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

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

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

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

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

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

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

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

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

    FACTOR,  contracts.  An  agent  employed  to  sell  goods  or
merchandise  consigned  or  delivered  to  him  by,  or  for  his

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principal,  for  a  compensation  commonly  called  factorage  or
commission. Paley on Ag. 13;  1 Liverin. on Ag. 68;  Story on Ag.
§33;   Com. Dig.  Merchant, B;   Mal.  Lex Merc. 81;  Beawes, Lex
Merc. 44;   3 Chit. Com. Law, 193;  2 Kent, Com. 622, note d, 3d.
ed.;   1 Bell's  Com. 385,  §408, 409 2 B. & Ald. 143. He is also
called a commission merchaut, or consignee.

   2. When  he resides  in the  same state  or country  with  his
principal, he is called a home factor;  and a foreign factor when
he resides  in a  different state  or country.  3 Chit. Com. Law,
193;  1 T. R. 112;  4 M. & S. 576;  1 Bell's Com. 289, §313.

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

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

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

  6 . By the usages of trade, or intendment of law, when domestic
factors are  employed in  the ordinary  business  of  buying  and
selling goods,  it is  presumed that a reciprocal credit between,
the principal  and the  agent and  third persons  has been given.
When a  purchase has  been made  by such a factor, he, as well as
his principal,  is deemed  liable for the debt;  and in case of a
sale, the  buyer is  responsible both to the factor and principal
for the  purchase money;  but this presumption may be rebutted by
proof of  exclusive credit.  Story, Ag.  §§267, 291, 293;  Paley,
Ag. 243, 371;  9 B. & C. 78;  15 East, R. 62.

   7. Foreign factors, or those acting for principals residing in
a foreign  country, are held personally liable upon all contracts
made  by   them  for   their  employers,  whether  they  describe
themselves in  the contract  as agents or not. In such cases, the
presumption is,  that the  credit is  given  exclusively  to  the
factor. But  this presumption  may be  rebutted by  a proof  of a
contrary agreement. Story, Ag. §268;  Paley, Ag. 248, 373;  Bull.
N. P.  130;  Smith, Merc. Law, 66;  2 Liverm. Ag. 249;  1 B. & P.
398;  15 East, R. 62;  9 B. & C. 78.

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   8.  A  factor  is  liable  to  duties,  which  will  be  first
considered;   and, afterwards,  a statement of his rights will be

   9. - 1. His duties. He is required to use reasonable skill and
ordinary diligence  in his  vocation;  in general, he has a right
to sell the goods, but he cannot pawn them. The latter, branch of
this rule,  however, is altered by statute in some of the states.
See Act  of Penna.  April 14,  1834, §3,  4, 6, postea, 20. He is
bound to  obey his instructions, but when he has none, he may and
ought to  act according  to the  general usages of trade sell for
cash, when  that is  usual, or give credit on sales, when that is
customary. He is bound to render a just account to his principal,
and to pay him the moneys he may receive for him.

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

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

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

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

   14. -  3. When  the price  has been  paid in money, coin, bank
notes, &c.,  it remains  the property  of the  principal, if kept
distinct as  his. 5  T. la. 277;  2 Burr. 1369 5 Ves. Jr. 169;  2
Mont. B. L. 233, notes.

   15. -  4. When  a bill  received for goods, or placed with the
factor, has  been discounted, or when money coming into his hands
has been  paid away,  the endorsee  of the  bill, or  the  person
receiving the  money, will be free from all claim at the instance
of the principal. Vide 1 B. & P. 539, 648.

   16. -  5. When  the factor  sinks the  name of  the  principal
entirely;  as, where he is employed to sell goods, and receives a

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del credere  commission, for  which he  engages to  guarantee the
payment to  the principal,  it is not the practice to communicate
the names  of the  purchasers to  the principal, except where the
factor fails.  Under these  circumstances, the  following  points
have the principal is the creditor of the buyer, and has a direct
action against  him for  the price.  Cook's B.  L. 400;  and vide
Bull. N.  P. 42  2 Stra. 1 1 82. But persons contracting with the
factor in  his own  name, and  bona fide, are entitled to set off
the factor's  debt to  them. 7  T. R. 360. 2. Where the factor is
entrusted with  the money  or property  of his  principal to  buy
stock, bills,  and the  like, and misapplies it, the produce will
be the principal's, if clearly distinguishable. 8 M. & S. 562.

   17. - 6. When the factor purchases goods for the behalf of his
principal, but  on his  own  general,  current  account,  without
mention of  the principal,  the goods vest in the factor, and the
principal has only an obligation against the factor's estate. But
when the  factor, after  purchasing  the  goods,  writes  to  his
principal that  he  has  bought  such  a  quantity  of  goods  in
consequence of  his  order,  and  that  they  are  lying  in  his
warehouse, or  elsewhere, the property would seem to be vested in
the principal.

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

  19. A factor has no right to barter the goods of his principal,
nor to  pledge them for the purpose of raising money for himself,
or to  secure a debt he may owe. See ante, 9-1. But he may pledge
them for  advances made  to his  principal, or for the purpose of
raising money  for him,  or in  order to reimburse himself to the
amount of  his own  lien. 2  Kent, Com.  3d. ed:,  625 to 628;  4
John. R., 103;  Story on Bailm. §325, 326, 327. Another exception
to the  general rule that a factor cannot pledge the goods of his
principal, is,  that he may raise money b pledging the goods, for
the payment of 'duties, or any other charge or purpose allowed or
justified by  the usages  of trade. 2 Gall. 13;  6 Serg. & Rawle,
386;  Paley on Ag. 217;  3 Esp. R. 182.

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

   21. -  §1. Whenever any person entrusted with merchandise, and
having authority  to sell  or consign  the same,  shall ship,  or
otherwise transmit  tile same  to any  other person,  such  other
person shall have a lien thereon.

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   22. -  I. For any money advanced, or negotiable security given
by him on the faith of such consignment, to or for the use of the
person in whose name such merchandise was shipped or transmitted.

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

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

   25. -  §3. Whenever any consignee or factor, having possession
of merchandise,  with authority  to  sell  the  same,  or  having
possession of  any bill  of lading, permit, certificate, receipt,
or  order,  for  the  delivery  of  merchandise,  with  the  like
authority, shall  deposit or pledge such merchandise, or any part
thereof, with  any other  person, as  a security  for  any  money
advanced, or  negotiable instrument  given by  him on  the  faith
thereof;   such other  person shall  acquire, by  virtue of  such
contract, the  same interest  in, and  authority over,  the  said
merchandise, as, he would have acquired thereby if such consignee
or factor  had been the actual owner thereof. Provided, That such
person shall  not have  notice by  such  document  or  otherwise,
before the  time of  such advance  or receipt, that the holder of
such merchandise  or document  is not  the actual  owner of  such

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

   27. -  §5. Nothing in this act contained shall be construed or

   I. To affect any lien which a. consignee or factor may possess
at law,  for the  expenses and charges attending the shipment, or
transmission and  care of  merchandise  consigned,  or  otherwise
intrusted to him.

   28. -  II. Nor to prevent the actual owner of merchandise from
recovering the  same from  such consignee  or factor,  before the

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same shall  have been  deposited or pledged as aforesaid, or from
the assignees  or trustees  of such  consignee or  factor, in the
event of his insolvency.

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

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

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

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

  FACTORY, Scotch law. A contract which partakes of a mandate and
locatio ad  operandum, and  which is  in the English and American
law books  discussed under  the title  of Principal  and Agent. 1
Bell's Com. 259.

  FACTUM. A deed. a man's own act and deed.

   2. When  a man denies by his plea that he made a deed on which
he is sued, be pleads non estfactum. (q. v.) Vide Deed;  Fait.

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

   FACULTY, canon law. A license;  an authority. For example, the
ordinary having  the disposal  of all  seats in  the  nave  of  a
church, may  grant this  power, which,  when it  is delegated, is
called a faculty, to another.

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   2. Faculties  are of two kinds;  first, when the grant is to a
man and  his heirs  in gross;  second, when it is to a person and
his heirs,  as appurtenant  to a  house which  he  holds  in  the
parish. 1 T. R. 429, 432;  12 Co. R. 106.

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

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

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

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

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

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

   FAINT PLEADER.  A false,  fraudulent, or  collusory manner  of
pleading, to the deception of a third person. 3 E. I., c. 19.

  FAIR. A privileged market.

  2. In England, fairs are granted by the king's patent.

   3. In  the United  States, fairs  are almost unknown. They are
recognized in  Alabama;   Aik. Dig.  409, note;    and  in  North
Carolina, where  they are  regulated by statute. 1 N. C. Rev. St.
282. See Domat, Dr. Public, liv. 1, t. 7, s. 3, n. 1.

   FAIR-PLAY MEN.  About the  year 1769,  there was  a  tract  of
country in  Pennsylvania, situate between Lycoming creek and Pine
creek, in  which  the  proprietaries  prohibited  the  making  of
surveys, as  it was doubtful whether it had or had not been ceded
by  the   Indians.  Although   settlements  were  forbidden,  yet

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adventurers settled  themselves there;  being without the pale of
ordinary  authorities,   the  inhabitants   annually  elected   a
tribunal, in  rotation, of  three  of  their  number,  whom  they
denominated fair-play  men,  who  had  authority  to  decide  all
disputes as  to  boundaries.  Their  decisions  were  final,  and
enforeed by  the whole  community en  masse. Their  decisions are
said  to  have  been  just  and  equitable.  2  Smith's  Laws  of
Pennsylvania 195;  Serg. Land Laws, 77. "

   FAlR PLEADER. This is the name of a writ given, by the statute
of Marlebridge, 52 H. III., c. ii. Vide Beau Pleader.

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

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

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

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

   3. The  same rule,  somewhat modified,  has  been  adopted  in
Louisiana;   "donations inter  vivos or  mortis causal"  says the
Civil Code,  art. 1480, "cannot exceed two-thirds of the property
of, the disposer, if he leaves at his decease a legitimate child;
one-half, if he leaves two children;  and one-third, if he leaves
three, or a greater number."

   4. By  the common  law, the  power of  the father  to give his
property is  unlimited.  He  may  bequeath  it  to  his  children
equally, to,  one in  preference to another, or to a stranger, in
exclusion of  the whole  of them.  Over his real estate, his wife
has a  right of  dower, or a similar right given to her by act of
assembly, in, perhaps, all the states.

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

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

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

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

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

   2. This  subject may be considered under the following heads:.
1. The  nature. of  the false pretence. 2. What must be obtained.
3. The intent.

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

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

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

    FALSE  RETURN.  A  return  made  by  the  sheriff,  or  other
ministerial officer, to a writ in which is stated a fact contrary
to the  truth, and  injurious to  one of  the parties or some one
having an interest in it.

   2. In this case the officer is liable for damages to the party
injured. .2 Esp. Cas. 475. See Falso retorno brevium.

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

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

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

   3. A slander must be false to entitle the plaintiff to recover
damages. But  whether a  libel be  true or  false the  writer  or
publisher may  be indicted for it. Bul N. P. 9;  Selw. N. P. 1047
, note 6;  5 Co. 125;  Hawk. B. 1, c. 73, s. 6. Vide Dig. 48, 10,
31;  Id. 22, 6, 2;  Code, 9, 22, 20.

  4. It is a general rule, that if a witness testifies falsely as
to any  one material  fact, the  whole of  his testimony  must be
rejected but  still the  jury  may  consider  whether  the  wrong
statement be  of such  character, as to entitle the witness to be
believed in other respects. 5 Shepl. R. 267. See Lie.

   TO FALSIFY, crim. law. To prove a thing to be false;  as, " to
falsify a  record." Tech.  Dict.;   Co. Litt.  104 b. To alter or
make false  a record.  This is  punishable at  common  law.  Vide

   2. By  the Act of Congress of April 30, 1790, s. 15, 1 Story's
L. U.  S. 86, it is enacted, that if any person shall feloniously
steal, take away, alter, falsify, or otherwise avoid, any record,
writ, process,  or other  proceedings in any of the courts of the
United States,  by means  whereof any judgment shall be reversed,
made  void,  or  not  take  effect;    or  if  any  person  shall

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acknowledge, or procure to be acknowledged,  in any of the courts
aforesaid, any  recognizance, bail,  or judgment,  in the name or
names of  any other  person or persons not privy or consenting to
the same,  every such  person, or persons, on conviction thereof,
shall be  fined  not  exceeding  five  thousand  dollars,  or  be
imprisoned  not   exceeding  seven  years,  and  be  whipped  not
exceeding thirty-nine  stripes'. Provided nevertheless, that this
act shall  not extend  to the  acknowledgment of  any judgment or
judgments by  any attorney  or attorneys,  duly admitted, for any
person or  persons against  whom any  such judgment  or judgments
shall be had or given.

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

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

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

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

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

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

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

  2 An entry, by the father, made in a Bible, stating that Peter,
his eldest  son, was  born in. lawful wedlock of Maria, his wife,
at a  time specified,  is evidence  to prove  the  legitimacy  of

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Peter. 4 Campb. 401. But the entry, in order to be evidence, must
be an  original entry,  and, when  it is  not so, the loss of the
original must be proved before the copy can be received. 6 Serg.
 Rawle, 135. See 10 Watts, R. 82.

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

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

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

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

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

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

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

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

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

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

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

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

  To FARM LET. These words in a lease have the effect of creating
a lease for years. Co. Litt. 45 b;  2 Mod. 250.

   FARMER. One  who is  lessee of  a farm.  it is said that every
lessee for life or years, although it be but of a small house and
land, is called farmer. This word implies no mystery except it be
that of  hushandman. Cunn.  Dict. h.  t. In  common  parlance,  a
farmer is  one who  cultivates a farm, whether he be the owner of
it or not.

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

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

   2. Like  an innkeeper, a common carrier, and other persons who
assume a  public employment,  a farrier  is bound  to  serve  the
public as  far as his employment goes, and an action lies against
him for  refusing, when a horse is brought to him at a reasonable
time for  such purpose,  if he refuse;  Oliph. on Horses, 131 and
he is  liable for  the unskilfulness  of himself  or  servant  in
performing such  work 1  Bl. Com. 431;  but not for the malicious
act of  the servant  in purposely driving a nail into the foot of
the horse, with the intention of laming him. 2 Salk. 440.

  FATHER, domestic relations. He by whom a child is begotten.

   2. A  father is  the natural guardian of his children, and his
duty  by  the  natural  law  consists  in  maintaining  them  and
educating them  during their  infancy,  and  making  a  necessary
provision for their happiness in life. This latter, however, is a
duty which the law does not enforce.

   3. By  law, the father is bound to support his children, if of
sufficient ability,  even though they have property of their own.
1 Bro.  C. C.  387;  4 Mass. R. 97;  2 Mass. R. 415 5 Rawle, 323.
But he  is not  bound, without some agreement, to pay another for
maintaining them;   9  C. & P. 497;  nor is he bound to pay their
debts, unless  he has  authorized them to be contracted. 38 E. C.
L. R.  195, n.  See 8  Watts, R. 366 1 Craig. & Phil. 317;  Bind;
Nother;   Parent. This  obligation ceases  as soon  as the  child
becomes of age, unless he becomes chargeable to the public. 1 Ld.
Ray. 699.

  4. The rights of the father are authority over his children, to
enforce all  his lawful  commands, and to correct with moderation
his children  for disobedience.  A father  may delegate his power
over the person of his child to a tutor or instructor, the better
to accomplish the purposes of his education. This power ceases on
the arrival  of  the  child  at  the  age  of  twenty-one  years.
Generally, the father is entitled to the services of his children
during their minority. 4 S. & R. 207;  Bouv. Inst. Index, h. t.

  FATHER-IN-LAW. In latin, socer, is the father of one's wife, or
of one's hushand.

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

   FATHOM. A  measure of  length, equal  to six feet. The word is
probably derived  from the Teutonic word fad, which signifies the
thread or  yarn drawn  out in  spinning to the length of the arm,
before it  is run  upon the  spindle. Webster;  Minsheu. See Ell.
Vide Measure.

   FATUOUS PERSON.  One entirely  destitute of  reason;   is  qui
omnino desipit. Ersk. Inst. B. 1, tit. 7, s. 48.

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

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  FAULT, contracts, civil law. An improper act or omission, which
arises from  ignorance, carelessness,  or negligence.  The act or
omission must  not have been meditated, and must have caused some
injury to  another. Lec.  Elcm. §783.  See Dolus,  Negligence.  1
Miles' Rep. 40.

   2. -  1. Faults or negligence are usually divided into, gross,
ordinary, and  slight: 1. Gross fault or neglect, consists in not
observing that  care  towards  others,  which  a  man  the  least
attentive, usually  takes of  his own affairs. Such fault may, in
some cases,  afford a  presumption of  fraud, and  in very  gross
cases it  approaches so  near, as  to be almost undistinguishable
from it, especially when the facts seem hardly consistent with an
honest intention. But there may be a gross fault without fraud. 2
Str. 1099;  Story, Bailm. §18-22;  Toullier, 1. 3, t. 3, §231. 2.
Ordinary faults  consist in  the  omission  of  that  care  which
mankind generally  pay to  their own concerns;  that is, the want
of ordinary  diligence. 3. A slight fault consists in the want of
that care which very attentive persons take of their own affairs.
This fault  assimilates itself,  and, in  some cases, is scarcely
distinguishable, from  mere accident,  or want of foresight. This
division has  been adopted  by common lawyers from the civil law.
Although the civilians generally agree in this division, yet they
are not without a difference of opinion. See Pothier, Observation
generale, sur  le precedent Traite, et sur les suivants;  printed
at the end of his Traite des Obligations, where he cites Accurse,
Alciat, Cujas,  Duaren, D'Avezan,  Vinnius,  and  Heineccius,  in
support of  this division.  On  the  other  side  the  reader  is
referred to  Thomasius, tom.  2, Dissertationem,  pago 1006;   Le
Brun, cited  by Jones,  Bailm. 27;   and  Toullier,  Droit  Civil
Francais, liv. 3, tit. 3, §231.

  3. - 2. These principles established, different rules have been
made as  to the  responsibilities of  parties for their faults in
relation to  their contracts.  They are  reduced  by  Pothier  to

   4.- I.  In those  contracts where the party derives no benefit
from his undertaking, he is answerable only for his gross faults.

   5.-2. In  those contracts  where the parties have a reciprocal
interest, as  in the  contract of  sale, they are responsible for
ordinary neglect.

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

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

   2. The  crimen falsi of the civil law. Toullier says, "Le faux

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

  FAVOR. Bias partiality;  lenity;  prejudice.

   2. The grand jury are sworn to inquire into all offences which
have been  committed, and of all violations of law, without fear,
favor, or  affection. Vide Grand Jury. When a juror is influenced
by bias  or prejudice, so that there is not sufficient ground for
a principal  challenge, he  may nevertheless  be  challenged  for
favor. Vide Challenge, and Bac. Ab. Juries, E;  Dig. 50, 17, 156,
4;  7 Pet. R. 160.

  FEAL. Faithful. This word is not used.

  FEALTY. Fidelity, allegiance.

   2. Under  the feudal system, every owner of lands held them of
some superior lord, from whom or from whose ancestors, the tenant
had received  them. By  this connexion  the lord  became bound to
protect the  tenant in  the enjoyment of the land granted to him;
and, on  the other  hand, the  tenant was bound to be faithful to
his  lord,,   and  defend  him  against  all  his  enemies.  This
obligation was  called fidelitas,  or fealty.  1 Bl. Com. 366;  2
Bl. Com. 86;  Co. Litt. 67, b;  2 Bouv. Inst. n. 1566.

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

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

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

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

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

  FEE, FEODUM or FEUDUM, estates. From the French, fief. A fee is
an estate  which may  continue forever. The word fee is explained
to signify  that the  land, or other subject of property, belongs
to its owner, and is transmissible, in the case of an individual,
to those  whom  the  law  appoints  to  succeed  him,  under  the
appellation of  heirs;   and in  the case of corporate bodies, to
those who  are to take on themselves the corporate function;  and
from the  manner in  which the  body  is  to  be  continued,  are
denominated successors.  1 Co.  Litt. 1,  271, b;   Wright's Ten.
147, 150;  2 Bl. Com. 104. 106;  Bouv. Inst. Index h. t.

   2. Estates  in fee  are of  several sorts,  and have different
denominations, according  to their several natures and respective
qualities. They  'may with  propriety be  divided into,  1.  Fees
simple. 2  .  Fees  determinable.  3.  Fees  qualified.  4.  Fees
conditional and 5. Fees tail.

   3. -  1. A fee simple is an estate inlands or tenements which,
in reference  to the  ownership of individuals, is not restrained
to any  heirs in  particular, nor  subject to  any  condition  or
collateral determination  except the  laws  of  escheat  and  the
canons of  descent, by  which it  may, be  qualified, abridged or
defeated. In other words, an estate in fee simple absolute, is an
estate limited  to a  person and his heirs general or indefinite.
Watk. Prin.  Con. 76. And the omission of the word `his' will not
vitiate the  estate, nor  are the  words  "and  assigns  forever"
necessary to create it, although usually added. Co. Litt. 7, b 9,
b;   237, b  Plowd. 28,  b;   29, a;  Bro. Abr. Estates, 4. 1 Co.
Litt. 1,  b;  Plowd. 557 2 Bl. Com. 104, 106 Hale's Analysis, 74.
The word  fee simple is sometimes used by the best writers on the
law as  contrasted with  estates tail.  1 Co.  Litt. 19.  In this
sense, the term comprehends all other fees as well as the estate,
properly,  and   in  strict   propriety  of  technical  language,
peculiarly' distinguished by this appellation.

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

   5. -  3. Qualified  fee, is  an interest  given on  its, first
limitation, to  a man  and to  certain of  his heirs,  and not to

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extend to all of them generally, nor confined to the issue of his
body. A  limitation to  a man  and his  heirs on  the part of his
father, affords an example of this species of estate. Litt. 254 1
Inst. 27, a 220;  1 Prest. on Estates, 449.

   6. -  . A  conditional fee, in the more general acceptation of
the term,  is when, to the limitation of an estate a condition is
annexed, which  renders the estate liable to be defeated. 10 Rep.
95, b.  In this application of the term, either a determinable or
a qualified  fee may  at the  same time  be a conditional fee. An
estate limited  to a  man and  his  heirs,  to  commence  on  the
performance of  a condition, is also frequently described by this
appellation. Prest. on East. 476;  Fearne, 9.

  7. - 5. As to fee-tail, see Tail.

   FEE FARM, Eng. law. A perpetual farm or rent. 1 Tho. Co. Litt.
446, n. 5.

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

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

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

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

   FEIGNED issue,  pract. An  issue brought  by  consent  of  the
parties, or the direction of a court of equity, or such courts as
possess  equitable  powers,  to  determine  before  a  jury  some
disputed matter  of fact, which the court has not the power or is
unwilling to decide. 3 Bl. Com. 452;  Bouv. Inst. Index, h. t

  FELO DE SE, criminal law. A felon of himself;  a self-murderer.

  2. To be guilty of this offence, the deceased must have had the
will and  intention of  committing it,  or else  be committed  no
crime. As  he is  beyond the  reach of  human laws,  he cannot be
punished;   the  English  law,  indeed,  attempts  to  inflict  a
punishment by  a barbarous  burial of his body, and by forfeiting

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to the  king the  property which he owned, and which would belong
to his  relations. Hawk. P. C. c. 9;  4 Bl. Com. 189. The charter
of privileges  granted by  William Penn  to  the  inhabitants  of
Pennsylvania, contains  the following  clause:  "If  any  person,
through temptation  or melancholy,  shall  destroy  himself,  his
estate, real  and personal,  shall, notwithstanding,  (descend to
his wife  and children, or relations, as if he had died a natural

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

  2. A felon is infamous, and cannot fill any office, or become a
witness in any case, unless pardoned, except in cases of absolute
necessity, for  his own  preservation,  and  defence;    as,  for
example, an  affidavit in  relation  to  the  irregularity  of  a
judgment in  a cause  in which  he is a party. 2 Salk. R. 461;  2
Str. 1148;.  Martin's R.  25;  Stark. Ev. part 2, tit. Infamy. As
to the  effect of a conviction in one state, where the witness is
offered in  another, see 17 Mass. R. 515 2 Harr. & McHen. R. 120,
378;   1 Harr.  &  Johns.  R.  572.  As  to  the  effect  upon  a
copartnership by  one of  the partners  becoming a  felon, see  2
Bouv. Inst. n. 1493.

   FELONIOUSLY, pleadings. This is a technical word which must be
introduced into  every indictment  for  a  felony,  charging  the
offence to  have been  committed feloniously;  no other word, nor
any circumlocution,  will supply its place. Com. Dig. Indictment,
G 6;   Bac.  Ab. Indictment, G 1;  2 Hale, 172, 184;  Hawk. B. 2.
c. 25, s. 55 Cro. C. C. 37;  Burn's Just. Indict. ix.;  Williams'
Just. Indict. iv.-, Cro. Eliz. 193;  5 Co. 121;  1 Chit. Cr. Law,

   FELONY, crimes.  An offence which occasions a total forfeiture
of. either  lands or  goods, or  both, at  common law,  to  which
capital or  other punishment may be super-added, according to the
degree of  guilt. 4  Bl. Com,  94, 5;   1 Russ. Cr. *42;  1 Chit.
Pract. 14;   Co.  Litt .  391;  1 Hawk. P. C. c. 37;  5 Wheat. R.
153, 159.

  FEMALE. This term denotes the sex which bears young.

  2. It is a general rule, that the young of female animals which
belong to  us, are  ours, nam fetus ventrem sequitur. Inst. 2, 1,
19;   Dig. 6,  1, 5,  2. The  rule is,  in general, the same with
regard to  slaves;   but when  a female  slave comes into. a free
state, even  without the  consent of  her master,  and  is  there
delivered of a child, the latter is free. Vide Feminine;  Gender;

  FEME, or, more properly,

  FEMME. Woman.

  2. This word is frequently used in law. Baron and feme, hushand
and wife;   feme  covert, a.  married woman;  feme sole, a single

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  3. A feme covert, is a married woman. A feme covert may sue and
be sued  at law,  and will  be treated  as a  feme sole, when the
hushand is  civiliter mortuus.  Bac. Ab.  Baron and Feme, M;  see
article, Parties  to Actions,  part 1,  section l,  §7, n. 3;  or
where, as  it has been decided in England, he is an alien and has
left the country, or has never been in it. 2 Esp. R. 554;  1 B. &
P. 357.  And courts  of equity  will treat  a married woman as a,
feme sole,  so as  to enable  her to sue or be sued, whenever her
hushand has abjured the realm, been transported for felony, or is
civilly dead.  And when  she has a separate property, she may sue
her hushand  in respect of such property, with the assist ance of
a next  friend of  her own selection. Story, Eq. Pl. §61;  Story,
Eq .  Jur. §1368;   and see article, Parties to a suit in equity,
1, n. 2;  Bouv. Inst. Index, h. t.

   4. Coverture subjects a woman to some duties and disabilities,
and gives  her some rights and immunities, to which she would not
be entitled  as a  feme sole.  These  are  considered  under  the
articles, Marriage, (q. v.) and Wife. (q. v.)

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

   7. By a more recent act, April 11, 1848, of the same state, it
is provided,  that in all cases where debts may be contracted for
necessaries for  the support and maintenance of the family of any
married woman, it shall be lawful for the creditor, in such case,
to institute  suit against  the hushand and wife for the price of
such  necessaries,  and  after  obtaining  a  judgment,  have  an
execution against  the hushand  alone and  if no  property of the
said hushand  be found, the officer executing the said writ shall
so return,  and thereupon an alias execution may be issued, which
may be  levied upon and satisfied out of the separate property of
the wife,  secured to  her under  the  provisions  of  the  first
section of  this  act.  Provided,  That  judgment  shall  not  be
rendered against  the wife, in such joint action, unless it shall
have be  proved that  the debt  sued  for  in  such  action,  was
contracted by  the wife,  or incurred  for articles necessary for
the support of the family of the said hushand and wife.

  FEMININE. What belongs to the female sex.

   2. When  the feminine  is used,  it is  generally confined  to
females;   as, if  a man bequeathed all his mares to his son, his
horses would  not  pass.  Vide:  3  Brev.  R.  9  Gender;    Man;

   FENCE. A  building or erection between two contiguous estates,

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so as to 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  are to be built on the line, and the expense, when
made no  more expensively  than is  required by the law, is borne
equally between  the parties.  See the  following  cases  on  the
subject. 2  Miles, 337,  395;   2 Greenl.  72;   11 Mass. 294;  3
Wend. 142;  2 Metc. 180;  15 Conn. 526 2 Miles, 447;  Bouv. Inst.
Index, h. t.

   3. A  partition fence is presumed to be the common property of
both owners  of the  land. 8 B. & C. 257, 259, note a. When built
upon the  land of  one of  them, it is his;  but if it were built
equally upon the land of both, at their joint expense, each would
be the owner in severalty of the part standing on his own land. 5
Taunt. 20;  2 Greenl. Ev. 617.

  FEOD. The same as fief. Vide Fief or Feud.

   FEOFFMENT, conveyancing. A gift of any corporeal hereditaments
to another. It operates by transmutation of possession, and it is
essential to  its completion  that the  seisin be  passed.  Watk.
Prin. Conv.  183. This term also signifies the instrument or deed
by which such hereditament is conveyed.

   2. This  instrument was  used as  one of the earliest modes of
conveyance of the common law. It signified, originally, the grant
of a  feud or fee;  but it came, in time, to signify the grant of
a free inheritance in fee, respect being had to the perpetuity of
the estate  granted,  rather  than  to  the  feudal  tenure.  The
feoffment was,  likewise, accompanied  by livery  of seisin.  The
conveyance, by  feoffment, with  livery  of  seisin,  has  become
infrequent, if  not obsolete, in England;  and in this country it
has not  been used  in practice.  Cruise, Dig. t. 32, c. 4. s. 3;
Touchs. c.  9;   2 Bl. Corn. 20;  Co. Litt. 9;  4 Kent, Com. 467;
Perk.. c.  3;  Com. Dig. h. t.;  12 Vin. Ab. 167;  Bac. Ab. h. t.
in pr.;   Doct. Plac. 271;  Dane's Ab. c. 104, a. 3, s. 4. He who
gives or  enfeoffs  is  called  the  feoffor;    and  the  person
enfeoffed is  denominated the feoffee. 2 Bl. Com. 20. See 2 Bouv.
Inst. n. 2045, note.

  FERAE. Wild, savage, not tame.

  FERAE BESTIAE. Wild beasts. See Animals;  Ferae naturce.

  FERAE NATURAE. Of a wild nature.

  2. This term is used to designate animals which are not usually
tamed. Such  animals belong  to the  person who has captured them
only while they are in his power for if they regain their liberty
his property  in them  instantly ceases,  unless they have animum
revertendi,  which  is  to  be  known  only  by  their  habit  of
returning. 2 Bl. Com. 386;  3 Binn. 546;  Bro. Ab. Propertie, 37;
Com. Dig.  Biens, F;   7 Co. 17, b;  1 Chit. Pr. 87;  Inst. 2, 1,
15;  13 Vin. Ab. 207.

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

  FERM or FEARM. By this ancient word is meant land, fundus;  (q.
v.) and,  it is  said, houses  and tenements  may pass by it. Co.
Litt. 5 a.

   FERRY. A  place where  persons and  things are  taken across a
river or  other stream  in boats or other vessels, for hire. 4 N.
S. 426;  S. C. 3 Harr. Lo. R. 341.

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

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

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

   2.  Ferrymen  are  considered  as  common  carriers,  and  are
therefore the  legal judges  to decide  when it is proper to pass
over or  not. 1  M'Cord, R.  444 Id. 157 1 N. & M. 19;  2 N. & M.
17. They  are to  regulate how  the property  to be  taken across
shall be put in their boats or flats;  1 M'Cord 157;  and as soon
as the  carriage is fairly on the drop or slip of a fat, although
driven by  the owner's  servant,  it  is  in  possession  of  the
ferryman, and he is answerable. 1 M'Cord's R. 439.

  FESTINUM REMEDIUM. A speedy remedy.

  2. This is said of those cases where the remedy for the redress
of an  injury is  given without  any unnecessary  delay. Bac. Ab.
Assise, A.  The action  of Dower  is festinum remedium, and so is

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

   2. When a prisoner is brought into court to plead he shall not

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be put in fetters. 2 Inst. 315;  3 Inst. 34;  2 Hale, 119;  Hawk.
b. 21  c. 28,  s. 1 Kel. 10;  1 Chitty's Cr. Law, 417. An officer
having arrested  a defendant on a civil suit, or a person accused
of a  crime, has no right to handcuff him unless it is necessary,
or he  has attempted to make his escape. 4 B. & C. 596;  10 Engl.
C. L. Rep. 412, S. C.

   FEUD. This  word, in  Scotland,  signifies  a  combination  of
kindred to  revenge injuries  or affronts  done to  any of  their
blood. Vide Fief.

  FEUDA. In the early feudal times grants were made, in the first
place, only  during the  pleasure  of  the  grantor,  and  called
muncra;   (q. v.) afterwards for life, called beneficia;  (q. v.)
and, finally,  they were extended to the vassal and his sons, and
then they acquired the name offeudal. Dalr. Feud. Pr. 199.

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

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

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

   3.  The  principles  of  the  feudal  law  will  be  found  in
Littleton's Tenures  Wright's Tenures;   2 Blackstone's Com. c. 5
Dalrymple's History  of Feudal  Property;   Sullivan's  Lectures;
Book of  Fiefs;   Spellman, Treatise  of Feuds  and Tenures;   Le
Grand Coutumier;   the  Salic  Laws;    The  Capitularies;    Les
Establissements de  St. touis;   Assizes de Jerusalem;  Poth. Des
Fiefs. Merl.  Rep. Feodalite;  Dalloz, Dict. Feodalit 6;  Guizot,
Essais sur I'Histoire de France, Essai 5eme.

   4. In  the United  States the feudal law never was in its full
vigor, though  some of  its principles are still retained. "Those
principles  are   so  interwoven   with   every   part   of   our
jurisprudence," says  Ch. J.  Tilghman, 3  S. & R. 447, " that to
attempt to eradicate them would be to destroy the whole. They are
massy stones  worked into  the foundation  of our  legal edifice.
Most of the inconveniences attending them, have been removed, and
the few  that remain  can be  easily  removed,  by  acts  of  the
legislature." See 3 Kent, Com. 509, 4th ed.

   FIAR, Scotch  law. He  whose property  is burdened with a life
rent. Ersk. Pr. of L. Scot. B. 2, t. 9, s. 23.

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

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

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

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

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

   5. The law abounds in fictions. That an estate is in abeyance;
the doctrine of remitter, by which a party who has been disseised
of his  freehold, and  afterwards acquires  a defective title, is
remitted to his former good title;  that one thing done today, is
considered as  done, at  a preceding  time  by  the  doctrine  of
relation;   that, because  one thing  is proved, another shall be
presumed to be true, which is the case in all presumptions;  that
the heir, executor, and administrator stand by representation, in
the place  of the  deceased are all fictions of law. "Our various
introduction of John Doe and Richard Roe," says Mr. Evans, (Poth.
on Ob.  by Evans,  vol. n.  p.  43,)  "our  solemn  process  upon
disseisin by  Hugh Hunt;   our casually losing and finding a ship
(which never  was in Europe) in the parish of St. Mary Le Bow, in
the ward  of Cheap;   our  trying the  validity of  a will  by an
imaginary, wager  of five  pounds;   our imagining and compassing

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the king's  death, by  giving information  which  may  defeat  an
attack upon  an enewy's settlement in the antipodes our charge of
picking a  pocket, or  forging a  bill with  force and  arms;  of
neglecting to  repair a bridge, against the peace of our lord the
king, his  crown and  dignity are circumstances, which, looked at
by themselves,  would convey  an impression  of no very favorable
nature, with respect to the wisdom of our jurisprudence." Vide 13
Vin. Ab.  209;   Merl. Rep. h. t.;  Dane's Ab. Index, h. t.;  and
Rey, des  Inst. de  I'Angl. tome  2, p.  219, where  he  severely
cesures these fictions as absurd and useless.

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

   FICTITIOUS ACTIONS,  Practice.  Suits  brought.  on  pretended

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

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

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

  2. When the name of a fictitious payee has been used, in making
a bill  of exchange, and it has been endorsed in such name, it is
considered as having the effect of a bill payble to bearer, and a
bona fide  holder, ignorant  of that  fact, may  recover  on  it,
against all  prior parties  who were privy, to the transaction. 2
H. Bl.  178, 288;  3 T. R. 174, 182, 481;  3 Bro. C. C. 238. Vide
Bills of Exchange, §1.

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

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

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  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  fidei-commissum. 1  Cru. Dig.  388;  Bac. Read. 19;  1
Madd. Ch. 446-7.

   4. The fidei-coimmissa of the civil law, have been supposed to
resemble entails,  though some  writers have  declared  that  the
Roman law was a stranger to entails. 2 Bouv. Inst. n. 1708.

  FIDE-JUSSIO, civil law. The contract of suretyship.

   FIDE-JUSSOR, civil  law. One who becomes security for the debt
of another, promising to pay it in case the principal does not do

   2. He  differs from  co-obligor in  this, that  the latter  is
equally bound to a debtor with his principal, while the former is
not  liable   till  the   principal  has  failed  to  fulfil  his
engagement. Dig.  12, 4,  4;  Id. 16, 1, 13;  Id. 24, 3, 64;  Id.
38, 1,  37;   Id. 50,  17, 110,  and 14,  6, 20;   Hall's Pr. 33;
Dunl. Ad. Pr. 300;  Clerke's Prax. tit. 63, 4, 5.

  3. The obligation of the fide-jussor was an accessory contract,
for, if  the principal  obligation was not previously contracted,
his engagement  then took  the name  of mandate. Lec. Elem. §872;
Code Nap. 2012.

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

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

  2. A fiduciary contract is defined to be, an agreement by which
a person  delivers a  thing to  another, on the condition that he
will restore  it to  him. The following formula was employed:' Ut
inter bonos  agere opportet, ne propter te fidemque tuam frauder.
Cicer. de  Offc. lib.  3, cap.  13;   Lec. du Dr. Civ. Rom. §237,
238. See  2 How.  S. C.  Rep. 202,  208;   6 Watts & Serg. 18;  7
Watts, 415.

   FIEF, or FEUD. In its origin, a fief was a district of country
allotted to  one of the chiefs who invaded the Roman empire, as a

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

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

   FIERI FACIAS, practice. The name of a writ of execution. It is
so called  because, when  writs were in Latin, the words directed
to the sheriff were, quod fieri facias de bonis et catallis, &c.,
that you  cause to  be made  of the  goods and  chattels, &c. Co.
Litt. 290 b.

   2. The  foundation of  this writ  is a  judgment for  debt  or
damages, and  the party  who has  recovered such  a  judgment  is
generally entitled  to it,  unless he  is delayed  by the stay of
execution which  the  law  allows  in  certain  cases  after  the
rendition of the judgment, or by proceedings in error.

   3. This subject will be considered with regard to, 1. The form
of the writ. 2. Its effects. 3. The manner of executing it.
 4.-1.  The writ  is issued in the name of the commonwealth or of
the government,  as required by the constitution, and directed to
the sheriff,  commanding him  that of the goods and chattels, and
(where  lands  are  liable  for  the  payment  of  debts,  as  in
Pennsylvania,) of  the lands  and  tenements  of  the  defendant,
therein named,  in his bailiwick, he cause to be levied as well a
certain debt  of -  dollars, which the plaintiff, (naming him) in
the court  of -  (naming,it,) recovered against him, as - dollars
like money  which to  the said  plaintiff was  adjudged  for  his
daimages, which  he had  by the  detention of that debt, and that
he, (the  sheriff,) have that money before the judges of the said
court,  on   a  day   certain,  (being  the  return  day  therein
mentioned,) to  render to the said plaintiff his debt and damages
aforesaid, whereof  the said  defendant is  convict. It  must  be
tested  in   the  name   of  the  officer,  as  directed  by  the
constitution or laws;  as, "Witness the honorable John B. Gibson,
our chief  justice, at Philadelphia, the tenth day of October, in
the year  of our Lord one thousand eight hundred and forty-eight.
It must be signed by the prothonotory, or clerk of the court, and
sealed with  its seal.  The signature of the prothonotary, it has
been decided,  in Pennsylvania,  is not indispensable. The amount
of the  debt, interest,  and costs,  must also be endorsed on the
writ. This form varies as it is issued on a judgment in debt, and
one obtained  for damages  merely. The execution being founded on
the judgment,  must, of  course, follow and be warranted by it. 2
Saund. 72  h. k;   Bing.  on Ex.  186. Hence, where there is more

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than one  one plaintiff  or defendant,  it must be in the name of
all the  plaintiffs, against  all the defendants. 6 T. R. 525. It
is either  for the plaintiff or the defendant. When it is against
an executor  or administrator, for a liability of the testator or
intestate, it  is conformable to the judgment, and must be 20only
against the  goods of the deceased, unless the defendant has made
himself personally  liable by  his  false pleading, in which case
the judgment  is de  bonis testatoris  si, et  si non,  de  bonis
propriis, and the fieri facias must conform to it.

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

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

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Dig. Execution, c. 5. Vide 3 Bouv. Inst. n. 3383, et. seq;  Wats.
on Sher. ch. 10;  Bing. Ex. c. 1, s. 4;  Gilb. on Exec. Index, h.
t.;   Grab. Pr.  321: Troub.  & Hal. Pr. Index, h. t.;  Com. Dig.
Execution, C  4;   Process, F  5, 7;   Caines'  Pr. Index, h. t.;
Tidd's Pr. Index, h. t.;  Sell. Pr. Index, h. t.

   FIERI FECI,  practice. The  return which the sheriff, or other
proper officer,  makes to  certain  writs,  signifying,  "I  have
caused to be made."

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

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

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

   2. Roman figures may be used in contracts and law proceedings,
and they  will be held valid;  but Arabic figures, probably owing
to the  case with  which they  may be counterfeited, or. altered,
have been holden not to be sufficient to express the sum due on a
contract;  but, it seems, that if the amount payable and due on a
promissory note  be expressed  in figures  or ciphers, it will be
valid. Story  on Bills,  §42, note;   Story,  Prom.  Notes,  §21.
Indictments have  been set  aside because  the day  or  year  was
expressed in  figures. 13 Vin Ab. 210;  1 Ch. Rep. 319;  S. C. 18
Eng. Com. Law Rep. 95.

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

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

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

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   3. In  this immense  subject, it  will not  be  expected  that
examples should  be here  given of  every kind  of figures;   the
principal only  will be  noticed. The law is loaded with abstract
ideas;   abstract in  itself, it has often recourse to metaphors,
which, as it were, touch our senses. The inventory is faithful, a
defect is  covered, an  account is liquidated, a right is open or
closed, an  obligation is  extinguished,  &c.  But  the  law  has
metaphors which  are properly  its own;  as civil fruits, &c. The
state or  condition of  a man who has been deprived by the law of
almost all  his social  prerogatives or  rights, has received the
metaphorical name  of civil  death.  Churches  being  called  the
houses of  God, formerly  were considered  an asylum,  because to
seize a  person in  the house  of another was considered a wrong.
Mother country,  is applied  to the  country  from  which  people
emigrate to  a colony;   though  this pretended  analogy is  very
different in  many points, yet this external ornament of the idea
soon became  an integral  part of  the idea;  and on the faith of
this metaphor,  this pretended filiation became the source whence
flowed the  duties which  bound the colonies to the metropolis or
mother country.

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

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

   2. A  paper is  said to  be filed, when it is delivered to the
proper officer,  and by  him received to be kept on file. 13 Vin.
Ab. 211.

   FILIATION, civil  law. The  descent of  son or  daughter, with
regard to his or her father, mother, and their ancestors.

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

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

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

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

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

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

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

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

   FILUM. The  middle;   the thread  of anything;  as filum aqua;
filum 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  streams above tide water, unless otherwise expressed,
the grant  extends usque  ad filum  aquae, and  that not only the
banks, but  the bed  of  the  river,  and  the  islands  therein,
together with  exclusive right of fishing, pass to the grantee. 5
Wend. 423.

  FILUM VIAE. The thread or middle of the road.

   2. Where  a law  requires travellers  meeting each other on, a
road to  drive their  carriages to the right of the middle of the
road, the  parties are  bound to keep ou their side of the worked
part of  the road,  although the  whole of  the  smooth  or  most
travelled path  may be  upon one  side of the filum viae. 7 Wend.
185;  5 Conn. 305.

   FIN DE  NON RECEVOIR, French law. An exception or plea founded
on law,  which, without  entering into  the merits of the action,
shows that the plaintiff has no right to bring it, either because
the time  during which it ought to have been brought has elapsed,
which  is   called  prescription,   or  that  there  has  been  a
compromise, accord and satisfaction, or any other cause which has
destroyed the  right of  action which once subsisted. Poth. Proc.
Civ. partie 1, c. 2, s. 2, art. 2;  Story, Confl. of Laws, §580.

  FINAL. That which puts an end to anything.

   2. It  is used  in opposition  to interlocutory;   as, a final
judgment,. is  a judgment  which ends the coutroversy between the
parties litigant.  1 Wheat.  355;  2 Pet. 449. See 12 Wheat. 135;

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4 Dall.  22;  9 Pet. 1;  6 Wheat. 448;  3 Cranch, 179;  6 Cranch,
51;  Bouv. Inst. Index, h. t.

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

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

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

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

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

   4. On  the other hand, the finder of an article is entitled to
recover  all   expenses  which   have  necessarily   occurred  in
preserving the thing found;  as, it a man were to find an animal,
he would  be entitled  to be  reimbursed  for  his  keeping,  for
advertising in  a reasonable  manner that he had found it, and to
any reward  which may  have been  offered by  the owner  for  the
recovery of  such lost thing. Domat, 1. 2, t. 9, s. 2, n. 2. Vide
Story, Bailm. §35.

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

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

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

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

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

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

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

   3. Fines thus levied, are of four kinds. 1. What in law French
is called  a fine  sur cognizance de droit, come ceo que il ad de
son done;   or a fine upon the acknowledgment of the right of the

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

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

   2. The amount of the fine is frequently left to the discretion
of the court, who ought to proportion the fine to the offence. To
prevent the  abuse of  excessive fines,  the Constitution  of the
United States directs that "excessive bail shall not be required,
nor excessive  fines imposed,  nor cruel  and unusual punishments
inflicted." Amendm.  to the Constitution, art. 8. See Division of

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

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

   2. Whether a fire arises purely by accident, or from any other
cause when it becomes uncontrollable and dangerous to the public,
a man may, in general, justify the destruction of a house on fire
for the  protection of  the neighborhood,  for  the  maxim  salus
populi est  suprema lex,  applies in  such case. 11 Co. 13;  Jac.
Inter. 122,  max. 115.  Vide Accident;   Act of God, and 3 Saund.
422 a,  note 2;   3  Co. Litt.  57 a,  n. 1;   Ham. N. P. 171;  1
Cruise's Dig.  151, 2;   1  Vin. Ab. 215;  1 Rolle's Ab. 1;  Bac.

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Ab. Action  on the  case, F;   2  Lois des  Batim. 124;  Newl. on
Contr. 323;  1 T. R. 310, 708;  Amb. 619;  6 T. R. 489.

  3. When real estate is let, and the tenant covenants to pay the
rent during  the term, unless there are proper exceptions to such
covenants, and  the premises  are afterwards  destroyed by  fire,
during the  term, the  rent must  be paid,  although there  be no
enjoyment;   for the  common rule prevails, res perit domino. The
tenant, by  the accident,  loses  his  term,  the  landlord,  the
residence. Story, Eq. Jur. §102.

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

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

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

   2. The name of a firm should be distinct from the names of all
other firms.  When there  is a  confusion in  this  respect,  the
partners  composing   one  firm  May,  in  some  cases,  be  made
responsible for  the debts  of another.  For example, where three
persons carried  on a  trade under  the firm of King and Company,
and two  of those  persons, with  another, under  the same  firm,
carried on another partnership;  a bill under the firm, and which
was drawn  on account of the one partnership, was made the ground
of an  action of  assumpsit against the other. Lord Kenyon was of
opinion that  this company  was liable;   that  the  partner  not
connected with  the company  that drew  the bill,  having  traded
along with  the other  partner under  that firm,  persons  taking
bills under it, thougb without his knowledge, had a right to look
to him  for payment.  Peake's N.  P. Cas. 80;  and see 7 East, R.
210;  2 Bell's Com. 670, 6th ed.;  3 Mart. N. S. 39. But it would
seem, 1st.  That any act distinctly indicating credit to be given
to one of the partnerships, will fix the election of the creditor
to that  company;   and 2d.  That making a claim on either of the
firms, or,  when they  are insolvent,  on either  of the estates,
will have the same effect.

   3. When  the style  of the  firm has  been  agreed  upon,  for
example, John  Doe and Company, the partners who sign the name of
the firm  are required to use such name in the style adopted, and
a departure  from it  may have the double effect of rendering the
individual partner  who signs  it, personally  liable not only to
third persons,  but to  his co-partners;  Story, Partn. §102, 202
and it will be a breach of the agreement, if the partner sign his
own name,  and add,  "for himself and partners." Colly. Partn. B.
2, c. 2, §2;  2 Jac. & Walk. 266.

  4. As a general rule a firm will be bound by the acts of one of
the partners  in the course of their trade and business, and will
be discharged by transactions with a single partner. For example,
the payment  or satisfaction  of  a  debt  by  a  partner,  is  a

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satisfaction and  payment by  them all;   and  a release  to  one
partner, is  in release  to them  all. Go.  Litt. 232 n;  6 T. R.
525. Vide Partner;  Partnership.

  5. It not unfrequently happens that the name of the firm is the
name of  only one  of the  partners, and  that such  partner does
business in  his own  name on his private or separate account. In
such case,  if the  contract be  entered into  for the  firm, and
there is  express or  implied proof of that fact, the partnership
will be  bound by  it;   but when  there is  no such  proof,  the
presumption will  be that  the debt was contracted by the partner
on  his   own  separate   account,  and  the  firm  will  not  be
responsible. Story on Part. §139;  Colly. on Partn. Book 3, c. 1,
§2;   17 Serg.  & Rawle,  165;   5 Mason, 176;  5 Peters, 529;  9
Pick. 274;  2 Bouv. Inst. n. 1442, et seq.

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

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

  FISC, civil law. The treasury of a prince. The public treasury.
Hence to  confiscate a  thing, is  to appropriate it to the fisc.
Paillet, Droit Public, 21, n, says that fiscus, in the Roman law,
signified the  treasure of the prince, and aerarium, the treasure
of the  state. But  this distinction  was not observed in France.
See Law 10, ff. De jure Fisci.

  FISCAL. Belonging to the fisc, or public treasury.

   FISH An animal which inhabits the water, breathes by the means
of gills, and swims by the aid of fins, and is oviparous.

   2. Fishes  in rivers and in the sea, are considered as animals
ferae naturae,  and consequently  no one has any property in them
until they  have been captured;  and, like other wild animals, if
having been  taken, they  escape and.  regain their  liberty, the
captor loses  his property in them. Vide Ferae Naturae. The owner
of a  fishery in  the lower part of a stream cannot construct any
contrivance by  which to  obstruct the  passage of  fish  up  the
stream. 5 Pick. R. 199.

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

   2. The  right of  fishery is  to be  considered as  to tide or
navigable waters,  and to rivers not navigable. A river where the
tide ebbs  and flows  is considered  an arm  of the  sea. By  the
common law  of England  every navigable river within the realm as
far as  the sea  ebbs and  flows is deemed a royal river, and the
fisheries therein  as belonging  to the crown by prerogative, yet
capable of  being granted  to a subject to be held or disposed of

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

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

   4. -  2. Free  fisheries. A  free fishery  is  said  to  be  a
franchise in  the hands  of  a  subject,  existing  by  grant  or
prescription, distinct  from an  ownership in  the soil. It is an
exclusive right, and applies to a public navigable river, without
any right  in the soil. 3 Kent, Com. 329. Mr. Woolrych says, that
sometimes a  free fishery is confounded with a several, sometimes
it is  said to  be synonymous  with common,  and again treated as
distinct from either. Law of Waters, &c. 97.

   5. -  3. Common  of Fishery.  A common  of fishery  is not  an
exclusive right,  but one  enjoyed in  common with  certain other
persons. 3  Kent, Com. 329. A distinction has been made between a
common fishery,  (commune piscarium,)  which  may  mean  for  all
mankind, as  in the  sea, and  a common  of  fishery,  (communium
piscariae,) which  is a  right,  in  common  with  certain  other
persons, in  a particular  stream. 8  Taunt. R.  183. Mr.  Angell

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seems to  think that  common of  fishery and  free  fishery,  are
convertible terms, Law of Water Courses, c. 6., s. 3, 4.

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

  TO FIX. To render liable.

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

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

   2. Questions frequently arise as to whether fixtures are to be
considered real  estate, or  a part  of the freehold;  or whether
they are  to be treated as personal property. To decide these, it
is proper  to consider  the mode  of annexation,  the object  and
customary use  of the  thing, and the character of the contending

   3. - 1. The annexation may be actual or constructive;  1st. By
actual connexation  or annexation  is understood  every  mode  by
which a  chattel can  be joined  or united  to the  freehold. The
article must  not however  be laid  upon the  ground;  it must be
fastened, fixed  or set into the land, or into some such erection
as is  unquestionably a  part of  the realty.  Bull. N. P. 34;  8
East, R.  38;  9 East, R. 215;  1 Tauut. 21;  Pothier, Traite des

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Choses, §1.  Looks, iron  stoves set  in brick-work,  posts,  and
window blinds,  afford examples of actual annexation. See 5 Rayw.
109;   20 John.  29;   1 Harr.  and John. 289;  a M'chrd, 553;  9
Conn. 63;  1 Miss. 508, 620;  7 Mass. 432;  15 159;  3 Stew. 314.
2d. Some  things have been held to be parcel of the realty, which
are not  in a  real sense  annexed, fixed,  or  fastened  to  the
freehold;   for example,  deeds or  chattels which  relate to the
title of  the, inheritance,  go to  the heir;   Shep. Touch. 469;
but loose,  movable machinery, not attached nor affixed, which is
used in  prosecuting  any  business  to  which  the  freehold  is
adapted, is  not considered as part of the real estate, nor as an
appurtenance to  it. 12  New H. Rep. 205. See, however, 2 Watts,&
S. 116,  390. It is also laid down that deer in a park, fish in a
pond, and  doves in  a dove-house,  go to the heir and not to the
executor, being  with keys and heir-looms, constructively annexed
to the  inheritance. Shepb.  Touchs. 90;    Pothier,  Traite  des
Choses, §1.

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

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

   6. -  lst. When the question as to fixtures arises between the
executor and  the heir.  The rule,  as between  these persons has
retained much  of its  original  strictness,  that  the  fixtures
belong to  the real  estate, or  the heir  i but  if the ancestor
manifested  an   intention,  which   is  to   be  inferred   from
circumstances, that  the things  affixed should  be considered as
personally, they  must be  so considered,  and will belong to the
executor. See  Bac. Abr.  Executors and  Administrators;   2 Str.
1141;  1 P. Wms. 94 Bull. N. P. 34.

   7. 2d.  As between  vendor and  vendee. The  rule is as strict
between these  persons as between the executor and the heir;  and
fixtures erected  by the  vendor for  the purpose  of  trade  and
manufactures, as pot-ash kettles for manufacturing ashes, pass to
the vendee  of the  land. 6  Cowen, R.  663;   20 Johns.  R.  29.
Between mortgagor and mortgagee, the rule seems to be the same as
that between  vendor and  vendee. Amos  & F.  on Fixt.  188;  1 5
Mass. R. 1 5 9;  1 Atk. 477 16 Verm. 124;  12 N. H. Rep. 205.

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

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

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

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

  12. The time for exercising the right of removal of fixtures is
a matter  of importance a tenant for years may remove them at any
time before  he gives up the possession of the premises, although
it should  be after his term has expired, and he is holding over.
1 Barn.  & Cres.  79, 2  East, 88.  Tenants for  life or at will,
having  uncertain,   interests  in   the  land,  may,  after  the
determination of  their estates,  not  occasioned  by  their  own
faults, have  a reasonable  time within  which  to  remove  their
fixtures. Hence  their right  to bring an action for them. 3 Atk.
13.  In   case  of   their  death   the  right  passes  to  their

   See, generally,  Vin. Abr.  Landlord and Tenant, A;  Bac. Abr.
Executors, &c.  H 3;   Com.  Dig. Biens, B and C;  2 Chitty's Bl.
281, n.  23 Pothier,  Traite des  Choses;  4 Co. 63, 64 Co. Litt.
53, a,  and note  5, by  Hargr.;  Moore, 177;  Hob. 234;  3 Salk.
368;  1 P. Wins. 94;  1 Atk. 553;  2 Vern. 508;  3 Atk. 13;  1 H.
Bl. 259,  n Ambl.  113;  2 Str. 1141;  3 Esp. 11;  2 East, 88;  3
East, 38;  9 East, 215;  3 Johns. R. 468;  7 Mass. 432;  6 Cowen,
665;  2 Kent, Com. 280;  Ham., Part. 182;  Jurist, No. 19, p. 53;
Arch. L. & T. 359;  Bouv. Inst. Index, h. t.

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

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

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

   FLAGRANS CRIMEN.  This, among  the Romans,  signified. that  a
crime was  then or  had just  been committed  for example, when a
crime has just been committed and the corpus delictum is publicly
exposed;   or if  a mob take place;  or if a house be feloniously
burned, these are severally flagrans crimen.

   2. The  term used  in France  is flagrant  delit. The  code of
criminal instruction  gives the  following concise  definition of
it, art.  "Le delit qui se commet actuellement ou qui vient de se
coramettre, est un flagrant delit."

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

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

   FLETA. The title of an ancient law book, supposed to have been
written by  a judge  who was  confined in the Fleet prison. It is
written in Latin, and is divided into six books. The author lived
in the reigns of Ed. II. and Ed. III. See lib. 2, cap. 66, § Item
quod nullus;   lib.  1, cap.  20, §  qui coeperunt, pref. to 10th
Rep. Edward  II. was crowned, A. D. 1306. Edward III. was crowned
1326, and reigned till A. D. 1377. During this period the English
law was  greatly improved,  and the  lawyers and judges were very
learned. Hale's  Hist. C. L. 173. Blackstone 4 Com. 427, says, of
this work,  "that it  was  for  the  most  part  law,  until  the
alteration of  tenures took place." The same remark he applies to
Britton and Hingham.

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

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

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

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

         Bouvier's Law Dictionary : F1 : Page 41 of 77

and House  of Representatives  of the State of Florida in General
Assembly convened."

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

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

   6. -  4.  Each  house,  during  the  session,  may  punish  by
imprisonment, any  person not  a  member,  for  disrespectful  or
disorderly behaviour  in its  presence, or for obstructing any of
its proceedings,  provided such  imprisonment  shall  not  extend
beyond the end of the session.
 7.  - 5. Each house shall keep a journal of its proceedings, and
cause the same to be published immediately after its adjournment,
and the  yeas and  nays of,  the members  of each  house shall be
taken, and  entered upon  the journals, upon the final passage of
every bill,  and may,  by any  two members,  be required upon any
other question, and any member of either house shall have liberty
to dissent  from, or protest against, any act or resolution which
he may  think injurious to the public, or an individual, and have
the reasons of his dissent entered on the journal.

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

   9. - 7. The general assembly shall make provision, by law, for
filling vacancies  that may  occur in either house, by the death,
resignation, (or otherwise,) of any of its members.

   10. - 8. The doors of each house shall be open, except on such
occasions as,  in the opinion of the house, the public safety may
imperiously require secrecy.

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

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

         Bouvier's Law Dictionary : F1 : Page 42 of 77

   13. -  11. Each  member of  the general assembly shall receive
from the  public treasury  such compensation  for his services,as
may be  fixed by  law, but no increase of compensation shall take
effect during the term for which the representatives were elected
when such law passed.

  14. - 12. The sessions of the general assembly shall be annual,
and commence on the fourth Monday in November in each year, or at
such other time as may be prescribed by law.

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

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

  17. - 2d. No man shall be a senator unless be be a white man, a
citizen of  the United  States, and shall have been an inhabitant
of Florida  two years  next preceding  his election, and the last
year thereof  a resident  of the  district or county for which he
shall be  chosen, and  shall have attained the age of twenty-five
years. Const.  art. 4,  s. 5. And to this there are the following

   All banking  officers of  any bank in the state are ineligible
until after twelve-months after they shall go out of such office.
Art. 6, 3.

   All persons  who shall  fight, or  send, or accept a duel, the
probable issue of which may be death, whether committed in or out
of the state. Art. 6, s. 5.

  All collectors or holders of public money. Art. 6, s. 6.

  All ministers of the Gospel. Art. 6, s. 1 0.

  All persons who shall have procured their elections by bribery.

   All members of congress, or persons holding or exercising any,
office of  profit under  the United  States, or  under a  foreign
power. Art. 6, s. 18.

   18. -  3d. The number of senators may be varied by the general
assembly, but  it shall  never be less. than one-fourth, nor more
than  one-half   of  the   whole   number   of   the   house   of
representatives. Art. 9, s. 2.

   19. - 4th. The time and place of their election is the same as
those for the house of representatives. Art. 4, s. 5.

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

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

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

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

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

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

   26. - 5th. Members of the house of representatives are elected
for one  year from  the day  of the  commencement of  the general
election, and no longer. Art. 4, s. 2.

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

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

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

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

   32. - §3. Of the judicial department. 1. The judicial power of

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

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

   34. -  3. The judges of the circuit courts shall, at the first
session.  of   the  general  assembly  to  be  holden  under  the
constitution, be  elected for  the term  of five  years and shall
hold their  office, for  that term,  unless sooner removed, under
the provisions  in the  constitution;   and at  the expiration of
five years, the justices of the supreme courts, and the judges of
the circuit  courts, shall be elected for the term of, and during
their good behaviour.

   35. Of  the supreme  court. 1. The powers of the supreme court
are vested  in, and  its duties  performed by,  the judges of the
several circuit  courts, and  they, or  a majority of them, shall
hold such  session of  the supreme  court, and  at such  time and
place as  may be directed by law. Art. 5, s. 3. But no justice of
the supreme  court shall  sit as  judge, or  take any part in the
appellate court,  on the trial or hearing of any case which shall
have been decided by him in the court below. Art. 5, s. 18.

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

     37.  -   3.  The  supreme  court  shall  exercise  appellate
jurisdiction in all cases brought by appeal or writ of error from
the several  circuit  courts,  when  the  matter  in  controversy
exceeds in amount or value fifty dollars.

   38. Of  the circuit courts. 1. The state is to be divided into
circuits, and  the circuit  courts, held  within  such  circuits,
shall have  original  jurisdiction  in  all  matters,  civil  and
criminal, within  the  state,  not  otherwise  excepted  in  this
constitution. Art. 5, s. 6.

   FLORIN. The  name of  a foreign  coin. In  all computations of
customs, the  florin of  the southern states of Germany, shall be
estimated at forty cents;  the florin of the Austrian empire, and
of the  city of  Augshurg, at forty-eight and one-half cents. Act
March 22,  1846. The florin of the United Netherlands is computed
at the  rate of  forty cents.  Act of  March 2,  1799, §61.  Vide
Foreign Coins.

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

  FLUMEN, civ. law. The name of a servitude which consists in the
right of  turning  the  rain  water,  gathered  in  a  spout,  on
another's land.,  Ersk. Inst.  B. 2, t. 9, n. 9. Vicat, ad vocem.
See Stillicidium.

  FOEDUS. A league;  a compact.

  FOENUS NAUTICUS . The name given to marine interest. (q. V.)

   2. The  amount of such interest is not limited by law, because
the lender runs the risk of losing, his principal. Ersk. Inst. B.
4, t. 4, n. 76. See Marine Interest.

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

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

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

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

|              |     Beck.      |  Maygrier.    |    Beck.      |
Maygrier.    |
|          |             Length.            |             Weight.
|30 days.  |3 to 5 lines.   |10 to 12 lines.|               |9 to
10 grains.|
| 2 Months |2 inches.          |4 inches.      |2 ounces.      |5
drachms.     |
| 3     do.  |3 inches.      |6 inches.      |2 to 3 ounces. |2
ounces.     |
| 4   do.  |5 to 6 inches.  |8 inches.      |4 to 6 ounces. |7 to
8 ounces. |
| 5     do.  |7 to 9 inches.  |10 inches.     |9 to 10 ounces.|16
ounces.     |
| 6     do.   |9 to 12 inches. |12 inches.     |1 to 2 pounds. |2
pounds.      |
| 7     do.   |12 to 14 inches.|14 inches.     |2 to 3 pounds. |3
pounds.      |
| 8     do.   |16 inches.      |16 inches.     |3 to 4 pounds. |4
pounds.      |

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   3. The  discordance apparent  between  them  proves  that  the
observations which  have been  made, are only an approximation to

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

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

   FOLD-COURSE, Eng.  law. By this phrase is understood land used
as a  sheepwalk;   it also signifies land to which the sole right
of folding  the cattle  of others  is appurtenant;   sometimes it
means merely such right of folding. It is also used to denote the
right of  folding on  another's  land,  which  is  called  common
foldage. Co.  Litt. 6  a, note  1;   W. Jo. 375 Cro. Cal. 432;  2
Vent. 139.

   FOLK-LAND, Eng. law. Land formerly held at the pleasure of the
lord, and  resumed at his discretion. It was held in villenage. 2
Bl. Com. 90.

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   FOOT. A  measure of length, containing one-third of a yard, or
twelve  inches.   See  Ell.   Figuratively,  it   signifies   the
conclusion, the  end;   as, the foot of the fine, the foot of the

   FOOT OF THE FINE, estates, conveyancing. The fifth part of the
conclusion of  a fine. It includes the whole matter, reciting the
names of  the parties,  day, year,  and place, and before whom it
was acknowledged or levied. 2 Bl. Com. 351.

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

   FORBEARANCE, contracts.  The act by which a creditor waits for
the payment  of the  debt due  him by  the debtor,  after it  has
become due.

  2. When the creditor agrees to forbear with his debtor, this is
a sufficient  consideration to  support an  assumpsit made by the
debtor. 4  John. R. 237;  2. Nott & McCord, 133;  2 Binn. R. 510;
Com. Dig.  Action upon  the case upon assumpsit, B 1;  Dane's Ab.
Index, h.  t.;  1 Leigh's N. P. 31;  1 Penna. R. 385;  4 Wash. C.
C. R. 148;  5 Rawle's R. 69.

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

  1. Actual;  or 2. Implied.

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

   3. -  §2. The  entry into  the ground  of another, without his
consent, is  breaking his  close, for  force is  implied in every
trespass quare  clausum fregit.  1 Salk.  641;  Co. Litt. 257, b;
161, b;   162,  a;  1 Saund: 81, 140, n. 4 8 T: R. 78, 358;  Bac.
Ab. Trespass;   this  Dict. tit.  Close. In  the  case  of  false
imprisonment, force  is implied.  1 N.  R. 255. And the same rule
prevails where  a wife,  a daughter or servant, have been enticed
away or  debauched,  though  in  fact  they  consented,  the  law
considering them  incapable of consenting. See 3 Wils. 18;  Fitz.
N. B. 89, 0;  5 T. R. 361;  6 East, 387;  2 N. R. 365, 454.

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   4. In  general, a  mere nonfeasance  cannot be  considered  as
forcible;   for where  there has  been no  act, there  cannot  be
force, as  in the  case of the mere detention of goods without an
unlawful taking.  2 Saund.  47, k  1. In  general,  by  force  is
understood unlawful  violence. Co.  Litt. 161,  b.;   Bouv. Inst.
Index, h. t. Vide Arms.

  FORCE AND ARMS. The same as vi et armis. (q. v.)

   FORCED HEIRS.  In Louisiana  they are  those persons  whom the
testator or  donor cannot  deprive of  the porttion of his estate
reserved for  them by  law, except  in cases  where he has a just
cause to  disinherit them.  Civ. Code of Lo. art. 1482. As to the
portion of  the estate  they are  entitled to,  see  the  article
Legitime. As to the causes for which forced heirs may be deprived
of this right, see Disinherison.

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

   2. The  proceedings in case of forcible entry or detainer, are
regulated by  statute in the several states. ( q. v.) The offence
is generally  punished by indictment. 4 Bl. Com. 148 Russ. on Cr.
283. A  forcible entry  and a  forcible  detainer,  are  distinct
offences. 1 Serg. & Rawle, 124;  8 Cowen, 226.

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

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

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

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

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

   FOREHAND RENT,  Eng. law. A species of rent which is a premium
given by  the tenant  at the  time of taking the lease, as on the
renewal  of  leases  by  ecclesiastical  corporations,  which  is
considered in  the nature of an improved rent. 1 T. R. 486;  3 T.
R. 461;  3 Atk. 473;  Crabb. on R. P. §155.

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

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

  3. But the reciprocal relations between the national government
and the  several states  composing  the  United  States  are  not
considered as  foreign, but domestic. 9 Pet. 607;  5 Pet. 398;  6
Pet. 317;  4 Cranch, 384;  4 Gill & John. 1, 63. Vide Attachment,
for foreign  attachment;   Bill of exchange, for foreign bills of
exchange;   Foreign Coins;   Foreign  Judgment;    Foreign  Laws;
 FOREIGN  ATTACHMENT. The  name of a writ. By virtue of a foreign
attachment, the  property of  an absent  debtor is seised for the
purpose of  compelling an appearance, and, in default of that, to
pay the claim of the plaintiff. Vide Attachment.

  FOREIGN COINS, com. law. The money of foreign nations.

   2. Congress  have, from  time to  time, regulated the rates at
which certain  foreign coins  should pass.  The acts now in force
are the following.

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   3. The  act of June 25, 1834, 4 Shaisw. Cont. of Story's L. U.
S. 2373,  enacts, sec. 1. That from and after the passage of this
act, the  following silver  coins shall be of the legal value and
shall pass  current as  money within  the United States, by tale,
for the  payment of  all debts  and demands,  at the  rate of one
hundred cents  the dollar, that is to say, the dollars of Mexico,
Peru, Chili,.and  Central America,  of not  less weight than four
hundred and  fifteen grains  each, and those re-stamped in Brazil
of the like weight, of not less fineness than ten ounces, fifteen
pennyweights of  pure silver,  in the troy pound of twelve ounces
of standard silver;  and five franc pieces of France, when of not
less fineness  than ten ounces and sixteen pennyweights in twelve
ounces troy weight of standard silver, and weighing not less than
three hundred  and  eighty-four  grains  each,  at  the  rate  of
ninety-three cents each.

   4. The  act of June 28, 1834, 4 Sharsw. Cont. of Story's L. U.
S, 2377, enacts) sect. 1. That from and after the thirtyfirst day
of July  next, the  following gold  coins shall  pass current  as
money  within  the  United  States,  and  be  receivable  in  all
payments, by weight, for the payment of all debts and demands, at
the rates  following, that  is to  say: the  gold coins  of Great
Britain and  Portugal and  Brazil, of  not less  than twenty-two,
carats fine, at the rate of ninety-four cents and eight-tenths of
a cent  per pennyweight;   the  gold coins  of France nine-tenths
fine, at  the rate  of ninety-three cents and one-tenth of a cent
per pennyweight;   and  the gold  coins  of  Spain,  Mexico,  and
Colombia, of  the fineness  of twenty  carats three.  grains  and
seven-sixteenths, of  a grain, at the rates of eighty-nine events
and nine-tenths of a cent per pennyweight.

  5. By the act of. March 3, 1823, 3 Story's L. U. S. 1923, it is
enacted, sect.  1. That  from and  after the passage of this act,
the following  gold coins  shall be  received in  all payments on
account of  public lands,  at the  several and  respective  rates
following, and  not otherwise,  viz.: the  gold  coins  of  Great
Britain and  Portugal, and of their present standard, at the rate
of  one   hundred  cents   for  every   twenty-seven  grains,  or
eighty-eight cents  and eight-ninths  per pennyweight;   the gold
coins of  France of  their present  standard,  at the rate of one
hundred cents  for every  twenty-seven  and  a  half  grains,  or
eighty-seven and  a quarter  cents per pennyweight;  and the gold
coins of  Spain of  their present  standard, at  the rate  of one
hundred cents  for every  twenty-eight  and  a  half  grains  or,
eighty-four cents per pennyweight.

   6. The  act of  March 2,  1 799,  1 Story's  L. U.  S. 573, to
regulate the  collection of  duties on imports and tonnage, sect.
61, p. 626, enacts, That the ad valorem rates of duty upon goods,
wares, and  merchandise, at  the place  of importation,  shall be
estimated by  adding twenty per cent to the actual costs thereof,
if imported  from the Cape of Good Hope, or from any place beyond
the same;   and  ten per  cent. on  the actual  cost thereof,  if
imported from  any other place or country, including all charges;
commissions, outside packages, and insurance, only excepted. That
all foreign  coins and  currencies  shall  be  estimated  at  the
following rates;   each  pound sterling of Great Britain, at four

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dollars and  forty-four cents;  each livre tournois of France, at
eighteen and a half cents;  each florin, or guilder of the United
Netherlands, at  forty cents;   each  marc-banco of  Hamburg,  at
thirty-three and one-third cents;  each rix dollar of Denmark, at
one hundred cents: each rial of plate, and each rial o vellon, of
Spain, the  former at  ten cents, the latter at five cents, each;
each milree  of Portugal,  at one  dollar and  twenty-four cents;
each pound  sterling of  Ireland, at  four dollars and ten cents;
each tale  o China,  at one  dollar and  forty-eight cents;  each
pagoda of  India, at  one dollar  and ninety  four cents;    each
rupee, of  Bengal, at  fifty-five cents  and one  half;   and all
other denominations of money, in value as nearly as may be to the
said rates,  or the  intrinsic value thereof, compared with money
of the  United States:  Provided, that it shall be lawful for the
president of the United States to cause to be established fit and
proper regulations for estimating the duties on goods, wares, and
merchandise, imported into the United States, in respect to which
the original  cost shall  be exhibited in a depreciated currency,
issued and circulated under authority of any foreign government.

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

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

   9. And  the act  of May 22, 1846, further directs, That in all
computations at  the custom-house, the foreign coins and money of
account herein  specified shall  be estimated as follows, to wit:
The specie  dollar of  Sweden and  Norway, at one hundred and six
cents. The  specie dollar  of Denmark,  at one  hundred and  five
cents. The  thaler of  Prussia and  of  the  Northern  States  of
Germany, at  sixty-nine cents.  The florin of the Southern States
of Germany,  at forty  cents. The  florin of the Austrian empire,
and of  the city  of Augshurg, at forty-eight and one half cents.

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The lira  of the  Lombardo-Venetian  Kingdom,  and  the  lira  of
Tuscany, at  sixteen cents.  The franc of France, and of Belgium,
and the  lira of Sardinia, at eighteen cents six mills. The ducat
of Naples, at eighteen cents. The ounce of Sicily, at two dollars
and forty  cents. The  pound of  the British  provinces  of  Nova
Scotia, New Brunswick, Newfoundland, and Canada, at four dollars.
And all laws inconsistent with this act are hereby repealed.

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

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

   3. The  subject will  be considered  with regard,  1st. To the
manner of proving such judgment;  and 2d. Its efficacy.

   4. -  1. Foreign  judgments are authenticated in various ways;
1. By  an exemplification,  certified under the great seal of the
state or country where it was rendered. 2. By a copy proved to be
a true  copy. 3.  By the  certificate of an officer authorized by
law, which certificate must, itself, be properly authenticated. 2
Cranch, 238;   2 Caines' R. 155;  5 Cranch, 335;  7 Johns. R. 514
Mass. R.  273 2  Munf. R.  43 4  Camp. R.  28 2 Russ. on Cr. 723.
There is  a difference  between the judgments of courts of common
law jurisdiction and courts of admiralty, as to the mode of proof
of judgments  rendered by them. Courts of admiralty are under the
law of  nations;  certificates of such judgments with their seals
affixed, will  therefore be  admitted in evidence without further
proof. 5 Cranch, 335;  3 Conn. R. 171.

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

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

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

   2. -  l. The  courts do  not judicially take notice of foreign
laws, and  they must  therefore be proved as facts. Cowp. 144;  3
Esp. C.  163 3 Campb. R. 166;  2 Dow & Clark's R. 171;  1 Cranch,
38;  2 Cranch, 187, 236, 237;  6 Cranch, 274;  2 Harr. & John. R.
193;   3 Gill  & John. R. 234;  4 Conn. R. 517;  4 Cowen, R. 515,

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516, note;   Pet. C. C. R. 229;  8 Mass. R. 99;  1 Paige's R. 220
10 Watts,  R. 158.  The  manner  of  proof  varies  according  to
circumstances. As  a general  rule the best testimony or proof is
required, for no proof will be received which pre-supposes better
testimony attainable  by the  party iybo offers it. When the best
testimony  cannot   be  obtained,   secondary  evidence  will  be
received. 2 Cranch, 237.

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

   4. When  our own  government has  promulgated a foreign law or
ordinance  of   a  public  nature  as  authentic,  that  is  held
sufficient evidence  of its  existence. 1 Cranch, 38 1 Dall. 462;
6 Binn. 321 12 Serg. & Rawle, 203.

   5. When  foreign laws  cannot be proved by some mode which the
law respects  as being  of equal authority to an  oath, they must
be verified by the sanction of an oath.

     6.  The  usual  modes  of  authenticating  them  are  by  an
exemplification under  the great  seal of  a state;  or by a copy
proved by  oath to  be a  true copy  - or  by a certificate of an
officer  authorized   by  law,   which  must,   itself,  be  duly
authenticated. 2  Cranch, 238;   2  Wend. 411;   6  Wend. 475;  5
Serg. &. Rawle, 523;  15 Serg. & Rawle, 84: 2 Wash. C. C. R. 175.

   7. Foreign  unwritten laws, customs and usages, may be proved,
and are  ordinarily proved  by parol  evidence;   and  when  such
evidence is objected to on the ground that the law in question is
a written  law, the party objecting must show that fact. 15 Serg.
& R.  87;   2 L.  R. 154.  Proof of such unwritten law is usually
made by  the testimony  of witnesses  learned  in  the  law,  and
competent to  state it  correctly under  oath. 2  Cranch, 237;  1
Pet. C.  C. R.  225;  2 Wash. C. C. R. 175;  15 Serg. & R. 84;  4
John. Ch. R. 520;  Cowp. 174;  2 Hagg. R. App. 15 to 144.

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

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

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

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

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   12. The  mode of  authenticating the  laws and  records of the
several states  of the  American Union,  is peculiar, and will be
found under the article Authentication. It may hereby be observed
that the  rules prescribed  by acts  of congress  do not  exclude
every other  mode of  authentication, and  that  the  courts  may
admit, proof  of the  acts of  the legislatures  of the  several,
states, although  not authenticated  under the  acts of congress.
Accordingly a  printed volume,  purporting on its face to contain
the laws  of a  sister, state,  is  admissible,  as  prima  facie
evidence;  to prove the statute law of that state. 4 Cranch, 384;
12 S. & R. 203;  6 Binn, 321;  5 Leigh, 571.

   13. -  2. The  effect of  such foreign  laws, when  proved, is
properly referable  to the  court;   the object  of the  proof of
foreign laws, is to enable the ourt to instruct the jury what is,
in point  of law,  the result from foreign laws, to be applied to
the matters  in controversy  before them. The court are therefore
to decide  what is  the proper  evidence of the laws of a foreign
country;  and when evidence is given of those laws, the court are
to judge  of their  applicability to  the matter in issue. Story,
Cont. of  L. §638  2 Harr.  & John. 193. 219;  4 Conn. R. 517;  3
Harr. & John. 234, 242;  Cowp. 174. Vide Opinion.

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

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

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

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

   FOREJUDGED THE  COURT. An officer of the court who is expelled
the same,  is, in  the English  law, said  to be  forejudged  the
court. Cunn. Dict. h. 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 under  the king's  protection, for  the peaceable living
and abiding of beasts of hunting and the chase, and distinguished
not only  by having  bounds and  privileges, but  also by  having
courts and offices. 12 do. 22. The signification of forest in the
United States  is the  popular  one  of  an  extensive  piece  of
woodland. Vide Purlieu.

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   FORTSTALLING, crim.  law. Every  practice or  device, by  act,
conspiracy, words,  or news,  to enhance the price of victuals or
other provisions. 3 Inst. 196;  Bac. Ab. h. t.;  1 Russ. Cr. 169;
4 Bl. Com. 158.

   2. All  endeavors whatever  to enhance the common price of any
merchandise, and all kinds of practices which have that tendency,
whether by  spreading false  rumors, or buying things in a market
before the  accustomed hour, are offences at common law, and come
under the  notion of  forestalling, which  includes all  kind  of
offences of  this nature.  Hawk. P. C. b. 1 c. 8 0, s. 1. Vide 13
Vin. Ab.  430;  Dane's Ab. Index, h. t.;  4 Com. Dig. 391 1 East,
Rep. 132.

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

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

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

   4. -  2. Forfeiture by alienation. By the English law, estates
less than  a fee  may be  forfeited to  the party entitled to the
residuary interest  by a  breach of  duty in  the  owner  of  the
particular estate. When a tenant for life or years, therefore, by
feoffment, fine, or recovery, conveys a greater estate than he is
by law  entitled to do, he forfeits his estate to the person next
entitled in  remainder or  reversion. 2  Bl. Com.  274.  In  this
country, such  forfeitures are  almost unknown, and the more just
principle prevails,  that the  conveyance by  the tenant operates
only on  the interest which he possessed, and does not affect the
remainder-man or  reversioner. 4 Kent, Com. 81, 82, 424;  1 Hill.
Ab. c. 4, s. 25 to 34;  3 Dall. Rep. 486;  5 Ohio, R. 30.

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   5. - 3. Forfieture by non-performance of conditions. An estate
may be  forfeited by  a breach, or non-performance of a condition
annexed to  the estate,  either expressed  in  the  deed  at  its
original creation,  or impliedly  by law,  from  a  principle  of
natural reason.  2 Bl.  Com. 281;   and see Ad Eject. 140 to 173.
Vide article Reentry;  12 Serg. & Rawle, 190.

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

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

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

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

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

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

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

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

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

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

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

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

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

  9. Though, in general, a party cannot be guilty of forgery by a
mere  non-feasance,   yet,  if  in  drawing  a  will,  he  should
fraudulently omit a legacy, which he had been directed to insert,
and by  the omission  of such  bequest, it would cause a material
alteration in  the limitation of a bequest to another;  as, where
the omission  of a  devise of an estate for life to one, causes a

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devise of  the same  lands to  another to  pass a  present estate
which would otherwise have passed a remainder only, it would be a
forgery. Moor,  760;  Noy, 101;  1 Hawk. c. 70, s. 6;  2 East, P.
C. 856;  2 Russ. on Cr. 320.

   10. It  may be  observed, that  the offence  of forgery may be
complete without  a publication of the forged instrument. 2 East,
P. C. 855;  3 Chit. Cr. L. 1038.

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

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

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

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

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

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

  FORM, practice. The model of an instrument or legal-proceeding,
containing the  substance and  the principal terms, to be used in
accordance with  the laws;   or,  it is  the act  of pursuing, in
legal proceedings,  and in the construction of legal instruments,
the  order   required  by   law.   Form   is   usually   put   in
contradistinction to  substance. For example, by the operation of
the statute  of 27 Eliz. c. 5, s. 1, all merely formal defects in
pleading,  except   in  dilatory  pleas,  are  aided  on  general

   2. The  difference between  matter  of  form,  and  matter  of
substance, in  general, under  this statute, as laid down by Lord
Hobart, is, that " that without which the right doth sufficiently
appear to  the court,  is form;"  but that any defect " by reason
whereof the  right appears  not," is  a defect in substance. Hob.

  3. A distinction somewhat more definite, is, that if the matter
pleaded be  in itself  insufficient,  without  reference  to  the
manner of  pleading it,  the defect  is substantial;  but that if
the fault  is in the manner of alleging it, the defect is formal.
Dougl. 683.  For example,  the omission  of a  consideration in a
declaration in  assumpsit;   or of the performance of a condition
precedent, when  such condition  exists;    of  a  conversion  of
property of  the plaintiff,  in trover;    of  knowledge  in  the
defendant, in  an action  for mischief done by his dog of malice,
in action  for malicious  prosecution,  and  the  like,  are  all
defects in  substance. On  the other hand, duplicity;  a negative
pregnant;   argumentative pleading;  a special plea, amounting to
the general  issue;   omission of a day, when time is immaterial;
of a  place, in transitory actions, and the like, are only faults
in form. Bac. Ab. Pleas, &c. N 5, 6;  Com. Dig. Pleader, Q 7;  10
Co. 95 a;  2 Str. 694 Gould;  Pl. c. 9, §17, 18;  1 Bl. Com. 142.

  4. At the same time that fastidious objections against trifling
errors of  form, arising  from mere  clerical mistakes,  are  not
encouraged or  sanctioned by  the  courts,  it  has  been  justly
observed, that  "infinite  mischief  has  been  produced  by  the
facility of  the courts  in overlooking  matters  of  form;    it
encourages carelessness,  and places  ignorance too  much upon  a
footing with  knowledge amongst those who practice the drawing of
pleadings." 1  B. &  P. 59;   2  Binn. Rep.  434. See, generally,
Bouv. Inst. Index, h. t.

   FORMA PAUPERIS,  English law. When a person is so poor that he
cannot bear the charges of suing at law or in equity, upon making
oath that he is not worth five pounds, and bringing a certificate
from a  counselor at  law, that  he believes  him to  have a just
cause, he  is permitted to sue informa pauperis, in the manner of

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a pauper;   that  is, he  is allowed  to have  original writs and
subpoenas gratis,  and counsel  assigned him  without fee.  3 Bl.
Com. 400.  See 3  John. Ch. R. 65;  1 Paige, R. 588;  3 Paige, R.
273;  5 Paige, R. 58;  2 Moll. R. 475;  1 Beat. R. 54.

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

   FORMEDON, old  English law.  The writ  of formedon  is  nearly
obsolete, it  having been  superseded by  the writ  of ejectment.
Upon an  alienation of the tenant in tail, by which the estate in
tail is  discontinued, and  the remainder  or reversion is by the
failure, of  the particular  estate, displaced  and turned into a
mere right, the remedy is by action of formedon, (secundum formam
doni,) because  the writ  comprehends the  form of the gift. This
writ is  in the  nature of  a writ  of right,  and the  action of
formedon is  the highest  a tenant in tail can have. This writ is
distinguished into  three species;   a formedon in the descender,
in the remainder, and in the reverter. 8 Bl. Com. 191 Bac. Ab. h.
t.;  4 Mass. 64.

  FORMER RECOVERY. A recovery in a former action.

   2. It  is a general rule, that in a real or personal action, a
judgment unreversed,  whether it  be by  confession,  verdict  or
demurrer, is  a perpetual  bar, and  may be  pleaded to  any  new
action of the same or a like nature, for the same cause. Bac. Ab.
Pleas, I 12, n. 2;  6 Co. 7;  Hob. 4, 5 Ventr. 170.

   3. There  are two exceptions to this general rule. 1. The case
of mutual  dealings between the parties, when the defendant omits
to set  off his  counter demand  in that case he may recover in a
cross action.  2. When  the defendant  in ejectment  neglects  to
bring forward  his title,  he may  avail himself of a new suit. 1
John Cas.  492, 502,  510. It  is evident that in these cases the
cause of the second action is not the same as that of, the first,
and, therefore,  a former  recovery cannot  be pleaded.  In  real
actions, one  is not  a bar  to an, action of a. higher nature. 6
Co. 7. Vide 12 Mass. 337;  Res Judicata;  Thing Adjudged.

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

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

  FORPRISE. Taken before hand. This word is sometimes, though but
seldom, used  in leases and conveyances, implying an exception or
reservation.  Forprise,  in  another  sense,  is  taken  for  any
exaction. Cunn. Dict. h. t.

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   TO FORSWEAR, crim. law, torts. To swear to a falsehood.
   2. This word has not the same meaning as perjury. It does not,
ex vi  termini, signify  a false  swearing before  an officer  or
court having  authority to administer an path, on an issue. A man
may be  forsworn by  making a  false oath  before an  incompetent
tribunal, as  well as before a lawful court. Hence, to say that a
man  is   forsworn,  will   or  will   not  be  slander,  as  the
circumstances show  that the  oath was  or was not taken before a
lawful authority.  Cro. Car.  378;   Lut. 1292;  1 Rolle, Ab. 39,
pl. 7  Bac. Ab. Slander, B 3;  Cro. Eliz. 609 13 Johns. R. 80 Id.
48 12 Mass. 496 1 Johns. R. 505 2 Johns. R. 10;  1 Hayw. R, 116.

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

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

   FORTUITOUS EVENT. A term in the civil law to denote that which
happens by  a cause  which cannot  be resisted. Louis. Code, art.
2522, No.  7. Or  it is  that which  neither of  the parties  has
occasioned, or  could prevent.  Lois des Bat. Pt. 2, c. 2, §1. It
is also  defined to  be  an  unforeseen  event  which  cannot  be
prevented. Dict. de Jurisp. Cas fortuit.

   2. There  is  a  difference  between  a  fortuitous  event  or
inevitable accident,  and  irresistible  force.  By  the  former,
commonly called the act of God, is meant any accident produced by
physical causes,  which are  irresistable;   such as  a  loss  by
lightning or  storms, by  the perils  of the seas, by inundations
and earthquakes,  or by sudden death or illness. By the latter is
meant such  an interposition  of human  agency, as  is, from  its
nature and  power, absolutely  uncontrollable. Of this nature are
losses occasioned  by-the inroads of a hostile army, or by public
enemies. Story on Bailm. §25;  Lois des Bat. Pt. 2, c. 2, §1.

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

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

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

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

  3. By forum res sitae is meant the tribunal which has authority
to decide  respecting something  in dispute,  located within  its
jurisdiction;   therefore, if  the matter in controversy is land,
or other immovable property, the judgment pronounced in the forum
res sitae  is held  to be  of universal  obligation,  as  to  all
matters of  right and  title on  which it professes to decide, in
relation to  such property. And the same principle applies to all
other cases  of proceedings  in rem, where the subject is movable
property, within  the jurisdiction  of the  court pronouncing the
judgment. Story,  Const. Laws,  §§532, 545, 551, 591, 592;  Kaims
on Eq. B. 3, c. 8, s. 4 1 Greenl. Ev. §541.

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

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

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

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

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

  FRACTION. A part of any thing broken. A combination of numbers,
in arithmetic  and algebra,  representing one  or more parts of a

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unit or  integer. Thus,  four-fifths is  a  fraction,  formed  by
dividing a  unit into-five  equal parts, and taking one part four
times. In  law, the  term fraction  is  usually  applied  to  the
division of a day.

   2. In general, there are no fractions in days. Co. Litt. 225 2
Salk. 625;   2 P. A. Browne, 18;  II Mass. 204. But in some cases
a fraction  will be  taken into the account, in order to secure a
party his  rights;   3 Chit. Pr. 111;  8 Ves. 80 4 Campb. R. 197;
2 B.  & Ald.  586;   Savig. Dr.  Rom. §182;   Rob.  Dig. of Engl.
Statutes in  force in Pennsylvania, 431-2 and when it is required
by a special law. Vide article Date.

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

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

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

   2.  Corporations,  or  bodies  politic,  are  the  most  usual
franchises known  to  our  law.  They  have  been  classed  among
incorporeal hereditaments,  perhaps improperly,  as they  have no
inheritable quality.

  3. In England, franchises are very numerous;  they, are said to
be royal  privileges in the hands of a subject. Vide 3 Kent, Com.
366;   2 Bouv. Inst. n. 1686;  Cruise,' Dig. tit. 27;  2 Bl. Com.
37;  15 Serg. & Rawle, 130;  Finch, 164.

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

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

  2. This privilege is granted to various officers, not for their
own special benefit, but with a view to promote the public good.

  3. The Act of the 3d of March, 1845, s. 1, enacts, That members
of congress,  and delegates  from the  territories,  may  receive
letters, not  exceeding two  ounces in  weight, free  of postage,
during the  recess of  congress;    and  the  same  privilege  is
extended to the vice-president of the United States.

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   4.  It  is  enacted,  by  3d  section,  That  all  printed  or
lithographed circulars  and handbills, or advertisements, printed
or lithographed, on quarto post or single cap paper, or paper not
larger than  single cap, folded, directed, and unsealed, shall be
charged with  postage, at  the rate  of two cents for each sheet,
and no  more, whatever be the distance the same may be sent;  and
all pamphlets,  magazines, periodicals,  and every other kind and
description of  printed or  other  matter,  (except  newspapers,)
which shall  be unconnected  with  any  manuscript  communication
whatever, and  which it  is or  may be  lawful to transmit by the
mail of  the United States, shall be charged with postage, at the
rate of  two and  a balf  cents for each copy sent, of no greater
weight than  one ounce,  and one cent additional shall be charged
for each  additional ounce  of the weight of every such pamphlet,
magazine, matter,  or thing, which may be transmitted through the
mail, whatever  be the  distance the  tame may be transported and
any fractional  excess, of not less than one-half of an ounce, in
the weight of any such matter or thing, above one or more ounces,
shall be charged for as if said excess amounted to a full ounce.

   5. And,  by the  8th section,  That each member of the senate,
each member  of the  house of  representatives, and each delegate
from a  territory of  the United  States, the  secretary  of  the
senate, and  the clerk  of the  house, of  representatives,  may,
during each  session of congress, and for a period of thirty days
before the  commencement, and  thirty days  after the end of each
and every session of congress, Bend and receive through the mail,
free of  postage, any letter, newspaper, or packet, not exceeding
two ounces  in weight;  and all postage charged upon any letters,
packages,  petitions  memorials,  or  other  matters  or  things,
received during  any session of congress, by any senator, member,
or  delegate  of  the  house  of  representatives,  touching  his
official or  legislative duties,  by  reason  of  any  excess  of
weight, above  two ounces,  on the  matter or  thing so received,
shall be  paid out  of the  contingent fund of the house of which
the person  receiving the  same may  be a  member. And they shall
have the  right to  frank written  letters from themselves during
the whole year, as now authorized by law.

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

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

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

   §3. That  all members of Congress, delegates from territories,
the vice-president  of the  United States,  the secretary  of the
senate, and the clerk of the house of representatives, shall have
the power  to send  and receive  public documents free of postage
during their  term of  office;   and that  the said  members  and
delegates shall  have  the  power  to  send  and  receive  public

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documents, free  of Postage,  up to  the first Monday of December
following the expiration of their term of office.

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

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

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

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

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

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

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

  FRATER. A brother. Vide Brother.

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

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

   2. Illustrations.  1. Every  appropriation  of  the  right  of
property of  another is  not fraud. It must be unlawful;  that is
to say,  such an  appropriation  as  is  not  permitted  by  law.
Property loaned may, during the time of the loan, be appropriated
to the  use of  the borrower.  This is  not fraud,  because it is
permitted by law. 2. The appropriation must be not only unlawful,
but it must be made with a knowledge that the property belongs to
another, and  with a  design to  deprive him  of the  same. It is
unlawful to take the property of another;  but if it be done with

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a design  of preserving  it for  the owners, or if it be taken by
mistake, it  is not done designedly or knowingly, and, therefore,
does not come within the definition of fraud. 3. Every species of
unlawful appropriation,  not made  with a criminal intent, enters
into this definition, when designedly made, with a knowledge that
the property  is another's;   therefore,  such an  appropriation,
intended either for the use of another, or for the benefit of the
offender himself,  is comprehended by the term. 4. Fraud, however
immoral or illegal, is not in itself a crime or offence, for want
of a  criminal intent. It only becomes such in the cases provided
by law. Liv. System of Penal Law, 789.

   FRAUD, contracts, torts. Any trick or artifice employed by one
person to  induce another to fall into an error, or to detain him
in it, so that he may make an agreement contrary to his interest.
The fraud  may consist  either, first,  in the misrepresentation,
or, secondly, in the concealment of a material fact. Fraud, force
and vexation, are odious in law.  Booth, Real Actions, 250. Fraud
gives no  action, however,  without damage;   3 T. R. 56;  and in
matters of  contract it  is merely  a defence;   it cannot in any
case constitute  a new  contract. 7 Vez. 211;  2 Miles' Rep. 229.
It is essentially ad hominem. 4 T. R. 337-8.

   2. Fraud  avoids a  contract,  ab initio, both  at law  and in
equity, whether  the object  be to  deceive the  public, or third
persons, or  one party  endeavor thereby  to cheat  the other.  1
Fonb. Tr.  Equity, 3d  ed. 66,  note;   6th ed.  122, and  notes;
Newl. Cont.  352;   1 Bl. R. 465;  Dougl. Rep. 450;  3 Burr. Rep.
1909;   3 V.  & B.  Rep. 42;  3 Chit. Com. Law, 155, 806, 698;  1
Sch. &  Lef. 209;  Verpl. Contracts, passim;  Domat, Lois Civ. p.
1, 1. 4, t. 6, s. 8, n. 2.

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

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

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

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   6. By  constructive fraud  is meant  such a  contract or  act,
which, though  not originating  in  any  actual  evil  design  or
contrivance to  perpetrate a  positive fraud or injury upon other
persons, yet,  by its tendency to deceive or mislead  them, or to
violate private  or public confidence, or to impair or injure the
public interests,  is deemed  equally reprehensible with positive
fraud, and,  therefore, is  prohibited by law, as within the same
reason and  mischief as  contracts  and  acts  done  malo  animo.
Constructive frauds are such as are either against public policy,
in violation  of some  special confidence  or trust,  or  operate
substantially as a fraud upon private right's, interests, duties,
or intentions  of third persons;  or unconscientiously compromit,
or injuriously affect, the private interests, rights or duties of
the parties themselves. 1 Story, Eq. ch. 7, §258 to 440.

  7. The civilians divide frauds into positive, which consists in
doing one's self, or causing another to do, such things as induce
a belief  of the  truth of what does not exist or negative, which
consists in  doing or  dis-simulating certain things, in order to
induce the  opposite party.  into error,  or to retain him there.
The intention  to deceive,  which is the characteristic of fraud,
is here  present. Fraud  is also  divided  into  that  which  has
induced  the   contract,  dolus   dans  causum   contractui,  and
incidental or accidental fraud. The former is that which has been
the cause  or determining  motive of  the contract,  that without
which the  party defrauded  would not  have contracted,  when the
artifices practised  by one of the parties have been such that it
is evident,  without them,  the other  would not have contracted.
Incidental or  accidental  fraud  is  that  by  which  a  person,
otherwise determined to contract, is deceived on some accessories
or incidents  of the contract;  for example, as to the quality of
the object  of the  contract, or its price, so that he has made a
bad  bargain.   Accidental  fraud  does  not,  according  to  the
civilians, avoid  the contract,  but simply subjects the party to
damages. It is otherwise where the fraud has been the determining
cause of  the contract,  qui causam  dedit contractui;   in  that
case. the  contract is void. Toull. Dr. Civ. Fr. Liv. 3, t. 3, c.
2, n.  §5, n.  86, et  seq. See also 1 Malleville, Analyse de la,
Discusssion de  Code Civil, pp. 15, 16;  Bouv. Inst. Index, h. t.
Vide Catching bargain;  Lesion;  Voluntary Conveyance.

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

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

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

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

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

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

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

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

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

  FREE WARREN, Eng. law. A franchise erected for the preservation
and custody  of beasts  and fowls  of warren. 2 Bl. Com. 39;  Co.
Litt. 233.

   FREEDMEN. The  name formerly  given by  the  Romans  to  those
persons who  had been  released from  a State  of servitude. Vide
Liberti libertini.

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

   FREEHOLD, estates. An estate of freehold is an estate in lands
or other  real property,  held by  a free tenure, for the life of
the tenant  or that  of some other person;  or for some uncertain
period.  It is  called  liberum  tenementum,  frank  tenement  or
freehold;   it was  formerly described  to be  such an  estate as
could only be created by livery of seisin,  a ceremony similar to

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the investiture of the feudal law.  But since the introduction of
certain modern conveyances, by which an estate of freehold may be
created  without  livery  of  seisin,  this  description  is  not

   2. There  are  two  qualities  essentially  requisite  to  the
existence of  a  freehold  estate.  1. Immobility;  that is,  the
subject-matter must  either be land, or some interest issuing out
of  or  annexed to land.  2.  A  sufficient  legal  indeterminate
duration;   for if  the utmost  period of time to which an estate
can last,  is fixed  and determined,  it  is  not  an  estate  of
freehold.  For example, if  lands are  conveyed to  a man and his
heirs, or  for his  life, or for the life of another, or until he
shall be  married, or go to Europe, he has an estate of freehold;
but if  such lands  are limited  to a man for one hundred or five
hundred years,  if he shall so long live, he has not an estate of
freehold.  Cruise on Real Property t.  1,  s. 13, 14 and 15 Litt.
59;  1 Inst. 42,
 a;   5  Mass. R.  419;  4 Kent, Com. 23;  2 Bouv. Inst. 1690, et
seq.  Freehold  estates are of inheritance or not of inheritance.
Cruise, t. 1, s. 42.

  FREEHOLDER. A person who is the owner of a freehold estate.

   FREEMAN. One  who is  in the  enjoyment of  the  right  to  do
whatever he  pleases, not forbidden by law. One in the possession
of the  civil rights  enjoyed by,  the people  generally. 1 Bouv.
Inst. n. 164. See 6 Watts, 556:

  FREIGHT, mar. law, contracts. The sum agreed on for the hire of
a ship,  entirely or  in part, for the carriage of goods from one
port to another;  l3 East, 300, note;  but in, its more extensive
sense it  is applied  to all rewards or compensation paid for the
use of  ships. 1 Pet. Adm. R. 206;  2 Boulay-Paty, t. 8, s. 1;  2
B. & P. 321;  4 Dall. R. 459;  3 Johns. R. 335;  2 Johns. R. 346;
3 Pardess, n. 705.

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

  3. - l. The amount of freight is usually fixed by the agreement
of the parties, and if there be no agreement, the amount is to be
ascertained by  the usage of the trade, and the circumstances and
reason of the case. 3. Kent, Com. 173. Pothier is of opinion that
when the parties agree as to the conveyance of the goods, without
fixing a  price, the  master is  entitled to freight at the price
usually paid  for merchandise  of a  like quality at the time and
place of  shipment, and  if the prices vary he is to pay the mean
price. Charte-part,  n. 8.  But there  is a case which authorizes
the master  to require the highest price, namelly, when goods are
put on  board without  his knowledge. Id. n. 9. When the merchant
hires the  whole ship  for the  entire voyage,  he must  pay  the
freight though  he does not fully lade the ship;  he is of course
only bound  to pay  in proportion  to the goods he puts on board,
when he  does not  agree to provide a full cargo. If the merchant
agrees to furnish a return cargo, and he furnishes none, and lets

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the ship  return in  ballast, he  must make  compensation to  the
amount of  the freight;   this is called dead freight, (q. v.) in
contradistinction to  freight due  for  the  actual  carriage  of
goods. Roccus, note 72-75;  1 Pet. Adm. R. 207;  10 East, 530;  2
Vern. R. 210.

   4. - 2. The general rule is, that the delivery of the goods at
the place  of destination,  in fulfilment of the agreement of the
charter party, is required, to entitle the master or owner of the
vessel to  freight. But to this rule there are several exceptions

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

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

   7. -  3. When  the ship  is foreed  into a  port short  of her
destination, and  cannot finish  the voyage,  if the owner of the
goods will  not allow  the master a reasonable time to repair, or
to proceed  in another  ship, the  master will be entitled to the
whole freight;   and,  if after  giving his  consent  the  master
refuse to go on, he is not entitled to freight.

   8. -  4.  When  the  merchant  accepts  of  the  goods  at  an
intermediate port,  it is  the general  rule of  marine law, that
freight is  to be  paid according to the proportion of the voyage
performed, and  the law  will imply such contract. The acceptance
must be  voluntary, and  not, one  forced upon  the owner  by any
illegal or  violent proceedings,  as, from  it, the law implies a
contract that  freight pro  rata parte itineris shall be accepted
and paid.  2 Burr.  883;  7 T. R. 381;  Abb. Shipp. part 3, c. 7,
s. 13;   3  Binn. 445;  5 Binn. 525;  2 Serg. & Rawle, 229;  1 W.
C. C.  R. 530;   2 Johns. R. 323;  7 Cranch, R. 358;  6 Cowen, R.
504;   Marsh. Ins.  281, 691;   3  Kent, Com.  182;    Com.  Dig.
Merchant, E 3 a note, pl. 43, and the cases there cited.

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

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2 Campb.  N. P.  R. 466. These are some of the excep tions to the
general rule,  called for by principles of equity, that a partial
performance is  not sufficient,  and that  a partial  payment  or
rateable freight cannot be claimed.

   10. -  6. In  general, the master has a lien on the goods, and
need not  part with them until the freight is paid;  and when the
regulations of  the revenue require them to be landed in a public
warehouse, the master may enter them in his own name and preserve
the lien.  His right  to retain the goods may, however, be waived
either by an express agreement at the time of making the original
contract, or  by his  subsequent agreement  or consent.  Vide  18
Johns. R.  157;   4 Cowen, R. 470;  1 Paine's R. 358;  5 Binn. R.
392. Vide, generally, 13 Vin. Ab. 501 Com. Dig. Merchant, E 3, a;
Bac. Ab.  Merchant, D;   Marsh.  Ins. 91;   10 East, 394 13 East,
300, n.;   3  Kent, Com.  173;  2 Bro. Civ. & Adm. L. 190;  Merl.
Rep. h.  t. Poth.  Charte-Partie, h.  t.;   Boulay-Paty,  h.  t.;
Pardess. Index, Affretement.
 FREIGHTER,  contracts. He  to whom  a ship  or vessel  has  been
hired. 3 Kent, Com. 173;  3 Pardess. n. 704.

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

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

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

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

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

   FRIENDLESS MAN.  This name was sometimes anciently given to an

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

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

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

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

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

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

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

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

   2. The  Constitution of  the United  States, art.  4, s. 2, 3,
directs that  "no person  held to  service or labor in one state,
under  the   laws  thereof,  escaping  into  another,  shall,  in
consequence of any laws or regulation therein, be discharged from
such service or labor, but shall be delivered up, on claim of the
party to  whom such  service or  labor may  be clue." In practice
summary ministerial proceedings are adopted, and not the ordinary
course of judicial investigations, to ascertain whether the claim
of ownership  be established  beyond all legal controversy. Vide,
generally, 3  Story, Com.  on Const. §1804-1806;  Serg. on Const.
ch. 31, p. 387;  9 John. R. 62;  5 Serg. & Rawle, 62;  2 Pick. R.
11;   2 Serg.  & Rawle, 306;  3 Id. 4;  1 Wash. C. C. R. 500;  14
Wend. R. 507, 539;  18 Wend. R. 678;  22 Amer. Jur. 344.

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

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

   3. Different  opinions are entertained in relation to the duty
of a  nation, by  the law of nations, independently of any treaty
stipulations, to  surrender fugitives from justice when' properly
demanded. Vide  1 Kent,  Com. 36;   4  John. C.  R. 106;  1 Amer.
Jurist, 297;  10 Serg. & Rawle, 125;  3 Story, Com. Const. United
States, §1801;  9 Wend. R. 218;  2 John. R. 479;  6 Binn. R. 617;
4 Johns.  Ch. R. 113;  22 Am. Jur. 351: 24 Am. Jur. 226;  14 Pet.
R. 540;  2 Caines, R. 213.

   4. Before  the executive  of the  state can  be called upon to
deliver an  individual, it  must appear, first, that a proper and
formal requisition  of another governor has been made;  secondly,
that the requisition was founded upon an affidavit that the crime
was committed  by the  person charged,  or such other evidence of
that fact as may be sufficient;  thirdly, that the person against
whom it  is directed,  is a  fugitive from justice. 6 Law Report,

   FULL AGE.  A. person  is said  to have  full age at twenty-one
years, whether the person be a man or woman. See Age.

   FULL COURT.  When all  the judges  are  present  and  properly
organized, it -is said there is a full court;  a court in banc.

   FULL DEFENCE, pleading. A denial of all wrong or injury. It is
expressed in  the following  formula: And  the  said  C  D,  (the
defendant,) by E F, his attorney, comes, and defends the wrong or
injury, (or  force and  injury,) when  and where it shall behoove
him, and  the damages  and whatsoever  else he  ought to defend."
Bac. Ab.  Pleas, &c.  D;   Co. Litt.  127 b;  Lawes on Pl. 89;  2
Chit. Pl.  409;   2 Saund.  209 c;   Gould  on Pl.  c. 2, §6. See
Defence;  Et Cetera;  Half Defence.

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

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

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

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completed the business with which he was entrusted,.his agency is
functus officio. 2 Bouv. Inst. n. 1382.

   FUNDAMENTAL. This  word is applied to those laws which are the
foundation of  society. Those laws by which the exercise of power
is restrained and regulated, are fundamental. The Constitution of
the United  States is the fundamental law of the land. See Wolff,
Inst. Nat. §984.

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

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

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

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

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

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

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

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   4. It  seems doubtful  whether the  hushand can  call upon the
separate  personal  estate  of  his  wife,  to  pay  her  funeral
expenses. 6  Madd. R.  90. Vide  2 Bl. Com. 508;  Godolph. p. 2 3
Atk. 249  Off. Ex.  174;  Bac. Ab. Executors, &c., L 4;  Vin. Ab.
h. t.

   FUNGIBLE. A term used in the civil, French, and Scotch law, it
signifies anything  whatever, which  consists in quantity, and is
regulated by  number, weight, or measure;  such as corn, wine, or
money.. Hein.  Elem. Pand.  Lib. 12, t. 1, §2;.1 Bell's Com. 225,
n. 2;   Ersk.  Pr. Scot.  Law, B.  3, t.  1, §7;   Poth.  Pret de
Consomption, No. 25;  Dict. de Jurisprudence, mot Fongible Story,
Bailm, §284;  1 Bouv. Inst. n. 987, 1098.

  FURCA. The gallows. 3 Inst. 58.

  FURIOSUS. An insane man;  a madman;  a lunatic.

   2. In general, such a man can make no contract, because he has
no capacity or will: Furiosus nullum negotium genere potest, quia
non  intelligit  quod  agit.  Inst.  3,  20,  8.  Indeed,  he  is
considered so incapable of exercising a will, that the law treats
him as  if he  were absent:  Furiosi nulla voluntas est. Furiosus
absentia loco  est. Dig. lib. 1, tit. ult. 1. 40, 1. 124, §1. See
Insane;  Non compos mentis.

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

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

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

   FURNITURE. Personal  chattels in  the use  of a family. By the
term household  furniture in  a will,  all personal chattels will
pass which  may contribute  to the  use  or  convenience  of  the
householder, or  the ornament  of the  house;   as, plate, linen,
china, both  useful and  ornamental, and  pictures. Amb.  610;  1
John. Ch.  R. 329,  388;   1 Sim.  & Stu. 189;  S. C. 3 Russ. Ch.
Cas. 301;   2 Williams on Ex. 752;  1 Rop. on Leg. 203-4;  3 Ves.
312, 313.
 FURTHER  ASSURANCE. This phrase is frequently used in covenants,
when a  covenantor has granted an estate, and it is supposed some
further conveyance  may  be  required.  He  then  enters  into  a
covenant for  further assurance,  that  is,  to  make  any  other
conveyance which may be lawfully required.

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

   2. Prisoners  are frequently  committed for  further  hearing,
either  when  there  is  not  sufficient  evidence  for  a  final
commitment, or  because the  magistrate  has  not  time,  at  the
moment, to  hear the  whole of  the evidence.  The magistrate  is
required by  law, and by every principle of humanity, to hear the
prisoner as  soon as  possible after  a  commitment  for  further

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hearing;  and if he neglect to do so within a reasonable time, he
becomes a  trespasser. 10  Barn. & Cresw. 28;  S. C. 5 Man. & Ry.
53. Fifteen  days were  held an  unreasonable time,  unless under
special circumstances.  4 Carr.  & P. 134;  4 Day, 98;  6 S. & R.

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

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

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

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

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

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