J. C. 1876 remained unimpeached. But the subsequent decision in the case of the Attorney-General v. Ironmongers' Company in the House of Lords, in which Lord Brougham concurred, corrected the views his Lordship had expressed in an earlier stage of that case (1), ADVOCATE and in the observations referred to. That decision was in effect GENERAL OF BENGAL. that among charities there was nothing analogous to benefit of survivorship. MAYOR OF v. It was lastly submitted by the Appellant's counsel, that if a cy-près application was admissible, the actual scheme which excluded the Lyons Charity from participation in the fund is an improper one. The High Court held, and, as their Lordships think, rightly, that it was not competent for the Appellant, under his present petition, which is confined to the claim of a share of the residue, as residuary legatee, to open the scheme. But with a view to prevent further litigation and expense, the Judges expressed an opinion that if it was proper to reform the scheme at all, it might be right to confine it to charitable objects in the city of Calcutta, excluding both Lucknow and Lyons. Their Lordships have been invited to correct this view, and to declare that the Lyons Charity ought not to be excluded. Agreeing with what was said in the House of Lords, in the case of the Ironmongers' Company, as to the care and circumspection to be exercised by a Court of Appeal in substituting its discretion for that of the Court below, their Lordships would be reluctant in any case to interfere with a scheme unless it were plainly wrong, and still more to unsettle, by a premature declaration, one which is not regularly before them. Besides, bearing in mind the opinions expressed in the House of Lords, so often referred to, they are not satisfied, as at present advised, that the view of the High Court does not accord with them. The sum of these opinions appears to be, that whilst regard may be had to the other objects of the testator's bounty in constructing a scheme, primary consideration is to be given to the gift which has failed, and to a search for objects akin to it. If this be the rule, may not the gift to poor prisoners in Calcutta be considered to have a local character; and in that case, may not a scheme properly framed for the benefit of other poor persons in Calcutta be supported, as being cy-près to (1) See 2 My. & K. 586. J. C. 1876 LYONS V. ADVOCATE GENERAL oF BENGAL. the original purpose. And if these questions are capable of being answered in the affirmative, it follows that it would not be a valid objection to the present scheme that it gives no part of the funds MAYOR OF to Lyons. The contention upon this point, then, appears to come to this, that the inclination of the testator to benefit the Martinière institutions so strongly appears, that it ought to guide the Court in framing a scheme, in preference to the principle of selecting an object near to that which has failed. Opinions may well differ on such a point. Reasons are not wanting in favour of the Appellant's contention; but, on the other hand, much may be said in favour of the view that these gifts to poor prisoners bear the character of a charity for the relief of misery in the particular locality. The necessary funds for them were directed by the will to be set apart, and in the case of the Lyons Charity were, long ago, paid over to the municipal authorities of that city. It may well be doubted whether if such a contingency as the failure of the gift to Lyons should occur, it would be thought proper that any part of the funds paid over to the authorities there should be restored to India. Their Lordships are not now called upon to decide whether the application of the gift which has failed to the relief of criminal prisoners, and the transfer of part of it to Lucknow, are proper, or the best possible disposition of the fund. All they need say about the actual scheme is, that they do not feel justified upon the present appeal in declaring, as they are invited to do, that it is necessarily bad, because no part of the fund has been appropriated to the Lyons Charity. In the result, their Lordships will humbly advise Her Majesty to affirm the decree of the High Court, and to dismiss this appeal with costs. Solicitors for the Appellant: Young, Jackson, & Co. Where plans and a specification, for the execution of a certain work, are prepared for the use of those who are asked to tender for its execution, the person asking for the tenders does not enter into any implied warranty that the work can be successfully executed according to such plans and specification. The contractor for the work cannot, therefore, sustain an action for damages, as upon a warranty, should it turn out that he could not execute it according to such plans and specification. new one. T. contracted with the Defendants to take down an old bridge and build a Plans and a specification prepared by the Defendants' engineer were furnished to him, and he was required to obey the directions of the engineer. The descriptions given were stated to be "believed to be correct," but were not guaranteed; and, in one particular matter at least, he was warned to make examination for himself. Part of the plan consisted in the use of caissons. These turned out to be of no value, and the work done in attempting to use them was wholly lost, and the bridge had to be built in a different manner. In this way much labour and time were wasted. The contract contained provisions as to the payment for extra work, and that work had (with the contract work) been duly paid for. The contractor sought for compensation for his loss of time and labour occasioned by the failure of the caissons, and in his declaration alleged that the Defendants had warranted that the bridge could be inexpensively built according to the plans and specification. There was no express warranty to that effect in the contract: Held, that none could be implied. Semble, that if he had any remedy under these circumstances it was not in an action for damages as for breach of warranty, but for compensation as upon a quantum meruit. ON the 5th of March, 1864, Mr. Brand, on behalf of the Bridge House Committee of the City of London, published a notice asking for "tenders for taking down and removing the present bridge at Blackfriars, and erecting a new bridge in lieu thereof." The "plans of the intended new bridge and specification of the works 1876 THORN to be executed," were announced as to be seen at the office of Mr. H. L. (E.) Joseph Cubitt, the engineer, who was employed by the Defendants. The Plaintiff and his brother, Mr. Peter Thorn (since deceased), tendered for the work, and their tender was accepted. v. MAYOR AND OF LONDON. Article 30 of the specification declared that the contractors COMMONALTY were "to take out their own quantities, no surveyor being authorized to act on the part of the corporation;" Article 36 was thus worded: "Drawings lettered A, &c., are plans and sections of the existing bridge, and of the works executed thereon. They give all the information possessed respecting the foundations. These plans are believed to be correct, but their accuracy is not guaranteed, and the contractor will not be entitled to charge any extra should the work to be removed prove more than indicated on these drawings." Under the head of "coffer-dams," there was in the specification this article: "54. The contractor must satisfy himself as to the nature of the ground through which the foundations have to be carried; all the information given on this subject is believed to be correct, but is not guaranteed." Under the heading "Iron caissons," the specification contained the following articles: "63. The foundations of the piers will be put in by means of wrought iron caissons, as shewn on drawing No. 7." " 64. The casing of the lower part of which caissons will be left permanently in the work. The upper part, which is formed of buckle plates, is to be removed. The whole of the interior girder framing must be removed as the building proceeds, the work being made good close up to the underside of each girder before removal thereof." "66. The whole of the iron used in the caissons shall be of good quality capable of bearing a tensible strain of 18 tons per square inch. Plates and bars will be selected at random by the engineer, which must be cut to the required form, and submitted to such tests as the engineer may direct." The 77th article declared that "all risk and responsibility involved in the sinking of these caissons will rest with the contractor, and he will be bound to employ divers or other efficient means for removing and overcoming any obstacles or difficulties that may arise in the execution of the works." The 79th article put the control of the quality of the concrete under the direction of the engineer. Upon the Plaintiff's tender being accepted, a deed dated the 1876 THORN V. MAYOR AND OF LONDON. H. L. (E.) 24th of May, 1864, was executed. This deed in various parts described the intended works as to be executed to the satisfaction of the engineer. The works (sect. 8) were to be completed, within three for the sum (sect. 12) of £269,045, increased by such years, COMMONALTY Sum as shall become payable, or, as the case may require, diminished by such sum as shall have to be deducted, (as provided in sect. 13) in respect of alterations or variations in the works." Sect. 13 gave the engineer power "at any time or times, during the progress of the works to vary the dimensions or position of the various parts of the works to be executed under these presents, without the said contractors being entitled to any extra charge for such alteration, provided the total quantity of work be not increased or diminished thereby." Any alteration should be valued according to the schedule of prices accompanying the deed. And whenever the engineer gave notice of any such alteration or variation the contractors were to execute the work according to his directions. For delays caused by the contractors £1000 a month were to be deducted from the contract sum. By sect. 22 it was provided that in case the contractors should refuse or neglect to perform the works "as in the aforesaid specification directed or mentioned, or as shewn on any of the said drawings, or to obey and comply with any order or direction to be given by the engineer," the works might be taken out of the hands of the contractors. The work was begun in June, 1864, and neither the Bridge House Committee nor the Mayor and Commonalty ever, in any way, interfered with its progress. But after the caissons prepared as directed had been used, it was found that they would not answer their purpose, and the plan of the work was altered. Time was thus lost, and the labour which had been given to the execution of the original plans was wasted. It was admitted that the work done under the contract had been well done, and the contract price was duly paid, and the costs of the extra work rendered necessary by alterations had been paid. But the contractor claimed compensation for loss of time and labour occasioned by the attempt to execute the original plans. This was refused, and this action was brought. In the declaration it was alleged that "the Defendants guaranteed and warranted to the Plaintiff that Blackfriars Bridge could be built according to certain plans and a specifica |