FORISFAMILIATION, law of Scotl. By this is understood the act by which a father gives to a child his share of his legitime, and the latter renounces1 all further claim. From this time, the child who has so received his share, is no longer accounted 4 child in the pision of the estate. Ersk. Inst. 655, n. 23; Burt. Man. P. R. part 1, c. 2, s. 3, page 35.
FORM, practice. The model of an instrument or legal-proceeding, containing the substance and the principal terms, to be used in accordance with the laws; or, it is the act of pursuing, in legal proceedings2, and in the construction of legal instruments, the order required by law. Form is usually put in contradistinction to substance. For example, by the operation of the statute3 of 27 Eliz. c. 5, s. 1, all merely formal defects in pleading, except in dilatory5 pleas, are aided on general demurrer.
2. The difference between matter of form, and matter of substance, in general, under this statute, as laid down by Lord Hobart, is, that that without which the right doth sufficiently6 appear to the court, is form; but that any defect by reason whereof the right appears not, is a defect in substance. Hob. 233.
3. A distinction somewhat more definite, is, that if the matter pleaded be in itself insufficient7, without reference to the manner of pleading it, the defect is substantial; but that if the fault is in the manner of alleging8 it, the defect is formal. Dougl. 683. For example, the omission9 of a consideration in a declaration in assumpsit; or of the performance of a condition precedent10, when such condition exists; of a conversion11 of property of the plaintiff, in trover; of knowledge in the defendant12, in an action for mischief13 done by his dog of malice14, in action for malicious15 prosecution16, and the like, are all defects in substance. On the other hand, duplicity; a negative pregnant; argumentative pleading; a special plea, amounting to the general issue; omission of a day, when time is immaterial; of a place, in transitory actions, and the like, are only faults in form. Bac. Ab. Pleas, c. N 5, 6; Com. Dig. Pleader, Q 7; 10 Co. 95 a; 2 Str. 694 Gould; Pl. c. 9, 17, 18; 1 Bl. Com. 142.
4. At the same time that fastidious objections against trifling17 errors of form, arising from mere4 clerical mistakes, are not encouraged or sanctioned by the courts, it has been justly observed, that infinite mischief has been produced by the facility of the courts in overlooking matters of form; it encourages carelessness, and places ignorance too much upon a footing with knowledge amongst those who practice the drawing of pleadings. 1 B. P. 59; 2 Binn. Rep. 434. See, generally, Bouv. Inst. Index, h. t.
FORMA PAUPERIS, English law. When a person is so poor that he cannot bear the charges of suing at law or in equity19, upon making oath that he is not worth five pounds, and bringing a certificate from a counselor20 at law, that he believes him to have a just cause, he is permitted to sue informa pauperis, in the manner of a pauper18; that is, he is allowed to have original writs22 and subpoenas23 gratis24, and counsel assigned him without fee. 3 Bl. Com. 400. See 3 John. Ch. R. 65; 1 Paige, R. 588; 3 Paige, R. 273; 5 Paige, R. 58; 2 Moll. R. 475; 1 Beat. R. 54.
FORMALITY. The conditions which must be observed in making contracts, and the words which the law gives to be used in order to render them valid25; it also signifies the conditions which the law requires to make regular proceedings.
FORMEDON, old English law. The writ21 of formedon is nearly obsolete26, it having been superseded27 by the writ of ejectment. Upon an alienation28 of the tenant29 in tail, by which the estate in tail is discontinued, and the remainder or reversion is by the failure, of the particular estate, displaced and turned into a mere right, the remedy is by action of formedon, because the writ comprehends the form of the gift. This writ is in the nature of a writ of right, and the action of formedon is the highest a tenant in tail can have. This writ is distinguished30 into three species; a formedon in the descender, in the remainder, and in the reverter31. 8 Bl. Com. 191 Bac. Ab. h. t.; 4 Mass. 64.
