F, punishment, English law. Formerly felons were branded and
marked with a hot iron, with this letter, on being admitted to the benefit of
FACIO UT DES. A species of contract in the civil law, which
occurs when a man agrees to perform anything for a price, either specifically
mentioned or left to the determination of the law to set a value on it. As when
a servant hires himself to his master for certain wages or an agreed sum of
money. 2 Bl. Com. 445.
FACIO UT FACIAS. A species of contract in the civil law, which
occurs when I agree with a man to do his work for him if he will do mine for
me. Or if two persons agree to marry together, or to do any other positive acts
on both sides. Or it may be to forbear on one side in consideration of
something done on the other. 2 Bl. Com. 444.
FACT. An action; a thing done. It is either simple or
2. A fact is simple when it expresses a purely material act unconnected
with any moral qualification; for example, to say Peter went into his house, is
to express a simple fact. A compound fact contains the materiality of the act,
and the qualification which that act has in its connexion with morals and, the
law. To say, then, that Peter has stolen a horse, is to express a compound
fact; for the fact of stealing, expresses at the same time, the material fact
of taking the horse, and of taking him with the guilty intention of depriving
the owner of his property and appropriating it to his own use; which is a
violation of the law of property.
3. Fact. is also put in opposition to law; in every case which has to be
tried there are facts to be established, and the law which bears on those
4. Facts are also to be considered as material or immaterial. Material
facts are those which are essential to the right of action or defence, and
therefore of the substance of the one or the other - these must always be
proved; or immaterial, which are those not essential to the cause of action
these need not be proved. 3 Bouv. Inst. n. 3150-53.
5. Facts are generally determined by a jury,; but there are many facts,
which, not being the principal matters in issue, may be decided by the court;
such, for example, whether a subpoena has or has not been served; whether a
party has or has not been summoned, &c. As to pleading material facts, see
Gould. Pl. c. 3, s. 28. As to quality of facts proved, see 3 Bouv. Inst. n.
3150. Vide Eng. Ece. R. 401-2, and the article Circumstances.
FACTO. In fact, in contradistinction to the lawfulness of the
thing; it is applied to anything actually done. Vide Expostfacto.
FACTOR, contracts. An agent employed to sell goods or
merchandise consigned or delivered to him by, or for his principal, for a
compensation commonly called factorage or commission. Paley on Ag. 13; 1
Liverin. on Ag. 68; Story on Ag. §33; Com. Dig. Merchant, B; Mal. Lex
Merc. 81; Beawes, Lex Merc. 44; 3 Chit. Com. Law, 193; 2 Kent, Com. 622, note
d, 3d. ed.; 1 Bell's Com. 385, §408, 409 2 B. & Ald. 143. He is also
called a commission merchaut, or consignee.
2. When he resides in the same state or country with his principal, he
is called a home factor; and a foreign factor when he resides in a different
state or country. 3 Chit. Com. Law, 193; 1 T. R. 112; 4 M. & S. 576; 1
Bell's Com. 289, §313.
3. When the agent accompanies the ship, taking a cargo aboard, and it is
consigned to him for sale, and he is to purchase a return cargo out of the
proceeds, such agent is properly called a factor; he is, however, usually known
by the name of a supercargo. Beawes, Lex More. 44, 47; Liverm. on Ag. 69, 70; 1
Domat, b. 1, t. 16, §3, art. 2.
4. A factor differs. from a broker, in some important particulars,
namely; he may buy and sell for his principal in his own name, as well as in
the name of his principal; on the contrary, a broker acting as such should buy
and sell in the name of his principal. 3 Chit. Com. Law, 193, 2101 541; 2 B.
& Ald. 143, 148; 8 Kent, Com. 622, note d, 3d. ed. Again, a factor is
entrusted with the possession, management, disposal, and control of the goods
to be bought and sold, and has a special property and a lien on them; the
broker, on the contrary, has usually no such possession, management, control,
or disposal of the goods, nor any such special property nor lien. Paley on Ag.
13, Lloyd's ed; 1 Bell's Com. 385.
5. Before proceeding further it will be proper to consider the
difference which exists in the liability of a home or domestic factor and a
6 . By the usages of trade, or intendment of law, when domestic factors
are employed in the ordinary business of buying and selling goods, it is
presumed that a reciprocal credit between, the principal and the agent and
third persons has been given. When a purchase has been made by such a factor,
he, as well as his principal, is deemed liable for the debt; and in case of a
sale, the buyer is responsible both to the factor and principal for the
purchase money; but this presumption may be rebutted by proof of exclusive
credit. Story, Ag. §§267, 291, 293; Paley, Ag. 243, 371; 9 B. &
C. 78; 15 East, R. 62.
7. Foreign factors, or those acting for principals residing in a foreign
country, are held personally liable upon all contracts made by them for their
employers, whether they describe themselves in the contract as agents or not.
In such cases, the presumption is, that the credit is given exclusively to the
factor. But this presumption may be rebutted by a proof of a contrary
agreement. Story, Ag. §268; Paley, Ag. 248, 373; Bull. N. P. 130; Smith,
Merc. Law, 66; 2 Liverm. Ag. 249; 1 B. & P. 398; 15 East, R. 62; 9 B. &
8. A factor is liable to duties, which will be first considered; and,
afterwards, a statement of his rights will be made.
9. - 1. His duties. He is required to use reasonable skill and ordinary
diligence in his vocation; in general, he has a right to sell the goods, but he
cannot pawn them. The latter, branch of this rule, however, is altered by
statute in some of the states. See Act of Penna. April 14, 1834, §3, 4, 6,
postea, 20. He is bound to obey his instructions, but when he has none, he may
and ought to act according to the general usages of trade sell for cash, when
that is usual, or give credit on sales, when that is customary. He is bound to
render a just account to his principal, and to pay him the moneys he may
receive for him.
10. - 2. His rights. He has the right to sell the goods in his own name;
and, when untrammeled by instructions, he may sell them at such times and for
such prices, as, in the exercise of a just discretion, he may think best for
his employer. 3 Man. Gran. & Scott, 380. He is, for many purposes, between
himself and third persons, to be considered as the owner of the goods. He may,
therefore, recover the price of goods sold by him, in his own name, and,
consequently, he may receive payment and give receipts, and discharge the
debtgor, unless, indeed, notice has been given by the principal to the debtor
not to pay. He has a lien on the goods for advances made by him, and for his
11. Mr. Bell, in his Commentaries, vol. 1, page 265, 5th ed., lays down
the following rules with regard to the rights of the principal, in those cases
in which the goods in the factor's hands have been changed in the course of his
12. - 1. When the factor has sold the goods of his principal, and failed
before the price of the goods has been paid, the principal is the creditor,
and. entitled to a preference over the creditors of the factor. Cook's B. L.
4th ed. p. 400.
13. - 2. When bills have been taken for the price, and are still it the
factor's hands, undiscounted at his failure; or where goods have been taken in
return for those sold; the principal is entitled to them, as forming no part of
the divisible fund. Willes, R. 400.
14. - 3. When the price has been paid in money, coin, bank notes,
&c., it remains the property of the principal, if kept distinct as his. 5
T. la. 277; 2 Burr. 1369 5 Ves. Jr. 169; 2 Mont. B. L. 233, notes.
15. - 4. When a bill received for goods, or placed with the factor, has
been discounted, or when money coming into his hands has been paid away, the
endorsee of the bill, or the person receiving the money, will be free from all
claim at the instance of the principal. Vide 1 B. & P. 539, 648.
16. - 5. When the factor sinks the name of the principal entirely; as,
where he is employed to sell goods, and receives a del credere commission, for
which he engages to guarantee the payment to the principal, it is not the
practice to communicate the names of the purchasers to the principal, except
where the factor fails. Under these circumstances, the following points have
the principal is the creditor of the buyer, and has a direct action against him
for the price. Cook's B. L. 400; and vide Bull. N. P. 42 2 Stra. 1 1 82. But
persons contracting with the factor in his own name, and bona fide, are
entitled to set off the factor's debt to them. 7 T. R. 360. 2. Where the factor
is entrusted with the money or property of his principal to buy stock, bills,
and the like, and misapplies it, the produce will be the principal's, if
clearly distinguishable. 8 M. & S. 562.
17. - 6. When the factor purchases goods for the behalf of his
principal, but on his own general, current account, without mention of the
principal, the goods vest in the factor, and the principal has only an
obligation against the factor's estate. But when the factor, after purchasing
the goods, writes to his principal that he has bought such a quantity of goods
in consequence of his order, and that they are lying in his warehouse, or
elsewhere, the property would seem to be vested in the principal.
18. It may therefore be laid down as a general rule, that when the
property remitted by the principal, or acquired for him by his order, is found
distinguishable in the hands of the factor, capable of being traced by a clear
and connected chain of identity, in no one link of it degenerating from a
specific trust into a general debt, the creditors of the factor, who has become
bankrupt, have no right to the specific property. Much discrimination is
requisite in the application of this doctrine, as may be seen by the case of Ex
parte Sayers, 5 Ves. Jr. 169.
19. A factor has no right to barter the goods of his principal, nor to
pledge them for the purpose of raising money for himself, or to secure a debt
he may owe. See ante, 9-1. But he may pledge them for advances made to his
principal, or for the purpose of raising money for him, or in order to
reimburse himself to the amount of his own lien. 2 Kent, Com. 3d. ed:, 625 to
628; 4 John. R., 103; Story on Bailm. §325, 326, 327. Another exception to
the general rule that a factor cannot pledge the goods of his principal, is,
that he may raise money b pledging the goods, for the payment of 'duties, or
any other charge or purpose allowed or justified by the usages of trade. 2
Gall. 13; 6 Serg. & Rawle, 386; Paley on Ag. 217; 3 Esp. R. 182.
20. The legislature of Pennsylvania, by an act entitled " An act for the
amendment of the law relating to factors passed April 14, 1834, have made the
following provisions. This act was prepared by the persons appointed to revise
the civil code of that state, and was adopted without alteration by the
legislature. It is here inserted, with a belief that it will be found useful to
the commercial lawyer of the other states.
21. - §1. Whenever any person entrusted with merchandise, and
having authority to sell or consign the same, shall ship, or otherwise transmit
tile same to any other person, such other person shall have a lien thereon.
22. - I. For any money advanced, or negotiable security given by him on
the faith of such consignment, to or for the use of the person in whose name
such merchandise was shipped or transmitted.
23. - II. For any money or negotiable security, received for the use of
such consignee, by the person, in whose name such merchandise was shipped or
24.- §2. But such lien shall not exist for any of the purposes
aforesaid, if such consignee shall have notice by the bill of lading, or
otherwise,bef ore the time of such advance or receipt, that the person in whose
name such merchandise was shipped or transmitted, is not the actual owner
25. - §3. Whenever any consignee or factor, having possession of
merchandise, with authority to sell the same, or having possession of any bill
of lading, permit, certificate, receipt, or order, for the delivery of
merchandise, with the like authority, shall deposit or pledge such merchandise,
or any part thereof, with any other person, as a security for any money
advanced, or negotiable instrument given by him on the faith thereof; such
other person shall acquire, by virtue of such contract, the same interest in,
and authority over, the said merchandise, as, he would have acquired thereby if
such consignee or factor had been the actual owner thereof. Provided, That such
person shall not have notice by such document or otherwise, before the time of
such advance or receipt, that the holder of such merchandise or document is not
the actual owner of such merchandise.
26. - §4. If any person shall accept or take such merchandise or
document from any such consignee or factor, in deposit or pledge for any debt
or demand previously due by, or existing against, such consignee or factor, and
without notice as aforesaid, and if any person shall accept or take such
merchandise or document from any such consignee or factor, in deposit or
pledge, without notice or knowledge that the person making such deposit or
pledge, is a consignee or factor only, in every such case the person accepting
or taking such. merchandise or document in deposit or pledge, shall acquire the
same right and interest in such merchandise as was possessed, or could have
been enforced, by such consignee or factor against his principal at the time of
making such deposit or pledge, and further or other right or interest.
27. - §5. Nothing in this act contained shall be construed or
I. To affect any lien which a. consignee or factor may possess at
law, for the expenses and charges attending the shipment, or transmission and
care of merchandise consigned, or otherwise intrusted to him.
28. - II. Nor to prevent the actual owner of merchandise from recovering
the same from such consignee or factor, before the same shall have been
deposited or pledged as aforesaid, or from the assignees or trustees of such
consignee or factor, in the event of his insolvency.
29. - III. Nor to prevent such owner from recovering any merchandise, so
as aforesaid deposited or pledged, upon tender of the money, or of restoration
of any negotiable instrument so advanced, or given to such consignee or factor,
and upon tender of such further sum of money, or of restoration of such other
negotiable instrument, if any, as may have been advanced or given by such
consignee or factor to such owner, or on tender of a sum of money equal to the
amount of such instrument.
30. - IV. Nor to prevent such owner from recovering, from the person
accepting or taking such merchandise in deposit or pledge, any balance or sum.
of money remaining in his hands as the produce of the sale of such merchandise,
after deducting the amount of money or the negotiable instrument so advanced or
given upon the security thereof as aforesaid.
31. - §6. If any consignee or factor shall deposite or pledge any
merchandise or document as aforesaid, consigned or intrusted to him as a
security for any money borrowed, or negotiable instrument received by such
consignee or factor, and shall apply and dispose of the same to his own use, in
violation of good faith, and with intent to defraud the owner of such
merchandise, and if any consignee or factor shall, with the like fraudulent
intent, apply or dispose of, to his own use, any money or negotiable
instrument, raised or acquired by the sale or other disposition of such
merchandise, such consignee or factor shall, in every such case, be deemed
guilty of a misdemeanor, and shall be punished by a fine, not exceeding two
thousand dollars, and by imprisonment, for a term not exceeding five years.
FACTORAGE. The wages or allowances paid to a factor for his
services; it is more usual to call this commissions. 1 Bouv. Inst. n. 1013; 2
Id. n. 1288.
FACTORY, Scotch law. A contract which partakes of a mandate and
locatio ad operandum, and which is in the English and American law books
discussed under the title of Principal and Agent. 1 Bell's Com. 259.
FACTUM. A deed. a man's own act and deed.
2. When a man denies by his plea that he made a deed on which he is
sued, be pleads non estfactum. (q. v.) Vide Deed; Fait.
FACTUM, French law. A memoir which contains summarily the fact
on which a contest has happened, the means on which a party founds his
pretensions, with the refutation of the means of the adverse party. Vide
FACULTY, canon law. A license; an authority. For example, the
ordinary having the disposal of all seats in the nave of a church, may grant
this power, which, when it is delegated, is called a faculty, to another.
2. Faculties are of two kinds; first, when the grant is to a man and
his heirs in gross; second, when it is to a person and his heirs, as
appurtenant to a house which he holds in the parish. 1 T. R. 429, 432; 12 Co.
FACULTY, Scotch law. Equivalent to ability or pow-er. The term
faculty is more properly applied to a power founded on the consent of the party
from whom it springs, and not founded on property. Kames on Eq. 504.
FAILURE. A total defect; an omission; a non-performance. Failure
also signifies a stoppage of payment; as, there has been a failure to-day, some
one has stopped payment.
2. According to the French code of commerce, art. 437, every merchant or
trader who suspends payment is in a state of failure. Vide Bankruptcy;
FAILURE, OF ISSUE. When there is a want of issue to take an
estate limited over by an executory devise.
2. Failure of issue is definite or indefinite. When the precise time for
the failure of issue is fixed by the will, as is the case of a devise to Peter,
but if he dies without issue living at the time of his death, then to another,
this is a failure of issue definite. An indefinite failure of issue is the very
converse or opposite of this, and it signifies a general failure of issue,
whenever it may happen, without fixing any time, or a certain or definite
period, within which it must happen. 2 Bouv. Inst. n. 1849.
FAILURE OF RECORD. The neglect to produce the record after
having pleaded it. When a defendant pleads a matter, and offers to prove it by
the record, and then pleads nul tiel record, a day is given to the defendant to
bring in the record if he fails. to do so, he is said to fail, and there being
a failure of record, the plaintiff is entitled to judgment. Termes de lay Ley.
See the form of entering it; 1 Saund. 92, n. 3.
FAINT PLEADER. A false, fraudulent, or collusory manner of
pleading, to the deception of a third person. 3 E. I., c. 19.
FAIR. A privileged market.
2. In England, fairs are granted by the king's patent.
3. In the United States, fairs are almost unknown. They are recognized
in Alabama; Aik. Dig. 409, note; and in North Carolina, where they are
regulated by statute. 1 N. C. Rev. St. 282. See Domat, Dr. Public, liv. 1, t.
7, s. 3, n. 1.
FAIR-PLAY MEN. About the year 1769, there was a tract of country
in Pennsylvania, situate between Lycoming creek and Pine creek, in which the
proprietaries prohibited the making of surveys, as it was doubtful whether it
had or had not been ceded by the Indians. Although settlements were forbidden,
yet adventurers settled themselves there; being without the pale of ordinary
authorities, the inhabitants annually elected a tribunal, in rotation, of three
of their number, whom they denominated fair-play men, who had authority to
decide all disputes as to boundaries. Their decisions were final, and enforeed
by the whole community en masse. Their decisions are said to have been just and
equitable. 2 Smith's Laws of Pennsylvania 195; Serg. Land Laws, 77. "
FAlR PLEADER. This is the name of a writ given, by the statute
of Marlebridge, 52 H. III., c. ii. Vide Beau Pleader.
FAIT, conveyancing. A deed lawfully executed. Com. Dig . h. t.;
Cunn. Dictl. h. t.
FAITH. Probity; good faith is the very soul of contracts. Faith
also signifies confidence, belief; as, full faith and credit ought to be given
to the acts of a magistrate while acting within his jurisdiction. Vide Bona
FALCIDIAN LAW, civil law, plebiscitum. A statute or law enacted
by the people, made during the reign of Augustus, on the proposition of
Falcidius, who was a tribune in the year of Rome 714.
2. Its principal provision gave power to fathers of families to
bequeath three-fourths of their property, but deprived them of the power to
give away the other fourth, which was to descend to the heir.
3. The same rule, somewhat modified, has been adopted in Louisiana;
"donations inter vivos or mortis causal" says the Civil Code, art. 1480,
"cannot exceed two-thirds of the property of, the disposer, if he leaves at his
decease a legitimate child; one-half, if he leaves two children; and one-third,
if he leaves three, or a greater number."
4. By the common law, the power of the father to give his property is
unlimited. He may bequeath it to his children equally, to, one in preference to
another, or to a stranger, in exclusion of the whole of them. Over his real
estate, his wife has a right of dower, or a similar right given to her by act
of assembly, in, perhaps, all the states.
FALSE Not true; as, false pretences; unjust, unlawful, as, false
imprisonment. This his word, is frequently used in composition.
FALSE IMPRISONMENT. torts. Any intentional detention of the
person of another not authorized by law, is false imprisonment. 1 Bald. 571; 9
N. H. Rep. 491; 2 Brev. R. 157. It is any illegal imprisonment, without any
process whatever, or under color of process wholly illegal, without regard to
the question whether any crime has been committed, or a debt due. 1 Chit. Pr.
48; 5 Verm. 588; 3 Blackf. 46; 3 Wend. 350 5 Wend. 298; 9 John. 117; 1 A. K.
Marsh. 845; Kirby, 65; Hardin 249.
2. The remedy is, in order to be restored to liberty, by writ of habeas
corpus, and to recover damages for the injury, by action of trespass vi et
armis. To punish the wrong done to the public, by the false imprisonment of an
individual, the offender may be indicted. 4 Bl. Com. 218, 219; 2 Burr. 993.
Vide Bac. Ab. Trespass, D 3 Dane's Ab. Index, h. t. Vide 9 N. H. Rep. 491; 2
Brev. R. 157; Malicious Prosecution; Regular and Irregular Process.
FALSE JUDGMENT, Eng. law. The name of a writ which lies when a
false judgment has been given in the county court, court baron, or other courts
not of record. F. N. B. 17, 18 3 Bouv. Inst. n. 3364.
FALSE PRETENCES, criminal law. False representations and
statements, made with a fraudulent design, to obtain " money, goods, wares, and
merchandise-" with intent to cheat. 2 Bouv. Inst. n. 2308.
2. This subject may be considered under the following heads:. 1. The
nature. of the false pretence. 2. What must be obtained. 3. The intent.
3. - 1. When the false pretence is such as to impose upon a person of
ordinary caution, it will doubtless be sufficient. 11 Wend. R. 557. But
although it may be difficult to restrain false pretences to such as an
ordinarily prudent man may avoid, yet it is not every absurd or irrational
pretence which will be sufficient. 2 East, P. C. 828. It is not necessary that
all the pretences should be false, if one of them, per se, is sufficient to
constitute the offence. 14 Wend. 547. And although other circumstances may have
induced the credit, or the delivery of the property, yet it will be sufficient
if the false pretences had such an influence that, without them, the credit
would not have been given, or the property delivered. 11 Wend. R. 557; 14 Wend.
R. 547; 13 Wend. Rep. 87. The false pretences must have been used before the
contract was completed. 14 Wend. Rep. 546; 13 Wend. Rep. 311. In North
Carolina, the cheat must be effected by means of some token or contrivance
adapted to impose on an ordinary mind. 3 Hawks, R. 620; 4 Pick. R. 178.
4. - 2. The wording of the statutes of the several states on this
subject is not the same, as to the acts which are indictable. In Pennsylvania,
the words of the act are, "every person who, with intent to cheat or defraud
another, shall designedly, by color of any false token or writing, or by any
false pretence whatever, obtain from any person any money, personal property or
other valuable, things," &c. In Massachusetts, the intent must be to obtain
"money, goods, wares, merchandise, or other things." Stat. of 1815, c. 136. In
New York, the words are "money, goods, or chattels, or other effects." Under
this statute it has been holden that obtaining a signature to a note; 13 Wend.
R. 87; or an endorsement on a promissory note; 9 Wend. Rep. 190; fell within
the spirit of the statute; and that where credit was obtained by false
pretence, it was also within the statute. 12 John. R. 292.
5. - 3. There must be an intent to cheat or defraud same person. Russ.
& Ry. 317; 1 Stark. Rep. 396. This may be inferred from a false
representation. 13 Wend. R. 87. The intent is all that is requisite; it is not
necessary that the party defrauded should sustain any loss. 11 Wend. R. 18; 1
Carr. & Marsh. 516, 537.
FALSE RETURN. A return made by the sheriff, or other ministerial
officer, to a writ in which is stated a fact contrary to the truth, and
injurious to one of the parties or some one having an interest in it.
2. In this case the officer is liable for damages to the party injured.
.2 Esp. Cas. 475. See Falso retorno brevium.
FALSE TOKEN. A false document or sign of the existence of a
fact, in general used for the purpose of fraud. Vide Token, and 2 Stark. Ev.
FALSEHOOD. A wilful act or declaration contrary to truth. It is
committed either by the wilful act of the party, or by dissimulation, or by
words. It is wilful, for example, when the owner of a thing sells it twice, by
different contracts to different individuals, unknown to them; for in this the
seller must wilfully declare the thing is his own, when he knows that it is not
so. It is committed by dissimulation when a creditor, having an understanding
with his former debtor, sells the land of the latter, although he has been paid
the debt which was due to him.
2. Falsehood by word is committed when a witness swears to what he
knows not to be true. Falsehood is usually attendant on crime. Roscoe, Cr. Ev.
3. A slander must be false to entitle the plaintiff to recover damages.
But whether a libel be true or false the writer or publisher may be indicted
for it. Bul N. P. 9; Selw. N. P. 1047 , note 6; 5 Co. 125; Hawk. B. 1, c. 73,
s. 6. Vide Dig. 48, 10, 31; Id. 22, 6, 2; Code, 9, 22, 20.
4. It is a general rule, that if a witness testifies falsely as to any
one material fact, the whole of his testimony must be rejected but still the
jury may consider whether the wrong statement be of such character, as to
entitle the witness to be believed in other respects. 5 Shepl. R. 267. See
TO FALSIFY, crim. law. To prove a thing to be false; as, " to
falsify a record." Tech. Dict.; Co. Litt. 104 b. To alter or make false a
record. This is punishable at common law. Vide Forgery.
2. By the Act of Congress of April 30, 1790, s. 15, 1 Story's L. U. S.
86, it is enacted, that if any person shall feloniously steal, take away,
alter, falsify, or otherwise avoid, any record, writ, process, or other
proceedings in any of the courts of the United States, by means whereof any
judgment shall be reversed, made void, or not take effect; or if any person
shall acknowledge, or procure to be acknowledged, in any of the courts.
aforesaid, any recognizance, bail, or judgment, in the name or names of any
other person or persons not privy or consenting to the same, every such person,
or persons, on conviction thereof, shall be fined not exceeding five thousand
dollars, or be imprisoned not exceeding seven years, and be whipped not
exceeding thirty-nine stripes'. Provided nevertheless, that this act shall not
extend to the acknowledgment of any judgment or judgments by any attorney or
attorneys, duly admitted, for any person or persons against whom any such
judgment or judgments shall be had or given.
TO FALSIFY, chancery practice. When a bill to open an account
has been filed, the plaintiff is sometimes allowed to surcharge and falsify
such account; and if any thing has been inserted that is a wrong charge, he is
at liberty to show it, and that is a falsification. 2 Ves. 565; 11 Wheat. 237.
See Account stated; Surcharge.
FALSO RETORNO BREVIUM, old English law. The name of a writ which
might have been sued out against a sheriff, for falsely returning writs. Cunn.
FAMILY, domestic relations. In a limited sense it signifies the
father, mother, and children. In a more extensive sense it comprehends all the
individuals who live under the authority of another, and includes the servants
of the family. It is also employed to signify all the relations who descend
from a common ancestor, or who spring from a common root. Louis. Code, art.
3522, No. 16; 9 Ves. 323.
2. In the construction of wills, the word family, when applied to
personal property is synonymous with kindred, or relations. It may,
nevertheless, be confined to particular relations by the context of the will,
or may be enlarged by it, so that the expression may in some cases mean
children, or next of kin, and in others, may even include relations by
marriage. 1 Rop. on Leg. 115 1 Hov. Supp. 365, notes, 6 and 7; Brown v. Higgs;
4 Ves. 708; 2 Ves. jr. 110; 3 East, Rep. 172 5 Ves. 156 1,7 Ves. 255 S. 126.
Vide article Legatee. See Dig. lib. 50, t. 16, 1. 195, s. 2.
FAMILY ARRANGEMENTS. This term has been used to signify an
agreement made between a father and his son, or children; or between brothers,
to dispose of property in a different manner to that, which would otherwise
2. In these cases frequently the mere relation, of the parties will
give effect to bargains otherwise without adequate consideration. 1 Chit. Pr.
67 1 Turn. & Russ. 13.
FAMILY BIBLE. A Bible containing an account of the births,
marriages, and deaths of the members of a family.
2 An entry, by the father, made in a Bible, stating that Peter, his
eldest son, was born in. lawful wedlock of Maria, his wife, at a time
specified, is evidence to prove the legitimacy of Peter. 4 Campb. 401. But the
entry, in order to be evidence, must be an original entry, and, when it is not
so, the loss of the original must be proved before the copy can be received. 6
Serg. Rawle, 135. See 10 Watts, R. 82.
FAMILY EXPENSES. The sum which it costs a man to maintain a
2. Merchants and traders who desire to exhibit the true state of their
affairs in their books, keep an exact account of family expenses, which, in
case of failure, is very important, and at all times proper.
FAMILY MEETINGS. Family councils, or family meetings in
Louisiana, are meetings of at least five relations, or in default of relations
of minors or other persons on whose interest they are called upon to
deliberate, then of the friends of such minors or other persons.
2. The appointment of the members of the family meeting is made by, the
judge. The relations or friends must be selected from among those domiciliated
in the parish in which the meeting is held; the relations are selected
according to their proximity, beginning with the nearest. The relation is
preferred to the connexion in the same degree, and among relations of the same
degree, the eldest is preferred. The under tutor must also be present. 6 N. S.
3. The family meeting is held before a justice of the peace, or notary
public, appointed by the judge for the purpose. It is called for a fixed day
and hour, by citations delivered at least three days before the day appointed
for the purpose.'
4. The members of the family meeting, before commencing their
deliberations, take an oath before the officer before whom the meeting is
held,, to give their advice according to the best of their knowledge, touching
the interests of the person on whom they are called upon to deliberate. The
officer before whom the family meeting is held, must make a particular
process-verbal of the deliberations, cause the members of the family meeting to
sign it, if they know how to sign, he must sign it himself, and deliver a copy
to the parties that they may have it homologated. Civil Code of Louis. B. 1,
tit. 8, c. 1, s. 6, art. 305 to 311; Code Civ. B. 1, tit. 10, c. 2, A. 4.
FAMOSUS LIBELLUS. Among the civilians these words signified that
species of injuria which corresponds nearly to libel or slander.
FANEGA, Spanish law. A measure of land, which is not the same in
every province. Diccionario de la Acad.; 2 White's Coll. 49. In Spanish
America, the fanega consisted of six thousand and four hundred square varas or
yards. 2 White's Coll. 138.
FARE. It signifies a voyage or passage; in its modern
application, it is the money paid for a passage. 1 Bouv. Inst. n. 1036.
FARM, estates. A portion or tract of land, some of which is
cultivated. 2 Binn. 238. In parlance, and for the purpose of description in a
deed, a farm means: a messuage with out-buildings, gardens, orchard, yard, and
land usually occupied with the same for agricultural purposes; Plowd. 195
Touch. 93; 1 Tho. Co. Litt. 208, 209, n. N; but in the English law, and
particularly in a description in a declaration in ejectment, it denotes a
leasehold interest for years in any real property, and means anything which is
held by a person who stands in the relation of tenant to a landlord. 6 T. R.
532; 2 Chit. Pl. 879, n. e.
2. By the conveyance of a farm, will pass a messuage, arable land,
meadow, pasture, wood, &c., belonging to or used with it. 1 Inst. 5, a;
Touch. 93; 4 Cruise, 321; Bro. Grants, 155; Plowd. 167.
3. In a will, the word farm may pass a freehold, if it appear that such
was the intention of the testator. 6 T. R. 345; 9 East, 448. See 6 East, 604,
n; 8 East, 339.
To FARM LET. These words in a lease have the effect of creating
a lease for years. Co. Litt. 45 b; 2 Mod. 250.
FARMER. One who is lessee of a farm. it is said that every
lessee for life or years, although it be but of a small house and land, is
called farmer. This word implies no mystery except it be that of hushandman.
Cunn. Dict. h. t. In common parlance, a farmer is one who cultivates a farm,
whether he be the owner of it or not.
FARO, crim. law. There is a species of game called faro-table,
or faro-bank, which is forbidden by law in many states; and the persons who
keep it for the purpose of playing for money or other valuable thing, may
generally be indicted at common law for a nuisance. 1 Roger's Rec. 66. It is
played with cards in this manner: a pack of cards is displayed on the table so
that the face of each card may be seen by the spectators. The man who keeps the
bank, as it is termed, and who is called the banker, sits by the table with
another pack of cards, and a bag containing money, some of which is displayed,
or sometimes instead of money, chips, or small pieces of ivory or other
substance are used. The parties who play with the banker, are called punters or
pointeurs. Suppose the banker and A, a punter, wish to play for five dollars,
the banker shuffles the pack which he holds in his hand, while A lays his money
intended to be bet, say five dollars, on any card he may choose as aforesaid.
The banker then runs the cards alternately into two piles, one on the right the
other on the left, until he reaches, in the pack, the card corresponding to
that on which A has laid his money. If, in this alternative, the card chosen
comes on the right hand, the banker takes up the money. If on the other, A is
entitled to five dollars from the banker. Several persons are usually engaged
at the same table with the banker. 1 Rog. Rec. 66, note; Encycl. Amer. h.
FARRIER. One who takes upon himself the public employment of
2. Like an innkeeper, a common carrier, and other persons who assume a
public employment, a farrier is bound to serve the public as far as his
employment goes, and an action lies against him for refusing, when a horse is
brought to him at a reasonable time for such purpose, if he refuse; Oliph . on
Horses, 131 and he is liable for the unskilfulness of himself or servant in
performing such work 1 Bl. Com. 431; but not for the malicious act of the
servant in purposely driving a nail into the foot of the horse, with the
intention of laming him. 2 Salk. 440.
FATHER, domestic relations. He by whom a child is begotten.
2. A father is the natural guardian of his children, and his duty by
the natural law consists in maintaining them and educating them during their
infancy, and making a necessary provision for their happiness in life. This
latter, however, is a duty which the law does not enforce.
3. By law, the father is bound to support his children, if of
sufficient ability, even though they have property of their own. 1 Bro. C. C.
387; 4 Mass. R. 97; 2 Mass. R. 415 5 Rawle, 323. But he is not bound, without
some agreement, to pay another for maintaining them; 9 C. & P. 497; nor is
he bound to pay their debts, unless he has authorized them to be contracted. 38
E. C. L. R. 195, n. See 8 Watts, R. 366 1 Craig. & Phil. 317; Bind; Nother;
Parent. This obligation ceases as soon as the child becomes of age, unless he
becomes chargeable to the public. 1 Ld. Ray. 699.
4. The rights of the father are authority over his children, to enforce
all his lawful commands, and to correct with moderation his children for
disobedience. A father may delegate his power over the person of his child to a
tutor or instructor, the better to accomplish the purposes of his education.
This power ceases on the arrival of the child at the age of twenty-one years.
Generally, the father is entitled to the services of his children during their
minority. 4 S. & R. 207; Bouv. Inst. Index, h. t.
FATHER-IN-LAW. In latin, socer, is the father of one's wife, or
of one's hushand.
FATHER. PUTATIVE. A reputed father. Vide Putative father.
FATHOM. A measure of length, equal to six feet. The word is
probably derived from the Teutonic word fad, which signifies the thread or yarn
drawn out in spinning to the length of the arm, before it is run upon the
spindle. Webster; Minsheu. See Ell. Vide Measure.
FATUOUS PERSON. One entirely destitute of reason; is qui omnino
desipit. Ersk. Inst. B. 1, tit. 7, s. 48.
FAUBOURG. A district or part of a town adjoinng the principal
city; as, a faubourg of New Orleans. 18 Lo. R. 286.
FAULT, contracts, civil law. An improper act or omission, which
arises from ignorance, carelessness, or negligence. The act or omission must
not have been meditated, and must have caused some injury to another. Lec.
Elcm. §783. See Dolus, Negligence. 1 Miles' Rep. 40.
2. - 1. Faults or negligence are usually divided into, gross, ordinary,
and slight: 1. Gross fault or neglect, consists in not observing that care
towards others, which a man the least attentive, usually takes of his own
affairs. Such fault may, in some cases, afford a presumption of fraud, and in
very gross cases it approaches so near, as to be almost undistinguishable from
it, especially when the facts seem hardly consistent with an honest intention.
But there may be a gross fault without fraud. 2 Str. 1099; Story, Bailm.
§18-22; Toullier, 1. 3, t. 3, §231. 2. Ordinary faults consist in the
omission of that care which mankind generally pay to their own concerns; that
is, the want of ordinary diligence. 3. A slight fault consists in the want of
that care which very attentive persons take of their own affairs. This fault
assimilates itself, and, in some cases, is scarcely distinguishable, from mere
accident, or want of foresight. This division has been adopted by common
lawyers from the civil law. Although the civilians generally agree in this
division, yet they are not without a difference of opinion. See Pothier,
Observation generale, sur le precedent Traite, et sur les suivants; printed at
the end of his Traite des Obligations, where he cites Accurse, Alciat, Cujas,
Duaren, D'Avezan, Vinnius, and Heineccius, in support of this division. On the
other side the reader is referred to Thomasius, tom. 2, Dissertationem, pago
1006; Le Brun, cited by Jones, Bailm. 27; and Toullier, Droit Civil Francais,
liv. 3, tit. 3, §231.
3. - 2. These principles established, different rules have been made as
to the responsibilities of parties for their faults in relation to their
contracts. They are reduced by Pothier to three.
4.- I. In those contracts where the party derives no benefit from his
undertaking, he is answerable only for his gross faults.
5.-2. In those contracts where the parties have a reciprocal interest,
as in the contract of sale, they are responsible for ordinary neglect.
6. - 3. In those contracts where the party receives the only advantage,
as in the case of loan for use, he is answerable for his slight fault. Poth.
Observ. Generale; Traite des Oblig. §142; Jones, Bailm. 119 Story, Bailm.
12. See also Ayliffe, Pand. 108. Civ. C. Lou. 3522; 1 Com. Dig. 41 3; 5 Id.
184; Wesk. on Ins. 370.
FAUX, French law. A falsification or fraudulent alteration or
suppression of a thing by words, by writings, or by acts without either. Biret,
Vocabulaire des Six Codes.
2. The crimen falsi of the civil law. Toullier says, "Le faux s'entend
de trois manieres: dans le sons le plus etendre, c'est l'alteration de la
verite, avec ou sans mauvaises intentions; il est a peu pres synonyme de
mensonge; dans un sens moins etendu, c'est l'alteration de la verite,
accompagnee de dol, mutatio veritatis cum dolo facta; enfin, dans le sens
etroit, ou plutot legal du mot, quand il s'agit de savoir si le faux est un
crime, le faux est I'alteration frauduleuse de la verite, dans les determines
et punis par la loi." Tom. 9, n. 188. "Faux may be understood in three ways: in
its most extended sense, it is the alteration of truth, with or without
intention; it is nearly synonymous with lying; in a less extended sense, it is
the alteration of truth, accompanied with fraud, mutatio veritatis cum dolo
facta; and lastly, in a narrow, or rather the legal sense of the word, when it
is a question to know if the faux be a crime, it is the fraudulent alteration
of the truth, in those cases ascertained and punished by the law." See Crimen
FAVOR. Bias partiality; lenity; prejudice.
2. The grand jury are sworn to inquire into all offences which have
been committed, and of all violations of law, without fear, favor, or
affection. Vide Grand Jury. When a juror is influenced by bias or prejudice, so
that there is not sufficient ground for a principal challenge, he may
nevertheless be challenged for favor. Vide Challenge, and Bac. Ab. Juries, E;
Dig. 50, 17, 156, 4; 7 Pet. R. 160.
FEAL. Faithful. This word is not used.
FEALTY. Fidelity, allegiance.
2. Under the feudal system, every owner of lands held them of some
superior lord, from whom or from whose ancestors, the tenant had received them.
By this connexion the lord became bound to protect the tenant in the enjoyment
of the land granted to him; and, on the other hand, the tenant was bound to be
faithful to his lord,, and defend him against all his enemies. This obligation
was called fidelitas, or fealty. 1 Bl. Com. 366; 2 Bl. Com. 86; Co. Litt. 67,
b; 2 Bouv. Inst. n. 1566.
FEAR, crim. law. Dread, consciousness of approaching danger.
2. Fear in the person robbed is one of the ingredients required. to
constitute a robbery from the person, and without this the felonious taking of
the property is a larceny. It is not necessary that the owner of the property
should be in fear of his own person, but fear of violence to the person of his
child; 2 East, P. C. 718; or of his property; Id. 731 2 Russ. 72; is
sufficient. 2 Russ. 71 to 90. Vide Putting in fear, and Ayl. Pand. tit. 12, p.
106.; Dig. 4, 2, 3 an d 6.
FEASTS. Certain established periods in the Christian church.
Formerly, the days of the feasts of saints were used to indicate the dates of
instruments, and memorable events. 18 Toull. n. 81. These are yet used in
England; there they have Easter term, Hilary term, &c.
FEDERAL, government. This term is commonly used to express a
league or compact between two or more states.
2. In the United States the central government of the Union is federal.
The constitution was adopted "to form a more perfect union" among the states,
for the purpose of self-protection and for the promotion of their mutual
FEE, FEODUM or FEUDUM, estates. From the French, fief. A fee is
an estate which may continue forever. The word fee is explained to signify that
the land, or other subject of property, belongs to its owner, and is
transmissible, in the case of an individual, to those whom the law appoints to
succeed him, under the appellation of heirs; and in the case of corporate
bodies, to those who are to take on themselves the corporate function; and from
the manner in which the body is to be continued, are denominated successors. 1
Co. Litt. 1, 271, b; Wright's Ten. 147, 150; 2 Bl. Com. 104. 106; Bouv. Inst.
Index h. t.
2. Estates in fee are of several sorts, and have different
denominations, according to their several natures and respective qualities.
They 'may with propriety be divided into, 1. Fees simple. 2 . Fees
determinable. 3. Fees qualified. 4. Fees conditional and 5. Fees tail.
3. - 1. A fee simple is an estate inlands or tenements which, in
reference to the ownership of individuals, is not restrained to any heirs in
particular, nor subject to any condition or collateral determination except the
laws of escheat and the canons of descent, by which it may, be qualified,
abridged or defeated. In other words, an estate in fee simple absolute, is an
estate limited to a person and his heirs general or indefinite. Watk. Prin.
Con. 76. And the omission of the word `his' will not vitiate the estate, nor
are the words "and assigns forever" necessary to create it, although usually
added. Co. Litt. 7, b 9, b; 237, b Plowd. 28, b; 29, a; Bro. Abr. Estates, 4. 1
Co. Litt. 1, b; Plowd. 557 2 Bl. Com. 104, 106 Hale's Analysis, 74. The word
fee simple is sometimes used by the best writers on the law as contrasted with
estates tail. 1 Co. Litt. 19. In this sense, the term comprehends all other
fees as well as the estate, properly, and in strict propriety of technical
language, peculiarly' distinguished by this appellation.
4. - 2. A determinable fee is an estate which may continue forever.
Plowd. 557; Shep. Touch. 97. It is a quality of this estate while it falls
under this denomination, that it is liable to be determined by some act or
event, expressed on its limitation, to circumscribe its continuance, or
inferred by the law as bounding its extent. 2 Bl. Com. 109. Limitations to a
man. and his heirs, till the marriage of such. a person shall take place; Cro.
Jac. 593; 10 Vin. Abr. 133; till debts shall be paid; Fearne, 187 until a minor
shall attain the age of twenty-one years 3 Atk. 74 Ambler, 204; 9 Mod. 28 10
Vin. Abr. 203. Feariae, 342; are instances of such a determinable fee.
5. - 3. Qualified fee, is an interest given on its, first limitation,
to a man and to certain of his heirs, and not to extend to all of them
generally, nor confined to the issue of his body. A limitation to a man and his
heirs on the part of his father, affords an example of this species of estate.
Litt. 254 1 Inst. 27, a 220; 1 Prest. on Estates, 449.
6. - . A conditional fee, in the more general acceptation of the term,
is when, to the limitation of an estate a condition is annexed, which renders
the estate liable to be defeated. 10 Rep. 95, b. In this application of the
term, either a determinable or a qualified fee may at the same time be a
conditional fee. An estate limited to a man and his heirs, to commence on the
performance of a condition, is also frequently described by this appellation.
Prest. on East. 476; Fearne, 9. 7. - 5. As to fee-tail, see Tail.
FEE FARM, Eng. law. A perpetual farm or rent. 1 Tho. Co. Litt.
446, n. 5.
FEE FARM RENT, contracts, Eng. law. When the lord, upon the
creation of a tenancy, reserves to himself and his heirs, either the rent for
which it was before let to farm, or at least one-fourth part of that farm rent,
it is called a fee farm rent, because a farm rent is reserved upon a grant in
fee. 2 Inst. 44.
FEES, compensation. Certain perquisites allowed by law to
officers concerned in the administration of justice, or in the performance of
duties required by law, as a recompense for their labor and trouble. Bac. Ab.
h. t.; Latch, 18.
2. The term fees differs from costs in this, that the former are, as
above mentioned, a recompense to the officer for his services, and the latter,
an indemnification to the, party for money laid out and expended in his suit.
11 S. & R. 248; 9 Wheat. 262; See 4 Binn. 267. Vide Costs; Color of office;
FEIGNED ACTION, practice. An action brought on a pretended
right, when the plaintiff has no true cause of action, for some illegal
purpose. In a feigned action the words of the writ are true; it differs from
false action, in which case the words of the writ are false. Co. Litt. 361,
sect. 689. Vide Fictitious action.
FEIGNED issue, pract. An issue brought by consent of the
parties, or the direction of a court of equity, or such courts as possess
equitable powers, to determine before a jury some disputed matter of fact,
which the court has not the power or is unwilling to decide. 3 Bl. Com. 452;
Bouv. Inst. Index, h. t
FELO DE SE, criminal law. A felon of himself; a
2. To be guilty of this offence, the deceased must have had the will
and intention of committing it, or else be committed no crime. As he is beyond
the reach of human laws, he cannot be punished; the English law, indeed,
attempts to inflict a punishment by a barbarous burial of his body, and by
forfeiting to the king the property which he owned, and which would belong to
his relations. Hawk. P. C. c. 9; 4 Bl. Com. 189. The charter of privileges
granted by William Penn to the inhabitants of Pennsylvania, contains the
following clause: "If any person, through temptation or melancholy, shall
destroy himself, his estate, real and personal, shall, notwithstanding,
(descend to his wife and children, or relations, as if he had died a natural
FELON, crimes. One convicted and sentenced for a felony.
2. A felon is infamous, and cannot fill any office, or become a witness
in any case, unless pardoned, except in cases of absolute necessity, for his
own preservation, and defence; as, for example, an affidavit in relation to the
irregularity of a judgment in a cause in which he is a party. 2 Salk. R. 461; 2
Str. 1148;. Martin's R. 25; Stark. Ev. part 2, tit. Infamy. As to the effect of
a conviction in one state, where the witness is offered in another, see 17
Mass. R. 515 2 Harr. & McHen. R. 120, 378; 1 Harr. & Johns. R. 572. As
to the effect upon a copartnership by one of the partners becoming a felon, see
2 Bouv. Inst. n. 1493.
FELONIOUSLY, pleadings. This is a technical word which must be
introduced into every indictment for a felony, charging the offence to have
been committed feloniously; no other word, nor any circumlocution, will supply
its place. Com. Dig. Indictment, G 6; Bac. Ab. Indictment, G 1; 2 Hale, 172,
184; Hawk. B. 2. c. 25, s. 55 Cro. C. C. 37; Burn's Just. Indict. ix.;
Williams' Just. Indict. iv.-, Cro. Eliz. 193; 5 Co. 121; 1 Chit. Cr. Law,
FELONY, crimes. An offence which occasions a total forfeiture
of. either lands or goods, or both, at common law, to which capital or other
punishment may be super-added, according to the degree of guilt. 4 Bl. Com, 94,
5; 1 Russ. Cr. *42; 1 Chit. Pract. 14; Co. Litt . 391; 1 Hawk. P. C. c. 37; 5
Wheat. R. 153, 159.
FEMALE. This term denotes the sex which bears young.
2. It is a general rule, that the young of female animals which belong
to us, are ours, nam fetus ventrem sequitur. Inst. 2, 1, 19; Dig. 6, 1, 5, 2.
The rule is, in general, the same with regard to slaves; but when a female
slave comes into. a free state, even without the consent of her master, and is
there delivered of a child, the latter is free. Vide Feminine; Gender;
FEME, or, more properly,
2. This word is frequently used in law. Baron and feme, hushand and
wife; feme covert, a. married woman; feme sole, a single woman.
3. A feme covert, is a married woman. A feme covert may sue and be sued
at law, and will be treated as a feme sole, when the hushand is civiliter
mortuus. Bac. Ab. Baron and Feme, M; see article, Parties to Actions, part 1,
section l, §7, n. 3; or where, as it has been decided in England, he is an
alien and has left the country, or has never been in it. 2 Esp. R. 554; 1 B.
& P. 357. And courts of equity will treat a married woman as a, feme sole,
so as to enable her to sue or be sued, whenever her hushand has abjured the
realm, been transported for felony, or is civilly dead. And when she has a
separate property, she may sue her hushand in respect of such property, with
the assist ance of a next friend of her own selection. Story, Eq. Pl. §61;
Story, Eq . Jur. §1368; and see article, Parties to a suit in equity, 1,
n. 2; Bouv. Inst. Index, h. t.
4. Coverture subjects a woman to some duties and disabilities, and
gives her some rights and immunities, to which she would not be entitled as a
feme sole. These are considered under the articles, Marriage, (q. v.) and Wife.
5. A feme sole trader, is a married woman who trades and deals on her
own account, independently of her hushand. By the custom of London, a feme
covert, being a sole trader, may sue and be sued in the city courts, as a feme
sole, with reference to her transactions in London. Bac. Ab. Baron and Feme, M.
6. In Pennsylvania, where any mariners or others go abroad, leaving their wives
at shop-keeping, or to work for their livelihood at any other trade, all such
wives are declared to be feme sole traders, with ability to sue and be sued,
without naming the hushands. Act of February 22, 1718. See Poth. De la
Puissance du Mari, n. 20.
7. By a more recent act, April 11, 1848, of the same state, it is
provided, that in all cases where debts may be contracted for necessaries for
the support and maintenance of the family of any married woman, it shall be
lawful for the creditor, in such case, to institute suit against the hushand
and wife for the price of such necessaries, and after obtaining a judgment,
have an execution against the hushand alone and if no property of the said
hushand be found, the officer executing the said writ shall so return, and
thereupon an alias execution may be issued, which may be levied upon and
satisfied out of the separate property of the wife, secured to her under the
provisions of the first section of this act. Provided, That judgment shall not
be rendered against the wife, in such joint action, unless it shall have be
proved that the debt sued for in such action, was contracted by the wife, or
incurred for articles necessary for the support of the family of the said
hushand and wife.
FEMININE. What belongs to the female sex.
2. When the feminine is used, it is generally confined to females; as,
if a man bequeathed all his mares to his son, his horses would not pass. Vide:
3 Brev. R. 9 Gender; Man; Masculine.
FENCE. A building or erection between two contiguous estates, so
as to divide them; or on the same estate, so as to divide one part from
2. Fences are regulated by the local laws. In general, fences on
boundaries are to be built on the line, and the expense, when made no more
expensively than is required by the law, is borne equally between the parties.
See the following cases on the subject. 2 Miles, 337, 395; 2 Greenl. 72; 11
Mass. 294; 3 Wend. 142; 2 Metc. 180; 15 Conn. 526 2 Miles, 447; Bouv. Inst.
Index, h. t.
3. A partition fence is presumed to be the common property of both
owners of the land. 8 B. & C. 257, 259, note a. When built upon the land of
one of them, it is his; but if it were built equally upon the land of both, at
their joint expense, each would be the owner in severalty of the part standing
on his own land. 5 Taunt. 20; 2 Greenl. Ev. 617.
FEOD. The same as fief. Vide Fief or Feud.
FEOFFMENT, conveyancing. A gift of any corporeal hereditaments
to another. It operates by transmutation of possession, and it is essential to
its completion that the seisin be passed. Watk. Prin. Conv. 183. This term also
signifiesthe instrument or deed by which such hereditament is conveyed.
2. This instrument was used as one of the earliest modes of conveyance
of the common law. It signified, originally, the grant of a feud or fee; but it
came, in time, to signify the grant of a free inheritance in fee, respect being
had to the perpetuity of the estate granted, rather than to the feudal tenure.
The feoffment was, likewise, accompanied by livery of seisin. The conveyance,
by feoffment, with livery of seisin, has become infrequent, if not obsolete, in
England; and in this country it has not been used in practice. Cruise, Dig. t.
32, c. 4. s. 3; Touchs. c. 9; 2 Bl. Corn. 20; Co. Litt. 9; 4 Kent, Com. 467;
Perk.. c. 3; Com. Dig. h. t.; 12 Vin. Ab. 167; Bac. Ab. h. t. in pr.; Doct.
Plac. 271; Dane's Ab. c. 104, a. 3, s. 4. He who gives or enfeoffs is called
the feoffor; and the person enfeoffed is denominated the feoffee. 2 Bl. Com.
20. See 2 Bouv. Inst. n. 2045, note.
FERAE. Wild, savage, not tame.
FERAE BESTIAE. Wild beasts. See Animals; Ferae naturce.
FERAE NATURAE. Of a wild nature.
2. This term is used to designate animals which are not usually tamed.
Such animals belong to the person who has captured them only while they are in
his power for if they regain their liberty his property in them instantly
ceases, unless they have animum revertendi, which is to be known only by their
habit of returning. 2 Bl. Com. 386; 3 Binn. 546; Bro. Ab. Propertie, 37; Com.
Dig. Biens, F; 7 Co. 17, b; 1 Chit. Pr. 87; Inst. 2, 1, 15; 13 Vin. Ab.
3. Property in animals ferae naturae is not acquired by hunting them
and pursuing them; if, therefore, another person kill such animal in the sight
of the pursuer, he has a right to appropriate it to his own use. 3 Caines, 175.
But if the pursuer brings the animal within his own control, as by entrapping
it, or wounding it mortally, so as to render escape impossible, it then belongs
to him. Id. Though if he abandons it, another person may afterwards acquire
property in the animal. 20 John. 75. The owner of land has a qualified property
in animals ferae naturae, when, in consequence of their inability and youth,
they cannot go away. See Y. B. 12 H. VIII., 9 B, 10 A 2 Bl. Com. 394; Bac. Ab.
Game. Vide Whelp.
FERM or FEARM. By this ancient word is meant land, fundus; (q.
v.) and, it is said, houses and tenements may pass by it. Co. Litt. 5 a.
FERRY. A place where persons and things are taken across a river
or other stream in boats or other vessels, for hire. 4 N. S. 426; S. C. 3 Harr.
Lo. R. 341.
2. In England a ferry is considered a franchise which cannot be set up
without the king's license. In most, perhaps all of the United States, ferries
are regulated by statute.
3. The termini of a ferry are at the water's edge. 15 Pick. R. 254 and
see 8 Greenl. R. 367; 4 John. Ch. R., 161; 2 Porter, R. 296; 7 Pick. R. 448; 2
Car. Law Repos. 69; 2 Dev. R. 403; 1 Murph. 279 1 Hayw. R. 457; Vin. Ab. h. t.;
Com. Dig. Piscary B: 6 B. & Cr. 703; 12 East, R. 333; 1 Bail. R. 469; 3
Watts, R. 219 1 Yeates, R. 167; 9 S. & R. 26.
FERRYMAN. One employed in taking persons across a river or other
stream, in boats or other contrivances at a ferry. The owner of a ferry is not
considered a ferryman, when it is rented and in the possession of a tenant.
Minor, R. 366.
2. Ferrymen are considered as common carriers, and are therefore the
legal judges to decide when it is proper to pass over or not. 1 M'Cord, R. 444
Id. 157 1 N. & M. 19; 2 N. & M. 17. They are to regulate how the
property to be taken across shall be put in their boats or flats; 1 M'Cord 157;
and as soon as the carriage is fairly on the drop or slip of a fat, although
driven by the owner's servant, it is in possession of the ferryman, and he is
answerable. 1 M'Cord's R. 439.
FESTINUM REMEDIUM. A speedy remedy.
2. This is said of those cases where the remedy for the redress of an
injury is given without any unnecessary delay. Bac. Ab. Assise, A. The action
of Dower is festinum remedium, and so is Assise.
FETTERS. A sort of iron put on the legs of malefactors, or
persons accused of crimes.
2. When a prisoner is brought into court to plead he shall not be put
in fetters. 2 Inst. 315; 3 Inst. 34; 2 Hale, 119; Hawk. b. 21 c. 28, s. 1 Kel.
10; 1 Chitty's Cr. Law, 417. An officer having arrested a defendant on a civil
suit, or a person accused of a crime, has no right to handcuff him unless it is
necessary, or he has attempted to make his escape. 4 B. & C. 596; 10 Engl.
C. L. Rep. 412, S. C.
FEUD. This word, in Scotland, signifies a combination of kindred
to revenge injuries or affronts done to any of their blood. Vide Fief.
FEUDA. In the early feudal times grants were made, in the first
place, only during the pleasure of the grantor, and called muncra; (q. v.)
afterwards for life, called beneficia; (q. v.) and, finally, they were extended
to the vassal and his sons, and then they acquired the name offeudal. Dalr.
Feud. Pr. 199.
FEUDAL. A term applied to whatever concerned a feud; as feudal
law: feudal rights.
FEUDAL LAW. By this phrase is understood a political system
which placed men and estates under hierarchical and multiplied distinctions of
lords and vassals. The principal features of this system were the
2. The right to all lands was vested in the sovereign. These were,
parcelled out among the great men of the nation by its chief, to be held of
him, so that the king had the Dominum directum, and the grantee or vassal, had
what was called Dominum utile. It was a maxim nulle terre sans seigneur. These
tenants were bound to perform services to the king, generally of a military
character. These great lords again granted parts of the lands. they thus
acquired, to other inferior vassals, who held under them, and were bound to
perform services to the lord.
3. The principles of the feudal law will be found in Littleton's
Tenures Wright's Tenures; 2 Blackstone's Com. c. 5 Dalrymple's History of
Feudal Property; Sullivan's Lectures; Book of Fiefs; Spellman, Treatise of
Feuds and Tenures; Le Grand Coutumier; the Salic Laws; The Capitularies; Les
Establissements de St. touis; Assizes de Jerusalem; Poth. Des Fiefs. Merl. Rep.
Feodalite; Dalloz, Dict. Feodalit 6; Guizot, Essais sur I'Histoire de France,
4. In the United States the feudal law never was in its full vigor,
though some of its principles are still retained. "Those principles are so
interwoven with every part of our jurisprudence," says Ch. J. Tilghman, 3 S.
& R. 447, " that to attempt to eradicate them would be to destroy the
whole. They are massy stones worked into the foundation of our legal edifice.
Most of the inconveniences attending them, have been removed, and the few that
remain can be easily removed, by acts of the legislature." See 3 Kent, Com.
509, 4th ed.
FIAR, Scotch law. He whose property is burdened with a life
rent. Ersk. Pr. of L. Scot. B. 2, t. 9, s. 23.
FIAT, practice. An order of a judge, or of an officer, whose
authority, to be signified by his signature, is necessary to authenticate the
FICTION OF LAW. The assumption that a certain thing is true, and
which gives to a person or thing, a quality which is not natural to it, and
establishes, consequently, a certain disposition, which, without the fiction,
would be repugnant to reason and to truth. It is an order of things which does
not exist, but which the law prescribe; or authorizes it differs from
presumption, because it establishes as true, something which is false; whereas
presumption supplies the proof of something true. Dalloz, Dict. h. t. See 1
Toull. 171, n. 203; 2 Toull. 217, n. 203; 11 Toull. 11, n. 10, note 2;
Ferguson, Moral Philosophy, part 5, c. 10, s. 3 Burgess on Insolvency, 139,
140; Report of the Revisers of the Civil Code of Pennsylvania, March 1, 1832,
2. The law never feigns what is impossible fictum est id quod factum
non est sed fieri potuit. Fiction is like art; it imitates nature, but never
disfigures it it aids truth, but it ought never to destroy it. It may well
suppose that what was possible, but which is not, exists; but it will never
feign that what was impossible, actually is. D'Aguesseau, Oeuvres, tome iv.
page 427, 47e Plaidoyer.
3. Fictions were invented by the Roman praetors, who, not possessing
the power to abrogate the law, were nevertheless willing to derogate from it,
under the pretence of doing equity. Fiction is the resource of weakness, which,
in order to obtain its object, assumes as a fact, what is known to be contrary
to truth: when the legislator desires to accomplish his object, he need not
feign, he commands. Fictions of law owe their origin to the legislative
usurpations of the bench. 4 Benth. Ev. 300.
4. It is said that every fiction must be framed according to the rules
of law, and that every legal fiction must have equity for its object. 10 Co.
42; 10 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are not
allowed to be carried further than the reasons which introduced them
necessarily require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. §20.
5. The law abounds in fictions. That an estate is in abeyance; the
doctrine of remitter, by which a party who has been disseised of his freehold,
and afterwards acquires a defective title, is remitted to his former good
title; that one thing done today, is considered as done, at a preceding time by
the doctrine of relation; that, because one thing is proved, another shall be
presumed to be true, which is the case in all presumptions; that the heir,
executor, and administrator stand by representation, in the place of the
deceased are all fictions of law. "Our various introduction of John Doe and
Richard Roe," says Mr. Evans, (Poth. on Ob. by Evans, vol. n. p. 43,) "our
solemn process upon disseisin by Hugh Hunt; our casually losing and finding a
ship (which never was in Europe) in the parish of St. Mary Le Bow, in the ward
of Cheap; our trying the validity of a will by an imaginary, wager of five
pounds; our imagining and compassing the king's death, by giving information
which may defeat an attack upon an enewy's settlement in the antipodes our
charge of picking a pocket, or forging a bill with force and arms; of
neglecting to repair a bridge, against the peace of our lord the king, his
crown and dignity are circumstances, which, looked at by themselves, would
convey an impression of no very favorable nature, with respect to the wisdom of
our jurisprudence." Vide 13 Vin. Ab. 209; Merl. Rep. h. t.; Dane's Ab. Index,
h. t.; and Rey, des Inst. de I'Angl. tome 2, p. 219, where he severely cesures
these fictions as absurd and useless.
FICTITIOUS Pretended; supposed; as, fictitious actions;
FICTITIOUS ACTIONS, Practice. Suits brought. on pretended
2. They are sometimes brought, usually on a pretended wager, for the
purpose of obtaining the opinion of the court on a point of law. Courts of
justice were constituted for the purpose of deciding really existing questions
of right between parties, and they are not bound to answer impertinent
questions which persons think proper to ask them in the form of an action on a
wager. 12 East, 248. Such an attempt has been held to be a contempt of court;
and Lord Hardwicke in such a case committed the parties and their attorneys.
Rep. temp. Hardw. 237. See also Comb. 425; 1. Co. 83; 6 Cranch, 147-8. Vide
3. The court of the king's bench fined an attorney forty pounds for
stating a special case for the opinion of the court, the greater part of which
statement was fictitious. 3 Barn. & Cr. 597; S. C. 10 E. C. L. R. 193.
FICTITIOUS PAYEE, contract. A supposed person; a payee, who has
2. When the name of a fictitious payee has been used, in making a bill
of exchange, and it has been endorsed in such name, it is considered as having
the effect of a bill payble to bearer, and a bona fide holder, ignorant of that
fact, may recover on it, against all prior parties who were privy, to the
transaction. 2 H. Bl. 178, 288; 3 T. R. 174, 182, 481; 3 Bro. C. C. 238. Vide
Bills of Exchange, §1.
FIDEI-COMMISSARY, civil law. One who has a beneficial interest
in an estate, which, for a time, is committed to the faith or trust of another.
This term has nearly, the same meaning as cestui que trust has in our law. 2
Bouv. Inst. n. 1895, note.
FIDEI-COMMISSUM, civil law. A gift which a man makes to another,
through the agency of a third person, who is requested to perform the desire of
the giver. For example, when a testator writes, "I institute for my heir,
Lucius Titius," he may add, "I pray my heir, Lucius Titius, to deliver, as soon
as he shall be able, my succession to Caius Seius: cum igitur aliquis
scripserit Lucius Tilius heres esto; potest ajicere, rogo te Luci Titi, ut cum
poteris hereditatem meam adire, eam Caio Sceio reddas, restituas. Inst. 2, 23,
2; vide Code 6, 42.
2. Fidei-commissa were abolished in Louisiana by the code. 5 N. S.
3. The uses of the common law, it is said, were borrowed from the Roman
fidei-commissum. 1 Cru. Dig. 388; Bac. Read. 19; 1 Madd. Ch. 446-7.
4. The fidei-coimmissa of the civil law, have been supposed to resemble
entails, though some writers have declared that the Roman law was a stranger to
entails. 2 Bouv. Inst. n. 1708.
FIDE-JUSSIO, civil law. The contract of suretyship.
FIDE-JUSSOR, civil law. One who becomes security for the debt of
another, promising to pay it in case the principal does not do so.
2. He differs from co-obligor in this, that the latter is equally bound
to a debtor with his principal, while the former is not liable till the
principal has failed to fulfil his engagement. Dig. 12, 4, 4; Id. 16, 1, 13;
Id. 24, 3, 64; Id. 38, 1, 37; Id. 50, 17, 110, and 14, 6, 20; Hall's Pr. 33;
Dunl. Ad. Pr. 300; Clerke's Prax. tit. 63, 4, 5.
3. The obligation of the fide-jussor was an accessory contract, for, if
the principal obligation was not previously contracted, his engagement then
took the name of mandate. Lec. Elem. §872; Code Nap. 2012.
FIDUCIA, civil law. A contract by which we sell a thing to some
one, that is, transmit to him the property of the thing, with the solemn forms
of emancipation, on condition that he will sell it back to us. This species of
contract took place in the emancipation of children, in testaments, and in
pledges. Poth. Pand. h. t.
FIDUCIARY. This term is borrowed from the civil law. The Roman
laws called a fiduciary heir, the person who was instituted heir, and who was
charged to deliver the succession to a person designated by the testament.
Merl. Repert. h. t. But Pothier, Pand. vol. 22, h. t., says that fiduciarius
heres properly signifies the person to whom a testator has sold his
inheritance, under the condition that he should sell it to another. Fiduciary
may be defined to be, in trust, in confidence.
2. A fiduciary contract is defined to be, an agreement by which a
person delivers a thing to another, on the condition that he will restore it to
him. The following formula was employed:' Ut inter bonos agere opportet, ne
propter te fidemque tuam frauder. Cicer. de Offc. lib. 3, cap. 13; Lec. du Dr.
Civ. Rom. §237, 238. See 2 How. S. C. Rep. 202, 208; 6 Watts & Serg.
18; 7 Watts, 415.
FIEF, or FEUD. In its origin, a fief was a district of country
allotted to one of the chiefs who invaded the Roman empire, as a stipend or
reward; with a condition annexed that the possessor should do service
faithfully both at home and in the wars, to him by whom it was given. The law
of fiefs supposed that originally all lands belonged to lords, who had had the
generosity to abandon them to others, from whom the actual possessors derive
their rights upon the sole reservation of certain services more or less onerous
as a sign of superiority. To this superiority was added that which gives the
right of dispensing justice, a right which was originally attached to all
fiefs, and conferred upon those who possessed it, the most eminent part of
public power. Henrion de Pansey, Pouvoir, Municipal; 2 Bl. Com. 45
Encyclop6die, h. t.; Merl. Rep. h. t.
FIELD. A part of a farra separately enclosed; a close. 1 Chit.
Pr. 160. The Digest defines a field to be a piece of land without a house; ager
est locus, que sine villa est. Dig. 50, 16, 27.
FIERI FACIAS, practice. The name of a writ of execution. It is
so called because, when writs were in Latin, the words directed to the sheriff
were, quod fieri facias de bonis et catallis, &c., that you cause to be
made of the goods and chattels, &c. Co. Litt. 290 b.
2. The foundation of this writ is a judgment for debt or damages, and
the party who has recovered such a judgment is generally entitled to it, unless
he is delayed by the stay of execution which the law allows in certain cases
after the rendition of the judgment, or by proceedings in error.
3. This subject will be considered with regard to, 1. The form of the
writ. 2. Its effects. 3. The manner of executing it.
4.-1. The writ is issued in the name of the commonwealth or of the
government, as required by the constitution, and directed to the sheriff,
commanding him that of the goods and chattels, and (where lands are liable for
the payment of debts, as in Pennsylvania,) of the lands and tenements of the
defendant, therein named, in his bailiwick, he cause to be levied as well a
certain debt of - dollars, which the plaintiff, (naming him) in the court of -
(naming,it,) recovered against him, as - dollars like money which to the said
plaintiff was adjudged for his daimages, which he had by the detention of that
debt, and that he, (the sheriff,) have that money before the judges of the said
court, on a day certain, (being the return day therein mentioned,) to render to
the said plaintiff his debt and damages aforesaid, whereof the said defendant
is convict. It must be tested in the name of the officer, as directed by the
constitution or laws; as, "Witness the honorable John B. Gibson, our chief
justice, at Philadelphia, the tenth day of October, in the year of our Lord one
thousand eight hundred and forty-eight. It must be signed by the prothonotory,
or clerk of the court, and sealed with its seal. The signature of the
prothonotary, it has been decided, in Pennsylvania, is not indispensable. The
amount of the debt, interest, and costs, must also be endorsed on the writ.
This form varies as it is issued on a judgment in debt, and one obtained for
damages merely. The execution being founded on the judgment, must, of course,
follow and be warranted by it. 2 Saund. 72 h. k; Bing. on Ex. 186. Hence, where
there is more than one one plaintiff or defendant, it must be in the name of
all the plaintiffs, against all the defendants. 6 T. R. 525. It is either for
the plaintiff or the defendant. When it is against an executor or
administrator, for a liability of the testator or intestate, it is conformable
to the judgment, and must be˜20only against the goods of the deceased,
unless the defendant has made himself personally liable by his false pleading,
in which case the judgment is de bonis testatoris si, et si non, de bonis
propriis, and the fieri facias must conform to it.
5. - 2. At common law, the writ bound the goods of the defendant or
party against whom it was issued, from the test day; by which must be
understood that the writ bound the property against the party himself, and all
claiming by assingment from, or by, representatives under him; 4 East, B. 538;
so that a sale by the defendant, of his goods to a bona fide purchaser, did no
protect them from a fieri facias tested before, although not issued or
delivered to the sheriff till after the sale. Cro. Eliz. 174; Cro. Jac. 451; 1
Sid. 271. To remedy this manifest injustice, the statute of frauds, 29 Car. II.
c. 3, s. 16, was passed. The principles of this statute have been adopted in
most of the states. Griff. Law Reg. Answers to No. 38, under No. III. The
statue enacts "that no writ of fieri facias, or other writ of execution, shall
bind the property of the goods of the party, against whom such writ of
execution is sued forth, but from the time that such writ shall be delivered to
the sheriff, under-sheriff, or coroners, to be executed; and for the better
manifestation of the said time, the sheriffs, &c., their deputies or
agents, shall, upon the receipt of any such writ, (without fee for doing the
sam,) endorse upon the back thereof, the day of the month and year whereon he
or they received the same." Vide 2 Binn. R. 174; 2 Serg. & Rawle, 157; 2
Yeates, 177; 8 Johns. R. 446; 12 Johns. R. 320; 1 Hopk. R. 368; 3 Penna. R.
247; 3 Rawle, 401 1 Whart R. 377.
6. - 3. The execution of the writ is made by levying upon the goods and
chattels of the defendant, or party against whom it is issued; and, in general,
seizing a part of the goods in the name of the whole on the premises, is a good
seizure of the whole. Ld. Raym. 725; 2 Serg. & Rawle, 142; 4 Wash. C. C. R.
29; but see 1 Whart. Rep. 377. The sheriff cannot break the outer door of a
house for the purpose of executing a fieri facias; 5 do. 92; nor can a window
be broken for this purpose. W. Jones, 429. See articles Door; House. He may,
however, enter the house, if it be open, and, being once lawfully entered, he
may break open an inner door or chest to seize the goods of the defendant, even
without any request to open them. 4 Taunt. 619; 3 B. & P. 223; Cowp. 1.
Although the sheriff is authorized to enter the house of the party to search
for goods, he cannot enter that of a stranger, for that purpose, without being
guilty of a trespass, unless the defendant's goods are actually in the house.
Com. Dig. Execution, C 5: 1 Marsh. R. 565. The sheriff may break the outer door
of a barn 1 Sid. 186; S. C. 1 Keb. 689; or of a store disconnected with the
dwelling-house, and forming no part of the curtilage. 16 Johns. R. 287. The fi.
fa. may be executed at any time before, and on the return day, but not on
Sunday, where it is forbidden by statute. Wats. on Sheriffs, 173 5 Co. 92; Com.
Dig. Execution, c. 5. Vide 3 Bouv. Inst. n. 3383, et. seq; Wats. on Sher. ch.
10; Bing. Ex. c. 1, s. 4; Gilb. on Exec. Index, h. t.; Grab. Pr. 321: Troub.
& Hal. Pr. Index, h. t.; Com. Dig. Execution, C 4; Process, F 5, 7; Caines'
Pr. Index, h. t.; Tidd's Pr. Index, h. t.; Sell. Pr. Index, h. t.
FIERI FECI, practice. The return which the sheriff, or other
proper officer, makes to certain writs, signifying, "I have caused to be
2. When the officer has made this return, a rule may be obtained upon
him, after the return day, to pay the money into court, and if he withholds
payment, an action of debt may be had on the return, or assumpsit for money had
and received may be sustained against him. 3 Johns. R. 183.
FIFTEENTH, Eng. law. The name of a tax levied by authority of
parliament for the use of the king, which consisted of one-fifteenth part of
the goods of those who are subject to it. T. L
FIGURES, Numerals. They are either Roman, made with letters of
the Alphabet, for example, MIDCCLXXVI; or they are Arabic, as follows,
2. Roman figures may be used in contracts and law proceedings, and they
will be held valid; but Arabic figures, probably owing to the case with which
they may be counterfeited, or. altered, have been holden not to be sufficient
to express the sum due on a contract; but, it seems, that if the amount payable
and due on a promissory note be expressed in figures or ciphers, it will be
valid. Story on Bills, §42, note; Story, Prom. Notes, §21.
Indictments have been set aside because the day or year was expressed in
figures. 13 Vin Ab. 210; 1 Ch. Rep. 319; S. C. 18 Eng. Com. Law Rep. 95.
3. Bills of exchange, promissory notes, cheeks and agreements of every
description, are usually dated with Arabic figures; it is, however, better to
date deeds and other formal instruments, by writing the words at length. Vide l
Ch. Cr. L. 176; 1 Verm. R. 336; 5 Toull. n. 336; 4 Yeates, R. 278; 2 John. R.
233; 1 How. Mis. 256; 6 Blackf., 533.
FIGURES OF SPEECH. By figures of speech is meant that manner of
speaking or writing, which has for its object to give to our sentiments and,
thoughts a greater force, more vivacity and agreeableness.
2. This subject belongs more particularly to grammar and rhetoric, but
the law has its figures also. Sometimes fictions come in aid of language, when
found insufficient by the law; language, in its turn, by means of tropes and
figures, sometimeslends to fictions a veil behind which they are hidden;
sometimes the same denominations are preserved to things which have ceased to
be the same, and which have been changed; at other times they lend to things
denominations which supposed them to have been modified.
3. In this immense subject, it will not be expected that examples
should be here given of every kind of figures; the principal only will be
noticed. The law is loaded with abstract ideas; abstract in itself, it has
often recourse to metaphors, which, as it were, touch our senses. The inventory
is faithful, a defect is covered, an account is liquidated, a right is open or
closed, an obligation is extinguished, &c. But the law has metaphors which
are properly its own; as civil fruits, &c. The state or condition of a man
who has been deprived by the law of almost all his social prerogatives or
rights, has received the metaphorical name of civil death. Churches being
called the houses of God, formerly were considered an asylum, because to seize
a person in the house of another was considered a wrong. Mother country, is
applied to the country from which people emigrate to a colony; though this
pretended analogy is very different in many points, yet this external ornament
of the idea soon became an integral part of the idea; and on the faith of this
metaphor, this pretended filiation became the source whence flowed the duties
which bound the colonies to the metropolis or mother country.
4. In public speaking, the use of figures, when natural and properly
selected, is of great force; such Ornaments impress upon the mind of the
bearers the ideas which the speaker desires to convey, fix their attention and
disposes them to consider favorably the subject of inquiry. See 3 Bouv. Inst.
FILACER, FILAZIER, or FILZER, English law. An officer of the
court of common pleas, so called because he files those writs on which he makes
out process. FILE, practice. A thread, string, or wire, upon which writs and
other exhibits in courts and offices are fastened or filed. for the more safe
keeping and ready turning to the same. The papers put together in order, and
tied in bundles, are also called a file.
2. A paper is said to be filed, when it is delivered to the proper
officer, and by him received to be kept on file. 13 Vin. Ab. 211.
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 filiation.
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
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.
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
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
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 conveyance.
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, 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
FIRE ACCIDENTAL. One which arises in consequence of some human
agency, without any intention, or which happens by some natural cause, without
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 pounds avoirdupois.
FIRM. The persons composing a partnership, taken collectively,
are called the firm. Sometimes this word is used synonymously with
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 permit.
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.
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.
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. 3, 4.
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; Tide.
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 absolutely responsible.
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 contending parties.
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. 311.
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.
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-
2. - §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.
3. - §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.
FLAGRANS CRIMEN. This, among the Romans, signified. that a crime
was then or had just been committed for example, when a crime has just been
committed and the corpus delictum is publicly exposed; or if a mob take place;
or if a house be feloniously burned, these are severally flagrans cri men.
2. The term used in France is flagrant delit. The code of criminal
instruction gives the following concise definition of it, art. "Le delit qui se
commet actuellement ou qui vient de se coramettre, est un flagrant delit."
FLAGRANTE DELICTO. The act of committing a crime; when a person
is arrested flagrante delicto, the only evidence required to convict him, is to
prove that fact.
FLEET, punishment, Eng. law, Saxon fleot. 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. The author lived in the reigns of Ed. II.
and Ed. III. See lib. 2, cap. 66, § Item quod nullus; lib. 1, cap. 20,
§ qui coeperunt, pref. to 10th Rep. Edward II. was crowned, A. D. 1306.
Edward III. was crowned 1326, and reigned till A. D. 1377. During this period
the English law was greatly improved, and the lawyers and judges were very
learned. Hale's Hist. C. L. 173. Blackstone 4 Com. 427, says, of this work,
"that it was for the most part law, until the alteration of tenures took
place." The same remark he applies to Britton and Hingham.
FLIGHT, crim. law. The evading the course of justice, by a man's
voluntarily withdrawing himself. 4 Bl. Com. 387. Vide Fugitive from
FLORIDA. The name of one of the new states of the United States
of America. It was admitted into the Union by virtue of the act of congress,
entitled An Act for the admission of the states of Iowa and Florida into the
Union, approved March 3, 1845.
2. The constitution was adopted on the eleventh day of January,
eighteen hundred and thirty-nine. The powers of the government are divided into
three distinct branches, namely, the legislative, the executive, and the
3. - §1. Of the legislative power. 1. The legislative power of
this state shall be vested in two distinct branches, the one to be styled the
senate, the other the house of representatives, and both together, "The General
Assembly of the State of Florida," and the style of the laws shall be, "Be it
enacted by the Senate and House of Representatives of the State of Florida in
General Assembly convened."
4. 2. A majority of each house shall constitute a quorum to do
business, but smaller number may adjourn from day to day, and may compel the
attendance of absent members in such. manner, and under such penalties, as each
house may prescribe.
5. - 3. Each house may determine the rules of its own proceedings,
punish its members for disorderly behaviour, and, with the consent of
two-thirds, expel a member; but not a second time for the same cause.
6. - 4. Each house, during the session, may punish by imprisonment, any
person not a member, for disrespectful or disorderly behaviour in its presence,
or for obstructing any of its proceedings, provided such imprisonment shall not
extend beyond the end of the session.
7. - 5. Each house shall keep a journal of its proceedings, and cause
the same to be published immediately after its adjournment, and the yeas and
nays of, the members of each house shall be taken, and entered upon the
journals, upon the final passage of every bill, and may, by any two members, be
required upon any other question, and any member of either house shall have
liberty to dissent from, or protest against, any act or resolution which he may
think injurious to the public, or an individual, and have the reasons of his
dissent entered on the journal.
8. - 6. Senators and representatives shall in all cases, except
treason, felony or breach of the peace, be privileged from arrest during the
session of the general assembly, and in going to, or returning from the same,
allowing one day for every twenty miles such member may reside from the place
at which the general assembly is convened; and for any speech or debate, in
either house, they shall not be questioned in any other place.
9. - 7. The general assembly shall make provision, by law, for filling
vacancies that may occur in either house, by the death, resignation, (or
otherwise,) of any of its members.
10. - 8. The doors of each house shall be open, except on such
occasions as, in the opinion of the house, the public safety may imperiously
11. - 9. Neither house shall, without the consent of the other, adjourn
for more than three days, nor, to any other place than that in which they may
12. - 10. Bills may originate in either house of the general assembly,
and all bills passed by one house may be discussed, amended or rejected by the
other; but no bill shall have the force of law until, on three several days, it
be read in each house, and free discussion be allowed thereon, unless in cases
of urgency, four-fifths of the house in which the same shall be depending, may
deem it expedient to dispense with the rule; and every bill, having passed both
houses, shall be signed by the speaker and president of their respective
13. - 11. Each member of the general assembly shall receive from the
public treasury such compensation for his services,as may be fixed by law, but
no increase of compensation shall take effect during the term for which the
representatives were elected when such law passed.
14. - 12. The sessions of the general assembly shall be annual, and
commence on the fourth Monday in November in each year, or at such other time
as may be prescribed by law.
15. The senators will be considered with regard, 1. To the
qualification of the electors. 2. The qualification of the members. 3. The
number of members. 4. The time of their election. 5. The length of service.
16. - 1st. The senators shall be elected by the qualified voters.
Const. art. 4, s. 5.
17. - 2d. No man shall be a senator unless be be a white man, a citizen
of the United States, and shall have been an inhabitant of Florida two years
next preceding his election, and the last year thereof a resident of the
district or county for which he shall be chosen, and shall have attained the
age of twenty-five years. Const. art. 4, s. 5. And to this there are the
following exceptions: All banking officers of any bank in the state are
ineligible until after twelve-months after they shall go out of such office.
Art. 6, 3. All persons who shall fight, or send, or accept a duel, the probable
issue of which may be death, whether committed in or out of the state. Art. 6,
s. 5. All collectors or holders of public money. Art. 6, s. 6. All ministers of
the Gospel. Art. 6, s. 1 0. All persons who shall have procured their elections
by bribery. All members of congress, or persons holding or exercising any,
office of profit under the United States, or under a foreign power. Art. 6, s.
18. - 3d. The number of senators may be varied by the general assembly,
but it shall never be less. than one-fourth, nor more than one-half of the
whole number of the house of representatives. Art. 9, s. 2.
19. - 4th. The time and place of their election is the same as those
for the house of representatives. Art. 4, s. 5.
20. - 5th. They are elected for the term of two years. Art. 4, s.
21. The house of representatives will be considered under the same
22. - 1st. Members of the house of representatives shall be chosen by
the qualified voters.
23. - 2d. No person shall be a representative unless he be a white man,
a citizen of the United States, and shall have been an inhabitant of the state
two years next preceding his election, and the last year thereof a resident of
the county for which he shall be chosen, and have attained the age of
twenty-one years. Art. 4, s. 4. And the same persons are disqualified, who are
disqualified as senators.
24. - 3d. The number of members shall never exceed sixty. Art. 4, s.
25. - 4th. The. time of holding the election is the first Monday of
26. - 5th. Members of the house of representatives are elected for one
year from the day of the commencement of the general election, andno longer.
Art. 4, s. 2.
27. - §2. Of the executive. The supreme executive power is vested
in a chief magistrate, who is styled the governor of Florida. Art. 3.
28. No person shall be eligible to the office of governor, unless he
shall have attained the age of thirty years, shall have been a citizen of the
United States ten years, or an inhabitant of Florida at the time of the
adoption of the constitution, (being a citizen of the United States,) and shall
have resided in Florida at least five years preceding the day of election.
29. The governor shall be elected for four years, by the qualified
electors, at the time and place where they shall vote for representatives; and
shall remain in office until a successor shall be chosen and qualified, and
shall not be eligible to reelection until the expiration of four years
thereafter. 30. His general powers are as follows: 1. He is commander-in-chief
of the army, navy, and militia of the state. 2. He shall take care that the
laws be faithfully executed. 3 . He may require information from the officers
of -the executive department. 4. He may convene the general assembly by
proclamation upon particular occasions. 5. He shall, from time to time, give
information to the general assembly. 6. He may grant pardons, after conviction,
in all cases except treason and impeachment, and in these cases, with the
consent of the senate; and he may respite the sentence in these cases until the
end of the next session of the senate. 7. He, may approve or veto bills.
31. In case of vacancy in the office of governor, the president of the
senate shall act in his place, and in case of his default, the speaker of the
house of representatives shall fill the office of governor. Art. 3, s. 21.
32. - §3. Of the judicial department. 1. The judicial power of
this state, both as to matters of law and equity, shall be vested in a supreme
court, courts of chancery, circuit courts, and justices of the peace: Provided,
the, general assembly may also vest such criminal jurisdiction as may be deemed
necessary in corporation courts; but such jurisdiction shall not extend to
capital offences. Art. 5, s. 1.
33. - 2. Justices of the supreme court, chancellors, and judges of the
circuit courts, shall be elected by, the concurrent vote of a majority of both
houses of the general assembly. Art. 5, s. 11.
34. - 3. The judges of the circuit courts shall, at the first session.
of the general assembly to be holden under the constitution, be elected for the
term of five years and shall hold their office, for that term, unless sooner
removed, under the provisions in the constitution; and at the expiration of
five years, the justices of the supreme courts, and the judges of the circuit
courts, shall be elected for the term of, and during their good behaviour.
35. Of the supreme court. 1. The powers of the supreme court are vested
in, and its duties performed by, the judges of the several circuit courts, and
they, or a majority of them, shall hold such session of the supreme court, and
at such time and place as may be directed by law. Art. 5, s. 3. But no justice
of the supreme court shall sit as judge, or take any part in the appellate
court, on the trial or hearing of any case which shall have been decided by him
in the court below. Art. 5, s. 18.
36. - 2. The supreme court, except in cases otherwise directed in this
constitution, shall have appellate jurisdiction only. Provided, that the said
court shall always have power to issue writs of injunction, mandamus, quo
warranto, habeas corpus, and such other remedial and original writs, as may be
necessary to give it a general superintendance and control of all other courts.
Art. 5, s. 2 .
37. - 3. The supreme court shall exercise appellate jurisdiction in all
cases brought by appeal or writ of error from the several circuit courts, when
the matter in controversy exceeds in amount or value fifty dollars.
38. Of the circuit courts. 1. The state is to be divided into circuits,
and the circuit courts, held within such circuits, shall have original
jurisdiction in all matters, civil and criminal, within the state, not
otherwise excepted in this constitution. Art. 5, s. 6.
FLORIN. The name of a foreign coin. In all computations of
customs, the florin of the southern states of Germany, shall be estimated at
forty cents; the florin of the Austrian empire, and of the city of Augshurg, at
forty-eight and one-half cents. Act March 22, 1846. The florin of the United
Netherlands is computed at the rate of forty cents. Act of March 2, 1799,
§61. 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,
FLUMEN, civ. law. The name of a servitude which consists in the
right of turning the rain water, gathered in a spout, on another's land., Ersk.
Inst. B. 2, t. 9, n. 9. Vicat, ad vocem. See Stillicidium.
FOEDUS. A league; a compact.
FOENUS NAUTICUS . The name given to marine interest. (q. V.)
2. The amount of such interest is not limited by law, because the
lender runs the risk of losing, his principal. Ersk. Inst. B. 4, t. 4, n. 76.
See Marine Interest.
FOETICIDE, med. jur. Recently, this term has been applied to
designate the act by which criminal abortion is produced. 1 Beck's Med. Jur.
288; Guy, Med. Jur. 133. See Infanticide; Prolicide.
FOETURA, civil law. The produce of animals, and the fruit of
other property, which are acquired to the owner of such animals and property,
by virtue of his right. Bowy. Mod. C. L. c. 14, p. 81.
FOETUS, med. jur. 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 uncouth phrase of
infant in ventre sa mere.
2. It is sometimes of great importance, particularly in criminal law,
to ascertain the age of the foetus, or how far it has progressed towards
maturity. There are certain signs which furnish evidence on this subject, the
principal of which are, the size and weight, and the formation of certain parts
as the cartilages, bones, &c. 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, as found by Maygrier, is here given.
- - Beck. - Maygrier. - Beck. - Maygrier. - -
- - Length. - Weight. - -
-30 days. -3 to 5 lines. -10 to 12 lines.- -9 to 10 grains.- - 2 Months -2
inches -4 inches. -2 ounces. -5 drachms. - - 3 do. -3€ inches. -6 inches.
-2 to 3 ounces. -2€ ounces. - - 4 do. -5 to 6 inches.-8 inches. -4 to 6
ounces. -7 to 8 ounces. - - 5 do. -7 to 9 inches -10 inches. -9 to 10 ounces.
-16 ounces. - - 6 do. -9 to 12 inches-12 inches. -1 to 2 pounds. -2 pounds. - -
7 do. -12 to 14 inches.-14 inches. -2 to 3 pounds. -3 pounds. - - 8 do. -16
inches. -16 inches. -3 to 4 pounds. -4 pounds. -
3. The discordance apparent between them proves that the observations
which have been made, are only an approximation to truth.
4. It is proper to remark that the Paris pound poids de marc, which was
the weight used by Maygrier, differs from avoirdupois weight used by Dr. Beck.
The pouud poids de marc, of sixteen ounces, contains 9216 Paris grains, whilst
the avoirdupois contains only 8532.5 Paris grains. The Paris inch is 1.065977
English inch. Vide, generally, 1 Beck's Med. Jur. 239; 2 Dunglison's Human
Physiology, 391; Ryauls Med. Jur. 137; 1 Chit. Med. Jur. 403; I Briand, Med.
Leg. prem. partie, c. 4, art. 2; and the articles Birth; Dead Born; Foeticide;
In ventre sa mere; infanticide; Life; and Quick with child.
FOLCMOTE. The name of a court among the Saxons. It was literally
an assembly of the people or inhabitants of the tithing or town, its
jurisdiction extended over disputes between neighbors, as to matters of
trespass in meadows, corn, and the like.
FOLD-COURSE, Eng. law. By this phrase is understood land used as
a sheepwalk; it also signifies land to which the sole right of folding the
cattle of others is appurtenant; sometimes it means merely such right of
folding. It is also used to denote the right of folding on another's land,
which is called common foldage. Co. Litt. 6 a, note 1; W. Jo. 375 Cro. Cal.
432; 2 Vent. 139.
FOLK-LAND, Eng. law. Land formerly held at the pleasure of the
lord, and resumed at his discretion. It was held in villenage. 2 Bl. Com.
FOOT. A measure of length, containing one-third of a yard, or
twelve inches. See Ell. Figuratively, it signifies the conclusion, the end; as,
the foot of the fine, the foot of the account.
FOOT OF THE FINE, estates, conveyancing. The fifth part of the
conclusion of a fine. It includes the whole matter, reciting the names of the
parties, day, year, and place, and before whom it was acknowledged or levied. 2
Bl. Com. 351.
FOR THAT, pleading. It is a maxim in law, regulating alike every
form of action, that the plaintiff shall state his complaint in positive and
direct terms, and not by way of recital. "For that," is a positive allegation;
"For that whereas," in Latin "quod cum," (q. v.) is a recital. Hamm. N. P.
FORBEARANCE, contracts. The act by which a creditor waits for
the payment of the debt due him by the debtor, after it has become due.
2. When the creditor agrees to forbear with his debtor, this is a
sufficient consideration to support an assumpsit made by the debtor. 4 John. R.
237; 2. Nott & McCord, 133; 2 Binn. R. 510; Com. Dig. Action upon the case
upon assumpsit, B 1; Dane's Ab. Index, h. t.; 1 Leigh's N. P. 31; 1 Penna. R.
385; 4 Wash. C. C. R. 148; 5 Rawle's R. 69.
3. The forbearance must be of some right which can be enforces with
effect against the party forborne; if it cannot be so enforced by the party
forbearing, he has sustained no detriment, and the party forborne has derived
no benefit. 4 East, 455 5 B. & Ald. 123. See 1 B. & A. 605 Burge on
Sur. 12, 13. Vide Giving time. FORCE. A power put in motion. It is: 1. Actual;
or 2. Implied.
2. - §1. If a person with force break a door or gate for an
illegal purpose, it is lawful to oppose force to force; and if one enter the
close of another, vi et armis, he may be expelled immediately, without a
previous request; for there is no time to make a request. 2 Salk. 641; 8 T. R.
78, 357. And see tit. Battery, §2. When it is necessary to rely upon
actual force in pleading, as in the case of a forcible entry, the words "manu
forti," or with a strong hand should be adopted. 8 T. R. 357 358. But in other
cases, the words "vi et armis," or " with force and arms," is sufficient.
3. - §2. The entry into the ground of another, without his
consent, is breaking his close, for force is implied in every trespass quare
clausum fregit. 1 Salk. 641; Co. Litt. 257, b; 161, b; 162, a; 1 Saund: 81,
140, n. 4 8 T: R. 78, 358; Bac. Ab. Trespass; this Dict. tit. Close. In the
case of false imprisonment, force is implied. 1 N. R. 255. And the same rule
prevails where a wife, a daughter or servant, have been enticed away or
debauched, though in fact they consented, the law considering them incapable of
consenting. See 3 Wils. 18; Fitz. N. B. 89, 0; 5 T. R. 361; 6 East, 387; 2 N.
R. 365, 454.
4. In general, a mere nonfeasance cannot be considered as forcible; for
where there has been no act, there cannot be force, as in the case of the mere
detention of goods without an unlawful taking. 2 Saund. 47, k 1. In general, by
force is understood unlawful violence. Co. Litt. 161, b.; Bouv. Inst. Index, h.
t. Vide Arms.
FORCE AND ARMS. The same as vi et armis. (q. v.)
FORCED HEIRS. In Louisiana they are those persons whom the
testator or donor cannot deprive of the porttion of his estate reserved for
them by law, except in cases where he has a just cause to disinherit them. Civ.
Code of Lo. art. 1482. As to the portion of the estate they are entitled to,
see the article Legitime. As to the causes for which forced heirs may be
deprived of this right, see Disinherison.
FORCIBLE ENTRY or DETAINER, crim. law. An offence committed by
unlawfully and violently taking or keeping possession of lands and tenements,
with menaces, force and, arms, and without the authority of law. Com. Dig. h.
2. The proceedings in case of forcible entry or detainer, are regulated
by statute in the several states. ( q. v.) The offence is generally punished by
indictment. 4 Bl. Com. 148 Russ. on Cr. 283. A forcible entry and a forcible
detainer, are distinct offences. 1 Serg. & Rawle, 124; 8 Cowen, 226.
3. In the civil and French law, a similar remedy is given for thing
offence. The party injured has two actions, a criminal or a civil. The action
is called actio interdictum undevie. In French, l'action reintegrande. Poth.
Proc. Civ. Partie 2, c. 3, art. 3; 11 Toull. Nos. 123, 134, 135, 137, pp. 179,
180, 182, and, generally, from p. 163. Vide, generally, 3 Pick. 31; 3 Halst. R.
48; 2 Tyler's R. 64; 2 Root's R. 411; Id . 472; 4 Johns. R. 150; 8 Johns. R.
44; 10 Johns. R. 304; 1 Caines' R. 125; 2 Caines' R. 98; 9 Johns. R. 147; 2
Johns. Cas. 400; 6 Johns. R. 334; 2 Johns. R. 27; 3 Caines' R. 104; 11 John. R.
504; 12 John. R. 31; 13 Johns. R. 158; Id. 340; 16 Johns. R. 141; 8 Cowen, 226;
1 Coxe's R. 258; Id. 260; 1 South. R. 125; 1 Halst. R. 396; 3 Id. 48; 4 Id. 37;
6 Id. 84; 1 Yeates, 501; Addis. R. 14, 17, 43, 316, 355; 3 Serg. & Rawle,
418; 3 Yeates, 49; 4 Dall. 212; 4 Yeates, 326; 3 Harr. & McHen. 428; 2 Bay,
R. 355; 2 Nott & McCord, 121; 1 Const. R. 325; Cam. & Norw. 337, 340;
Com. Dig. h. t.; Vin. &b. h. t.; Bac. Ab. h. t.; 2 Chit. Pr. 281 to
4. The civil law punished even the owner of an estate, in proportion to
the violence used, when he forcibly took possession of it, a fortiori, a
stranger. Domat, Supp. au Dr. Pub. 1. 3, t. 4, s. 3.
FORECLOSURE, practice. A proceeding in chancery, by which the
mortgagor's right of redemption of the mortgaged premises is barred or
2. This takes place when the mortgagor has forfeited his estate by
non-payment of the money due on the mortgage at the time appointed, but still
retains the equity of redemption; in such case the mortgagee may file a bill,
calling on the mortgagor, in a court of equity, to redeem his estate presently,
or in default thereof, to be forever closed or barred from any right of
3. In some cases, however, the mortgagee obtains a decree for a sale of
the land, under the direction of an officer of the court, in which case the
proceeds are applied to the discharge of encumbrances, according to their
priority. This practice has been adopted in Indiana, Kentucky, Maryland, South
Carolina, Tennessee, and Virginia. 4 Kent, Com., 180. When it is the practice
to foreclose without a sale, its severity is mitigated by enlarging the time of
redemption from six months to six months, or for shorter periods, according to
the equity arising from the circumstances. Id. Vide 2 John. Ch. R, 100; 6 Pick.
R. 418; 1 Sumn. R. 401; 7 Conn. R. 152; 5 N; H. Rep. 30; 1 Hayw. R. 482; 5 Han.
R. 554; 5 Yerg. 240; 2 Pick. R. 40; 4 Pick. R. 6; 2 Gallis. 154; 9 Cow n's R.
346; 4 Greenl. R. 495; Bouv. Inst. Index, h. t.
FOREHAND RENT, Eng. law. A species of rent which is a premium
given by the tenant at the time of taking the lease, as on the renewal of
leases by ecclesiastical corporations, which is considered in the nature of an
improved rent. 1 T. R. 486; 3 T. R. 461; 3 Atk. 473; Crabb. on R. P.
FOREIGN. That which belongs to another country; that which is
strange. 1 Peters, R. 343.
2. Every nation is foreign to all the rest, and the several states of
the American Union are foreign to each other, with respect to their municipal
laws. 2 Wash. R. 282; 4 Conn. 517; 6 Conn. 480; 2 Wend. 411 1 Dall. 458, 463 6
Binn. 321; 12 S. & R. 203; 2 Hill R. 319 1 D. Chipm. 303 7 Monroe, 585 5
Leigh, 471; 3 Pick. 293.
3. But the reciprocal relations between the national government and the
several states composing the United States are not considered as foreign, but
domestic. 9 Pet. 607; 5 Pet. 398; 6 Pet. 317; 4 Cranch, 384; 4 Gill & John.
1, 63. Vide Attachment, for foreign attachment; Bill of exchange, for foreign
bills of exchange; Foreign Coins; Foreign Judgment; Foreign Laws; Foreigners.
FOREIGN ATTACHMENT. The name of a writ. By virtue of a foreign
attachment, the property of an absent debtor is seised for the purpose of
compelling an appearance, and, in default of that, to pay the claim of the
plaintiff. Vide Attachment.
FOREIGN COINS, com. law. The money of foreign nations.
2. Congress have, from time to time, regulated the rates at which
certain foreign coins should pass. The acts now in force are the following.
3. The act of June 25, 1834, 4 Shaisw. Cont. of Story's L. U. S. 2373,
enacts, sec. 1. That from and after the passage of this act, the following
silver coins shall be of the legal value and shall pass current as money within
the United States, by tale, for the payment of all debts and demands, at the
rate of one hundred cents the dollar, that is to say, the dollars of Mexico,
Peru, Chili,.and Central America, of not less weight than four hundred and
fifteen grains each, and those re-stamped in Brazil of the like weight, of not
less fineness than ten ounces, fifteen pennyweights of pure silver, in the troy
pound of twelve ounces of standard silver; and five franc pieces of France,
when of not less fineness than ten ounces and sixteen pennyweights in twelve
ounces troy weight of standard silver, and weighing not less than three hundred
and eighty-four grains each, at the rate of ninety-three cents each.
4. The act of June 28, 1834, 4 Sharsw. Cont. of Story's L. U. S, 2377,
enacts) sect. 1. That from and after the thirtyfirst day of July next, the
following gold coins shall pass current as money within the United States, and
be receivable in all payments, by weight, for the payment of all debts and
demands, at the rates following, that is to say: the gold coins of Great
Britain and Portugal and Brazil, of not less than twenty-two, carats fine, at
the rate of ninety-four cents and eight-tenths of a cent per pennyweight; the
gold coins of France nine-tenths fine, at the rate of ninety-three cents and
one-tenth of a cent per pennyweight; and the gold coins of Spain, Mexico, and
Colombia, of the fineness of twenty carats three. grains and seven-sixteenths,
of a grain, at the rates of eighty-nine events and nine-tenths of a cent per
5. By the act of. March 3, 1823, 3 Story's L. U. S. 1923, it is
enacted, sect. 1. That from and after the passage of this act, the following
gold coins shall be received in all payments on account of public lands, at the
several and respective rates following, and not otherwise, viz.: the gold coins
of Great Britain and Portugal, and of their present standard, at the rate of
one hundred cents for every twenty-seven grains, or eighty-eight cents and
eight-ninths per pennyweight; the gold coins of France of their present
standard, at the rate of one hundred cents for every twenty-seven and a half
grains, or eighty-seven and a quarter cents per pennyweight; and the gold coins
of Spain of their present standard, at the rate of one hundred cents for every
twenty-eight and a half grains or, eighty-four cents per pennyweight.
6. The act of March 2, 1 799, 1 Story's L. U. S. 573, to regulate the
collection of duties on imports and tonnage, sect. 61, p. 626, enacts, That the
ad valorem rates of duty upon goods, wares, and merchandise, at the place
ofimportation, shall be estimated by adding twenty per cent to the actual costs
thereof, if imported from the Cape of Good Hope, or from any place beyond the
same; and ten per cent. on the actual cost thereof, if imported from any other
place or country, including all charges; commissions, outside packages, and
insurance, only excepted. That all foreign coins and currencies shall be
estimated at the following rates; each pound sterling of Great Britain, at four
dollars and forty-four cents; each livre tournois of France, at eighteen and a
half cents; each florin, or guilder of the United Netherlands, at forty cents;
each marc-banco of Hamburg, at thirty-three and one-third cents; each rix
dollar of Denmark, at one hundred cents: each rial of plate, and each rial o
vellon, of Spain, the former at ten cents, the latter at five cents, each; each
milree of Portugal, at one dollar and twenty-four cents; each pound sterling of
Ireland, at four dollars and ten cents; each tale o China, at one dollar and
forty-eight cents; each pagoda of India, at one dollar and ninety four cents;
each rupee, of Bengal, at fifty-five cents and one half; and all other
denominations of money, in value as nearly as may be to the said rates, or the
intrinsic value thereof, compared with money of the United States: Provided,
that it shall be lawful for the president of the United States to cause to be
established fit and proper regulations for estimating the duties on goods,
wares, and merchandise, imported into the United States, in respect to which
the original cost shall be exhibited in a depreciated currency, issued and
circulated under authority of any foreign government.
7. By the act of July 14 1832, s 16, 4 Sharsw. Cont. of Story's L. U.
S. 2326, the law is changed as to the value of the pound sterling, in
calculating the rates of dutics. It is thereby enacted, that from and after the
said third day of March, one thousand eight hundred and thirty-three, in
calculating the rate of duties, the pound sterling shall be considered and
taken as of the value of four dollars and eighty cents.
8 . The act of March 3, 1843, provides, That in all computations of the
value of foreign moneys of account at the custom houses of the United States,
the thaler of Prussia shall be deemed and taken to be of the value of
sixty-eight and one-half cents; the mii-reis of Portugal shall be deemed and
taken to be of the value of one hundred and twelve cents; the rix dollar of
Bremen shall be deemed and taken to be of the value of seventy-eight and three
quarter cents; the thaler of Bremen, of seventy-two grotes, shall be deemed and
taken to be of the value of seventy-one cents; that the mil-reis of Madeira
shall be deemed and taken to be of the value of one hundred cents; the mil-reis
of the Azores shall be deemed and taken to be of the value of eighty-three and
one-third cents; the marc-banco of Hamburg shall be deemed and taken to be of
the value, of thirty-five cents; the rouble of Russia shall be deemed and taken
to be of the value of seventy-five cents; the rupee of British India shall be
deemed and taken to be of the value of forty-four and one half cents; and all
former laws inconsistent herewith are hereby repealed.
9. And the act of May 22, 1846, further directs, That in all
computations at the custom-house, the foreign coins and money of account herein
specified shall be estimated as follows, to wit: The specie dollar of Sweden
and Norway, at one hundred and six cents. The specie dollar of Denmark, at one
hundred and five cents. The thaler of Prussia and of the Northern States of
Germany, at sixty-nine cents. The florin of the Southern States of Germany, at
forty cents. The florin of the Austrian empire, and of the city of Augshurg, at
forty-eight and one half cents. The lira of the Lombardo-Venetian Kingdom, and
the lira of Tuscany, at sixteen cents. The franc of France, and of Belgium, and
the lira of Sardinia, at eighteen cents six mills. The ducat of Naples, at
eighteen cents. The ounce of Sicily, at two dollars and forty cents. The pound
of the British provinces of Nova Scotia, New Brunswick, Newfoundland, and
Canada, at four dollars. And all laws inconsistent with this act are hereby
FOREIGN JUDGMENT, evidence, remedies. A judgment rendered in a
2. In Louisiana it has been decided that a judgment rendered by a
Spanish tribunal, under the former governmeut of the country, is not a foreign
judgment. 4 M. R. 301 Id. 310.
3. The subject will be considered with regard, 1st. To the manner of
proving such judgment; and 2d. Its efficacy.
4. - 1. Foreign judgments are authenticated in various ways; 1. By an
exemplification, certified under the great seal of the state or country where
it was rendered. 2. By a copy proved to be a true copy. 3. By the certificate
of an officer authorized by law, which certificate must, itself, be properly
authenticated. 2 Cranch, 238; 2 Caines' R. 155; 5 Cranch, 335; 7 Johns. R. 514
Mass. R. 273 2 Munf. R. 43 4 Camp. R. 28 2 Russ. on Cr. 723. There is a
difference between the judgments of courts of common law jurisdiction and
courts of admiralty, as to the mode of proof of judgments rendered by them.
Courts of admiralty are under the law of nations; certificates of such
judgments with their seals affixed, will therefore be admitted in evidence
without further proof. 5 Cranch, 335; 3 Conn. R. 171.
5. - 2. A judgment rendered in a foreign country by a court de jure, or
even a court defacto, 4 Binn. 371, in a matter within its jurisdiction, when
the parties litigant had been notified and have had an opportunity of being
heard, either establishing a demand, against the defendant or discharging him
from it, is of binding force. 1 Dall. R. 191; 9 Serg. & Rawle, 260; 10
Serg. & Rawle, 240; 1 Pet. C. C. R. 155; 1 Spears, Eq. Cas. 229; 7 Branch,
481. As to the plea of the act of limitation to a suit on a foreign judgment,
see Bac. Ab. h. t.; 2 Vern. 540; 5 John. R. 132; 13 Serg. & Rawle, 395; 1
Speer's, Eq. Cas. 219, 229.
6. For the manner of proving a judgment obtained in a sister state, see
the article Authentication. For the French law in relation to the force of
foreign judgments, see Dalloz, Dict. mot Etranger, art. 6.
FOREIGN LAWS, evidence. The laws of a foreign country. They will
be considered with regard to, 1. The manner in which they are to be proved. 2.
Their effect when proved.
2. - l. The courts do not judicially take notice of foreign laws, and
they must therefore be proved as facts. Cowp. 144; 3 Esp. C. 163 3 Campb. R.
166; 2 Dow & Clark's R. 171; 1 Cranch, 38; 2 Cranch, 187, 236, 237; 6
Cranch, 274; 2 Harr. & John. R. 193; 3 Gill & John. R. 234; 4 Conn. R.
517; 4 Cowen, R. 515, 516, note; Pet. C. C. R. 229; 8 Mass. R. 99; 1 Paige's R.
220 10 Watts, R. 158. The manner of proof varies according to circumstances. As
a general rule the best testimony or proof is required, for no proof will be
received which pre-supposes better testimony attainable by the party iybo
offers it. When the best testimony cannot be obtained, secondary evidence will
be received. 2 Cranch, 237.
3. Authenticated copies of written laws and other public documents must
be produced when they can be procured but should they be refused by the
competent authorities, then inferior proof may be admissible. Id.
4. When our own government has promulgated a foreign law or ordinance
of a public nature as authentic, that is held sufficient evidence of its
existence. 1 Cranch, 38 1 Dall. 462; 6 Binn. 321 12 Serg. & Rawle, 203.
5. When foreign laws cannot be proved by some mode which the law
respects as being of equal authority to an oath, they must be verified by the
sanction of an oath.
6. The usual modes of authenticating them are by an exemplification
under the great seal of a state; or by a copy proved by oath to be a true copy
- or by a certificate of an officer authorized by law, which must, itself, be
duly authenticated. 2 Cranch, 238; 2 Wend. 411; 6 Wend. 475; 5 Serg. &.
Rawle, 523; 15 Serg. & Rawle, 84: 2 Wash. C. C. R. 175.
7. Foreign unwritten laws, customs and usages, may be proved, and are
ordinarily proved by parol evidence; and when such evidence is objected to on
the ground that the law in question is a written law, the party objecting must
show that fact. 15 Serg. & R. 87; 2 L. R. 154. Proof of such unwritten law
is usually made by the testimony of witnesses learned in the law, and competent
to state it correctly under oath. 2 Cranch, 237; 1 Pet. C. C. R. 225; 2 Wash.
C. C. R. 175; 15 Serg. & R. 84; 4 John. Ch. R. 520; Cowp. 174; 2 Hagg. R.
App. 15 to 144.
8. In England certificates of persons in high authority have been
allowed as evidence in such cases. 3 Hagg. Eccl. R. 767, 769.
9. The public seal of a foreign sovereign or state affixed to a writing
purporting to be a written edict, or law, or judgment, is, of itself, the
highest evidence, and no further proof is required of such public seal. 2
Cranch, 238; 2 Conn. R. 85; 1 Wash. C. C. R. 363; 4 Dall. 413, 416; 6 Wend.
475; 9 Mod. 66.
10. But the seal of a foreign court is not, in general, evidence,
without further proof, and it must therefore be established by competent
testimony. 3 John. R. 310; 2 Harr. & John. 193; 4 Cowen, 526, n.; 3 East,
11. As courts of admiralty are courts under the laws of nations, their
seals will be admitted as evidence without further proofs. 5 Cranch, 335; 3
Conn. 171. This is an exception to the general rule.
12. The mode of authenticating the laws and records of the several
states of the American Union, is peculiar, and will be found under the article
Authentication. It may hereby be observed that the rules prescribed by acts of
congress do not exclude every other mode of authentication, and that the courts
may admit, proof of the acts of the legislatures of the several, states,
although not authenticated under the acts of congress. Accordingly a printed
volume, purporting on its face to contain the laws of a sister, state, is
admissible, as prima facie evidence; to prove the statute law of that state. 4
Cranch, 384; 12 S. & R. 203; 6 Binn, 321; 5 Leigh, 571.
13. - 2. The effect of such foreign laws, when proved, is properly
referable to the court; the object of the proof of foreign laws, is to enable
the ourt to instruct the jury what is, in point of law, the result from foreign
laws, to be applied to the matters in controversy before them. The court are
therefore to decide what is the proper evidence of the laws of a foreign
country; and when evidence is given of those laws, the court are to judge of
their applicability to the matter in issue. Story, Cont. of L. §638 2
Harr. & John. 193. 219; 4 Conn. R. 517; 3 Harr. & John. 234, 242; Cowp.
174. Vide Opinion.
FOREIGN NATION or STATE. A nation totally independent of the
United States of America
2. The constitution authorizes congress to regulate commerce with
"foreign nations." This phrase does not include an Indian tribe, situated
within the boundaries of a state, and exercising the powers of government and
sovereignty. 5 Pet. R. 1. Vide Nation.
FOREIGN PLEA. One which, if true, carries the cause out of the
court where it is brought, by showing that the matter alleged is not within its
jurisdiction. 2 Lill. Pr. Reg. 374; Carth. 402; Lill. Ent. 475. It must be on
oath and before imparlance. Bac. Ab. Abatement, R.
FOREIGNERS. Aliens; persons born in another country than the
United States, who have not been naturalized. 1 Pet. R. 349. Vide 8 Com. Dig.
615, and the articles Alien; Citizens.
FOREJUDGED THE COURT. An officer of the court who is expelled
the same, is, in the English law, said to be forejudged the court. Cunn. Dict.
FOREMAN. The title of the presiding member of a grand jury.
FOREST. By the English law, a forest is a circuit of ground
properly under the king's protection, for the peaceable living and abiding of
beasts of hunting and the chase, and distinguished not only by having bounds
and privileges, but also by having courts and offices. 12 do. 22. The
signification of forest in the United States is the popular one of an extensive
piece of woodland. Vide Purlieu.
FORTSTALLING, crim. law. Every practice or device, by act,
conspiracy, words, or news, to enhance the price of victuals or other
provisions. 3 Inst. 196; Bac. Ab. h. t.; 1 Russ. Cr. 169; 4 Bl. Com. 158.
2. All endeavors whatever to enhance the common price of any
merchandise, and all kinds of practices which have that tendency, whether by
spreading false rumors, or buying things in a market before the accustomed
hour, are offences at common law, and come under the notion of forestalling,
which includes all kind of offences of this nature. Hawk. P. C. b. 1 c. 8 0, s.
1. Vide 13 Vin. Ab. 430; Dane's Ab. Index, h. t.; 4 Com. Dig. 391 1 East, Rep.
FORFEITURE, punishment, torts. Forfeiture is a punishment
annexed by law to some illegal act, or negligence, in the owner of lands,
tenements, or hereditaments, whereby he loses all his interest therein, and
they become vested in the party injured, as a recompense for the wrong which he
alone, or the Public together with himself, hath sustained. 2 Bl. Com. 267.
2. Lands, tenements and hereditaments, may be forfeited by various
means: 1. By the commission of crimes and misdemeanors. 2. By alienation
contrary to law. 3. By the non-performance of conditions. 4. By waste.
3. - 1. Forfeiture for crimes. By the Constitution of the United
States, art. 3, s. 3, it is declared that no attainder of treason shall work
corruption of blood, or forfeiture, except during the life of the person
attainted. And by the Act of April 30, 1790, s. 24, 1 Story's Laws U. S. 88, it
is enacted, that no conviction or judgment for any of the offences aforesaid,
shall work corruption of blood, or any forfeiture of estate. As the offences
punished by this act are of the blackest dye, including cases of treason, the
punishment of forfeiture may be considered as being abolished. The forfeiture
of the estate for crime is very much reduced in practice in this country, and
when it occurs, the stater takes the title the party had, and no more. 4
Mason's R. 174; Dalrymple on Feudal Property, c. 4, p. 145-154; Fost. C. L.
4. - 2. Forfeiture by alienation. By the English law, estates less than
a fee may be forfeited to the party entitled to the residuary interest by a
breach of duty in the owner of the particular estate. When a tenant for life or
years, therefore, by feoffment, fine, or recovery, conveys a greater estate
than he is by law entitled to do, he forfeits his estate to the person next
entitled in remainder or reversion. 2 Bl. Com. 274. In this country, such
forfeitures are almost unknown, and the more just principle prevails, that the
conveyance by the tenant operates only on the interest which he possessed, and
does not affect the remainder-man or reversioner. 4 Kent, Com. 81, 82, 424; 1
Hill. Ab. c. 4, s. 25 to 34; 3 Dall. Rep. 486; 5 Ohio, R. 30.
5. - 3. Forfieture by non-performance of conditions. An estate may be
forfeited by a breach, or non-performance of a condition annexed to the estate,
either expressed in the deed at its original creation, or impliedly by law,
from a principle of natural reason. 2 Bl. Com. 281; and see Ad Eject. 140 to
173. Vide article Reentry; 12 Serg. & Rawle, 190.
6. - 4. Forfeiture by waste. Waste is also a cause of forfeiture. 2 Bl.
Com. 283. Vide article Waste.
7. By forfeiture is also understood the neglect of an obligor to fulfil
his obligation in proper time: as, when one has entered into a bond for a penal
sum, upon condition to pay a smaller at a particular day, and he fails to do
it, there is then said to be a forfeiture. Again, when a party becomes bound in
a certain sum by a recognizance to pay a certain sum, with a condition that he
will appear at court to answer or prosecute a crime, and he fails to do it,
there is a forfeiture of the recognizance. Courts of equity, and now courts, of
law, will relieve from the forfeiture of a bond; and upon a proper case shown,
criminal courts will in general relieve from the forfeiture of a recognizance
to appear. See 3 Yeates, 93; 2 Wash. C. C. 442 Blackf. 104, 200; Breeze, 257.
Vide, generally, 2 Bl. Com. ch. 18; Bouv. Inst. Index, h. t.; 2 Kent's Com;
318; 4 Id. 422; 10 Vin. Ab. 371, 394 13 Vin. Ab. 436; Bac. Ab. Forfeiture Com.
Dig. h. t.; Dane's Ab. h. t.; 1 Bro Civ. L. 252 4 Bl. Com. 382; and
Considerations on the Law of Forfeiture for High Treason, London ed. l746.
FORFEITURE OF MARRIAGE, Old law. The name of a penalty formerly
incurred by a ward in chivalry, when he or she married contrary to the wishes
of his or her guardian in chivalry. The latter, who was the ward's lord, had an
interest in controlling the marriage of his female wards, and he could exact a
price for his consent and, at length, it became customary to sell the marriage
of wards of both sexes. 2 Bl. Com . 70.
2. When a male ward refused an equal match provided by his guardian, he
was obliged, on coming of age, to pay him the value of the marrriage; that is,
as much as he had been bona fide offered for it; or, if the guardian chose, as
much as a jury would assess, taking into consideration all the real and
personal property of the ward; and the guardian could claim this value,
although he might have made no tender of the marriage. Co. Litt. 82 a; 2 Inst.
92 5 Co: 126 b; 6 Co. 70 b.
3. When a male ward between his age of fourteen and twenty-one years,
refused to accept an offer of an equal match, and during that period formed an
alliance elsewhere, without his permission, he incurred forfeiture of marriage;
that is, he became liable to pay double the value of, the, marriage. Co. Litt.
78 b, 82 b.
FORGERY, crim. law. Forgery at common law has been held to be
"the fraudulent making and alteration of a writing to the prejudice of another
man's right." 4 Bl. Com. 247. By a more modern writer, it is defined, as " a
false making; a making malo animo, of any written instrument, for the purpose
of fraud and deceit." 2 East, P. C. 852.
2. This offence at common law is of the degree of a misdemeanor. 2
Russel, 1437. There are many kinds of forgery, especially subjected to
punishment by statutes enacted by the national and state legislatures.
3. The subject will be considered, with reference, .1. To the making or
alteration requisite to constitute forgery. 2. The written instruments in
respect of which forgery may be committed. 3. The fraud and deceit to the
prejudice of another man's right. 4. The statory provisions under the laws of
the United States, on the subject of forgery.
4. - 1. The making of a whole written instrument in the name of another
with a fraudulent intent is undoubtedly a sufficient making but a fraudulent
insertion, alteration, or erasure, even of a letter, in any material part of
the instrument, whereby a new operation is given to it, will amount to a
forgery; and this, although it be afterwards executed by a person ignorant of
the deceit. 2 East, P. C. 855.
5. The fraudulent application of a true signature to a false instrument
for which it was not intended, or vice ve7-sa, will also be a forgery. For
example, it is forgery in an individual who is requested to draw a will for a
sick person in a particular way, instead of doing so, to insert legacies of his
own head, and then procuring the signature of such sick person to be affixed to
the paper without revealing to him the legacies thus fraudulently inserted.
Noy, 101; Moor, 759, 760; 3 Inst. 170; 1 Hawk. c. 70, s. 2; 2 Russ. on Cr. 318;
Bac. Ab. h. t. A.
6. It has even been intimated by Lord Ellenborough, that a party who
makes a copy of a receipt, and adds to such copy material words not in the
original, and then offers it in evidence on the ground that the original has
been lost, may be prosecuted for forgery. 5 Esp. R. 100.
7. It is a sufficient making where, in the writing, the party assumes
the name and character of a person in existence. 2 Russ. 327. But the adoption
of a false description and addition, where a false name is not assumed, and
there is no person answering the description, is not a forgery. Russ. & Ry.
8. Making an instrument in a fictitious name, or the name of a
non-existing person, is equally a forgery, as making it in the name of au
existing person; 2 East, P. C. 957; 2 Russ. on Cr. 328; and although a man may
make the instrument in his own name, if he represent it as the instrument of
another of the same name, when in fact there is no such person, it will be a
forgery in the name of a non-existing person.; 2 Leach, 775; 2 East, P. C. 963;
but the correctness of this decision has been doubted. Rosc. Cr. Ev. 384.
9. Though, in general, a party cannot be guilty of forgery by a mere
non-feasance, yet, if in drawing a will, he should fraudulently omit a legacy,
which he had been directed to insert, and by the omission of such bequest, it
would cause a material alteration in the limitation of a bequest to another;
as, where the omission of a devise of an estate for life to one, causes a
devise of the same lands to another to pass a present estate which would
otherwise have passed a remainder only, it would be a forgery. Moor, 760; Noy,
101; 1 Hawk. c. 70, s. 6; 2 East, P. C. 856; 2 Russ. on Cr. 320.
10. It may be observed, that the offence of forgery may be complete
without a publication of the forged instrument. 2 East, P. C. 855; 3 Chit. Cr.
11. - 2. With regard to the thing forged, it may be observed, that it
has been holden to be forgery at common law fraudulently to falsify, or falsely
make records and other matters of a public nature; 1 Rolle's Ab. 65, 68; a
parish register; 1 Hawk. c. 70; a letter in the name of a magistrate, the
governor of a gaol, directing the discharge of prisoner. 6 Car. & P. 129;
S. C. 25 Eng. C. L. R. 3 1 5.
12. With regard to private writings, it is forgery fraudulently to
falsify or falsely to make a deed or will; 1 Hawk. b. 1, c. 70, s. 10 or any
private document, whereby another person may be prejudiced. Greenl. Rep. 365;
Addis. R. 33; 2 Binn. R. 322; 2 Russ. on Or. b. 4, c. 32, s. 2; 2 East, P. C.
861; 3 Chit. Cr. Law, 1022 to 1038.
13. - 3. The intent must be to defraud another, but it is not requisite
that any one should have been injured it is sufficient that the instrument
forged might have proved prejudicial. 3 Gill & John. 220; 4 W. C. C. R.
726. It has been holden that the jury ought to infer an intent to defraud the
person who would have to pay the instrument, if it were genuine, although from
the manner of executing the forgery, or from the person's ordinary caution, it
would not be likely to impose upon him; and although the object was general to
defraud whoever might take the instrument, and the intention of the defrauding
in par ticular, the person who would have to pay the instrument, if genuine,
did not enter into the contemplation of the prisoner. Russ. & Ry. 291; vide
Russ.. on Cr. b. 4, c. 32, s. 3; 2 East, P. C. 853; 1 Leach, 367; 2 Leach, 775;
Rosc. Cr. Ev. 400.
14.- 4. Most, and perhaps all the states in the Union, have passed laws
making certain acts to be forgery, and the national legislature has also
enacted several on this subject, which are here referred to. Act of March 2,
1803, 2 Story's L. U. S. 888; Act of March 3, 1813, 2 Story's L. U. S. 1304 Act
of March 1, 1823, 3 Story's L. U. S. 1889; Act of March 3, 1825, 3 Story's L.
U. S. 2003; Act of October 12, 1837, 9 Laws U. S. 696.
15. The term forgery, is also applied to the making of false or
counterfeit coin. 2 Virg. Cas. 356. See 10 Pet. 613; 4 Wash. C. C. 733. For the
law respecting the forgery of coin, see article Money. And for the act of
congress punishing forgery in the District of Columbia, see 4 Sharsw. Cont, of
Story's Laws U. S. 2234. Vide, generally, Hawk. b. 1, c. 51 and 70; 3 Chit. Cr.
Law, 1022 to 1048; 4 Bl. Com. 247 to 250; 2 East, P. C. 840 to 1003; 2 Russ. on
Cr. b. 4, c. 32; 13 Vin. Ab. 459; Com. Dig. h. t.; Dane's Ab. h. t. Williams'
Just. h. t. Burn's Just. h. t.; Rose. Cr. Ev. h. t.; Stark. Ev. h. t. Vide
FORISFAMILIATION, law of Scotl. By this is understood the act by
which a father gives to a child his share of his legitime, and the latter
renounces all further claim. From this time, the child who has so received his
share, is no longer accounted 4 child in the division of the estate. Ersk.
Inst. 655, n. 23; Burt. Man. P. R. part 1, c. 2, s. 3, page 35.
FORM, practice. The model of an instrument or legal-proceeding,
containing the substance and the principal terms, to be used in accordance with
the laws; or, it is the act of pursuing, in legal proceedings, and in the
construction of legal instruments, the order required by law. Form is usually
put in contradistinction to substance. For example, by the operation of the
statute of 27 Eliz. c. 5, s. 1, all merely formal defects in pleading, except
in dilatory pleas, are aided on general demurrer.
2. The difference between matter of form, and matter of substance, in
general, under this statute, as laid down by Lord Hobart, is, that " that
without which the right doth sufficiently appear to the court, is form;" but
that any defect " by reason whereof the right appears not," is a defect in
substance. Hob. 233.
3. A distinction somewhat more definite, is, that if the matter pleaded
be in itself insufficient, without reference to the manner of pleading it, the
defect is substantial; but that if the fault is in the manner of alleging it,
the defect is formal. Dougl. 683. For example, the omission of a consideration
in a declaration in assumpsit; or of the performance of a condition precedent,
when such condition exists; of a conversion of property of the plaintiff, in
trover; of knowledge in the defendant, in an action for mischief done by his
dog of malice, in action for malicious prosecution, and the like, are all
defects in substance. On the other hand, duplicity; a negative pregnant;
argumentative pleading; a special plea, amounting to the general issue;
omission of a day, when time is immaterial; of a place, in transitory actions,
and the like, are only faults in form. Bac. Ab. Pleas, &c. N 5, 6; Com.
Dig. Pleader, Q 7; 10 Co. 95 a; 2 Str. 694 Gould; Pl. c. 9, §17, 18; 1 Bl.
4. At the same time that fastidious objections against trifling errors
of form, arising from mere clerical mistakes, are not encouraged or sanctioned
by the courts, it has been justly observed, that "infinite mischief has been
produced by the facility of the courts in overlooking matters of form; it
encourages carelessness, and places ignorance too much upon a footing with
knowledge amongst those who practice the drawing of pleadings." 1 B. & P.
59; 2 Binn. Rep. 434. See, generally, Bouv. Inst. Index, h. t.
FORMA PAUPERIS, English law. When a person is so poor that he
cannot bear the charges of suing at law or in equity, upon making oath that he
is not worth five pounds, and bringing a certificate from a counselor at law,
that he believes him to have a just cause, he is permitted to sue informa
pauperis, in the manner of a pauper; that is, he is allowed to have original
writs and subpoenas gratis, and counsel assigned him without fee. 3 Bl. Com.
400. See 3 John. Ch. R. 65; 1 Paige, R. 588; 3 Paige, R. 273; 5 Paige, R. 58; 2
Moll. R. 475; 1 Beat. R. 54.
FORMALITY. The conditions which must be observed in making
contracts, and the words which the law gives to be used in order to render them
valid; it also signifies the conditions which the law requires to make regular
FORMEDON, old English law. The writ of formedon is nearly
obsolete, it having been superseded by the writ of ejectment. Upon an
alienation of the tenant in tail, by which the estate in tail is discontinued,
and the remainder or reversion is by the failure, of the particular estate,
displaced and turned into a mere right, the remedy is by action of formedon,
(secundum formam doni,) because the writ comprehends the form of the gift. This
writ is in the nature of a writ of right, and the action of formedon is the
highest a tenant in tail can have. This writ is distinguished into three
species; a formedon in the descender, in the remainder, and in the reverter. 8
Bl. Com. 191 Bac. Ab. h. t.; 4 Mass. 64.
FORMER RECOVERY. A recovery in a former action.
2. It is a general rule, that in a real or personal action, a judgment
unreversed, whether it be by confession, verdict or demurrer, is a perpetual
bar, and may be pleaded to any new action of the same or a like nature, for the
same cause. Bac. Ab. Pleas, I 12, n. 2; 6 Co. 7; Hob. 4, 5 Ventr. 170.
3. There are two exceptions to this general rule. 1. The case of mutual
dealings between the parties, when the defendant omits to set off his counter
demand in that case he may recover in a cross action. 2. When the defendant in
ejectment neglects to bring forward his title, he may avail himself of a new
suit. 1 John Cas. 492, 502, 510. It is evident that in these cases the cause of
the second action is not the same as that of, the first, and, therefore, a
former recovery cannot be pleaded. In real actions, one is not a bar to an,
action of a. higher nature. 6 Co. 7. Vide 12 Mass. 337; Res Judicata; Thing
FORMULARY. A book of forms or precedents for matters of law; the
FORNICATION, crim. law. The unlawful carnal knowledge of an
unmarried person with another, whether the latter be married or unmarried. When
the party is married, the offence, as to him or her, is known by the name of
adultery. (q. v.) Fornication is, however, included in every case of adultery,
as a larceny is included in robbery. 2 Hale's P. C. 302.
FORPRISE. Taken before hand. This word is sometimes, though but
seldom, used in leases and conveyances, implying an exception or reservation.
Forprise, in another sense, is taken for any exaction. Cunn. Dict. h. t.
TO FORSWEAR, crim. law, torts. To swear to a falsehood.
2. This word has not the same meaning as perjury. It does not, ex vi
termini, signify a false swearing before an officer or court having authority
to administer an path, on an issue. A man may be forsworn by making a false
oath before an incompetent tribunal, as well as before a lawful court. Hence,
to say that a man is forsworn, will or will not be slander, as the
circumstances show that the oath was or was not taken before a lawful
authority. Cro. Car. 378; Lut. 1292; 1 Rolle, Ab. 39, pl. 7 Bac. Ab. Slander, B
3; Cro. Eliz. 609 13 Johns. R. 80 Id. 48 12 Mass. 496 1 Johns. R. 505 2 Johns.
R. 10; 1 Hayw. R, 116.
FORTHWITH. When a thing is to be done forthwith, it seems that
it must be performed as soon as by reasonable exertion, confined to that
object, it may be done. This is the import of the term; it varies, of course,
with every particular case. 4 Tyr. 837; Styles' Register, 452, 3.
FORTIORI or A FORTIORI. An epithet for any conclusion or
inference, which is much stronger than another. "If it be so, in a feoffment
passing a new right, a fortiori, much more is it for the restitution of an
ancient right." Co. Litt. 253, 260.
FORTUITOUS EVENT. A term in the civil law to denote that which
happens by a cause which cannot be resisted. Louis. Code, art. 2522, No. 7. Or
it is that which neither of the parties has occasioned, or could prevent. Lois
des Bat. Pt. 2, c. 2, §1. It is also defined to be an unforeseen event
which cannot be prevented. Dict. de Jurisp. Cas fortuit.
2. There is a difference between a fortuitous event or inevitable
accident, and irresistible force. By the former, commonly called the act of
God, is meant any accident produced by physical causes, which are irresistable;
such as a loss by lightning or storms, by the perils of the seas, by
inundations and earthquakes, or by sudden death or illness. By the latter is
meant such an interposition of human agency, as is, from its nature and power,
absolutely uncontrollable. Of this nature are losses occasioned by-the inroads
of a hostile army, or by public enemies. Story on Bailm. §25; Lois des
Bat. Pt. 2, c. 2, §1.
3. Fortuitous events are fortunate or unfortunate. The accident of
finding a treasure is a fortuitous event of the first class. Lois des Bat. Pt.
2, c. 2, §2.
4. Involuntary obligations may arise in consequence of fortuitous
events. For example, when, to save a vessel from shipwreck, it is necessary to
throw goods overboard, the loss must be borne in common; there arises, in this
case, between the owners of the vessel and of the goods remaining on board, an
obligation to bear proportionably the loss which has been sustained. Lois
desBit. Pt. 2, c. 2, §2. See, in general, Dig. 50, 17, 23; Id. 16, 3, 1;
Id. 19, 2, 11; Id. 44, 7, 1; Id. 18, 6, 10 Id. 13, 6, 18; Id. 26, 7, 50; Act of
God; Accident; Perils of the Sea.
FORUM. This term signifies jurisdiction, a court of justice, a
2. The French divide it into for exterieur, which is the authority
which human justice exercises on persons and property, to a greater or lesser
extent, according to the quality of those to whom it is entrusted; and for
interieur, which is the moral sense of justice which a correct conscience
dictates. Merlin, Repert. mot For.
3. By forum res sitae is meant the tribunal which has authority to
decide respecting something in dispute, located within its jurisdiction;
therefore, if the matter in controversy is land, or other immovable property,
the judgment pronounced in the forum res sitae is held to be of universal
obligation, as to all matters of right and title on which it professes to
decide, in relation to such property. And the same principle applies to all
other cases of proceedings in rem, where the subject is movable property,
within the jurisdiction of the court pronouncing the judgment. Story, Const.
Laws, §§532, 545, 551, 591, 592; Kaims on Eq. B. 3, c. 8, s. 4 1
Greenl. Ev. §541.
FORWARDING MERCHANT, contracts. A person who receives and
forwards goods, taking upon himself the expenses of transportation, for which
he receives a compensation from the owners, but who has no concern in the
vessels or wagons by which they are transported, and no interest in the
freight. Such an one is Dot deemed a common carrier, but a mere warehouseman or
agent. 12 Johns. 232; 7 Cowen's R. 497. He is required to use only ordinary
diligence in sending the property by responsible persons. 2 Cowen's R. 593.
FOSSA, Eng. law. A ditch full of water, where formerly women who
had committed a felony were drowned; the grave. Cowel, Int.
FOUNDATION. This word, in the English law, is taken in two
senses, fundatio incipiens, and fundatio perficiens. As to its political
capacity, an act of incorporation is metaphorically called its foundation but
as to its dotation, the first gift of revenues is called the foundation. 10 Co.
FOUNDLING. A new-born child, abandoned by, its parents, who are
unknown. The settlement of, such a child is in the place where found.
FOURCHER, English law. A French word, which means to fork.
Formerly, when an action was brought against two, who, being jointly concerned,
mere not bound to answer till both appeared, and they agreed not to appear both
in one day; the appearance of one, excused the other's default, who had a day
given him to appear with the other: the defaulter, on the day appointed,
appeared; but the first then made default; in this wanner they forked each
other, and practiced this for delay. Vide 2 Inst. 250; Booth, R. A. 16.
FRACTION. A part of any thing broken. A combination of numbers,
in arithmetic and algebra, representing one or more parts of a unit or integer.
Thus, four-fifths is a fraction, formed by dividing a unit into-five equal
parts, and taking one part four times. In law, the term fraction is usually
applied to the division of a day.
2. In general, there are no fractions in days. Co. Litt. 225 2 Salk.
625; 2 P. A. Browne, 18; II Mass. 204. But in some cases a fraction will be
taken into the account, in order to secure a party his rights; 3 Chit. Pr. 111;
8 Ves. 80 4 Campb. R. 197; 2 B. & Ald. 586; Savig. Dr. Rom. §182; Rob.
Dig. of Engl. Statutes in force in Pennsylvania, 431-2 and when it is required
by a special law. Vide article Date.
FRANC, com. law. The name of a French coin. Five franc pieces,
when not of less fineness than ten ounces and sixteen pennyweights in twelve
ounces troy weight of standard silver, and weighing not less than three hundred
and eighty-four grains each, are made a legal tender, at the rate of
ninety-three cents each. Act of June 25, 1834, s. 1, 4 Sharsw. Cont. of Story's
L. U. S. 2373.
2. In all computations at the custom house, the franc of France and of
Belgium shall be estimated at eighteen cents six. mills. Act of May 22, 1846.
See Foreign coins.
FRANCHISE. This word has several significations: 1. It is a
right reserved to the people by the constitution; hence we say, the elective
franchise, to designate the right of the people to elect their officers. 2. It
is a certain privilege, conferred by grant from the government, and Vested in
2. Corporations, or bodies politic, are the most usual franchises known
to our law. They have been classed among incorporeal hereditaments, perhaps
improperly, as they have no inheritable quality.
3. In England, franchises are very numerous; they, are said to be royal
privileges in the hands of a subject. Vide 3 Kent, Com. 366; 2 Bouv. Inst. n.
1686; Cruise,' Dig. tit. 27; 2 Bl. Com. 37; 15 Serg. & Rawle, 130; Finch,
FRANCIGENA. Formerly, in England, every alien was known by this
name, as Franks is the generic name of foreigners in the Turkish dominions.
FRANK. The privilege of sending and receiving letters, through
the mails, free of postage.
2. This privilege is granted to various officers, not for their own
special benefit, but with a view to promote the public good.
3. The Act of the 3d of March, 1845, s. 1, enacts, That members of
congress, and delegates from the territories, may receive letters, not
exceeding two ounces in weight, free of postage, during the recess of congress;
and the same privilege is extended to the vice-president of the United
4. It is enacted, by 3d section, That all printed or lithographed
circulars and handbills, or advertisements, printed or lithographed, on quarto
post or single cap paper, or paper not larger than single cap, folded,
directed, and unsealed, shall be charged with postage, at the rate of two cents
for each sheet, and no more, whatever be the distance the same may be sent; and
all pamphlets, magazines, periodicals, and every other kind and description of
printed or other matter, (except newspapers,) which shall be unconnected with
any manuscript communication whatever, and which it is or may be lawful to
transmit by the mail of the United States, shall be charged with postage, at
the rate of two and a balf cents for each copy sent, of no greater weight than
one ounce, and one cent additional shall be charged for each additional ounce
of the weight of every such pamphlet, magazine, matter, or thing, which may be
transmitted through the mail, whatever be the distance the tame may be
transported and any fractional excess, of not less than one-half of an ounce,
in the weight of any such matter or thing, above one or more ounces, shall be
charged for as if said excess amounted to a full ounce.
5. And, by the 8th section, That each member of the senate, each member
of the house of representatives, and each delegate from a territory of the
United States, the secretary of the senate, and the clerk of the house, of
representatives, may, during each session of congress, and for a period of
thirty days before the commencement, and thirty days after the end of each and
every session of congress, Bend and receive through the mail, free of postage,
any letter, newspaper, or packet, not exceeding two ounces in weight; and all
postage charged upon any letters, packages, petitions memorials, or other
matters or things, received during any session of congress, by any senator,
member, or delegate of the house of representatives, touching his official or
legislative duties, by reason of any excess of weight, above two ounces, on the
matter or thing so received, shall be paid out of the contingent fund of the
house of which the person receiving the same may be a member. And they shall
have the right to frank written letters from themselves during the whole year,
as now authorized by law.
6. The 5th section repeals all acts, and parts of acts, granting or
conferring upon any person whatsoever the franking privilege.
7. The 23d section enacts, That nothing in this act contained shall be
construed to repeal the laws granting the franking privilege to the president
of the United States when inoffice, and to all ex-presidents, and the widows of
the former presidents, Madison and Harrison.
8. The Act of March 1, 1847, enacts as follows
§3. That all members of Congress, delegates from territories, the
vice-president of the United States, the secretary of the senate, and the clerk
of the house of representatives, shall have the power to send and receive
public documents free of postage during their term of office; and that the said
members and delegates shall have the power to send and receive public
documents, free of Postage, up to the first Monday of December following the
expiration of their term of office.
§4. That the secretary of the senate and clerk of the house of
representatives shall have the power to receive, as well as to send, all
letters and packages, not weighing over two ounces, free of postage, during
their term of office.
§5. That members of congress shall have the power to receive, as
well as to send, all letters and packages, not weighing over two ounces, free
of postage, up to the first Monday in December following the expiration of
their term of office.
FRANK, FREE. This word is used in composition, as frank-almoign,
frank-marriage, frank-tenement, &c.
FRANK-ALMOIGN, old English law. This is a French law word,
2. Formerly religious corporations, aggregate or sole, held lands of
the donor, to them and their successors forever, in frank almoign. The service
which they, were bound to render for these lands was not certainly defined;
they were, in general, to pray for the souls of the donor; his ancestors, and
successors. 2 Bl. Com. 101.
FRANK-MARRIAGE, English law. It takes place, according to
Blackstone, when lands are given by one man to another, together with a wife
who is daughter or kinswoman of the donor, to hold in frank-marriage. By this
gift, though nothing but, the word frank-marriage is expressed, the donees
shall have the tenements to them and the heirs of their two bodies begotten
that is, they are tenants in special tail. It is called frank or free marriage,
because the donees are liable to no service but fealty. This is now obsolete,
even in England. 2 Bl. Com. 115.
FRANK-TENEMENT, estates. Same as freehold, (q. v.) or liberum
FRATER. A brother. Vide Brother.
FRATRICIDE, criminal law. He who kills his brother or sister.
The crime of such a person is also called fratricide.
FRAUD, TO DEFRAUD, torts. Unlawfully, designedly, and knowingly,
to appropriate the property of another, without a criminal intent.
2. Illustrations. 1. Every appropriation of the right of property of
another is not fraud. It must be unlawful; that is to say, such an
appropriation as is not permitted by law. Property loaned may, during the time
of the loan, be appropriated to the use of the borrower. This is not fraud,
because it is permitted by law. 2. The appropriation must be not only unlawful,
but it must be made with a knowledge that the property belongs to another, and
with a design to deprive him of the same. It is unlawful to take the property
of another; but if it be done with a design of preserving it for the owners, or
if it be taken by mistake, it is not done designedly or knowingly, and,
therefore, does not come within the definition of fraud. 3. Every species of
unlawful appropriation, not made with a criminal intent, enters into this
definition, when designedly made, with a knowledge that the property is
another's; therefore, such an appropriation, intended either for the use of
another, or for the benefit of the offender himself, is comprehended by the
term. 4. Fraud, however immoral or illegal, is not in itself a crime or
offence, for want of a criminal intent. It only becomes such in the cases
provided by law. Liv. System of Penal Law, 789.
FRAUD, contracts, torts. Any trick or artifice employed by one
person to induce another to fall into an error, or to detain him in it, so that
he may make an agreement contrary to his interest. The fraud may consist
either, first, in the misrepresentation, or, secondly, in the concealment of a
material fact. Fraud, force and vexation, are odious in law. Booth, Real
Actions, 250. Fraud gives no action, however, without damage; 3 T. R. 56; and
in matters of contract it is merely a defence; it cannot in any case constitute
a new contract. 7 Vez. 211; 2 Miles' Rep. 229. It is essentially ad hominem. 4
T. R. 337-8.
2. Fraud avoids a contract, ab initio, both at law and in equity,
whether the object be to deceive the public, or third persons, or one party
endeavor thereby to cheat the other. 1 Fonb. Tr. Equity, 3d ed. 66, note; 6th
ed. 122, and notes; Newl. Cont. 352; 1 Bl. R. 465; Dougl. Rep. 450; 3 Burr.
Rep. 1909; 3 V. & B. Rep. 42; 3 Chit. Com. Law, 155, 806, 698; 1 Sch. &
Lef. 209; Verpl. Contracts, passim; Domat, Lois Civ. p. 1, 1. 4, t. 6, s. 8, n.
3. The following enumeration of frauds, for which equity will grant
relief, is given by Lord Hardwicke, 2 Ves. 155. 1. Fraud, dolus malus, may be
actual, arising from facts and circumstances of imposition, which is the
plainest case. 2. It may be apparent from the intrinsic nature and subject of
the bargain itself; such as no man in his senses, and not under delusion, would
make on the one hand, and such as no honest and fair man would accept on the
other, which are inequitable and unconscientious bargains. 1 Lev. R. 111. 3.
Fraud, which may be presumed from the circumstances and condition of the
parties contracting. 4. Fraud, which may be collected and inferred in the
consideration of a court of equity, from the nature and circumstances of the
transaction, as being an imposition and deceit on other persons, not parties to
the fraudulent agreement. 5. Fraud, in what are called catching bargains, (q.
v.) with heirs, reversioners) or expectants on the life of the parents. This
last seems to fall, naturally, under one or more of the preceding
4. Frauds may be also divided into actual or positive and constructive
5. An actual or positive fraud is the intentional and successful
employment of any cunning, deception, or artifice, used to circumvent, cheat,
or deceive another. 1 Story, Eq. Jur. §186; Dig. 4, 3, 1, 2; Id. 2, 14, 7,
6. By constructive fraud is meant such a contract or act, which, though
not originating in any actual evil design or contrivance to perpetrate a
positive fraud or injury upon other persons, yet, by its tendency to deceive or
mislead. them, or to violate private or public confidence, or to impair or
injure the public interests, is deemed equally reprehensible with positive
fraud, and, therefore, is prohibited by law, as within the same reason and
mischief as contracts and acts done malo animo. Constructive frauds are such as
are either against public policy, in violation of some special confidence or
trust, or operate substantially as a fraud upon private right's, interests,
duties, or intentions of third persons; or unconscientiously compromit, or
injuriously affect, the private interests, rights or duties of the parties
themselves. 1 Story, Eq. ch. 7, §258 to 440.
7. The civilians divide frauds into positive, which consists in doing
one's self, or causing another to do, such things as induce a belief of the
truth of what does not exist or negative, which consists in doing or
dis-simulating certain things, in order to induce the opposite party. into
error, or to retain him there. The intention to deceive, which is the
characteristic of fraud, is here present. Fraud is also divided into that which
has induced the contract, dolus dans causum contractui, and incidental or
accidental fraud. The former is that which has been the cause or determining
motive of the contract, that without which the party defrauded would not have
contracted, when the artifices practised by one of the parties have been such
that it is evident, without them, the other would not have contracted.
Incidental or accidental fraud is that by which a person, otherwise determined
to contract, is deceived on some accessories or incidents of the contract; for
example, as to the quality of the object of the contract, or its price, so that
he has made a bad bargain. Accidental fraud does not, according to the
civilians, avoid the contract, but simply subjects the party to damages. It is
otherwise where the fraud has been the determining cause of the contract, qui
causam dedit contractui; in that case. the contract is void. Toull. Dr. Civ.
Fr. Liv. 3, t. 3, c. 2, n. §5, n. 86, et seq. See also 1 Malleville,
Analyse de la, Discusssion de Code Civil, pp. 15, 16; Bouv. Inst. Index, h. t.
Vide Catching bargain; Lesion; Voluntary Conveyance.
FRAUDS, STATUTE OF. The name commonly given to the statate 29
Car. II., c. 3, entitled " An act for prevention of frauds and perjuries." This
statute has been re-enacted in most. of the states of the Union, generally with
omissions, amendments, or alterations. When the words of the statute have been
used, the construction put upon them has also been adopted. Most of the acts of
the different states will be found in Anthon's Appendix to Shep. Touchst. See
also the Appendix to the second edition of Roberts on Frauds.
FRAUDULENT CONVEYANCE. A conveyance of property without any
consideration of value, for the purpose of delaying or bindering creditors.
These are declared void by the statutes 13 Eliz. c. 6, and 27 Eliz. c. 4, the
principles of which have been adopted in perhaps all the states of the American
Union. See Voluntary Conveyance.
2. But although such conveyance is void as regards purchasers and
creditors, it is valid as between the parties. 6 Watts, 429, 453; 5 Binn. 109;
1 Yeates, 291; 3 W. & S. 255; 4 Iredell, 102; 9 Pick. 93; 20 Pick. 247; 3
Mass. 573, 580; 4 Mass. 354; 1 Hamm. 469; 2 South. 738; 2 Hill, S. C. Rep. 488;
7 John. 161; 1 Bl. 262.
FREE. Not bound to servitude; at liberty to act as one pleases.
This word is put in opposition to slave.
2. Representatives and direct taxes shall be apportioned among the
several states, which may be included within this Union, according to their
respective numbers, which shall be determined by adding to the whole number of
free persons, including those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other persons. Const. U. S.
art. 1, s. 2. 3. It is also put in contradistinction to being bound as an
apprentice; as, an apprentice becomes free on attaining the age of twenty-one
4. The Declaration of Independence asserts that all men are born free,
and in at sense, the term includes all mankind.
FREE COURSE, Mar. law. Having the wind from a favorable
2. To prevent collision of vessels, it is the duty of the vessel having
a free course to give way to a vessel beating up. to windward and tacking. 3
Hagg. Adm. R. 215, 326. And at sea, it is the duty of such vessel, in meeting
another, to go to leeward. 3 Car. & P. 528. See 9 Car. & P. W. Rob.
225; 2 Dodson, 87.
FREE ships. By this is understood neutral vessels. Free ships
are sometimes considered as making free goods.
FREE WARREN, Eng. law. A franchise erected for the preservation
and custody of beasts and fowls of warren. 2 Bl. Com. 39; Co. Litt. 233.
FREEDMEN. The name formerly given by the Romans to those persons
who had been released from a State of servitude. Vide Liberti libertini.
FREEDOM, Liberty; the right to do what is not forbidden by law.
Freedom does not preclude the idea of subjection to law; indeed, it presupposes
the existence of some legislative provision, the observance of which insures
freedom to us, by securing the like observance from others. 2 Har. Cond. L. R.
FREEHOLD, estates. An estate of freehold is an estate in lands
or other real property, held by a free tenure, for the life of the tenant or
that of some other person; or for some uneertain period. It is called liberum
tenementum, frank tenement or freehold; it was formerly described to be such an
estate as could only be created by livery of seisin, a ceremony similar to the
investiture of the feudal law. But since the introduction of certain modern
conveyances, by which an estate of freehold may be created without livery of
seisin, this description is not sufficient.
2. There are two qualities essentially requisite to the existence of a
freehold estate. 1. Iramobility; that is, the subject-matter must either be
land, or some interest issuing out of or annexed to land. 2. A sufficient legal
indeterminate duration; for if the utmost period of time to which an estate can
last, is fixed and determined, it is not an estate of freehold. For example, if
lands are conveyed to a man and his heirs, or for his life, or for the life of
another, or until he shall be married, or go to Europe, he has an estate of
freehold; but if such lands are limited to a man for one hundred or five
hundred years, if he shall so long live, he has not an estate of freehold.
Cruise on Real Property t. 1, s. 13, 14 and 15 Litt. 59; 1 Inst. 42, a; 5 Mass.
R. 419; 4 Kent, Com. 23; 2 Bouv. Inst. 1690, et seq. Freehold estates are of
inheritance or not of inheritance. Cruise, t. 1, s. 42.
FREEHOLDER. A person who is the owner of a freehold estate.
FREEMAN. One who is in the enjoyment of the right to do whatever
he pleases, not forbidden by law. One in the possession of the civil rights
enjoyed by, the people generally. 1 Bouv. Inst. n. 164. See 6 Watts, 556:
FREIGHT, mar. law, contracts. The sum agreed on for the hire of
a ship, entirely or in part, for the carriage of goods from one port to
another; l3 East, 300, note; but in, its more extensive sense it is applied to
all rewards or compensation paid for the use of ships. 1 Pet. Adm. R. 206; 2
Boulay-Paty, t. 8, s. 1; 2 B. & P. 321; 4 Dall. R. 459; 3 Johns. R. 335; 2
Johns. R. 346; 3 Pardess, n. 705.
2. It will be proper to consider 1. How the amount of freight is to be
fixed. 2. What acts must be done in order to be entitled to freight. 3. Of the
lien of the master or owner.
3. - l. The amount of freight is usually fixed by the agreement of the
parties, and if there be no agreement, the amount is to be ascertained by the
usage of the trade, and the circumstances and reason of the case. 3. Kent, Com.
173. Pothier is of opinion that when the parties agree as to the conveyance of
the goods, without fixing a price, the master is entitled to freight at the
price usually paid for merchandise of a like quality at the time and place of
shipment, and if the prices vary he is to pay the mean price. Charte-part, n.
8. But there is a case which authorizes the master to require the highest
price, namelly, when goods are put on board without his knowledge. Id. n. 9.
When the merchant hires the whole ship for the entire voyage, he must pay the
freight though he does not fully lade the ship; he is of course only bound to
pay in proportion to the goods he puts on board, when he does not agree to
provide a full cargo. If the merchant agrees to furnish a return cargo, and he
furnishes none, and lets the ship return in ballast, he must make compensation
to the amount of the freight; this is called dead freight, (q. v.) in
contradistinction to freight due for the actual carriage of goods. Roccus, note
72-75; 1 Pet. Adm. R. 207; 10 East, 530; 2 Vern. R. 210.
4. - 2. The general rule is, that the delivery of the goods at the
place of destination, in fulfilment of the agreement of the charter party, is
required, to entitle the master or owner of the vessel to freight. But to this
rule there are several exceptions .
5.- 1. When a cargo consists of live stock, and some of the animals die
in the course of the voyage, without any fault or negligence of the master or
crew, and there is no express agreement respecting the payment of freight, it
is in general to be paid for all that were put on board; but when the contract
is to pay for the, transportation of them, then no freight is due for those
which die on the voyage. Molloy, b. 2, c. 4, s. 8 Dig. 14, 2, 10; Abb. Ship.
6.-2. An interruption of the regular course of the voyage, happening
without the fault of the owner, does not deprive him of his freight if the ship
afterwards proceed with the cargo to the place of destination, as in the case
of capture and recapture. 3 Rob. Adm. R. 101.
7. - 3. When the ship is foreed into a port short of her destination,
and cannot finish the voyage, if the owner of the goods will not allow the
master a reasonable time to repair, or to proceed in another ship, the master
will be entitled to the whole freight; and, if after giving his consent the
master refuse to go on, he is not entitled to freight.
8. - 4. When the merchant accepts of the goods at an intermediate port,
it is the general rule of marine law, that freight is to be paid according to
the proportion of the voyage performed, and the law will imply such contract.
The acceptance must be voluntary, and not, one forced upon the owner by any
illegal or violent proceedings, as, from it, the law implies a contract that
freight pro rata parte itineris shall be accepted and paid. 2 Burr. 883; 7 T.
R. 381; Abb. Shipp. part 3, c. 7, s. 13; 3 Binn. 445; 5 Binn. 525; 2 Serg.
& Rawle, 229; 1 W. C. C. R. 530; 2 Johns. R. 323; 7 Cranch, R. 358; 6
Cowen, R. 504; Marsh. Ins. 281, 691; 3 Kent, Com. 182; Com. Dig. Merchant, E 3
a note, pl. 43, and the cases there cited.
9. - 5. When the ship has performed the whole voyage, and has brought
only a part-of her cargo to the place of destination; in this case there is a
difference between a general ship, and a ship chartered for a specific sum for
the whole voyage. In the former case, the freight is to be paid for the goods
which may be, delivered at their place of destination; in the latter it has
been questioned whether the freight could be apportioned, and it seems, that in
such case a partial performance is not sufficient, and that a special payment
cannot be claimed except in special cases. 1 Johns. R. 24; 1 Bulstr. 167; 7 T.
R. 381; 2 Campb. N. P. R. 466. These are some of the excep tions to the general
rule, called for by principles of equity, that a partial performance is not
sufficient, and that a partial payment or rateable freight cannot be
10. - 6. In general, the master has a lien on the goods, and need not
part with them until the freight is paid; and when the regulations of the
revenue require them to be landed in a public warehouse, the master may enter
them in his own name and preserve the lien. His right to retain the goods may,
however, be waived either by an express agreement at the time of making the
original contract, or by his subsequent agreement or consent. Vide 18 Johns. R.
157; 4 Cowen, R. 470; 1 Paine's R. 358; 5 Binn. R. 392. Vide, generally, 13
Vin. Ab. 501 Com. Dig. Merchant, E 3, a; Bac. Ab. Merchant, D; Marsh. Ins. 91;
10 East, 394 13 East, 300, n.; 3 Kent, Com. 173; 2 Bro. Civ. & Adm. L. 190;
Merl. Rep. h. t. Poth. Charte-Partie, h. t.; Boulay-Paty, h. t.; Pardess.
FREIGHTER, contracts. He to whom a ship or vessel has been
hired. 3 Kent, Com. 173; 3 Pardess. n. 704.
2. The freighter is entitled to the enjoyment of the vessel according
to contract, and the vessel hired is the only one that he is bound to take
there can, therefore, be no substitution without his consent. When the vessel
has been chartered only in part, the freighter is only entitled to the space he
has contracted for; and in case of his occupying more room or putting on board
a greater weight, he must pay freight on the principles mentioned under the
article of freight.
3. The freighter is required to use the vessel agreeably to the
provisions of the charter party, or, in the absence of any such provisions,
according to the usages of trade he cannot load the vessel with merchandise
which would render it liable to condemnation for violating the laws of a
foreign state. 3 John. R. 105. The freighter is also required to return the
vessel as soon as the time for which he chartered her has expired, and to pay
FRESH PURSUIT. The act of pursuing cattle which have escaped, or
are being driven away from land, when they were liable to be distrained, into
other places. 3 Bouv. Inst. n. 2470.
FRESH SUIT, Eng. law. An earnest pursuit of the offender when a
robbery has been committed, Without ceasing, until he has been arrested or
discovered. Towl. Law Dict. h. t.
FRIBUSCULUM, civil law. A slight dissension between hushand and
wife, which produced a momentary separation, without any intention to dissolve
the marriage, in which it differed from a divorce. Poth. Pand. lib. 50, s. 106.
Vicat, Vocab. This amounted to a separation, (q. v.) in our law.
FRIENDLESS MAN. This name was sometimes anciently given to an
FRIGIDITY, med juris. The same as impotence. (q. v.)
FRUCTUS INDUSTRIALES. The fruits or produce of the earth which
are obtained by the industry of man, as growing corn.
FRUIT, property. The produce of tree or plant containing the
seed or used for food. Fruit is considered real estate, before it is separated
from the plant or tree on which it grows; after its separation it acquires the
character of personally, and may be the subject of larceny; it then has all the
qualities of personal property,
2. The term fruit, among the civilians, signifies not only the
production of trees and other plants, but all sorts of revenue of whatever kind
they may be. Fruits may be distinguished into two kinds; the first called
natural fruits, are those which the earth produces without culture, as bay, the
production of trees, minerals, and the like or with culture, as grain and the
like. Secondly, the other kind of fruits, known by the name of civil fruits,
are the revenue which is not produced by the earth, but by the industry of man,
or from animals, from some estate, or by virtue of some rule of law. Thus, the
rent of a house, a right of fishing, the freight of a ship, the toll of a mill,
are called, by a metaphorical expression, fruits. Domat, Lois Civ. liv. 3, tit.
5, s. 3, n. 3. See Poth. De la Communaute, n. 45.
FUERO JURGO. A Spanish code of laws, said to, be the most
ancient in Europe. Barr. on the Stat. 8, note.
FUGAM FECIT, Eng. law. He fled. This phrase, in an inquisition,
signifies that a person fled for treason or felony. The effect of this is to
make the party forfeit his goods absolutely, and the profits of his lands until
he has been pardoned or acquitted.
FUGITIVE. A runaway, one who is at liberty, and endeavors, by,
going away, to escape.
FUGITIVE SLAVE. One who has escaped from the service of his
2. The Constitution of the United States, art. 4, s. 2, 3, directs that
"no person held to service or labor in one state, under the laws thereof,
escaping into another, shall, in consequence of any laws or regulation therein,
be discharged from such service or labor, but shall be delivered up, on claim
of the party to whom such service or labor may be clue." In practice summary
ministerial proceedings are adopted, and not the ordinary course of judicial
investigations, to ascertain whether the claim of ownership be established
beyond all legal controversy. Vide, generally, 3 Story, Com. on Const.
§1804-1806; Serg. on Const. ch. 31, p. 387; 9 John. R. 62; 5 Serg. &
Rawle, 62; 2 Pick. R. 11; 2 Serg. & Rawle, 306; 3 Id. 4; 1 Wash. C. C. R.
500; 14 Wend. R. 507, 539; 18 Wend. R. 678; 22 Amer. Jur. 344.
FUGITIVE, FROM JUSTICE, crim. law. One who, having committed a
crime within a jurisdiction, goes into another in order to evade the law, and
avoid its punishment.
2. By the Constitution of the United States, art. 4, s. 2, it is
provided, that "a person charged in any state with treason, felony or other
crime, who shall flee from justice, and be found in another state, shall, on
demand of the executive authority of the same state from which he fled, be
delivered up, to be removed to the state having jurisdiction of the crime." The
act of thus delivering up a prisoner, is, by the law of nations, called
extradition. (q. v.)
3. Different opinions are entertained in relation to the duty of a
nation, by the law of nations, independently of any treaty stipulations, to
surrender fugitives from justice when' properly demanded. Vide 1 Kent, Com. 36;
4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle, 125; 3 Story,
Com. Const. United States, §1801; 9 Wend. R. 218; 2 John. R. 479; 6 Binn.
R. 617; 4 Johns. Ch. R. 113; 22 Am. Jur. 351: 24 Am. Jur. 226; 14 Pet. R. 540;
2 Caines, R. 213.
4. Before the executive of the state can be called upon to deliver an
individual, it must appear, first, that a proper and formal requisition of
another governor has been made; secondly, that the requisition was founded upon
an affidavit that the crime was committed by the person charged, or such other
evidence of that fact as may be sufficient; thirdly, that the person against
whom it is directed, is a fugitive from justice. 6 Law Report, 57.
FULL AGE. A. person is said to have full age at twenty-one
years, whether the person be a man or woman. See Age.
FULL COURT. When all the judges are present and properly
organized, it -is said there is a full court; a court in banc.
FULL DEFENCE, pleading. A denial of all wrong or injury. It is
expressed in the following formula: And the said C D, (the defendant,) by E F,
his attorney, comes, and defends the wrong or injury, (or force and injury,)
when and where it shall behoove him, and the damages and whatsoever else he
ought to defend." Bac. Ab. Pleas, &c. D; Co. Litt. 127 b; Lawes on Pl. 89;
2 Chit. Pl. 409; 2 Saund. 209 c; Gould on Pl. c. 2, §6. See Defence; Et
Cetera; Half Defence.
FUNCTION, office. Properly, the occupation of an office; by the
performance of its duties, the officer is said to fill his function. Dig. lib.
32, 1. 65, §1.
FUNCTIONARY. One who is in office or in some public
FUNCTUS OFFICIO. This term is applied to something which once
had life and power, but which now has no virtue whatsoever; as, for example, a
warrant of attorney on which a judgment has been entered, is, functus officio,
and a second judgment, cannot be entered by virtue of its authority. When
arbitrators cannot agree and choose an umpire, they are said to be functi
officio. Watts. on Arb. 94. If a bill of exchange be sent to the drawee, and he
passes it to the credit of the holder, it is functus officio, and cannot be
further negotiated. 5 Pick., 85. When an agent has completed the business with
which he was entrusted,.his agency is functus officio. 2 Bouv. Inst. n.
FUNDAMENTAL. This word is applied to those laws which are the
foundation of society. Those laws by which the exercise of power is restrained
and regulated, are fundamental. The Constitution of the United States is the
fundamental law of the land. See Wolff, Inst. Nat. §984.
FUNDED DEBT. That part of the national debt for which certain
funds are appropriated towards the payment of the interest.
FUNDING SYSTEM, Eng. law. The name given to a plan which
provides that on the creation of a public loan, funds shall immediately be
formed, and secured by law, for the payment of the interest, until the state
shall redeem the whole, and also for the gradual redemption of the capital
itself. This gradual redemption of the capital is called the sinking of the
debt, and the fund so appropriated is called the sinking fund.
FUNDS. Cash on hands; as, A B is in funds to pay my bill on him;
stocks, as, A B has $1000 in the funds. By public funds is understood, the
taxes, customs, &c . appropriated by the, government for the discharge of
FUNDUS, civil raw. Any portion of land whatever, without
considering the use or employ to which it is applied.
FUNERAL EXPENSES. Money expended in procuring the interment of a
2. The person who orders the funeral is responsible personally for the
expenses, and if the estate of the deceased should be insolvent, he must lose
the amount. But if there are assets sufficient to pay these expenses, the
executor or administrator is bound, upon an implied assumpsit, to pay them. 1
Campb. N. P. R. 298; Holt, 309 Com. on Contr. 529; 1 Hawke's R. 394; 13 Vin.
3. Frequent questions arise as to the amount which is to be allowed to
the executor or administrator for such expenses. It is exceedingly difficult to
gather from the numerous cases which have been, decided upon this subject, any
certain rule. Courts of equity have taken into consideration the circumstances
of each case, and when the executors have acted with common prudence and in
obedience to the will, their expenses have been allowed. In a case where the
testator directed that his remains should be buried at a church thirty miles
distant from the place of his death, the sum of sixty pounds sterling was
allowed. 3 Atk. 119. In another case, under peculiar circumstances, six hundred
pounds were allowed. Preced. in Ch. 29. In a case in Pennsylvania, where the
intestate left a considerable estate, and no children, the sum of two hundred
and fifty-eight dollars and seventy-five cents was allowed, the greater part of
which had been expended in erecting a tombstone over a vault in which the body
was interred. 14 Serg. & Rawle, 64.
4. It seems doubtful whether the hushand can call upon the separate
personal estate of his wife, to pay her funeral expenses. 6 Madd. R. 90. Vide 2
Bl. Com. 508; Godolph. p. 2 3 Atk. 249 Off. Ex. 174; Bac. Ab. Executors,
&c., L 4; Vin. Ab. h. t.
FUNGIBLE. A term used in the civil, French, and Scotch law, it
signifies anything whatever, which consists in quantity, and is regulated by
number, weight, or measure; such as corn, wine, or money.. Hein. Elem. Pand.
Lib. 12, t. 1, §2;.1 Bell's Com. 225, n. 2; Ersk. Pr. Scot. Law, B. 3, t.
1, §7; Poth. Pret de Consomption, No. 25; Dict. de Jurisprudence, mot
Fongible Story, Bailm, §284; 1 Bouv. Inst. n. 987, 1098.
FURCA. The gallows. 3 Inst. 58.
FURIOSUS. An insane man; a madman; a lunatic.
2. In general, such a man can make no contract, because he has no
capacity or will: Furiosus nullum negotium genere potest, quia non intelligit
quod agit. Inst. 3, 20, 8. Indeed, he is considered so incapable of exercising
a will, that the law treats him as if he were absent: Furiosi nulla voluntas
est. Furiosus absentia loco est. Dig. lib. 1, tit. ult. 1. 40, 1. 124, §1.
See Insane; Non compos mentis.
FURLINGUS. A furlong, or a furrow oneeighth part of a mile long.
Co. Litt. 5. b.
FURLONG. A measure of length, being forty poles, or one-eighth
of a mile. Vide Measures.
FURLOUGH. A permission given in the army and-navy to an officer
or private to absent himself for a limited time.
FURNITURE. Personal chattels in the use of a family. By the term
household furniture in a will, all personal chattels will pass which may
contribute to the use or convenience of the householder, or the ornament of the
house; as, plate, linen, china, both useful and ornamental, and pictures. Amb.
610; 1 John. Ch. R. 329, 388; 1 Sim. & Stu. 189; S. C. 3 Russ. Ch. Cas.
301; 2 Williams on Ex. 752; 1 Rop. on Leg. 203-4; 3 Ves. 312, 313.
FURTHER ASSURANCE. This phrase is frequently used in covenants,
when a covenantor has granted an estate, and it is supposed some further
conveyance may be required. He then enters into a covenant for further
assurance, that is, to make any other conveyance which may be lawfully
FURTHER HEARING, crim. law, practice. Hearing at another
2. Prisoners are frequently committed for further hearing, either when
there is not sufficient evidence for a final commitment, or because the
magistrate has not time, at the moment, to hear the whole of the evidence. The
magistrate is required by law, and by every principle of humanity, to hear the
prisoner as soon as possible after a commitment for further hearing; and if he
neglect to do so within a reasonable time, he becomes a trespasser. 10 Barn.
& Cresw. 28; S. C. 5 Man. & Ry. 53. Fifteen days were held an
unreasonable time, unless under special circumstances. 4 Carr. & P. 134; 4
Day, 98; 6 S. & R. 427.
3. In Massachusetts, magistrates may by statute, adjourn the case for
ten days. Rev. Laws, 1 3 5, s. 9.
4. It is the practice in England to commit for three days, and then from
three days to three days. 1 Chitty's Criminal Law, 74.
FUTURE DEBT. In Scotland this term is applied to a debt which
though created is not due, but is to become so at a future day. 1 Bell's Com.
315, 5th ed.
FUTURE STATE, evidence. A state of existence after this
2. A witness who does not believe in any future state of existence was
formerly inadmissible as a witness. The true test of a witnesses competency, on
the ground of his religious principles, is, whether he believes in the
existence of a God, who will punish him if he swears falsely; and within this
rule are comprehended those who believe future punishments will not be eternal.
2 Watts' & Serg. 263. See the authorities cited under the article Infidel.
But it seems now to be settled, that when the witness believes in a God who
will reward or punish him, even in this world, he is competent. Willes, 550.