A New Law Dictionary and Institute of the Whole Law

FEUDAL SYSTEM-continued. could not be aliened without the consent of the lord, and in like manner the lord could not alien his seigniory without the consent of the tenant, the obligations of the superior and inferior being mutual and reciprocal. Proper feuds originally belonged to all the sons equally; but by a constitution of the Emperor Frederic they became indivisible, and descended to the eldest son alone (see PRIMOGENITURE). (2.) An improper feud, on the other hand, was not necessarily military at all, much less was it purely military, but was in general granted in consideration of a rent, or cense, in lieu of military or other service, whence women were not excluded from it, and it was freely alienable.

The principal obligations incident to the feud were the following:

(1.) Wardship (see that title), although it is certain that this incident could form no part of the law of feuds before these became hereditary;

(2.) Marriage (see that title);
(3.) Relief (see that title);

(4.) Aids (see that title);

(5.) Escheat (see that title); and
(6.) Escuage (see that title).

It is so absolute a maxim of the feudal law, or law of tenures, that all lands are holden mediately or immediately of the king, that even the king himself cannot give lands in so absolute and unconditional a manner as to set them free from tenure; and, therefore, in the case of such a gift, the donee would, prior to the 12 Car. 2, c. 24, have held the lands of the king in capite by knight service. and would since that statute now hold by fealty. All lands therefore being tenures, the varieties of tenures are the following, stating the same in the words of Bracton (Henry III.):—

"Tenements are of two kinds, (I.) Franktenement, and (II.) Villenage. And of Franktenements, (I. a.) some are held freely in consideration of homage and knight-service; (I. b.) others in free socage with the service of fealty only. Of villenages (II. a.) some are pure, and (II. b.) others are privileged, he that holds in pure villenage being bound to uncertain services of a villein nature, and he that holds in privileged villenage being bound to certain services of a villein nature, whence also the latter is often called a villeinsocman.'

For a description of each of these four varieties, see the following respective titles,

TENURE BY KNIGHT-SERVICE;
TENURE IN SOCAGE;

(a.) Fee simple;

(b.) Fee tail;

FIAT. This is a Latin word signifying "let it be done." Thus, upon a petition to the King for his warrant to bring a writ of error to the House of Lords, he used to write the words fiat justitia, "let justice be done," on the top of the petition. And in like manner, it was under a fiat of the Lord Chancellor, addressed to the Court of Bankruptcy, that the petitioning creditor used to prosecute, and that that Court used to hear the bankruptcy petition. Both these uses of the word "fiat" have gone into disuse, but analogous uses of the word remain; and as so used, the word in every case denotes an authority issuing from some competent source for the doing of some legal act.

FICTIONS.

These are assumptions of an innocent and even beneficial character, made for the advancement of the ends of justice. They secure this end chiefly by the extension of procedure from cases to which it is applicable, to other cases to which it is not strictly applicable, the ground of the inapplicability being some difference of an immaterial character. Thus, by the strict law of Rome, a foreigner (peregrinus) who had committed or suffered a tort, was neither liable to be sued, nor competent to sue, for the same; but at a very early period the peregrinus in such a case was enabled to sue, and was made liable to be sued, upon the assumption, i.e., fiction, that he was a Roman citizen. And similarly in English Law, the procedure of the Court of Exchequer, which was strictly confined to matters affecting the Crown revenues, was extended by means of the fiction quo minus to general civil suits in debt, and similarly the procedure of the Court of Queen's Bench was extended by the fiction of the ac etiam clause. It was customary also at one time to lay the

FICTIONS-continued.

venue at St. Martin's-le-Grand by a fiction for the true venue in the case of murders committed abroad, e.g., in Jamaica, this being an innocent fiction, the utility of which consisted in giving the Queen's Bench in England jurisdiction to try the offence. And generally, the procedure of Courts of Equity, so far as the same is supplementary to that of Courts of Common Law, depended largely on fictions of the like sort, e.g., that the cestui que trust was feudally possessed, and might sue in the absence of his trustee, in whom the legal estate in reality was.

According to Maine, fictions stand midway between early law and modern legislation, as a means of advancing the law. This opinion is corroborated by what actually occurred in the Roman Law, and by what is daily occurring in English Law. Thus, the actio Rutiliana, which was the result of legislation, superseded the actio Serviana, which was the product of a fiction (Gai. iv. 35); and in English law, by the C. L. P. Act, 1852, the cestui que trust was empowered to proceed at Law precisely as he might have done in Equity, a provision which is now made general by the Judicature Act, 1873.

FIDEICOMMISSARIUS. This word denoted in Roman Law the person who in English Law is called the cestui que trust. The prætor fideicommissarius was an officer who corresponded to the Lord Chancellor. Fideicommissa was the name for trusts, which are said to have been introduced for the first time in the reign of Augustus (Just. 2, 23, 1) in the person of Lucius Lentulus.

FIDEJUSSOR. Is a surety in Roman Law. He might be added to any obligation, whether civil or natural, being in this respect (and in a few other respects) different from both a fidepromissor and a sponsor, who were also sureties. He enjoyed a right against the principal debtor analogous to the right of recoupment in English law, and which was called the actio depensi; but after the Epistula Hadriani (117 A.D.), he had no right analogous to the English law right of contribution as between co-sureties, but he had a better right, viz., the beneficium divisionis, which required the creditor to split his demand evenly among all the cosureties, whom for that purpose he made co-defendants.

See also title SURETY. FIDUCIARY. This phrase is derived from the Latin fiduciarius, which in Roman Law denoted substantially a trustee; and, accordingly, the word is used in English Law to denote any one who holds the

FIDUCIARY-continued.

character of trustee, or (more accurately) a character analogous to that of trustee : e.g., agents, guardians, and the like.

In the Roman Law, a fiduciarius tutor was the elder brother of an emancipated pupillus, whose father had died leaving him still under fourteen years of age.

FI. FA. Is a writ of execution, as to the general character of which, see that title. The particular writ is in substance a command to the party to whom it is directed, viz., the sheriff, that of the goods and chattels of the debtor he do cause to be made (fieri facias) the sum recovered by the judgment, together with interest at 4 per cent., and that he have the money and interest, and the writ itself, before the Court immediately after the execution of the writ, or on a day certain in term, to be rendered to the party who sued out the writ. Under the stat. 1 & 2 Vict. c. 110, the sheriff may, upon a fi. fa., seize any money, bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money belonging to the debtor, in addition to things that were already seizable by the Common Law; but by stat. 8 & 9 Vict. c. 127, the wearing apparel and bedding of the debtor or his family, and the tools and implements of his trade, to the extent of £5 in value, are protected.

FIFTEENTHS. This was a tax consisting of one-fifteenth part of all the moveable property of the subject. It is said to have been first imposed by Hen. 2. See title TAXATION.

FILING OF RECORD. This means entering amongst the records of the Court.

FINAL JUDGMENT. A judgment is either final or interlocutory. It is said to be final when it is complete in itself, and entitles the party to obtain at once the fruits of his judgment, without any further inquiry being requisite for the purpose of ascertaining its amount. On the other hand, a judgment is said to be interlocutory, when something further remains to be done in the suit before the successful party is entitled to issue execution upon his judgment. For example, in an action of assumpsit, if the defendant suffers judgment to go by default, the judgment is interlocutory only, because the amount of the debt or damages has first to be ascertained, and possibly a jury to be summoned for the purpose, before any execution may issue on the judgment. But under the C. L. P. Act, 1852, many judgments which used to be held interlocutory are made final, subject to the ascertainment of the amount of debt or damages, where that is a mere matter of calculation.

FINAL PROCESS. As distinguished from mesne process (for which, see that title), this phrase is used to denote writs f execution, such as fi. fa. and elegit, being the steps taken at the end of a successful action for the purpose of realising the fruits of a judgment.

FINDING OF A JURY. This denotes the verdict of 'the jury. They find a mixed verdict, that is, partly of law and partly of fact; and it is competent for them to find the contrary of the truth, for their finding maketh even what is false to be true, in cases of an exceptional character: see Bushell's Case, 6 St. Tr. 909.

FINE. A species of assurance abolished by the stat. 3 & 4 Will. 4, c. 74, but which previously to that statute was commonly in use for assuring estates of freehold. It was an amicable agreement (finis concordia) of a suit, whether real or fictitious, although most commonly the latter, between the demandant and tenant, with the consent of the judges, and inrolled among the records of the Court. The principal uses of the fine were two, viz.: (1.) To bar estates-tail, and (2.) To pass the interests of married women in real property. It acquired the power of effecting the first of these two purposes by the Statute of Fines (11 Hen. 7, c. 1), as judicially construed in the reign of Henry VIII., and which construction was afterwards confirmed by the stat. 32 Hen. 8, c. 36, which also made the bar immediate. effect of it was, however, confined to barring the issue only of the tenant. Its modern substitute and equivalent is a disentailing deed, executed by the tenant in tail and inrolled, but in which the protector of the settlement has refused to concur. With reference to the second purpose, it seems to have always had that power even by the Common Law, the necessity of obtaining the consent of the judges affording a sufficient guarantie for the protection of the rights of the lady. Its modern substitute is a deed acknowledged, the acknowledgment before the Court, or a duly authorized commissioner, affording the like guarantie.

The

FIRE. The law as to fire-brigades and firemen within the metropolis is regulated by the Act 28 & 29 Vict. c. 90; and the general law as to fireworks (their manufacture, sale, and use) is contained in the Act 23 & 24 Vict. c. 139. Under the stat. 14 Geo. 3, c. 78, a person on whose premises a fire accidentally arises is not liable to any action for the injury thereby occasioned to others, any law, usage, or custom to the contrary notwithstanding.

FIRE-BOTE. This is the same as housebote, which title see; and see also title ESTOVERS.

The first

FIRST FRUITS (primitiæ.) year's whole profits of a benefice or spiritual living. These were originally part of the papal usurpations over the clergy of this kingdom; and as they expressed their willingness to contribute so much of their income to the head of the church, it was thought proper, when the papal power was abolished, and the king declared head of the Church of England, to annex this revenue to the Crown, which was done by stat. 26 Hen. 8, c. 3 (confirmed by stat. 1 Eliz. c. 4), and a new valor beneficiorum was then made, by which the clergy have since been rated.

FISHERY. The right or privilege of fishing. It is a species of common, and is sometimes described as common of piscary. Free fishery is the exclusive right of fishing in a public river, and is a privilege of the Crown. Several fishery is a right of fishing enjoyed by the owner of the soil of the river, and which he may lease or devolve in any other manner upon a stranger.

FISH ROYAL. These were the whale and the sturgeon, which, when thrown ashore, or caught near the coast, became the property of the king by virtue of his prerogative, and in recompence for his protecting the shore from pirates and

robbers.

FIXTURES. As the name denotes, are things fixed or affixed to other things. The rule of law regarding them is that which is expressed in the maxim Accessio cedit principali, "the accessary goes with, and as part of, the principal subject-matter." This maxim, as applied to lands, has assumed in English Law the form "Quidquid plantatur solo, solo cedit," and in Roman Law the form "Omne quod inadificatur solo, solo cedit." The rule had its first application in English Law in the case of buildings erected on land for agricultural purposes, whence agricultural fixtures so called present the operation of the maxim in its most general form. But inasmuch as that maxim was thought to operate, and undoubtedly did operate, in discourage

FIXTURES-continued. ment of trade, there grew up a mitigation of the rule, applicable to trade fixtures as they were called, and which mitigation was to this effect, that fixtures of the latter sort might be removed during the tenancy by the tenant who had put them in, but not after the determination of his tenancy. This mitigation of the rule was subsequently extended, upon the like grounds of utility, to ornamental fixtures so called, which also were permitted to be removed during the tenancy, but not afterwards.

Fixtures are chattels of an amphibious character, being for some purposes and at some times interests in land and for other purposes, and at other times purely personal chattels. Thus, while fixtures are annexed to lands or houses, they are an interest in land, and are rateable as land, and trover will not lie for their conversion or detention; and yet even while so annexed, they are not, semble, an interest in land within the meaning of the 4th sect. of the Statute of Frauds (29 Car. 2, c. 3). On the other hand, fixtures, even while annexed, are purely personal chattels within the meaning of the Bills of Sale Act, 1854 (17 & 18 Vict. c. 36); and yet the Courts have held that where they are comprised in one testatum, together with the lands or houses to which they are attached, they are to be treated as part and parcel of the lands or houses, and that the Bills of Sale Act, 1854, intended them to be personal chattels only when treated in a separate testatum by themselves, and when the grantee or mortgagee had the power of removal and of sale: See Hawtrey v. Butlin, 21 W. R. 633, and Ex parte Barclay, Re Joyce, 22 W. R. 608610 (reflecting on Allen v. Meux, l.c.); and see generally Brown on Law of Fixtures, 2nd ed. 1872.

FLOTSAM: See title JETSAM. FENUS NAUTICUM. This phrase literally means maritime interest, which was commonly at a higher rate of percentage than ordinary interest, in consideration of the extra risks which are incurred at sea.

See also titles BOTTOMRY; RESPON

FOLK-MOTE-continued.

cause,

burghs. But it had other more general meanings, and denoted merely a popular assembly; summoned for any whether permanent or occasional, and either to complain of existing misgovernment or to renew the duty of allegiance to the sovereign. In these latter senses, it seems to have acted as that ultimate tribunal of the Commons themselves, to' which (in the words of Austin) the House of Commons and the ministers are subject.

FORCIBLE ENTRY. This is a criminal offence, and consists of an entry or detainer made with such a number of persons or with such a shew of force as is calculated to deter the rightful owner from sending the persons away and resuming his own possession (Milner v. Maclean, 2 C. & P. 17). The offence is something more than a trespass (Rex v. Smyth, 5 C. & P. 201). The entry must have been unlawful, to come within the stat. 8 Hen. 6, c. 9.

FORECLOSURE. This is one of the remedies of a mortgagee. For its operation and effect see title MORTGAGE.

FOREIGN ATTACHMENT. When the defendant is sued in the Lord Mayor's Court of the City of London, it is the custom of that City and Court to issue an attachment against moneys or debts in which the defendant has a beneficial interest, and for which that defendant might at the time of the attachment have brought an action (Webster v. Webster, 31 Beav. 393). It is not necessary that the debt for which the attachment issues should arise within the jurisdiction, or that the parties should be within the jurisdiction, but only that the debt attached should be A foreign attachment is no bar to an action for the same debt.

80.

FOREIGN ENLISTMENT. The stat. 59 Geo. 3, c. 69, was until recently the Foreign Enlistment Act for England; but during the recent Franco-Prussian war that Act was repealed, and a further and more stringent Foreign Enlistment Act (33 & 34 Vict. c. 90) was passed, declaring illegal, and visiting with penalties, the following offences, viz. :

(1.) Enlisting in military or naval service of any foreign state at war with another foreign state at peace with England;

(2.) Being in any manner subservient thereto or assisting therein; and

(3.) Building ships or making expeditions in aid of either belligerent.

FOREIGN LAWS. Are often the suggesting occasions of changes in, or additions to, our own laws, and in that respect

FOREIGN LAWS-continued. are called jus receptum. But foreign laws sometimes prevail almost proprio vigore within this country, through our Courts of Justice choosing invariably to follow them in certain cases. What those cases are, and in what cases the English Courts refuse to follow the foreign law and apply the Law of England, may be learned from a study of the "Conflict of Laws," by Mr. Story or Mr. Wharton, or (more conveniently, perhaps) from Westlake's Priv. Inter. Law. And for some detailed information of the various laws which come in conflict, see these titles in this dictionary, viz., LEX LOCI REI SITE; LEX DOMICILII; LEX LOCI ACTUS or CELEBRATIONIS; LEX LOCI SITUS; LEX LOCI SOLUTIONIS or CONTRACTUS; and LEX FORI,

FORESTALLING. Called also re-grating or engrossing of the market, is an offence by the Common Law; thus, spreading rumours, with intent to enhance the price of hops, in the hearing of hopplanters, to the effect that the stock is nearly exhausted and that there will be a scarcity, is an instance of this offence. Some attempt was made by the stat. 7 & 8 Vict. c. 24. to regulate the offence, but apparently with poor effect; the statute was necessary, inasmuch as the Common Law offence extends only to the necessaries of life (Pettamberdars v. Nockoorseydas, 7 Moo. P. C. C. 239). The Index to the Revised Edition of the Statutes, p. 407, speaks of the offence of forestalling, &c., as abolished by the last-mentioned statute, sed quære.

FOREST-LAW. This was a particular system or body of laws relating to the forests of the Crown. It is popularly associated with everything that was cruel, -an opinion to which the frequency of that kind of statute called Carta di Foresta seems to give some probability. The officers of the forest, who were charged to preserve the "vert and venison" thereof, were called foresters.

FORFEITURE. By the stat. 33 & 34 Vict. c. 23, forfeiture or escheat of lands on the ground of felony is abolished, but of course remains for any other cause (see title ESCHEAT). The law of forfeiture also still applies as between landlords and their tenants for breaches of covenants contained in leases; and with reference to these, not being mere informal insurances, neither Courts of Law nor Courts of Equity have much or any power to relieve. See title PENALTIES,

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