A course of education extending over nine years is pointed out; and it is provided that if, after their laureation, the youths "shall be called to some scholastic employment, either within the said college or elsewhere, they are to have no further benefit of the said mortification, but others to enter in their place at the Humanity schools." These bursaries are now worth about L.100 per annum each. The administrators of the mortification are now the United Colleges of St Salvator's and St Leonards. The patron is Sir Alexander Ramsay of Balmain, baronet. In 1854, Alexander Ramsay, then teacher of a school near Glasgow, and 26 years of age, after some correspondence with the patron and the clerk of the United College, in the course of which he was made aware that it was at least doubtful whether he was not disqualified, was allowed to stand the competition for one of these bursaries along with other candidates; and, having proved himself the successful competitor, he thereafter obtained from the patron, Sir Alexander Ramsay, a presentation, purporting to be granted "on the express condition that Mr Alexander Ramsay resign the bursary when called upon by me to do so. I have made this stipulation in consequence of Mr Ramsay's age-26 years, coupled with his condition as a schoolmaster-so far exceeding that evidently contemplated by the founder for the holders of his bursaries." The College authorities did not object to this presentation, and Mr Ramsay received the bursary from them for three years. In 1858, however, the patron and the College refused to continue the bursary to Mr Ramsay any longer; and he thereupon raised this action, concluding to have it found and declared that he had been "in accordance with the provisions of the deed of mortification duly presented" to one of the bursaries by the presentation above mentioned, and that in virtue of said presentation he was entitled to all the privileges and emoluments of a bursar, "and that for the period of nine years," from November 1854. The summons also contained conclusions for count, reckoning, and payment. The pursuer argued, that the condition in the presentation being illegal was to be held pro non adjecta; and that as the term "youth" was left by the deed of mortification quite indefinite, except that it was not under twelve, the presentation was perfectly legal. The action was defended by the principal and professors, who pleaded, inter alia-"The declaratory conclusion is ill founded; and quoad ultra, the pursuer has no right, title, or interest to sue, in respect that the presentation founded on by him is ex facie at variance with, and in contravention of, the deed of mortification; and being ultra vires of the patron, is null and inept." The patron did not enter appearance. The Lord Ordinary (Kinloch) held-"That the pursuer was not presented to a Ramsay bursary duly and in accordance with the sound and true meaning of the terms and provisions of the deed of mortification libelled. Therefore assoilzies the defenders," etc. His Lordship's judgment was rested on two grounds: viz., 1st, that the pursuer was disqualified by his age from receiving the presentation; and 2d, that the presentation itself was vitiated by the condition expressed in it, which was unlawful, and beyond the powers of the patron, but was at the same time an essential part of the grant. The pursuer reclaimed; but the Court, on the first ground stated by the Lord Ordinary, and without expressing any opinion on the second ground, adhered.

Authorities cited by the Pursuer.-Simpson v. Tod, June 17, 1824; Farish v. Magistrates of Annan, 15 Sh. 107; 2 Sh. and M'L. App. ca. 843; Duff M. 9576; Clarke, 9 Sh. 97; Gibson, 11th March 1836, 14 Sh. 710; Bruce v. Grant, Feb. 27, 1839; Thomson, 16th Feb. 1811, F.C.; M‘Glashan, June 8, 1844; Hannington, i. Br. Ch. Rep.; Johnson's Dictionary; Youth, Ainsworth's Dic.; Adolescens.

English Cases.

AGENT AND CLIENT.-Compromise by Agent.--Action against an attorney for compromising a case against the express wishes of the client. Lord Campbell, C. J.-It appears to me that this plea cannot be treated for a moment as a traverse of the declaration, but only as a plea in confession and avoidance. It confesses that the attorney had express directions not to enter into any compromise, and says, by way of avoidance, that he did so by the advice of counsel, and that it was necessary and beneficial for plaintiff's interests so to do. I think this plea must be taken to allege that the arrangement was beneficial to the plaintiff in all respects, and not only in a pecuniary point of view. The question then arises, Is that a good defence to this declaration? I am of opinion that it is not. I think that there is impliedly in the attorney, acting under a general retainer, a power to compromise the action in which he is retained; and I think we may assume on these allegations, that the defendant acted skilfully and bona fide; and if no express directions had been given to him in the matter, he might have had the power to take the course he did. But the declaration expressly alleges that express directions were given to him, and what he did contrary to these was, I think, ultra vires as between him and his client. As between the client and third parties it is probably good, but not as against the client. The only case which at all touches this point is that of Marzetti v. Williams; there, as here, there was no positive damage done to the plaintiff, but the directions given by the plaintiff were violated. There is, therefore, a breach of the duty arising out of the relation of the parties, for which the plaintiff is entitled to bring an action, although it has been, in the result, beneficial to her. That being the view that I take of this case, it is not necessary to enter into the technical objections that have been taken to this plea. I may observe, that what I have now said has no relation whatever to any case that may arise between counsel and client.-(Fray v. Voules, 33 L. T. Rep. 133.)

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INSURANCE.-Policy-Description.-A fire insurance policy contained a condition that it should be void, "unless the nature and material structure of the buildings and property insured, and of all buildings which contain any part of the property insured, be fully and accurately described, and unless the trades carried on in such buildings be correctly shown, or if any alteration or addition be made in or to any buildings insured, or in which any insured property be contained, by which the risk of fire is increased." The policy stated that a steam engine was erected on the premises, which was used for the purpose raising goods; machinery had also been erected for grinding corn, which was driven by the engine. The omission to state this fact was held not to be a violation of the condition.-(Baxendale v. Hardingham, 32 L. T. Rep. 110, 7 W. R. 494.) Pollock, C. B.-The courts ought to be exceedingly careful to guard insurance contracts against every sort of fraud. It is the duty of the company to express, in clear language, what defects shall vitiate the policy. Notice was, in this case, given of the introduction of the steam-engine. The objection urged on behalf of the company, is in truth nothing more than this, that the steam-engine was afterwards applied to a purpose of which they did not know, and which they could not anticipate. The answer to that is, that they allowed the erection without any condition as to the purpose to which it was to be applied. It was for them to say that it should be applied only to the purpose of hoisting. As to the fourth class of hazardous risks, I think it applies only to a manufacture for the purpose of trade and commerce, and not when it is for a domestic purpose. If the question were whether the plaintiffs had used the steam-engine fraudulently, or in any way which would give the defendants a right to complain, that would be answered by the finding of the

jury. There was evidence that the steam-engine might have been applied to a purpose other than that of hoisting goods, and that the defendants had notice thereof, because when the engine was inspected by the officer of the company, there was a shaft communicating with it connecting it with the loft, where it could be of no avail in the hoisting of goods.

PENALTY OR LIQUIDATED DAMAGES.-By an agreement for the sale and purchase of a public-house, the furniture, fixtures, stock-in-trade, and effects were to be taken at a valuation, the goods to be valued, and possession given on or before a day named; and in case either party should not comply with every particular in that agreement, to forfeit and pay L.50 and expenses attending the same. This was held to be a penalty, and not liquidated damages.—(Betts v. Burch, 33 L. T. Rep. 151.)

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WARRANTY.-Declaration alleged that B., by warranting sixty-six quarters of barley to be seed-barley, sold the same to plaintiff, when they were not seedbarley. At the trial it was proved that B. had received a sample of barley, and that plaintiff being informed of it, went to him, and said, "I understand you have some good seed-barley," to which B. replied, "Yes; I would not sell it to you unless it was." This was held not to amount to a warranty. They both spoke of it," said Martin, B., "as seed-barley, and that was evidently the impression on their minds. It was sold as the particular thing, and there was no warranty." And Bramwell, B., said: "I assent to the utmost to the proposition that a statement at the time of sale may be a warranty, although the word warranty is not used. It would, however, be monstrous to hold that the use of a particular expression in this case amounted to a warranty."—(Carter v. Crick, 33 L. T. Rep. 166.)

WINDING-UP.-Contributory-Misrepresentation.—Motion, on behalf of the two surviving executors of the late Major Longworth, that they might be removed from the list of contributories, in the winding-up of the London and Eastern Banking Corporation, in respect that Major Longworth had been induced to take shares in consequence of the fraudulent representations made to him by Stephens, the manager; that those representations, as to the amount of capital paid up, and the objects of the bank, had been falsified by the course of action taken by the directors; and that it was now settled that a shareholder who had been induced to join a company by fraudulent misrepresentation could not be held liable as a contributory.-(Brockwell's case, 2 Drew, 208, 5 W. R. 858.) Wood, V. C., said that the motion must be refused. The case was not like Brockwell's case, or Nicol's case, where persons having been induced by the fraudulent representations made to them by the directors to take shares in a company, the question was, how far the remaining shareholders could avail themselves of those fraudulent representations for the purpose of keeping the persons deceived upon the list of contributories. Major Longworth had great reason to complain of the conduct of the directors in this unfortunate company; but it appeared that he had become a shareholder in a most deliberate manner at the time when the company was formed, and with perfect knowledge of what he was about to do. No doubt the subsequent conduct of the directors, in commencing business before the full amount of the capital required was paid up, was most unwarrantable; but he was at a loss, upon the evidence, to understand how fraudulent representation could be said to have been exercised for the purpose of inducing Major Long worth to become a shareholder. There was no reason to believe that the company would have commenced business so soon, and the directors had shown great misconduct in the course taken by them. At the time of his taking the shares, however, the transactions were perfectly bona fide. It was, for anything that appeared, fully intended to carry out the representations then made, and it was not till after the acceptance of shares by Major Longworth that the directors had misconducted themselves, and committed frauds of the existence of which a shareholder might have satisfied himself. The case, therefore, was distinguishable from those in which persons induced to take shares upon fraudulent representations

had been absolved from liability.-(Re The L. and E. Banking Corporation, Longworth's case, 7 W. R. 483.)

SALE.-Receipt of Goods in Excess of Order.-Appeal from the Queen's Bench, where the Court was equally divided in opinion. The plaintiffs are wholesale dealers at Bristol, and their traveller, in September 1856, called on the defendant, a shopkeeper at Peterborough, and received an order for some articles of crockery. The order was forwarded to the plaintiff's manufacturer, who sent to the defendant an invoice, in which were specified the following articles :-Three dozen plain teapots, three figured ditto, three eagle ditto, three Queen's ditto, three dishes, ditto (the price charged being L.5, 8s. 9d.); six sets jugs, cupids, bird's nest and fishes, six gambler, monkey and grapes, six miser, stag, and octagon; two common jugs, two pear shapes (the price charged being L.1, 8s. 6d.). The invoice debited the defendant in the sum of L.6, 17s. 3d., being the amount of the prices of the articles above mentioned, together with 6s. charged for the crate afterwards sent. Subsequently, in October, the plaintiff sent to the defendant at Peterborough all the articles above mentioned, packed in one crate. The articles charged at L.5, 8s. 9d. had been ordered, but the rest had not been ordered. The goods were left at the Peterborough station, and the defendant refused to pay for them. Argued for the appellant -Upon the facts in the case, the defendants cannot be made liable in this action. The plaintiff could not have maintained an action for not accepting these goods. It was a condition precedent to his right to charge the defendant, that he should perform his part by tendering the goods ordered. Here, he tenders not those alone, but those mixed with others. If the defendant attempted to pick out the part he ordered, he would run the risk of doing an act by which he might have been held to have accepted the whole. Then, what was the defendant to do with the residue? The contract was one and entire. It could only be performed by sending the specific goods ordered. The delivery of more than those amounted to a proposal for a new contract: per Parke, B., in Cunliffe v. Harrison, 6 Ex. 906; Hart v. Mills, 15 M. and W. 85. (He was stopped.) Argued that the defendant was liable for the part of the goods sent to him which he had ordered; and that in this case there was no such difficulty in the selection of that part from the residue as to relieve him from the obligation to pay for them. Martin, B.-We are all of opinion that the view of this case taken by Lord Campbell and my brother Wightman was correct; the action is for goods sold and delivered; but the question is the same as it would be if an action had been brought for not accepting the goods. Here the contract by the defendant was for certain specified articles, and nothing was done by him afterwards to alter that contract. To sustain an action for not accepting the goods ordered, the plaintiff would have been obliged to allege in his declaration that he contracted to sell and the defendant contracted to buy certain goods; and that he offered those goods to the defendant; and that he refused to accept them. But the allegation, that the plaintiff offered the goods to the defendant, would not be supported by evidence of his having put up the goods ordered in a crate with fifty other things. He must offer the things which the defendant contracted to buy, and not those and others mixed with them. The plaintiff has no right to impose a liability upon the defendant which he never contracted for. Cunliffe v. Harrison decides that, supposing the contract there was for ten hogsheads, that contract was not executed by sending fifteen. Ten, and ten only, ought to have been sent. Byles, J.-I am of the same opinion. There may be many cases where, though the goods ordered be sent with others, the purchaser may be bound to accept; as in cases where the extras are quite distinct; and the purchaser would incur no risk in selecting; but in cases where the severance would impose risk and trouble, I think a purchaser would not be so bound. Suppose a lady should give an order to a jeweller for a diamond, and the jeweller should send it to her set in a necklace, is she to incur the risk of severing it from the setting? I think, therefore, that if there is any risk in the severance, or

difficulty or risk in the selection, the connection of things ordered with others not ordered is not a performance by the seller of his contract. Rule absolute to enter a nonsuit with costs.-(Levy v. Green, 7 W. R. 487.)

SALE. Conversion-Delivery of Goods to Vendee.-There was an agreement between the plaintiff and C. for the sale by C. to the plaintiff of all the oil produced from the whole crop of peppermint grown on his farm in the year 1858; bottles were sent to C. by the order of the plaintiff, to be filled with the oil; and in October C. wrote to plaintiff, to say that the oil would be sent off as soon as possible. C.'s wife filled the bottles, weighed the oil, and made out an invoice to the plaintiff; packed the bottles in cases, and wrote out the direction cards, with the name and address of the plaintiff ready to be fixed on the cases. The oil, however, was never sent to the plaintiff, but C. absconded; and it turned out that he had sent the oil to the defendant at Liverpool, for which he paid C. about L.600. At the trial it was objected for the defendant, that under these circumstances no property in the oil had passed to the plaintiff; and that, therefore, she ought to be nonsuited, or, at any rate, she was not entitled to recover more than the value of the bottles which she had sent to C. The learned judge, however, ruled otherwise; and a verdict was found for the plaintiff with L.714 damages, leave being reserved to the defendant to move to enter a nonsuit, or to reduce the damages to the value of the bottles. A rule nisi having obtained, Channell, B.-I am of opinion that the rule ought to be discharged. When parties enter into a contract in writing, except there be fraud, the writing determines what the contract is. Here the contract was, that the plaintiff should have all the oil produced on the farm at a fixed price per pound; whenever, therefore, the oil was weighed and put into the bottles by the vendor, then the property in it vested in the plaintiff; and if the bottles had broken, the loss would have fallen on the plaintiff, and C. would have been entitled to recover for the price of the oil. When the acts required by the contract are done by the vendor, then the property passes. Rule discharged.-(Langton v. Higgins, 7 W. R. 489.)

SOLICITOR AND CLIENT.-Interest on Bills of Costs.-A solicitor, without consulting his client, entered into an agreement for a compromise with the opposite party in a suit, whereby the latter was to pay a sum which was to be handed to the solicitor in satisfaction of his bill, with interest. He then prevailed upon the client to execute a deed carrying into effect the agreement. Held, that neither the solicitor's agreement nor the client's deed were binding; but the client was barred by circumstances from getting relief. On the subject of interest, Turner, L. J., said—“The agreement cannot be supported in this court. In the first place, it is founded upon and gives effect to an agreement by a client to allow his solicitor interest, and even compound interest, upon his bills of costs. Every such agreement is a bargain between the solicitor and the client, and can only be supported under the same circumstances as would support any other bargain between them. It is the bounden duty of a solicitor, before he enters into any such bargain with his client, to inform the client that the law allows of no such charge of interest; and that, although he may decline to conduct the client's business without such an allowance, others of equal ability may be found who will conduct it upon the scale of allowance which is sanctioned by the law. There is here no evidence of any such information having been given, nor can I find anything which could warrant an agreement for the charge of interest. The business, so far as it was not connected with the suit, seems to have been the ordinary business of every solicitor ; and so far as the suit is concerned, the position of the defendant does not seem to me to have differed from that of every other country solicitor employed in a heavy Chancery suit. To hold that this agreement for interest, standing by itself, could be maintained, would, as it seems to me, be to hold that every solicitor may, at his own will, charge his client with interest, which would lead to intolerable injustice and oppression.-(Lyddon v. Mors, 7 W. R. 433.)

VOL. III.-NO. XXXIII. SEPTEMBER 1859.

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