Scottish Court of Session Decisions

By trust-disposition and settlement dated 29th May 1883, and codicil thereto dated 6th June 1883, Miss Isabella MacDougall, of 29 King Street, Perth, directed her trustees, the Rev. William Carmichael and others, after the fulfilment of certain other purposes, to hold the residue of her means and estate for the foundation of certain bursaries to students born in the county of Perth, and attending the classes in the Faculties of Arts in the Universities of Edinburgh, Glasgow, and St Andrews, and out of the free annual income of said residue “to make payment of one or more bursaries of such amount or amounts, not exceeding £50 per annum, and to be tenable for such period or periods, not exceeding three years, as may be fixed by my said trustees.” It was further directed that the said bur-of my said trustees as patrons thereof, and shall saries “shall be in the gift and appointment be held under and subject to, inter alia, the conditions and regulations following:—( First) The said bursaries shall be conferred on students, of whatever religious denomination, after such complete examinations, at such place or places, and at such time or times as shall seem fit and proper to my trustees: ( Second) My said trustees shall annually appoint three individuals, properly qualified, to superintend the examination of the students for bursaries, and to report upon the qualifications of the candidates, and to pay to each of these examiners a suitable fee for his trouble, but the opinion of the said examiners as to the qualifications of the candidates for bursaries shall be subject to review of my said trustees.”

She died upon 12th June 1883, and her trustees entered upon the management of her trust-estate. Acting under the powers conferred upon them in regard to the foundation and payment of said bursaries, they in July 1884 inserted in various newspapers an advertisement stating that they “are to offer, under the conditions specified in her deed and settlement, and the rules and regulations made by them in virtue thereof, to students attending the classes in the Faculty of Arts in the Universities of Edinburgh, Glasgow, and St Andrews for the session 1884–85, with a view to graduation, three bursaries of £30 each, tenable for three years, to students about to enter on their first session, and who shall pass the entrance examination for students who begin their course within the classes of the second year, one to each of said Universities, said last-mentioned bursaries to be of the value of £33 for the second year and £37 for the third year.” The advertisement further stated that the competition would take place on the 27th September 1884, and after narrating the subjects of examination for the several bursaries, added, “that the examination will be conducted by competent examiners, whose opinion as to the qualification of candidates for bursaries will be subject to the review of the trustees,” and candidates were requested to give in their names to Mr William Cochrane Young, agent for the trustees.

John Howie Martin, Glasgow, applied to Mr Young to enter his name as a competitor ‘for the MacDougall Bursary offered to first year's students at Glasgow University for session 1884–85.’ He was accordingly examined on 27th September in terms of the advertisement, and in the report of the examiners the names of the first three candidates were entered in the following order—1st, William John Brough; 2d, Arthur D. Miller; 3d, John Howie Martin. After the examination, and as the result of the competition, the bursary for Glasgow University was allotted by the trustees to Arthur D. Miller, who had already attended a session at Glasgow University, and was about to enter on his second year's study at the University. The trustees allotted no bursary to Martin, but through their agent wrote to him inquiring whether, in the event of their conferring upon him the bursary at St Andrews University he would attend that University. In his reply he declined to attend the University at St Andrews, and claimed to be entitled, as the result of the competition, and of his being second highest of the first year students competing, to be appointed to the bursary which had been allotted to Miller.

Martin raised this action, with consent and concurrence of his father John Martin, against the trustees for the sum of £30, the amount of the bursary, as the loss and damage he had sustained from their having, in breach of the contract entered into between them through the medium of the advertisement and rules and actings of the parties, bestowed the bursary on Miller.

He averred—“(Cond. 5) The said Arthur D. Miller was not a ‘first year's student who had passed the entrance examination for students who begin their course with the classes of the second year,’ but was a second year's student, having attended Glasgow University during the session 1883–84. When entering that University at the commencement of the session he passed the entrance examination for students who begin their course with the classes of the second year. The said Arthur D. Miller should not therefore have been allowed to compete with the said pursuer and other first year's students.” In Cond. 7 he averred that he possessed all the qualifications for first year's students stipulated for under the advertisement, rules, and regulations.

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The defenders stated—“The defenders having made it a condition of said competition for said bursaries, payable to students about to enter on their first session, that said bursaries should only be conferred in the event of the candidates passing the entrance examination for students who begin their course with the classes of the second year, and as the competition was thus practically confined to candidates prepared to enter into the classes of the second year, the defenders agreed to admit to said competition for said bursaries candidates about to enter the classes of the second year, although they had already attended the classes for one year. The subjects of examination at the competition for said bursaries for first year's students were prepared for students about to enter the classes of the second year.”

The pursuers pleaded—“(1) The said pursuer having fairly gained said second prize, advertised as aforesaid by the defenders, ought to have received payment of the same from the defenders, and should now obtain decree as prayed for. (2) Said bursary having been bestowed by the defenders as aforesaid upon the said Arthur D. Miller, although he was not entitled thereto, and in breach of contract as before set forth, the pursuer is entitled to be compensated for having been deprived thereof, and decree ought therefore to pass in his favour, as prayed for in the petition, with expenses.”

The defenders pleaded, inter alia—“(1) The defenders having, in the exercise of the powers conferred upon them by the said trust-disposition and deed of settlement of the said deceased Isabella MacDougall, appointed the said Arthur D. Miller to the bursary to students attending Glasgow University, the amount of which is sued for, the pursuer the said John Howie Martin has neither title nor interest to insist in the present action.” They also pleaded that they having the sole power of appointment it was incompetent for any Court to appoint the pursuer to the disputed bursary or ordain them to pay him the amount thereof.

The Sheriff-Substitute (Grahame) pronounced this interlocutor—[ After findings in fact from which the above narrative is in substance taken]—.. . “Finds in point of law that the defenders, in refusing to appoint the first-named pursuer to hold the bursary in question, have not acted in breach of any contract entered into between them, as Miss MacDougall's trustees, and the said pursuer, or specially in breach of any obligation undertaken by them to said pursuer in the advertisement and regulations and conditions of the competition for said bursary: Therefore assoilzies the defenders from the conclusions of the action, &c.

“ Note.—.. . The ground on which the pursuer's claim is founded is, that in terms of the advertisement in which the defenders announced that a competition for the MacDougall bursaries would take place, and according to which candidates were invited to compete, they bound themselves to conduct the examination under conditions which excluded the candidate to whom the bursary in question was awarded, and entitled the said pursuer to obtain the appointment to it. I do not think that a reference to the terms of the advertisement, and the conditions and regulations under which the competition for the bursary was announced, shews that the defenders in not appointing the pursuer were guilty of a breach of contract with him, or broke any of their obligations to him as Miss MacDougall's trustees. The special allegation made against them is that, having announced that the competition for the said bursary was to be limited to students of the Universities of Edinburgh, Glasgow, and St Andrews entering upon their first year's session, they notwithstanding allowed a student to compete who was not entering on his first year's session, and wrongously preferred and appointed him to hold a bursary, to which the pursuer, as having been a duly qualified candidate, and as having ranked next in order in the result of the examination in the competition, claims he ought to have been appointed. Whether the party appointed by the defenders to the bursary in question is now in rightful possession of it or not is not the question now at issue. He may possibly be in legal possession, and the pursuers still have a claim against the defenders, as not having fulfilled their obligations to him in inviting him to become a candidate according to the terms of their advertisement, and allowing him to take part in the competition for the bursary. The question here is not as to the right of the pursuer's opponent, but as to his own claim against the defenders' alleged injustice, and whether they, in their refusal to appoint him to the bursary, broke the terms of their agreement with him, and are therefore liable for reparation of the wrong committed. Assuming that the defenders admitted as a competitor for the bursary a candidate who did not fulfil the conditions required in their advertisement, and that they notwithstanding appointed him to the bursary to which pursuer alleges be was entitled to be appointed, that does not establish his right to the compensation he claims. He must shew that the defenders had come under an obligation which entitled him to claim the bursary, and that the defenders in refusing to appoint him to it were guilty of a breach of the contract which they had entered into with him. In determining whether this is the case it is necessary in the first place to consider what occurred at the competition, and whether in the circumstances the defenders are to be held as bound, in fulfilment of an obligation to the said pursuer, to appoint him to the bursary. At the examination in the competition the pursuer admittedly obtained the third place, the competitor immediately above him being the party whose qualifications to compete are alleged, and may I think justly be considered, to have been defective. But though such was the case, it does not therefore follow that under the terms of the advertisement and conditions of the competition the pursuer thereby acquired a legal claim to be appointed to the bursary in question. A reference to the conditions of Miss MacDougall's trust-deed, and to the regulations made by the trustees under the powers therein conferred upon them, and which regulations are specially referred to in the advertisement, shews that the defenders did not undertake that the result of the examination at the competition was to be held as necessarily decisive of the appointment to be made, but that the trustees reserved to themselves a delectus personœ, under which a competitor who had been successful in the examination might nevertheless be refused the appointment to the bursary to which, if his place in the examination was to be

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taken as establishing his right, he would have been entitled. In the conditions of the competition it is stated ‘that the opinions of the examiners as to the qualifications of candidates for bursaries will be subject to review of the trustees.’ The question which arises is, what is the meaning of, and the effect that ought to be given to, this reservation of a power of review to the trustees? Is it merely a power of reviewing the opinions of the examiners as to the place to be assigned to each of the competitors as determined by the result of the examination, that result being held decisive as to the appointments to be made to the bursaries competed for; or is it a reservation of more extensive application, and one having reference generally to the qualifications of the competitors for the appointments, not only as brought out by the results of the examination, but according to the opinions of the trustees themselves, acting as patrons of the bursaries under Miss MacDougall's deed? I think that the reservation, though not very distinctly expressed and stated in such terms as might be deceptive to the competitors, must be held to have legally the more general application, and thus to afford a sufficient legal answer to the pursuer's claim. A reserved power on the part of the trustees to review the examiners' opinions as to the qualifications of the competitors must, I think, be taken as meaning a power reserved to the trustees, if they think fit, to set aside these opinions, and to decide for themselves as to the competitors' qualifications, and thus to determine the appointment to be made not merely by a consideration of the competitor's place in the examination, but according to their own judgment, as patrons, of his fitness for the appointment. According to this reserved power, it would appear that even if the pursuer had stood first in the examination, he did not thereby acquire a legal right, however strong might be his moral claim, to be appointed to any bursary. It is this delectus persona reserved to the trustees that furnishes an answer to the pursuer's claim. If it could have been held that, on the ground of the appointment of a nonqualified competitor by the trustees, and of the pursuer's own sufficient qualifications, as tested at the examination, that he had thereby acquired a right to the bursary in question, the action of the trustees in refusing to give him the bursary; which they had conferred on another unqualified competitor, would have enabled him to plead a breach of contract by the trustees, and to claim compensation for not being appointed to the bursary; for whatever may be the true view as to the validity of the appointment made by the trustees to the bursary, there can be no doubt that the admission of the candidate Miller to the competition was not consistent with its conditions as announced in the advertisement of the defenders as Miss MacDougall's trustees. The objection to giving effect to the pursuer's claim is, that the injury which the pursuer alleges he has sustained through not receiving the appointment in question was not necessarily a consequence of Miller's appointment; for even if Miller had not been appointed, the trustees were not bound to appoint the pursuer, and unless he can show that the trustees had come under an obligation which entitled him in the circumstances to obtain the appointment, it cannot be held that, on the ground of the trustees' breach of contract in appointing Miller, the pursuer is now entitled to compensation for not getting the bursary. Thus, though I feel that the pursuer may have reasonable ground of complaint against the defenders' proceedings, I cannot hold that he has in the present process established any legal claim for compensation in consequence of injury sustained through the actings of the defenders as Miss M'Dougall's trustees.”

The pursuers appealed, and argued—There was a breach of contract on the defenders' part in their admitting to the competition one who had not the requisite qualifications. Their advertisement was precise in its terms. It fell to be construed literally, because it had induced the minor pursuer to enter as a competitor.

The defenders replied—In order to succeed the pursuer must establish (1) that he had a title to any of the bursaries, and (2) that he had a title to this particular bursary. This he could not do. The clause as the power of review reserved by the trustees as to a competitor's qualifications gave the defenders a right to take up the position they did. They would have had a right to disregard the examiners' report altogether.

Authority— Ramsay v. United College of St Andrews, June 28, 1860, 22 D. 1328, aff. June i, 1861, 23 D. (H.L.) 8.