Page:The American Cyclopædia (1879) Volume VII.djvu/255

 FIXTURE FLAG 247 favor of what are sometimes called trade fix- tures ; by which is meant all those additions which the tenant of a house or land makes for the purpose of carrying on his trade or busi- ness. It cannot now be denied that a very wide power of removal has been allowed to tenants in cases of this kind. To illustrate this by in- stances : it has been adjudged that a tenant might take away (having put them on the land for purposes of trade or manufacture) furnaces, iron backs to chimneys, grates, pumps, vats, cisterns, coppers, tubs, blinds, verandas, fire engines, steam and gas machinery, or even sheds, shops, and other buildings, and the like, even when these things are built into brick walls or rooms, or set on stone or brick foun- dations. Indeed, we doubt whether the courts of the United States would now stop short of saying that any implements or instruments of trade may be taken away by an outgoing ten- ant, if he can remove them and restore the premises substantially to their original condi- tion. Not long after the relaxation in favor of trade, it was admitted by the courts that many things might be taken away by an outgoing tenant which he had put up and fastened to the house, either for mere ornament or for domestic convenience. Under this head are now included a great variety of things, such as mirrors, marble slabs and chimneypieces, window blinds, doors, windows, baths, gas pipes and lights, stoves, fire grates, and ranges. It is difficult to draw an exact line here, but it must be said that the law is not so liberal in permitting things of orna- ment or convenience to be removed as things of trade ; and the rule is more strictly applied, that the premises are not to be disfigured or injured by the removal. There are certain things about which the adjudication is as yet conflicting, such as trees planted out, conservatories, hot- houses, and other structures for gardening. Here we should say that a nurseryman who put these things up for trade might certainly remove them, on the same condition of putting the premises in good order as before. But a mere tenant for occupation, who had put them on the land for his own enjoyment, might be obliged to leave them, although we incline to think that he would be permitted to take them away, leaving, of course, the premises wholly unimpaired by the removal. The same thing will be a fixture as to some persons, but not as to others. Thus a man who sells a house most certainly sells with it, and therefore cannot take away from the buyer, very many things which an outgoing tenant who put them there may remove when he goes. Here the law, instead of being liberal, professes to be strict; and the seller would be permitted to claim and sever from the land only those things which were evidently as free from all attach- ment to it as mere articles of furniture. And if he had fastened any things down, so as to give them the appearance of being a part of the house, it might be doubted whether he would be permitted to remove them. The same strict rule would be applied as between the heir who takes the land and the executor or administra- tor who takes the personals ; and so it would be between lessor and lessee or mortgageor and mortgagee. Indeed, it may be said, in general, that in the matter of fixtures the law is ex- tremely liberal as to the right of outgoing ten- ants to remove things of trade, and nearly as much so as to the same persons in respect to things of convenience or ornament; but very strict as to any disposition made of the land by the owner of it. In these rules, it is supposed, the law gives effect to the actual intent of the party attaching the article to the land ; the owner being supposed to intend it to remain, because at the time he can generally have no interest in having it considered a severable chattel, while the tenant in making a similar annexation may be supposed to have his own interest in view, which could only be subserved by retaining the ownership in himself instead of making the thing annexed a part of the landlord's estate. The general rule is that a tenant must remove during the term all he has a right to take away; and whatever he does not remove he is considered as having intended as n permanent fixture, though if he removes them before finally surrendering possession it will probably be sufficient, and a tenant at will or other tenant whose lease is determined by the will of the landlord, or by some other event unexpectedly, would be entitled to a rea- sonable time in which to exercise this right. It is common and very prudent to provide in leases for the removal of articles which the tenant expects to put up and take away. FLACIUS (originally VLACICH), Matthias, sur- named ILLYKICUS, a German Protestant theo- logian, born at Albona, Istria, about 1520, died in Frankfort in 1575. He was induced to abandon his original intention of entering a convent, and to visit the German universi- ties. At Wittenberg he heard Luther and Melanchthon, adopted their opinions, and was appointed professor of Hebrew. After the death of Luther he resisted the formulary known as the Interim, opposed the conciliatory measures of Melanchthon, and established him- self at Magdeburg at the head of a party of rigid Lutherans. In 1558 he was appointed professor of theology in the newly founded university of Jena, and engaged in a violent dispute with Strigel concerning hereditary sin and the synergetic power of the human will, which resulted in his being deposed. He re- tired to Ratisbon, and afterward preached in several German cities. He was one of the most prominent of the reformers, and besides producing numerous polemical writings, dis- tinguished for their severity, was the origina- tor and one of the principal authors of the fa- mous "Centuries of Magdeburg." FLAG* I. The common name of a large family of the lowest order of plants, known as alga. These alga3 have all flagging habits, like the common seaweeds, which are usually fixed to