« PreviousContinue »
through the agency of the Vattemaire “In the case of Queen 2'. Dent, 1 Car. system of exchange was admitted.
& K. 97, a witness, not of the legal pro" In Jones v. Maffet, 5 S. & R. (Pa.) session, was admitted
prove the fact 523, a copy of the Irish statutes, sworn as to the law. But this decision is deto by a barrister as having been received cidedly condemned. See Sussex Peerfrom the king's printer, was received. age, 11 Clark & Finnelly, 124-134.
“The U. S. supreme court, in Talbot “ In the case of Lacon v. Higgins, 3 v. Seemen, 1 Cranch (U. S.), 19, lay down Starkie, 178, Abbott, C. J. (Ld. Tenterthe rule that the laws of a foreign coun- den), admitted a copy of the French code try, designed for the direction of its own produced by the French consul, and affairs, are not to be noticed unless sworn by him as the one used and acted proved as facts; and in that case they on by him, and purporting to be printed admitted an edict of France, which had at the royal French printing office, where been promulgated in the U. S. govern- the laws were printed by authorisy. The ment; and in Church v. Hubbart, 2 decisions seem to have very much conCranch 187, they say that the sanction flicted, sometimes (generally in N. Y.) of an oath is required, unless verified by the written law being rejected unless some high authority entitled to equal proved by exemplification. And see respect with an oath,
Richardson V. Anderson in note to I "In that case a Portuguese law and its Campbell, 64. translations were certified to by the U.S. “Chancellor Kent, in Brush v. Wilconsul at Lisbon. He did not testify to kins, 4 John. Ch. (N. Y.) 506, admitted them on oath. The court say that they the law of Demerara, as to succession are not verified by oath, and that it was and wills to be proved by a witness. The not a consular duty or function to certify report does not, indeed, say that it was to laws; and imply strongly, that if there statute law. had been testimony on oath it would * The decisions of the later date, howhave been admitted. It is impossible, ever, have evidently tended allow the says C. J. Marshall to suppose that this statute laws of a foreign State to be veri. copy might not have been authenticated fied, or to the effect and construction of by the oath of the consul as well as by such law to be proved, by the oath of his certificate. That this was the ground a witness. of that decision is stated in the supreme
“ In Sussex Peerage case (1844), II court in Ennis v. Smith, 14 How. (U. S.) Clark & F. 85, Dr. Wiseman was called 400, 427, where the court say the copies as a witness to prove the laws of marwould have been admitted in that case if riage at Rome, and referred to a book Sworn to.
containing the decrees of the Council And in Ennis v. Smith, 14 How. (U. of Trent as regulating them. The S.) 429, the court held that foreign writ- judges of the committee of the House of ten laws may be verified by an oath, or Lords expressed their opinions separately. proved by exemplification, etc. ... But Lord Brougham: 'The wilness may resuch modes of proof as have been men- fresh his recollection by referring to tioned are not to be considered as exclu- authorities, etc.' Lord Lyndhurst, Lord sive of others, especially of codes of law Chancellor: • The witness may thus corand accepted histories of the laws of a rect and confirm his recollection of the country. And they say that a foreign law, though he is the person to tell us law may be received when it is found in what it is.' Lord Brougham agreed with a statute-book, with proof that the book the Lord Chancellor. • The witness may has been officially promulgated by the refer to the sources of his knowledge, government which made the law.
but the proper mode of proving a law is * In Packard v. Hill, 2 Wend. (N. Y.) not by showing a book. The House re411, the court rejected a copy of a statute quires the assistance of a lawyer who establishing the court of consulado in knows how to interpret it.' Lord C. J. Havana, produced by a witness who had Denman: • There does not appear to be in purchased it in Havana, and who testi. fact any real difference of opinion. There fied that he had practised in the court, is no question raised here as to any exand that the court was governed by that clusive mode of getting at the evidence, law. A book purchased in a book-store, for we have both materials of knowledge purporting to contain the laws of a State,
offered us. We have the witness, and he unless published by authority, would not states the law, which he says is correctly be admitted anywhere, etc.
laid down in these books. The books are * In the case of Chanoine v. Fowler, 3 produced, but the witness describes them Wend. (N. Y.) 173, the edition of laws as authoritative, and explains them by did not purport to be an official edition. his knowledge of the actual practice of the law. A skilful and scientific man the written law. The mere contents of must state what the law is, but may refer the law might often mislead. He then to books and statutes to assist him in so criticised the decisions in 3 Esp. 58; 3 doing. This was decided after full argu. Campb. 166, 4 Camp. 155, and refers 10 ment on Friday last in the court of Lacon v. Higgins, 3 Starkie, 178; Picion's queen's bench (Baron de Bode's case). case, 30 State Trials, 225 and 491; MidThere was a difference of opinion; but dleton v. Janverin, 2 Hagg. Cons. 437. the majority of the judges clearly held, on 442, and says he can perceive no distinc. an examination of all the cases, and after tion between proof from a copy of the a full discussion, that proof of the law il- law, as we find it now tendered. self, in the case of a foreign law, could “ Justices Coleridge and Williams connot be taken from the book of the law, curred, and gave their reasons at length. but from the witness who described the The written law itself, they say, would be law. If the witness says: “I know the of liule use compared with the opinion of law, and this book truly states the law, a scientific person, who could give the then you have the authority of the wit- exact construction. Justice Patterson ness and the book. You may have to dissented, and held it necessary to proopen the question on the knowledge or duce the written law. The reasons given means of knowledge of the witnesses, for his dissent go far to show the effect and other witnesses may give a different of the decision. interpretation to the same matter, in “ It has thus been decided that an exwhich case you must decide as well as you pert may state the written las without can on the conflicting testimony; but producing it. Lord Dennan says that you must take evidence from the wit- they decided that the proof of the law ness."
was to be not from the book, but from the * Lord Campbell concurred in saying: witnesses; and the reasons given bear The foreign law is matter of fact. out his statement. You ask the witness what the law is: he “ And it is but one step farther to de. may from his recollection, or on his pro- cide, as was held in the Sussex Peerage ducing and referring to books, say what case, that the witness may refer to the il is,' etc.
book to refresh his memory, etc. “ Lord Langdale, M. R.: 'Foreign law And in the last edition of Phillips on is matter of fact. A witness, more or less Evidence (2428, ch. 584) the law is siated skilled in it, is called to depose to it. He in substantially the words of that decision. may state it from his own knowledge, or See also Lord Nelson v. Bridport, 8 refer to text-books or books of decisions.' Beaver, 527, 535, 537, 539. etc.
“Dr. Wiseman went on to testify, that "In the Matter of Roberts' Will, s by virtue of his office as Roman Catholic Paige (N. Y.) 446, Chancellor Keni rebishop and coadjutor to the vicar apostolic lied on the evidence of an expert in relain England, he had jurisdiction of the tion to laws of Cuba, for the reasons we subject of Catholic marriages.'
have stated above. " The Lord Chancellor: 'He comes “In the case of Vander Donck v. Thelwithin the description of a person peritus lusson, 8 M. G. & S. 812 (1849), the court, virtute officii.' Lord Langdale: His after argument, admitted a person who evidence is in the nature of that of a was not a lawyer to prove the law of Beljudge's.' It was admitted.
gium as to bills of exchange. In this case "Mr. Westlake (Conflict of Laws, $ 414, it was stated in the note that the old note) seems to think that Lord Denman French Code of Commerce (without the has overstated the result of the decision subsequent French modifications) was in in Baron de Bode's case. It might well force in Belgium. be supposed that the chief justice ought “The question before the court is not to know what his own court of king's the existence of a particular law, but to bench had decided, and on looking at the ascertain the exact state of the law at a case in 8 A. & E. N. S. 208, we find his particular date, including its construction statement supported. A witness was and effect. offered, who testified that the feudal sys- “In this case the evidence offered is tem in Alsace had been abolished by that of a person who testifies that he has decree of the French Assembly of 1789. practised law in Havana for twenty-four The decree itself was produced. Lord years; has been consulting lawyer of one Denman, C. J., said that the rule admits of the tribunals and a judge; and that the ting testimony of persons of science ap- book to which he refers, purporting to be plied not only to unwritten but to writ- the Spanish Code of Commerce of 1823, ten law. The question was not only is the code of commercial law in force in the contents, but the state and effect of that island.”
FOREIGN LIEN-See LIEN.
FOREIGNER.--(See ALIENS.)--An alien ; one born in another country, not a naturalized citizen. 1
FORESTALLING THE MARKET.-Forestalling the market consists in buying victuals on their way to market, before they reach it, with intent to sell them again at an increased price. Every device, practice, conspiracy, by act, words, or news, to enhance the market price of merchandise is a forestalling of the market. 3
Forestalling the market was an offence at common lawi and by the English statute ;5 but the offence was done away with by a subsequent statute. In the United States, forestalling the market takes the form of “corners" or of “ trusts," which are attempts by one person or a conspiracy or combination of persons to monopolize an article of trade or commerce, or to control or regulate to restrict the its manufacture or production in such a manner as supply, and so enhance the price. Such a combination is illegal, though probably not criminal, and any agreement in pursuance of its object is void."
1. Lessee of Spratt v. Sprati, 1 Pet. to appoint a committee to take charge of (U. S.) 343.
their interests, which was to decide all 2. Bouv. L. Dict. (15th Ed.) 677. disputed questions and appoint a general
3. 3 Co. Inst. 196; 1 Russ. Cr. (5th agent, through whom all the coal mined Ed.) 349; 4 Bl. Com. 138; 13 Viner Abr. was to be delivered, each corporation to 430: 1 East, 132; King v. De Berenger, deliver its proportion, at its own cost, in 3 Maule & S. 67.
the different markets, al such time and 4. i Hawk. P. C. 234.
to such persons as the committee might 5. Under Early English Statute.-For- direct; the respective companies to sell stalling the market was defined by 5 & 6 their coal only to the extent of their proEdw. VI., c. 14, to be the buying or con- portions, and at prices adjusted by the tracting for any merchandize or victual committee; is against public policy, and coming in the way to market; or dissuad- void. Morris Run Coal Co. v. Baring persons from bringing their goods or clay Coal Co., 68 Pa. Si. 173. provisions there; or pursuading them to Salt combination.-And so held as to a enhance the price, when there ; any of similar combination of salt manufacturwhich practices make the market dearer ers. McIlvaine, C. J., said: “ The clear to the fair trader."
tendency of such an agreement is to 6. 7 & 8 Vict., c. 24.
establish a monopoly, and to destroy 7. Wright v. Crabbs, 78 Ind. 487; In competition in trade, and for that reason. dia Bagging Assoc. V. Kock, 14 La. Ann. on grounds of public policy, courts will 164; Sampson z. Shaw, 101 Mass. 145; not aid in its enforcement. It is no Arnot v. Piteston & E. Coal Co., 68 N. answer to say that competition in the salt Y. 558; s. C., 23 Am. Rep. 190; Clancy v. trade was not in fact destroyed, or that Onondaga Fine Salt, etc., Co., 62 Barb. the price of the commodity was not un(N. Y.) 395; Central Ohio Salt Co. v. reasonably advanced. Courts will not Guthrie. 33 Ohio St. 666; Kouniz v. Cil- stop to inquire as to the degree of injury izens' Oil-Refining Co., 72 Pa. St. 392; inflicted upon the public; it is enough to Kountz v. Kirkpatrick, 72 Pa. St. 376; know that the inevitable tendency of Morris Run Coal Co. v. Barclay Coal such contracts is injurious to the public. Co., 68 Pa. St. 173: Com. v. Tack, I Nor is this agreement within the princiBrews. (Pa.) 511. Compare Ontario Salt ple which permits a person to bind himCo. v. Merchants' Sali Co., 18 Grant self not to engage in trade at a particu
lar place. Here the restraint was gen. Coal corner. -An agreement between a eral. A member of this association, unnumber of coal corporations to divide der this agreement, could not engage in two coal regions which they controlled; the traffic at any place during the life of
FORESTS.—See WOODS AND FORESTS.
the association, except only to retail to opposed to public policy, leaves unsettled actual consumers, at the place of manu- the great question, which must ultimately facture, and then only from salt in bulk be decided when the validity of 'trusi and at the price named by the company.' is passed upon. Central Ohio Salt Co. 2. Guthrie, 35 In a suill more recent case decided at Ohio St. 666.
nisi prius by the Special Term of the Canadian Doctrine.-But such an agree. New York Supreme Court on January 9, ment and combination was held valid 1889, People v. Norih River Sugar Re. and legal by a Canada court. Ontario fining Co., Judge Barrett holds that the Salt Co. v. Merchants’ Salt Co., 18 Grant defendant corporation forfeited its char
ter and franchises participating in a Agreement not to sell. --An agreement combination between the owners of cerbetween several firms not to sell any In- tain sugar refineries; that the surrender dia cotton-bagging for three months, ex- by the stockholders of all the stock of the cept with the consent of a majority of corporation to the trust board was the them, was held illegal and invalid, as be- act of the corporation amounting to a ing in restraint of trade. India Bagging partnership arrangement, and says: “In Assoc. v. Kock, 14 La. Ann. 164, doing so they have plainly abused their
“Trusts," “Combinations," Syndi- powers and have exercised privileges not cates.”—It was recently held, in the case conferred on them by law, As legal of Mallory v. Hanauer Oil Works (Tenn. conclusions, forfeiture of the defendant's 1888), 21 Am. & Eng. Corp. Cas. 478, that franchise and dissolution justly follow." a contract whereby corporations, engaged The combination is also held illegal on in manufacturing cotton-seed oil, or any the ground that it creates a monopoly. other commodity, forming thereby what is 1. An oain that a defendant is about known as a “trust, combination,” or to leave the State permanently is a suffi"syndicale,'engage to turn over the prop- cient compliance with an act providing erty and machinery of the respective mills for attachments in such cases, requiring to a select committee composed of rep- an oath that he is about to leave the State resentatives from each corporation, to be forever. Sawyer v. Arnold, i La. Ann. managed and operated by this committee, 315. through officers, agents, and employees - Forever" in an act establishing a selected by them, for the common bene county seat means until changed by fit of all, the profits and losses of such the legislature. Casey v. Harned, 5 operations, to be shared in proportion Iowa, 1. agreed upon, is ultra vires and invalid. This word in conveyances is not equirMr. McKinney, in a note appended to alent to heirs, and does not import inthis case, says that “ It is important, not heritable qualities. An estate to a man from the fact that any new doctrine is forever, or to himand his assigns forever, enunciated or any well-settled rules dis- is a life estate. 2 Bl. Com. 107; Co. Turbed, but because it was the first de- Lill, I; i Washb, on R. P. (5th Ed.), 56; cision to apply certain principles of the Dennis v. Wilson, 107 Mass. 593; Willlaw, well enough settled in themselves, to iam v. Woodard, 2 Wend. (N. Y.) 492; a method of doing business which, al- Ewan v. Cox. 4 Halst. (N. J.) 10. But though novel, yet has come into vogue to see Vernon v. Wright, 7 H. L. Ca, at p. a very considerable extent during the 52. The term forever" following last two years. The failure of the court to words that creaie an estate tail, does not pass upon the validity of the combination enlarge it into a fee. Vernon v. Wright, as one tending to create a monopoly, and 7 H. L. Ca. 35.
FORFEIT-FORFEITURE. 1. Definition, 443.
20. Of Policy of Life Insurance, 447. 2. By Alienation, 443.
21. Of Lease, 447. 3. By Attainder, 444.
22. Of License, 447. 4. Of the Body, 444.
23. Of Marriage, 448. 5. Of Copyhold, 414.
24. Of Mortgage, 448. 7. Condition, 414.
25. Of Office, 448. 7. In Contract, 444.
26. Of Patents, 448. 8. Covenants, 444.
27. For Non-payment of Rent, 448. 9. Of Corporate Rights, 445.
28. For Violation of Revenue Laws, ró. Of Charter, 445.
29. By Statute, 419.
[449 II. For Crimes, 445.
30. Relief Against Forfeiture, 449. 12. In a Deed, 445,
31. Of Stock or Shares in Corpora13. Of Deposits, 446.
tions, 450. 14. Enforcement of, 446.
32. Of Ship, 451. 15. Of Estate, 446.
33. Of Tenancy, 451. 16. Evidence, 446.
34. For Taxes, 451. 17. Injunction, 446.
35. Of Wages, 451. 18. of Insurance Policy, 446.
36. Waiver of, 451. 19. Of Policy of Fire Insurance, 447. 37. For Waste, 452.
1. Definition.-Forfeiture means the loss of something as a penalty for doing or omitting to do a certain required act;
the taking of some property, right, privilege, franchise, or benefit from one person, and transferring the same to another;? 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 the same becomes vested in the party injured, as a recompense for the wrong which he alone, or the public together with himself, hath sustained.3 The term includes the loss as a penalty, and the transfer of the thing to another without the owner's consent,4 for the violation of some law, or duty, or obligation.5
2. By Alienation. By the English law, an estate less than a fee is forfeited to the party entitled to the residuary interest by breach of duty in the owner of the particular estate; as when a tenant for life or for years conveys, by feoffment, fine, or recovery, a greater
1. Gosselink v. Campbell, 4 Iowa, 300. fiscation is the appropriation of an ene.
2. Walter v. Smith, 5 B. & A. 439; 21 my's property, and forfeiture is the ap. Ala. 672; 10 Gratt. (Va.) 700.
propriation of a citizen's property on ac3. 2 Bl. Com. 267; 1 Bouv. Dict. 602; count of the owner's violation of law. Hob. 242; 4 Bac. Abr. 337.
Story (C. C.) 130; 13 Pet. (U. S.) 157; I The common-law forfeiture does not Keni Com. 67; 3 Am. L. J. 46. exist in the United States. Const. U. S. For the learning of forfeiture at com. art. III., $ 3. By this provision, no at- mon law, and forfeiture for treason and tainder of treason shall work corruption felony, see 4 Bac. Abr. 337; Co. Litt. 8; of blood or forfeiture, except within the 3 Inst. 19; Stamf. P. C. 191; 2 Hawk. life of the person attainted; and by act of P. C. ch. 49. $ 3. Congress, April 30, 1790, $ 24, no con- 4. U. S. v. Ulrici, 3 Dill. (U. S.) 532; viction or judgment shall work corrup- Wakefield v. Johnson, 26 Ark. 506. tion of blood or forfeiture of estate. 5. i Kent Com. 67; i Story (C. C.), 134; Story Laws (U. S.), 88; 1 Mason (U. S.), Bell Dict. Laws of Scot. 392: i Broom & 174; and in the States, Fire Dept. v. Hadley Com. 703, 704.
The loss of Kip, 10 Wend. (N. Y.) 266.
goods as a compensation for an office Forfeit, to lose as a penalty, includes a and injury to the person to whom they loss and transfer to another. Forfeiture are forfeited, as well as a punishment for is different from confiscation; the former a misdemeanor. Merchants' Bank v. relates to the acts of the owner, and the Bliss, 21 How. Pr. (N. Y.) 370, citing 2 latter to acts c: the government. Con- Bl. Com. 420; i Robt. (N. Y.) 403.