Quebec, was effected by him as agent for the pursuers. The jury returned a verdict for the pursuers.

In Cook and Others v. Bell, an action of damages against a coal-master, at the instance of the widow and children of a miner, who had lost his life by an accident in a coal-pit, resulted in the jury finding for the defender.

The chief Second Division case was Walker v. M'Isaac, a case of seductiondamages laid at L.1000. After the pursuer's case was closed, the defender tendered L.300, which was accepted. The jury accordingly found a verdict for the pursuer, with damages to that amount.

Finlay v. Allan-25th March-was an action of damages for infringement of a patent for the manufacture of fire-grates. After the pursuer's counsel had opened the case and led evidence, a special verdict was agreed to, reserving certain points of law for the decision of the Court.

HIGH COURT OF JUSTICIARY.

WEBSTER V. BETHUNE.- Feb. 7.

General Search Warrant held illegal.

A search-warrant was granted on a petition, stating that certain articles had been stolen, but not stating when or by whom. The warrant did not specify any party whose premises were to be searched, or any particular premises; being merely in terms of the prayer of the petition, which was for warrant "to search for, detain, and inventory said articles, carry them to a place of security, and, if necessary, open shut and lockfast places." The occupant of premises, which had been three times searched under this warrant, brought a suspension. The Court suspended, and found the suspender entitled to expenses.

STEVENSON v. WATSON.-Feb. 7.

Sheriff Summary Trial-Citation-Stat. 4, Geo. IV., c. 29.

A party cited to compear before a sheriff, on the day following the date of citation, came to the court at the hour of cause, when he was apprehended, and placed at the bar on a charge of breach of the peace. He pleaded not guilty. Witnesses were examined, and he was found guilty and sentenced to imprisonment. The complaint was only presented to the sheriff, and warrant to apprehend and cite witnesses granted on the day of the trial. The Court suspended the conviction.

Authorities-Robertson v. Mackay; Arkley, p. 114; Cockburn v. Johnstone, 2d June, 1854; 1 Irvine, p. 492.

WADDELL V. ROMANES.-March 4.

Day Trespass-Statute 2 and 3, Gul. IV., c. 68.

A warrant was granted to cite the suspender to appear before a Court of Justices of Peace on 17th February; along with a copy of this warrant, a citation, calling him to appear to answer to the charge, was served upon him, in which, by mistake, the date appointed for the trial, was erroneously stated. On 17th February he did not appear, and was, in absence, found guilty and sentenced. The citation was not required by the statute. The Court suspended the conviction. The Lord Justice-Clerk remarked, that the error arose from the uncalled for practice, in some places, of devising forms not required by the statutes under which prosecutions were instituted.

Appeal Cases in the Bouse of Lords.

EDINBURGH, Perth, and DunDEE RAILWAY COMPANY v. PHILLIP.

Railway.- Contract to Purchase Lands-Absolute or Conditional. In Court of Session, 14th July 1854-16 D. 1065.-House of Lords, February 23d-L. T. Rep., vol. 28, 345.

The Railway Company, having applied for a bill to construct a branch to Leith, agreed, on consideration of Mr Phillip withdrawing his opposition, to 66 acquire the whole ground at, etc., belonging to him, and to make payment of L.11,500 in full of the price thereof to Phillip, his heirs, etc., at the first term of Martinmas or Whitsunday after the said Company, on obtaining their Act of Parliament, shall have begun to execute any part of the said railway under the

powers of the said Act." The Company obtained their Act, and borrowed

money under it; but, after the lapse of seven years, they refused to implement their agreement, on the ground that their powers to construct the line had expired.

The Court of Session (1st Div.) held that the agreement was absolute, except in regard to the term of payment, with respect to which it was potestative; and that, having raised money under the Act, the Company were not entitled to act on the postponed condition so as to defeat the obligation, which therefore they were bound to fulfil.

The Company now appealed against that decree.

The ATTORNEY-GENERAL (Bethell) and ANDERSON, Q.C., for the appellants, contended that the true construction of the agreement was, that it was conditional on the making of the railway, and the railway never having been made, and the time for making it having expired, they were not bound to acquire the land. The cases referred to were, Preston v. Liverpool, Manchester, and Newcastleupon-Tyne Railway Company, 27 L. T. Rep. 2; Webb v. Direct London and Portsmouth Railway Company, 9 Hare, 129; 1 De G. M. & G. 721; Lord James Stuart v. London and North-Western Railway Company, 1 De G. M. & G. 721; Gage v. The Newmarket Railway Company, 21 L. J. 398, Q. B.; Bland v. Crowley, 6 Exch. 522. (There were other questions raised on the pleadings, which, however, are not material.)

The LORD ADVOCATE (Moncreiff), and ROLT, Q.C., for the respondent, referred to the same cases, and also Hawkes v. The Eastern Counties Railway Company, 25 L. T. Rep. 318, and the cases there cited.

Anderson, in reply, was stopped.

The LORD CHANCELLOR.-Looking at this contract, I have come to the conclusion, that what the parties must have meant was this, that, if the company obtained the Act of Parliament (that was certainly a condition), and if they made the railway, then they should pay L.11,500 to Mr Phillip for his premises. That L.11,500 should either be paid the moment they commenced the railway, or, at all events, it was to bear interest from that time, and it should actually be paid to him before they entered upon or took any part of his property. I come to that conclusion upon several grounds. In the first place, that there was some condition is plain. Perhaps it may be right (as was said at the bar) that that condition would have been a condition implied, if it had not been expressed; but there is an expressed condition that they should first obtain their Act of Parliament, for the terms are, that they shall become bound to pay L.11,500 "at the first term of Martinmas or Whitsunday after the company, on obtaining their Act of Parliament, shall" do so and so. If they did not obtain their Act of Parliament, it is impossible to suppose that it was at all meant that anything then should be paid to Mr Phillip. That has not been argued. Then, in the same

sentence, it is said, "on obtaining their Act of Parliament after they shall have begun to execute any part of the railway." Now, although the obtaining of the Act of Parliament is a condition expressed (and if it had not been expressed, it might have been said that it was implied from what follows), it is said, that the words, "after they shall have begun to execute any part of the railway," are not a condition. I think, in the first place, that it is an inconvenient method of dealing with a contract of this kind to say, that one member of a sentence is conditional and the other is not conditional. If we saw clearly that that was the sense, of course we should not be estopped from deciding such a point merely because it was inconvenient in point of language; but it seems to me that all reasoning shows that this must have been what they contemplated. In the first place, unless the price was a low price, it was absurd to suppose that the company would pay L.11,500 for this property if they did not want it for the purpose of their railway. It is said, on the other hand, that it is very hard on Mr Phillip, for, until the company have determined whether they will or will not make their railway, he cannot satisfactorily deal with this property. That is perfectly true. But how do your Lordships know that that very inconvenience did not form an ingredient in the price contracted for of L.11,500? I have looked through the papers to see whether there was any statement anywhere as to what was the supposed value of this property, and I find nothing of the sort. I must infer, therefore, that the L.11,500 was the price which Mr Phillip was minded to contract that he would take for it, taking upon himself all the burden and inconvenience of being unable in the meantime to dispose of his property. That which seems to me to settle the matter is this: that most unquestionably no time of payment is expressly fixed until the company shall have begun to make their railway. Then, supposing they never make their railway, Mr Phillip is driven to say that at the end of the time when their power of making their railway had ceased, viz., at the end, I think, of seven years, or whatever the time was, then it was to be considered that the condition had ceased, and that the contract had become absolute. That is a mere gratuitous introduction into the agreement of something which is not found there. Upon the ground, therefore, that the probability was that the company never would intend to purchase anything unless they were making the railway, and that by the terms of their contract they were certainly not to pay the L.11,500 until they had put themselves in a condition to make the railway, namely, till they had obtained their Act of Parliament; and, secondly, that the time of payment was not to arrive until they had begun to make the railway, I have come to the conclusion that the agreement was, as the plaintiff Mr Phillip from the first seems to have considered it, a conditional agreement. I intimated some time ago that we were clearly of opinion that the condition, if it was a condition, has never been purified-that the Lord Ordinary was quite right upon that ground. This, therefore, was a conditional agreement, the condition of which has never been purified, and consequently nothing becomes payable under it. The course, therefore, which I propose to take is, to move your Lordships that the decree of the Court of Session be reversed, and that the cause be remitted with a declaration that they ought to have dismissed the bill with costs.

LORD WENSLEYDALE.-In this case several questions have been argued at your Lordship's bar with very great distinctness and ability. I feel that it is quite unnecessary to pronounce any opinion upon any of those questions, except the second. With regard to the first and the last, they are purely questions of Scotch law. Upon these questions I pronounce no opinion at all; but upon the second question, which is as to the construction of the contract, I certainly formed an opinion pretty early in the case, which I was only restrained from expressing in stronger terms by my great respect for the learned judges in the court below, with one of whom I was personally acquainted, and for whom I have always entertained the highest esteem from my knowledge of his eminent judicial qualities—I mean Lord Rutherfurd—which made me doubt whether the con

VOL. I.—NO. IV. APRIL 1857.

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clusion that I had come to was the proper conclusion, it being against the opinions of those four learned judges. But this is a matter which is common both to the Scotch and the English law, and it is to be decided upon principles equally belonging to both. I think our duty is to look at the terms of the contract which is to be construed, and to construe it according to the ordinary grammatical sense and meaning of the words, taken in conjunction with the facts and circumstances existing at the time, and which are to be looked at in order to interpret the contract. So doing, I confess I think it is quite clear that this was a contract which was never meant to take effect unless the railway company determined to exercise their powers under the Act of Parliament. It is perfectly clear that it was conditional upon the company obtaining the Act. And it is clear, upon the face of the contract itself, that that was to be not an Act of Parliament obliging, but an Act of Parliament enabling, them to make a branch railway from the Leith branch to the Leith docks. Now, it has been very clearly settled, though in the first instance there was some doubt about it, that these enabling Acts are not compulsory. It was solemnly decided by the Court of Error, of which I formed a part, in a case in which the judgment was delivered (and an excellent judgment it was) by the late Chief Justice Jervis, that permissive words in an Act of Parliament are not obligatory. Consequently, at the time this contract was entered into, it was perfectly competent for the defenders to decline to make the railway, even although they had obtained the Act for carrying it into effect, if they thought it more conducive to their interests to decline to do so. Now, that being so, are we to suppose that at the time when they entered into this contract they wholly abandoned the power which they had of declining to make the railway, and that they determined, at all events from the first, whatever the consequences might be, to enter into this contract? I think it can hardly be supposed that they did, unless there were clear words showing that they absolutely, unconditionally, and unequivocally meant to purchase the property from Mr Phillip. Instead of that, we find words in the latter part of this contract clearly to show that the purchase was to depend upon a condition. The commencement of the agreement, upon which the court ultimately relied, is absolute. It is [reads the agreement]. That fixes the price, but there is no day of payment mentioned except that which follows. There is a positive obligation to pay the money, provided the company obtain the Act of Parliament, which is clearly a condition; and provided they "shall have begun to execute any part of the railway under the powers of the said Act." There is no other time for the payment of the money stipulated, except that. Therefore it was a condition on the part of the company to pay the money before taking possession of the property, as the money was to bear legal interest from that date. The payment of interest would date from the first term of Martinmas or Whitsunday, after they had determined to execute the Act of Parliament, and had commenced making the railway under it. But it was to be accelerated in case the company should choose to take possession of or enter on the premises before that. Then the money was, at all events, to be payable at the next Martinmas or Whitsunday term after they had begun to make the railway under the powers of the Act. They were not to take possession of or to interfere with the land without paying the money. Now, reading all these clauses together, finding no time stipulated for the payment, except the fixed day dating from the commencement of the making of the railway under the Act, I cannot conceive that they were bound to pay, unless they began to make the railway, under the Act of Parliament. Therefore I concur entirely with my noble and learned friend in pronouncing an opinion that, according to the true construction of the terms of this contract, looking especially at the condition in which the company were, namely, that they were under no obligation to make the railway at the time they entered into this contract, I cannot conceive that they meant to abandon that right which they might exercise with reference to their general interests, and to undertake to pay at an indefinite time the price for this land. Therefore I conceive that the Court of Session has miscarried in the construction of the instrument in ques

tion. I need not say any more upon the other part of this case, except that I am quite clear, as I have already expressed my opinion, that the Lord Ordinary was perfectly right in the conclusion to which he came upon the facts found before him, and that the proper conclusion to come to was, that the company had never executed any part of the railway under the powers of their Act. I therefore entirely concur with my noble and learned friend.

Decree reversed, and bill ordered to be dismissed in the court below, with costs.

MACEWAN CAMPBELL, ETC.

Agency-Liability of Provisional Committeemen.

Court of Session (First Division) Dec. 6, 1853, 16 D. 113.-House of Lords, Feb. 19, 1857-29 L. T. Rep. 30.

Mr Macewan, writer in Glasgow, sued the defenders as members of a provisional committee for promoting a railway, for certain sums due to him for professional business relating to the undertaking-alleging that he had been invited to undertake the business by the defenders, or one or other of them, or by parties duly authorised by them, and that his actings as secretary and lawagent had been recognised and adopted by the defenders. The Court of Session dismissed the action for want of sufficient specification as to employment, so as to attach liability to the individual members of the committee. `Rolt, Q.C. and Roxburgh, for the appellant, referred to Bright v. Hutton, 3 H. of L. Cas. 341; Upfill's case, 2 H. of L. Cas. 674; Spottiswoode's case, 6 De G. M. and G. 345; Pearson's Executors' Case, 3 De G. M. and G. 253; Carrick's case, 1 Sim. N. S. 509. The Attorney-General (Bethell) and Anderson, Q.C., for the respondents. The LORD CHANCELLOR said, that in this case the claim was of a nature which has been canvassed over and over again in all the courts of Westminster Hall, and canvassed upon principles which are applicable just as much to the law of Scotland as to the law of England, and which in fact have been adopted by the law of Scotland, and as to which, therefore, there can be no doubt now on either side of the Tweed. It was quite clear the members of a provisional committee were not liable in respect of their being so, and there being no other ground of liability stated, he came to the same conclusion as that come to by the judges in the court below.

LORD WENSLEYDALE.-My Lords, I am entirely of the same opinion. If we look at the state of the law at the time this suit was commenced, and look at the frame of the original pleading, it is perfectly clear that it was framed under the supposition that it was quite enough for persons to be members of a provisional committee, to become liable for everything that was done in the course of carrying on the business of that provisional committee into execution. It was supposed that a provisional committee constituted a partnership, in which each individual member of that committee gave a mandate to the other members of that committee to act in all affairs concerning that committee, and that they were liable as co-partners. It appears to me that the whole frame of this pleading is in order to support that view of the case, and to make out the proposition that he had become a member of that committee, either in point of fact or by representation, and that he is therefore responsible for all the acts of that committee. Now if we look at the case in that point of view, it is perfectly clear that there is no relevant cause of action against the other members of the provisional committee. Then it is said, however, that though this is not a cause of action, enough can be discovered here to make these parties clearly liable upon the ground of individual contract. Now it does not appear to me, looking at the whole of the pleading, that there is enough to make out a case of liability upon the ground of individual employment. The whole is left in uncertainty. The facts are not sufficiently averred to show that the employment took place by order of the defendants. Therefore the case resolves itself into this either that the pleading is irrelevant, or that it does not state with that certainty, which the nature of the case requires, the cause of action against