Gambar halaman
PDF
ePub

distinctly indicating credit to be given to one of the partnerships, will fix the election of the creditor to that company; and, 2dly, that making a claim on either of the firms, or, when they are insolvent, on either of the estates, will have the same effect.

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.

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 a release to them all. Co. Litt. 232 a; 6 T. R. 525. Vide Partner; Partnership.

FISC, civil law. The treasury of a prince. The public treasury. Hence to confiscate a thing, is to appropriate it to the fixe

FISCAL, what belongs to the fisc, or public treasury.

FISH, an animal which inhabits the water exclusively. Fishes in rivers and in the sea are animals fiera nature, 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 Para Natura. The

owner of a fishery in the lower part of the stream cannot construct any contrivance by which to obstruct the passage of fish up the stream. 5 Pick. R. 199.

FISHERY, estates. A place where fish may be caught. This term seems to be exclusively applied to a place i of drawing a seine, or net. 1 Whart. | R. 131, 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. The people have a common right to fish in all arms of the sea, creeks, coves, and navigable rivers. Iu 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 riperian 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 riperian 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 riperian proprietor, but also in another who has acquired it by grant or otherwise. Co. Litt. 122 a, n. 7; Schul. Aq. R. 40, 41; Ang. W. C. 184; sed vide 2 Salk. 637. 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 co-extensive 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 a co-extensive right with himself. Woolr. on Wat. 96.

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.

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, (commvniam ptscaria,) 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. 3, 4.

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 Mass. 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 Hill. Ab. ch. 18, p. 163; 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. 99; 2 John. R. 170; 6 Cowen, R. 369; 1 Wend. R. 237; 3 Greenl. R. 269; 3 N. H. Rep. MP; 1 Pick. R. 180; 2 Conn. R. 481; 1 Halst. 1 ; 5 Harr. & Johns. 195; 4 Mass. R. 527; and the articles Arm of the sea ; Creek; Navigable River; Tide.

TO FIX. Torender liable. This term is applied to the condition of special bail; when the plaintiff has issued a ca. M, 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 against them, on a scire facias, or unless the defendant die after the return of non est on the execution against him. In North Carolina, the bail are not fixed till judgment against them. 3 Dev. R. 155. When the bail are absolutely fixed, they are responsi ble.

FIXTURES, property, are personal chattels annexed to land, and which may be afterwards severed and removed by the party who has annexed them, or his personal repre-' sentative, against the will of the owner of the freehold. 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 contending parties.

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 some such erection as is unquestionably a part of the realty. Bull. N. P. 34; 3 East, R. 38; 9 East, R. 215; 1 Taunt. 21; Pothier, Traite des choses, § 1. Locks, iron stoves set in brick-work, posts, and window blinds, afford examples of actual annexation. 2dly, 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; 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, Sheph. Touchs. 90; Pothier, Traite dos choses, § 1.

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, 1 st, where there is a manifest intention to use the fixtures in some employment distinct from that of the occupier of the real estate; 2dly, where it has

been annexed for the purpose of carrying on a trade, 3 East, 88; 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 see 2 Peters'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. Bl. 260. But if there was 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. Bl. 260.

3. There is a difference as to what fixtures may or may not be removed, as the parties claiming them stand in one situation or another. These classes of persons will be separately considered.

1st. 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; but if the ancestor manifested an intention, which is to be inferred from circumstances, that the things affixed should be considered as personalty, they must be so considered, and will belong to the executor. See Bac. Abr. Executors and Administrators; 2 Str. 1141; IP. Wms. 94; Bull. N. P. M.

2dly, 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; 15 Mass. R. 159; 1 Atk. 477.

3dly. 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.

4thly. 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 most 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 same condition in which he took it. 4 Pick. R. 311.

5thly. 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 to go to the remainder-man. 3 Atk. R. 13.

flthly, 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.

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 andC; 2 Chitty's Blacks. 281, n. 23; Pothier, Traite de3 choses; 4 Co. 63,64; Co. Lilt. 53, a, and note 5, by Hargr.; Moore, 177; Hob. 234; 3 Salk. 368; 1 P. Wms. 94; 1 Atk. 553; 2 Vern. 508; 3 Atk. 13; I H. Bl. 259, n; Ambl. 113 ; 2 Sir. 1141; 3 Esp. 11; 2 East, 88; 3 East, 3S; 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.

FLAG OF THE UNITED STATES. By the act entitled, "An act to establish the flag of the United States," passed April 4, 1818, 3 Story's L. U. S., 1667, it is enacted—

§ 1. That from and after the fourth day of July next, the flag of the United States be thirteen horizontal stripes, alternate red and white: that the union be twenty stars, white in a blue field.

§ 2. That, on the admission of every new state into the Union, one star be added to the union of the flag; and that such addition shall take effect on the fourth day of July then next succeeding such admission.

FLEET, punishment, Engl, law, a place of running water, where the tide or float comes up. A prison in London so called from a river or ditch which was formerly there, on the side of which it stood.

FLETA. The title of an ancient law-book, supposed to have been written by a judge who was confined in the Fleet prison. It is written in Latin, and is divided into six books.

FLIGHT, crim. law, is the evading the course of justice, by a man's voluntarily withdrawing himself. 4 Bl. Com. 387. Vide Fugitivefrom justice.

FLORIDA. The name of one of the territorities of the United States of America. It was purchased from Spain by treaty between the United States and Spain, executed at Washington on the twenty-second day of February, in the year one thousand eight hundred and nineteen. Congress established a temporary government for East and West Florida by the act of March 3, 1819, 3 Story's L. U. S. 1745; and by the act of March 30, 18^2, lb. 1828, it is enacted, that all the territory ceded by Spain to the United States, known by the name of East and West Florida, shall constitute a territory of the United States.

FLORIN, comm. law, a denomination of money, of the United Netherlands. It is computed in the ad valorem duty upon goods, &c. at the rate of forty cents. Act of March 2, 1799, s. 61, 1 Story's L. U. S. 626. Vide Foreign Coins.

FLOTSAM or FLOTSAN, a name for the goods which float upon the sea when a ship is sunk, in distinction from Jetsam, (q. v.) and Legan, (q. v.) Bract. lib. 2, c. 5; 5 Co. 106; Com. Dig Wreck (A.); Bac. Ab. Court of Admiralty, B.

F03TICIDE, med. jur. Recently this term has been applied to designate the act by which criminal abortion is produced. 1 Beck's Med. Jur. 288. See Infanticide; Prolicide.

FCETUS, med. jur., is the unborn child. The name of embryo is sometimes given to it, but although the terms are occasionally used indiscriminately, the latter is more frequently employed to designate the state of an unborn child during the first three months after conception, and by some until quickening. A foetus is sometimes described by the homely phrase of infant in ventre sa mere. It is sometimes of great importance, particularly in criminal law, to ascertain the age

of a foetus or how far it has progressed towards maturity. There are certain signs which furnish evidence on this subject, the size and weight and the formation of certain parts, as the cartilages, the bones, &c, are the principal. These are not always the same, much of course must depend upon the constitution and health of the mother, and other circumstances which have an influence on the foetus. The average length and weight of the foetus at different periods of gestation as deduced by Doctor Beck from various observers, and as found by Maygrier, is here given.

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
« SebelumnyaLanjutkan »