FILIATION, civil law. The descent of son or daughter, with regard to
his or her father, mother, and their ancestors.
2. Nature always points out the mother by evident signs, and whether married
or not, she is always certain: mater semper certa est, etiamsi vulgo conceperit.
There is not the same certainty with regard to the father, and the relation may
not know or feign ignorance as to the paternity the law has therefore
established a legal presumption to serve as a foundation for paternity and
3. When the mother is or has been married, her hushand is presumed to be the
father of the children born during the coverture, or within a competent time
afterwards; whether they were conceived during the coverture or not: pater is
est quem nuptice demonstrant.
4. This rule is founded on two presumptions; one on the cohabitation before
the birth of the child; and the other that the mother has faithfully observed
the vow she made to her hushand.
5. This presumption may, however, be rebutted by showing either that there
has been no cohabitation, or some physical or other impossibility that the
hushand could be the father. See Access; Bastard; Gestation; Natural children;
Paternity; Putative father. 1 Bouv. Inst. n. 302, et seq.
FILIUS. The son, the immediate male descendant. This term is used in
making genealogical tables.
FILIUS MULIERATUS. The eldest legitimate son of parents, who, before
their marriage, had illegitimate children. Vide Mulier.
FILIUS POPULI. The son of the people; a bastard.
FILLEY. A mare not more than one year old. Russ. & Ry. 416 Id.
FILUM. The middle; the thread of anything; as filum aqua; filum
FILUM AQUAE. The thread or middle of a water course. (q. v.)
2. It is a general rule, that in grants of lands bounded on rivers and
streams above tide water, unless otherwise expressed, the grant extends usque ad
filum aquae, and that not only the banks, but the bed of the river, and the
islands therein, together with exclusive right of fishing, pass to the grantee.
5 Wend. 423.
FILUM VIAE. The thread or middle of the road.
2. Where a law requires travellers meeting each other on, a road to drive
their carriages to the right of the middle of the road, the parties are bound to
keep ou their side of the worked part of the road, although the whole of the
smooth or most travelled path may be upon one side of the filum viae. 7 Wend.
185; 5 Conn. 305.
FIN DE NON RECEVOIR, French law. An exception or plea founded on law,
which, without entering into the merits of the action, shows that the plaintiff
has no right to bring it, either because the time during which it ought to have
been brought has elapsed, which is called prescription, or that there has been a
compromise, accord and satisfaction, or any other cause which has destroyed the
right of action which once subsisted. Poth. Proc. Civ. partie 1, c. 2, s. 2,
art. 2; Story, Confl. of Laws, §580.
FINAL. That which puts an end to anything.
2. It is used in opposition to interlocutory; as, a final judgment,. is a
judgment which ends the coutroversy between the parties litigant. 1 Wheat. 355;
2 Pet. 449. See 12 Wheat. 135; 4 Dall. 22; 9 Pet. 1; 6 Wheat. 448; 3 Cranch,
179; 6 Cranch, 51; Bouv. Inst. Index, h. t.
FINANCIER. A person employed in the economical management and
application of public money or finances; one who is employed in the management
FINANCES. By this word is understood the revenue, or public resources
or money of the state.
FINDER. One who lawfully comes to the possessiou of another's personal
property, which was then lost.
2. The finder is entitled to certain rights and liable to duties which he is
obliged to perform. This is a species of deposit, which, as it does not arise ex
contractu, may be called a quasi deposit, and it is governed by the same general
rules as common deposits. The, finder is required to take the same reasonable
care of the property found, as any voluntary depositary ex contractu. Doct.
& St. Dial. 2, c. 38; 2 Bulst. 306, 312 S. C. 1 Rolle's R. 125.
3. The finder is not bound to take the goods he finds; yet, when he does
undertake the custody, he is required. to exercise reasonable diligence in
preserving the property and he will be responsible for gross negligence. Some of
the old authorities laid down that "if a man find butler, and by his negligent
keeping, it putrify; or, if a man find garments, and by his negligent keeping,
they be moth eaten, no action lies." So it is if a man find goods and lose them
again; Bac. Ab. Bailment, D; and in support of this position; Leon. 123, 223
Owen, 141; and 2 Bulstr. 21, are cited. But these cases, if carefully examined,
will not, perhaps, be found to decide the point as broadly as it is stated in
Bacon. A finder would doubtless he held responsible for gross negligence.
4. On the other hand, the finder of an article is entitled to recover all
expenses which have necessarily occurred in preserving the thing found; as, it a
man were to find an animal, he would be entitled to be reimbursed for his
keeping, for advertising in a reasonable manner that he had found it, and to any
reward which may have been offered by the owner for the recovery of such lost
thing. Domat, 1. 2, t. 9, s. 2, n. 2. Vide Story, Bailm. §35.
6. And when the owner˜20does not reclaim the goods lost, they belong to the
finder. 1 Bl. Com. 296; 2 Kent's Com. 290. The acquisition of treasure by the
finder, is evidently founded on the rule that what belongs to none naturally,
becomes the property of the first occupant: res nullius naturaliter fit p7imi
occupantis. How far the finder is responsible criminally, see 1 Hill, N. Y. Rep.
94; 2 Russ. on Cr. 102 Rosc. Cr. Ev. 474. See Taking.
FINDING, practice. That which has been ascertained; as, the ruding of
the jury is conclusive as to matters of fact when confirmed: by a judgment of
the court. 1 Day, 238; 2 Day, 12.
FINDING A VERDICT. The act of the jury in agreement upon a
FINE. This word has various significations. It is employed, 1. To mean
a sum of money, which, by judgment of a competent jurisdiction, is required to
be paid for the punishment of an offence. 2. To designate the amount paid by the
tenant, on his entrance, to the lord. 3. To signify a special kind of
FINE, conveyance, Practice. An amicable composition or agreement of a
suit, either actual or fictitious, by leave of the court, by which the lands in
question become, or are acknowledged to be the right of one of the parties. Co.
Litt. 120; 2 Bl. Com. 349; Bac. Abr. Fines and Recoveries. A fine is so called,
because it puts an end, not only to the suit thus commenced, but also to all
other suits and controversies concerning the same matter. Such concords, says
Doddridge, (Eng. Lawyer, 84, 85,) have been in use in the civil law, and are
called transactions (q. v.) whereof they say thus: Transactiones sunt de eis
quae in controversia sunt, a, lite futura aut pendente ad certam compositionem
reducuntur, dando aliquid vel accipiendo. Or shorter, thus: Transactio est de re
dubia et lite ancipite ne dum ad finem ducta, non gratuita pactio. It is
commonly defined an assurance by matter of record, and is founded upon a
supposed previously existing right, and upon a writ requiring the party to
perform his covenant; although a fine may be levied upon any writ by which lands
may be demanded, charged, or bound. It has also been defined an acknowledgment
on record of a previous gift or feoffment, and prima facie carries a fee,
although it may be limited to an estate for life or in fee tail. Prest. on
Convey. 200, 202, 268, 269 2 Bl. Com. 348-9.
2. The stat. 18 E. I., called modus levandi fines, declares and regulates the
manner in which they should be levied and carried on and that is as follows: 1.
The party to whom the land is conveyed or assured, commences an action at law
against the other, generally an action of covenant, by suing out of a writ of
praecipe, called a writ of covenant, that the one shall convey the lands to the
other, on the breach of which agreement the action is brought. The suit being
thus commenced, then follows,
2. The licentia concordandi, or leave to compromise the suit. 3. The concord
or agreement itself, after leave obtained by the court; this is usually an
acknowledgment from the deforciants, that the lands in question are the lands of
the complainants. 4. The note of the fine, which is only an abstract of the writ
of covenant, and the concord naming the parties, the parcels of land, and the
agreement. 5. The foot of the fine or the conclusion of it, which includes the
whole matter, reciting the parties, day, year, and place, and before whom it was
acknowledged or levied.
3. Fines thus levied, are of four kinds. 1. What in law French is called a
fine sur cognizance de droit, come ceo que il ad de son done; or a fine upon the
acknowledgment of the right of the cognizee, as that which he has of the gift of
the cognizor. This fine is called a feoffment of record. 2. A fine sur
cognizance de droit tantum, or acknowledgment of the right merely. 3. A fine sur
concessit, is where the cognizor, in order to make an end of disputes, though he
acknowledges no precedent right, yet grants to the consignee an estate de novo,
usually for life or years, by way of a supposed composition. 4. A fine sur done
grant et render, which is a double fine, comprehending the fine sur cognizance
de droit come ceo, &c., and the fine sur concessit; and may be used to
convey particular limitations of estate, and to persons who are strangers, or
not named in the writ of the covenant, whereas the fine sur cognizance de droit
come ceo &c., conveys nothing but an absolute estate either of inheritance,
or at least of freehold. Salk. 340. In this last species of fines, the cognizee,
after the right is acknowledged to be in him, grants back again, or renders to
the cognizor, or perhaps to a stranger some other estate in the premises. 2 Bl.
Com. 348 to 358. See Cruise on Fines; Vin. Abr. Fine; Sheph. Touch. c. 2; Bac.
Ab. Fines and Recoveries; Com. Dig. Fine.
FINE, criminal law. Pecuniary punishment imposed by a lawful tribunal,
upon a person convicted of crime or misdemeanor. See Shep. Touchs. 2; Bac. Abr.
Fines and Amercements.
2. The amount of the fine is frequently left to the discretion of the court,
who ought to proportion the fine to the offence. To prevent the abuse of
excessive fines, the Constitution of the United States directs that "excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." Amendm. to the Constitution, art. 8. See Division of
FINE FOR ALIENATION. During the vigor of the feudal law, a fine for
alienation was a sum of money which a tenant by knight's service paid to his
lord for permission to alienate his right in the estate he held, to another, and
by that means to substitute a new tenant for himself. 2 Bl. Com. 71, But when
the tenant held land of the king, in capite, by socage tenure, he was bound to
pay such a fine, as well as in the case of knight service. 2 Bl. Com. 89. These
fines are now abolished. In France, a similar demand from the tenant, made by
the lord when the former alienated his estate, was called lods et vente. This
imposition was abolished, with nearly every feudal right, by the French
FIRE ACCIDENTAL. One which arises in consequence of some human agency,
without any intention, or which happens by some natural cause, without human
2. Whether a fire arises purely by accident, or from any other cause when it
becomes uncontrollable and dangerous to the public, a man may, in general,
justify the destruction of a house on fire for the protection of the
neighborhood, for the maxim salus populi est suprema lex, applies in such case.
11 Co. 13; Jac. Inter. 122, max. 115. Vide Accident; Act of God, and 3 Saund.
422 a, note 2; 3 Co. Litt. 57 a, n. 1; Ham. N. P. 171; 1 Cruise's Dig. 151, 2; 1
Vin. Ab. 215; 1 Rolle's Ab. 1; Bac. Ab. Action on the case, F; 2 Lois des Batim.
124; Newl. on Contr. 323; 1 T. R. 310, 708; Amb. 619; 6 T. R. 489.
3. When real estate is let, and the tenant covenants to pay the rent during
the term, unless there are proper exceptions to such covenants, and the premises
are afterwards destroyed by fire, during the term, the rent must be paid,
although there be no enjoyment; for the common rule prevails, res perit domino.
The tenant, by the accident, loses his term, the landlord, the residence. Story,
Eq. Jur. §102.
FIREBOTE. Fuel for necessary use; a privilege allowed to tenants to
take necessary wood for fuel.
FIRKIN. A measure of capacity equal to nine gallons. The word firkin
is also used to designate a weight, used for butter and cheese, of fifty-six
FIRM. The persons composing a partnership, taken collectively, are
called the firm. Sometimes this word is used synonymously with partnership.
2. The name of a firm should be distinct from the names of all other firms.
When there is a confusion in this respect, the partners composing one firm May,
in some cases, be made responsible for the debts of another. For example, where
three persons carried on a trade under the firm of King and Company, and two of
those persons, with another, under the same firm, carried on another
partnership; a bill under the firm, and which was drawn on account of the one
partnership, was made the ground of an action of assumpsit against the other.
Lord Kenyon was of opinion that this company was liable; that the partner not
connected with the company that drew the bill, having traded along with the
other partner under that firm, persons taking bills under it, thougb without his
knowledge, had a right to look to him for payment. Peake's N. P. Cas. 80; and
see 7 East, R. 210; 2 Bell's Com. 670, 6th ed.; 3 Mart. N. S. 39. But it would
seem, 1st. That any act distinctly indicating credit to be given to one of the
partnerships, will fix the election of the creditor to that company; and 2d.
That making a claim on either of the firms, or, when they are insolvent, on
either of the estates, will have the same effect.
3. When the style of the firm has been agreed upon, for example, John Doe and
Company, the partners who sign the name of the firm are required to use such
name in the style adopted, and a departure from it may have the double effect of
rendering the individual partner who signs it, personally liable not only to
third persons, but to his co-partners; Story, Partn. §102, 202 and it will be a
breach of the agreement, if the partner sign his own name, and add, "for himself
and partners." Colly. Partn. B. 2, c. 2, §2; 2 Jac. & Walk. 266.
4. As a general rule a firm will be bound by the acts of one of the partners
in the course of their trade and business, and will be discharged by
transactions with a single partner. For example, the payment or satisfaction of
a debt by a partner, is a satisfaction and payment by them all; and a release to
one partner, is in release to them all. Go. Litt. 232 n; 6 T. R. 525. Vide
5. It not unfrequently happens that the name of the firm is the name of only
one of the partners, and that such partner does business in his own name on his
private or separate account. In such case, if the contract be entered into for
the firm, and there is express or implied proof of that fact, the partnership
will be bound by it; but when there is no such proof, the presumption will be
that the debt was contracted by the partner on his own separate account, and the
firm will not be responsible. Story on Part. §139; Colly. on Partn. Book 3, c.
1, §2; 17 Serg. & Rawle, 165; 5 Mason, 176; 5 Peters, 529; 9 Pick. 274; 2
Bouv. Inst. n. 1442, et seq.
FIRMAN. A passport g ranted by the Great Mogul, to captains of foreign
vessels, to trade within the territories over which he has jurisdiction; a
FIRST PURCHASER. In the English law of descent, the first purchaser
was he who first acquired an estate in a family, which still owns it. A purchase
of this kind signifies any mode of acquiring an estate, except, by descent. 2
BI; Com. 220.
FISC, civil law. The treasury of a prince. The public treasury. Hence
to confiscate a thing, is to appropriate it to the fisc. Paillet, Droit Public,
21, n, says that fiscus, in the Roman law, signified the treasure of the prince,
and aerarium, the treasure of the state. But this distinction was not observed
in France. See Law 10, ff. De jure Fisci.
FISCAL. Belonging to the fisc, or public treasury.
FISH An animal which inhabits the water, breathes by the means of
gills, and swims by the aid of fins, and is oviparous.
2. Fishes in rivers and in the sea, are considered as animals ferae naturae,
and consequently no one has any property in them until they have been captured;
and, like other wild animals, if having been taken, they escape and. regain
their liberty, the captor loses his property in them. Vide Ferae Naturae. The
owner of a fishery in the lower part of a stream cannot construct any
contrivance by which to obstruct the passage of fish up the stream. 5 Pick. R.
FISHERY, estates. A place prepared for catching fish with nets or
hooks. This term is commonly applied to the place of drawing a seine, or net. 1
Whart. R. 131, 2.
2. The right of fishery is to be considered as to tide or navigable waters,
and to rivers not navigable. A river where the tide ebbs and flows is considered
an arm of the sea. By the common law of England every navigable river within the
realm as far as the sea ebbs and flows is deemed a royal river, and the
fisheries therein as belonging to the crown by prerogative, yet capable of being
granted to a subject to be held or disposed of as private property. The profit
of such fisheries, however, when retained by the crown, is not commonly taken
and appropriated by the king, unless of extraordinary value, but left free to
all the people. Dav. Rep. 155; 7 Co. 16, a: Plowd, 154, a. Within the tide
waters of navigable rivers in some of the United States, private or several
fisheries were established, during the colonial state, and are still held and
enjoyed as such, as in the Delaware. 1 Whart. 145, 5; 1 Baldw. Rep. 76. On the
high seas the right of fishing jure gentium is common to all persons, as a
general rule. In. rivers, not navigable, that is, where there is no flux or
reflux of the tide, the right of fishing is incident to the owner of the soil,
over which the water passes, and to the riparian proprietors, when a stream is
owned by two or more. 6 Cowen's R. 369; 5 Mason's R. 191; 4 Pick. R. 145; 5
Pick. R. 199. The rule, that the right of fishery, within his territorial
limits, belongs exclusively to the riparian owner, extends alike to great and
small streams. The owners of farms adjoining the Connecticut river, above the
flowing of the tide, have the exclusive right of fishing opposite their farms,
to the middle of the river although the public have an easement in the river as
a public highway, for passing and repassing with every kind of water craft. 2
Conn. R. 481. The right of fishery may exist, not only in the owner of the soil
or the riparian proprietor, but also in another who has acquired it by grant or
otherwise. Co. Litt. l22 a, n. 7; Schul. Aq. R. 40 41; Ang. W. C. 184; sed vide
2 Salk. 637.
3. Fisheries have been divided into: 1. Several fisheries. A several fishery
is one to which the party claiming it has the right of fishing, independently of
all others, as that no person can have a coextensive right with him in the
object claimed, but a partial and independent right in another, or a limited
liberty, does not derogate from the right of the owner. 5 Burr. 2814. A several
fishery, as its name imports, is an exclusive property; this, however, is not to
be understood as depriving the territorial owner of his right to a several
fishery, when he grants to another person permission to fish; for he would
continue to be the several proprietor, although he should suffer a stranger to
hold a coextensive right with himself. Woolr. on Wat. 96.
4. - 2. Free fisheries. A free fishery is said to be a franchise in the hands
of a subject, existing by grant or prescription, distinct from an ownership in
the soil. It is an exclusive right, and applies to a public navigable river,
without any right in the soil. 3 Kent, Com. 329. Mr. Woolrych says, that
sometimes a free fishery is confounded with a several, sometimes it is said to
be synonymous with common, and again treated as distinct from either. Law of
Waters, &c. 97.
5. - 3. Common of Fishery. A common of fishery is not an exclusive right, but
one enjoyed in common with certain other persons. 3 Kent, Com. 329. A
distinction has been made between a common fishery, (commune piscarium,) which
may mean for all mankind, as in the sea, and a common of fishery, (communium
piscariae,) which is a right, in common with certain other persons, in a
particular stream. 8 Taunt. R. 183. Mr. Angell seems to think that common of
fishery and free fishery, are convertible terms, Law of Water Courses, c. 6., s.
6. These distinctions in relation to several, free, and common of, fishery,
are not strongly marked, and the lines are sometimes scarcely perceptible.
"Instead of going into the black letter books, to learn what was a fishery, and
a free fishery, and a several fishery," says Huston, J., "I am disposed to
regard our own acts, even though differing, from old feudal times." 1 Whart. R.
132. See 14 Mus. R. 488; 2 Bl. Com. 39, 40; 7 Pick. R. 79. Vide, generally, Ang.
Wat. Co.; Index, h. t; Woolr. on Wat. Index, h. t; Schul. Aq. R. Index, h. t; 2
Rill. Ab. ch. 18, p. 1,63; Dane's Ab. h. t; Bac. Ab. Prerogative, B 3; 12 John.
R. 425; 14 John. R. 255 14 Wend. R. 42; 10 Mass., R. 212; 13 Mass. R. 477; 20
John. R. 98; 2 John. It. 170; 6 Cowen, R. 369; 1 Wend. R. 237; 3 Greenl. R. 269;
3 N. H. Rep. 321; 1 Pick. R. 180; 2 Conn. R. 481; 1 Halst. 1; 5 Harr. and Johns.
195; 4 Mass. R. 527; and the articles Arm of the sea; Creek; Navigable River;
TO FIX. To render liable.
2. This term is applied to the condition of special bail; when the plaintiff
has issued a ca. sa. which has been returned by the sheriff, non est, the bail
are said to be fixed, unless the defendant be surrendered within the time
allowed ex gratia, by the practice of the court. 5 Binn. R. 332; Coxe, R. 110;
12 Wheat. R. 604; 4 John. R. 407; 1 Caines, R. 588. The defendant's death after
the return is no excuse for not surrendering him during the time allowed ex
gratia. See Act of God; Death. In New Hampshire, 1 N. H. Rep. 472, and
Massachusetts, 2 Mass. R. 485, the bail are not fixed until judgment is obtained
against them on a scire facias, or unless the defendant die after, the return of
non est or) the execution against him. In North Carolina, the bail are not fixed
till judgment against them. 3 Dev. R. 155. When the bail are fixed, they are
FIXTURES, property. Personal chattels annexed to land, and which may
be afterwards severed and removed by the party who has annexed them, or his
personal representative, against the will of the owner of the freehold.
2. Questions frequently arise as to whether fixtures are to be considered
real estate, or a part of the freehold; or whether they are to be treated as
personal property. To decide these, it is proper to consider the mode of
annexation, the object and customary use of the thing, and the character of the
3. - 1. The annexation may be actual or constructive; 1st. By actual
connexation or annexation is understood every mode by which a chattel can be
joined or united to the freehold. The article must not however be laid upon the
ground; it must be fastened, fixed or set into the land, or into some such
erection as is unquestionably a part of the realty. Bull. N. P. 34; 8 East, R.
38; 9 East, R. 215; 1 Tauut. 21; Pothier, Traite des Choses, §1. Looks, iron
stoves set in brick-work, posts, and window blinds, afford examples of actual
annexation. See 5 Rayw. 109; 20 John. 29; 1 Harr. and John. 289; a M'chrd, 553;
9 Conn. 63; 1 Miss. 508, 620; 7 Mass. 432; 15 159; 3 Stew. 314. 2d. Some things
have been held to be parcel of the realty, which are not in a real sense
annexed, fixed, or fastened to the freehold; for example, deeds or chattels
which relate to the title of the, inheritance, go to the heir; Shep. Touch. 469;
but loose, movable machinery, not attached nor affixed, which is used in
prosecuting any business to which the freehold is adapted, is not considered as
part of the real estate, nor as an appurtenance to it. 12 New H. Rep. 205. See,
however, 2 Watts,& S. 116, 390. It is also laid down that deer in a park,
fish in a pond, and doves in a dove-house, go to the heir and not to the
executor, being with keys and heir-looms, constructively annexed to the
inheritance. Shepb. Touchs. 90; Pothier, Traite des Choses, §1.
4. - 2. The general rule is, that fixtures once annexed to the freehold,
become a part of the realty. But to this rule there are exceptions. These are,
1st. Where there is a manifest intention to use the fixtures in some employment
distinct from that of the occupier of the real estate. 2d. Where it has been
annexed for the purpose. of carrying on a trade; 3 East, 88; 4 Watts, 330; but
the distinction between fixtures for trade and those for agriculture does not in
the United States, seem to have been generally admitted to prevail. 8 Mass. R.
411; 16 Mass. R. 449; 4 Pick. R. 311; and set, 2 Peter's Rep. 137. The fact that
it was put up for the purposes of trade indicates an intention that the thing
should not become a part of the freehold. See 1 H. B]. 260. But if there be a
clear intention that the thing should be annexed to the realty, its being used
for the purposes of trade would not perhaps bring the case within one of the
exceptions. 1 H. BI, 260.
5. - 3. There is a difference as to what fixtures may or may not be removed,
as the parties claiming them stand in one relation or another. These classes of
persons will be separately considered.
6. - lst. When the question as to fixtures arises between the executor and
the heir. The rule, as between these persons has retained much of its original
strictness, that the fixtures belong to the real estate, or the heir i but if
the ancestor manifested an intention, which is to be inferred from
circumstances, that the things affixed should be considered as personally, they
must be so considered, and will belong to the executor. See Bac. Abr. Executors
and Administrators; 2 Str. 1141; 1 P. Wms. 94 Bull. N. P. 34.
7. 2d. As between vendor and vendee. The rule is as strict between these
persons as between the executor and the heir; and fixtures erected by the vendor
for the purpose of trade and manufactures, as pot-ash kettles for manufacturing
ashes, pass to the vendee of the land. 6 Cowen, R. 663; 20 Johns. R. 29. Between
mortgagor and mortgagee, the rule seems to be the same as that between vendor
and vendee. Amos & F. on Fixt. 188; 1 5 Mass. R. 1 5 9; 1 Atk. 477 16 Verm.
124; 12 N. H. Rep. 205.
8. - 3d. Between devisee and executor. On a devise of real estate, things
permanently annexed to the realty at the time of the testator's death, will pass
to the devisee. His right to fixtures will be similar, to that of the vendee. 2
Barn. & Cresw. 80.
9. - 4th. Between landlord and tenant for years. The ancient rule is relaxed,
and the right of removal of fixtures by the tenant is said to be very extensive.
3 East, 38. But his right of removal is held to depend rather upon the question
whether the estate will be left in the condition in which he took it. 4 Pick. R.
10. - 5th. In cases between tenants for life or their executors and the
remainder-men or reversioners, the right to sever fixtures seems to be the same
as that of the tenant for years. It has been held that the steam engines erected
in a colliery, by a tenant for life, should belong to the executor and not go to
the remainder-man. 3 Atk. R. 1 3.
11. - 6th. In a case between the landlord and a tenant at will, there seems
to be no reason why the same privilege of removing fixtures should not be
allowed. 4 Pick. R. 511; 5 Pick. R. 487.
12. The time for exercising the right of removal of fixtures is a matter of
importance a tenant for years may remove them at any time before he gives up the
possession of the premises, although it should be after his term has expired,
and he is holding over. 1 Barn. & Cres. 79, 2 East, 88. Tenants for life or
at will, having uncertain, interests in the land, may, after the determination
of their estates, not occasioned by their own faults, have a reasonable time
within which to remove their fixtures. Hence their right to bring an action for
them. 3 Atk. 13. In case of their death the right passes to their
representatives. See, generally, Vin. Abr. Landlord and Tenant, A; Bac. Abr.
Executors, &c. H 3; Com. Dig. Biens, B and C; 2 Chitty's Bl. 281, n. 23
Pothier, Traite des Choses; 4 Co. 63, 64 Co. Litt. 53, a, and note 5, by Hargr.;
Moore, 177; Hob. 234; 3 Salk. 368; 1 P. Wins. 94; 1 Atk. 553; 2 Vern. 508; 3
Atk. 13; 1 H. Bl. 259, n Ambl. 113; 2 Str. 1141; 3 Esp. 11; 2 East, 88; 3 East,
38; 9 East, 215; 3 Johns. R. 468; 7 Mass. 432; 6 Cowen, 665; 2 Kent, Com. 280;
Ham., Part. 182; Jurist, No. 19, p. 53; Arch. L. & T. 359; Bouv. Inst.
Index, h. t.