company should ascertain the value of the work done, according to its quality and relative proportion to the whole work; the

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of the whole works; and at the expiration of one calendar month after the completion of the entire works, to pay one moiety of the £4,000 so retained in the hands of the company, and at the expiration of one year and a month, the remaining moiety of the £4,000. And it was lastly agreed, that during the progress of the works, the decision of the principal engineer for the time being of the company, with respect to the amount, state, condition, &c., or any other matter or thing whatsoever relating to the same, shall be final, and without appeal; but in case of dispute, after the completion of the contract, as to any matter of charge or account between the company and R., such dispute shall be finally settled by the arbitration of the said engineer on the part of the company, and an engineer appointed by R. on his part, or if they disagree, by an arbitrator to be named by them. After R. had proceeded to a very considerable extent towards the completion of his contract, the company, being dissatisfied with the progress of the works, gave the notice to R. mentioned in the contract, and after seven days they took possession of the works, and of all the tools and materials thereon, and completed the works by other parties. R. filed his bill, setting up a case of fraud against the company in concealing the nature of the strata through which cuttings and tunnels were to be made, and insisting that he was entitled to be paid for those works at fair prices, regardless of the contract; that the fortnightly certificates of the value of the works given by B., the engineer of the company, were void, and not binding upon him, in consequence of B. being a shareholder in the company; that he was entitled to be relieved against certain money penalties which had been charged against him in the engineer's certificates; that the company were not justified in taking possession of the works, tools, and materials; and that he was entitled to have an account taken of the value of the works done, on the footing that there were no contracts, or that they were abandoned; and that the company might be debited with the value of the engines, tools, materials, articles, and things of which the company took possession. Held, first, that no case of fraud had been made out. But, semble, that although a corporation cannot be guilty of fraud, yet if their agents employed in carrying out a trading speculation be guilty of fraud, the corporation will be liable. Per the Lord Chancellor.

Secondly, that the principle which prevents a person being a judge in his own cause (Dimes v. The Grand Junction Canal Co., 17 Jur. 73; s. c. 16 Eng. L. & Eq. 63), does not apply to the case of the engineer of a railway company holding shares in that company, who, according to the terms of a contract between the company and a contractor, was, during the progress of the works, to give periodical certificates of the value of the works done, but which, on the completion of the contract, were not final.

Thirdly, that the money penalties had been properly charged against R., they being, upon the proper construction of the contract, not penalties, but liquidated damages.

Fourthly, that even assuming that the company were not justified in taking

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contractor to receive eighty per centum, the remainder being reserved to enforce the completion of the works. That if the possession of the works, tools, and materials, after the notice given, R. was not entitled to treat the contract as not existing, or as abandoned. R.'s right would have been by action for damages, and the seizure by the company formed no ground for such equitable relief as was asked.

Fifthly, that, upon the true construction of the contract, the company did not, according to their contention, upon taking possession of the works and plant after notice, become absolute owners of the tools and materials, &c.; this whole provision is to be regarded, not in the nature of a penalty, but as mere machinery for enabling the company to complete the works at the cost of R., and the company are bound to account for the value of the tools and materials, in settling their accounts with him, which accounts were decreed to be taken on the footing of the contract. In regard to the competency of the engineer, the learned chancellor said: "When it is stipulated that certain questions shall be decided by the engineer appointed by the company, that is, in fact, a stipulation that they shall be decided by the company. It is obvious that there never was any intention of leaving to third persons the decision of questions arising during the progress of the works. The company reserved the decision for itself, acting, however, as from the nature of things it must act, by an agent, and that agent was, for this purpose, the engineer. His decisions were, in fact, their decisions. The contract did not hold out, or pretend to hold out, to the appellant, that he was to look to the engineer in any other character than as the impersonation of the company. In fact, the contract treats his acts and their acts, for many purposes, as equivalent, or rather identical. I am, therefore, of opinion, that the principle on which the doctrines as to a judge rest, wholly fails as to its application to this case. The company's engineer was not intended to be an impartial judge, but the organ of one of the contracting parties. The company stipulated that their engineer for the time being, whosoever he might be, should be the person to decide disputes pending the progress of the works, and the appellant, by assenting to that stipulation, put it out of his power to object, on the ground of what has been called the "unindifferency" of the person by whose decision he agreed to be bound. It is to be observed, that the person to decide was not a particular individual, in whom, notwithstanding his relation to the company, the contractor might have so much confidence as to agree to be bound by his awards, but any one from time to time the company might choose to select as their engineer. The appellant alleges that he did not know the fact that Mr. Brunel was a shareholder until more than two years after the works had been begun.

"But he must have known that the company had it in their power to appoint another engineer in Mr. Brunel's place, who might hold shares, or that Mr. Brunel himself might purchase shares. Without the intervention of the engineer, the contract was, as it were, paralyzed; nothing could be done under it; and it surely can hardly be argued that a person appointed engineer could, by purchasing shares, render the contract practically inoperative."

engineer should not be satisfied with the works, the company should be enabled, after notice given to the contractor, and his

It is regarded as questionable, how far a contract, vesting the property of the contractor in the company, in the event of his insolvency merely, could be maintained, as consistent with the English bankrupt and insolvent laws. Rouch v. The Great W. Railw., 2 Railw. C. 505. But this objection may be obviated by the company stipulating for a lien merely; a right to use the tools and materials of the contractor in the completion of the work, according to and in fulfilment of his contract. Hawthorn v. Newcastle-upon-Tyne & N. Shield Railw., 2 Railw. C. 299. It is said in one case, by a very learned equity judge, Lord · Redesdale (O'Connor v. Spaight, 1 Sch. & Lef. 309), that where an account has become so complicated that a court of law would be incompetent to examine it, upon a trial at Nisi Prius, with all necessary accuracy, a court of equity will, upon that ground alone, take cognizance of the case. But a court of equity will not ordinarily interfere in any such case, and especially when the party applying has been guilty of laches. Northwestern Railw. v. Martin, 2 Phill. 758. See also Taff-Vale Railw. v. Nixon, 1 H. L. Cas. 111; Faley v. Hill, 2 Id. 45, 46. See also Nixon v. Taff-Vale Railw., 7 Hare, 136. It is questionable, we think, whether any such distinct ground of exclusive equity jurisdiction, in matters of account, as the complicated nature of the transactions can be maintained, but there is little doubt this would be regarded as an important consideration in guiding the discretion of that court, in assuming such jurisdiction, in any particular case pending in a court of law. But sometimes where the contractor claims the right to appropriate payments, made generally, to a different contract from that upon which the company desire it to apply, it becomes necessary to draw the whole into a court of equity. Southeastern Railw. v. Brogden, 14 Jur. 795; s. c. 3 McN. & G. 8. See upon the general subject Waring v. The Manch. & Sheffield & L. Railw., 7 Hare, 482. An important case, upon a contract for railway construction, finally determined in the national tribunal of last resort, upon elaborate argument and great consideration, and which involved most of the subjects involved in the case of Ranger v. the Great Western Railw., may be regarded, perhaps, as bearing something of the same relation to cases in this country upon that subject which the English case does to cases of that kind in the English courts.

This is the case of Philadelphia, Wilmington, & Baltimore Railw. v. Howard, 13 How. 307; s. c. 1 Am. Railw. C. 70. It came into the United States Supreme Court by writ of error to the Circuit Court of the United States for the District of Maryland. The facts in the case are complicated, and the points involved numerous. It will only be necessary to state the facts, in connection with the several points decided. The points bearing upon this subject are:--

In such contract the covenant to finish the work by a time named on the one part, and to pay monthly on the other part, are distinct and independent covenants. And a right to annul the contract, on the part of the company, at any time, did not include a right to forfeit the earnings of the other party for work done prior to the time when the contract was annulled.

default in complying *for seven days to take possession of the works, thereupon the plant and materials of the contractor, and

A covenant to execute the work, according to a certain schedule, which mentioned that it was to be done according to the directions of the engineer, bound the company to pay for work done according to his directions, although not strictly in conformity with a profile showing the original proximate estimates.

And when the contract was to place the waste earth where ordered by the engineer, it was the duty of the engineer to provide a convenient place, and if he failed to do so the other party is entitled to damages.

Where the contract authorized the company to retain, until the completion of the contract, fifteen per cent. of the earnings of the contractor, by way of indemnity from loss, by any failure to perform the contract by the contractor, it was held this was not to be regarded as a forfeiture, and that the company, if they terminated the contract, were bound to pay the contractor any amount which they had so retained, unless the jury were satisfied the company had sustained loss by the default, negligence, or misconduct of the contractor, which should be deducted.

Where the contractor was delayed in the progress of the work, by an injunction out of Chancery, he is entitled to no damages, unless the jury find that the company did not use reasonable diligence in obtaining a dissolution of the injunction.

If a railway company, having the power reserved to them of annulling a contract for construction, "when, in their opinion, it is not in due progress of execution,” or the contractor is "irregular or negligent," it was held, that if they exercised this power for the purpose of having the work done cheaper, or of oppressing and injuring the contractor, he was entitled to recover damages for any loss of profit he might have sustained, and of the reasons which influenced the company, the jury were to be judges.

And in Herrick v. Vermont Central Railw., 27 Vt. R. 673, the following points were decided upon this subject :

A stipulation in a contract for the construction, in part, of a railway, that "the engineer shall be the sole judge of the quality and quantity of the work, and from his decision there shall be no appeal,” is binding upon the parties, and constitutes the engineer an arbitrator or umpire between them.

Such a stipulation imposes upon the party by whom the engineers are to be employed, the duty of employing for such engineers competent, upright, and trustworthy persons, and to see to it that they perform the service expected of them at a proper time and in a proper manner.

Such a stipulation, when construed with reference to its subject-matter, and the ordinary course of business, does not require the estimates to be made or verified by the chief engineer, but has reference as well to the assistant, or resident engineer, by whom such estimates are usually made.

If payment for the work performed is dependent upon and to be made according to the engineer's estimates, as to its amount, and the employing party

all the work done and not paid for, and the reserved fund to be forfeited to the company.

performs its duty in reference to the employment of suitable engineers, &c., the obligation to pay will not arise until such estimates are made.

But if no estimates are made, through the neglect or fault of the engineer, or of the party who employs him, the other party could probably recover, at law, for the work performed by him, without any engineer's estimate of it.

A contract providing for monthly estimates of the contractor's work, according to which he is to be paid, imports an accurate measurement and final estimate for each month, and not such a one as is merely approximate or conjectural.

A court of equity has jurisdiction of a claim to be paid for a larger amount of work done under such a contract than was estimated by the engineer, where the under-estimate was occasioned either by mistake or fraud.

The Vermont Central Railway Co. contracted with B. for the construction of their railway, and B. contracted with the plaintiff for the construction of a part of it. In both contracts there was such a provision in reference to the conclusiveness of the engineer's estimates. Held, that there was no privity of contract between the plaintiff and the Vermont Central Railway Co., and that he could not recover of them for work not estimated by the engineer, by reason only of a mistake, which they had not, either directly or indirectly, caused or connived at; and that their indebtedness to B. for the same work for which he was indebted to the plaintiff, did not constitute a fund against which the plaintiff had a claim.

But if there was any connivance on the part of the Vermont Central Railway Co., or their agents, in bringing about the under-estimates complained of, even if it was without the design ultimately to defraud, but only as a temporary expedient for present relief, the plaintiff would be entitled to recover of them the loss which he sustained by reason thereof.

The plaintiff claimed in his bill, that he had been under-estimated a given amount, for the payment of which he instituted the present suit; by the report of the Master, the amount not estimated was found to be more than twice that amount. Held, that the plaintiff should be limited to the amount claimed in his bill.

The report of a Master in Chancery upon the taking of an account, should contain a succinct statement of all the points made by counsel, and the facts found by him upon each point.

The testimony given viva voce before a Master in Chancery, in taking an account, or a copy of it, should be returned to the court, with his report.

The Master should also state the account, at length, and all the facts found by him, so that they will be intelligible, without reference to the testimony.

In a contract for railway construction, where the parties by a subsequent contract stipulated for the completing of the work by a day named, for the additional price of £15,000, and a further stipulation that the contractor should pay the company £300 for each day's delay beyond the time specified, the company to