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THE CIVIL ENGINEER AND ARCHITECT'S JOURNAL. 



His Honour said tliis wm ii case very much parallel to that of the Roman 

 Catholic chapel at Hereford, where the whole works were seized, and the 

 contmctors were left to get what redress they could ; and certainly they got 

 none in this court. It was a case of heart-hreaking hardship, but his Honour 

 never heard there was an appeal from his decision. 



Mr. Sergeant Wilde — Probably the men became bankrupt. 



When it was urged by Mr. Wakefield that the principle of law would not 

 permit the parties to constitute Mr. Brunei a judge without appeal. 



His Honour asked, then what would become of the case of Heap v. the 

 Archbishop of Canterbury ? 



Mr. Wakefield relied on the well-known rule as to arbitration clauses. 



His Honour, without calling for a reply, delivered judgment, and said he 

 must allow the demurrer for want of equity. He did not think the obje. tioTi 

 for multifariousness was well founded, for the contracts, though not one and 

 the same, were yet in pari vmtcria ,■ and if the court had jurisdiction at all, it 

 could only exercise that jurisdiction upon the contracts altogether, and the 

 parties had, in their dealings under the contracts, blended them togetlier, 

 .Tccording to the allegations in the bill. One observation, however, occurred 

 to him : the suit was so framed that if any other parties should make the 

 objection, it can hardly be made witliout producing that objection to the bill 

 for want of parties which the jilaintitf had already submitted to as insuperable. 

 It was impossible not to see that George Ranger had nothing to do with llie 

 three first contracts, and if he objects, his name must be struck out of the 

 record ; and if be is off the record, the objection for want of parties revives, 

 and thus the bill is placed between Scylla aud Charybdis. With respect 

 to the general point, he could not but himself think it was the intention of 

 the company that they should have, in a very great degree, an arbitrary 

 power to dismiss the contractor if they should feel dissatisfied with him ; 

 and, to his mind, the language of the clause which related to the notice of 

 dismissal proved it. The clause was thus ; — " In case William Ranger should 

 become insolvent, or be declared a bankrupt, or from any cause whatever 

 other than the act of the company, their engineer, or agent, should be pre- 

 vented from, or delayed in, proceeding with and completing the work accoid- 

 ing to the contract, or should not commence or proceed with the work to the 

 satisfaction of the company, then it should be lawful for the company to give 

 him notice, requiring him to enter upon and regularly proceed with the work ; 

 and incase he should, within seven days after the notice, make default, it 

 should be lawful for the company to employ another respectable workman," 

 and so on. His Honour observed upon llie generality of the second member 

 of the sentence, namely, " in case the contractor should not conmience or 

 proceed with the work to the satisfaction of the company," and said it ap- 

 peared to him that the parties in forming the clause were sensible if they 

 allowed it to stand in the spirit of the first member of the sentence they 

 would have taken away from the company their arbitrary power; and if they 

 meant to guard against a despotic and arbitrary exercise of power or whim, 

 how came it that none of the exceptive words in the first branch found their 

 way into that sentence? And it appeared to him that there was very great 

 reason for the company to stipulate for that power, for these works must be 

 performed in a particular time, and it would never do for the company to 

 enter into bickerings with the contractor from time to time whether he was 

 going on witli the works in a proper manner ; and, therefore, in his opinion 

 vei-y wisely, and with the full knowledge of the contractor, they stipulated 

 for an arbitrary power to give notice ; and he could not but think the only 

 reasonable method of construing the words " make default" was to read them 

 with reference to the preceding sentence, so as to make the dismissal to de- 

 pend simply upon his not going on to the satisfaction of the company. Any 

 other interpretation would be nonsense ; for, suppo.'ie the company gave 

 notice, and the contractor went on to their dissatisfaction, they must, it is 

 said, give notice again ; and so on you have a succession of notices, and the 

 company in a perpetual state of dissatisfaction with the contractor. That 

 could not be the meaning of the parties. It was evidently their intention that 

 that the company should have liberty to exercise the arbitrary power of 

 ejecting the contractor. His Honour then referred to the case of Heap r. the 

 Archbishop of Canterbury, in which, if he recollected aright, a parly con- 

 tracted with the commissioners for building churches that a contract should 

 be performed to the satisfation of certain individuals. Upon a question of 

 forfeiture for breach of c(»ntract, it was urged that the stipulation was arbi- 

 trary and unjust ; but the answer was, it was quite impos&il>le for the persons 

 on whose behalf the work was done, themselves to form a fair opinion upon 

 it, and they were perfectly justified in stipulating that it should be performed 

 to the satisfaction of some given individual on whom he had reliance, and, if 

 he was not satisfied, they meant, as the contractor was aware, that there 

 should be no appeal. He could not for the life of him think but that the 

 rompany meant to reserve, and did reserve, to themselves an arbitrary right to 

 4is«oiss (he plaintiff; and although it was staled in the bill that the company 

 had .dismissed him with a view to get hold of his property, and so on, that 

 iuay be true; yet, if they have dismissed him, they have only exercised the 

 right which Ibey possessed, and the exercise of that right was followed with 

 consequences which they did not contemplate, and which were mere accretions 

 in exercise of the right. Just consider the power of arbitrarily dismissing 

 persons in their employment, which parties possess, in many instances, under 

 the law of England. Put the case of common day labourers or servants, 

 ^'ou may go hom£, a complaint may be made, and you dismiss your servant, 

 ."vnd refuse to give him a cha'acter, yet he has no redress. If you give a false 

 character, that is a different matter. But supposing the po\yer 9f dismissal 

 in this case were not arbitrary, he could not see how the court could inter- 

 fere. If the forfeiture was legal, there was no redress at law. A party 



applying for equity must do equity. And how was a court of equity to 

 relieve against the forfeiture without providing for the execution of the con- 

 tract? And if the court will not execute a building contract, n foiiiori, it 

 will not execute such a contract as this. Thus the court was disabled from 

 giving any equity to the plaintiff, because it was disabled from giving 

 that reciprocal equity to the defendant of effectually providing at once 

 for the completion of the railroad without interruption, lo which he was 

 entitled. And if the court cannot relieve the plaintiff because it cannot 

 relieve the defendant, there is no portion of the bill on which it can be sus- 

 tained. The case was nothing more than that the company had illegally, and 

 without warrant, sei/.ed the plaintiff's spades, wheelbarrows, &c., and there- 

 fore the bill was filed. There was no case for an account. The payments 

 were all on one side for work, and labour on the other. If there was a 

 question of trespass, or if there was a question upon a qnanlitin mcruity a 

 court of law was the place where that should be decided ; but so long as the 

 work was in progress this court could not interfere. He should therefore allow 

 the demurrer. 



This decision, of course, disposed of the motion for the injunction. 



A;/(tiust //us (lecifion the phiintijf appealed to the Court of Chancrry, the 

 appeal was argued before the Lord Chancellor on the 23rd of Aui/Uit last^ aud 

 f'llowiufj daj/. On Tuesday^ December ith last, the Lord Chancellor delivered 

 the following judi/meiil, reversing the decision of the Vice Chancellor :— 



This was a demurrer which came before him daring the long vacation. 

 He had been induced to hear it, although the sittings were terminated, be- 

 cause it was represented as necessary that the demurrer should be disposed of 

 in order to give the party an opportunity of moving for an injunction ; but he 

 was so satisfied from the discussion which took place on the case made by the 

 bill that it was not one in which he should interfere, that he had delayed 

 pronouncing his opinion till now. The demurrer was a general demurrer by 

 the Great Western Railway Company, on account of multifariousness; but 

 he saw no reason for entertaining it on that ground, the company being im- 

 mediately interested in the whole matter introduced in the bill. It remained 

 to be considered whether the general demurrer for want of equity could pre- 

 vail. It could not of course prevail, if there was any part of the relief 

 prayed to which the plaintiff was entitled. The bill was certainly singular 

 in its form, because it prayed that the defendants might elect whether they 

 w-ould restore the plaintiff to the situation in which he was in possession of 

 the work, so as to enable him to complete the works he had contracted to 

 perform, or if not, that they should consider the contract at an end ; but in 

 either alternative the prayer was, that the accounts which subsisted between 

 the plaintiff and defendants might be taken. In was not necessary lo go 

 into the very detailed circumstances laid before him at the hearing, because 

 if any part was capable of giving an equity, of course the demurrer could not 

 prevail. But for the purpose of explaining the view he took of the case on 

 the bill, it w,xs sufficient to state, that the plaintiff alleged he had entered into 

 contracts to do certain works on the railway ; tl)ai it was part of the pro- 

 visions of those contracts that the surveyor and engineer of the company 

 should every fortnight ascertain the quantity, or rather the value of the 

 work done according to certain stipulated rates of charge ; that the 

 contractor, the plaintifl', should be paid four-fifths. 801., out of every 

 1001., for the amount of work so ascertained to be done, the 201. per 

 cent- irnpaid being to remain in the hands of the company until it had accu- 

 mulated to a certain sruu, 4,0001., and on allaining that amount, the engineer 

 having satisfied himself that the work was well done, ihe contractor was to 

 be paid the whole that was due. In these contracts there were certain con- 

 ditions imposing great penalties and giving great powers to the railway com- 

 pany. Among others there was this condition — if the engineer shoirld not 

 be satisfied with the mode in which the works were conducted and the pro- 

 gress made, the company were to give notice to the contractor to prosecute 

 the works, and if he did not within seven days prosecute the works, they 

 should be at liberty to enter upon the works in progress. Upon that taking 

 place, not only all the plant, machinery, utensils, &c., employed by the con- 

 tractor was to become forfeited to the company, but the plaintiff was also to 

 forfeit all that remained unpaid on the work previously done — i. e., that the 

 money actually paid should be considered in full satisfaction of the work up 

 to that time. If the engineer had done that which the contracts required — if 

 he had provided for the ])aynienf. according to the contracts, of 801. per cent, 

 on all the work done every fortnight, the forfeiture would have operated oir 

 the 201. per cent, remaining unpaid ; but the case made by the bill was, that 

 this had not been done, and that in fact Ihe engineer, favouring the company 

 and acting oppressively towards the contractor, did not estimate the work 

 done so as to give the contractor 801. per cent. According to the statement 

 in the bill, a very much larger sum was due to the contractor than 201. per 

 cent, on the previous estimates, yet the penalty was sought to be enforced on 

 all that was due, not only to exclude the contractor from the 201. per cent. 

 not paid, but also from a very large proportion of the 801. per cent, which 

 he ought to have received. How was this, then, to be ascertained ? Only 

 by an investigation of the work done, and the mode in which the engineer 

 had estimated it. But that was not the whole case stated in the bill. Inde- 

 pendently of the works carried on under these several contracts, which were 

 in writing, there were other contracts not in writing ; there was also what 

 was called the extension contract for carrying on the line, which was not in 

 writing, but to be carried on at certain stipulated prices. Under that con- 

 tract, the bill alleged payments had been made, but very laige sums 

 still remained unpaid. The bill stated that upwards of 30,0001. remained 

 due on works actually completed by the contractor ; so that if the 

 company were right iq doing wbut lliey bad done, aad enforcing 



