Bouvier's Law Dictionary, 1856 Edition

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Bouvier's Law Dictionary
1856 Edition

F, punishment, English law. Formerly felons were branded and = marked=20 with a hot iron, with this letter, on being admitted to the benefit of=20 clergy.

FACIO UT DES. A species of contract in the civil law, which = occurs=20 when a man agrees to perform anything for a price, either specifically = mentioned=20 or left to the determination of the law to set a value on it. As when a = servant=20 hires himself to his master for certain wages or an agreed sum of money. = 2 Bl.=20 Com. 445.

FACIO UT FACIAS. A species of contract in the civil law, which = occurs=20 when I agree with a man to do his work for him if he will do mine for = me. Or if=20 two persons agree to marry together, or to do any other positive acts on = both=20 sides. Or it may be to forbear on one side in consideration of something = done on=20 the other. 2 Bl. Com. 444.

FACT. An action; a thing done. It is either simple or = compound.

2. A fact is simple when it expresses a purely material act = unconnected with=20 any moral qualification; for example, to say Peter went into his house, = is to=20 express a simple fact. A compound fact contains the materiality of the = act, and=20 the qualification which that act has in its connexion with morals and, = the law.=20 To say, then, that Peter has stolen a horse, is to express a compound = fact; for=20 the fact of stealing, expresses at the same time, the material fact of = taking=20 the horse, and of taking him with the guilty intention of depriving the = owner of=20 his property and appropriating it to his own use; which is a violation = of the=20 law of property.

3. Fact. is also put in opposition to law; in every case which has to = be=20 tried there are facts to be established, and the law which bears on = those=20 facts.

4. Facts are also to be considered as material or immaterial. = Material facts=20 are those which are essential to the right of action or defence, and = therefore=20 of the substance of the one or the other - these must always be proved; = or=20 immaterial, which are those not essential to the cause of action these = need not=20 be proved. 3 Bouv. Inst. n. 3150-53.

5. Facts are generally determined by a jury,; but there are many = facts,=20 which, not being the principal matters in issue, may be decided by the = court;=20 such, for example, whether a subpoena has or has not been served; = whether a=20 party has or has not been summoned, &c. As to pleading material = facts, see=20 Gould. Pl. c. 3, s. 28. As to quality of facts proved, see 3 Bouv. Inst. = n.=20 3150. Vide Eng. Ece. R. 401-2, and the article Circumstances.

FACTO. In fact, in contradistinction to the lawfulness of the = thing;=20 it is applied to anything actually done. Vide Expostfacto.

FACTOR, contracts. An agent employed to sell goods or = merchandise=20 consigned or delivered to him by, or for his principal, for a = compensation=20 commonly called factorage or commission. Paley on Ag. 13; 1 Liverin. on = Ag. 68;=20 Story on Ag. =A733; Com. Dig. Merchant, B; Mal. Lex Merc. 81; Beawes, = Lex Merc.=20 44; 3 Chit. Com. Law, 193; 2 Kent, Com. 622, note d, 3d. ed.; 1 Bell's = Com. 385,=20 =A7408, 409 2 B. & Ald. 143. He is also called a commission = merchaut, or=20 consignee.

2. When he resides in the same state or country with his principal, = he is=20 called a home factor; and a foreign factor when he resides in a = different state=20 or country. 3 Chit. Com. Law, 193; 1 T. R. 112; 4 M. & S. 576; 1 = Bell's Com.=20 289, =A7313.

3. When the agent accompanies the ship, taking a cargo aboard, and it = is=20 consigned to him for sale, and he is to purchase a return cargo out of = the=20 proceeds, such agent is properly called a factor; he is, however, = usually known=20 by the name of a supercargo. Beawes, Lex More. 44, 47; Liverm. on Ag. = 69, 70; 1=20 Domat, b. 1, t. 16, =A73, art. 2.

4. A factor differs. from a broker, in some important particulars, = namely; he=20 may buy and sell for his principal in his own name, as well as in the = name of=20 his principal; on the contrary, a broker acting as such should buy and = sell in=20 the name of his principal. 3 Chit. Com. Law, 193, 2101 541; 2 B. & = Ald. 143,=20 148; 8 Kent, Com. 622, note d, 3d. ed. Again, a factor is entrusted with = the=20 possession, management, disposal, and control of the goods to be bought = and=20 sold, and has a special property and a lien on them; the broker, on the=20 contrary, has usually no such possession, management, control, or = disposal of=20 the goods, nor any such special property nor lien. Paley on Ag. 13, = Lloyd's ed;=20 1 Bell's Com. 385.

5. Before proceeding further it will be proper to consider the = difference=20 which exists in the liability of a home or domestic factor and a foreign = factor.

6 . By the usages of trade, or intendment of law, when domestic = factors are=20 employed in the ordinary business of buying and selling goods, it is = presumed=20 that a reciprocal credit between, the principal and the agent and third = persons=20 has been given. When a purchase has been made by such a factor, he, as = well as=20 his principal, is deemed liable for the debt; and in case of a sale, the = buyer=20 is responsible both to the factor and principal for the purchase money; = but this=20 presumption may be rebutted by proof of exclusive credit. Story, Ag. = =A7=A7267, 291,=20 293; Paley, Ag. 243, 371; 9 B. & C. 78; 15 East, R. 62.

7. Foreign factors, or those acting for principals residing in a = foreign=20 country, are held personally liable upon all contracts made by them for = their=20 employers, whether they describe themselves in the contract as agents or = not. In=20 such cases, the presumption is, that the credit is given exclusively to = the=20 factor. But this presumption may be rebutted by a proof of a contrary = agreement.=20 Story, Ag. =A7268; Paley, Ag. 248, 373; Bull. N. P. 130; Smith, Merc. = Law, 66; 2=20 Liverm. Ag. 249; 1 B. & P. 398; 15 East, R. 62; 9 B. & C. = 78.

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=20 diligence in his vocation; in general, he has a right to sell the goods, = but he=20 cannot pawn them. The latter, branch of this rule, however, is altered = by=20 statute in some of the states. See Act of Penna. April 14, 1834, =A73, = 4, 6,=20 postea, 20. He is bound to obey his instructions, but when he has none, = he may=20 and ought to act according to the general usages of trade sell for cash, = when=20 that is usual, or give credit on sales, when that is customary. He is = bound to=20 render a just account to his principal, and to pay him the moneys he may = receive=20 for him.

10. - 2. His rights. He has the right to sell the goods in his own = name; and,=20 when untrammeled by instructions, he may sell them at such times and for = such=20 prices, as, in the exercise of a just discretion, he may think best for = his=20 employer. 3 Man. Gran. & Scott, 380. He is, for many purposes, = between=20 himself and third persons, to be considered as the owner of the goods. = He may,=20 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=20 debtgor, unless, indeed, notice has been given by the principal to the = debtor=20 not to pay. He has a lien on the goods for advances made by him, and for = his=20 commissions.

11. Mr. Bell, in his Commentaries, vol. 1, page 265, 5th ed., lays = down the=20 following rules with regard to the rights of the principal, in those = cases in=20 which the goods in the factor's hands have been changed in the course of = his=20 transactions.

12. - 1. When the factor has sold the goods of his principal, and = failed=20 before the price of the goods has been paid, the principal is the = creditor, and.=20 entitled to a preference over the creditors of the factor. Cook's B. L. = 4th ed.=20 p. 400.

13. - 2. When bills have been taken for the price, and are still it = the=20 factor's hands, undiscounted at his failure; or where goods have been = taken in=20 return for those sold; the principal is entitled to them, as forming no = part of=20 the divisible fund. Willes, R. 400.

14. - 3. When the price has been paid in money, coin, bank notes, = &c., it=20 remains the property of the principal, if kept distinct as his. 5 T. la. = 277; 2=20 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=20 discounted, or when money coming into his hands has been paid away, the = endorsee=20 of the bill, or the person receiving the money, will be free from all = claim at=20 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=20 he is employed to sell goods, and receives a del credere commission, for = which=20 he engages to guarantee the payment to the principal, it is not the = practice to=20 communicate the names of the purchasers to the principal, except where = the=20 factor fails. Under these circumstances, the following points have the = principal=20 is the creditor of the buyer, and has a direct action against him for = the price.=20 Cook's B. L. 400; and vide Bull. N. P. 42 2 Stra. 1 1 82. But persons=20 contracting with the factor in his own name, and bona fide, are entitled = to set=20 off the factor's debt to them. 7 T. R. 360. 2. Where the factor is = entrusted=20 with the money or property of his principal to buy stock, bills, and the = like,=20 and misapplies it, the produce will be the principal's, if clearly=20 distinguishable. 8 M. & S. 562.

17. - 6. When the factor purchases goods for the behalf of his = principal, but=20 on his own general, current account, without mention of the principal, = the goods=20 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=20 principal that he has bought such a quantity of goods in consequence of = his=20 order, and that they are lying in his warehouse, or elsewhere, the = property=20 would seem to be vested in the principal.

18. It may therefore be laid down as a general rule, that when the = property=20 remitted by the principal, or acquired for him by his order, is found=20 distinguishable in the hands of the factor, capable of being traced by a = clear=20 and connected chain of identity, in no one link of it degenerating from = a=20 specific trust into a general debt, the creditors of the factor, who has = become=20 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=20 parte Sayers, 5 Ves. Jr. 169.

19. A factor has no right to barter the goods of his principal, nor = to pledge=20 them for the purpose of raising money for himself, or to secure a debt = he may=20 owe. See ante, 9-1. But he may pledge them for advances made to his = principal,=20 or for the purpose of raising money for him, or in order to reimburse = himself to=20 the amount of his own lien. 2 Kent, Com. 3d. ed:, 625 to 628; 4 John. = R., 103;=20 Story on Bailm. =A7325, 326, 327. Another exception to the general rule = that a=20 factor cannot pledge the goods of his principal, is, that he may raise = money b=20 pledging the goods, for the payment of 'duties, or any other charge or = purpose=20 allowed or justified by the usages of trade. 2 Gall. 13; 6 Serg. & = Rawle,=20 386; Paley on Ag. 217; 3 Esp. R. 182.

20. The legislature of Pennsylvania, by an act entitled " An act for = the=20 amendment of the law relating to factors passed April 14, 1834, have = made the=20 following provisions. This act was prepared by the persons appointed to = revise=20 the civil code of that state, and was adopted without alteration by the=20 legislature. It is here inserted, with a belief that it will be found = useful to=20 the commercial lawyer of the other states.

21. - =A71. Whenever any person entrusted with merchandise, and = having=20 authority to sell or consign the same, shall ship, or otherwise transmit = tile=20 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=20 faith of such consignment, to or for the use of the person in whose name = such=20 merchandise was shipped or transmitted.

23. - II. For any money or negotiable security, received for the use = of such=20 consignee, by the person, in whose name such merchandise was shipped or=20 transmitted.

24.- =A72. But such lien shall not exist for any of the purposes = aforesaid, if=20 such consignee shall have notice by the bill of lading, or otherwise,bef = ore the=20 time of such advance or receipt, that the person in whose name such = merchandise=20 was shipped or transmitted, is not the actual owner thereof.

25. - =A73. Whenever any consignee or factor, having possession of = merchandise,=20 with authority to sell the same, or having possession of any bill of = lading,=20 permit, certificate, receipt, or order, for the delivery of merchandise, = with=20 the like authority, shall deposit or pledge such merchandise, or any = part=20 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=20 acquire, by virtue of such contract, the same interest in, and authority = over,=20 the said merchandise, as, he would have acquired thereby if such = consignee or=20 factor had been the actual owner thereof. Provided, That such person = shall not=20 have notice by such document or otherwise, before the time of such = advance or=20 receipt, that the holder of such merchandise or document is not the = actual owner=20 of such merchandise.

26. - =A74. If any person shall accept or take such merchandise or = document=20 from any such consignee or factor, in deposit or pledge for any debt or = demand=20 previously due by, or existing against, such consignee or factor, and = without=20 notice as aforesaid, and if any person shall accept or take such = merchandise or=20 document from any such consignee or factor, in deposit or pledge, = without notice=20 or knowledge that the person making such deposit or pledge, is a = consignee or=20 factor only, in every such case the person accepting or taking such. = merchandise=20 or document in deposit or pledge, shall acquire the same right and = interest in=20 such merchandise as was possessed, or could have been enforced, by such=20 consignee or factor against his principal at the time of making such = deposit or=20 pledge, and further or other right or interest.

27. - =A75. Nothing in this act contained shall be construed or = taken:
I. To=20 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=20 same from such consignee or factor, before the same shall have been = deposited or=20 pledged as aforesaid, or from the assignees or trustees of such = consignee or=20 factor, in the event of his insolvency.

29. - III. Nor to prevent such owner from recovering any merchandise, = so as=20 aforesaid deposited or pledged, upon tender of the money, or of = restoration of=20 any negotiable instrument so advanced, or given to such consignee or = factor, and=20 upon tender of such further sum of money, or of restoration of such = other=20 negotiable instrument, if any, as may have been advanced or given by = such=20 consignee or factor to such owner, or on tender of a sum of money equal = to the=20 amount of such instrument.

30. - IV. Nor to prevent such owner from recovering, from the person=20 accepting or taking such merchandise in deposit or pledge, any balance = or sum.=20 of money remaining in his hands as the produce of the sale of such = merchandise,=20 after deducting the amount of money or the negotiable instrument so = advanced or=20 given upon the security thereof as aforesaid.

31. - =A76. If any consignee or factor shall deposite or pledge any = merchandise=20 or document as aforesaid, consigned or intrusted to him as a security = for any=20 money borrowed, or negotiable instrument received by such consignee or = factor,=20 and shall apply and dispose of the same to his own use, in violation of = good=20 faith, and with intent to defraud the owner of such merchandise, and if = any=20 consignee or factor shall, with the like fraudulent intent, apply or = dispose of,=20 to his own use, any money or negotiable instrument, raised or acquired = by the=20 sale or other disposition of such merchandise, such consignee or factor = shall,=20 in every such case, be deemed guilty of a misdemeanor, and shall be = punished by=20 a fine, not exceeding two thousand dollars, and by imprisonment, for a = term not=20 exceeding five years.

FACTORAGE. The wages or allowances paid to a factor for his = services;=20 it is more usual to call this commissions. 1 Bouv. Inst. n. 1013; 2 Id. = n.=20 1288.

FACTORY, Scotch law. A contract which partakes of a mandate = and=20 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=20 pleads non estfactum. (q. v.) Vide Deed; Fait.

FACTUM, French law. A memoir which contains summarily the fact = on=20 which a contest has happened, the means on which a party founds his = pretensions,=20 with the refutation of the means of the adverse party. Vide Brief.

FACULTY, canon law. A license; an authority. For example, the = ordinary=20 having the disposal of all seats in the nave of a church, may grant this = power,=20 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=20 heirs in gross; second, when it is to a person and his heirs, as = appurtenant to=20 a house which he holds in the parish. 1 T. R. 429, 432; 12 Co. R. = 106.

FACULTY, Scotch law. Equivalent to ability or pow-er. The term = faculty=20 is more properly applied to a power founded on the consent of the party = from=20 whom it springs, and not founded on property. Kames on Eq. 504.

FAILURE. A total defect; an omission; a non-performance. = Failure also=20 signifies a stoppage of payment; as, there has been a failure to-day, = some one=20 has stopped payment.

2. According to the French code of commerce, art. 437, every merchant = or=20 trader who suspends payment is in a state of failure. Vide Bankruptcy;=20 Insolvency.

FAILURE, OF ISSUE. When there is a want of issue to take an = estate=20 limited over by an executory devise.

2. Failure of issue is definite or indefinite. When the precise time = for the=20 failure of issue is fixed by the will, as is the case of a devise to = Peter, but=20 if he dies without issue living at the time of his death, then to = another, this=20 is a failure of issue definite. An indefinite failure of issue is the = very=20 converse or opposite of this, and it signifies a general failure of = issue,=20 whenever it may happen, without fixing any time, or a certain or = definite=20 period, within which it must happen. 2 Bouv. Inst. n. 1849.

FAILURE OF RECORD. The neglect to produce the record after = having=20 pleaded it. When a defendant pleads a matter, and offers to prove it by = the=20 record, and then pleads nul tiel record, a day is given to the defendant = to=20 bring in the record if he fails. to do so, he is said to fail, and there = being a=20 failure of record, the plaintiff is entitled to judgment. Termes de lay = Ley. See=20 the form of entering it; 1 Saund. 92, n. 3.

FAINT PLEADER. A false, fraudulent, or collusory manner of = pleading,=20 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=20 Alabama; Aik. Dig. 409, note; and in North Carolina, where they are = regulated by=20 statute. 1 N. C. Rev. St. 282. See Domat, Dr. Public, liv. 1, t. 7, s. = 3, n.=20 1.

FAIR-PLAY MEN. About the year 1769, there was a tract of = country in=20 Pennsylvania, situate between Lycoming creek and Pine creek, in which = the=20 proprietaries prohibited the making of surveys, as it was doubtful = whether it=20 had or had not been ceded by the Indians. Although settlements were = forbidden,=20 yet adventurers settled themselves there; being without the pale of = ordinary=20 authorities, the inhabitants annually elected a tribunal, in rotation, = of three=20 of their number, whom they denominated fair-play men, who had authority = to=20 decide all disputes as to boundaries. Their decisions were final, and = enforeed=20 by the whole community en masse. Their decisions are said to have been = just and=20 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=20 Marlebridge, 52 H. III., c. ii. Vide Beau Pleader.

FAIT, conveyancing. A deed lawfully executed. Com. Dig . h. = t.; Cunn.=20 Dictl. h. t.

FAITH. Probity; good faith is the very soul of contracts. = Faith also=20 signifies confidence, belief; as, full faith and credit ought to be = given to the=20 acts of a magistrate while acting within his jurisdiction. Vide Bona = fide.

FALCIDIAN LAW, civil law, plebiscitum. A statute or law = enacted by the=20 people, made during the reign of Augustus, on the proposition of = Falcidius, who=20 was a tribune in the year of Rome 714.

2. Its principal provision gave power to fathers of families to = bequeath=20 three-fourths of their property, but deprived them of the power to give = away the=20 other fourth, which was to descend to the heir.

3. The same rule, somewhat modified, has been adopted in Louisiana;=20 "donations inter vivos or mortis causal" says the Civil Code, art. 1480, = "cannot=20 exceed two-thirds of the property of, the disposer, if he leaves at his = decease=20 a legitimate child; one-half, if he leaves two children; and one-third, = if he=20 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=20 another, or to a stranger, in exclusion of the whole of them. Over his = real=20 estate, his wife has a right of dower, or a similar right given to her = by act of=20 assembly, in, perhaps, all the states.

FALSE Not true; as, false pretences; unjust, unlawful, as, = false=20 imprisonment. This his word, is frequently used in composition.

FALSE IMPRISONMENT. torts. Any intentional detention of the = person of=20 another not authorized by law, is false imprisonment. 1 Bald. 571; 9 N. = H. Rep.=20 491; 2 Brev. R. 157. It is any illegal imprisonment, without any process = whatever, or under color of process wholly illegal, without regard to = the=20 question whether any crime has been committed, or a debt due. 1 Chit. = Pr. 48; 5=20 Verm. 588; 3 Blackf. 46; 3 Wend. 350 5 Wend. 298; 9 John. 117; 1 A. K. = Marsh.=20 845; Kirby, 65; Hardin 249.

2. The remedy is, in order to be restored to liberty, by writ of = habeas=20 corpus, and to recover damages for the injury, by action of trespass vi = et=20 armis. To punish the wrong done to the public, by the false imprisonment = of an=20 individual, the offender may be indicted. 4 Bl. Com. 218, 219; 2 Burr. = 993. Vide=20 Bac. Ab. Trespass, D 3 Dane's Ab. Index, h. t. Vide 9 N. H. Rep. 491; 2 = Brev. R.=20 157; Malicious Prosecution; Regular and Irregular Process.

FALSE JUDGMENT, Eng. law. The name of a writ which lies when a = false=20 judgment has been given in the county court, court baron, or other = courts not of=20 record. F. N. B. 17, 18 3 Bouv. Inst. n. 3364.

FALSE PRETENCES, criminal law. False representations and = statements,=20 made with a fraudulent design, to obtain " money, goods, wares, and=20 merchandise-" with intent to cheat. 2 Bouv. Inst. n. 2308.

2. This subject may be considered under the following heads:. 1. The = nature.=20 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=20 it may be difficult to restrain false pretences to such as an ordinarily = prudent=20 man may avoid, yet it is not every absurd or irrational pretence which = will be=20 sufficient. 2 East, P. C. 828. It is not necessary that all the = pretences should=20 be false, if one of them, per se, is sufficient to constitute the = offence. 14=20 Wend. 547. And although other circumstances may have induced the credit, = or the=20 delivery of the property, yet it will be sufficient if the false = pretences had=20 such an influence that, without them, the credit would not have been = given, or=20 the property delivered. 11 Wend. R. 557; 14 Wend. R. 547; 13 Wend. Rep. = 87. The=20 false pretences must have been used before the contract was completed. = 14 Wend.=20 Rep. 546; 13 Wend. Rep. 311. In North Carolina, the cheat must be = effected by=20 means of some token or contrivance adapted to impose on an ordinary = mind. 3=20 Hawks, R. 620; 4 Pick. R. 178.

4. - 2. The wording of the statutes of the several states on this = subject is=20 not the same, as to the acts which are indictable. In Pennsylvania, the = words of=20 the act are, "every person who, with intent to cheat or defraud another, = shall=20 designedly, by color of any false token or writing, or by any false = pretence=20 whatever, obtain from any person any money, personal property or other = valuable,=20 things," &c. In Massachusetts, the intent must be to obtain "money, = goods,=20 wares, merchandise, or other things." Stat. of 1815, c. 136. In New = York, the=20 words are "money, goods, or chattels, or other effects." Under this = statute it=20 has been holden that obtaining a signature to a note; 13 Wend. R. 87; or = an=20 endorsement on a promissory note; 9 Wend. Rep. 190; fell within the = spirit of=20 the statute; and that where credit was obtained by false pretence, it = was also=20 within the statute. 12 John. R. 292.

5. - 3. There must be an intent to cheat or defraud same person. = Russ. &=20 Ry. 317; 1 Stark. Rep. 396. This may be inferred from a false = representation. 13=20 Wend. R. 87. The intent is all that is requisite; it is not necessary = that the=20 party defrauded should sustain any loss. 11 Wend. R. 18; 1 Carr. & = Marsh.=20 516, 537.

FALSE RETURN. A return made by the sheriff, or other = ministerial=20 officer, to a writ in which is stated a fact contrary to the truth, and=20 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=20 Esp. Cas. 475. See Falso retorno brevium.

FALSE TOKEN. A false document or sign of the existence of a = fact, in=20 general used for the purpose of fraud. Vide Token, and 2 Stark. Ev. = 563.

FALSEHOOD. A wilful act or declaration contrary to truth. It = is=20 committed either by the wilful act of the party, or by dissimulation, or = by=20 words. It is wilful, for example, when the owner of a thing sells it = twice, by=20 different contracts to different individuals, unknown to them; for in = this the=20 seller must wilfully declare the thing is his own, when he knows that it = is not=20 so. It is committed by dissimulation when a creditor, having an = understanding=20 with his former debtor, sells the land of the latter, although he has = been paid=20 the debt which was due to him.

2. Falsehood by word is committed when a witness swears to what he = knows not=20 to be true. Falsehood is usually attendant on crime. Roscoe, Cr. Ev. = 362.

3. A slander must be false to entitle the plaintiff to recover = damages. But=20 whether a libel be true or false the writer or publisher may be indicted = for it.=20 Bul N. P. 9; Selw. N. P. 1047 , note 6; 5 Co. 125; Hawk. B. 1, c. 73, s. = 6. Vide=20 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=20 material fact, the whole of his testimony must be rejected but still the = jury=20 may consider whether the wrong statement be of such character, as to = entitle the=20 witness to be believed in other respects. 5 Shepl. R. 267. See Lie.

TO FALSIFY, crim. law. To prove a thing to be false; as, " to = falsify=20 a record." Tech. Dict.; Co. Litt. 104 b. To alter or make false a = record. This=20 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=20 is enacted, that if any person shall feloniously steal, take away, = alter,=20 falsify, or otherwise avoid, any record, writ, process, or other = proceedings in=20 any of the courts of the United States, by means whereof any judgment = shall be=20 reversed, made void, or not take effect; or if any person shall = acknowledge, or=20 procure to be acknowledged, in any of the courts. aforesaid, any = recognizance,=20 bail, or judgment, in the name or names of any other person or persons = not privy=20 or consenting to the same, every such person, or persons, on conviction = thereof,=20 shall be fined not exceeding five thousand dollars, or be imprisoned not = exceeding seven years, and be whipped not exceeding thirty-nine = stripes'.=20 Provided nevertheless, that this act shall not extend to the = acknowledgment of=20 any judgment or judgments by any attorney or attorneys, duly admitted, = for any=20 person or persons against whom any such judgment or judgments shall be = had or=20 given.

TO FALSIFY, chancery practice. When a bill to open an account = has been=20 filed, the plaintiff is sometimes allowed to surcharge and falsify such = account;=20 and if any thing has been inserted that is a wrong charge, he is at = liberty to=20 show it, and that is a falsification. 2 Ves. 565; 11 Wheat. 237. See = Account=20 stated; Surcharge.

FALSO RETORNO BREVIUM, old English law. The name of a writ = which might=20 have been sued out against a sheriff, for falsely returning writs. Cunn. = Dict.

FAMILY, domestic relations. In a limited sense it signifies = the=20 father, mother, and children. In a more extensive sense it comprehends = all the=20 individuals who live under the authority of another, and includes the = servants=20 of the family. It is also employed to signify all the relations who = descend from=20 a common ancestor, or who spring from a common root. Louis. Code, art. = 3522, No.=20 16; 9 Ves. 323.

2. In the construction of wills, the word family, when applied to = personal=20 property is synonymous with kindred, or relations. It may, nevertheless, = be=20 confined to particular relations by the context of the will, or may be = enlarged=20 by it, so that the expression may in some cases mean children, or next = of kin,=20 and in others, may even include relations by marriage. 1 Rop. on Leg. = 115 1 Hov.=20 Supp. 365, notes, 6 and 7; Brown v. Higgs; 4 Ves. 708; 2 Ves. jr. 110; 3 = East,=20 Rep. 172 5 Ves. 156 1,7 Ves. 255 S. 126. Vide article Legatee. See Dig. = lib. 50,=20 t. 16, 1. 195, s. 2.

FAMILY ARRANGEMENTS. This term has been used to signify an = agreement=20 made between a father and his son, or children; or between brothers, to = dispose=20 of property in a different manner to that, which would otherwise take = place.

2. In these cases frequently the mere relation, of the parties will = give=20 effect to bargains otherwise without adequate consideration. 1 Chit. Pr. = 67 1=20 Turn. & Russ. 13.

FAMILY BIBLE. A Bible containing an account of the births, = marriages,=20 and deaths of the members of a family.

2 An entry, by the father, made in a Bible, stating that Peter, his = eldest=20 son, was born in. lawful wedlock of Maria, his wife, at a time = specified, is=20 evidence to prove the legitimacy of Peter. 4 Campb. 401. But the entry, = in order=20 to be evidence, must be an original entry, and, when it is not so, the = loss of=20 the original must be proved before the copy can be received. 6 Serg. = Rawle, 135.=20 See 10 Watts, R. 82.

FAMILY EXPENSES. The sum which it costs a man to maintain a=20 family.

2. Merchants and traders who desire to exhibit the true state of = their=20 affairs in their books, keep an exact account of family expenses, which, = in case=20 of failure, is very important, and at all times proper.

FAMILY MEETINGS. Family councils, or family meetings in = Louisiana, are=20 meetings of at least five relations, or in default of relations of = minors or=20 other persons on whose interest they are called upon to deliberate, then = of the=20 friends of such minors or other persons.

2. The appointment of the members of the family meeting is made by, = the=20 judge. The relations or friends must be selected from among those = domiciliated=20 in the parish in which the meeting is held; the relations are selected = according=20 to their proximity, beginning with the nearest. The relation is = preferred to the=20 connexion in the same degree, and among relations of the same degree, = the eldest=20 is preferred. The under tutor must also be present. 6 N. S. 455.

3. The family meeting is held before a justice of the peace, or = notary=20 public, appointed by the judge for the purpose. It is called for a fixed = day and=20 hour, by citations delivered at least three days before the day = appointed for=20 the purpose.'

4. The members of the family meeting, before commencing their = deliberations,=20 take an oath before the officer before whom the meeting is held,, to = give their=20 advice according to the best of their knowledge, touching the interests = of the=20 person on whom they are called upon to deliberate. The officer before = whom the=20 family meeting is held, must make a particular process-verbal of the=20 deliberations, cause the members of the family meeting to sign it, if = they know=20 how to sign, he must sign it himself, and deliver a copy to the parties = that=20 they may have it homologated. Civil Code of Louis. B. 1, tit. 8, c. 1, = s. 6,=20 art. 305 to 311; Code Civ. B. 1, tit. 10, c. 2, A. 4.

FAMOSUS LIBELLUS. Among the civilians these words signified = that=20 species of injuria which corresponds nearly to libel or slander.

FANEGA, Spanish law. A measure of land, which is not the same = in every=20 province. Diccionario de la Acad.; 2 White's Coll. 49. In Spanish = America, the=20 fanega consisted of six thousand and four hundred square varas or yards. = 2=20 White's Coll. 138.

FARE. It signifies a voyage or passage; in its modern = application, it=20 is the money paid for a passage. 1 Bouv. Inst. n. 1036.

FARM, estates. A portion or tract of land, some of which is=20 cultivated. 2 Binn. 238. In parlance, and for the purpose of description = in a=20 deed, a farm means: a messuage with out-buildings, gardens, orchard, = yard, and=20 land usually occupied with the same for agricultural purposes; Plowd. = 195 Touch.=20 93; 1 Tho. Co. Litt. 208, 209, n. N; but in the English law, and = particularly in=20 a description in a declaration in ejectment, it denotes a leasehold = interest for=20 years in any real property, and means anything which is held by a person = who=20 stands in the relation of tenant to a landlord. 6 T. R. 532; 2 Chit. Pl. = 879, n.=20 e.

2. By the conveyance of a farm, will pass a messuage, arable land, = meadow,=20 pasture, wood, &c., belonging to or used with it. 1 Inst. 5, a; = Touch. 93; 4=20 Cruise, 321; Bro. Grants, 155; Plowd. 167.

3. In a will, the word farm may pass a freehold, if it appear that = such was=20 the intention of the testator. 6 T. R. 345; 9 East, 448. See 6 East, = 604, n; 8=20 East, 339.

To FARM LET. These words in a lease have the effect of = creating a=20 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=20 life or years, although it be but of a small house and land, is called = farmer.=20 This word implies no mystery except it be that of hushandman. Cunn. = Dict. h. t.=20 In common parlance, a farmer is one who cultivates a farm, whether he be = the=20 owner of it or not.

FARO, crim. law. There is a species of game called faro-table, = or=20 faro-bank, which is forbidden by law in many states; and the persons who = keep it=20 for the purpose of playing for money or other valuable thing, may = generally be=20 indicted at common law for a nuisance. 1 Roger's Rec. 66. It is played = with=20 cards in this manner: a pack of cards is displayed on the table so that = the face=20 of each card may be seen by the spectators. The man who keeps the bank, = as it is=20 termed, and who is called the banker, sits by the table with another = pack of=20 cards, and a bag containing money, some of which is displayed, or = sometimes=20 instead of money, chips, or small pieces of ivory or other substance are = used.=20 The parties who play with the banker, are called punters or pointeurs. = Suppose=20 the banker and A, a punter, wish to play for five dollars, the banker = shuffles=20 the pack which he holds in his hand, while A lays his money intended to = be bet,=20 say five dollars, on any card he may choose as aforesaid. The banker = then runs=20 the cards alternately into two piles, one on the right the other on the = left,=20 until he reaches, in the pack, the card corresponding to that on which A = has=20 laid his money. If, in this alternative, the card chosen comes on the = right=20 hand, the banker takes up the money. If on the other, A is entitled to = five=20 dollars from the banker. Several persons are usually engaged at the same = table=20 with the banker. 1 Rog. Rec. 66, note; Encycl. Amer. h. t.

FARRIER. One who takes upon himself the public employment of = shoeing=20 horses.

2. Like an innkeeper, a common carrier, and other persons who assume = a public=20 employment, a farrier is bound to serve the public as far as his = employment=20 goes, and an action lies against him for refusing, when a horse is = brought to=20 him at a reasonable time for such purpose, if he refuse; Oliph . on = Horses, 131=20 and he is liable for the unskilfulness of himself or servant in = performing such=20 work 1 Bl. Com. 431; but not for the malicious act of the servant in = purposely=20 driving a nail into the foot of the horse, with the intention of laming = him. 2=20 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=20 natural law consists in maintaining them and educating them during their = infancy, and making a necessary provision for their happiness in life. = This=20 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=20 ability, even though they have property of their own. 1 Bro. C. C. 387; = 4 Mass.=20 R. 97; 2 Mass. R. 415 5 Rawle, 323. But he is not bound, without some = agreement,=20 to pay another for maintaining them; 9 C. & P. 497; nor is he bound = to pay=20 their debts, unless he has authorized them to be contracted. 38 E. C. L. = R. 195,=20 n. See 8 Watts, R. 366 1 Craig. & Phil. 317; Bind; Nother; Parent. = This=20 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=20 his lawful commands, and to correct with moderation his children for=20 disobedience. A father may delegate his power over the person of his = child to a=20 tutor or instructor, the better to accomplish the purposes of his = education.=20 This power ceases on the arrival of the child at the age of twenty-one = years.=20 Generally, the father is entitled to the services of his children during = their=20 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=20 one's hushand.

FATHER. PUTATIVE. A reputed father. Vide Putative father.

FATHOM. A measure of length, equal to six feet. The word is = probably=20 derived from the Teutonic word fad, which signifies the thread or yarn = drawn out=20 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=20 desipit. Ersk. Inst. B. 1, tit. 7, s. 48.

FAUBOURG. A district or part of a town adjoinng the principal = city;=20 as, a faubourg of New Orleans. 18 Lo. R. 286.

FAULT, contracts, civil law. An improper act or omission, = which arises=20 from ignorance, carelessness, or negligence. The act or omission must = not have=20 been meditated, and must have caused some injury to another. Lec. Elcm. = =A7783.=20 See Dolus, Negligence. 1 Miles' Rep. 40.

2. - 1. Faults or negligence are usually divided into, gross, = ordinary, and=20 slight: 1. Gross fault or neglect, consists in not observing that care = towards=20 others, which a man the least attentive, usually takes of his own = affairs. Such=20 fault may, in some cases, afford a presumption of fraud, and in very = gross cases=20 it approaches so near, as to be almost undistinguishable from it, = especially=20 when the facts seem hardly consistent with an honest intention. But = there may be=20 a gross fault without fraud. 2 Str. 1099; Story, Bailm. =A718-22; = Toullier, 1. 3,=20 t. 3, =A7231. 2. Ordinary faults consist in the omission of that care = which=20 mankind generally pay to their own concerns; that is, the want of = ordinary=20 diligence. 3. A slight fault consists in the want of that care which = very=20 attentive persons take of their own affairs. This fault assimilates = itself, and,=20 in some cases, is scarcely distinguishable, from mere accident, or want = of=20 foresight. This division has been adopted by common lawyers from the = civil law.=20 Although the civilians generally agree in this division, yet they are = not=20 without a difference of opinion. See Pothier, Observation generale, sur = le=20 precedent Traite, et sur les suivants; printed at the end of his Traite = des=20 Obligations, where he cites Accurse, Alciat, Cujas, Duaren, D'Avezan, = Vinnius,=20 and Heineccius, in support of this division. On the other side the = reader is=20 referred to Thomasius, tom. 2, Dissertationem, pago 1006; Le Brun, cited = by=20 Jones, Bailm. 27; and Toullier, Droit Civil Francais, liv. 3, tit. 3, = =A7231.

3. - 2. These principles established, different rules have been made = as to=20 the responsibilities of parties for their faults in relation to their = contracts.=20 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=20 the contract of sale, they are responsible for ordinary neglect.

6. - 3. In those contracts where the party receives the only = advantage, as in=20 the case of loan for use, he is answerable for his slight fault. Poth. = Observ.=20 Generale; Traite des Oblig. =A7142; Jones, Bailm. 119 Story, Bailm. 12. = See also=20 Ayliffe, Pand. 108. Civ. C. Lou. 3522; 1 Com. Dig. 41 3; 5 Id. 184; = Wesk. on=20 Ins. 370.

FAUX, French law. A falsification or fraudulent alteration or=20 suppression of a thing by words, by writings, or by acts without either. = Biret,=20 Vocabulaire des Six Codes.

2. The crimen falsi of the civil law. Toullier says, "Le faux = s'entend de=20 trois manieres: dans le sons le plus etendre, c'est l'alteration de la = verite,=20 avec ou sans mauvaises intentions; il est a peu pres synonyme de = mensonge; dans=20 un sens moins etendu, c'est l'alteration de la verite, accompagnee de = dol,=20 mutatio veritatis cum dolo facta; enfin, dans le sens etroit, ou plutot = legal du=20 mot, quand il s'agit de savoir si le faux est un crime, le faux est = I'alteration=20 frauduleuse de la verite, dans les determines et punis par la loi." Tom. = 9, n.=20 188. "Faux may be understood in three ways: in its most extended sense, = it is=20 the alteration of truth, with or without intention; it is nearly = synonymous with=20 lying; in a less extended sense, it is the alteration of truth, = accompanied with=20 fraud, mutatio veritatis cum dolo facta; and lastly, in a narrow, or = rather the=20 legal sense of the word, when it is a question to know if the faux be a = crime,=20 it is the fraudulent alteration of the truth, in those cases ascertained = and=20 punished by the law." See Crimen Falsi.

FAVOR. Bias partiality; lenity; prejudice.

2. The grand jury are sworn to inquire into all offences which have = been=20 committed, and of all violations of law, without fear, favor, or = affection. Vide=20 Grand Jury. When a juror is influenced by bias or prejudice, so that = there is=20 not sufficient ground for a principal challenge, he may nevertheless be=20 challenged for favor. Vide Challenge, and Bac. Ab. Juries, E; Dig. 50, = 17, 156,=20 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=20 lord, from whom or from whose ancestors, the tenant had received them. = By this=20 connexion the lord became bound to protect the tenant in the enjoyment = of the=20 land granted to him; and, on the other hand, the tenant was bound to be = faithful=20 to his lord,, and defend him against all his enemies. This obligation = was called=20 fidelitas, or fealty. 1 Bl. Com. 366; 2 Bl. Com. 86; Co. Litt. 67, b; 2 = Bouv.=20 Inst. n. 1566.

FEAR, crim. law. Dread, consciousness of approaching = danger.

2. Fear in the person robbed is one of the ingredients required. to=20 constitute a robbery from the person, and without this the felonious = taking of=20 the property is a larceny. It is not necessary that the owner of the = property=20 should be in fear of his own person, but fear of violence to the person = of his=20 child; 2 East, P. C. 718; or of his property; Id. 731 2 Russ. 72; is = sufficient.=20 2 Russ. 71 to 90. Vide Putting in fear, and Ayl. Pand. tit. 12, p. 106.; = Dig. 4,=20 2, 3 an d 6.

FEASTS. Certain established periods in the Christian church. = Formerly,=20 the days of the feasts of saints were used to indicate the dates of = instruments,=20 and memorable events. 18 Toull. n. 81. These are yet used in England; = there they=20 have Easter term, Hilary term, &c.

FEDERAL, government. This term is commonly used to express a = league or=20 compact between two or more states.

2. In the United States the central government of the Union is = federal. The=20 constitution was adopted "to form a more perfect union" among the = states, for=20 the purpose of self-protection and for the promotion of their mutual=20 happiness.

FEE, FEODUM or FEUDUM, estates. From the French, fief. A fee = is an=20 estate which may continue forever. The word fee is explained to signify = that the=20 land, or other subject of property, belongs to its owner, and is = transmissible,=20 in the case of an individual, to those whom the law appoints to succeed = him,=20 under the appellation of heirs; and in the case of corporate bodies, to = those=20 who are to take on themselves the corporate function; and from the = manner in=20 which the body is to be continued, are denominated successors. 1 Co. = Litt. 1,=20 271, 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,=20 according to their several natures and respective qualities. They 'may = with=20 propriety be divided into, 1. Fees simple. 2 . Fees determinable. 3. = Fees=20 qualified. 4. Fees conditional and 5. Fees tail.

3. - 1. A fee simple is an estate inlands or tenements which, in = reference to=20 the ownership of individuals, is not restrained to any heirs in = particular, nor=20 subject to any condition or collateral determination except the laws of = escheat=20 and the canons of descent, by which it may, be qualified, abridged or = defeated.=20 In other words, an estate in fee simple absolute, is an estate limited = to a=20 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=20 assigns forever" necessary to create it, although usually added. Co. = Litt. 7, b=20 9, b; 237, b Plowd. 28, b; 29, a; Bro. Abr. Estates, 4. 1 Co. Litt. 1, = b; Plowd.=20 557 2 Bl. Com. 104, 106 Hale's Analysis, 74. The word fee simple is = sometimes=20 used by the best writers on the law as contrasted with estates tail. 1 = Co. Litt.=20 19. In this sense, the term comprehends all other fees as well as the = estate,=20 properly, and in strict propriety of technical language, peculiarly'=20 distinguished by this appellation.

4. - 2. A determinable fee is an estate which may continue forever. = Plowd.=20 557; Shep. Touch. 97. It is a quality of this estate while it falls = under this=20 denomination, that it is liable to be determined by some act or event, = expressed=20 on its limitation, to circumscribe its continuance, or inferred by the = law as=20 bounding its extent. 2 Bl. Com. 109. Limitations to a man. and his = heirs, till=20 the marriage of such. a person shall take place; Cro. Jac. 593; 10 Vin. = Abr.=20 133; till debts shall be paid; Fearne, 187 until a minor shall attain = the age of=20 twenty-one years 3 Atk. 74 Ambler, 204; 9 Mod. 28 10 Vin. Abr. 203. = Feariae,=20 342; are instances of such a determinable fee.

5. - 3. Qualified fee, is an interest given on its, first limitation, = to a=20 man and to certain of his heirs, and not to extend to all of them = generally, nor=20 confined to the issue of his body. A limitation to a man and his heirs = on the=20 part of his father, affords an example of this species of estate. Litt. = 254 1=20 Inst. 27, a 220; 1 Prest. on Estates, 449.

6. - . A conditional fee, in the more general acceptation of the = term, is=20 when, to the limitation of an estate a condition is annexed, which = renders the=20 estate liable to be defeated. 10 Rep. 95, b. In this application of the = term,=20 either a determinable or a qualified fee may at the same time be a = conditional=20 fee. An estate limited to a man and his heirs, to commence on the = performance of=20 a condition, is also frequently described by this appellation. Prest. on = East.=20 476; 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.=20 5.

FEE FARM RENT, contracts, Eng. law. When the lord, upon the = creation=20 of a tenancy, reserves to himself and his heirs, either the rent for = which it=20 was before let to farm, or at least one-fourth part of that farm rent, = it is=20 called a fee farm rent, because a farm rent is reserved upon a grant in = fee. 2=20 Inst. 44.

FEES, compensation. Certain perquisites allowed by law to = officers=20 concerned in the administration of justice, or in the performance of = duties=20 required by law, as a recompense for their labor and trouble. Bac. Ab. = h. t.;=20 Latch, 18.

2. The term fees differs from costs in this, that the former are, as = above=20 mentioned, a recompense to the officer for his services, and the latter, = an=20 indemnification to the, party for money laid out and expended in his = suit. 11 S.=20 & R. 248; 9 Wheat. 262; See 4 Binn. 267. Vide Costs; Color of = office;=20 Exaction; Extortion.

FEIGNED ACTION, practice. An action brought on a pretended = right, when=20 the plaintiff has no true cause of action, for some illegal purpose. In = a=20 feigned action the words of the writ are true; it differs from false = action, in=20 which case the words of the writ are false. Co. Litt. 361, sect. 689. = Vide=20 Fictitious action.

FEIGNED issue, pract. An issue brought by consent of the = parties, or=20 the direction of a court of equity, or such courts as possess equitable = powers,=20 to determine before a jury some disputed matter of fact, which the court = has not=20 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 = self-murderer.

2. To be guilty of this offence, the deceased must have had the will = and=20 intention of committing it, or else be committed no crime. As he is = beyond the=20 reach of human laws, he cannot be punished; the English law, indeed, = attempts to=20 inflict a punishment by a barbarous burial of his body, and by = forfeiting to the=20 king the property which he owned, and which would belong to his = relations. Hawk.=20 P. C. c. 9; 4 Bl. Com. 189. The charter of privileges granted by William = Penn to=20 the inhabitants of Pennsylvania, contains the following clause: "If any = person,=20 through temptation or melancholy, shall destroy himself, his estate, = real and=20 personal, shall, notwithstanding, (descend to his wife and children, or=20 relations, as if he had died a natural death."

FELON, crimes. One convicted and sentenced for a felony.

2. A felon is infamous, and cannot fill any office, or become a = witness in=20 any case, unless pardoned, except in cases of absolute necessity, for = his own=20 preservation, and defence; as, for example, an affidavit in relation to = the=20 irregularity of a judgment in a cause in which he is a party. 2 Salk. R. = 461; 2=20 Str. 1148;. Martin's R. 25; Stark. Ev. part 2, tit. Infamy. As to the = effect of=20 a conviction in one state, where the witness is offered in another, see = 17 Mass.=20 R. 515 2 Harr. & McHen. R. 120, 378; 1 Harr. & Johns. R. 572. As = to the=20 effect upon a copartnership by one of the partners becoming a felon, see = 2 Bouv.=20 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=20 committed feloniously; no other word, nor any circumlocution, will = supply its=20 place. Com. Dig. Indictment, G 6; Bac. Ab. Indictment, G 1; 2 Hale, 172, = 184;=20 Hawk. B. 2. c. 25, s. 55 Cro. C. C. 37; Burn's Just. Indict. ix.; = Williams'=20 Just. Indict. iv.-, Cro. Eliz. 193; 5 Co. 121; 1 Chit. Cr. Law, 242.

FELONY, crimes. An offence which occasions a total forfeiture = of.=20 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,=20 5; 1 Russ. Cr. *42; 1 Chit. Pract. 14; Co. Litt . 391; 1 Hawk. P. C. c. = 37; 5=20 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,=20 are ours, nam fetus ventrem sequitur. Inst. 2, 1, 19; Dig. 6, 1, 5, 2. = The rule=20 is, in general, the same with regard to slaves; but when a female slave = comes=20 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; = Masculine.

FEME, or, more properly,

FEMME. Woman.

2. This word is frequently used in law. Baron and feme, hushand and = wife;=20 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=20 law, and will be treated as a feme sole, when the hushand is civiliter = mortuus.=20 Bac. Ab. Baron and Feme, M; see article, Parties to Actions, part 1, = section l,=20 =A77, n. 3; or where, as it has been decided in England, he is an alien = and has=20 left the country, or has never been in it. 2 Esp. R. 554; 1 B. & P. = 357. And=20 courts of equity will treat a married woman as a, feme sole, so as to = enable her=20 to sue or be sued, whenever her hushand has abjured the realm, been = transported=20 for felony, or is civilly dead. And when she has a separate property, = she may=20 sue her hushand in respect of such property, with the assist ance of a = next=20 friend of her own selection. Story, Eq. Pl. =A761; Story, Eq . Jur. = =A71368; and see=20 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=20 some rights and immunities, to which she would not be entitled as a feme = sole.=20 These are considered under the articles, Marriage, (q. v.) and Wife. (q. = v.)

5. A feme sole trader, is a married woman who trades and deals on her = own=20 account, independently of her hushand. By the custom of London, a feme = covert,=20 being a sole trader, may sue and be sued in the city courts, as a feme = sole,=20 with reference to her transactions in London. Bac. Ab. Baron and Feme, = M. 6. In=20 Pennsylvania, where any mariners or others go abroad, leaving their = wives at=20 shop-keeping, or to work for their livelihood at any other trade, all = such wives=20 are declared to be feme sole traders, with ability to sue and be sued, = without=20 naming the hushands. Act of February 22, 1718. See Poth. De la Puissance = du=20 Mari, n. 20.

7. By a more recent act, April 11, 1848, of the same state, it is = provided,=20 that in all cases where debts may be contracted for necessaries for the = support=20 and maintenance of the family of any married woman, it shall be lawful = for the=20 creditor, in such case, to institute suit against the hushand and wife = for the=20 price of such necessaries, and after obtaining a judgment, have an = execution=20 against the hushand alone and if no property of the said hushand be = found, the=20 officer executing the said writ shall so return, and thereupon an alias=20 execution may be issued, which may be levied upon and satisfied out of = the=20 separate property of the wife, secured to her under the provisions of = the first=20 section of this act. Provided, That judgment shall not be rendered = against the=20 wife, in such joint action, unless it shall have be proved that the debt = sued=20 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=20 man bequeathed all his mares to his son, his horses would not pass. = Vide: 3=20 Brev. R. 9 Gender; Man; Masculine.

FENCE. A building or erection between two contiguous estates, = so as to=20 divide them; or on the same estate, so as to divide one part from = another.

2. Fences are regulated by the local laws. In general, fences on = boundaries=20 are to be built on the line, and the expense, when made no more = expensively than=20 is required by the law, is borne equally between the parties. See the = following=20 cases on the subject. 2 Miles, 337, 395; 2 Greenl. 72; 11 Mass. 294; 3 = Wend.=20 142; 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=20 the land. 8 B. & C. 257, 259, note a. When built upon the land of = one of=20 them, it is his; but if it were built equally upon the land of both, at = their=20 joint expense, each would be the owner in severalty of the part standing = on his=20 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=20 another. It operates by transmutation of possession, and it is essential = to its=20 completion that the seisin be passed. Watk. Prin. Conv. 183. This term = also=20 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=20 common law. It signified, originally, the grant of a feud or fee; but it = came,=20 in time, to signify the grant of a free inheritance in fee, respect = being had to=20 the perpetuity of the estate granted, rather than to the feudal tenure. = The=20 feoffment was, likewise, accompanied by livery of seisin. The = conveyance, by=20 feoffment, with livery of seisin, has become infrequent, if not = obsolete, in=20 England; and in this country it has not been used in practice. Cruise, = Dig. t.=20 32, c. 4. s. 3; Touchs. c. 9; 2 Bl. Corn. 20; Co. Litt. 9; 4 Kent, Com. = 467;=20 Perk.. c. 3; Com. Dig. h. t.; 12 Vin. Ab. 167; Bac. Ab. h. t. in pr.; = Doct.=20 Plac. 271; Dane's Ab. c. 104, a. 3, s. 4. He who gives or enfeoffs is = called the=20 feoffor; and the person enfeoffed is denominated the feoffee. 2 Bl. Com. = 20. See=20 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=20 animals belong to the person who has captured them only while they are = in his=20 power for if they regain their liberty his property in them instantly = ceases,=20 unless they have animum revertendi, which is to be known only by their = habit of=20 returning. 2 Bl. Com. 386; 3 Binn. 546; Bro. Ab. Propertie, 37; Com. = Dig. Biens,=20 F; 7 Co. 17, b; 1 Chit. Pr. 87; Inst. 2, 1, 15; 13 Vin. Ab. 207.

3. Property in animals ferae naturae is not acquired by hunting them = and=20 pursuing them; if, therefore, another person kill such animal in the = sight of=20 the pursuer, he has a right to appropriate it to his own use. 3 Caines, = 175. But=20 if the pursuer brings the animal within his own control, as by = entrapping it, or=20 wounding it mortally, so as to render escape impossible, it then belongs = to him.=20 Id. Though if he abandons it, another person may afterwards acquire = property in=20 the animal. 20 John. 75. The owner of land has a qualified property in = animals=20 ferae naturae, when, in consequence of their inability and youth, they = cannot go=20 away. See Y. B. 12 H. VIII., 9 B, 10 A 2 Bl. Com. 394; Bac. Ab. Game. = Vide=20 Whelp.

FERM or FEARM. By this ancient word is meant land, fundus; (q. = v.)=20 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=20 other stream in boats or other vessels, for hire. 4 N. S. 426; S. C. 3 = Harr. Lo.=20 R. 341.

2. In England a ferry is considered a franchise which cannot be set = up=20 without the king's license. In most, perhaps all of the United States, = ferries=20 are regulated by statute.

3. The termini of a ferry are at the water's edge. 15 Pick. R. 254 = and see 8=20 Greenl. R. 367; 4 John. Ch. R., 161; 2 Porter, R. 296; 7 Pick. R. 448; 2 = Car.=20 Law Repos. 69; 2 Dev. R. 403; 1 Murph. 279 1 Hayw. R. 457; Vin. Ab. h. = t.; Com.=20 Dig. Piscary B: 6 B. & Cr. 703; 12 East, R. 333; 1 Bail. R. 469; 3 = Watts, R.=20 219 1 Yeates, R. 167; 9 S. & R. 26.

FERRYMAN. One employed in taking persons across a river or = other=20 stream, in boats or other contrivances at a ferry. The owner of a ferry = is not=20 considered a ferryman, when it is rented and in the possession of a = tenant.=20 Minor, R. 366.

2. Ferrymen are considered as common carriers, and are therefore the = legal=20 judges to decide when it is proper to pass over or not. 1 M'Cord, R. 444 = Id. 157=20 1 N. & M. 19; 2 N. & M. 17. They are to regulate how the = property to be=20 taken across shall be put in their boats or flats; 1 M'Cord 157; and as = soon as=20 the carriage is fairly on the drop or slip of a fat, although driven by = the=20 owner's servant, it is in possession of the ferryman, and he is = answerable. 1=20 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=20 is given without any unnecessary delay. Bac. Ab. Assise, A. The action = of Dower=20 is festinum remedium, and so is Assise.

FETTERS. A sort of iron put on the legs of malefactors, or = persons=20 accused of crimes.

2. When a prisoner is brought into court to plead he shall not be put = in=20 fetters. 2 Inst. 315; 3 Inst. 34; 2 Hale, 119; Hawk. b. 21 c. 28, s. 1 = Kel. 10;=20 1 Chitty's Cr. Law, 417. An officer having arrested a defendant on a = civil suit,=20 or a person accused of a crime, has no right to handcuff him unless it = is=20 necessary, or he has attempted to make his escape. 4 B. & C. 596; 10 = Engl.=20 C. L. Rep. 412, S. C.

FEUD. This word, in Scotland, signifies a combination of = kindred to=20 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,=20 only during the pleasure of the grantor, and called muncra; (q. v.) = afterwards=20 for life, called beneficia; (q. v.) and, finally, they were extended to = the=20 vassal and his sons, and then they acquired the name offeudal. Dalr. = Feud. Pr.=20 199.

FEUDAL. A term applied to whatever concerned a feud; as feudal = law:=20 feudal rights.

FEUDAL LAW. By this phrase is understood a political system = which=20 placed men and estates under hierarchical and multiplied distinctions of = lords=20 and vassals. The principal features of this system were the = following.

2. The right to all lands was vested in the sovereign. These were, = parcelled=20 out among the great men of the nation by its chief, to be held of him, = so that=20 the king had the Dominum directum, and the grantee or vassal, had what = was=20 called Dominum utile. It was a maxim nulle terre sans seigneur. These = tenants=20 were bound to perform services to the king, generally of a military = character.=20 These great lords again granted parts of the lands. they thus acquired, = to other=20 inferior vassals, who held under them, and were bound to perform = services to the=20 lord.

3. The principles of the feudal law will be found in Littleton's = Tenures=20 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=20 Tenures; Le Grand Coutumier; the Salic Laws; The Capitularies; Les=20 Establissements de St. touis; Assizes de Jerusalem; Poth. Des Fiefs. = Merl. Rep.=20 Feodalite; Dalloz, Dict. Feodalit 6; Guizot, Essais sur I'Histoire de = France,=20 Essai 5eme.

4. In the United States the feudal law never was in its full vigor, = though=20 some of its principles are still retained. "Those principles are so = interwoven=20 with every part of our jurisprudence," says Ch. J. Tilghman, 3 S. & = R. 447,=20 " that to attempt to eradicate them would be to destroy the whole. They = are=20 massy stones worked into the foundation of our legal edifice. Most of = the=20 inconveniences attending them, have been removed, and the few that = remain can be=20 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.=20 Ersk. Pr. of L. Scot. B. 2, t. 9, s. 23.

FIAT, practice. An order of a judge, or of an officer, whose=20 authority, to be signified by his signature, is necessary to = authenticate the=20 particular acts.

FICTION OF LAW. The assumption that a certain thing is true, = and which=20 gives to a person or thing, a quality which is not natural to it, and=20 establishes, consequently, a certain disposition, which, without the = fiction,=20 would be repugnant to reason and to truth. It is an order of things = which does=20 not exist, but which the law prescribe; or authorizes it differs from=20 presumption, because it establishes as true, something which is false; = whereas=20 presumption supplies the proof of something true. Dalloz, Dict. h. t. = See 1=20 Toull. 171, n. 203; 2 Toull. 217, n. 203; 11 Toull. 11, n. 10, note 2; = Ferguson,=20 Moral Philosophy, part 5, c. 10, s. 3 Burgess on Insolvency, 139, 140; = Report of=20 the Revisers of the Civil Code of Pennsylvania, March 1, 1832, p. 8.

2. The law never feigns what is impossible fictum est id quod factum = non est=20 sed fieri potuit. Fiction is like art; it imitates nature, but never = disfigures=20 it it aids truth, but it ought never to destroy it. It may well suppose = that=20 what was possible, but which is not, exists; but it will never feign = that what=20 was impossible, actually is. D'Aguesseau, Oeuvres, tome iv. page 427, = 47e=20 Plaidoyer.

3. Fictions were invented by the Roman praetors, who, not possessing = the=20 power to abrogate the law, were nevertheless willing to derogate from = it, under=20 the pretence of doing equity. Fiction is the resource of weakness, = which, in=20 order to obtain its object, assumes as a fact, what is known to be = contrary to=20 truth: when the legislator desires to accomplish his object, he need not = feign,=20 he commands. Fictions of law owe their origin to the legislative = usurpations of=20 the bench. 4 Benth. Ev. 300.

4. It is said that every fiction must be framed according to the = rules of=20 law, and that every legal fiction must have equity for its object. 10 = Co. 42; 10=20 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are not = allowed=20 to be carried further than the reasons which introduced them necessarily = require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. =A720.

5. The law abounds in fictions. That an estate is in abeyance; the = doctrine=20 of remitter, by which a party who has been disseised of his freehold, = and=20 afterwards acquires a defective title, is remitted to his former good = title;=20 that one thing done today, is considered as done, at a preceding time by = the=20 doctrine of relation; that, because one thing is proved, another shall = be=20 presumed to be true, which is the case in all presumptions; that the = heir,=20 executor, and administrator stand by representation, in the place of the = deceased are all fictions of law. "Our various introduction of John Doe = and=20 Richard Roe," says Mr. Evans, (Poth. on Ob. by Evans, vol. n. p. 43,) = "our=20 solemn process upon disseisin by Hugh Hunt; our casually losing and = finding a=20 ship (which never was in Europe) in the parish of St. Mary Le Bow, in = the ward=20 of Cheap; our trying the validity of a will by an imaginary, wager of = five=20 pounds; our imagining and compassing the king's death, by giving = information=20 which may defeat an attack upon an enewy's settlement in the antipodes = our=20 charge of picking a pocket, or forging a bill with force and arms; of = neglecting=20 to repair a bridge, against the peace of our lord the king, his crown = and=20 dignity are circumstances, which, looked at by themselves, would convey = an=20 impression of no very favorable nature, with respect to the wisdom of = our=20 jurisprudence." Vide 13 Vin. Ab. 209; Merl. Rep. h. t.; Dane's Ab. = Index, h. t.;=20 and Rey, des Inst. de I'Angl. tome 2, p. 219, where he severely cesures = these=20 fictions as absurd and useless.

FICTITIOUS Pretended; supposed; as, fictitious actions; = fictitious=20 payee.

FICTITIOUS ACTIONS, Practice. Suits brought. on pretended = rights.

2. They are sometimes brought, usually on a pretended wager, for the = purpose=20 of obtaining the opinion of the court on a point of law. Courts of = justice were=20 constituted for the purpose of deciding really existing questions of = right=20 between parties, and they are not bound to answer impertinent questions = which=20 persons think proper to ask them in the form of an action on a wager. 12 = East,=20 248. Such an attempt has been held to be a contempt of court; and Lord = Hardwicke=20 in such a case committed the parties and their attorneys. Rep. temp. = Hardw. 237.=20 See also Comb. 425; 1. Co. 83; 6 Cranch, 147-8. Vide Feigned = actions.

3. The court of the king's bench fined an attorney forty pounds for = stating a=20 special case for the opinion of the court, the greater part of which = statement=20 was fictitious. 3 Barn. & Cr. 597; S. C. 10 E. C. L. R. 193.

FICTITIOUS PAYEE, contract. A supposed person; a payee, who = has no=20 existence.

2. When the name of a fictitious payee has been used, in making a = bill of=20 exchange, and it has been endorsed in such name, it is considered as = having the=20 effect of a bill payble to bearer, and a bona fide holder, ignorant of = that=20 fact, may recover on it, against all prior parties who were privy, to = the=20 transaction. 2 H. Bl. 178, 288; 3 T. R. 174, 182, 481; 3 Bro. C. C. 238. = Vide=20 Bills of Exchange, =A71.

FIDEI-COMMISSARY, civil law. One who has a beneficial interest = in an=20 estate, which, for a time, is committed to the faith or trust of = another. This=20 term has nearly, the same meaning as cestui que trust has in our law. 2 = Bouv.=20 Inst. n. 1895, note.

FIDEI-COMMISSUM, civil law. A gift which a man makes to = another,=20 through the agency of a third person, who is requested to perform the = desire of=20 the giver. For example, when a testator writes, "I institute for my = heir, Lucius=20 Titius," he may add, "I pray my heir, Lucius Titius, to deliver, as soon = as he=20 shall be able, my succession to Caius Seius: cum igitur aliquis = scripserit=20 Lucius Tilius heres esto; potest ajicere, rogo te Luci Titi, ut cum = poteris=20 hereditatem meam adire, eam Caio Sceio reddas, restituas. Inst. 2, 23, = 2; vide=20 Code 6, 42.

2. Fidei-commissa were abolished in Louisiana by the code. 5 N. S. = 302.

3. The uses of the common law, it is said, were borrowed from the = Roman=20 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=20 entails, though some writers have declared that the Roman law was a = stranger to=20 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=20 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=20 debtor with his principal, while the former is not liable till the = principal has=20 failed to fulfil his engagement. Dig. 12, 4, 4; Id. 16, 1, 13; Id. 24, = 3, 64;=20 Id. 38, 1, 37; Id. 50, 17, 110, and 14, 6, 20; Hall's Pr. 33; Dunl. Ad. = Pr. 300;=20 Clerke's Prax. tit. 63, 4, 5.

3. The obligation of the fide-jussor was an accessory contract, for, = if the=20 principal obligation was not previously contracted, his engagement then = took the=20 name of mandate. Lec. Elem. =A7872; Code Nap. 2012.

FIDUCIA, civil law. A contract by which we sell a thing to = some one,=20 that is, transmit to him the property of the thing, with the solemn = forms of=20 emancipation, on condition that he will sell it back to us. This species = of=20 contract took place in the emancipation of children, in testaments, and = in=20 pledges. Poth. Pand. h. t.

FIDUCIARY. This term is borrowed from the civil law. The Roman = laws=20 called a fiduciary heir, the person who was instituted heir, and who was = charged=20 to deliver the succession to a person designated by the testament. Merl. = Repert.=20 h. t. But Pothier, Pand. vol. 22, h. t., says that fiduciarius heres = properly=20 signifies the person to whom a testator has sold his inheritance, under = the=20 condition that he should sell it to another. Fiduciary may be defined to = be, in=20 trust, in confidence.

2. A fiduciary contract is defined to be, an agreement by which a = person=20 delivers a thing to another, on the condition that he will restore it to = him.=20 The following formula was employed:' Ut inter bonos agere opportet, ne = propter=20 te fidemque tuam frauder. Cicer. de Offc. lib. 3, cap. 13; Lec. du Dr. = Civ. Rom.=20 =A7237, 238. See 2 How. S. C. Rep. 202, 208; 6 Watts & Serg. 18; 7 = Watts,=20 415.

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=20 reward; with a condition annexed that the possessor should do service = faithfully=20 both at home and in the wars, to him by whom it was given. The law of = fiefs=20 supposed that originally all lands belonged to lords, who had had the = generosity=20 to abandon them to others, from whom the actual possessors derive their = rights=20 upon the sole reservation of certain services more or less onerous as a = sign of=20 superiority. To this superiority was added that which gives the right of = dispensing justice, a right which was originally attached to all fiefs, = and=20 conferred upon those who possessed it, the most eminent part of public = power.=20 Henrion de Pansey, Pouvoir, Municipal; 2 Bl. Com. 45 Encyclop6die, h. = t.; Merl.=20 Rep. h. t.

FIELD. A part of a farra separately enclosed; a close. 1 Chit. = Pr.=20 160. The Digest defines a field to be a piece of land without a house; = ager est=20 locus, que sine villa est. Dig. 50, 16, 27.

FIERI FACIAS, practice. The name of a writ of execution. It is = so=20 called because, when writs were in Latin, the words directed to the = sheriff=20 were, quod fieri facias de bonis et catallis, &c., that you cause to = be made=20 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=20 party who has recovered such a judgment is generally entitled to it, = unless he=20 is delayed by the stay of execution which the law allows in certain = cases after=20 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.=20 2. Its effects. 3. The manner of executing it.

4.-1. The writ is issued in the name of the commonwealth or of the=20 government, as required by the constitution, and directed to the = sheriff,=20 commanding him that of the goods and chattels, and (where lands are = liable for=20 the payment of debts, as in Pennsylvania,) of the lands and tenements of = the=20 defendant, therein named, in his bailiwick, he cause to be levied as = well a=20 certain debt of - dollars, which the plaintiff, (naming him) in the = court of -=20 (naming,it,) recovered against him, as - dollars like money which to the = said=20 plaintiff was adjudged for his daimages, which he had by the detention = of that=20 debt, and that he, (the sheriff,) have that money before the judges of = the said=20 court, on a day certain, (being the return day therein mentioned,) to = render to=20 the said plaintiff his debt and damages aforesaid, whereof the said = defendant is=20 convict. It must be tested in the name of the officer, as directed by = the=20 constitution or laws; as, "Witness the honorable John B. Gibson, our = chief=20 justice, at Philadelphia, the tenth day of October, in the year of our = Lord one=20 thousand eight hundred and forty-eight. It must be signed by the = prothonotory,=20 or clerk of the court, and sealed with its seal. The signature of the=20 prothonotary, it has been decided, in Pennsylvania, is not = indispensable. The=20 amount of the debt, interest, and costs, must also be endorsed on the = writ. This=20 form varies as it is issued on a judgment in debt, and one obtained for = damages=20 merely. The execution being founded on the judgment, must, of course, = follow and=20 be warranted by it. 2 Saund. 72 h. k; Bing. on Ex. 186. Hence, where = there is=20 more than one one plaintiff or defendant, it must be in the name of all = the=20 plaintiffs, against all the defendants. 6 T. R. 525. It is either for = the=20 plaintiff or the defendant. When it is against an executor or = administrator, for=20 a liability of the testator or intestate, it is conformable to the = judgment, and=20 must be=9820only against the goods of the deceased, unless the defendant = has made=20 himself personally liable by his false pleading, in which case the = judgment is=20 de bonis testatoris si, et si non, de bonis propriis, and the fieri = facias must=20 conform to it.

5. - 2. At common law, the writ bound the goods of the defendant or = party=20 against whom it was issued, from the test day; by which must be = understood that=20 the writ bound the property against the party himself, and all claiming = by=20 assingment from, or by, representatives under him; 4 East, B. 538; so = that a=20 sale by the defendant, of his goods to a bona fide purchaser, did no = protect=20 them from a fieri facias tested before, although not issued or delivered = to the=20 sheriff till after the sale. Cro. Eliz. 174; Cro. Jac. 451; 1 Sid. 271. = To=20 remedy this manifest injustice, the statute of frauds, 29 Car. II. c. 3, = s. 16,=20 was passed. The principles of this statute have been adopted in most of = the=20 states. Griff. Law Reg. Answers to No. 38, under No. III. The statue = enacts=20 "that no writ of fieri facias, or other writ of execution, shall bind = the=20 property of the goods of the party, against whom such writ of execution = is sued=20 forth, but from the time that such writ shall be delivered to the = sheriff,=20 under-sheriff, or coroners, to be executed; and for the better = manifestation of=20 the said time, the sheriffs, &c., their deputies or agents, shall, = upon the=20 receipt of any such writ, (without fee for doing the sam,) endorse upon = the back=20 thereof, the day of the month and year whereon he or they received the = same."=20 Vide 2 Binn. R. 174; 2 Serg. & Rawle, 157; 2 Yeates, 177; 8 Johns. = R. 446;=20 12 Johns. R. 320; 1 Hopk. R. 368; 3 Penna. R. 247; 3 Rawle, 401 1 Whart = R.=20 377.

6. - 3. The execution of the writ is made by levying upon the goods = and=20 chattels of the defendant, or party against whom it is issued; and, in = general,=20 seizing a part of the goods in the name of the whole on the premises, is = a good=20 seizure of the whole. Ld. Raym. 725; 2 Serg. & Rawle, 142; 4 Wash. = C. C. R.=20 29; but see 1 Whart. Rep. 377. The sheriff cannot break the outer door = of a=20 house for the purpose of executing a fieri facias; 5 do. 92; nor can a = window be=20 broken for this purpose. W. Jones, 429. See articles Door; House. He = may,=20 however, enter the house, if it be open, and, being once lawfully = entered, he=20 may break open an inner door or chest to seize the goods of the = defendant, even=20 without any request to open them. 4 Taunt. 619; 3 B. & P. 223; Cowp. = 1.=20 Although the sheriff is authorized to enter the house of the party to = search for=20 goods, he cannot enter that of a stranger, for that purpose, without = being=20 guilty of a trespass, unless the defendant's goods are actually in the = house.=20 Com. Dig. Execution, C 5: 1 Marsh. R. 565. The sheriff may break the = outer door=20 of a barn 1 Sid. 186; S. C. 1 Keb. 689; or of a store disconnected with = the=20 dwelling-house, and forming no part of the curtilage. 16 Johns. R. 287. = The fi.=20 fa. may be executed at any time before, and on the return day, but not = on=20 Sunday, where it is forbidden by statute. Wats. on Sheriffs, 173 5 Co. = 92; Com.=20 Dig. Execution, c. 5. Vide 3 Bouv. Inst. n. 3383, et. seq; Wats. on = Sher. ch.=20 10; Bing. Ex. c. 1, s. 4; Gilb. on Exec. Index, h. t.; Grab. Pr. 321: = Troub.=20 & Hal. Pr. Index, h. t.; Com. Dig. Execution, C 4; Process, F 5, 7; = Caines'=20 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=20 officer, makes to certain writs, signifying, "I have caused to be = made."

2. When the officer has made this return, a rule may be obtained upon = him,=20 after the return day, to pay the money into court, and if he withholds = payment,=20 an action of debt may be had on the return, or assumpsit for money had = and=20 received may be sustained against him. 3 Johns. R. 183.

FIFTEENTH, Eng. law. The name of a tax levied by authority of=20 parliament for the use of the king, which consisted of one-fifteenth = part of the=20 goods of those who are subject to it. T. L

FIGURES, Numerals. They are either Roman, made with letters of = the=20 Alphabet, for example, MIDCCLXXVI; or they are Arabic, as follows, = 1776.

2. Roman figures may be used in contracts and law proceedings, and = they will=20 be held valid; but Arabic figures, probably owing to the case with which = they=20 may be counterfeited, or. altered, have been holden not to be sufficient = to=20 express the sum due on a contract; but, it seems, that if the amount = payable and=20 due on a promissory note be expressed in figures or ciphers, it will be = valid.=20 Story on Bills, =A742, note; Story, Prom. Notes, =A721. Indictments have = been set=20 aside because the day or year was expressed in figures. 13 Vin Ab. 210; = 1 Ch.=20 Rep. 319; S. C. 18 Eng. Com. Law Rep. 95.

3. Bills of exchange, promissory notes, cheeks and agreements of = every=20 description, are usually dated with Arabic figures; it is, however, = better to=20 date deeds and other formal instruments, by writing the words at length. = Vide l=20 Ch. Cr. L. 176; 1 Verm. R. 336; 5 Toull. n. 336; 4 Yeates, R. 278; 2 = John. R.=20 233; 1 How. Mis. 256; 6 Blackf., 533.

FIGURES OF SPEECH. By figures of speech is meant that manner = of=20 speaking or writing, which has for its object to give to our sentiments = and,=20 thoughts a greater force, more vivacity and agreeableness.

2. This subject belongs more particularly to grammar and rhetoric, = but the=20 law has its figures also. Sometimes fictions come in aid of language, = when found=20 insufficient by the law; language, in its turn, by means of tropes and = figures,=20 sometimeslends to fictions a veil behind which they are hidden; = sometimes the=20 same denominations are preserved to things which have ceased to be the = same, and=20 which have been changed; at other times they lend to things = denominations which=20 supposed them to have been modified.

3. In this immense subject, it will not be expected that examples = should be=20 here given of every kind of figures; the principal only will be noticed. = The law=20 is loaded with abstract ideas; abstract in itself, it has often recourse = to=20 metaphors, which, as it were, touch our senses. The inventory is = faithful, a=20 defect is covered, an account is liquidated, a right is open or closed, = an=20 obligation is extinguished, &c. But the law has metaphors which are = properly=20 its own; as civil fruits, &c. The state or condition of a man who = has been=20 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=20 of God, formerly were considered an asylum, because to seize a person in = the=20 house of another was considered a wrong. Mother country, is applied to = the=20 country from which people emigrate to a colony; though this pretended = analogy is=20 very different in many points, yet this external ornament of the idea = soon=20 became an integral pa>=20

Transfer interrupted!

his metaphor, this pretended filiation = became the=20 source whence flowed the duties which bound the colonies to the = metropolis or=20 mother country.

4. In public speaking, the use of figures, when natural and properly=20 selected, is of great force; such Ornaments impress upon the mind of the = bearers=20 the ideas which the speaker desires to convey, fix their attention and = disposes=20 them to consider favorably the subject of inquiry. See 3 Bouv. Inst. n.=20 3243.

FILACER, FILAZIER, or FILZER, English law. An officer of the = court of=20 common pleas, so called because he files those writs on which he makes = out=20 process. FILE, practice. A thread, string, or wire, upon which writs and = other=20 exhibits in courts and offices are fastened or filed. for the more safe = keeping=20 and ready turning to the same. The papers put together in order, and = tied in=20 bundles, are also called a file.

2. A paper is said to be filed, when it is delivered to the proper = officer,=20 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=20 his or her father, mother, and their ancestors.

2. Nature always points out the mother by evident signs, and whether = married=20 or not, she is always certain: mater semper certa est, etiamsi vulgo = conceperit.=20 There is not the same certainty with regard to the father, and the = relation may=20 not know or feign ignorance as to the paternity the law has therefore=20 established a legal presumption to serve as a foundation for paternity = and=20 filiation.

3. When the mother is or has been married, her hushand is presumed to = be the=20 father of the children born during the coverture, or within a competent = time=20 afterwards; whether they were conceived during the coverture or not: = pater is=20 est quem nuptice demonstrant.

4. This rule is founded on two presumptions; one on the cohabitation = before=20 the birth of the child; and the other that the mother has faithfully = observed=20 the vow she made to her hushand.

5. This presumption may, however, be rebutted by showing either that = there=20 has been no cohabitation, or some physical or other impossibility that = the=20 hushand could be the father. See Access; Bastard; Gestation; Natural = children;=20 Paternity; Putative father. 1 Bouv. Inst. n. 302, et seq.

FILIUS. The son, the immediate male descendant. This term is = used in=20 making genealogical tables.

FILIUS MULIERATUS. The eldest legitimate son of parents, who, = before=20 their marriage, had illegitimate children. Vide Mulier.

FILIUS POPULI. The son of the people; a bastard.

FILLEY. A mare not more than one year old. Russ. & Ry. 416 = Id.=20 494.

FILUM. The middle; the thread of anything; as filum aqua; = filum=20 viae.

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=20 streams above tide water, unless otherwise expressed, the grant extends = usque ad=20 filum aquae, and that not only the banks, but the bed of the river, and = the=20 islands therein, together with exclusive right of fishing, pass to the = grantee.=20 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=20 their carriages to the right of the middle of the road, the parties are = bound to=20 keep ou their side of the worked part of the road, although the whole of = the=20 smooth or most travelled path may be upon one side of the filum viae. 7 = Wend.=20 185; 5 Conn. 305.

FIN DE NON RECEVOIR, French law. An exception or plea founded = on law,=20 which, without entering into the merits of the action, shows that the = plaintiff=20 has no right to bring it, either because the time during which it ought = to have=20 been brought has elapsed, which is called prescription, or that there = has been a=20 compromise, accord and satisfaction, or any other cause which has = destroyed the=20 right of action which once subsisted. Poth. Proc. Civ. partie 1, c. 2, = s. 2,=20 art. 2; Story, Confl. of Laws, =A7580.

FINAL. That which puts an end to anything.

2. It is used in opposition to interlocutory; as, a final judgment,. = is a=20 judgment which ends the coutroversy between the parties litigant. 1 = Wheat. 355;=20 2 Pet. 449. See 12 Wheat. 135; 4 Dall. 22; 9 Pet. 1; 6 Wheat. 448; 3 = Cranch,=20 179; 6 Cranch, 51; Bouv. Inst. Index, h. t.

FINANCIER. A person employed in the economical management and=20 application of public money or finances; one who is employed in the = management=20 of money.

FINANCES. By this word is understood the revenue, or public = resources=20 or money of the state.

FINDER. One who lawfully comes to the possessiou of another's = personal=20 property, which was then lost.

2. The finder is entitled to certain rights and liable to duties = which he is=20 obliged to perform. This is a species of deposit, which, as it does not = arise ex=20 contractu, may be called a quasi deposit, and it is governed by the same = general=20 rules as common deposits. The, finder is required to take the same = reasonable=20 care of the property found, as any voluntary depositary ex contractu. = Doct.=20 & St. Dial. 2, c. 38; 2 Bulst. 306, 312 S. C. 1 Rolle's R. 125.

3. The finder is not bound to take the goods he finds; yet, when he = does=20 undertake the custody, he is required. to exercise reasonable diligence = in=20 preserving the property and he will be responsible for gross negligence. = Some of=20 the old authorities laid down that "if a man find butler, and by his = negligent=20 keeping, it putrify; or, if a man find garments, and by his negligent = keeping,=20 they be moth eaten, no action lies." So it is if a man find goods and = lose them=20 again; Bac. Ab. Bailment, D; and in support of this position; Leon. 123, = 223=20 Owen, 141; and 2 Bulstr. 21, are cited. But these cases, if carefully = examined,=20 will not, perhaps, be found to decide the point as broadly as it is = stated in=20 Bacon. A finder would doubtless he held responsible for gross = negligence.

4. On the other hand, the finder of an article is entitled to recover = all=20 expenses which have necessarily occurred in preserving the thing found; = as, it a=20 man were to find an animal, he would be entitled to be reimbursed for = his=20 keeping, for advertising in a reasonable manner that he had found it, = and to any=20 reward which may have been offered by the owner for the recovery of such = lost=20 thing. Domat, 1. 2, t. 9, s. 2, n. 2. Vide Story, Bailm. =A735.

6. And when the owner=9820does not reclaim the goods lost, they = belong to the=20 finder. 1 Bl. Com. 296; 2 Kent's Com. 290. The acquisition of treasure = by the=20 finder, is evidently founded on the rule that what belongs to none = naturally,=20 becomes the property of the first occupant: res nullius naturaliter fit = p7imi=20 occupantis. How far the finder is responsible criminally, see 1 Hill, N. = Y. Rep.=20 94; 2 Russ. on Cr. 102 Rosc. Cr. Ev. 474. See Taking.

FINDING, practice. That which has been ascertained; as, the = ruding of=20 the jury is conclusive as to matters of fact when confirmed: by a = judgment of=20 the court. 1 Day, 238; 2 Day, 12.

FINDING A VERDICT. The act of the jury in agreement upon a=20 verdict.

FINE. This word has various significations. It is employed, 1. = To mean=20 a sum of money, which, by judgment of a competent jurisdiction, is = required to=20 be paid for the punishment of an offence. 2. To designate the amount = paid by the=20 tenant, on his entrance, to the lord. 3. To signify a special kind of=20 conveyance.

FINE, conveyance, Practice. An amicable composition or = agreement of a=20 suit, either actual or fictitious, by leave of the court, by which the = lands in=20 question become, or are acknowledged to be the right of one of the = parties. Co.=20 Litt. 120; 2 Bl. Com. 349; Bac. Abr. Fines and Recoveries. A fine is so = called,=20 because it puts an end, not only to the suit thus commenced, but also to = all=20 other suits and controversies concerning the same matter. Such concords, = says=20 Doddridge, (Eng. Lawyer, 84, 85,) have been in use in the civil law, and = are=20 called transactions (q. v.) whereof they say thus: Transactiones sunt de = eis=20 quae in controversia sunt, a, lite futura aut pendente ad certam = compositionem=20 reducuntur, dando aliquid vel accipiendo. Or shorter, thus: Transactio = est de re=20 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=20 perform his covenant; although a fine may be levied upon any writ by = which lands=20 may be demanded, charged, or bound. It has also been defined an = acknowledgment=20 on record of a previous gift or feoffment, and prima facie carries a = fee,=20 although it may be limited to an estate for life or in fee tail. Prest. = on=20 Convey. 200, 202, 268, 269 2 Bl. Com. 348-9.

2. The stat. 18 E. I., called modus levandi fines, declares and = regulates the=20 manner in which they should be levied and carried on and that is as = follows: 1.=20 The party to whom the land is conveyed or assured, commences an action = at law=20 against the other, generally an action of covenant, by suing out of a = writ of=20 praecipe, called a writ of covenant, that the one shall convey the lands = to the=20 other, on the breach of which agreement the action is brought. The suit = being=20 thus commenced, then follows,

2. The licentia concordandi, or leave to compromise the suit. 3. The = concord=20 or agreement itself, after leave obtained by the court; this is usually = an=20 acknowledgment from the deforciants, that the lands in question are the = lands of=20 the complainants. 4. The note of the fine, which is only an abstract of = the writ=20 of covenant, and the concord naming the parties, the parcels of land, = and the=20 agreement. 5. The foot of the fine or the conclusion of it, which = includes the=20 whole matter, reciting the parties, day, year, and place, and before = whom it was=20 acknowledged or levied.

3. Fines thus levied, are of four kinds. 1. What in law French is = called a=20 fine sur cognizance de droit, come ceo que il ad de son done; or a fine = upon the=20 acknowledgment of the right of the cognizee, as that which he has of the = gift of=20 the cognizor. This fine is called a feoffment of record. 2. A fine sur=20 cognizance de droit tantum, or acknowledgment of the right merely. 3. A = fine sur=20 concessit, is where the cognizor, in order to make an end of disputes, = though he=20 acknowledges no precedent right, yet grants to the consignee an estate = de novo,=20 usually for life or years, by way of a supposed composition. 4. A fine = sur done=20 grant et render, which is a double fine, comprehending the fine sur = cognizance=20 de droit come ceo, &c., and the fine sur concessit; and may be used = to=20 convey particular limitations of estate, and to persons who are = strangers, or=20 not named in the writ of the covenant, whereas the fine sur cognizance = de droit=20 come ceo &c., conveys nothing but an absolute estate either of = inheritance,=20 or at least of freehold. Salk. 340. In this last species of fines, the = cognizee,=20 after the right is acknowledged to be in him, grants back again, or = renders to=20 the cognizor, or perhaps to a stranger some other estate in the = premises. 2 Bl.=20 Com. 348 to 358. See Cruise on Fines; Vin. Abr. Fine; Sheph. Touch. c. = 2; Bac.=20 Ab. Fines and Recoveries; Com. Dig. Fine.

FINE, criminal law. Pecuniary punishment imposed by a lawful = tribunal,=20 upon a person convicted of crime or misdemeanor. See Shep. Touchs. 2; = Bac. Abr.=20 Fines and Amercements.

2. The amount of the fine is frequently left to the discretion of the = court,=20 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=20 bail shall not be required, nor excessive fines imposed, nor cruel and = unusual=20 punishments inflicted." Amendm. to the Constitution, art. 8. See = Division of=20 opinion.

FINE FOR ALIENATION. During the vigor of the feudal law, a = fine for=20 alienation was a sum of money which a tenant by knight's service paid to = his=20 lord for permission to alienate his right in the estate he held, to = another, and=20 by that means to substitute a new tenant for himself. 2 Bl. Com. 71, But = when=20 the tenant held land of the king, in capite, by socage tenure, he was = bound to=20 pay such a fine, as well as in the case of knight service. 2 Bl. Com. = 89. These=20 fines are now abolished. In France, a similar demand from the tenant, = made by=20 the lord when the former alienated his estate, was called lods et vente. = This=20 imposition was abolished, with nearly every feudal right, by the French=20 revolution.

FIRE ACCIDENTAL. One which arises in consequence of some human = agency,=20 without any intention, or which happens by some natural cause, without = human=20 agency.

2. Whether a fire arises purely by accident, or from any other cause = when it=20 becomes uncontrollable and dangerous to the public, a man may, in = general,=20 justify the destruction of a house on fire for the protection of the=20 neighborhood, for the maxim salus populi est suprema lex, applies in = such case.=20 11 Co. 13; Jac. Inter. 122, max. 115. Vide Accident; Act of God, and 3 = Saund.=20 422 a, note 2; 3 Co. Litt. 57 a, n. 1; Ham. N. P. 171; 1 Cruise's Dig. = 151, 2; 1=20 Vin. Ab. 215; 1 Rolle's Ab. 1; Bac. Ab. Action on the case, F; 2 Lois = des Batim.=20 124; 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=20 the term, unless there are proper exceptions to such covenants, and the = premises=20 are afterwards destroyed by fire, during the term, the rent must be = paid,=20 although there be no enjoyment; for the common rule prevails, res perit = domino.=20 The tenant, by the accident, loses his term, the landlord, the = residence. Story,=20 Eq. Jur. =A7102.

FIREBOTE. Fuel for necessary use; a privilege allowed to = tenants to=20 take necessary wood for fuel.

FIRKIN. A measure of capacity equal to nine gallons. The word = firkin=20 is also used to designate a weight, used for butter and cheese, of = fifty-six=20 pounds avoirdupois.

FIRM. The persons composing a partnership, taken collectively, = are=20 called the firm. Sometimes this word is used synonymously with = partnership.

2. The name of a firm should be distinct from the names of all other = firms.=20 When there is a confusion in this respect, the partners composing one = firm May,=20 in some cases, be made responsible for the debts of another. For = example, where=20 three persons carried on a trade under the firm of King and Company, and = two of=20 those persons, with another, under the same firm, carried on another=20 partnership; a bill under the firm, and which was drawn on account of = the one=20 partnership, was made the ground of an action of assumpsit against the = other.=20 Lord Kenyon was of opinion that this company was liable; that the = partner not=20 connected with the company that drew the bill, having traded along with = the=20 other partner under that firm, persons taking bills under it, thougb = without his=20 knowledge, had a right to look to him for payment. Peake's N. P. Cas. = 80; and=20 see 7 East, R. 210; 2 Bell's Com. 670, 6th ed.; 3 Mart. N. S. 39. But it = would=20 seem, 1st. That any act distinctly indicating credit to be given to one = of the=20 partnerships, will fix the election of the creditor to that company; and = 2d.=20 That making a claim on either of the firms, or, when they are insolvent, = on=20 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=20 Company, the partners who sign the name of the firm are required to use = such=20 name in the style adopted, and a departure from it may have the double = effect of=20 rendering the individual partner who signs it, personally liable not = only to=20 third persons, but to his co-partners; Story, Partn. =A7102, 202 and it = will be a=20 breach of the agreement, if the partner sign his own name, and add, "for = himself=20 and partners." Colly. Partn. B. 2, c. 2, =A72; 2 Jac. & Walk. = 266.

4. As a general rule a firm will be bound by the acts of one of the = partners=20 in the course of their trade and business, and will be discharged by=20 transactions with a single partner. For example, the payment or = satisfaction of=20 a debt by a partner, is a satisfaction and payment by them all; and a = release to=20 one partner, is in release to them all. Go. Litt. 232 n; 6 T. R. 525. = Vide=20 Partner; Partnership.

5. It not unfrequently happens that the name of the firm is the name = of only=20 one of the partners, and that such partner does business in his own name = on his=20 private or separate account. In such case, if the contract be entered = into for=20 the firm, and there is express or implied proof of that fact, the = partnership=20 will be bound by it; but when there is no such proof, the presumption = will be=20 that the debt was contracted by the partner on his own separate account, = and the=20 firm will not be responsible. Story on Part. =A7139; Colly. on Partn. = Book 3, c.=20 1, =A72; 17 Serg. & Rawle, 165; 5 Mason, 176; 5 Peters, 529; 9 Pick. = 274; 2=20 Bouv. Inst. n. 1442, et seq.

FIRMAN. A passport g ranted by the Great Mogul, to captains of = foreign=20 vessels, to trade within the territories over which he has jurisdiction; = a=20 permit.

FIRST PURCHASER. In the English law of descent, the first = purchaser=20 was he who first acquired an estate in a family, which still owns it. A = purchase=20 of this kind signifies any mode of acquiring an estate, except, by = descent. 2=20 BI; Com. 220.

FISC, civil law. The treasury of a prince. The public = treasury. Hence=20 to confiscate a thing, is to appropriate it to the fisc. Paillet, Droit = Public,=20 21, n, says that fiscus, in the Roman law, signified the treasure of the = prince,=20 and aerarium, the treasure of the state. But this distinction was not = observed=20 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=20 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,=20 and consequently no one has any property in them until they have been = captured;=20 and, like other wild animals, if having been taken, they escape and. = regain=20 their liberty, the captor loses his property in them. Vide Ferae = Naturae. The=20 owner of a fishery in the lower part of a stream cannot construct any=20 contrivance by which to obstruct the passage of fish up the stream. 5 = Pick. R.=20 199.

FISHERY, estates. A place prepared for catching fish with nets = or=20 hooks. This term is commonly applied to the place of drawing a seine, or = net. 1=20 Whart. R. 131, 2.

2. The right of fishery is to be considered as to tide or navigable = waters,=20 and to rivers not navigable. A river where the tide ebbs and flows is = considered=20 an arm of the sea. By the common law of England every navigable river = within the=20 realm as far as the sea ebbs and flows is deemed a royal river, and the=20 fisheries therein as belonging to the crown by prerogative, yet capable = of being=20 granted to a subject to be held or disposed of as private property. The = profit=20 of such fisheries, however, when retained by the crown, is not commonly = taken=20 and appropriated by the king, unless of extraordinary value, but left = free to=20 all the people. Dav. Rep. 155; 7 Co. 16, a: Plowd, 154, a. Within the = tide=20 waters of navigable rivers in some of the United States, private or = several=20 fisheries were established, during the colonial state, and are still = held and=20 enjoyed as such, as in the Delaware. 1 Whart. 145, 5; 1 Baldw. Rep. 76. = On the=20 high seas the right of fishing jure gentium is common to all persons, as = a=20 general rule. In. rivers, not navigable, that is, where there is no flux = or=20 reflux of the tide, the right of fishing is incident to the owner of the = soil,=20 over which the water passes, and to the riparian proprietors, when a = stream is=20 owned by two or more. 6 Cowen's R. 369; 5 Mason's R. 191; 4 Pick. R. = 145; 5=20 Pick. R. 199. The rule, that the right of fishery, within his = territorial=20 limits, belongs exclusively to the riparian owner, extends alike to = great and=20 small streams. The owners of farms adjoining the Connecticut river, = above the=20 flowing of the tide, have the exclusive right of fishing opposite their = farms,=20 to the middle of the river although the public have an easement in the = river as=20 a public highway, for passing and repassing with every kind of water = craft. 2=20 Conn. R. 481. The right of fishery may exist, not only in the owner of = the soil=20 or the riparian proprietor, but also in another who has acquired it by = grant or=20 otherwise. Co. Litt. l22 a, n. 7; Schul. Aq. R. 40 41; Ang. W. C. 184; = sed vide=20 2 Salk. 637.

3. Fisheries have been divided into: 1. Several fisheries. A several = fishery=20 is one to which the party claiming it has the right of fishing, = independently of=20 all others, as that no person can have a coextensive right with him in = the=20 object claimed, but a partial and independent right in another, or a = limited=20 liberty, does not derogate from the right of the owner. 5 Burr. 2814. A = several=20 fishery, as its name imports, is an exclusive property; this, however, = is not to=20 be understood as depriving the territorial owner of his right to a = several=20 fishery, when he grants to another person permission to fish; for he = would=20 continue to be the several proprietor, although he should suffer a = stranger to=20 hold a coextensive right with himself. Woolr. on Wat. 96.

4. - 2. Free fisheries. A free fishery is said to be a franchise in = the hands=20 of a subject, existing by grant or prescription, distinct from an = ownership in=20 the soil. It is an exclusive right, and applies to a public navigable = river,=20 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=20 be synonymous with common, and again treated as distinct from either. = Law of=20 Waters, &c. 97.

5. - 3. Common of Fishery. A common of fishery is not an exclusive = right, but=20 one enjoyed in common with certain other persons. 3 Kent, Com. 329. A=20 distinction has been made between a common fishery, (commune piscarium,) = which=20 may mean for all mankind, as in the sea, and a common of fishery, = (communium=20 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=20 fishery and free fishery, are convertible terms, Law of Water Courses, = c. 6., s.=20 3, 4.

6. These distinctions in relation to several, free, and common of, = fishery,=20 are not strongly marked, and the lines are sometimes scarcely = perceptible.=20 "Instead of going into the black letter books, to learn what was a = fishery, and=20 a free fishery, and a several fishery," says Huston, J., "I am disposed = to=20 regard our own acts, even though differing, from old feudal times." 1 = Whart. R.=20 132. See 14 Mus. R. 488; 2 Bl. Com. 39, 40; 7 Pick. R. 79. Vide, = generally, Ang.=20 Wat. Co.; Index, h. t; Woolr. on Wat. Index, h. t; Schul. Aq. R. Index, = h. t; 2=20 Rill. Ab. ch. 18, p. 1,63; Dane's Ab. h. t; Bac. Ab. Prerogative, B 3; = 12 John.=20 R. 425; 14 John. R. 255 14 Wend. R. 42; 10 Mass., R. 212; 13 Mass. R. = 477; 20=20 John. R. 98; 2 John. It. 170; 6 Cowen, R. 369; 1 Wend. R. 237; 3 Greenl. = R. 269;=20 3 N. H. Rep. 321; 1 Pick. R. 180; 2 Conn. R. 481; 1 Halst. 1; 5 Harr. = and Johns.=20 195; 4 Mass. R. 527; and the articles Arm of the sea; Creek; Navigable = River;=20 Tide.

TO FIX. To render liable.

2. This term is applied to the condition of special bail; when the = plaintiff=20 has issued a ca. sa. which has been returned by the sheriff, non est, = the bail=20 are said to be fixed, unless the defendant be surrendered within the = time=20 allowed ex gratia, by the practice of the court. 5 Binn. R. 332; Coxe, = R. 110;=20 12 Wheat. R. 604; 4 John. R. 407; 1 Caines, R. 588. The defendant's = death after=20 the return is no excuse for not surrendering him during the time allowed = ex=20 gratia. See Act of God; Death. In New Hampshire, 1 N. H. Rep. 472, and=20 Massachusetts, 2 Mass. R. 485, the bail are not fixed until judgment is = obtained=20 against them on a scire facias, or unless the defendant die after, the = return of=20 non est or) the execution against him. In North Carolina, the bail are = not fixed=20 till judgment against them. 3 Dev. R. 155. When the bail are fixed, they = are=20 absolutely responsible.

FIXTURES, property. Personal chattels annexed to land, and = which may=20 be afterwards severed and removed by the party who has annexed them, or = his=20 personal representative, against the will of the owner of the = freehold.

2. Questions frequently arise as to whether fixtures are to be = considered=20 real estate, or a part of the freehold; or whether they are to be = treated as=20 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=20 contending parties.

3. - 1. The annexation may be actual or constructive; 1st. By actual=20 connexation or annexation is understood every mode by which a chattel = can be=20 joined or united to the freehold. The article must not however be laid = upon the=20 ground; it must be fastened, fixed or set into the land, or into some = such=20 erection as is unquestionably a part of the realty. Bull. N. P. 34; 8 = East, R.=20 38; 9 East, R. 215; 1 Tauut. 21; Pothier, Traite des Choses, =A71. = Looks, iron=20 stoves set in brick-work, posts, and window blinds, afford examples of = actual=20 annexation. See 5 Rayw. 109; 20 John. 29; 1 Harr. and John. 289; a = M'chrd, 553;=20 9 Conn. 63; 1 Miss. 508, 620; 7 Mass. 432; 15 159; 3 Stew. 314. 2d. Some = things=20 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=20 which relate to the title of the, inheritance, go to the heir; Shep. = Touch. 469;=20 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=20 part of the real estate, nor as an appurtenance to it. 12 New H. Rep. = 205. See,=20 however, 2 Watts,& S. 116, 390. It is also laid down that deer in a = park,=20 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=20 inheritance. Shepb. Touchs. 90; Pothier, Traite des Choses, =A71.

4. - 2. The general rule is, that fixtures once annexed to the = freehold,=20 become a part of the realty. But to this rule there are exceptions. = These are,=20 1st. Where there is a manifest intention to use the fixtures in some = employment=20 distinct from that of the occupier of the real estate. 2d. Where it has = been=20 annexed for the purpose. of carrying on a trade; 3 East, 88; 4 Watts, = 330; but=20 the distinction between fixtures for trade and those for agriculture = does not in=20 the United States, seem to have been generally admitted to prevail. 8 = Mass. R.=20 411; 16 Mass. R. 449; 4 Pick. R. 311; and set, 2 Peter's Rep. 137. The = fact that=20 it was put up for the purposes of trade indicates an intention that the = thing=20 should not become a part of the freehold. See 1 H. B]. 260. But if there = be a=20 clear intention that the thing should be annexed to the realty, its = being used=20 for the purposes of trade would not perhaps bring the case within one of = the=20 exceptions. 1 H. BI, 260.

5. - 3. There is a difference as to what fixtures may or may not be = removed,=20 as the parties claiming them stand in one relation or another. These = classes of=20 persons will be separately considered.

6. - lst. When the question as to fixtures arises between the = executor and=20 the heir. The rule, as between these persons has retained much of its = original=20 strictness, that the fixtures belong to the real estate, or the heir i = but if=20 the ancestor manifested an intention, which is to be inferred from=20 circumstances, that the things affixed should be considered as = personally, they=20 must be so considered, and will belong to the executor. See Bac. Abr. = Executors=20 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=20 persons as between the executor and the heir; and fixtures erected by = the vendor=20 for the purpose of trade and manufactures, as pot-ash kettles for = manufacturing=20 ashes, pass to the vendee of the land. 6 Cowen, R. 663; 20 Johns. R. 29. = Between=20 mortgagor and mortgagee, the rule seems to be the same as that between = vendor=20 and vendee. Amos & F. on Fixt. 188; 1 5 Mass. R. 1 5 9; 1 Atk. 477 = 16 Verm.=20 124; 12 N. H. Rep. 205.

8. - 3d. Between devisee and executor. On a devise of real estate, = things=20 permanently annexed to the realty at the time of the testator's death, = will pass=20 to the devisee. His right to fixtures will be similar, to that of the = vendee. 2=20 Barn. & Cresw. 80.

9. - 4th. Between landlord and tenant for years. The ancient rule is = relaxed,=20 and the right of removal of fixtures by the tenant is said to be very = extensive.=20 3 East, 38. But his right of removal is held to depend rather upon the = question=20 whether the estate will be left in the condition in which he took it. 4 = Pick. R.=20 311.

10. - 5th. In cases between tenants for life or their executors and = the=20 remainder-men or reversioners, the right to sever fixtures seems to be = the same=20 as that of the tenant for years. It has been held that the steam engines = erected=20 in a colliery, by a tenant for life, should belong to the executor and = not go to=20 the remainder-man. 3 Atk. R. 1 3.

11. - 6th. In a case between the landlord and a tenant at will, there = seems=20 to be no reason why the same privilege of removing fixtures should not = be=20 allowed. 4 Pick. R. 511; 5 Pick. R. 487.

12. The time for exercising the right of removal of fixtures is a = matter of=20 importance a tenant for years may remove them at any time before he = gives up the=20 possession of the premises, although it should be after his term has = expired,=20 and he is holding over. 1 Barn. & Cres. 79, 2 East, 88. Tenants for = life or=20 at will, having uncertain, interests in the land, may, after the = determination=20 of their estates, not occasioned by their own faults, have a reasonable = time=20 within which to remove their fixtures. Hence their right to bring an = action for=20 them. 3 Atk. 13. In case of their death the right passes to their=20 representatives. See, generally, Vin. Abr. Landlord and Tenant, A; Bac. = Abr.=20 Executors, &c. H 3; Com. Dig. Biens, B and C; 2 Chitty's Bl. 281, n. = 23=20 Pothier, Traite des Choses; 4 Co. 63, 64 Co. Litt. 53, a, and note 5, by = Hargr.;=20 Moore, 177; Hob. 234; 3 Salk. 368; 1 P. Wins. 94; 1 Atk. 553; 2 Vern. = 508; 3=20 Atk. 13; 1 H. Bl. 259, n Ambl. 113; 2 Str. 1141; 3 Esp. 11; 2 East, 88; = 3 East,=20 38; 9 East, 215; 3 Johns. R. 468; 7 Mass. 432; 6 Cowen, 665; 2 Kent, = Com. 280;=20 Ham., Part. 182; Jurist, No. 19, p. 53; Arch. L. & T. 359; Bouv. = Inst.=20 Index, h. t.

FLAG OF THE UNITED STATES. By the act entitled, "An act to = establish=20 the flag of the United States," passed April 4, 1818, 3 Story's L. U. = S., 1667,=20 it is enacted-

2. - =A71. That from and after the fourth day of July next, the flag = of the=20 United States be thirteen horizontal stripes, alternate red and white: = that the=20 union be twenty stars, white in a blue field.

3. - =A72. That, on the admission of every new state into the Union, = one star=20 be added to the union of the flag; and that such addition shall take = effect on=20 the fourth day of July then next succeeding such admission.

FLAGRANS CRIMEN. This, among the Romans, signified. that a = crime was=20 then or had just been committed for example, when a crime has just been=20 committed and the corpus delictum is publicly exposed; or if a mob take = place;=20 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=20 instruction gives the following concise definition of it, art. "Le delit = qui se=20 commet actuellement ou qui vient de se coramettre, est un flagrant = delit."

FLAGRANTE DELICTO. The act of committing a crime; when a = person is=20 arrested flagrante delicto, the only evidence required to convict him, = is to=20 prove that fact.

FLEET, punishment, Eng. law, Saxon fleot. A place of running = water,=20 where the tide or float comes up. A prison in London, so called from a = river or=20 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=20 by a judge who was confined in the Fleet prison. It is written in Latin, = and is=20 divided into six books. The author lived in the reigns of Ed. II. and = Ed. III.=20 See lib. 2, cap. 66, =A7 Item quod nullus; lib. 1, cap. 20, =A7 qui = coeperunt, pref.=20 to 10th Rep. Edward II. was crowned, A. D. 1306. Edward III. was crowned = 1326,=20 and reigned till A. D. 1377. During this period the English law was = greatly=20 improved, and the lawyers and judges were very learned. Hale's Hist. C. = L. 173.=20 Blackstone 4 Com. 427, says, of this work, "that it was for the most = part law,=20 until the alteration of tenures took place." The same remark he applies = to=20 Britton and Hingham.

FLIGHT, crim. law. The evading the course of justice, by a = man's=20 voluntarily withdrawing himself. 4 Bl. Com. 387. Vide Fugitive from = justice.

FLORIDA. The name of one of the new states of the United = States of=20 America. It was admitted into the Union by virtue of the act of = congress,=20 entitled An Act for the admission of the states of Iowa and Florida into = the=20 Union, approved March 3, 1845.

2. The constitution was adopted on the eleventh day of January, = eighteen=20 hundred and thirty-nine. The powers of the government are divided into = three=20 distinct branches, namely, the legislative, the executive, and the = judicial,

3. - =A71. Of the legislative power. 1. The legislative power of this = state=20 shall be vested in two distinct branches, the one to be styled the = senate, the=20 other the house of representatives, and both together, "The General = Assembly of=20 the State of Florida," and the style of the laws shall be, "Be it = enacted by the=20 Senate and House of Representatives of the State of Florida in General = Assembly=20 convened."

4. 2. A majority of each house shall constitute a quorum to do = business, but=20 smaller number may adjourn from day to day, and may compel the = attendance of=20 absent members in such. manner, and under such penalties, as each house = may=20 prescribe.

5. - 3. Each house may determine the rules of its own proceedings, = punish its=20 members for disorderly behaviour, and, with the consent of two-thirds, = expel a=20 member; but not a second time for the same cause.

6. - 4. Each house, during the session, may punish by imprisonment, = any=20 person not a member, for disrespectful or disorderly behaviour in its = presence,=20 or for obstructing any of its proceedings, provided such imprisonment = shall not=20 extend beyond the end of the session.

7. - 5. Each house shall keep a journal of its proceedings, and cause = the=20 same to be published immediately after its adjournment, and the yeas and = nays=20 of, the members of each house shall be taken, and entered upon the = journals,=20 upon the final passage of every bill, and may, by any two members, be = required=20 upon any other question, and any member of either house shall have = liberty to=20 dissent from, or protest against, any act or resolution which he may = think=20 injurious to the public, or an individual, and have the reasons of his = dissent=20 entered on the journal.

8. - 6. Senators and representatives shall in all cases, except = treason,=20 felony or breach of the peace, be privileged from arrest during the = session of=20 the general assembly, and in going to, or returning from the same, = allowing one=20 day for every twenty miles such member may reside from the place at = which the=20 general assembly is convened; and for any speech or debate, in either = house,=20 they shall not be questioned in any other place.

9. - 7. The general assembly shall make provision, by law, for = filling=20 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,=20 in the opinion of the house, the public safety may imperiously require=20 secrecy.

11. - 9. Neither house shall, without the consent of the other, = adjourn for=20 more than three days, nor, to any other place than that in which they = may be=20 sitting.

12. - 10. Bills may originate in either house of the general = assembly, and=20 all bills passed by one house may be discussed, amended or rejected by = the=20 other; but no bill shall have the force of law until, on three several = days, it=20 be read in each house, and free discussion be allowed thereon, unless in = cases=20 of urgency, four-fifths of the house in which the same shall be = depending, may=20 deem it expedient to dispense with the rule; and every bill, having = passed both=20 houses, shall be signed by the speaker and president of their respective = houses.

13. - 11. Each member of the general assembly shall receive from the = public=20 treasury such compensation for his services,as may be fixed by law, but = no=20 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=20 on the fourth Monday in November in each year, or at such other time as = may be=20 prescribed by law.

15. The senators will be considered with regard, 1. To the = qualification of=20 the electors. 2. The qualification of the members. 3. The number of = members. 4.=20 The time of their election. 5. The length of service.

16. - 1st. The senators shall be elected by the qualified voters. = Const. art.=20 4, s. 5.

17. - 2d. No man shall be a senator unless be be a white man, a = citizen of=20 the United States, and shall have been an inhabitant of Florida two = years next=20 preceding his election, and the last year thereof a resident of the = district or=20 county for which he shall be chosen, and shall have attained the age of=20 twenty-five years. Const. art. 4, s. 5. And to this there are the = following=20 exceptions: All banking officers of any bank in the state are ineligible = until=20 after twelve-months after they shall go out of such office. Art. 6, 3. = All=20 persons who shall fight, or send, or accept a duel, the probable issue = of which=20 may be death, whether committed in or out of the state. Art. 6, s. 5. = All=20 collectors or holders of public money. Art. 6, s. 6. All ministers of = the=20 Gospel. Art. 6, s. 1 0. All persons who shall have procured their = elections by=20 bribery. All members of congress, or persons holding or exercising any, = office=20 of profit under the United States, or under a foreign power. Art. 6, s. = 18.

18. - 3d. The number of senators may be varied by the general = assembly, but=20 it shall never be less. than one-fourth, nor more than one-half of the = whole=20 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=20 house of representatives. Art. 4, s. 5.

20. - 5th. They are elected for the term of two years. Art. 4, s. = 5.

21. The house of representatives will be considered under the same = beads.

22. - 1st. Members of the house of representatives shall be chosen by = the=20 qualified voters.

23. - 2d. No person shall be a representative unless he be a white = man, a=20 citizen of the United States, and shall have been an inhabitant of the = state two=20 years next preceding his election, and the last year thereof a resident = of the=20 county for which he shall be chosen, and have attained the age of = twenty-one=20 years. Art. 4, s. 4. And the same persons are disqualified, who are = disqualified=20 as senators.

24. - 3d. The number of members shall never exceed sixty. Art. 4, s. = 18.

25. - 4th. The. time of holding the election is the first Monday of = October=20 annually.

26. - 5th. Members of the house of representatives are elected for = one year=20 from the day of the commencement of the general election, andno longer. = Art. 4,=20 s. 2.

27. - =A72. Of the executive. The supreme executive power is vested = in a chief=20 magistrate, who is styled the governor of Florida. Art. 3.

28. No person shall be eligible to the office of governor, unless he = shall=20 have attained the age of thirty years, shall have been a citizen of the = United=20 States ten years, or an inhabitant of Florida at the time of the = adoption of the=20 constitution, (being a citizen of the United States,) and shall have = resided in=20 Florida at least five years preceding the day of election.

29. The governor shall be elected for four years, by the qualified = electors,=20 at the time and place where they shall vote for representatives; and = shall=20 remain in office until a successor shall be chosen and qualified, and = shall not=20 be eligible to reelection until the expiration of four years thereafter. = 30. His=20 general powers are as follows: 1. He is commander-in-chief of the army, = navy,=20 and militia of the state. 2. He shall take care that the laws be = faithfully=20 executed. 3 . He may require information from the officers of -the = executive=20 department. 4. He may convene the general assembly by proclamation upon=20 particular occasions. 5. He shall, from time to time, give information = to the=20 general assembly. 6. He may grant pardons, after conviction, in all = cases except=20 treason and impeachment, and in these cases, with the consent of the = senate; and=20 he may respite the sentence in these cases until the end of the next = session of=20 the senate. 7. He, may approve or veto bills.

31. In case of vacancy in the office of governor, the president of = the senate=20 shall act in his place, and in case of his default, the speaker of the = house of=20 representatives shall fill the office of governor. Art. 3, s. 21.

32. - =A73. Of the judicial department. 1. The judicial power of this = state,=20 both as to matters of law and equity, shall be vested in a supreme = court, courts=20 of chancery, circuit courts, and justices of the peace: Provided, the, = general=20 assembly may also vest such criminal jurisdiction as may be deemed = necessary in=20 corporation courts; but such jurisdiction shall not extend to capital = offences.=20 Art. 5, s. 1.

33. - 2. Justices of the supreme court, chancellors, and judges of = the=20 circuit courts, shall be elected by, the concurrent vote of a majority = of both=20 houses of the general assembly. Art. 5, s. 11.

34. - 3. The judges of the circuit courts shall, at the first = session. of the=20 general assembly to be holden under the constitution, be elected for the = term of=20 five years and shall hold their office, for that term, unless sooner = removed,=20 under the provisions in the constitution; and at the expiration of five = years,=20 the justices of the supreme courts, and the judges of the circuit = courts, shall=20 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,=20 and its duties performed by, the judges of the several circuit courts, = and they,=20 or a majority of them, shall hold such session of the supreme court, and = at such=20 time and place as may be directed by law. Art. 5, s. 3. But no justice = of the=20 supreme court shall sit as judge, or take any part in the appellate = court, on=20 the trial or hearing of any case which shall have been decided by him in = the=20 court below. Art. 5, s. 18.

36. - 2. The supreme court, except in cases otherwise directed in = this=20 constitution, shall have appellate jurisdiction only. Provided, that the = said=20 court shall always have power to issue writs of injunction, mandamus, = quo=20 warranto, habeas corpus, and such other remedial and original writs, as = may be=20 necessary to give it a general superintendance and control of all other = courts.=20 Art. 5, s. 2 .

37. - 3. The supreme court shall exercise appellate jurisdiction in = all cases=20 brought by appeal or writ of error from the several circuit courts, when = the=20 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=20 the circuit courts, held within such circuits, shall have original = jurisdiction=20 in all matters, civil and criminal, within the state, not otherwise = excepted in=20 this constitution. Art. 5, s. 6.

FLORIN. The name of a foreign coin. In all computations of = customs,=20 the florin of the southern states of Germany, shall be estimated at = forty cents;=20 the florin of the Austrian empire, and of the city of Augshurg, at = forty-eight=20 and one-half cents. Act March 22, 1846. The florin of the United = Netherlands is=20 computed at the rate of forty cents. Act of March 2, 1799, =A761. Vide = Foreign=20 Coins.

FLOTSAM, or FLOTSAN. A name for the goods which float upon the = sea=20 when a ship is sunk, in distinction from Jetsam, (q. v.) and Legan. (q. = v.)=20 Bract. lib. 2, c. 5; 5 Co. 106; Com. Dig. Wreck, A Bac. Ab. Court of = Admiralty,=20 B.

FLUMEN, civ. law. The name of a servitude which consists in = the right=20 of turning the rain water, gathered in a spout, on another's land., = Ersk. Inst.=20 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=20 the risk of losing, his principal. Ersk. Inst. B. 4, t. 4, n. 76. See = Marine=20 Interest.

FOETICIDE, med. jur. Recently, this term has been applied to = designate=20 the act by which criminal abortion is produced. 1 Beck's Med. Jur. 288; = Guy,=20 Med. Jur. 133. See Infanticide; Prolicide.

FOETURA, civil law. The produce of animals, and the fruit of = other=20 property, which are acquired to the owner of such animals and property, = by=20 virtue of his right. Bowy. Mod. C. L. c. 14, p. 81.

FOETUS, med. jur. The unborn child. The name of embryo is = sometimes=20 given to it; but, although the terms are occasionally used = indiscriminately, the=20 latter is more frequently employed to designate the state of an unborn = child=20 during the first three months after conception, and by some until = quickening. A=20 foetus is sometimes described by the uncouth phrase of infant in ventre = sa=20 mere.

2. It is sometimes of great importance, particularly in criminal law, = to=20 ascertain the age of the foetus, or how far it has progressed towards = maturity.=20 There are certain signs which furnish evidence on this subject, the = principal of=20 which are, the size and weight, and the formation of certain parts as = the=20 cartilages, bones, &c. These are not always the same, much of course = must=20 depend upon the constitution and health of the mother, and other = circumstances=20 which have an influence on the foetus. The average length and weight of = the=20 foetus at different periods of gestation, as deduced by Doctor Beck, = from=20 various observers, as found by Maygrier, is here given.

=C8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=AE=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8= =B8=B8=B8=B8=B8=AE=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=AE=B8=B8=B8= =B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=AE=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8= =B8=B8=B8=D8=20 - - Beck. - Maygrier. - Beck. - Maygrier. - -=20 =FD=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=83=B8=B8=B8=B8=B8=B8=B8= =B8=B8=B8=B8=B8=B8=B8=B8=83=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=83= =B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8* - - Length. -=20 Weight. - - = =FD=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=AE=B8=B8=B8=B8=B8=B8=B8= =B8=B8=B8=B8=B8=B8=B8=B8=AE=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=AE= =B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8*=20 -30 days. -3 to 5 lines. -10 to 12 lines.- -9 to 10 grains.- - 2 Months = -2=20 inches -4 inches. -2 ounces. -5 drachms. - - 3 do. -3=80 inches. -6 = inches. -2 to=20 3 ounces. -2=80 ounces. - - 4 do. -5 to 6 inches.-8 inches. -4 to 6 = ounces. -7 to=20 8 ounces. - - 5 do. -7 to 9 inches -10 inches. -9 to 10 ounces. -16 = ounces. - -=20 6 do. -9 to 12 inches-12 inches. -1 to 2 pounds. -2 pounds. - - 7 do. = -12 to 14=20 inches.-14 inches. -2 to 3 pounds. -3 pounds. - - 8 do. -16 inches. -16 = inches.=20 -3 to 4 pounds. -4 pounds. -=20 =AF=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=83=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8= =B8=B8=B8=83=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=83=B8=B8=B8=B8=B8= =B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=83=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8=B8= =B8=C1=20

3. The discordance apparent between them proves that the observations = which=20 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=20 weight used by Maygrier, differs from avoirdupois weight used by Dr. = Beck. The=20 pouud poids de marc, of sixteen ounces, contains 9216 Paris grains, = whilst the=20 avoirdupois contains only 8532.5 Paris grains. The Paris inch is = 1.065977=20 English inch. Vide, generally, 1 Beck's Med. Jur. 239; 2 Dunglison's = Human=20 Physiology, 391; Ryauls Med. Jur. 137; 1 Chit. Med. Jur. 403; I Briand, = Med.=20 Leg. prem. partie, c. 4, art. 2; and the articles Birth; Dead Born; = Foeticide;=20 In ventre sa mere; infanticide; Life; and Quick with child.

FOLCMOTE. The name of a court among the Saxons. It was = literally an=20 assembly of the people or inhabitants of the tithing or town, its = jurisdiction=20 extended over disputes between neighbors, as to matters of trespass in = meadows,=20 corn, and the like.

FOLD-COURSE, Eng. law. By this phrase is understood land used = as a=20 sheepwalk; it also signifies land to which the sole right of folding the = cattle=20 of others is appurtenant; sometimes it means merely such right of = folding. It is=20 also used to denote the right of folding on another's land, which is = called=20 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,=20 and resumed at his discretion. It was held in villenage. 2 Bl. Com. = 90.

FOOT. A measure of length, containing one-third of a yard, or = twelve=20 inches. See Ell. Figuratively, it signifies the conclusion, the end; as, = the=20 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=20 parties, day, year, and place, and before whom it was acknowledged or = levied. 2=20 Bl. Com. 351.

FOR THAT, pleading. It is a maxim in law, regulating alike = every form=20 of action, that the plaintiff shall state his complaint in positive and = direct=20 terms, and not by way of recital. "For that," is a positive allegation; = "For=20 that whereas," in Latin "quod cum," (q. v.) is a recital. Hamm. N. P. = 9.

FORBEARANCE, contracts. The act by which a creditor waits for = the=20 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=20 consideration to support an assumpsit made by the debtor. 4 John. R. = 237; 2.=20 Nott & McCord, 133; 2 Binn. R. 510; Com. Dig. Action upon the case = upon=20 assumpsit, B 1; Dane's Ab. Index, h. t.; 1 Leigh's N. P. 31; 1 Penna. R. = 385; 4=20 Wash. C. C. R. 148; 5 Rawle's R. 69.

3. The forbearance must be of some right which can be enforces with = effect=20 against the party forborne; if it cannot be so enforced by the party = forbearing,=20 he has sustained no detriment, and the party forborne has derived no = benefit. 4=20 East, 455 5 B. & Ald. 123. See 1 B. & A. 605 Burge on Sur. 12, = 13. Vide=20 Giving time. FORCE. A power put in motion. It is: 1. Actual; or 2. = Implied.

2. - =A71. If a person with force break a door or gate for an illegal = purpose,=20 it is lawful to oppose force to force; and if one enter the close of = another, vi=20 et armis, he may be expelled immediately, without a previous request; = for there=20 is no time to make a request. 2 Salk. 641; 8 T. R. 78, 357. And see tit. = Battery, =A72. When it is necessary to rely upon actual force in = pleading, as in=20 the case of a forcible entry, the words "manu forti," or with a strong = hand=20 should be adopted. 8 T. R. 357 358. But in other cases, the words "vi et = armis,"=20 or " with force and arms," is sufficient. Id.

3. - =A72. The entry into the ground of another, without his consent, = is=20 breaking his close, for force is implied in every trespass quare clausum = fregit.=20 1 Salk. 641; Co. Litt. 257, b; 161, b; 162, a; 1 Saund: 81, 140, n. 4 8 = T: R.=20 78, 358; Bac. Ab. Trespass; this Dict. tit. Close. In the case of false=20 imprisonment, force is implied. 1 N. R. 255. And the same rule prevails = where a=20 wife, a daughter or servant, have been enticed away or debauched, though = in fact=20 they consented, the law considering them incapable of consenting. See 3 = Wils.=20 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=20 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=20 force is understood unlawful violence. Co. Litt. 161, b.; Bouv. Inst. = Index, h.=20 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=20 donor cannot deprive of the porttion of his estate reserved for them by = law,=20 except in cases where he has a just cause to disinherit them. Civ. Code = of Lo.=20 art. 1482. As to the portion of the estate they are entitled to, see the = article=20 Legitime. As to the causes for which forced heirs may be deprived of = this right,=20 see Disinherison.

FORCIBLE ENTRY or DETAINER, crim. law. An offence committed by = unlawfully and violently taking or keeping possession of lands and = tenements,=20 with menaces, force and, arms, and without the authority of law. Com. = Dig. h.=20 t.

2. The proceedings in case of forcible entry or detainer, are = regulated by=20 statute in the several states. ( q. v.) The offence is generally = punished by=20 indictment. 4 Bl. Com. 148 Russ. on Cr. 283. A forcible entry and a = forcible=20 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.=20 The party injured has two actions, a criminal or a civil. The action is = called=20 actio interdictum undevie. In French, l'action reintegrande. Poth. Proc. = Civ.=20 Partie 2, c. 3, art. 3; 11 Toull. Nos. 123, 134, 135, 137, pp. 179, 180, = 182,=20 and, generally, from p. 163. Vide, generally, 3 Pick. 31; 3 Halst. R. = 48; 2=20 Tyler's R. 64; 2 Root's R. 411; Id . 472; 4 Johns. R. 150; 8 Johns. R. = 44; 10=20 Johns. R. 304; 1 Caines' R. 125; 2 Caines' R. 98; 9 Johns. R. 147; 2 = Johns. Cas.=20 400; 6 Johns. R. 334; 2 Johns. R. 27; 3 Caines' R. 104; 11 John. R. 504; = 12=20 John. R. 31; 13 Johns. R. 158; Id. 340; 16 Johns. R. 141; 8 Cowen, 226; = 1 Coxe's=20 R. 258; Id. 260; 1 South. R. 125; 1 Halst. R. 396; 3 Id. 48; 4 Id. 37; 6 = Id. 84;=20 1 Yeates, 501; Addis. R. 14, 17, 43, 316, 355; 3 Serg. & Rawle, 418; = 3=20 Yeates, 49; 4 Dall. 212; 4 Yeates, 326; 3 Harr. & McHen. 428; 2 Bay, = R. 355;=20 2 Nott & McCord, 121; 1 Const. R. 325; Cam. & Norw. 337, 340; = Com. Dig.=20 h. t.; Vin. &b. h. t.; Bac. Ab. h. t.; 2 Chit. Pr. 281 to 241.

4. The civil law punished even the owner of an estate, in proportion = to the=20 violence used, when he forcibly took possession of it, a fortiori, a = stranger.=20 Domat, Supp. au Dr. Pub. 1. 3, t. 4, s. 3.

FORECLOSURE, practice. A proceeding in chancery, by which the=20 mortgagor's right of redemption of the mortgaged premises is barred or=20 foreclosed forever.

2. This takes place when the mortgagor has forfeited his estate by=20 non-payment of the money due on the mortgage at the time appointed, but = still=20 retains the equity of redemption; in such case the mortgagee may file a = bill,=20 calling on the mortgagor, in a court of equity, to redeem his estate = presently,=20 or in default thereof, to be forever closed or barred from any right of=20 redemption.

3. In some cases, however, the mortgagee obtains a decree for a sale = of the=20 land, under the direction of an officer of the court, in which case the = proceeds=20 are applied to the discharge of encumbrances, according to their = priority. This=20 practice has been adopted in Indiana, Kentucky, Maryland, South = Carolina,=20 Tennessee, and Virginia. 4 Kent, Com., 180. When it is the practice to = foreclose=20 without a sale, its severity is mitigated by enlarging the time of = redemption=20 from six months to six months, or for shorter periods, according to the = equity=20 arising from the circumstances. Id. Vide 2 John. Ch. R, 100; 6 Pick. R. = 418; 1=20 Sumn. R. 401; 7 Conn. R. 152; 5 N; H. Rep. 30; 1 Hayw. R. 482; 5 Han. R. = 554; 5=20 Yerg. 240; 2 Pick. R. 40; 4 Pick. R. 6; 2 Gallis. 154; 9 Cow n's R. 346; = 4=20 Greenl. R. 495; Bouv. Inst. Index, h. t.

FOREHAND RENT, Eng. law. A species of rent which is a premium = given by=20 the tenant at the time of taking the lease, as on the renewal of leases = by=20 ecclesiastical corporations, which is considered in the nature of an = improved=20 rent. 1 T. R. 486; 3 T. R. 461; 3 Atk. 473; Crabb. on R. P. =A7155.

FOREIGN. That which belongs to another country; that which is = strange.=20 1 Peters, R. 343.

2. Every nation is foreign to all the rest, and the several states of = the=20 American Union are foreign to each other, with respect to their = municipal laws.=20 2 Wash. R. 282; 4 Conn. 517; 6 Conn. 480; 2 Wend. 411 1 Dall. 458, 463 6 = Binn.=20 321; 12 S. & R. 203; 2 Hill R. 319 1 D. Chipm. 303 7 Monroe, 585 5 = Leigh,=20 471; 3 Pick. 293.

3. But the reciprocal relations between the national government and = the=20 several states composing the United States are not considered as = foreign, but=20 domestic. 9 Pet. 607; 5 Pet. 398; 6 Pet. 317; 4 Cranch, 384; 4 Gill = & John.=20 1, 63. Vide Attachment, for foreign attachment; Bill of exchange, for = foreign=20 bills of exchange; Foreign Coins; Foreign Judgment; Foreign Laws; = Foreigners.=20

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=20 compelling an appearance, and, in default of that, to pay the claim of = the=20 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=20 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,=20 enacts, sec. 1. That from and after the passage of this act, the = following=20 silver coins shall be of the legal value and shall pass current as money = within=20 the United States, by tale, for the payment of all debts and demands, at = the=20 rate of one hundred cents the dollar, that is to say, the dollars of = Mexico,=20 Peru, Chili,.and Central America, of not less weight than four hundred = and=20 fifteen grains each, and those re-stamped in Brazil of the like weight, = of not=20 less fineness than ten ounces, fifteen pennyweights of pure silver, in = the troy=20 pound of twelve ounces of standard silver; and five franc pieces of = France, when=20 of not less fineness than ten ounces and sixteen pennyweights in twelve = ounces=20 troy weight of standard silver, and weighing not less than three hundred = and=20 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,=20 enacts) sect. 1. That from and after the thirtyfirst day of July next, = the=20 following gold coins shall pass current as money within the United = States, and=20 be receivable in all payments, by weight, for the payment of all debts = and=20 demands, at the rates following, that is to say: the gold coins of Great = Britain=20 and Portugal and Brazil, of not less than twenty-two, carats fine, at = the rate=20 of ninety-four cents and eight-tenths of a cent per pennyweight; the = gold coins=20 of France nine-tenths fine, at the rate of ninety-three cents and = one-tenth of a=20 cent per pennyweight; and the gold coins of Spain, Mexico, and Colombia, = of the=20 fineness of twenty carats three. grains and seven-sixteenths, of a = grain, at the=20 rates of eighty-nine events and nine-tenths of a cent per = pennyweight.

5. By the act of. March 3, 1823, 3 Story's L. U. S. 1923, it is = enacted,=20 sect. 1. That from and after the passage of this act, the following gold = coins=20 shall be received in all payments on account of public lands, at the = several and=20 respective rates following, and not otherwise, viz.: the gold coins of = Great=20 Britain and Portugal, and of their present standard, at the rate of one = hundred=20 cents for every twenty-seven grains, or eighty-eight cents and = eight-ninths per=20 pennyweight; the gold coins of France of their present standard, at the = rate of=20 one hundred cents for every twenty-seven and a half grains, or = eighty-seven and=20 a quarter cents per pennyweight; and the gold coins of Spain of their = present=20 standard, at the rate of one hundred cents for every twenty-eight and a = half=20 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=20 ad valorem rates of duty upon goods, wares, and merchandise, at the = place=20 ofimportation, shall be estimated by adding twenty per cent to the = actual costs=20 thereof, if imported from the Cape of Good Hope, or from any place = beyond the=20 same; and ten per cent. on the actual cost thereof, if imported from any = other=20 place or country, including all charges; commissions, outside packages, = and=20 insurance, only excepted. That all foreign coins and currencies shall be = estimated at the following rates; each pound sterling of Great Britain, = at four=20 dollars and forty-four cents; each livre tournois of France, at eighteen = and a=20 half cents; each florin, or guilder of the United Netherlands, at forty = cents;=20 each marc-banco of Hamburg, at thirty-three and one-third cents; each = rix dollar=20 of Denmark, at one hundred cents: each rial of plate, and each rial o = vellon, of=20 Spain, the former at ten cents, the latter at five cents, each; each = milree of=20 Portugal, at one dollar and twenty-four cents; each pound sterling of = Ireland,=20 at four dollars and ten cents; each tale o China, at one dollar and = forty-eight=20 cents; each pagoda of India, at one dollar and ninety four cents; each = rupee, of=20 Bengal, at fifty-five cents and one half; and all other denominations of = money,=20 in value as nearly as may be to the said rates, or the intrinsic value = thereof,=20 compared with money of the United States: Provided, that it shall be = lawful for=20 the president of the United States to cause to be established fit and = proper=20 regulations for estimating the duties on goods, wares, and merchandise, = imported=20 into the United States, in respect to which the original cost shall be = exhibited=20 in a depreciated currency, issued and circulated under authority of any = foreign=20 government.

7. By the act of July 14 1832, s 16, 4 Sharsw. Cont. of Story's L. U. = S.=20 2326, the law is changed as to the value of the pound sterling, in = calculating=20 the rates of dutics. It is thereby enacted, that from and after the said = third=20 day of March, one thousand eight hundred and thirty-three, in = calculating the=20 rate of duties, the pound sterling shall be considered and taken as of = the value=20 of four dollars and eighty cents.

8 . The act of March 3, 1843, provides, That in all computations of = the value=20 of foreign moneys of account at the custom houses of the United States, = the=20 thaler of Prussia shall be deemed and taken to be of the value of = sixty-eight=20 and one-half cents; the mii-reis of Portugal shall be deemed and taken = to be of=20 the value of one hundred and twelve cents; the rix dollar of Bremen = shall be=20 deemed and taken to be of the value of seventy-eight and three quarter = cents;=20 the thaler of Bremen, of seventy-two grotes, shall be deemed and taken = to be of=20 the value of seventy-one cents; that the mil-reis of Madeira shall be = deemed and=20 taken to be of the value of one hundred cents; the mil-reis of the = Azores shall=20 be deemed and taken to be of the value of eighty-three and one-third = cents; the=20 marc-banco of Hamburg shall be deemed and taken to be of the value, of=20 thirty-five cents; the rouble of Russia shall be deemed and taken to be = of the=20 value of seventy-five cents; the rupee of British India shall be deemed = and=20 taken to be of the value of forty-four and one half cents; and all = former laws=20 inconsistent herewith are hereby repealed.

9. And the act of May 22, 1846, further directs, That in all = computations at=20 the custom-house, the foreign coins and money of account herein = specified shall=20 be estimated as follows, to wit: The specie dollar of Sweden and Norway, = at one=20 hundred and six cents. The specie dollar of Denmark, at one hundred and = five=20 cents. The thaler of Prussia and of the Northern States of Germany, at=20 sixty-nine cents. The florin of the Southern States of Germany, at forty = cents.=20 The florin of the Austrian empire, and of the city of Augshurg, at = forty-eight=20 and one half cents. The lira of the Lombardo-Venetian Kingdom, and the = lira of=20 Tuscany, at sixteen cents. The franc of France, and of Belgium, and the = lira of=20 Sardinia, at eighteen cents six mills. The ducat of Naples, at eighteen = cents.=20 The ounce of Sicily, at two dollars and forty cents. The pound of the = British=20 provinces of Nova Scotia, New Brunswick, Newfoundland, and Canada, at = four=20 dollars. And all laws inconsistent with this act are hereby = repealed.

FOREIGN JUDGMENT, evidence, remedies. A judgment rendered in a = foreign=20 state.

2. In Louisiana it has been decided that a judgment rendered by a = Spanish=20 tribunal, under the former governmeut of the country, is not a foreign = judgment.=20 4 M. R. 301 Id. 310.

3. The subject will be considered with regard, 1st. To the manner of = proving=20 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=20 was rendered. 2. By a copy proved to be a true copy. 3. By the = certificate of an=20 officer authorized by law, which certificate must, itself, be properly=20 authenticated. 2 Cranch, 238; 2 Caines' R. 155; 5 Cranch, 335; 7 Johns. = R. 514=20 Mass. R. 273 2 Munf. R. 43 4 Camp. R. 28 2 Russ. on Cr. 723. There is a=20 difference between the judgments of courts of common law jurisdiction = and courts=20 of admiralty, as to the mode of proof of judgments rendered by them. = Courts of=20 admiralty are under the law of nations; certificates of such judgments = with=20 their seals affixed, will therefore be admitted in evidence without = further=20 proof. 5 Cranch, 335; 3 Conn. R. 171.

5. - 2. A judgment rendered in a foreign country by a court de jure, = or even=20 a court defacto, 4 Binn. 371, in a matter within its jurisdiction, when = the=20 parties litigant had been notified and have had an opportunity of being = heard,=20 either establishing a demand, against the defendant or discharging him = from it,=20 is of binding force. 1 Dall. R. 191; 9 Serg. & Rawle, 260; 10 Serg. = &=20 Rawle, 240; 1 Pet. C. C. R. 155; 1 Spears, Eq. Cas. 229; 7 Branch, 481. = As to=20 the plea of the act of limitation to a suit on a foreign judgment, see = Bac. Ab.=20 h. t.; 2 Vern. 540; 5 John. R. 132; 13 Serg. & Rawle, 395; 1 = Speer's, Eq.=20 Cas. 219, 229.

6. For the manner of proving a judgment obtained in a sister state, = see the=20 article Authentication. For the French law in relation to the force of = foreign=20 judgments, see Dalloz, Dict. mot Etranger, art. 6.

FOREIGN LAWS, evidence. The laws of a foreign country. They = will be=20 considered with regard to, 1. The manner in which they are to be proved. = 2.=20 Their effect when proved.

2. - l. The courts do not judicially take notice of foreign laws, and = they=20 must therefore be proved as facts. Cowp. 144; 3 Esp. C. 163 3 Campb. R. = 166; 2=20 Dow & Clark's R. 171; 1 Cranch, 38; 2 Cranch, 187, 236, 237; 6 = Cranch, 274;=20 2 Harr. & John. R. 193; 3 Gill & John. R. 234; 4 Conn. R. 517; 4 = Cowen,=20 R. 515, 516, note; Pet. C. C. R. 229; 8 Mass. R. 99; 1 Paige's R. 220 10 = Watts,=20 R. 158. The manner of proof varies according to circumstances. As a = general rule=20 the best testimony or proof is required, for no proof will be received = which=20 pre-supposes better testimony attainable by the party iybo offers it. = When the=20 best testimony cannot be obtained, secondary evidence will be received. = 2=20 Cranch, 237.

3. Authenticated copies of written laws and other public documents = must be=20 produced when they can be procured but should they be refused by the = competent=20 authorities, then inferior proof may be admissible. Id.

4. When our own government has promulgated a foreign law or ordinance = of a=20 public nature as authentic, that is held sufficient evidence of its = existence. 1=20 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=20 being of equal authority to an oath, they must be verified by the = sanction of an=20 oath.

6. The usual modes of authenticating them are by an exemplification = under the=20 great seal of a state; or by a copy proved by oath to be a true copy - = or by a=20 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,=20 523; 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=20 the ground that the law in question is a written law, the party = objecting must=20 show that fact. 15 Serg. & R. 87; 2 L. R. 154. Proof of such = unwritten law=20 is usually made by the testimony of witnesses learned in the law, and = competent=20 to state it correctly under oath. 2 Cranch, 237; 1 Pet. C. C. R. 225; 2 = Wash. C.=20 C. R. 175; 15 Serg. & R. 84; 4 John. Ch. R. 520; Cowp. 174; 2 Hagg. = R. App.=20 15 to 144.

8. In England certificates of persons in high authority have been = allowed as=20 evidence in such cases. 3 Hagg. Eccl. R. 767, 769.

9. The public seal of a foreign sovereign or state affixed to a = writing=20 purporting to be a written edict, or law, or judgment, is, of itself, = the=20 highest evidence, and no further proof is required of such public seal. = 2=20 Cranch, 238; 2 Conn. R. 85; 1 Wash. C. C. R. 363; 4 Dall. 413, 416; 6 = Wend. 475;=20 9 Mod. 66.

10. But the seal of a foreign court is not, in general, evidence, = without=20 further proof, and it must therefore be established by competent = testimony. 3=20 John. R. 310; 2 Harr. & John. 193; 4 Cowen, 526, n.; 3 East, = 221.

11. As courts of admiralty are courts under the laws of nations, = their seals=20 will be admitted as evidence without further proofs. 5 Cranch, 335; 3 = Conn. 171.=20 This is an exception to the general rule.

12. The mode of authenticating the laws and records of the several = states of=20 the American Union, is peculiar, and will be found under the article=20 Authentication. It may hereby be observed that the rules prescribed by = acts of=20 congress do not exclude every other mode of authentication, and that the = courts=20 may admit, proof of the acts of the legislatures of the several, states, = although not authenticated under the acts of congress. Accordingly a = printed=20 volume, purporting on its face to contain the laws of a sister, state, = is=20 admissible, as prima facie evidence; to prove the statute law of that = state. 4=20 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=20 to the court; the object of the proof of foreign laws, is to enable the = ourt to=20 instruct the jury what is, in point of law, the result from foreign = laws, to be=20 applied to the matters in controversy before them. The court are = therefore to=20 decide what is the proper evidence of the laws of a foreign country; and = when=20 evidence is given of those laws, the court are to judge of their = applicability=20 to the matter in issue. Story, Cont. of L. =A7638 2 Harr. & John. = 193. 219; 4=20 Conn. R. 517; 3 Harr. & John. 234, 242; Cowp. 174. Vide Opinion.

FOREIGN NATION or STATE. A nation totally independent of the = United=20 States of America

2. The constitution authorizes congress to regulate commerce with = "foreign=20 nations." This phrase does not include an Indian tribe, situated within = the=20 boundaries of a state, and exercising the powers of government and = sovereignty.=20 5 Pet. R. 1. Vide Nation.

FOREIGN PLEA. One which, if true, carries the cause out of the = court=20 where it is brought, by showing that the matter alleged is not within = its=20 jurisdiction. 2 Lill. Pr. Reg. 374; Carth. 402; Lill. Ent. 475. It must = be on=20 oath and before imparlance. Bac. Ab. Abatement, R.

FOREIGNERS. Aliens; persons born in another country than the = United=20 States, who have not been naturalized. 1 Pet. R. 349. Vide 8 Com. Dig. = 615, and=20 the articles Alien; Citizens.

FOREJUDGED THE COURT. An officer of the court who is expelled = the=20 same, is, in the English law, said to be forejudged the court. Cunn. = Dict. h.=20 t.

FOREMAN. The title of the presiding member of a grand = jury.

FOREST. By the English law, a forest is a circuit of ground = properly=20 under the king's protection, for the peaceable living and abiding of = beasts of=20 hunting and the chase, and distinguished not only by having bounds and=20 privileges, but also by having courts and offices. 12 do. 22. The = signification=20 of forest in the United States is the popular one of an extensive piece = of=20 woodland. Vide Purlieu.

FORTSTALLING, crim. law. Every practice or device, by act, = conspiracy,=20 words, or news, to enhance the price of victuals or other provisions. 3 = Inst.=20 196; 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=20 all kinds of practices which have that tendency, whether by spreading = false=20 rumors, or buying things in a market before the accustomed hour, are = offences at=20 common law, and come under the notion of forestalling, which includes = all kind=20 of offences of this nature. Hawk. P. C. b. 1 c. 8 0, s. 1. Vide 13 Vin. = Ab. 430;=20 Dane's Ab. Index, h. t.; 4 Com. Dig. 391 1 East, Rep. 132.

FORFEITURE, punishment, torts. Forfeiture is a punishment = annexed by=20 law to some illegal act, or negligence, in the owner of lands, = tenements, or=20 hereditaments, whereby he loses all his interest therein, and they = become vested=20 in the party injured, as a recompense for the wrong which he alone, or = the=20 Public together with himself, hath sustained. 2 Bl. Com. 267.

2. Lands, tenements and hereditaments, may be forfeited by various = means: 1.=20 By the commission of crimes and misdemeanors. 2. By alienation contrary = to law.=20 3. By the non-performance of conditions. 4. By waste.

3. - 1. Forfeiture for crimes. By the Constitution of the United = States, art.=20 3, s. 3, it is declared that no attainder of treason shall work = corruption of=20 blood, or forfeiture, except during the life of the person attainted. = And by the=20 Act of April 30, 1790, s. 24, 1 Story's Laws U. S. 88, it is enacted, = that no=20 conviction or judgment for any of the offences aforesaid, shall work = corruption=20 of blood, or any forfeiture of estate. As the offences punished by this = act are=20 of the blackest dye, including cases of treason, the punishment of = forfeiture=20 may be considered as being abolished. The forfeiture of the estate for = crime is=20 very much reduced in practice in this country, and when it occurs, the = stater=20 takes the title the party had, and no more. 4 Mason's R. 174; Dalrymple = on=20 Feudal Property, c. 4, p. 145-154; Fost. C. L. 95.

4. - 2. Forfeiture by alienation. By the English law, estates less = than a fee=20 may be forfeited to the party entitled to the residuary interest by a = breach of=20 duty in the owner of the particular estate. When a tenant for life or = years,=20 therefore, by feoffment, fine, or recovery, conveys a greater estate = than he is=20 by law entitled to do, he forfeits his estate to the person next = entitled in=20 remainder or reversion. 2 Bl. Com. 274. In this country, such = forfeitures are=20 almost unknown, and the more just principle prevails, that the = conveyance by the=20 tenant operates only on the interest which he possessed, and does not = affect the=20 remainder-man or reversioner. 4 Kent, Com. 81, 82, 424; 1 Hill. Ab. c. = 4, s. 25=20 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,=20 either expressed in the deed at its original creation, or impliedly by = law, from=20 a principle of natural reason. 2 Bl. Com. 281; and see Ad Eject. 140 to = 173.=20 Vide article Reentry; 12 Serg. & Rawle, 190.

6. - 4. Forfeiture by waste. Waste is also a cause of forfeiture. 2 = Bl. Com.=20 283. Vide article Waste.

7. By forfeiture is also understood the neglect of an obligor to = fulfil his=20 obligation in proper time: as, when one has entered into a bond for a = penal sum,=20 upon condition to pay a smaller at a particular day, and he fails to do = it,=20 there is then said to be a forfeiture. Again, when a party becomes bound = in a=20 certain sum by a recognizance to pay a certain sum, with a condition = that he=20 will appear at court to answer or prosecute a crime, and he fails to do = it,=20 there is a forfeiture of the recognizance. Courts of equity, and now = courts, of=20 law, will relieve from the forfeiture of a bond; and upon a proper case = shown,=20 criminal courts will in general relieve from the forfeiture of a = recognizance to=20 appear. See 3 Yeates, 93; 2 Wash. C. C. 442 Blackf. 104, 200; Breeze, = 257. Vide,=20 generally, 2 Bl. Com. ch. 18; Bouv. Inst. Index, h. t.; 2 Kent's Com; = 318; 4 Id.=20 422; 10 Vin. Ab. 371, 394 13 Vin. Ab. 436; Bac. Ab. Forfeiture Com. Dig. = h. t.;=20 Dane's Ab. h. t.; 1 Bro Civ. L. 252 4 Bl. Com. 382; and Considerations = on the=20 Law of Forfeiture for High Treason, London ed. l746.

FORFEITURE OF MARRIAGE, Old law. The name of a penalty = formerly=20 incurred by a ward in chivalry, when he or she married contrary to the = wishes of=20 his or her guardian in chivalry. The latter, who was the ward's lord, = had an=20 interest in controlling the marriage of his female wards, and he could = exact a=20 price for his consent and, at length, it became customary to sell the = marriage=20 of wards of both sexes. 2 Bl. Com . 70.

2. When a male ward refused an equal match provided by his guardian, = he was=20 obliged, on coming of age, to pay him the value of the marrriage; that = is, as=20 much as he had been bona fide offered for it; or, if the guardian chose, = as much=20 as a jury would assess, taking into consideration all the real and = personal=20 property of the ward; and the guardian could claim this value, although = he might=20 have made no tender of the marriage. Co. Litt. 82 a; 2 Inst. 92 5 Co: = 126 b; 6=20 Co. 70 b.

3. When a male ward between his age of fourteen and twenty-one years, = refused=20 to accept an offer of an equal match, and during that period formed an = alliance=20 elsewhere, without his permission, he incurred forfeiture of marriage; = that is,=20 he became liable to pay double the value of, the, marriage. Co. Litt. 78 = b, 82=20 b.

FORGERY, crim. law. Forgery at common law has been held to be = "the=20 fraudulent making and alteration of a writing to the prejudice of = another man's=20 right." 4 Bl. Com. 247. By a more modern writer, it is defined, as " a = false=20 making; a making malo animo, of any written instrument, for the purpose = of fraud=20 and deceit." 2 East, P. C. 852.

2. This offence at common law is of the degree of a misdemeanor. 2 = Russel,=20 1437. There are many kinds of forgery, especially subjected to = punishment by=20 statutes enacted by the national and state legislatures.

3. The subject will be considered, with reference, .1. To the making = or=20 alteration requisite to constitute forgery. 2. The written instruments = in=20 respect of which forgery may be committed. 3. The fraud and deceit to = the=20 prejudice of another man's right. 4. The statory provisions under the = laws of=20 the United States, on the subject of forgery.

4. - 1. The making of a whole written instrument in the name of = another with=20 a fraudulent intent is undoubtedly a sufficient making but a fraudulent=20 insertion, alteration, or erasure, even of a letter, in any material = part of the=20 instrument, whereby a new operation is given to it, will amount to a = forgery;=20 and this, although it be afterwards executed by a person ignorant of the = deceit.=20 2 East, P. C. 855.

5. The fraudulent application of a true signature to a false = instrument for=20 which it was not intended, or vice ve7-sa, will also be a forgery. For = example,=20 it is forgery in an individual who is requested to draw a will for a = sick person=20 in a particular way, instead of doing so, to insert legacies of his own = head,=20 and then procuring the signature of such sick person to be affixed to = the paper=20 without revealing to him the legacies thus fraudulently inserted. Noy, = 101;=20 Moor, 759, 760; 3 Inst. 170; 1 Hawk. c. 70, s. 2; 2 Russ. on Cr. 318; = Bac. Ab.=20 h. t. A.

6. It has even been intimated by Lord Ellenborough, that a party who = makes a=20 copy of a receipt, and adds to such copy material words not in the = original, and=20 then offers it in evidence on the ground that the original has been = lost, may be=20 prosecuted for forgery. 5 Esp. R. 100.

7. It is a sufficient making where, in the writing, the party assumes = the=20 name and character of a person in existence. 2 Russ. 327. But the = adoption of a=20 false description and addition, where a false name is not assumed, and = there is=20 no person answering the description, is not a forgery. Russ. & Ry. = 405.

8. Making an instrument in a fictitious name, or the name of a = non-existing=20 person, is equally a forgery, as making it in the name of au existing = person; 2=20 East, P. C. 957; 2 Russ. on Cr. 328; and although a man may make the = instrument=20 in his own name, if he represent it as the instrument of another of the = same=20 name, when in fact there is no such person, it will be a forgery in the = name of=20 a non-existing person.; 2 Leach, 775; 2 East, P. C. 963; but the = correctness of=20 this decision has been doubted. Rosc. Cr. Ev. 384.

9. Though, in general, a party cannot be guilty of forgery by a mere=20 non-feasance, yet, if in drawing a will, he should fraudulently omit a = legacy,=20 which he had been directed to insert, and by the omission of such = bequest, it=20 would cause a material alteration in the limitation of a bequest to = another; as,=20 where the omission of a devise of an estate for life to one, causes a = devise of=20 the same lands to another to pass a present estate which would otherwise = have=20 passed a remainder only, it would be a forgery. Moor, 760; Noy, 101; 1 = Hawk. c.=20 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=20 publication of the forged instrument. 2 East, P. C. 855; 3 Chit. Cr. L.=20 1038.

11. - 2. With regard to the thing forged, it may be observed, that it = has=20 been holden to be forgery at common law fraudulently to falsify, or = falsely make=20 records and other matters of a public nature; 1 Rolle's Ab. 65, 68; a = parish=20 register; 1 Hawk. c. 70; a letter in the name of a magistrate, the = governor of a=20 gaol, directing the discharge of prisoner. 6 Car. & P. 129; S. C. 25 = Eng. C.=20 L. R. 3 1 5.

12. With regard to private writings, it is forgery fraudulently to = falsify or=20 falsely to make a deed or will; 1 Hawk. b. 1, c. 70, s. 10 or any = private=20 document, whereby another person may be prejudiced. Greenl. Rep. 365; = Addis. R.=20 33; 2 Binn. R. 322; 2 Russ. on Or. b. 4, c. 32, s. 2; 2 East, P. C. 861; = 3 Chit.=20 Cr. Law, 1022 to 1038.

13. - 3. The intent must be to defraud another, but it is not = requisite that=20 any one should have been injured it is sufficient that the instrument = forged=20 might have proved prejudicial. 3 Gill & John. 220; 4 W. C. C. R. = 726. It has=20 been holden that the jury ought to infer an intent to defraud the person = who=20 would have to pay the instrument, if it were genuine, although from the = manner=20 of executing the forgery, or from the person's ordinary caution, it = would not be=20 likely to impose upon him; and although the object was general to = defraud=20 whoever might take the instrument, and the intention of the defrauding = in par=20 ticular, the person who would have to pay the instrument, if genuine, = did not=20 enter into the contemplation of the prisoner. Russ. & Ry. 291; vide = Russ..=20 on Cr. b. 4, c. 32, s. 3; 2 East, P. C. 853; 1 Leach, 367; 2 Leach, 775; = Rosc.=20 Cr. Ev. 400.

14.- 4. Most, and perhaps all the states in the Union, have passed = laws=20 making certain acts to be forgery, and the national legislature has also = enacted=20 several on this subject, which are here referred to. Act of March 2, = 1803, 2=20 Story's L. U. S. 888; Act of March 3, 1813, 2 Story's L. U. S. 1304 Act = of March=20 1, 1823, 3 Story's L. U. S. 1889; Act of March 3, 1825, 3 Story's L. U. = S. 2003;=20 Act of October 12, 1837, 9 Laws U. S. 696.

15. The term forgery, is also applied to the making of false or = counterfeit=20 coin. 2 Virg. Cas. 356. See 10 Pet. 613; 4 Wash. C. C. 733. For the law=20 respecting the forgery of coin, see article Money. And for the act of = congress=20 punishing forgery in the District of Columbia, see 4 Sharsw. Cont, of = Story's=20 Laws U. S. 2234. Vide, generally, Hawk. b. 1, c. 51 and 70; 3 Chit. Cr. = Law,=20 1022 to 1048; 4 Bl. Com. 247 to 250; 2 East, P. C. 840 to 1003; 2 Russ. = on Cr.=20 b. 4, c. 32; 13 Vin. Ab. 459; Com. Dig. h. t.; Dane's Ab. h. t. = Williams' Just.=20 h. t. Burn's Just. h. t.; Rose. Cr. Ev. h. t.; Stark. Ev. h. t. Vide = article=20 Frank.

FORISFAMILIATION, law of Scotl. By this is understood the act = by which=20 a father gives to a child his share of his legitime, and the latter = renounces=20 all further claim. From this time, the child who has so received his = share, is=20 no longer accounted 4 child in the division of the estate. Ersk. Inst. = 655, n.=20 23; Burt. Man. P. R. part 1, c. 2, s. 3, page 35.

FORM, practice. The model of an instrument or = legal-proceeding,=20 containing the substance and the principal terms, to be used in = accordance with=20 the laws; or, it is the act of pursuing, in legal proceedings, and in = the=20 construction of legal instruments, the order required by law. Form is = usually=20 put in contradistinction to substance. For example, by the operation of = the=20 statute of 27 Eliz. c. 5, s. 1, all merely formal defects in pleading, = except in=20 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=20 without which the right doth sufficiently appear to the court, is form;" = but=20 that any defect " by reason whereof the right appears not," is a defect = in=20 substance. Hob. 233.

3. A distinction somewhat more definite, is, that if the matter = pleaded be in=20 itself insufficient, without reference to the manner of pleading it, the = defect=20 is substantial; but that if the fault is in the manner of alleging it, = the=20 defect is formal. Dougl. 683. For example, the omission of a = consideration in a=20 declaration in assumpsit; or of the performance of a condition = precedent, when=20 such condition exists; of a conversion of property of the plaintiff, in = trover;=20 of knowledge in the defendant, in an action for mischief done by his dog = of=20 malice, in action for malicious prosecution, and the like, are all = defects in=20 substance. On the other hand, duplicity; a negative pregnant; = argumentative=20 pleading; a special plea, amounting to the general issue; omission of a = day,=20 when time is immaterial; of a place, in transitory actions, and the = like, are=20 only faults in form. Bac. Ab. Pleas, &c. N 5, 6; Com. Dig. Pleader, = Q 7; 10=20 Co. 95 a; 2 Str. 694 Gould; Pl. c. 9, =A717, 18; 1 Bl. Com. 142.

4. At the same time that fastidious objections against trifling = errors of=20 form, arising from mere clerical mistakes, are not encouraged or = sanctioned by=20 the courts, it has been justly observed, that "infinite mischief has = been=20 produced by the facility of the courts in overlooking matters of form; = it=20 encourages carelessness, and places ignorance too much upon a footing = with=20 knowledge amongst those who practice the drawing of pleadings." 1 B. = & P.=20 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=20 bear the charges of suing at law or in equity, upon making oath that he = is not=20 worth five pounds, and bringing a certificate from a counselor at law, = that he=20 believes him to have a just cause, he is permitted to sue informa = pauperis, in=20 the manner of a pauper; that is, he is allowed to have original writs = and=20 subpoenas gratis, and counsel assigned him without fee. 3 Bl. Com. 400. = See 3=20 John. Ch. R. 65; 1 Paige, R. 588; 3 Paige, R. 273; 5 Paige, R. 58; 2 = Moll. R.=20 475; 1 Beat. R. 54.

FORMALITY. The conditions which must be observed in making = contracts,=20 and the words which the law gives to be used in order to render them = valid; it=20 also signifies the conditions which the law requires to make regular=20 proceedings.

FORMEDON, old English law. The writ of formedon is nearly = obsolete, it=20 having been superseded by the writ of ejectment. Upon an alienation of = the=20 tenant in tail, by which the estate in tail is discontinued, and the = remainder=20 or reversion is by the failure, of the particular estate, displaced and = turned=20 into a mere right, the remedy is by action of formedon, (secundum formam = doni,)=20 because the writ comprehends the form of the gift. This writ is in the = nature of=20 a writ of right, and the action of formedon is the highest a tenant in = tail can=20 have. This writ is distinguished into three species; a formedon in the=20 descender, in the remainder, and in the reverter. 8 Bl. Com. 191 Bac. = Ab. h. t.;=20 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=20 unreversed, whether it be by confession, verdict or demurrer, is a = perpetual=20 bar, and may be pleaded to any new action of the same or a like nature, = for the=20 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=20 dealings between the parties, when the defendant omits to set off his = counter=20 demand in that case he may recover in a cross action. 2. When the = defendant in=20 ejectment neglects to bring forward his title, he may avail himself of a = new=20 suit. 1 John Cas. 492, 502, 510. It is evident that in these cases the = cause of=20 the second action is not the same as that of, the first, and, therefore, = a=20 former recovery cannot be pleaded. In real actions, one is not a bar to = an,=20 action of a. higher nature. 6 Co. 7. Vide 12 Mass. 337; Res Judicata; = Thing=20 Adjudged.

FORMULARY. A book of forms or precedents for matters of law; = the=20 form.

FORNICATION, crim. law. The unlawful carnal knowledge of an = unmarried=20 person with another, whether the latter be married or unmarried. When = the party=20 is married, the offence, as to him or her, is known by the name of = adultery. (q.=20 v.) Fornication is, however, included in every case of adultery, as a = larceny is=20 included in robbery. 2 Hale's P. C. 302.

FORPRISE. Taken before hand. This word is sometimes, though = but=20 seldom, used in leases and conveyances, implying an exception or = reservation.=20 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,=20 signify a false swearing before an officer or court having authority to=20 administer an path, on an issue. A man may be forsworn by making a false = oath=20 before an incompetent tribunal, as well as before a lawful court. Hence, = to say=20 that a man is forsworn, will or will not be slander, as the = circumstances show=20 that the oath was or was not taken before a lawful authority. Cro. Car. = 378;=20 Lut. 1292; 1 Rolle, Ab. 39, pl. 7 Bac. Ab. Slander, B 3; Cro. Eliz. 609 = 13=20 Johns. R. 80 Id. 48 12 Mass. 496 1 Johns. R. 505 2 Johns. R. 10; 1 Hayw. = R,=20 116.

FORTHWITH. When a thing is to be done forthwith, it seems that = it must=20 be performed as soon as by reasonable exertion, confined to that object, = it may=20 be done. This is the import of the term; it varies, of course, with = every=20 particular case. 4 Tyr. 837; Styles' Register, 452, 3.

FORTIORI or A FORTIORI. An epithet for any conclusion or = inference,=20 which is much stronger than another. "If it be so, in a feoffment = passing a new=20 right, a fortiori, much more is it for the restitution of an ancient = right." Co.=20 Litt. 253, 260.

FORTUITOUS EVENT. A term in the civil law to denote that which = happens=20 by a cause which cannot be resisted. Louis. Code, art. 2522, No. 7. Or = it is=20 that which neither of the parties has occasioned, or could prevent. Lois = des=20 Bat. Pt. 2, c. 2, =A71. It is also defined to be an unforeseen event = which cannot=20 be prevented. Dict. de Jurisp. Cas fortuit.

2. There is a difference between a fortuitous event or inevitable = accident,=20 and irresistible force. By the former, commonly called the act of God, = is meant=20 any accident produced by physical causes, which are irresistable; such = as a loss=20 by lightning or storms, by the perils of the seas, by inundations and=20 earthquakes, or by sudden death or illness. By the latter is meant such = an=20 interposition of human agency, as is, from its nature and power, = absolutely=20 uncontrollable. Of this nature are losses occasioned by-the inroads of a = hostile=20 army, or by public enemies. Story on Bailm. =A725; Lois des Bat. Pt. 2, = c. 2,=20 =A71.

3. Fortuitous events are fortunate or unfortunate. The accident of = finding a=20 treasure is a fortuitous event of the first class. Lois des Bat. Pt. 2, = c. 2,=20 =A72.

4. Involuntary obligations may arise in consequence of fortuitous = events. For=20 example, when, to save a vessel from shipwreck, it is necessary to throw = goods=20 overboard, the loss must be borne in common; there arises, in this case, = between=20 the owners of the vessel and of the goods remaining on board, an = obligation to=20 bear proportionably the loss which has been sustained. Lois desBit. Pt. = 2, c. 2,=20 =A72. See, in general, Dig. 50, 17, 23; Id. 16, 3, 1; Id. 19, 2, 11; Id. = 44, 7, 1;=20 Id. 18, 6, 10 Id. 13, 6, 18; Id. 26, 7, 50; Act of God; Accident; Perils = of the=20 Sea.

FORUM. This term signifies jurisdiction, a court of justice, a = tribunal.

2. The French divide it into for exterieur, which is the authority = which=20 human justice exercises on persons and property, to a greater or lesser = extent,=20 according to the quality of those to whom it is entrusted; and for = interieur,=20 which is the moral sense of justice which a correct conscience dictates. = Merlin,=20 Repert. mot For.

3. By forum res sitae is meant the tribunal which has authority to = decide=20 respecting something in dispute, located within its jurisdiction; = therefore, if=20 the matter in controversy is land, or other immovable property, the = judgment=20 pronounced in the forum res sitae is held to be of universal obligation, = as to=20 all matters of right and title on which it professes to decide, in = relation to=20 such property. And the same principle applies to all other cases of = proceedings=20 in rem, where the subject is movable property, within the jurisdiction = of the=20 court pronouncing the judgment. Story, Const. Laws, =A7=A7532, 545, 551, = 591, 592;=20 Kaims on Eq. B. 3, c. 8, s. 4 1 Greenl. Ev. =A7541.

FORWARDING MERCHANT, contracts. A person who receives and = forwards=20 goods, taking upon himself the expenses of transportation, for which he = receives=20 a compensation from the owners, but who has no concern in the vessels or = wagons=20 by which they are transported, and no interest in the freight. Such an = one is=20 Dot deemed a common carrier, but a mere warehouseman or agent. 12 Johns. = 232; 7=20 Cowen's R. 497. He is required to use only ordinary diligence in sending = the=20 property by responsible persons. 2 Cowen's R. 593.

FOSSA, Eng. law. A ditch full of water, where formerly women = who had=20 committed a felony were drowned; the grave. Cowel, Int.

FOUNDATION. This word, in the English law, is taken in two = senses,=20 fundatio incipiens, and fundatio perficiens. As to its political = capacity, an=20 act of incorporation is metaphorically called its foundation but as to = its=20 dotation, the first gift of revenues is called the foundation. 10 Co. = 23, a.

FOUNDLING. A new-born child, abandoned by, its parents, who = are=20 unknown. The settlement of, such a child is in the place where = found.

FOURCHER, English law. A French word, which means to fork. = Formerly,=20 when an action was brought against two, who, being jointly concerned, = mere not=20 bound to answer till both appeared, and they agreed not to appear both = in one=20 day; the appearance of one, excused the other's default, who had a day = given him=20 to appear with the other: the defaulter, on the day appointed, appeared; = but the=20 first then made default; in this wanner they forked each other, and = practiced=20 this for delay. Vide 2 Inst. 250; Booth, R. A. 16.

FRACTION. A part of any thing broken. A combination of = numbers, in=20 arithmetic and algebra, representing one or more parts of a unit or = integer.=20 Thus, four-fifths is a fraction, formed by dividing a unit into-five = equal=20 parts, and taking one part four times. In law, the term fraction is = usually=20 applied to the division of a day.

2. In general, there are no fractions in days. Co. Litt. 225 2 Salk. = 625; 2=20 P. A. Browne, 18; II Mass. 204. But in some cases a fraction will be = taken into=20 the account, in order to secure a party his rights; 3 Chit. Pr. 111; 8 = Ves. 80 4=20 Campb. R. 197; 2 B. & Ald. 586; Savig. Dr. Rom. =A7182; Rob. Dig. of = Engl.=20 Statutes in force in Pennsylvania, 431-2 and when it is required by a = special=20 law. Vide article Date.

FRANC, com. law. The name of a French coin. Five franc pieces, = when=20 not of less fineness than ten ounces and sixteen pennyweights in twelve = ounces=20 troy weight of standard silver, and weighing not less than three hundred = and=20 eighty-four grains each, are made a legal tender, at the rate of = ninety-three=20 cents each. Act of June 25, 1834, s. 1, 4 Sharsw. Cont. of Story's L. U. = S.=20 2373.

2. In all computations at the custom house, the franc of France and = of=20 Belgium shall be estimated at eighteen cents six. mills. Act of May 22, = 1846.=20 See Foreign coins.

FRANCHISE. This word has several significations: 1. It is a = right=20 reserved to the people by the constitution; hence we say, the elective=20 franchise, to designate the right of the people to elect their officers. = 2. It=20 is a certain privilege, conferred by grant from the government, and = Vested in=20 individuals.

2. Corporations, or bodies politic, are the most usual franchises = known to=20 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=20 privileges in the hands of a subject. Vide 3 Kent, Com. 366; 2 Bouv. = Inst. n.=20 1686; Cruise,' Dig. tit. 27; 2 Bl. Com. 37; 15 Serg. & Rawle, 130; = Finch,=20 164.

FRANCIGENA. Formerly, in England, every alien was known by = this name,=20 as Franks is the generic name of foreigners in the Turkish = dominions.

FRANK. The privilege of sending and receiving letters, through = the=20 mails, free of postage.

2. This privilege is granted to various officers, not for their own = special=20 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,=20 and delegates from the territories, may receive letters, not exceeding = two=20 ounces in weight, free of postage, during the recess of congress; and = the same=20 privilege is extended to the vice-president of the United States.

4. It is enacted, by 3d section, That all printed or lithographed = circulars=20 and handbills, or advertisements, printed or lithographed, on quarto = post or=20 single cap paper, or paper not larger than single cap, folded, directed, = and=20 unsealed, shall be charged with postage, at the rate of two cents for = each=20 sheet, and no more, whatever be the distance the same may be sent; and = all=20 pamphlets, magazines, periodicals, and every other kind and description = of=20 printed or other matter, (except newspapers,) which shall be unconnected = with=20 any manuscript communication whatever, and which it is or may be lawful = to=20 transmit by the mail of the United States, shall be charged with = postage, at the=20 rate of two and a balf cents for each copy sent, of no greater weight = than one=20 ounce, and one cent additional shall be charged for each additional = ounce of the=20 weight of every such pamphlet, magazine, matter, or thing, which may be=20 transmitted through the mail, whatever be the distance the tame may be=20 transported and any fractional excess, of not less than one-half of an = ounce, in=20 the weight of any such matter or thing, above one or more ounces, shall = be=20 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=20 the house of representatives, and each delegate from a territory of the = United=20 States, the secretary of the senate, and the clerk of the house, of=20 representatives, may, during each session of congress, and for a period = of=20 thirty days before the commencement, and thirty days after the end of = each and=20 every session of congress, Bend and receive through the mail, free of = postage,=20 any letter, newspaper, or packet, not exceeding two ounces in weight; = and all=20 postage charged upon any letters, packages, petitions memorials, or = other=20 matters or things, received during any session of congress, by any = senator,=20 member, or delegate of the house of representatives, touching his = official or=20 legislative duties, by reason of any excess of weight, above two ounces, = on the=20 matter or thing so received, shall be paid out of the contingent fund of = the=20 house of which the person receiving the same may be a member. And they = shall=20 have the right to frank written letters from themselves during the whole = year,=20 as now authorized by law.

6. The 5th section repeals all acts, and parts of acts, granting or=20 conferring upon any person whatsoever the franking privilege.

7. The 23d section enacts, That nothing in this act contained shall = be=20 construed to repeal the laws granting the franking privilege to the = president of=20 the United States when inoffice, and to all ex-presidents, and the = widows of the=20 former presidents, Madison and Harrison.

8. The Act of March 1, 1847, enacts as follows

=A73. That all members of Congress, delegates from territories, the=20 vice-president of the United States, the secretary of the senate, and = the clerk=20 of the house of representatives, shall have the power to send and = receive public=20 documents free of postage during their term of office; and that the said = members=20 and delegates shall have the power to send and receive public documents, = free of=20 Postage, up to the first Monday of December following the expiration of = their=20 term of office.

=A74. That the secretary of the senate and clerk of the house of=20 representatives shall have the power to receive, as well as to send, all = letters=20 and packages, not weighing over two ounces, free of postage, during = their term=20 of office.

=A75. That members of congress shall have the power to receive, as = well as to=20 send, all letters and packages, not weighing over two ounces, free of = postage,=20 up to the first Monday in December following the expiration of their = term of=20 office.

FRANK, FREE. This word is used in composition, as = frank-almoign,=20 frank-marriage, frank-tenement, &c.

FRANK-ALMOIGN, old English law. This is a French law word, = signifying=20 free-alms.

2. Formerly religious corporations, aggregate or sole, held lands of = the=20 donor, to them and their successors forever, in frank almoign. The = service which=20 they, were bound to render for these lands was not certainly defined; = they were,=20 in general, to pray for the souls of the donor; his ancestors, and = successors. 2=20 Bl. Com. 101.

FRANK-MARRIAGE, English law. It takes place, according to = Blackstone,=20 when lands are given by one man to another, together with a wife who is = daughter=20 or kinswoman of the donor, to hold in frank-marriage. By this gift, = though=20 nothing but, the word frank-marriage is expressed, the donees shall have = the=20 tenements to them and the heirs of their two bodies begotten that is, = they are=20 tenants in special tail. It is called frank or free marriage, because = the donees=20 are liable to no service but fealty. This is now obsolete, even in = England. 2=20 Bl. Com. 115.

FRANK-TENEMENT, estates. Same as freehold, (q. v.) or liberum=20 tenementum.

FRATER. A brother. Vide Brother.

FRATRICIDE, criminal law. He who kills his brother or sister. = The=20 crime of such a person is also called fratricide.

FRAUD, TO DEFRAUD, torts. Unlawfully, designedly, and = knowingly, to=20 appropriate the property of another, without a criminal intent.

2. Illustrations. 1. Every appropriation of the right of property of = another=20 is not fraud. It must be unlawful; that is to say, such an appropriation = as is=20 not permitted by law. Property loaned may, during the time of the loan, = be=20 appropriated to the use of the borrower. This is not fraud, because it = is=20 permitted by law. 2. The appropriation must be not only unlawful, but it = must be=20 made with a knowledge that the property belongs to another, and with a = design to=20 deprive him of the same. It is unlawful to take the property of another; = but if=20 it be done with a design of preserving it for the owners, or if it be = taken by=20 mistake, it is not done designedly or knowingly, and, therefore, does = not come=20 within the definition of fraud. 3. Every species of unlawful = appropriation, not=20 made with a criminal intent, enters into this definition, when = designedly made,=20 with a knowledge that the property is another's; therefore, such an=20 appropriation, intended either for the use of another, or for the = benefit of the=20 offender himself, is comprehended by the term. 4. Fraud, however immoral = or=20 illegal, is not in itself a crime or offence, for want of a criminal = intent. It=20 only becomes such in the cases provided by law. Liv. System of Penal = Law,=20 789.

FRAUD, contracts, torts. Any trick or artifice employed by one = person=20 to induce another to fall into an error, or to detain him in it, so that = he may=20 make an agreement contrary to his interest. The fraud may consist = either, first,=20 in the misrepresentation, or, secondly, in the concealment of a material = fact.=20 Fraud, force and vexation, are odious in law. Booth, Real Actions, 250. = Fraud=20 gives no action, however, without damage; 3 T. R. 56; and in matters of = contract=20 it is merely a defence; it cannot in any case constitute a new contract. = 7 Vez.=20 211; 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=20 object be to deceive the public, or third persons, or one party endeavor = thereby=20 to cheat the other. 1 Fonb. Tr. Equity, 3d ed. 66, note; 6th ed. 122, = and notes;=20 Newl. Cont. 352; 1 Bl. R. 465; Dougl. Rep. 450; 3 Burr. Rep. 1909; 3 V. = & B.=20 Rep. 42; 3 Chit. Com. Law, 155, 806, 698; 1 Sch. & Lef. 209; Verpl.=20 Contracts, passim; Domat, Lois Civ. p. 1, 1. 4, t. 6, s. 8, n. 2.

3. The following enumeration of frauds, for which equity will grant = relief,=20 is given by Lord Hardwicke, 2 Ves. 155. 1. Fraud, dolus malus, may be = actual,=20 arising from facts and circumstances of imposition, which is the = plainest case.=20 2. It may be apparent from the intrinsic nature and subject of the = bargain=20 itself; such as no man in his senses, and not under delusion, would make = on the=20 one hand, and such as no honest and fair man would accept on the other, = which=20 are inequitable and unconscientious bargains. 1 Lev. R. 111. 3. Fraud, = which may=20 be presumed from the circumstances and condition of the parties = contracting. 4.=20 Fraud, which may be collected and inferred in the consideration of a = court of=20 equity, from the nature and circumstances of the transaction, as being = an=20 imposition and deceit on other persons, not parties to the fraudulent = agreement.=20 5. Fraud, in what are called catching bargains, (q. v.) with heirs,=20 reversioners) or expectants on the life of the parents. This last seems = to fall,=20 naturally, under one or more of the preceding divisions.

4. Frauds may be also divided into actual or positive and = constructive=20 frauds.

5. An actual or positive fraud is the intentional and successful = employment=20 of any cunning, deception, or artifice, used to circumvent, cheat, or = deceive=20 another. 1 Story, Eq. Jur. =A7186; Dig. 4, 3, 1, 2; Id. 2, 14, 7, 9.

6. By constructive fraud is meant such a contract or act, which, = though not=20 originating in any actual evil design or contrivance to perpetrate a = positive=20 fraud or injury upon other persons, yet, by its tendency to deceive or = mislead.=20 them, or to violate private or public confidence, or to impair or injure = the=20 public interests, is deemed equally reprehensible with positive fraud, = and,=20 therefore, is prohibited by law, as within the same reason and mischief = as=20 contracts and acts done malo animo. Constructive frauds are such as are = either=20 against public policy, in violation of some special confidence or trust, = or=20 operate substantially as a fraud upon private right's, interests, = duties, or=20 intentions of third persons; or unconscientiously compromit, or = injuriously=20 affect, the private interests, rights or duties of the parties = themselves. 1=20 Story, Eq. ch. 7, =A7258 to 440.

7. The civilians divide frauds into positive, which consists in doing = one's=20 self, or causing another to do, such things as induce a belief of the = truth of=20 what does not exist or negative, which consists in doing or = dis-simulating=20 certain things, in order to induce the opposite party. into error, or to = retain=20 him there. The intention to deceive, which is the characteristic of = fraud, is=20 here present. Fraud is also divided into that which has induced the = contract,=20 dolus dans causum contractui, and incidental or accidental fraud. The = former is=20 that which has been the cause or determining motive of the contract, = that=20 without which the party defrauded would not have contracted, when the = artifices=20 practised by one of the parties have been such that it is evident, = without them,=20 the other would not have contracted. Incidental or accidental fraud is = that by=20 which a person, otherwise determined to contract, is deceived on some=20 accessories or incidents of the contract; for example, as to the quality = of the=20 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=20 simply subjects the party to damages. It is otherwise where the fraud = has been=20 the determining cause of the contract, qui causam dedit contractui; in = that=20 case. the contract is void. Toull. Dr. Civ. Fr. Liv. 3, t. 3, c. 2, n. = =A75, n.=20 86, et seq. See also 1 Malleville, Analyse de la, Discusssion de Code = Civil, pp.=20 15, 16; Bouv. Inst. Index, h. t. Vide Catching bargain; Lesion; = Voluntary=20 Conveyance.

FRAUDS, STATUTE OF. The name commonly given to the statate 29 = Car.=20 II., c. 3, entitled " An act for prevention of frauds and perjuries." = This=20 statute has been re-enacted in most. of the states of the Union, = generally with=20 omissions, amendments, or alterations. When the words of the statute = have been=20 used, the construction put upon them has also been adopted. Most of the = acts of=20 the different states will be found in Anthon's Appendix to Shep. = Touchst. See=20 also the Appendix to the second edition of Roberts on Frauds.

FRAUDULENT CONVEYANCE. A conveyance of property without any=20 consideration of value, for the purpose of delaying or bindering = creditors.=20 These are declared void by the statutes 13 Eliz. c. 6, and 27 Eliz. c. = 4, the=20 principles of which have been adopted in perhaps all the states of the = American=20 Union. See Voluntary Conveyance.

2. But although such conveyance is void as regards purchasers and = creditors,=20 it is valid as between the parties. 6 Watts, 429, 453; 5 Binn. 109; 1 = Yeates,=20 291; 3 W. & S. 255; 4 Iredell, 102; 9 Pick. 93; 20 Pick. 247; 3 = Mass. 573,=20 580; 4 Mass. 354; 1 Hamm. 469; 2 South. 738; 2 Hill, S. C. Rep. 488; 7 = John.=20 161; 1 Bl. 262.

FREE. Not bound to servitude; at liberty to act as one = pleases. This=20 word is put in opposition to slave.

2. Representatives and direct taxes shall be apportioned among the = several=20 states, which may be included within this Union, according to their = respective=20 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=20 Indians not taxed, three-fifths of all other persons. Const. U. S. art. = 1, s. 2.=20 3. It is also put in contradistinction to being bound as an apprentice; = as, an=20 apprentice becomes free on attaining the age of twenty-one years.

4. The Declaration of Independence asserts that all men are born = free, and in=20 at sense, the term includes all mankind.

FREE COURSE, Mar. law. Having the wind from a favorable = quarter.

2. To prevent collision of vessels, it is the duty of the vessel = having a=20 free course to give way to a vessel beating up. to windward and tacking. = 3 Hagg.=20 Adm. R. 215, 326. And at sea, it is the duty of such vessel, in meeting = another,=20 to go to leeward. 3 Car. & P. 528. See 9 Car. & P. W. Rob. 225; = 2=20 Dodson, 87.

FREE ships. By this is understood neutral vessels. Free ships = are=20 sometimes considered as making free goods.

FREE WARREN, Eng. law. A franchise erected for the = preservation and=20 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=20 had been released from a State of servitude. Vide Liberti libertini.

FREEDOM, Liberty; the right to do what is not forbidden by = law.=20 Freedom does not preclude the idea of subjection to law; indeed, it = presupposes=20 the existence of some legislative provision, the observance of which = insures=20 freedom to us, by securing the like observance from others. 2 Har. Cond. = L. R.=20 208.

FREEHOLD, estates. An estate of freehold is an estate in lands = or=20 other real property, held by a free tenure, for the life of the tenant = or that=20 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=20 estate as could only be created by livery of seisin, a ceremony similar = to the=20 investiture of the feudal law. But since the introduction of certain = modern=20 conveyances, by which an estate of freehold may be created without = livery of=20 seisin, this description is not sufficient.

2. There are two qualities essentially requisite to the existence of = a=20 freehold estate. 1. Iramobility; that is, the subject-matter must either = be=20 land, or some interest issuing out of or annexed to land. 2. A = sufficient legal=20 indeterminate duration; for if the utmost period of time to which an = estate can=20 last, is fixed and determined, it is not an estate of freehold. For = example, if=20 lands are conveyed to a man and his heirs, or for his life, or for the = life of=20 another, or until he shall be married, or go to Europe, he has an estate = of=20 freehold; but if such lands are limited to a man for one hundred or five = hundred=20 years, if he shall so long live, he has not an estate of freehold. = Cruise on=20 Real Property t. 1, s. 13, 14 and 15 Litt. 59; 1 Inst. 42, a; 5 Mass. R. = 419; 4=20 Kent, Com. 23; 2 Bouv. Inst. 1690, et seq. Freehold estates are of = inheritance=20 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=20 pleases, not forbidden by law. One in the possession of the civil rights = enjoyed=20 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=20 ship, entirely or in part, for the carriage of goods from one port to = another;=20 l3 East, 300, note; but in, its more extensive sense it is applied to = all=20 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=20 Johns. R. 346; 3 Pardess, n. 705.

2. It will be proper to consider 1. How the amount of freight is to = be fixed.=20 2. What acts must be done in order to be entitled to freight. 3. Of the = lien of=20 the master or owner.

3. - l. The amount of freight is usually fixed by the agreement of = the=20 parties, and if there be no agreement, the amount is to be ascertained = by the=20 usage of the trade, and the circumstances and reason of the case. 3. = Kent, Com.=20 173. Pothier is of opinion that when the parties agree as to the = conveyance of=20 the goods, without fixing a price, the master is entitled to freight at = the=20 price usually paid for merchandise of a like quality at the time and = place of=20 shipment, and if the prices vary he is to pay the mean price. = Charte-part, n. 8.=20 But there is a case which authorizes the master to require the highest = price,=20 namelly, when goods are put on board without his knowledge. Id. n. 9. = When the=20 merchant hires the whole ship for the entire voyage, he must pay the = freight=20 though he does not fully lade the ship; he is of course only bound to = pay in=20 proportion to the goods he puts on board, when he does not agree to = provide a=20 full cargo. If the merchant agrees to furnish a return cargo, and he = furnishes=20 none, and lets the ship return in ballast, he must make compensation to = the=20 amount of the freight; this is called dead freight, (q. v.) in = contradistinction=20 to freight due for the actual carriage of goods. Roccus, note 72-75; 1 = Pet. Adm.=20 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=20 destination, in fulfilment of the agreement of the charter party, is = required,=20 to entitle the master or owner of the vessel to freight. But to this = rule there=20 are several exceptions .

5.- 1. When a cargo consists of live stock, and some of the animals = die in=20 the course of the voyage, without any fault or negligence of the master = or crew,=20 and there is no express agreement respecting the payment of freight, it = is in=20 general to be paid for all that were put on board; but when the contract = is to=20 pay for the, transportation of them, then no freight is due for those = which die=20 on the voyage. Molloy, b. 2, c. 4, s. 8 Dig. 14, 2, 10; Abb. Ship. = 272.

6.-2. An interruption of the regular course of the voyage, happening = without=20 the fault of the owner, does not deprive him of his freight if the ship=20 afterwards proceed with the cargo to the place of destination, as in the = case of=20 capture and recapture. 3 Rob. Adm. R. 101.

7. - 3. When the ship is foreed into a port short of her destination, = and=20 cannot finish the voyage, if the owner of the goods will not allow the = master a=20 reasonable time to repair, or to proceed in another ship, the master = will be=20 entitled to the whole freight; and, if after giving his consent the = master=20 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=20 the general rule of marine law, that freight is to be paid according to = the=20 proportion of the voyage performed, and the law will imply such = contract. The=20 acceptance must be voluntary, and not, one forced upon the owner by any = illegal=20 or violent proceedings, as, from it, the law implies a contract that = freight pro=20 rata parte itineris shall be accepted and paid. 2 Burr. 883; 7 T. R. = 381; Abb.=20 Shipp. part 3, c. 7, s. 13; 3 Binn. 445; 5 Binn. 525; 2 Serg. & = Rawle, 229;=20 1 W. C. C. R. 530; 2 Johns. R. 323; 7 Cranch, R. 358; 6 Cowen, R. 504; = Marsh.=20 Ins. 281, 691; 3 Kent, Com. 182; Com. Dig. Merchant, E 3 a note, pl. 43, = and the=20 cases there cited.

9. - 5. When the ship has performed the whole voyage, and has brought = only a=20 part-of her cargo to the place of destination; in this case there is a=20 difference between a general ship, and a ship chartered for a specific = sum for=20 the whole voyage. In the former case, the freight is to be paid for the = goods=20 which may be, delivered at their place of destination; in the latter it = has been=20 questioned whether the freight could be apportioned, and it seems, that = in such=20 case a partial performance is not sufficient, and that a special payment = cannot=20 be claimed except in special cases. 1 Johns. R. 24; 1 Bulstr. 167; 7 T. = R. 381;=20 2 Campb. N. P. R. 466. These are some of the excep tions to the general = rule,=20 called for by principles of equity, that a partial performance is not=20 sufficient, and that a partial payment or rateable freight cannot be=20 claimed.

10. - 6. In general, the master has a lien on the goods, and need not = part=20 with them until the freight is paid; and when the regulations of the = revenue=20 require them to be landed in a public warehouse, the master may enter = them in=20 his own name and preserve the lien. His right to retain the goods may, = however,=20 be waived either by an express agreement at the time of making the = original=20 contract, or by his subsequent agreement or consent. Vide 18 Johns. R. = 157; 4=20 Cowen, R. 470; 1 Paine's R. 358; 5 Binn. R. 392. Vide, generally, 13 = Vin. Ab.=20 501 Com. Dig. Merchant, E 3, a; Bac. Ab. Merchant, D; Marsh. Ins. 91; 10 = East,=20 394 13 East, 300, n.; 3 Kent, Com. 173; 2 Bro. Civ. & Adm. L. 190; = Merl.=20 Rep. h. t. Poth. Charte-Partie, h. t.; Boulay-Paty, h. t.; Pardess. = Index,=20 Affretement.

FREIGHTER, contracts. He to whom a ship or vessel has been = hired. 3=20 Kent, Com. 173; 3 Pardess. n. 704.

2. The freighter is entitled to the enjoyment of the vessel according = to=20 contract, and the vessel hired is the only one that he is bound to take = there=20 can, therefore, be no substitution without his consent. When the vessel = has been=20 chartered only in part, the freighter is only entitled to the space he = has=20 contracted for; and in case of his occupying more room or putting on = board a=20 greater weight, he must pay freight on the principles mentioned under = the=20 article of freight.

3. The freighter is required to use the vessel agreeably to the = provisions of=20 the charter party, or, in the absence of any such provisions, according = to the=20 usages of trade he cannot load the vessel with merchandise which would = render it=20 liable to condemnation for violating the laws of a foreign state. 3 = John. R.=20 105. The freighter is also required to return the vessel as soon as the = time for=20 which he chartered her has expired, and to pay the freight.

FRESH PURSUIT. The act of pursuing cattle which have escaped, = or are=20 being driven away from land, when they were liable to be distrained, = into other=20 places. 3 Bouv. Inst. n. 2470.

FRESH SUIT, Eng. law. An earnest pursuit of the offender when = a=20 robbery has been committed, Without ceasing, until he has been arrested = or=20 discovered. Towl. Law Dict. h. t.

FRIBUSCULUM, civil law. A slight dissension between hushand = and wife,=20 which produced a momentary separation, without any intention to dissolve = the=20 marriage, in which it differed from a divorce. Poth. Pand. lib. 50, s. = 106.=20 Vicat, Vocab. This amounted to a separation, (q. v.) in our law.

FRIENDLESS MAN. This name was sometimes anciently given to an=20 outlaw.

FRIGIDITY, med juris. The same as impotence. (q. v.)

FRUCTUS INDUSTRIALES. The fruits or produce of the earth which = are=20 obtained by the industry of man, as growing corn.

FRUIT, property. The produce of tree or plant containing the = seed or=20 used for food. Fruit is considered real estate, before it is separated = from the=20 plant or tree on which it grows; after its separation it acquires the = character=20 of personally, and may be the subject of larceny; it then has all the = qualities=20 of personal property,

2. The term fruit, among the civilians, signifies not only the = production of=20 trees and other plants, but all sorts of revenue of whatever kind they = may be.=20 Fruits may be distinguished into two kinds; the first called natural = fruits, are=20 those which the earth produces without culture, as bay, the production = of trees,=20 minerals, and the like or with culture, as grain and the like. Secondly, = the=20 other kind of fruits, known by the name of civil fruits, are the revenue = which=20 is not produced by the earth, but by the industry of man, or from = animals, from=20 some estate, or by virtue of some rule of law. Thus, the rent of a = house, a=20 right of fishing, the freight of a ship, the toll of a mill, are called, = by a=20 metaphorical expression, fruits. Domat, Lois Civ. liv. 3, tit. 5, s. 3, = n. 3.=20 See Poth. De la Communaute, n. 45.

FUERO JURGO. A Spanish code of laws, said to, be the most = ancient in=20 Europe. Barr. on the Stat. 8, note.

FUGAM FECIT, Eng. law. He fled. This phrase, in an = inquisition,=20 signifies that a person fled for treason or felony. The effect of this = is to=20 make the party forfeit his goods absolutely, and the profits of his = lands until=20 he has been pardoned or acquitted.

FUGITIVE. A runaway, one who is at liberty, and endeavors, by, = going=20 away, to escape.

FUGITIVE SLAVE. One who has escaped from the service of his=20 master.

2. The Constitution of the United States, art. 4, s. 2, 3, directs = that "no=20 person held to service or labor in one state, under the laws thereof, = escaping=20 into another, shall, in consequence of any laws or regulation therein, = be=20 discharged from such service or labor, but shall be delivered up, on = claim of=20 the party to whom such service or labor may be clue." In practice = summary=20 ministerial proceedings are adopted, and not the ordinary course of = judicial=20 investigations, to ascertain whether the claim of ownership be = established=20 beyond all legal controversy. Vide, generally, 3 Story, Com. on Const.=20 =A71804-1806; Serg. on Const. ch. 31, p. 387; 9 John. R. 62; 5 Serg. = & Rawle,=20 62; 2 Pick. R. 11; 2 Serg. & Rawle, 306; 3 Id. 4; 1 Wash. C. C. R. = 500; 14=20 Wend. R. 507, 539; 18 Wend. R. 678; 22 Amer. Jur. 344.

FUGITIVE, FROM JUSTICE, crim. law. One who, having committed a = crime=20 within a jurisdiction, goes into another in order to evade the law, and = avoid=20 its punishment.

2. By the Constitution of the United States, art. 4, s. 2, it is = provided,=20 that "a person charged in any state with treason, felony or other crime, = who=20 shall flee from justice, and be found in another state, shall, on demand = of the=20 executive authority of the same state from which he fled, be delivered = up, to be=20 removed to the state having jurisdiction of the crime." The act of thus=20 delivering up a prisoner, is, by the law of nations, called extradition. = (q.=20 v.)

3. Different opinions are entertained in relation to the duty of a = nation, by=20 the law of nations, independently of any treaty stipulations, to = surrender=20 fugitives from justice when' properly demanded. Vide 1 Kent, Com. 36; 4 = John. C.=20 R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle, 125; 3 Story, Com. = Const.=20 United States, =A71801; 9 Wend. R. 218; 2 John. R. 479; 6 Binn. R. 617; = 4 Johns.=20 Ch. R. 113; 22 Am. Jur. 351: 24 Am. Jur. 226; 14 Pet. R. 540; 2 Caines, = R.=20 213.

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=20 another governor has been made; secondly, that the requisition was = founded upon=20 an affidavit that the crime was committed by the person charged, or such = other=20 evidence of that fact as may be sufficient; thirdly, that the person = against=20 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,=20 whether the person be a man or woman. See Age.

FULL COURT. When all the judges are present and properly = organized, it=20 -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,=20 his attorney, comes, and defends the wrong or injury, (or force and = injury,)=20 when and where it shall behoove him, and the damages and whatsoever else = he=20 ought to defend." Bac. Ab. Pleas, &c. D; Co. Litt. 127 b; Lawes on = Pl. 89; 2=20 Chit. Pl. 409; 2 Saund. 209 c; Gould on Pl. c. 2, =A76. See Defence; Et = Cetera;=20 Half Defence.

FUNCTION, office. Properly, the occupation of an office; by = the=20 performance of its duties, the officer is said to fill his function. = Dig. lib.=20 32, 1. 65, =A71.

FUNCTIONARY. One who is in office or in some public = employment.

FUNCTUS OFFICIO. This term is applied to something which once = had life=20 and power, but which now has no virtue whatsoever; as, for example, a = warrant of=20 attorney on which a judgment has been entered, is, functus officio, and = a second=20 judgment, cannot be entered by virtue of its authority. When arbitrators = cannot=20 agree and choose an umpire, they are said to be functi officio. Watts. = on Arb.=20 94. If a bill of exchange be sent to the drawee, and he passes it to the = credit=20 of the holder, it is functus officio, and cannot be further negotiated. = 5 Pick.,=20 85. When an agent has completed the business with which he was = entrusted,.his=20 agency is functus officio. 2 Bouv. Inst. n. 1382.

FUNDAMENTAL. This word is applied to those laws which are the=20 foundation of society. Those laws by which the exercise of power is = restrained=20 and regulated, are fundamental. The Constitution of the United States is = the=20 fundamental law of the land. See Wolff, Inst. Nat. =A7984.

FUNDED DEBT. That part of the national debt for which certain = funds=20 are appropriated towards the payment of the interest.

FUNDING SYSTEM, Eng. law. The name given to a plan which = provides that=20 on the creation of a public loan, funds shall immediately be formed, and = secured=20 by law, for the payment of the interest, until the state shall redeem = the whole,=20 and also for the gradual redemption of the capital itself. This gradual=20 redemption of the capital is called the sinking of the debt, and the = fund so=20 appropriated is called the sinking fund.

FUNDS. Cash on hands; as, A B is in funds to pay my bill on = him;=20 stocks, as, A B has $1000 in the funds. By public funds is understood, = the=20 taxes, customs, &c . appropriated by the, government for the = discharge of=20 its obligations.

FUNDUS, civil raw. Any portion of land whatever, without = considering=20 the use or employ to which it is applied.

FUNERAL EXPENSES. Money expended in procuring the interment of = a=20 corpse.

2. The person who orders the funeral is responsible personally for = the=20 expenses, and if the estate of the deceased should be insolvent, he must = lose=20 the amount. But if there are assets sufficient to pay these expenses, = the=20 executor or administrator is bound, upon an implied assumpsit, to pay = them. 1=20 Campb. N. P. R. 298; Holt, 309 Com. on Contr. 529; 1 Hawke's R. 394; 13 = Vin. Ab.=20 563.

3. Frequent questions arise as to the amount which is to be allowed = to the=20 executor or administrator for such expenses. It is exceedingly difficult = to=20 gather from the numerous cases which have been, decided upon this = subject, any=20 certain rule. Courts of equity have taken into consideration the = circumstances=20 of each case, and when the executors have acted with common prudence and = in=20 obedience to the will, their expenses have been allowed. In a case where = the=20 testator directed that his remains should be buried at a church thirty = miles=20 distant from the place of his death, the sum of sixty pounds sterling = was=20 allowed. 3 Atk. 119. In another case, under peculiar circumstances, six = hundred=20 pounds were allowed. Preced. in Ch. 29. In a case in Pennsylvania, where = the=20 intestate left a considerable estate, and no children, the sum of two = hundred=20 and fifty-eight dollars and seventy-five cents was allowed, the greater = part of=20 which had been expended in erecting a tombstone over a vault in which = the body=20 was interred. 14 Serg. & Rawle, 64.

4. It seems doubtful whether the hushand can call upon the separate = personal=20 estate of his wife, to pay her funeral expenses. 6 Madd. R. 90. Vide 2 = Bl. Com.=20 508; Godolph. p. 2 3 Atk. 249 Off. Ex. 174; Bac. Ab. Executors, &c., = L 4;=20 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=20 number, weight, or measure; such as corn, wine, or money.. Hein. Elem. = Pand.=20 Lib. 12, t. 1, =A72;.1 Bell's Com. 225, n. 2; Ersk. Pr. Scot. Law, B. 3, = t. 1, =A77;=20 Poth. Pret de Consomption, No. 25; Dict. de Jurisprudence, mot Fongible = Story,=20 Bailm, =A7284; 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=20 will: Furiosus nullum negotium genere potest, quia non intelligit quod = agit.=20 Inst. 3, 20, 8. Indeed, he is considered so incapable of exercising a = will, that=20 the law treats him as if he were absent: Furiosi nulla voluntas est. = Furiosus=20 absentia loco est. Dig. lib. 1, tit. ult. 1. 40, 1. 124, =A71. See = Insane; Non=20 compos mentis.

FURLINGUS. A furlong, or a furrow oneeighth part of a mile = long. Co.=20 Litt. 5. b.

FURLONG. A measure of length, being forty poles, or one-eighth = of a=20 mile. Vide Measures.

FURLOUGH. A permission given in the army and-navy to an = officer or=20 private to absent himself for a limited time.

FURNITURE. Personal chattels in the use of a family. By the = term=20 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=20 house; as, plate, linen, china, both useful and ornamental, and = pictures. Amb.=20 610; 1 John. Ch. R. 329, 388; 1 Sim. & Stu. 189; S. C. 3 Russ. Ch. = Cas. 301;=20 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=20 covenantor has granted an estate, and it is supposed some further = conveyance may=20 be required. He then enters into a covenant for further assurance, that = is, to=20 make any other conveyance which may be lawfully required.

FURTHER HEARING, crim. law, practice. Hearing at another = time.

2. Prisoners are frequently committed for further hearing, either = when there=20 is not sufficient evidence for a final commitment, or because the = magistrate has=20 not time, at the moment, to hear the whole of the evidence. The = magistrate is=20 required by law, and by every principle of humanity, to hear the = prisoner as=20 soon as possible after a commitment for further hearing; and if he = neglect to do=20 so within a reasonable time, he becomes a trespasser. 10 Barn. & = Cresw. 28;=20 S. C. 5 Man. & Ry. 53. Fifteen days were held an unreasonable time, = unless=20 under special circumstances. 4 Carr. & P. 134; 4 Day, 98; 6 S. & = R.=20 427.

3. In Massachusetts, magistrates may by statute, adjourn the case for = ten=20 days. Rev. Laws, 1 3 5, s. 9.

4. It is the practice in England to commit for three days, and then = from=20 three days to three days. 1 Chitty's Criminal Law, 74.

FUTURE DEBT. In Scotland this term is applied to a debt which = though=20 created is not due, but is to become so at a future day. 1 Bell's Com. = 315, 5th=20 ed.

FUTURE STATE, evidence. A state of existence after this = life.

2. A witness who does not believe in any future state of existence = was=20 formerly inadmissible as a witness. The true test of a witnesses = competency, on=20 the ground of his religious principles, is, whether he believes in the = existence=20 of a God, who will punish him if he swears falsely; and within this rule = are=20 comprehended those who believe future punishments will not be eternal. 2 = Watts'=20 & Serg. 263. See the authorities cited under the article Infidel. = But it=20 seems now to be settled, that when the witness believes in a God who = will reward=20 or punish him, even in this world, he is competent. Willes, 550. Vide=20 Atheist.

Index

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