FORTUNE

FORTUNE.

In a devise," Fortune " includes the realty as well as he personalty (Spearing v. Hawkes, 6 Ir. Ch. Rep. 297: Baring v. Ashburton, 54 L. T. 464).

V. SUBSTANCE: REASONABLE PORTION.

FORTUNES.-"Pretending or professing to tell fortunes," Vagrancy Act, 1824, s. 4; V. Penny v. Hanson, cited DECEIVE. Vf, Monck v. Hilton and cognate cases, cited OTHERWISE: PALMISTRY: PRETEND : ROGUE AND VAGABOND.

Cp, CONJURATION.

FORWARD. - The "Forward Part" of a Vessel 150 feet or upwards in length, Art. 11, Regns for Preventing Collisions at Sea, means, that forward part of her from which the prescribed light will give, to those navigating in the vicinity, good information as to her length; a light fixed just forward of the middle length of the vessel would (possibly) not do; but a light 60 or 70 feet abaft the stem of a vessel 313 feet long will comply with the requirement (The Philadelphian, 1900, P. 43, 262; 69 L. J. P. D. & A. 31, 101; 82 L. T. 601; 48 W. R. 514).

FORWARDER.-V. CARrier.

Stat. Def.31 & 32 V. c. 33, s. 2.

FORWARDING CO.-"Forwarding Co" and "Co requiring the traffic to be forwarded," s. 11 (1), Regn of Railways Act, 1873, 36 & 37 V. c. 48, "apply to any Co who (being interested in the TRAFFIC of a Ry, in pursuance of their legitimate interest and that of the public) require that it shall be forwarded by a continuous route on just and reasonable terms, as provided by the statute, although the traffic is not under their immediate management" (Greenock & Wemyss Bay Ry v. Caledonian Ry, 5 Sess. Ca. 4th Ser. 995; 3 Ry & Can Traffic Ca. 145; cited and adopted Central Wales Ry v. G. W. Ry, 4 Ry & Can Traffic Ca. 113).

Vf, Warwick & Birmingham Canal Nav. v. Birmingham Canal Nav., 3 Ry & Can Traffic Ca. 113: THROUGH TRAFFIC: s. 37 (4), 51 & 52 V. c. 25.

FORWARDS." Forwards and Backwards," in a Marine Insrce; V. Grant v. Paxton, 1 Taunt. 463.

FOSSILS. "The word 'Fossils' may, in a strict sense, apply to stones dug or quarried. Usually, however, it appears to apply only to metallic minerals" (MacS. 19, citing Rosse v. Wainman, 14 M. & W. 872, 873; 15 L. J. Ex. 67; affd nom. Wainman v. Rosse, 2 Ex. 800).

(Jowett v. Spencer, 1 Ex. 647; 17 L. J. Ex. 367).

"No sufficient Distress to be Found on the demised premises," s. 2, 4 G. 2, c. 28; s. 210, Com. L. Pro. Act, 1852, Goods are not so to be found" if they are not so visible that a broker, using reasonable diligence, would be able to distrain them (Doe d. Haverson v. Franks, 2 C. & K. 678); nor if a distress be prevented by the outer door being locked (Doe d. Chippendale v. Dyson, 1 Moo. & M. 77: Doe d. Cox v. Roe, 5 Dowl. & L. 272: Hammond v. Mather, 3 F. & F. 151).

"Cannot be found"; V. CAnnot.

"

A Person is "found" wherever he is actually present, e.g. in the phrase "found within the Jurisdiction of any Court of Justice in Her Majesty's Dominions," s. 21, 18 & 19 V. c. 91 (R. v. Lopez and R. v. Sattler, 27 L. J. M. C. 48; 6 W. R. 227; 7 Cox C. C. 431).

The difference between "Found" and " Frequenting" as used in s. 4, Vagrancy Act, 1824, was pointed out in R. v. Clark (54 L. J. M. C. 66; nom. Clark v. Reg., 14 Q. B. D. 92); where it was decided that a person “found" in a house, &c, for the purpose of committing a felony, could be convicted if only "found" there once; but that the offence of "frequenting" a street, &c, for a like purpose, is not shown to have been committed if the evidence does not show that the person was there more than once. V. FREQUENT: ROGUE AND Vagabond.

In like manner a person "found" in a suspected COMMON GAMING HOUSE (including, a Betting House), s. 14, 33 H. 8, c. 9, s. 11; 16 & 17 V. c. 119,- need not be shown to be "haunting, resorting, or playing"; if he is merely there, the magistrate may, under the first of those sections, bind him in recognizances" no more to play, haunt, or exercise" (Murphy v. Arrow, 1897, 2 Q. B. 527; 66 L. J. Q. B. 865; 77 L. T. 435; 46 W. R. 94).

"Found committing," - e.g. in s. 66, 2 & 3 V. c. 47; s. 103, 24 & 25 V. c. 96, applies to the case of persons who are taken flagrante delicto doing the specific act (Simmons v. Millingen, 15 L. J. C. P. 102; 2 C. B. 524: Vf, Roberts v. Orchard, 33 L. J. Ex. 65; 2 H. & C. 769; 9 L. T. 737: Griffiths v. Taylor, 46 L. J. C. P. 152; 2 C. P. D. 194: Downing v. Capel, 36 L. J. M. C. 97; L. R. 2 C. P. 461), or who are taken on "immediate and FRESH PURSUIT" after the act (per Tindal, C. J., Hanway v. Boultbee, 1 Moo. & R. 15). Cp, BLOODY HAND: MANNER: VIEW.

"Found offending," - e.g. 5 G. 4, c. 83, ss. 6, 11, has a similar meaning; so that a Constable cannot, without a Warrant, arrest a man for having neglected to maintain his family (Horley v. Rogers, 29 L. J. M. C. 140; 24 J. P. 261). "Found on" licensed premises after hours, 25, 35 & 36 V. c. 94, would, semble, receive a similar interpretation.

S.

FOUND

759

FOUNDATION

"Found drunk on licensed premises," s. 12, 35 & 36 V. c. 94, means to be so found "in places where the public go, or which are open and where the public may enter and consume drink " (per Mellor, J., Lester v. Torrens, 46 L. J. M. C. 281; 2 Q. B. D. 403); and, therefore, it was there held that an Innkeeper, in his own inn after the same is closed, cannot commit the offence. But, semble, the above dictum of Mellor, J., was too wide, though the actual decision in Lester v. Torrens is correct; and a drunken customer remaining on licensed premises after closing time is within the enactment, though the door has been closed (R. v. Pelly, 1897, 2 Q. B. 33; 66 L. J. Q. B. 519; 61 J. P. 373): Semble, that licensed premises are not properly closed whilst a customer remains therein (Ib.).

Article "found in the Possession of any person,' s. 47 (3), 54 & 55 V. c. 76; V. per Hawkins, J., R. v. Dennis, 63 L. J. M. C. 166; 1894, 2 Q. B. 458; 71 L. T. 436; 58 J. P. 622.

Regimental Equipments "found in the Possession or Keeping of any person," s. 156 (2), Army Act, 1881, 44 & 45 V. c. 58; V. Laws v. Read, 63 L. J. Q. B. 683.

Found to be due," note (d), item 72, Court Fees Order, 1884, construed “found to have been received" (Re Crawshay, 57 L. J. Ch. 923; 39 Ch. D. 552; 59 L. T. 598).

Found to be of UNSOUND MIND," s. 1, 14 & 15 V. c. 81; V. Re Maltby, 50 L. J. Q. B. 419; 7 Q. B. D. 18.

"To Found," or "to Establish" a CHARITY, such as a school, hospital, or chapel, primâ facie involves the erection of a building for it; and a bequest for such a purpose is within the Mortmain Acts, as implying the bringing of lands into Mortmain (Hopkins v. Philipps, 30 L. J. Ch. 671; 3 Giff. 182: Tatham v. Drummond, 34 L. J. Ch. 1; 2 H. & M. 262; 4 D. G. J. & S. 484: Re Goldsmid, Mocatta v. A-G., 34 S. J. 63; W. N. (89) 184. Sv, quà "establish," Hartshorne v. Nicholson, 27 L. J. Ch. 810; 26 Bea. 58: PROVIDE. Vf, 1 Jarm. 228, 229, 230). But a bequest "to Found a Charitable Endowment" is good (Salusbury v. Denton, 26 L. J. Ch. 851; 3 K. & J. 529: ENDOW: ERECT); and so is a bequest for Supporting or Founding" ragged schools in a parish where such a school already exists (Re Hedgman, Morley v. Croxon, 8 Ch. D. 156: V. SUPPORT). Cp, NEWLY ESTABLISH.

"

FOUNDATION.-V. FOUNDER: BOY: PRIVATE FOUNDATION. "Foundation," requiring instruction "according to the Doctrines or Formularies of any PARTICULAR CHURCH," s. 19 (2), Endowed Schools Act, 1869, 32 & 33 V. c. 56, does not comprise Christ's Hospital, London, as being specially attached to the Church of England (Christ's Hospital v. Charity Commrs, 59 L. J. P. C. 52; 15 App. Ca. 172; 62 L. T. 10; 38 W. R. 758).

Quà London Bg Act, 1894, "Foundation,' applied to a Wall having

FOUNDATION

760

FOUNDERSHIP.

footings, means, the solid ground or artificially formed support on which the footings of the wall rest; but in the case of a wall carried by a BRESSUMMER, means such bressummer" (subs. 9, s. 5). Cp, BASE. Quà P. H. Ireland Act, 1878, 41 & 42 V. c. 52, "Foundations,' shall mean, the space immediately beneath the footings of a wall" (s. 41).

FOUNDED ON. A Motion is not in any way "founded on" an Affidavit relating merely to procedure, e.g. an affidavit of service, — so as to require copy of such affidavit to be served with notice of motion under R. 4, Ord. 52, R. S. C. (per Pearson, J., Witham v. Witham, 29 S. J. 707: Schirges v. Schirges, 30 S. J. 403; W. N. (86) 85). But in Re Lysaght (31 S. J. 233), North, J., declined to follow that interpre

tation.

Action "founded on Breach of Contract within the Jurisdiction, R. 1 (e), Ord. 11, R. S. C.; V. Ann. Pr.

Action may be said to be "Founded on CONTRACT," or "Founded on TORT," V. s. 5, Co. Co. Act, 1867; s. 116, Co. Co. Act, 1888. In Bryant v. Herbert (47 L. J. C. P. 670; 3 C. P. D. 389; 26 W. R. 498; 49 L. T. 17) there was a curious conflict of opinion as to whether these are Terms of Art: Bramwell, L. J., said, "They are plain English words, and are to have the meaning ordinary Englishmen would give them "; whilst Brett, L. J., said, "With the greatest deference to my learned brother, I do not think those words can be called plain English; for they seem to me to be technical terms." "The rule is this; if the action is in respect of a Cause of Action in order to make out which it is not necessary for the plt to rely on, or prove, a Contract, then the action is Founded on Tort; if, on the other hand, the action is one for the successful maintenance of which it is necessary for the plt to rely on, or prove, a contract, then the action is Founded on Contract" (per Smith, L. J., Turner v. Stallibrass, cited TORT).

FOUNDER. The "Founder" of an ENDOWMENT is the person or persons who originally created it; and "every accretion to the original subscriptions, which was not an endowment for any new and special purpose, must be taken to be upon the footing of the original foundation" (per Selborne, C., St. Leonards Trustees v. Charity Commrs, 54 L. J. P. C. 31; 10 App. Ca. 304). Accordingly it was held in that case that mere Subscribers to an endowment subsequent to its origination, are not "Founders" within the Endowed Schools Acts, 1869, 1873 (32 & 33 V. c. 56, s. 19; 36 & 37 V. c. 87, s. 7). Vf, as to what is a Foundation, R. v. Runciman, cited PRIVATE ENDOWMENT.

'Founder," 17 Ric. 2, c. 1, a worker of metals by melting and casting (Termes de la Ley).

FOUNDERSHIP.-V. A-G. v. Brentwood School, 3 B. & Ad. 73.

FOUNDRY

761

FRANCHISE

FOUNDRY.-"Foundries"; V. NON-TEXTILE FACTORIES.

FOURTH.-V. SEVENTH.

FOWL.-Fowls of the Warren are of two sorts, viz., Terrestres and Aquatiles. Terrestres of two sorts, Silvestres, and Campestres: - Campestres, as Partridge, Quaile, Raile, &c; Silvestres, as Pheasant, Woodcocke, &c; Aquatiles, as Mallard, Herne, &c " (Co. Litt. 233 a): Grouse are not Fowls of the Warren (Devonshire v. Lodge, 7 B. & C. 36). Beasts of the Warren, V. BEASTS: GAME, Animals.

"The word 'Fowl' comprehends all birds and poultry" (per Holt, C. J., Keeble v. Hickeringill, 11 East, 577).

V. WILDFOWL. Sv, WILD Bird.

FOWLING. -V. HUNTING.

In Devonshire v. O'Connor (cited FREEHOLD), Esher, M. R., is thus reported, "It is said that the word 'Fowling' contains the right of Shooting. It probably does” (24 Q. B. D. 478), but in the Law Journal the words are, "It perhaps does, even though the word 'Fowling' does include Shooting, which I am inclined to doubt" (59 L. J. Q. B. 212).

...

FOX'S ACT.-The Libel Act, 1792, 32 G. 3, c. 60. Vh, 5 Encyc.

472.

FRACTION.- Fraction of a Day; V. DAY.

FRACTITIUM. Arable land: 2 Mon. Angl. 873 (Jacob).

FRANCHISE.-"Franchise or Liberty. A royal Privilege belonging either to the Crown or to a subject by virtue of a grant from the Crown, either express, or implied from long enjoyment; Wms. on Rights of Common, 228" (Elph. 581, whv): "An immunity or exemption from ordinary jurisdiction" (Termes de la Ley). V. NON-USER.

"Franchise' and 'LIBERTY' are used as synonymous terms; and their definition is, a Royal Privilege, or a branch of the King's Prerogative, subsisting in the hands of a subject " (2 Bl. Com. 37). Accordingly, a Patent is a "Franchise" within s. 56, Co. Co. Act, 1888 (R. v. Halifax Co. Co., 60 L. J. Q. B. 550; 1891, 2 Q. B. 263; 65 L. T. 104; 39 W. R. 545: whev for the authorities treating of the various kinds of Franchise). A FERRY is a Franchise (per Cockburn, C. J., R. v. Cambrian Ry, cited HEREDITAMENT).

In such a phrase as "Parliamentary Franchise," as now used, the adjective negatives the idea of its arising from a Royal grant.

Vh, Jacob: 3 Cru. Dig. Title 27: 5 Encyc. 473-490.

In the United States, a Franchise is, a Privilege of a Public Nature conferred by a legislative grant (State v. Weatherly, 45 Mo. 20).