Legal Terms: Letter F

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Forcible Entry and Detainer.

The taking or keeping possession of real property through threats or force, with no authority of law. To make such forcible entry there must be such acts of violence, menaces, or gestures as may give reason to anticipate personal injury or danger in making a defense. But the force must be more than is implied in mere trespass.

 There are in most of the States statutes regulating proceedings in cases of forcible entry, directing the manner of proceeding for the restoration of property unlawfully withheld and the punishment of the offender. The plea of ownership is not a justification of the defendant, for no one may enter even upon his own property in any other than a peaceable manner. Nor can he be excused on the plea that he entered to enforce a lawful claim or make a distress, nor on the plea that possession was finally obtained by entreaty. The policy of this legislation is to prevent the disturbance of the public peace, and to compel disputants to settle their controversy in a court of justice.

Originally by the common law of England the right of entry upon land of which one had been unlawfully deprived might be exercised by force or threats, if necessary. But by a series of early statutes, the first of which dates back to the time of Richard II., this remedy was limited to an entry "in a peaceable and easy manner, and not with force or strong hand."


The legal process whereby a mortgagor's right, or 'equity,' of redemption is cut off and the mortgagee's lien on the mortgaged lands or goods enforced. In order to put a limit on the 'equity of redemption' of the mortgagor, the remedy of foreclosure was devised by the Court of Chancery. It is available to the mortgagee at any time after default, and is instituted by a bill of foreclosure praying that an account may be taken of the principal and interest due under the mortgage, and that the mortgagor, on failing to pay by a specified date, may forfeit his equity of redemption. If on the day fixed for payment the money be not forthcoming, the
mortgagor will be declared to have forfeited his equity of redemption , and the mortgagee will be allowed to retain the estate in perpetuity. This method of enforcing the security of the mortgagee of lands is still in use in England and in many of the United States.

In a few of the American States, however, in which the mortgage has come to be regarded as a mere lien, and not as a legal estate in the mortgagee, a statutory process, known also as a foreclosure, has been adopted in lieu of the foregoing process of 'strict' foreclosure. This differs from the older method principally in the fact that it involves the satisfaction of the debt, not by a forfeiture, but by a sale of the mortgaged premises. The suit, which is also in equity, is instituted by the mortgagee as a plaintiff, the mortgagor and all creditors, subsequent lienors, and other parties in interest, being made defendants. The demand is for a
judgment that the defendants be foreclosed and cut off from all their interest in the mortgaged premises, and that the same be sold to satisfy the mortgage debt. The sale is made upon notice, and is at public auction, generally by the sheriff or a referee appointed by the court. After the sale the money in the hands of the referee will be applied to the payment of the mortgage, and any surplus may be claimed by subsequent mortgagees; or, if there is no other claim upon it, it will be paid to the mortgagor. Other methods of effecting a foreclosure, by legal rather than equitable process, as by a writ of entry or of ejectment directed by the mortgagee against the mortgagor, also occur in a few States.

Foreign Attachment

A process which a few local courts of England have authority, by immemorial custom, to issue. The custom of the Mayor's Court of London is that when a foreigner defendant, of whom the court has jurisdiction, does not appear in response to a summons served on him, the plaintiff may attach his goods or debts due to him as security to enforce his appearance. Recent decisions of
the House of Lords have so narrowed the custom and have pointed out so many difficulties of procedure under it that it has fallen into disuse. In this country the attachment or garnishment of the goods or debts of non-residents is regulated by statutes in the several States.

Forms of Action

The approved classes into which actions are divided under the common-law system of pleading and practice. They had their origin in the use of original writs, which were mandatory letters or processes issuing in the King's name, containing a statement of the alleged injury, and directing the sheriff to first command the defendant to satisfy the claim, and, on his failure to do so, to summon him into court to answer and defend the complaint made against him. Many of these writs were of remote antiquity, some of them antedating the Conquest, and others being shaped by the clerks and judicial officers of the Norman Kings. They were drafted in fixed and certain forms, providing remedies for the more ordinary and obvious civil wrongs. These writs were limited in number; and where an injured person could not make the facts of his case fit the allegations of a known writ, he was wholly without remedy, as there was no other way in which he could get his cause before the south. Thus they had the effect of limiting and defining the right of action itself, and for this reason the enumeration of writs and causes of action became identical. This condition of affairs, was somewhat relieved by the introduction of curious and arbitrary legal fictions, whereby an old writ was made to do service for a new
cause of action. Thus, there being no form of action for the recovery of goods unlawfully detained by a tort-feasor, the action in trover, originally devised to permit the recovery of lost goods from the finder, was without change of form made available for the more general purpose. For example, if A, having B's goods in his possession, wrongfully withheld them from B, the writ would allege that B had casually lost the goods and A had found them, but, although knowing them to be the goods of B, had refused to deliver them to him. B was not required to prove this fiction, but could show the true circumstances, which might be that he had given. A
the goods to store for him, to be returned on demand, and that A had converted them to his own use.;

A further important modification of the ancient forms of action was effected by a statute enacted in the reign of Edward I., which provided that where the facts of a new case were similar to those covered by a known writ, the clerks of Chancery should have power to frame a new writ to meet the exigencies of the case. This caused an increase in the number of writs, and consequently in forms of action, the new forms being known as actions on the case, i.i.e. actions in similar cases (in consimili casu), and contributed very greatly to making the common-law system more efficient in the administration of justice. Notwithstanding these changes, forms of action have always remained inflexible and insufficient for the relief of many civil wrongs, and this inflexibility has been a potent cause of the growth of equity jurisdiction.

The following were the principal forms of action at common law: Assumpsit, Covenant, Debt, Account, trespass, Trover, Case, Detinue, Replevin, Ejectment, and Writ of Entry. They have been abolished in England by the Judicature Acts (q.v.), and in several of the United States have been superseded by modern forms of action instituted by codes of procedure; but they are still in use with some changes and modifications in some jurisdictions.


Website: The History
Article Name: Legal Terms: Letter F
Researcher/Transcriber Miriam Medina


BIBLIOGRAPHY: From my Collection of Books: The New International Encyclopedia; 1902-1905 Dodd, Mead and Company-New York Total of 21 Volumes
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