FACTORAGE. The wages or allowances paid to a factor for his services; it is more usual to call this commissions. 1 Bouv. Inst. n. 1013; 2 Id. n. 1288.

FACTORY, Scotch¹ law. A contract which partakes of a mandate² and locatio ad operandum, and which is in the English and American law books discussed under the title of Principal and Agent. 1 Bell's Com. 259.

FACTUM. A deed. a man's own act and deed.

2. When a man denies by his plea that he made a deed on which he is sued, be pleads non estfactum. (q. v.) Vide Deed; Fait.

FACTUM, French law. A memoir³ which contains summarily the fact on which a contest has happened, the means on which a party founds his pretensions⁴, with the refutation of the means of the adverse⁵ party. Vide Brief.

FACULTY⁶, canon law. A license⁷; an authority. For example, the ordinary having the disposal of all seats in the nave⁸ of a church, may grant this power, which, when it is delegated, is called a faculty, to another.

2. Faculties⁹ are of two kinds; first, when the grant is to a man and his heirs in gross; second, when it is to a person and his heirs, as appurtenant to a house which he holds in the parish. 1 T. R. 429, 432; 12 Co. R. 106.

FACULTY, Scotch law. Equivalent to ability or pow-er. The term faculty is more properly applied¹⁰ to a power founded on the consent of the party from whom it springs, and not founded on property. Kames on Eq. 504.

FAILURE. A total defect; an omission¹¹; a non-performance. Failure also signifies a stoppage of payment; as, there has been a failure to-day, some one has stopped payment.

2. According to the French code of commerce, art. 437, every merchant or trader who suspends payment is in a state of failure. Vide Bankruptcy¹²; Insolvency¹³.

FAILURE, OF ISSUE. When there is a want of issue to take an estate limited over by an executory devise.

2. Failure of issue is definite or indefinite. When the precise time for the failure of issue is fixed¹⁴ by the will, as is the case of a devise to Peter, but if he dies without issue living at the time of his death, then to another, this is a failure of issue definite. An indefinite failure of issue is the very converse¹⁵ or opposite of this, and it signifies a general failure of issue, whenever it may happen, without fixing any time, or a certain or definite period, within which it must happen. 2 Bouv. Inst. n. 1849.

FAILURE OF RECORD. The neglect to produce the record after having pleaded it. When a defendant¹⁶ pleads a matter, and offers to prove it by the record, and then pleads nul tiel record, a day is given to the defendant to bring in the record if he fails. to do so, he is said to fail, and there being a failure of record, the plaintiff is entitled to judgment¹⁷. Termes de lay Ley. See the form of entering it; 1 Saund. 92, n. 3.