FOREIGN. That which belongs to another country; that which is strange.
1 Peters, R. 343.
2. Every nation is foreign to all the rest, and the several states of the
American Union are foreign to each other, with respect to their municipal laws.
2 Wash. R. 282; 4 Conn. 517; 6 Conn. 480; 2 Wend. 411 1 Dall. 458, 463 6 Binn.
321; 12 S. & R. 203; 2 Hill R. 319 1 D. Chipm. 303 7 Monroe, 585 5 Leigh,
471; 3 Pick. 293.
3. But the reciprocal relations between the national government and the
several states composing the United States are not considered as foreign, but
domestic. 9 Pet. 607; 5 Pet. 398; 6 Pet. 317; 4 Cranch, 384; 4 Gill & John.
1, 63. Vide Attachment, for foreign attachment; Bill of exchange, for foreign
bills of exchange; Foreign Coins; Foreign Judgment; Foreign Laws; Foreigners.
FOREIGN ATTACHMENT. The name of a writ. By virtue of a foreign
attachment, the property of an absent debtor is seised for the purpose of
compelling an appearance, and, in default of that, to pay the claim of the
plaintiff. Vide Attachment.
FOREIGN COINS, com. law. The money of foreign nations.
2. Congress have, from time to time, regulated the rates at which certain
foreign coins should pass. The acts now in force are the following.
3. The act of June 25, 1834, 4 Shaisw. Cont. of Story's L. U. S. 2373,
enacts, sec. 1. That from and after the passage of this act, the following
silver coins shall be of the legal value and shall pass current as money within
the United States, by tale, for the payment of all debts and demands, at the
rate of one hundred cents the dollar, that is to say, the dollars of Mexico,
Peru, Chili,.and Central America, of not less weight than four hundred and
fifteen grains each, and those re-stamped in Brazil of the like weight, of not
less fineness than ten ounces, fifteen pennyweights of pure silver, in the troy
pound of twelve ounces of standard silver; and five franc pieces of France, when
of not less fineness than ten ounces and sixteen pennyweights in twelve ounces
troy weight of standard silver, and weighing not less than three hundred and
eighty-four grains each, at the rate of ninety-three cents each.
4. The act of June 28, 1834, 4 Sharsw. Cont. of Story's L. U. S, 2377,
enacts) sect. 1. That from and after the thirtyfirst day of July next, the
following gold coins shall pass current as money within the United States, and
be receivable in all payments, by weight, for the payment of all debts and
demands, at the rates following, that is to say: the gold coins of Great Britain
and Portugal and Brazil, of not less than twenty-two, carats fine, at the rate
of ninety-four cents and eight-tenths of a cent per pennyweight; the gold coins
of France nine-tenths fine, at the rate of ninety-three cents and one-tenth of a
cent per pennyweight; and the gold coins of Spain, Mexico, and Colombia, of the
fineness of twenty carats three. grains and seven-sixteenths, of a grain, at the
rates of eighty-nine events and nine-tenths of a cent per pennyweight.
5. By the act of. March 3, 1823, 3 Story's L. U. S. 1923, it is enacted,
sect. 1. That from and after the passage of this act, the following gold coins
shall be received in all payments on account of public lands, at the several and
respective rates following, and not otherwise, viz.: the gold coins of Great
Britain and Portugal, and of their present standard, at the rate of one hundred
cents for every twenty-seven grains, or eighty-eight cents and eight-ninths per
pennyweight; the gold coins of France of their present standard, at the rate of
one hundred cents for every twenty-seven and a half grains, or eighty-seven and
a quarter cents per pennyweight; and the gold coins of Spain of their present
standard, at the rate of one hundred cents for every twenty-eight and a half
grains or, eighty-four cents per pennyweight.
6. The act of March 2, 1 799, 1 Story's L. U. S. 573, to regulate the
collection of duties on imports and tonnage, sect. 61, p. 626, enacts, That the
ad valorem rates of duty upon goods, wares, and merchandise, at the place
ofimportation, shall be estimated by adding twenty per cent to the actual costs
thereof, if imported from the Cape of Good Hope, or from any place beyond the
same; and ten per cent. on the actual cost thereof, if imported from any other
place or country, including all charges; commissions, outside packages, and
insurance, only excepted. That all foreign coins and currencies shall be
estimated at the following rates; each pound sterling of Great Britain, at four
dollars and forty-four cents; each livre tournois of France, at eighteen and a
half cents; each florin, or guilder of the United Netherlands, at forty cents;
each marc-banco of Hamburg, at thirty-three and one-third cents; each rix dollar
of Denmark, at one hundred cents: each rial of plate, and each rial o vellon, of
Spain, the former at ten cents, the latter at five cents, each; each milree of
Portugal, at one dollar and twenty-four cents; each pound sterling of Ireland,
at four dollars and ten cents; each tale o China, at one dollar and forty-eight
cents; each pagoda of India, at one dollar and ninety four cents; each rupee, of
Bengal, at fifty-five cents and one half; and all other denominations of money,
in value as nearly as may be to the said rates, or the intrinsic value thereof,
compared with money of the United States: Provided, that it shall be lawful for
the president of the United States to cause to be established fit and proper
regulations for estimating the duties on goods, wares, and merchandise, imported
into the United States, in respect to which the original cost shall be exhibited
in a depreciated currency, issued and circulated under authority of any foreign
7. By the act of July 14 1832, s 16, 4 Sharsw. Cont. of Story's L. U. S.
2326, the law is changed as to the value of the pound sterling, in calculating
the rates of dutics. It is thereby enacted, that from and after the said third
day of March, one thousand eight hundred and thirty-three, in calculating the
rate of duties, the pound sterling shall be considered and taken as of the value
of four dollars and eighty cents.
8 . The act of March 3, 1843, provides, That in all computations of the value
of foreign moneys of account at the custom houses of the United States, the
thaler of Prussia shall be deemed and taken to be of the value of sixty-eight
and one-half cents; the mii-reis of Portugal shall be deemed and taken to be of
the value of one hundred and twelve cents; the rix dollar of Bremen shall be
deemed and taken to be of the value of seventy-eight and three quarter cents;
the thaler of Bremen, of seventy-two grotes, shall be deemed and taken to be of
the value of seventy-one cents; that the mil-reis of Madeira shall be deemed and
taken to be of the value of one hundred cents; the mil-reis of the Azores shall
be deemed and taken to be of the value of eighty-three and one-third cents; the
marc-banco of Hamburg shall be deemed and taken to be of the value, of
thirty-five cents; the rouble of Russia shall be deemed and taken to be of the
value of seventy-five cents; the rupee of British India shall be deemed and
taken to be of the value of forty-four and one half cents; and all former laws
inconsistent herewith are hereby repealed.
9. And the act of May 22, 1846, further directs, That in all computations at
the custom-house, the foreign coins and money of account herein specified shall
be estimated as follows, to wit: The specie dollar of Sweden and Norway, at one
hundred and six cents. The specie dollar of Denmark, at one hundred and five
cents. The thaler of Prussia and of the Northern States of Germany, at
sixty-nine cents. The florin of the Southern States of Germany, at forty cents.
The florin of the Austrian empire, and of the city of Augshurg, at forty-eight
and one half cents. The lira of the Lombardo-Venetian Kingdom, and the lira of
Tuscany, at sixteen cents. The franc of France, and of Belgium, and the lira of
Sardinia, at eighteen cents six mills. The ducat of Naples, at eighteen cents.
The ounce of Sicily, at two dollars and forty cents. The pound of the British
provinces of Nova Scotia, New Brunswick, Newfoundland, and Canada, at four
dollars. And all laws inconsistent with this act are hereby repealed.
FOREIGN JUDGMENT, evidence, remedies. A judgment rendered in a foreign
2. In Louisiana it has been decided that a judgment rendered by a Spanish
tribunal, under the former governmeut of the country, is not a foreign judgment.
4 M. R. 301 Id. 310.
3. The subject will be considered with regard, 1st. To the manner of proving
such judgment; and 2d. Its efficacy.
4. - 1. Foreign judgments are authenticated in various ways; 1. By an
exemplification, certified under the great seal of the state or country where it
was rendered. 2. By a copy proved to be a true copy. 3. By the certificate of an
officer authorized by law, which certificate must, itself, be properly
authenticated. 2 Cranch, 238; 2 Caines' R. 155; 5 Cranch, 335; 7 Johns. R. 514
Mass. R. 273 2 Munf. R. 43 4 Camp. R. 28 2 Russ. on Cr. 723. There is a
difference between the judgments of courts of common law jurisdiction and courts
of admiralty, as to the mode of proof of judgments rendered by them. Courts of
admiralty are under the law of nations; certificates of such judgments with
their seals affixed, will therefore be admitted in evidence without further
proof. 5 Cranch, 335; 3 Conn. R. 171.
5. - 2. A judgment rendered in a foreign country by a court de jure, or even
a court defacto, 4 Binn. 371, in a matter within its jurisdiction, when the
parties litigant had been notified and have had an opportunity of being heard,
either establishing a demand, against the defendant or discharging him from it,
is of binding force. 1 Dall. R. 191; 9 Serg. & Rawle, 260; 10 Serg. &
Rawle, 240; 1 Pet. C. C. R. 155; 1 Spears, Eq. Cas. 229; 7 Branch, 481. As to
the plea of the act of limitation to a suit on a foreign judgment, see Bac. Ab.
h. t.; 2 Vern. 540; 5 John. R. 132; 13 Serg. & Rawle, 395; 1 Speer's, Eq.
Cas. 219, 229.
6. For the manner of proving a judgment obtained in a sister state, see the
article Authentication. For the French law in relation to the force of foreign
judgments, see Dalloz, Dict. mot Etranger, art. 6.
FOREIGN LAWS, evidence. The laws of a foreign country. They will be
considered with regard to, 1. The manner in which they are to be proved. 2.
Their effect when proved.
2. - l. The courts do not judicially take notice of foreign laws, and they
must therefore be proved as facts. Cowp. 144; 3 Esp. C. 163 3 Campb. R. 166; 2
Dow & Clark's R. 171; 1 Cranch, 38; 2 Cranch, 187, 236, 237; 6 Cranch, 274;
2 Harr. & John. R. 193; 3 Gill & John. R. 234; 4 Conn. R. 517; 4 Cowen,
R. 515, 516, note; Pet. C. C. R. 229; 8 Mass. R. 99; 1 Paige's R. 220 10 Watts,
R. 158. The manner of proof varies according to circumstances. As a general rule
the best testimony or proof is required, for no proof will be received which
pre-supposes better testimony attainable by the party iybo offers it. When the
best testimony cannot be obtained, secondary evidence will be received. 2
3. Authenticated copies of written laws and other public documents must be
produced when they can be procured but should they be refused by the competent
authorities, then inferior proof may be admissible. Id.
4. When our own government has promulgated a foreign law or ordinance of a
public nature as authentic, that is held sufficient evidence of its existence. 1
Cranch, 38 1 Dall. 462; 6 Binn. 321 12 Serg. & Rawle, 203.
5. When foreign laws cannot be proved by some mode which the law respects as
being of equal authority to an oath, they must be verified by the sanction of an
6. The usual modes of authenticating them are by an exemplification under the
great seal of a state; or by a copy proved by oath to be a true copy - or by a
certificate of an officer authorized by law, which must, itself, be duly
authenticated. 2 Cranch, 238; 2 Wend. 411; 6 Wend. 475; 5 Serg. &. Rawle,
523; 15 Serg. & Rawle, 84: 2 Wash. C. C. R. 175.
7. Foreign unwritten laws, customs and usages, may be proved, and are
ordinarily proved by parol evidence; and when such evidence is objected to on
the ground that the law in question is a written law, the party objecting must
show that fact. 15 Serg. & R. 87; 2 L. R. 154. Proof of such unwritten law
is usually made by the testimony of witnesses learned in the law, and competent
to state it correctly under oath. 2 Cranch, 237; 1 Pet. C. C. R. 225; 2 Wash. C.
C. R. 175; 15 Serg. & R. 84; 4 John. Ch. R. 520; Cowp. 174; 2 Hagg. R. App.
15 to 144.
8. In England certificates of persons in high authority have been allowed as
evidence in such cases. 3 Hagg. Eccl. R. 767, 769.
9. The public seal of a foreign sovereign or state affixed to a writing
purporting to be a written edict, or law, or judgment, is, of itself, the
highest evidence, and no further proof is required of such public seal. 2
Cranch, 238; 2 Conn. R. 85; 1 Wash. C. C. R. 363; 4 Dall. 413, 416; 6 Wend. 475;
9 Mod. 66.
10. But the seal of a foreign court is not, in general, evidence, without
further proof, and it must therefore be established by competent testimony. 3
John. R. 310; 2 Harr. & John. 193; 4 Cowen, 526, n.; 3 East, 221.
11. As courts of admiralty are courts under the laws of nations, their seals
will be admitted as evidence without further proofs. 5 Cranch, 335; 3 Conn. 171.
This is an exception to the general rule.
12. The mode of authenticating the laws and records of the several states of
the American Union, is peculiar, and will be found under the article
Authentication. It may hereby be observed that the rules prescribed by acts of
congress do not exclude every other mode of authentication, and that the courts
may admit, proof of the acts of the legislatures of the several, states,
although not authenticated under the acts of congress. Accordingly a printed
volume, purporting on its face to contain the laws of a sister, state, is
admissible, as prima facie evidence; to prove the statute law of that state. 4
Cranch, 384; 12 S. & R. 203; 6 Binn, 321; 5 Leigh, 571.
13. - 2. The effect of such foreign laws, when proved, is properly referable
to the court; the object of the proof of foreign laws, is to enable the ourt to
instruct the jury what is, in point of law, the result from foreign laws, to be
applied to the matters in controversy before them. The court are therefore to
decide what is the proper evidence of the laws of a foreign country; and when
evidence is given of those laws, the court are to judge of their applicability
to the matter in issue. Story, Cont. of L. §638 2 Harr. & John. 193. 219; 4
Conn. R. 517; 3 Harr. & John. 234, 242; Cowp. 174. Vide Opinion.
FOREIGN NATION or STATE. A nation totally independent of the United
States of America
2. The constitution authorizes congress to regulate commerce with "foreign
nations." This phrase does not include an Indian tribe, situated within the
boundaries of a state, and exercising the powers of government and sovereignty.
5 Pet. R. 1. Vide Nation.
FOREIGN PLEA. One which, if true, carries the cause out of the court
where it is brought, by showing that the matter alleged is not within its
jurisdiction. 2 Lill. Pr. Reg. 374; Carth. 402; Lill. Ent. 475. It must be on
oath and before imparlance. Bac. Ab. Abatement, R.
FOREIGNERS. Aliens; persons born in another country than the United
States, who have not been naturalized. 1 Pet. R. 349. Vide 8 Com. Dig. 615, and
the articles Alien; Citizens.
FOREJUDGED THE COURT. An officer of the court who is expelled the
same, is, in the English law, said to be forejudged the court. Cunn. Dict. h.
FOREMAN. The title of the presiding member of a grand jury.
FOREST. By the English law, a forest is a circuit of ground properly
under the king's protection, for the peaceable living and abiding of beasts of
hunting and the chase, and distinguished not only by having bounds and
privileges, but also by having courts and offices. 12 do. 22. The signification
of forest in the United States is the popular one of an extensive piece of
woodland. Vide Purlieu.
FORTSTALLING, crim. law. Every practice or device, by act, conspiracy,
words, or news, to enhance the price of victuals or other provisions. 3 Inst.
196; Bac. Ab. h. t.; 1 Russ. Cr. 169; 4 Bl. Com. 158.
2. All endeavors whatever to enhance the common price of any merchandise, and
all kinds of practices which have that tendency, whether by spreading false
rumors, or buying things in a market before the accustomed hour, are offences at
common law, and come under the notion of forestalling, which includes all kind
of offences of this nature. Hawk. P. C. b. 1 c. 8 0, s. 1. Vide 13 Vin. Ab. 430;
Dane's Ab. Index, h. t.; 4 Com. Dig. 391 1 East, Rep. 132.
FORFEITURE, punishment, torts. Forfeiture is a punishment annexed by
law to some illegal act, or negligence, in the owner of lands, tenements, or
hereditaments, whereby he loses all his interest therein, and they become vested
in the party injured, as a recompense for the wrong which he alone, or the
Public together with himself, hath sustained. 2 Bl. Com. 267.
2. Lands, tenements and hereditaments, may be forfeited by various means: 1.
By the commission of crimes and misdemeanors. 2. By alienation contrary to law.
3. By the non-performance of conditions. 4. By waste.
3. - 1. Forfeiture for crimes. By the Constitution of the United States, art.
3, s. 3, it is declared that no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted. And by the
Act of April 30, 1790, s. 24, 1 Story's Laws U. S. 88, it is enacted, that no
conviction or judgment for any of the offences aforesaid, shall work corruption
of blood, or any forfeiture of estate. As the offences punished by this act are
of the blackest dye, including cases of treason, the punishment of forfeiture
may be considered as being abolished. The forfeiture of the estate for crime is
very much reduced in practice in this country, and when it occurs, the stater
takes the title the party had, and no more. 4 Mason's R. 174; Dalrymple on
Feudal Property, c. 4, p. 145-154; Fost. C. L. 95.
4. - 2. Forfeiture by alienation. By the English law, estates less than a fee
may be forfeited to the party entitled to the residuary interest by a breach of
duty in the owner of the particular estate. When a tenant for life or years,
therefore, by feoffment, fine, or recovery, conveys a greater estate than he is
by law entitled to do, he forfeits his estate to the person next entitled in
remainder or reversion. 2 Bl. Com. 274. In this country, such forfeitures are
almost unknown, and the more just principle prevails, that the conveyance by the
tenant operates only on the interest which he possessed, and does not affect the
remainder-man or reversioner. 4 Kent, Com. 81, 82, 424; 1 Hill. Ab. c. 4, s. 25
to 34; 3 Dall. Rep. 486; 5 Ohio, R. 30.
5. - 3. Forfieture by non-performance of conditions. An estate may be
forfeited by a breach, or non-performance of a condition annexed to the estate,
either expressed in the deed at its original creation, or impliedly by law, from
a principle of natural reason. 2 Bl. Com. 281; and see Ad Eject. 140 to 173.
Vide article Reentry; 12 Serg. & Rawle, 190.
6. - 4. Forfeiture by waste. Waste is also a cause of forfeiture. 2 Bl. Com.
283. Vide article Waste.
7. By forfeiture is also understood the neglect of an obligor to fulfil his
obligation in proper time: as, when one has entered into a bond for a penal sum,
upon condition to pay a smaller at a particular day, and he fails to do it,
there is then said to be a forfeiture. Again, when a party becomes bound in a
certain sum by a recognizance to pay a certain sum, with a condition that he
will appear at court to answer or prosecute a crime, and he fails to do it,
there is a forfeiture of the recognizance. Courts of equity, and now courts, of
law, will relieve from the forfeiture of a bond; and upon a proper case shown,
criminal courts will in general relieve from the forfeiture of a recognizance to
appear. See 3 Yeates, 93; 2 Wash. C. C. 442 Blackf. 104, 200; Breeze, 257. Vide,
generally, 2 Bl. Com. ch. 18; Bouv. Inst. Index, h. t.; 2 Kent's Com; 318; 4 Id.
422; 10 Vin. Ab. 371, 394 13 Vin. Ab. 436; Bac. Ab. Forfeiture Com. Dig. h. t.;
Dane's Ab. h. t.; 1 Bro Civ. L. 252 4 Bl. Com. 382; and Considerations on the
Law of Forfeiture for High Treason, London ed. l746.
FORFEITURE OF MARRIAGE, Old law. The name of a penalty formerly
incurred by a ward in chivalry, when he or she married contrary to the wishes of
his or her guardian in chivalry. The latter, who was the ward's lord, had an
interest in controlling the marriage of his female wards, and he could exact a
price for his consent and, at length, it became customary to sell the marriage
of wards of both sexes. 2 Bl. Com . 70.
2. When a male ward refused an equal match provided by his guardian, he was
obliged, on coming of age, to pay him the value of the marrriage; that is, as
much as he had been bona fide offered for it; or, if the guardian chose, as much
as a jury would assess, taking into consideration all the real and personal
property of the ward; and the guardian could claim this value, although he might
have made no tender of the marriage. Co. Litt. 82 a; 2 Inst. 92 5 Co: 126 b; 6
Co. 70 b.
3. When a male ward between his age of fourteen and twenty-one years, refused
to accept an offer of an equal match, and during that period formed an alliance
elsewhere, without his permission, he incurred forfeiture of marriage; that is,
he became liable to pay double the value of, the, marriage. Co. Litt. 78 b, 82
FORGERY, crim. law. Forgery at common law has been held to be "the
fraudulent making and alteration of a writing to the prejudice of another man's
right." 4 Bl. Com. 247. By a more modern writer, it is defined, as " a false
making; a making malo animo, of any written instrument, for the purpose of fraud
and deceit." 2 East, P. C. 852.
2. This offence at common law is of the degree of a misdemeanor. 2 Russel,
1437. There are many kinds of forgery, especially subjected to punishment by
statutes enacted by the national and state legislatures.
3. The subject will be considered, with reference, .1. To the making or
alteration requisite to constitute forgery. 2. The written instruments in
respect of which forgery may be committed. 3. The fraud and deceit to the
prejudice of another man's right. 4. The statory provisions under the laws of
the United States, on the subject of forgery.
4. - 1. The making of a whole written instrument in the name of another with
a fraudulent intent is undoubtedly a sufficient making but a fraudulent
insertion, alteration, or erasure, even of a letter, in any material part of the
instrument, whereby a new operation is given to it, will amount to a forgery;
and this, although it be afterwards executed by a person ignorant of the deceit.
2 East, P. C. 855.
5. The fraudulent application of a true signature to a false instrument for
which it was not intended, or vice ve7-sa, will also be a forgery. For example,
it is forgery in an individual who is requested to draw a will for a sick person
in a particular way, instead of doing so, to insert legacies of his own head,
and then procuring the signature of such sick person to be affixed to the paper
without revealing to him the legacies thus fraudulently inserted. Noy, 101;
Moor, 759, 760; 3 Inst. 170; 1 Hawk. c. 70, s. 2; 2 Russ. on Cr. 318; Bac. Ab.
h. t. A.
6. It has even been intimated by Lord Ellenborough, that a party who makes a
copy of a receipt, and adds to such copy material words not in the original, and
then offers it in evidence on the ground that the original has been lost, may be
prosecuted for forgery. 5 Esp. R. 100.
7. It is a sufficient making where, in the writing, the party assumes the
name and character of a person in existence. 2 Russ. 327. But the adoption of a
false description and addition, where a false name is not assumed, and there is
no person answering the description, is not a forgery. Russ. & Ry. 405.
8. Making an instrument in a fictitious name, or the name of a non-existing
person, is equally a forgery, as making it in the name of au existing person; 2
East, P. C. 957; 2 Russ. on Cr. 328; and although a man may make the instrument
in his own name, if he represent it as the instrument of another of the same
name, when in fact there is no such person, it will be a forgery in the name of
a non-existing person.; 2 Leach, 775; 2 East, P. C. 963; but the correctness of
this decision has been doubted. Rosc. Cr. Ev. 384.
9. Though, in general, a party cannot be guilty of forgery by a mere
non-feasance, yet, if in drawing a will, he should fraudulently omit a legacy,
which he had been directed to insert, and by the omission of such bequest, it
would cause a material alteration in the limitation of a bequest to another; as,
where the omission of a devise of an estate for life to one, causes a devise of
the same lands to another to pass a present estate which would otherwise have
passed a remainder only, it would be a forgery. Moor, 760; Noy, 101; 1 Hawk. c.
70, s. 6; 2 East, P. C. 856; 2 Russ. on Cr. 320.
10. It may be observed, that the offence of forgery may be complete without a
publication of the forged instrument. 2 East, P. C. 855; 3 Chit. Cr. L.
11. - 2. With regard to the thing forged, it may be observed, that it has
been holden to be forgery at common law fraudulently to falsify, or falsely make
records and other matters of a public nature; 1 Rolle's Ab. 65, 68; a parish
register; 1 Hawk. c. 70; a letter in the name of a magistrate, the governor of a
gaol, directing the discharge of prisoner. 6 Car. & P. 129; S. C. 25 Eng. C.
L. R. 3 1 5.
12. With regard to private writings, it is forgery fraudulently to falsify or
falsely to make a deed or will; 1 Hawk. b. 1, c. 70, s. 10 or any private
document, whereby another person may be prejudiced. Greenl. Rep. 365; Addis. R.
33; 2 Binn. R. 322; 2 Russ. on Or. b. 4, c. 32, s. 2; 2 East, P. C. 861; 3 Chit.
Cr. Law, 1022 to 1038.
13. - 3. The intent must be to defraud another, but it is not requisite that
any one should have been injured it is sufficient that the instrument forged
might have proved prejudicial. 3 Gill & John. 220; 4 W. C. C. R. 726. It has
been holden that the jury ought to infer an intent to defraud the person who
would have to pay the instrument, if it were genuine, although from the manner
of executing the forgery, or from the person's ordinary caution, it would not be
likely to impose upon him; and although the object was general to defraud
whoever might take the instrument, and the intention of the defrauding in par
ticular, the person who would have to pay the instrument, if genuine, did not
enter into the contemplation of the prisoner. Russ. & Ry. 291; vide Russ..
on Cr. b. 4, c. 32, s. 3; 2 East, P. C. 853; 1 Leach, 367; 2 Leach, 775; Rosc.
Cr. Ev. 400.
14.- 4. Most, and perhaps all the states in the Union, have passed laws
making certain acts to be forgery, and the national legislature has also enacted
several on this subject, which are here referred to. Act of March 2, 1803, 2
Story's L. U. S. 888; Act of March 3, 1813, 2 Story's L. U. S. 1304 Act of March
1, 1823, 3 Story's L. U. S. 1889; Act of March 3, 1825, 3 Story's L. U. S. 2003;
Act of October 12, 1837, 9 Laws U. S. 696.
15. The term forgery, is also applied to the making of false or counterfeit
coin. 2 Virg. Cas. 356. See 10 Pet. 613; 4 Wash. C. C. 733. For the law
respecting the forgery of coin, see article Money. And for the act of congress
punishing forgery in the District of Columbia, see 4 Sharsw. Cont, of Story's
Laws U. S. 2234. Vide, generally, Hawk. b. 1, c. 51 and 70; 3 Chit. Cr. Law,
1022 to 1048; 4 Bl. Com. 247 to 250; 2 East, P. C. 840 to 1003; 2 Russ. on Cr.
b. 4, c. 32; 13 Vin. Ab. 459; Com. Dig. h. t.; Dane's Ab. h. t. Williams' Just.
h. t. Burn's Just. h. t.; Rose. Cr. Ev. h. t.; Stark. Ev. h. t. Vide article
FORISFAMILIATION, law of Scotl. By this is understood the act by which
a father gives to a child his share of his legitime, and the latter renounces
all further claim. From this time, the child who has so received his share, is
no longer accounted 4 child in the division of the estate. Ersk. Inst. 655, n.
23; Burt. Man. P. R. part 1, c. 2, s. 3, page 35.
FORM, practice. The model of an instrument or legal-proceeding,
containing the substance and the principal terms, to be used in accordance with
the laws; or, it is the act of pursuing, in legal proceedings, and in the
construction of legal instruments, the order required by law. Form is usually
put in contradistinction to substance. For example, by the operation of the
statute of 27 Eliz. c. 5, s. 1, all merely formal defects in pleading, except in
dilatory pleas, are aided on general demurrer.
2. The difference between matter of form, and matter of substance, in
general, under this statute, as laid down by Lord Hobart, is, that " that
without which the right doth sufficiently appear to the court, is form;" but
that any defect " by reason whereof the right appears not," is a defect in
substance. Hob. 233.
3. A distinction somewhat more definite, is, that if the matter pleaded be in
itself insufficient, without reference to the manner of pleading it, the defect
is substantial; but that if the fault is in the manner of alleging it, the
defect is formal. Dougl. 683. For example, the omission of a consideration in a
declaration in assumpsit; or of the performance of a condition precedent, when
such condition exists; of a conversion of property of the plaintiff, in trover;
of knowledge in the defendant, in an action for mischief done by his dog of
malice, in action for malicious prosecution, and the like, are all defects in
substance. On the other hand, duplicity; a negative pregnant; argumentative
pleading; a special plea, amounting to the general issue; omission of a day,
when time is immaterial; of a place, in transitory actions, and the like, are
only faults in form. Bac. Ab. Pleas, &c. N 5, 6; Com. Dig. Pleader, Q 7; 10
Co. 95 a; 2 Str. 694 Gould; Pl. c. 9, §17, 18; 1 Bl. Com. 142.
4. At the same time that fastidious objections against trifling errors of
form, arising from mere clerical mistakes, are not encouraged or sanctioned by
the courts, it has been justly observed, that "infinite mischief has been
produced by the facility of the courts in overlooking matters of form; it
encourages carelessness, and places ignorance too much upon a footing with
knowledge amongst those who practice the drawing of pleadings." 1 B. & P.
59; 2 Binn. Rep. 434. See, generally, Bouv. Inst. Index, h. t.
FORMA PAUPERIS, English law. When a person is so poor that he cannot
bear the charges of suing at law or in equity, upon making oath that he is not
worth five pounds, and bringing a certificate from a counselor at law, that he
believes him to have a just cause, he is permitted to sue informa pauperis, in
the manner of a pauper; that is, he is allowed to have original writs and
subpoenas gratis, and counsel assigned him without fee. 3 Bl. Com. 400. See 3
John. Ch. R. 65; 1 Paige, R. 588; 3 Paige, R. 273; 5 Paige, R. 58; 2 Moll. R.
475; 1 Beat. R. 54.
FORMALITY. The conditions which must be observed in making contracts,
and the words which the law gives to be used in order to render them valid; it
also signifies the conditions which the law requires to make regular
FORMEDON, old English law. The writ of formedon is nearly obsolete, it
having been superseded by the writ of ejectment. Upon an alienation of the
tenant in tail, by which the estate in tail is discontinued, and the remainder
or reversion is by the failure, of the particular estate, displaced and turned
into a mere right, the remedy is by action of formedon, (secundum formam doni,)
because the writ comprehends the form of the gift. This writ is in the nature of
a writ of right, and the action of formedon is the highest a tenant in tail can
have. This writ is distinguished into three species; a formedon in the
descender, in the remainder, and in the reverter. 8 Bl. Com. 191 Bac. Ab. h. t.;
4 Mass. 64.
FORMER RECOVERY. A recovery in a former action.
2. It is a general rule, that in a real or personal action, a judgment
unreversed, whether it be by confession, verdict or demurrer, is a perpetual
bar, and may be pleaded to any new action of the same or a like nature, for the
same cause. Bac. Ab. Pleas, I 12, n. 2; 6 Co. 7; Hob. 4, 5 Ventr. 170.
3. There are two exceptions to this general rule. 1. The case of mutual
dealings between the parties, when the defendant omits to set off his counter
demand in that case he may recover in a cross action. 2. When the defendant in
ejectment neglects to bring forward his title, he may avail himself of a new
suit. 1 John Cas. 492, 502, 510. It is evident that in these cases the cause of
the second action is not the same as that of, the first, and, therefore, a
former recovery cannot be pleaded. In real actions, one is not a bar to an,
action of a. higher nature. 6 Co. 7. Vide 12 Mass. 337; Res Judicata; Thing
FORMULARY. A book of forms or precedents for matters of law; the
FORNICATION, crim. law. The unlawful carnal knowledge of an unmarried
person with another, whether the latter be married or unmarried. When the party
is married, the offence, as to him or her, is known by the name of adultery. (q.
v.) Fornication is, however, included in every case of adultery, as a larceny is
included in robbery. 2 Hale's P. C. 302.
FORPRISE. Taken before hand. This word is sometimes, though but
seldom, used in leases and conveyances, implying an exception or reservation.
Forprise, in another sense, is taken for any exaction. Cunn. Dict. h. t.
TO FORSWEAR, crim. law, torts. To swear to a falsehood.
2. This word has not the same meaning as perjury. It does not, ex vi termini,
signify a false swearing before an officer or court having authority to
administer an path, on an issue. A man may be forsworn by making a false oath
before an incompetent tribunal, as well as before a lawful court. Hence, to say
that a man is forsworn, will or will not be slander, as the circumstances show
that the oath was or was not taken before a lawful authority. Cro. Car. 378;
Lut. 1292; 1 Rolle, Ab. 39, pl. 7 Bac. Ab. Slander, B 3; Cro. Eliz. 609 13
Johns. R. 80 Id. 48 12 Mass. 496 1 Johns. R. 505 2 Johns. R. 10; 1 Hayw. R,
FORTHWITH. When a thing is to be done forthwith, it seems that it must
be performed as soon as by reasonable exertion, confined to that object, it may
be done. This is the import of the term; it varies, of course, with every
particular case. 4 Tyr. 837; Styles' Register, 452, 3.
FORTIORI or A FORTIORI. An epithet for any conclusion or inference,
which is much stronger than another. "If it be so, in a feoffment passing a new
right, a fortiori, much more is it for the restitution of an ancient right." Co.
Litt. 253, 260.
FORTUITOUS EVENT. A term in the civil law to denote that which happens
by a cause which cannot be resisted. Louis. Code, art. 2522, No. 7. Or it is
that which neither of the parties has occasioned, or could prevent. Lois des
Bat. Pt. 2, c. 2, §1. It is also defined to be an unforeseen event which cannot
be prevented. Dict. de Jurisp. Cas fortuit.
2. There is a difference between a fortuitous event or inevitable accident,
and irresistible force. By the former, commonly called the act of God, is meant
any accident produced by physical causes, which are irresistable; such as a loss
by lightning or storms, by the perils of the seas, by inundations and
earthquakes, or by sudden death or illness. By the latter is meant such an
interposition of human agency, as is, from its nature and power, absolutely
uncontrollable. Of this nature are losses occasioned by-the inroads of a hostile
army, or by public enemies. Story on Bailm. §25; Lois des Bat. Pt. 2, c. 2,
3. Fortuitous events are fortunate or unfortunate. The accident of finding a
treasure is a fortuitous event of the first class. Lois des Bat. Pt. 2, c. 2,
4. Involuntary obligations may arise in consequence of fortuitous events. For
example, when, to save a vessel from shipwreck, it is necessary to throw goods
overboard, the loss must be borne in common; there arises, in this case, between
the owners of the vessel and of the goods remaining on board, an obligation to
bear proportionably the loss which has been sustained. Lois desBit. Pt. 2, c. 2,
§2. See, in general, Dig. 50, 17, 23; Id. 16, 3, 1; Id. 19, 2, 11; Id. 44, 7, 1;
Id. 18, 6, 10 Id. 13, 6, 18; Id. 26, 7, 50; Act of God; Accident; Perils of the