FORMER RECOVERY. A recovery in a former action.
2. It is a general rule, that in a real or personal action, a judgment1 unreversed, whether it be by confession2, 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 mutual3 dealings between the parties, when the defendant4 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 Adjudged.
FORMULARY. A book of forms or precedents5 for matters of law; the form.
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. Fornication is, however, included in every case of adultery, as a larceny7 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 conveyances8, implying an exception or reservation. Forprise, in another sense, is taken for any exaction9. Cunn. Dict. h. t.
TO FORSWEAR, crim. law, torts. To swear to a falsehood.
2. This word has not the same meaning as perjury10. 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 incompetent11 tribunal, as well as before a lawful6 court. Hence, to say that a man is forsworn, will or will not be slander12, 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, 116.
FORTHWITH. When a thing is to be done forthwith, it seems that it must be performed as soon as by reasonable exertion13, 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 epithet14 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 restitution15 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 inevitable16 accident, and irresistible17 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 perils18 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, §1.
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, §2.
4. Involuntary obligations may arise in consequence of fortuitous events. For example, when, to save a vessel19 from shipwreck20, 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 Sea.
