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duce the opposite party into error, or to retain him there. The intention to deceive, which is the characteristic of fraud, is here present. Fraud is also divided into that which has induced the contract, dolus duns causum contractus, and incidental or accidental fraud. The former is that which has been the cause or determining motive of the contract, that without which the party defrauded would not have contracted, when the artifices practised by one of the parties have been such, that it is evident without them the other would not have contracted. Incidental or accidental fraud is that by which a person otherwise determined to contract, is deceived on some accessories or incidents of the contract; for example, as to the quality of the object of the contract, or its price, so that he has made a bad bargain. Accidental fraud does not, according to the civilians, avoid the contract, but simply subjects the party to damages. It is otherwise where the fraud has been the determining cause of the contract, qui causam de.dit contractus; in that case the contract is void. Toull. Dr. Civ. Fr. Liv. 3, t. 3, c. 2, n. § 5, n, 86, et seq. Vide Catching bargain; Lesion; Voluntary Conveyance.
FRAUDS, STATUTE OF. The name commonly given to the statute 29 Car. 2, c. 3, entitled " An act for prevention of frauds and perjuries." This statute has been re-enacted in most of the states of the Union, generally with amendments and alterations. When the words of the statute have been used, the construction put upon them has also been adopted. Most of the acts of the different states will be found in Anthon's Appendix to Shep. Touchst. See also the Appendix to the second edition of Roberts on Frauds.
FRAUDULENT CONVEYANCE. See Voluntary Conveyance.
FREE. Not bound to servitude; at liberty to act as one pleases. This word is put in opposition to slave. Representatives and direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. Const. U. S. art. 1, s. 2. It is also put in contradistinction to being bound as an apprentice; as, an apprentice becomes free on attaining the age of twenty-one years. The Declaration of Independence asserts that all men are born free, and in that sense, the term includes all mankind.
FREE WARREN, Eng. law, in a franchise erected for the preservation and custody of beasts and fowls of warren. .2 Bl. Com. 39; Co. Litt. 233.
FREEDMEN, was the name given by the Romans to those persons who had been released from a state of servitude. Vide Liberti libertini.
FREEHOLD, estates. An estate of freehold is an estate in lands or other real property, held by a free tenure, for the life of the tenant or that of some other person; or for some uncertain period. It is called liberum tenementum, frank tenement or freehold; it was formerly described to be such an estate as could only be created by livery of seisin, a ceremony similar to the investiture of the feudal law. But since the introduction of certain modern conveyances, by which an estate of freehold may be created without livery of seisin, this description is not sufficient. There are two qualities essentially requisite to the existence of a freehold estate. 1 Immobility; that is the subject-matter must either be land, or some interest issuing out of or annexed to land. 2. A sufficient legal indeterminate duration; for if the utmost period of time to which an estate can last, is fixed and determined, it is not an estate of freehold. For example, if lands are conveyed to a man and his heirs, or for his life, or for the life of another, or until he shall be married, or go to Europe, he has an estate of freehold; but if such lands are limited to a man for one hundred or five hundred years, if he shall so long live, he has not an estate of freehold. Cruise on Real Property, t. 1, s. 13, 14 and 15; Litt. § 59; 1 Inst. 42 a; 5 Mass. R. 419; 4 Kent, Com. 23. Freehold estates are of inheritance or not of inheritance. Cruise, t. 1, s. 42.
FREEHOLDER, a person who is the owner of a freehold estate.
FREEMAN. One who is in the enjoyment of the right to do whatever he pleases, not forbidden by law. One in the possession of the civil rights enjoyed by the people generally.
FREIGHT, mar. law, contracts, is the sum agreed on for the hire of a ship, entirely or in part, for the carriage of goods from one port to another; 13 East, 300, note; but m its more extensive sense it is applied to all rewards or compensation paid for the use of ships. 1 Pet. Adm. R. 206; 2 Boulav-Patv, t. 8, s. 1; 2 B. & P. 321; 4 Dnll. R. 459; 3 Johns. R. 335; 2 Johns. R. 346; 3 Pardess. n. 705. It will be proper to consider, 1, how the amount of freight is to be fixed; 2, what acts must be done in order to be entitled to freight; 3, of the lien of the master or owner.
1. The amount of freight is usually fixed by the agreement of the parties, and if there be no agreement, the amount is to be ascertained by the usage of the trade, and the circumstances and reason of the case.
| 3 Kent, Com. 173. Pothier is of opinion that when the parties agree as to the conveyance of the goods, without fixing a price, the master is entitled to freight at the price usually paid for merchandise of a like quality at the time and place of shipment, and if the prices vary he is to pay the mean price, Charte-part. n. 8. But there is a case which authorises the master to require the highest price, namely, when goods are put on board without his knowledge. Ib. n. 9. When the merchant hires the whole ship for the entire voyage, he must pay the freight though he does not fully lade the ship; he is of course only bound to pay in proportion to the goods he puts on board, when he does not agree to provide a full cargo. If the merchant agrees to furnish a return cargo, and he furnishes none, and lets the ship return in ballast, he must make compensation to the amount of the freight; this is called dead freight, (q. v.) in contradistinction to freight due for the actual carriage of goods. Roccus, note 72—75; 1 Pet. Adm. R. 207; 10 East, 530; 2 Vern. R. 210.
2. The general rule is that the delivery of the goods at the place of destination, in fulfilment of the agreement of the charter party, is required, to entitle the master or owner of the vessel to freight. But to this rule there are several exceptions: 1, when a cargo consists of live stock, and some of the animals die in the course of the voyage, without any fault or negligence of the master or crew, and there is no express agreement respecting the payment of freight, it is in general to be paid, for all that were put on board; but when the contract is to pay for the transportation of them, then no freight is due for those which die on the voyage. Molloy, b. 2, c. 4, s. 8; Dig. 14, 2, 10; Abb. Ship. 272.-2. An
interruption of the regular course of the voyage, happening without the fault of the owner, does not deprive him of his freight if the ship afterwards proceed with the cargo to the place of destination , as in the case of capture and recapture. 3 Rob. Adm. R. 101—3. When the ship is forced into a port short of her destination, and cannot finish the voyage. If in this case the owner of the goods will not allow the master a reasonable time to repair, or to proceed in another ship, the master will be entitled to the whole freight; and, if after giving his consent the master refuse to go on, he is not entitled to freight. —4. When the merchant accepts of the goods at an intermediate port, it is the general rule of marine law, that freight is to be paid according to the proportion of the voyage performed, and the law will imply such contract. The acceptance must be voluntary, and not one forced upon the owner by any illegal or violent proceedings, as, from it, the law implies a contract that freight pro rata itineris shall be accepted and paid.
2 Burr. 883; 7 T. R. 381; Abb. Shipp. part 3, c. 7, s. 13; 3 Binn. 445; 5 Binn. 525; 2 Serg. & Rawle, 229; I W. C. C. R. 530; 2 Johns. R. 323; 7 Cranch, R. 358; 6 Cowen,, R. 504; Marsh. Ins. 281, 691:
3 Kent, Com. 182; Com. Dig. Merchant, E 3 a, note, pl. 43, and the cases there cited.—5. When the ship has performed the whole voyage, and has brought only a part of her cargo to the place of destination; in this case there is a difference between a general ship, and a ship chartered for a specific sum for the whole voyage. In the former case, freight is to be paid for the goods which may be delivered at their place of destination; in the latter it has been questioned whether the freight could be apportioned, and, it seems, that in such case a partial performance is not
sufficient, and that a special payment cannot be claimed except in special cases. 1 Johns. R. 24; 1 Bulstr. 167; T T. R. 381; 2 Campb. N. P. R. 466. These are some of the exceptions to the general rule, called for by principles of equity, that a partial performance is not sufficient, and that a partial payment or rateable freight cannot be claimed.
3. In general the master has a lien on the goods, and need not part with them until the freight is paid; and when the regulations of the revenue require them to be landed in a. public warehouse, the master may enter them in his own name and preserve the lien. His right to retain the goods may however be waived either by an express agreement at the time of making the original contract, or by his subsequent agreement or consent. Vide 18 Johns. R. 157; 4 Cowen, R. 470; 1 Paine's R. 358; 5 Binn. R. 392.
Vide, generally, 13 Vin. Ab. 501; Com. Dig. Merchant, E 3, a; Bac. Ab. Merchant, D; Marsh. Ins. 91; 10 East, 394; 13 East, 300, n.; 3 Kent, Com. 173; 2 Bro. Civ. & Adm. L. 190; Merl. Rep. h. t.; Poth. Charte-Partie, h. t.; BoulayPaty, h. t.; Pardess. Index, Affretement.
FREIGHTER, contracts, is he to whom a ship or vessel has been hired. 3 Kent, Com. 173; 3 Pardess. n- 704. The freighter is enti. tied to the enjoyment of the vessel according to contract, and the vessel hired is the only one that he is bound to take; there can, therefore, be no substitution without his consent. When the vessel has been chartered only in part, the freighter is only entitled to the space he has contract, ed for; and in case of his occupying more room, or putting on board a greater weight, he must pay freight on the principles mentioned under the article freight. The freighter is required to use the vessel agreeably to the provisions of the charter-party, or, in the absence of any such provisions, according to the usages of trade: he cannot load the vessel with merchandise which would render it liable to condemnation for violating the laws of a foreign state. 3 John. R. 105. The freighter is also required to return the vessel as soon as the time for which he chartered her has expired, and to pay the freight.
FRESH SUIT, Engl, law, is an earnest pursuit of the offender, when a robbery has been committed, without ceasing, until he has been arrested or discovered. Toml. Law Diet. h. t.
FRIBUSCULUM, in the civil law, was a slight dissention between husband and wife, which produced a momentary separation, without any intention to dissolve the marriage, in which it differed from a divorce. Poth. Pand. lib. M, s. 106. This amounted to a separation, (q. v.) in our law.
FRIENDLESS MAN. This name was sometimes anciently given to an outlaw.
FRIGIDITY, med. juris. The same as impotence, (q. v.)
FRUIT, property, the production of trees and other plants. Fruit is considered real estates before it is separated from the plant or tree on which it grows; after its separation it acquires the character of personalty, and may be the subject of larceny: it then has all the qualities of personal property.
The term fruit, among the civilians signifies not only the production of trees and other plants, but all sorts of revenue of whatever kind they may be. Fruits may be distinguished into two kinds; the first, called natural fruits, are those which the earth produces without culture, as hay, the production of trees, minerals, and the
like; or with culture, as grain and the like. Secondly, the other kind of fruits, known by the name of civil fruits, are the revenue which is not produced by the earth, but by the industry of man, or from animals, from some estate, or by virtue of some rule of law. Thus, the rent of a house, a right of fishing, the freight of a ship, the toll of a mill, are called, by a metaphorical expression, fruits, Domat, Lois Civ. liv. 3, tit. 5, s. 3, n. 3. See Poth. De la Communaute, n. 45.
FUERO JURGO. A Spanish code of laws, said to be the most ancient in Europe. Barr. on the Stat. 8, note.
FUGAM FECIT, Eng. law. He fled. This phrase is used to express that it has been found by inquisition that a person fled for treason or less- ny. The effect of this is to make the party forfeit his goods absolutely, and the profits of his lands until he has been pardoned or acquitted.
FUGITIVE SLAVE, is one who has escaped from the service of his master. The constitution of the United States, art. 4, s. 2, 3, directs that" no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any laws or regulation therein, be discharged from such service or labour, but shall be delivered up, on claim of the party to whom such service or labour may be due." In practice summary ministerial proceedings are adopted, and not the ordinary course of judicial investigations, to ascertain whether the claim of ownership be established beyond all legal controversy. In some states strenuous but unsuccessful efforts have been made to procure the supposed slave a trial by jury. Vide generally, 3 Story, Com. on Const. § 1804-1806; Berg. on Const. ch. 31, p. 387; 9 John. R. 62; 5 Serg. & Rawle, 62; 2 Pick. R. 11; 2 Serg. & Rawle, 306; 3 lb. 4; 1 Wash. C. C. R. 500; 14 Wend. R. 507, 539; 18 Wend. R, 678; 22 Amer. Jur. 344.
FUGITIVE FROM JUSTICE, crim. law, is one who having committed a crime within a jurisdiction goes into another in order to evade the law, and avoid its punishment. By the constitution of the United States, art. 4, s. 2, 2, it is provided that " a person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the same state from which he fled, be delivered up, to be removed to the state having jurisdiction ofthe crime." The act of thus delivering up a prisoner is, by the law of nations called extradition, (q. v.) Different opinions are entertained in relation to the duty of a nation, by the law of nations, independently of any treaty stipulations, to surrender fugitives from justice when properly demanded. Vide 1 Kent, Com. 36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle, 125; 3 Story, Com. Const. United States, § 1801. 9 Wend. R. 218; 2 John. R. 479; 5 Binn. R. 617; 4 Johns. Ch. R. 113; 22 Am. Jur. 351; 24 Am. Jur. 226; 14 Pet. R. 540; 2 Caines, R. 213.
FUNCTION, office, is properly the occupation of an office, by the performance of its duties; the officer is said to fill his function. Dig. lib. 32, I. 65, § 1.
FUNCTIONARY. One who is in office or in some public employment.
FUNDED DEBT, is that part of the national debt for which certain funds are appropriated towards the payment of the interset.
FUNDUS, civil law. Any portion of land whatever, without considering the use or employ to which it is applied.
FUNERAL EXPENSES. Money expended in procuring the interment of a corpse. The person who orders the funeral is responsible personally for the expenses, and if the estate of the deceased should be insolvent, he must lose the amount. But if there are assets sufficient to pay these expenses, the executor or administrator is bound, upon an implied assumpsit, to pay them. 1 Campb. N. P. R. 298; Holt, 309; Com. on Contr. 529; 1 Hawke's R. 394; 13 Vin. Ab. 563. Frequent questions arise as to the amount which is to be allowed to the executor or administrator for such expenses. It is exceedingly difficult to gather from the numerous cases which have been decided upon this subject any certain rule. Courts of equity have taken into consideration the circumstances of each case, and when the executors have acted with common prudence and in obedience to the will, their expenses have been allowed. In a case where the testator directed to be buried at a church thirty miles distant from the place of his death, the sum of sixty pounds sterling was allowed; 3 Atk. 119; and in another case, under peculiar circumstances, six hundred pounds was allowed. Preced. in Ch. 29. In a case in Pennsylvania where the intestate left a considerable estate, and no children, the sum of two hundred and fifty-eight dollars and seventy-five cents was allowed, the greater part of which had been expended in erecting a tomb-stone over a vault in which the body was interred. 14 Serg. & Rawle, 64. It seems doubtful whether the husband can call upon the separate personal estate of his wife to pay her funeral expenses. 6. Madd. R. 90.
Vide 2 Bl. Com. 508; Godolph. p. 2; 3 Atk. 249; Off. Ex. 174; Bac. Ab. Executors, dcc., L 4; Vin. Ab. h. t.