F1:
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
compound.
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
Expostfacto.
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
made.
9. - 1. His duties. He is required to use reasonable skill and
ordinary diligence in his vocation; in general, he has a right
to sell the goods, but he cannot pawn them. The latter, branch of
this rule, however, is altered by statute in some of the states.
See Act of Penna. April 14, 1834, §3, 4, 6, postea, 20. He is
bound to obey his instructions, but when he has none, he may and
ought to act according to the general usages of trade sell for
cash, when that is usual, or give credit on sales, when that is
customary. He is bound to render a just account to his principal,
and to pay him the moneys he may receive for him.
10. - 2. His rights. He has the right to sell the goods in his
own name; and, when untrammeled by instructions, he may sell
them at such times and for such prices, as, in the exercise of a
just discretion, he may think best for his employer. 3 Man. Gran.
& Scott, 380. He is, for many purposes, between himself and third
persons, to be considered as the owner of the goods. He may,
therefore, recover the price of goods sold by him, in his own
name, and, consequently, he may receive payment and give
receipts, and discharge the debtgor, unless, indeed, notice has
been given by the principal to the debtor not to pay. He has a
lien on the goods for advances made by him, and for his
commissions.
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
merchandise.
26. - §4. If any person shall accept or take such merchandise
or document from any such consignee or factor, in deposit or
pledge for any debt or demand previously due by, or existing
against, such consignee or factor, and without notice as
aforesaid, and if any person shall accept or take such
merchandise or document from any such consignee or factor, in
deposit or pledge, without notice or knowledge that the person
making such deposit or pledge, is a consignee or factor only, in
every such case the person accepting or taking such. merchandise
or document in deposit or pledge, shall acquire the same right
and interest in such merchandise as was possessed, or could have
been enforced, by such consignee or factor against his principal
at the time of making such deposit or pledge, and further or
other right or interest.
27. - §5. Nothing in this act contained shall be construed or
taken:
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
714.
2. Its principal provision gave power to fathers of families to
bequeath three-fourths of their property, but deprived them of
the power to give away the other fourth, which was to descend to
the heir.
3. The same rule, somewhat modified, has been adopted in
Louisiana; "donations inter vivos or mortis causal" says the
Civil Code, art. 1480, "cannot exceed two-thirds of the property
of, the disposer, if he leaves at his decease a legitimate child;
one-half, if he leaves two children; and one-third, if he leaves
three, or a greater number."
4. By the common law, the power of the father to give his
property is unlimited. He may bequeath it to his children
equally, to, one in preference to another, or to a stranger, in
exclusion of the whole of them. Over his real estate, his wife
has a right of dower, or a similar right given to her by act of
assembly, in, perhaps, all the states.
FALSE Not true; as, false pretences; unjust, unlawful, as,
false imprisonment. This his word, is frequently used in
composition.
FALSE IMPRISONMENT. torts. Any intentional detention of the
person of another not authorized by law, is false imprisonment. 1
Bald. 571; 9 N. H. Rep. 491; 2 Brev. R. 157. It is any illegal
imprisonment, without any process whatever, or under color of
process wholly illegal, without regard to the question whether
any crime has been committed, or a debt due. 1 Chit. Pr. 48; 5
Verm. 588; 3 Blackf. 46; 3 Wend. 350 5 Wend. 298; 9 John. 117;
1 A. K. Marsh. 845; Kirby, 65; Hardin 249.
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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
Process.
FALSE JUDGMENT, Eng. law. The name of a writ which lies when a
false judgment has been given in the county court, court baron,
or other courts not of record. F. N. B. 17, 18 3 Bouv. Inst. n.
3364.
FALSE PRETENCES, criminal law. False representations and
statements, made with a fraudulent design, to obtain " money,
goods, wares, and merchandise-" with intent to cheat. 2 Bouv.
Inst. n. 2308.
2. This subject may be considered under the following heads:.
1. The nature. of the false pretence. 2. What must be obtained.
3. The intent.
3. - 1. When the false pretence is such as to impose upon a
person of ordinary caution, it will doubtless be sufficient. 11
Wend. R. 557. But although it may be difficult to restrain false
pretences to such as an ordinarily prudent man may avoid, yet it
is not every absurd or irrational pretence which will be
sufficient. 2 East, P. C. 828. It is not necessary that all the
pretences should be false, if one of them, per se, is sufficient
to constitute the offence. 14 Wend. 547. And although other
circumstances may have induced the credit, or the delivery of the
property, yet it will be sufficient if the false pretences had
such an influence that, without them, the credit would not have
been given, or the property delivered. 11 Wend. R. 557; 14 Wend.
R. 547; 13 Wend. Rep. 87. The false pretences must have been
used before the contract was completed. 14 Wend. Rep. 546; 13
Wend. Rep. 311. In North Carolina, the cheat must be effected by
means of some token or contrivance adapted to impose on an
ordinary mind. 3 Hawks, R. 620; 4 Pick. R. 178.
4. - 2. The wording of the statutes of the several states on
this subject is not the same, as to the acts which are
indictable. In Pennsylvania, the words of the act are, "every
person who, with intent to cheat or defraud another, shall
designedly, by color of any false token or writing, or by any
false pretence whatever, obtain from any person any money,
personal property or other valuable, things," &c. In
Massachusetts, the intent must be to obtain "money, goods, wares,
merchandise, or other things." Stat. of 1815, c. 136. In New
York, the words are "money, goods, or chattels, or other
effects." Under this statute it has been holden that obtaining a
signature to a note; 13 Wend. R. 87; or an endorsement on a
promissory note; 9 Wend. Rep. 190; fell within the spirit of
the statute; and that where credit was obtained by false
pretence, it was also within the statute. 12 John. R. 292.
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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,
537.
FALSE RETURN. A return made by the sheriff, or other
ministerial officer, to a writ in which is stated a fact contrary
to the truth, and injurious to one of the parties or some one
having an interest in it.
2. In this case the officer is liable for damages to the party
injured. .2 Esp. Cas. 475. See Falso retorno brevium.
FALSE TOKEN. A false document or sign of the existence of a
fact, in general used for the purpose of fraud. Vide Token, and 2
Stark. Ev. 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
him.
2. Falsehood by word is committed when a witness swears to what
he knows not to be true. Falsehood is usually attendant on crime.
Roscoe, Cr. Ev. 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
Forgery.
2. By the Act of Congress of April 30, 1790, s. 15, 1 Story's
L. U. S. 86, it is enacted, that if any person shall feloniously
steal, take away, alter, falsify, or otherwise avoid, any record,
writ, process, or other proceedings in any of the courts of the
United States, by means whereof any judgment shall be reversed,
made void, or not take effect; or if any person shall
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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;
Surcharge.
FALSO RETORNO BREVIUM, old English law. The name of a writ
which might have been sued out against a sheriff, for falsely
returning writs. Cunn. 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.
2.
FAMILY ARRANGEMENTS. This term has been used to signify an
agreement made between a father and his son, or children; or
between brothers, to dispose of property in a different manner to
that, which would otherwise 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
family.
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
slander.
FANEGA, Spanish law. A measure of land, which is not the same
in every province. Diccionario de la Acad.; 2 White's Coll. 49.
In Spanish America, the fanega consisted of six thousand and four
hundred square varas or yards. 2 White's Coll. 138.
FARE. It signifies a voyage or passage; in its modern
application, it is the money paid for a passage. 1 Bouv. Inst. n.
1036.
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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
three.
4.- I. In those contracts where the party derives no benefit
from his undertaking, he is answerable only for his gross faults.
5.-2. In those contracts where the parties have a reciprocal
interest, as in the contract of sale, they are responsible for
ordinary neglect.
6. - 3. In those contracts where the party receives the only
advantage, as in the case of loan for use, he is answerable for
his slight fault. Poth. Observ. Generale; Traite des Oblig.
§142; Jones, Bailm. 119 Story, Bailm. 12. See also Ayliffe,
Pand. 108. Civ. C. Lou. 3522; 1 Com. Dig. 41 3; 5 Id. 184;
Wesk. on Ins. 370.
FAUX, French law. A falsification or fraudulent alteration or
suppression of a thing by words, by writings, or by acts without
either. Biret, Vocabulaire des Six Codes.
2. The crimen falsi of the civil law. Toullier says, "Le faux
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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
action.
FEIGNED issue, pract. An issue brought by consent of the
parties, or the direction of a court of equity, or such courts as
possess equitable powers, to determine before a jury some
disputed matter of fact, which the court has not the power or is
unwilling to decide. 3 Bl. Com. 452; Bouv. Inst. Index, h. t
FELO DE SE, criminal law. A felon of himself; a 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
death."
FELON, crimes. One convicted and sentenced for a felony.
2. A felon is infamous, and cannot fill any office, or become a
witness in 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,
242.
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;
Masculine.
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
woman.
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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;
Masculine.
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
Assise.
FETTERS. A sort of iron put on the legs of malefactors, or
persons accused of crimes.
2. When a prisoner is brought into court to plead he shall not
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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
rights.
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
so.
2. He differs from co-obligor in this, that the latter is
equally bound to a debtor with his principal, while the former is
not liable till the principal has failed to fulfil his
engagement. Dig. 12, 4, 4; Id. 16, 1, 13; Id. 24, 3, 64; Id.
38, 1, 37; Id. 50, 17, 110, and 14, 6, 20; Hall's Pr. 33;
Dunl. Ad. Pr. 300; Clerke's Prax. tit. 63, 4, 5.
3. The obligation of the fide-jussor was an accessory contract,
for, if the principal obligation was not previously contracted,
his engagement then took the name of mandate. Lec. Elem. §872;
Code Nap. 2012.
FIDUCIA, civil law. A contract by which we sell a thing to some
one, that is, transmit to him the property of the thing, with the
solemn forms of emancipation, on condition that he will sell it
back to us. This species of contract took place in the
emancipation of children, in testaments, and in pledges. Poth.
Pand. h. t.
FIDUCIARY. This term is borrowed from the civil law. The Roman
laws called a fiduciary heir, the person who was instituted heir,
and who was charged to deliver the succession to a person
designated by the testament. Merl. Repert. h. t. But Pothier,
Pand. vol. 22, h. t., says that fiduciarius heres properly
signifies the person to whom a testator has sold his inheritance,
under the condition that he should sell it to another. Fiduciary
may be defined to be, in trust, in confidence.
2. A fiduciary contract is defined to be, an agreement by which
a person delivers a thing to another, on the condition that he
will restore it to him. The following formula was employed:' Ut
inter bonos agere opportet, ne propter te fidemque tuam frauder.
Cicer. de Offc. lib. 3, cap. 13; Lec. du Dr. Civ. Rom. §237,
238. See 2 How. S. C. Rep. 202, 208; 6 Watts & Serg. 18; 7
Watts, 415.
FIEF, or FEUD. In its origin, a fief was a district of country
allotted to one of the chiefs who invaded the Roman empire, as a
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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
agreeableness.
2. This subject belongs more particularly to grammar and
rhetoric, but the law has its figures also. Sometimes fictions
come in aid of language, when found insufficient by the law;
language, in its turn, by means of tropes and figures, 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
modified.
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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
filiation.
3. When the mother is or has been married, her hushand is
presumed to be the father of the children born during the
coverture, or within a competent time afterwards; whether they
were conceived during the coverture or not: pater is est quem
nuptice demonstrant.
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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
hushand.
5. This presumption may, however, be rebutted by showing either
that there has been no cohabitation, or some physical or other
impossibility that the hushand could be the father. See Access;
Bastard; Gestation; Natural children; Paternity; Putative
father. 1 Bouv. Inst. n. 302, et seq.
FILIUS. The son, the immediate male descendant. This term is
used in making genealogical tables.
FILIUS MULIERATUS. The eldest legitimate son of parents, who,
before their marriage, had illegitimate children. Vide Mulier.
FILIUS POPULI. The son of the people; a bastard.
FILLEY. A mare not more than one year old. Russ. & Ry. 416 Id.
494.
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
Taking.
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
verdict.
FINE. This word has various significations. It is employed, 1.
To mean a sum of money, which, by judgment of a competent
jurisdiction, is required to be paid for the punishment of an
offence. 2. To designate the amount paid by the tenant, on his
entrance, to the lord. 3. To signify a special kind of
conveyance.
FINE, conveyance, Practice. An amicable composition or
agreement of a suit, either actual or fictitious, by leave of the
court, by which the lands in question become, or are acknowledged
to be the right of one of the parties. Co. Litt. 120; 2 Bl. Com.
349; Bac. Abr. Fines and Recoveries. A fine is so called,
because it puts an end, not only to the suit thus commenced, but
also to all other suits and controversies concerning the same
matter. Such concords, says Doddridge, (Eng. Lawyer, 84, 85,)
have been in use in the civil law, and are called transactions
(q. v.) whereof they say thus: Transactiones sunt de eis quae in
controversia sunt, a, lite futura aut pendente ad certam
compositionem reducuntur, dando aliquid vel accipiendo. Or
shorter, thus: Transactio est de re dubia et lite ancipite ne dum
ad finem ducta, non gratuita pactio. It is commonly defined an
assurance by matter of record, and is founded upon a supposed
previously existing right, and upon a writ requiring the party to
perform his covenant; although a fine may be levied upon any
writ by which lands may be demanded, charged, or bound. It has
also been defined an acknowledgment on record of a previous gift
or feoffment, and prima facie carries a fee, although it may be
limited to an estate for life or in fee tail. Prest. on Convey.
200, 202, 268, 269 2 Bl. Com. 348-9.
2. The stat. 18 E. I., called modus levandi fines, declares and
regulates the manner in which they should be levied and carried
on and that is as follows: 1. The party to whom the land is
conveyed or assured, commences an action at law against the
other, generally an action of covenant, by suing out of a writ of
praecipe, called a writ of covenant, that the one shall convey
the lands to the other, on the breach of which agreement the
action is brought. The suit being thus commenced, then follows,
2. The licentia concordandi, or leave to compromise the suit.
3. The concord or agreement itself, after leave obtained by the
court; this is usually an acknowledgment from the deforciants,
that the lands in question are the lands of the complainants. 4.
The note of the fine, which is only an abstract of the writ of
covenant, and the concord naming the parties, the parcels of
land, and the agreement. 5. The foot of the fine or the
conclusion of it, which includes the whole matter, reciting the
parties, day, year, and place, and before whom it was
acknowledged or levied.
3. Fines thus levied, are of four kinds. 1. What in law French
is called a fine sur cognizance de droit, come ceo que il ad de
son done; or a fine upon the acknowledgment of the right of the
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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
opinion.
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
revolution.
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
parties.
3. - 1. The annexation may be actual or constructive; 1st. By
actual connexation or annexation is understood every mode by
which a chattel can be joined or united to the freehold. The
article must not however be laid upon the ground; it must be
fastened, fixed or set into the land, or into some such erection
as is unquestionably a part of the realty. Bull. N. P. 34; 8
East, R. 38; 9 East, R. 215; 1 Tauut. 21; Pothier, Traite des
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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
considered.
6. - lst. When the question as to fixtures arises between the
executor and the heir. The rule, as between these persons has
retained much of its original strictness, that the fixtures
belong to the real estate, or the heir i but if the ancestor
manifested an intention, which is to be inferred from
circumstances, that the things affixed should be considered as
personally, they must be so considered, and will belong to the
executor. See Bac. Abr. Executors and Administrators; 2 Str.
1141; 1 P. Wms. 94 Bull. N. P. 34.
7. 2d. As between vendor and vendee. The rule is as strict
between these persons as between the executor and the heir; and
fixtures erected by the vendor for the purpose of trade and
manufactures, as pot-ash kettles for manufacturing ashes, pass to
the vendee of the land. 6 Cowen, R. 663; 20 Johns. R. 29.
Between mortgagor and mortgagee, the rule seems to be the same as
that between vendor and vendee. Amos & F. on Fixt. 188; 1 5
Mass. R. 1 5 9; 1 Atk. 477 16 Verm. 124; 12 N. H. Rep. 205.
Bouvier's Law Dictionary : F1 : Page 39 of 77
8. - 3d. Between devisee and executor. On a devise of real
estate, things permanently annexed to the realty at the time of
the testator's death, will pass to the devisee. His right to
fixtures will be similar, to that of the vendee. 2 Barn. & Cresw.
80.
9. - 4th. Between landlord and tenant for years. The ancient
rule is relaxed, and the right of removal of fixtures by the
tenant is said to be very extensive. 3 East, 38. But his right of
removal is held to depend rather upon the question whether the
estate will be left in the condition in which he took it. 4 Pick.
R. 311.
10. - 5th. In cases between tenants for life or their executors
and the remainder-men or reversioners, the right to sever
fixtures seems to be the same as that of the tenant for years. It
has been held that the steam engines erected in a colliery, by a
tenant for life, should belong to the executor and not go to the
remainder-man. 3 Atk. R. 1 3.
11. - 6th. In a case between the landlord and a tenant at will,
there seems to be no reason why the same privilege of removing
fixtures should not be allowed. 4 Pick. R. 511; 5 Pick. R. 487.
12. The time for exercising the right of removal of fixtures is
a matter of importance a tenant for years may remove them at any
time before he gives up the possession of the premises, although
it should be after his term has expired, and he is holding over.
1 Barn. & Cres. 79, 2 East, 88. Tenants for life or at will,
having uncertain, interests in the land, may, after the
determination of their estates, not occasioned by their own
faults, have a reasonable time within which to remove their
fixtures. Hence their right to bring an action for them. 3 Atk.
13. In case of their death the right passes to their
representatives.
See, generally, Vin. Abr. Landlord and Tenant, A; Bac. Abr.
Executors, &c. H 3; Com. Dig. Biens, B and C; 2 Chitty's Bl.
281, n. 23 Pothier, Traite des Choses; 4 Co. 63, 64 Co. Litt.
53, a, and note 5, by Hargr.; Moore, 177; Hob. 234; 3 Salk.
368; 1 P. Wins. 94; 1 Atk. 553; 2 Vern. 508; 3 Atk. 13; 1 H.
Bl. 259, n Ambl. 113; 2 Str. 1141; 3 Esp. 11; 2 East, 88; 3
East, 38; 9 East, 215; 3 Johns. R. 468; 7 Mass. 432; 6 Cowen,
665; 2 Kent, Com. 280; Ham., Part. 182; Jurist, No. 19, p. 53;
Arch. L. & T. 359; Bouv. Inst. Index, h. t.
FLAG OF THE UNITED STATES. By the act entitled, "An act to
establish the flag of the United States," passed April 4, 1818, 3
Story's L. U. S., 1667, it is enacted-
2. - §1. That from and after the fourth day of July next, the
flag of the United States be thirteen horizontal stripes,
alternate red and white: that the union be twenty stars, white in
a blue field.
Bouvier's Law Dictionary : F1 : Page 40 of 77
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,
adjour