of her services does 

 not create a temporary ownership so as to entitle the bailee 

 to the increase : it is a naked bailment.*^ But in a New York 

 case it was held that where there was a promise to re-deliver 

 the animals borrowed with their increase the hiring was for a 

 valuable consideration, because on general principles such in- 

 crease belongs to the temporary owner of the animal; and 

 that, therefore, the lender could not bring trespass against 

 one who took such animals from the possession of the bor- 

 rower, as the lender had not actual or constructive posses- 

 sion.*^ It is difficult, however, to reconcile this decision with 



" Patterson v. Devlin, i McMuH Eq. (S. C.) 459. 



" I Schoul. Pers. Prop. § 142, citing 2 Kent. Com. 353 n. ; i Dom. Civ. 

 Law §§ 986-988; Horry v. Glover, 2 Hill Ch. (S. C.) 521. 



" In re More's Estate, 121 Cal. 609. 



" Dillaree v. Doyle, 43 U. C. Q. B. 442. And see Orser v. Storms, 9 

 Cow. (N. Y.) 687. 



" Allen V. Allen, 2 P. & W. (Pa.) 166. 



'° Putnam v. Wyley, 8 Johns. (N. Y.) 432. 



