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while acting in any other fiduciary capacity," to take the benefit of that act. Sect. 1. See 2 Mete. R. 343.
FIEF or FEUD. In its origin, a fief was a district of country, allotted to one of the chiefs who invaded the Roman empire, as a stipend or 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. 2 Bl. Com. 45; Encyclopedic, h. t.; Merl. Rep. h. t.
FIERI FACIAS, practice, is 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 catallix, &c, that you cause to be made of the goods and chattels, &c. Co. Litt. 290 b. 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. This subject will be considered with regard to, 1, the form of the writ; 2, its effects; 3, the manner of executing it.
1. The writ is issued in the name 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 were adjudged for his damages, 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 honourable John B. Gibson, our chief justice, at Philadelphia, the tenth day of October, in the year of our Lord one thousand eight hundred and thirty-nine." It must be signed by the prothonotary, or clerk of the court, and sealed with its seat. 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 than 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 only 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. 4 Serg. & Rawle, 394; 18 John. 502; 1 Serg. 6c Rawle, 453; 1 Dall. 481 ; and see Tidd's Pr. 933; Com. Dig. Pleader, 2 D. 15; 1 Hayw. 298; 2 Hayw. 112.
2. At common law the writ bound the goods of the defendant or party against whom it was issued, from the teste day; by which must be understood that the writ bound the property against the party himself, and all claiming by assignment from, or by representation under him; 4 East, R. 538; so that a sale by the defendant of his goods to a bona fide purchaser, did not 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. 39, under No. III. The statute 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 coroner, 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 same,) 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.
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 seisure 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 Co. 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 authorised 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; I Sid. 186;, S. C. 1 Keb. 689; or of a store disconnected with the dwellinghouse, 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. Dig. Execution, c. 5.
Vide Wats. on Sher. ch. 10; Bing. Ex. c. 1, s. 4; Gilb. on Exec. Index, h. t.; Grah. Pr. 321; Troub.
6 Hal. Pr. Index, h. t; Com. Dig. Execution, C 4; Process, F 5, 7; Caines's Pr. Index, h. t.; Tidd's Pr. Index, h. t.; Sell. Pr. Index, h. t.
FIERI FECI, in practice, is the return which the sheriff, or other proper officer, makes to certain writs, signifying, "I have caused to be made." 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.
FIGURES, are numerals. They are either Roman, made with letters of the Alphabet, for example, MDCCLXXVI; or they are Arabic, as follows, 1776. Roman figures may be used in contracts and law proceedings, and they will be held valid; but Arabic figures, probably owing to the ease with which they may be counterfeited, or altered, have been holden not to be sufficient to express the sum due on a contract; and 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. Bills of exchange, promissory notes, checks 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 1 Ch. Cr. L. 176; 1 Verm. R. 336; 5 Toull. n. 366; 4 Ycates, R. 278; 2 John. R. 233.
FILACER, FILAZER, or FILIZER, 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, a string or wire, upon which writs and other exhibits in courts and offices are fastened or filed, for the more safe keep-1 ing and ready turning to the same. The papers put together in order, in bundles and tied, are also called a |
side of the centre of the worked part of the road, although the whole of the smooth or most travelled path may be upon one side of that centre. 7 Wend. 185.
FIN DE NON RECEVOIR, French law. It is an exception or plea founded on law, which without entering into the merits of the cause, 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. Vide Exception.
FINAL, that which puts an end to a thing. It is used in opposition to interlocutory; as, a final judgment, is a judgment which ends the controversy between the parties litigant. 1 Wheat. 355; 2 Pet. 449. See 12 Wheat. 135; 4 Dall. 22; 9 Pet. 1 ; 6 Wheat. 448; 3 Cranch, 179; 6 Cranch, 51.
FINDER, is one who lawfully comes to the possession of another's personal property, which was then lost. The finder is entitled to cer
file. A paper is said to be filed,! tain rights and liable to duties which when it is delivered to the proper he is obliged to perform. This is a
officer, and by him received to be kept on file. 13 Vin. Ab. 211.
FILIATION, civil law, is the descent of son or daughter with regard to her father, mother, and their ancestors.
FILLEY. A mare not more than one year old. Russ. & Ry. 416; lb. 494.
FILUM AQUJE, thread or middle of a water-course, (q. v.)
FILUM VLE. The thread or centre of the road. Where a law requires travellers meeting each other on a road to drive their carriages to the right of the centre of the road, the parties are bound to keep on their
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; 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 butter, 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 finds 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 be held responsible for gross negligence. 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 if 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. And when the owner does not reclaim the goods lost, they belong to the finder. 1 Black. Com. 296; 2 Kent's Com. 290. How far the finder is responsible criminally, see 1 Hill, (N. Y.) Rep. 94.
FINDING, practice. That which has been ascertained, as, the finding of the jury is conclusive as to matters of fact.
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, in conveyances, and in practice, is 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.
The stat. 18 E. 1, 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 a writ of pratcipe 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 concordi, or leave to agree to 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 cove, nant, and the concord; naming tho 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 be. fore whom it was acknowledged or levied.
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 an acknowledgment of the right of the cognizee, as that which he has of the gift of the cogni. zor. 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 tho cogniaor 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 Hie 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 cognitance 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 covenant, whereas the fine sur cognizance de droit come ceo, &e, 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, in criminal law, is a pecuniary punishment imposed by a lawful tribunal, upon a person convicted of crime or misdemeanor. See Shep. Touchs. 2; Bac. Abr. Fines and Amercements. The amount of the fine is frequently left to the discretion of the court, who ought to proportion each 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.
FIRE, ACCIDENTAL. It is an uncontrollable fire which arises in consequence of some human agency, without any intention, or which happens by some natural cause without human agency. Whether a fire arise purely by accident, or from any other cause, when it becomes uncon
trollable and dangerous to the public, a man may, in general, justify the destruction of a house on fire for the protection of the neighbourhood, for the maxim salus populi est suprema lex, applies in such case. 11 Co. 13; Jac. Intr. 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. 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.
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.
FIRM. The persons composing a partnership, taken collectively, are called the firm. Sometimes this word is used synonymously with partnership. 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, per sons taking bills under it, though without his knowledge, had a right to look to him for payment. Penke's N. P. Cas. 80; and see 7 East, R. 210; 2 Bell's Com. 670, 5th ed. But it would seem, 1st, that any act