Where the engineer of a railway company informed a contractor by letter, that his tender for certain railway works was accepted by the company, but no document to such effect had been executed by the company, and they afterwards repudiated the contract; and the contractor afterwards filed a bill, seeking to make the company liable to him for the loss he had sustained, or to obtain from them the execution of a contract, and alleged that the company held monies for the purpose of paying him, and were trustees thereof for his benefit, under a written instrument :-a demurrer for want of equity was allowed.

In February 1846, the plaintiff sent in a tender for the execution of certain works for the North Wales Railway Company. The tender was in the following terms:"North Wales Railway. Tender for works from Bangor to Carnarvon. To the directors of the North Wales Railway Company.

"Feb. 5th, 1846. "Gentlemen,-I hereby undertake to make the line of railway for a distance of 81⁄2 miles agreeable to the plans and to the satisfaction of Sir John Rennie for a double line of works, and providing rails, chairs, sleepers, pins and keys, points and crossings, fencing and ballasting for the sum of 141,000l., the whole to be done in a complete and workmanlike manner and finished by the 31st of July 1847. For a double line of works and a single line of perma

nent way the amount will be 115,0007. For a single line of works and a single line of permanent way, the amount will be 89,0006. The amount of 4,500. provided for stations to be added to each of the before-mentioned amounts, 4,500l."

In answer to that letter the plaintiff received the following reply from Sir John Rennie, who was the principal engineer of the railway company :

"North Wales Railway, Adam St., Feb. 16th, 1846. "I beg leave to inform you, that the North Wales Railway Company have accepted your tender, the board reserving to themselves the power of hereafter determining whether a double line or single line of works shall be adopted. I further beg to inform you, that the board have expressed a wish to have an interview with you on Thursday next, and I will thank you to make it convenient to attend; the hour of meeting shall be sent to you. I will thank you to acknowledge the receipt of

this letter.

"I am your obedient servant,

"John Rennie." The plaintiff shortly afterwards attended a board-meeting of the directors at their request, when he was informed by them that Sir John Rennie was fully authorized by them to accept the tender.

The bill then set out some further communications which took place between the plaintiff and the company, both verbal and in writing, and the result of which was that the company insisted that they had not accepted the plaintiff's tender, and they repudiated it altogether. The plaintiff, on the other hand, gave them notice that he should hold them responsible for the expenses he had incurred in preparing for the works, and which he estimated at about 4,000.

The bill alleged that the company had fraudulently refused to affix their corporate seal to any document accepting the tender, or to obtain the signature of two directors to it; and that they had done so in order that they might at any time either obtain the benefit of the preparations made by the plaintiff, or, if it should suit them better, repudiate all legal liability in respect thereof; and that they refused to execute any contract, or to recognize the plaintiff as having contracted with them.

The bill charged that the company had money in hand for the especial purpose of paying the plaintiff, and had been constituted and were trustees of such money for and on behalf of the plaintiff, and him only, and in order to pay him what was due in respect of the matters aforesaid, subject only to the deduction thereout of the costs and expenses of their trust, and of the preparation and execution of the instrument by which they had admitted the possession of the said trust monies on the trust aforesaid, and, subject thereto, the said money was held in trust for the said company absolutely; and also that they had executed a deed of trust, directing the application of certain trust funds in the manner before mentioned.

The bill prayed for a decree that, under the circumstances, the defendants were liable to the plaintiff for all damages and losses sustained by him in respect of the matters aforesaid, and that the amount thereof might be ascertained either by a reference to one of the Masters of the Court or by an issue; and that the company might be ordered to affix their corporate seal, or procure the signature of two directors to the letters of the 5th of February 1846 and the 16th of February 1846, or to some document referring thereto, and accepting the terms thereof, so as legally to bind the defendants: or otherwise that a proper contract, according to the terms of the said letters, might be settled and drawn up; and that the defendants might be ordered to affix their corporate seal or to obtain the signature of two directors thereto, and might be ordered on the trial of such action or actions as the plaintiff might bring against them in respect of the matters aforesaid, to admit that the letters or other document or the contract, as the case might be, were and was duly and legally executed by them.

To this bill the defendants put in a demurrer for want of equity. It was first heard before the Vice Chancellor Knight Bruce, who overruled it, on account of the allegation in the bill that the company held monies as trustees, for the express purpose of paying the plaintiff's demand.

The company appealed from that decision.

Mr. Bacon and Mr. J. H. Palmer, on

behalf of the appellants, contended upon the authority of Kirk v. the Bromley Union (1), that where a company was not bound by any deed or agreement legally executed, the Court would not interfere so as to give effect to an agreement which only existed in communications from the company's agents, or which was to be inferred from some of their acts, and that the allegation that the company were trustees was merely a statement of the plaintiff's own inference from previous facts.

Mr. J. Russell and Mr. Giffard, for the plaintiff, contended that the company had authorized the tender to be accepted, and, as the bill alleged, had only refused to enter into a binding agreement from motives which this Court would, for the purposes of this suit, consider as fraudulent; that the statement that the company were trustees being assumed to be true, for the purposes of the demurrer, gave the plaintiff a clear equity; and therefore the decision of the Vice Chancellor ought to be sustained.

The LORD CHANCELLOR (without hearing a reply).—I agree with the opinion of the Vice Chancellor Knight Bruce as to the want of equity in this case. The contract alleged (if it was a contract at all) was an agreement to make a railway. This most resembles a covenant to build, which the Court will not enforce or interfere with.

Then comes the question whether what is alleged to have taken place in this case is sufficient to make such a contract as this Court will carry into effect. The contract was made, not by the defendants, but by their agents. It was comprised in a proposal made by the plaintiff in the alternative, and the charge is for a single line or a double line. The alternative was never decided on. It is said that the party who made the contract was their authorized agent. The defendants say that the company had by law and by statute a particular mode by which they could charge the company, and that they had no other power or means of doing so. As to the fact that the company recognized Sir

(1) 2 Ph. 640; s. c. 17 Law J. Rep. (N.s.) Chanc. 127.

John Rennie as their agent, and that he had their authority for doing what he had done, and that the plaintiff incurred certain expenses in preparing for the execution of his contract, I cannot see that those circumstances distinguish this case from Kirk v. the Bromley Union. There there was a binding contract between the plaintiff and the defendants for certain works, and it was provided that if any alterations were to take place, certain forms should be adopted. Of course no alterations would be sanctioned or create a right, unless the forms should be followed. But the parties departed from those forms, and, according to the opinion of the Vice Chancellor, waived them. And then the forms not being followed, yet the defendants having so encouraged the builder in performing those works and having done everything which would bind an individual, the question was, whether such a state of things did not supersede the necessity for the contract as to any such work. What I said was[His Lordship read the judgment in Kirk v. the Bromley Union, from 2 Phillips, p. 648].

Then comes the other point. The bill alleges that the defendants are trustees for the plaintiff as to certain monies which they have in their hands for the purpose of paying him, but he is bound to state how the trust arose. Can a party come here and say "he is a trustee," and is not the Court to be informed how the trust was created? The allegation of trust is a mere deduction of law. If the acts constitute a trust, the Court will exercise jurisdiction in respect of it, but it is not merely because the party alleges a trust without shewing how it arose, that any such consequence follows. But the plaintiff shews here that no trust could have arisen. How could the company have become trustees? The bill alleges that they have money in their hands to pay his demand, as to which money they are trustees for the plaintiff, who according to his own bill has no other connexion with the company, except that he was induced to believe that he should have a contract, and thereby incurred expenses. The trusteeship is a conclusion of law, and although the plaintiff is pleased to call it a trust, that will not affect the jurisdiction of the Court, where, according

The question in this case arose upon the will and codicil of the Rev. Fletcher Dixon, Doctor of Laws, dated the 21st of May 1848, by which he gave to his faithful servant, Anne Bagnal, the sum of 401. per annum, to be paid half-yearly by his executors out of his 31. per cent. consols during her natural life, independent of any husband she might marry: and the rest and residue of his property the testator gave and bequeathed to Nancy Bancroft, granddaughter of his late brother, J. Dixon. The testator made a codicil to his will, dated the 14th of November 1848, by which he gave to his servant, Anne Bagnal, the sum of 301., and directed that the funds constituting her annuity after her decease should be transferred to his cousins, Joseph and Isaac Nowell, "or to the survivor or survivors of them," in equal shares.

Joseph and Isaac Nowell both died in the lifetime of Anne Bagnal, who was now also dead, and the funds constituting the annuity were claimed on the one hand by the personal representative of the survivor of Joseph and Isaac Nowell, and on the other by Nancy Bancroft as residuary legatee of the testator.

Mr. Craig appeared for the trustees, and submitted the question to the Court.

Mr. J. Parker and Mr. Lloyd appeared for the representative of the survivor of the testator's cousins, Joseph and Isaac Nowell, and contended that the bequest to them was a gift vested, but liable to be divested in favour of the survivor of them, in the event of one only being alive at the death of Anne Bagnal; and cited

1 Jarman on Wills, 750.

Sturgess v. Pearson, 4 Madd. 411.
Templeman v. Warrington, 13 Sim. 267.
Wagstaff v. Crosby, 2 Coll. 746.

Mr. Bethell and Mr. Lewin, for the residuary legatee, submitted that the period to which the words of survivorship in the codicil referred, was the death of Anne Bagnal; that it was either necessary to strike out the words "or the survivor or survivors in equal shares," or else that the word "or" must be construed not merely as substitutional, but rather as qualifying the preceding gift, and imposing thereon a condition precedent, necessary to be fulfilled in order that the gift might vest, and on this ground the present case must be distinguished from all the former decisions upon the question. It was also contended that as there was no direct gift to the two cousins, but only a direction to transfer the amount to them, such transfer could not be made except during the life of one of them, and that as they both died before the annuitant, the fund belonged to the residuary legatee.

Salisbury v. Petty, 3 Hare, 86.
Leake v. Robinson, 2 Mer. 363.

The VICE CHANCELLOR. Considering this was a will made by a gentleman who describes himself as a doctor of laws, it is rather singular that he should not have been able to write a common English sentence in a grammatical way. It is quite impossible to conjecture what he intended by the words "survivors of two people." The language is certainly very obscure; but it appears to me there is nothing more than this a gift of so much of his consols as produced the annuity of 40l. to the two cousins or the survivor of them, and this could not take effect until the death of the annuitant. I think, in strictness, the survivor of the two persons would be entitled to ask for a transfer, and that the repre

A bill stated that A. had contracted with a railway company to perform certain works, and that the company had agreed to pay for them in a certain specified manner, with the proviso, that, unless the engineer of the company should give his certificate, the works should not be considered as completed; that the works had been completed properly; but that the engineer, acting under the direction of, and in collusion with, the company, refused his certificate. The bill prayed a declaration that such refusal was a fraud upon A, and for an account and payment of the sums due to him. The bill was filed against the company, their secretary, and their engineer, who all demurred to the bill. All the demurrers were overruled.

The bill in this case was filed by the executors of Hugh Macintosh against the Great Western Railway Company, Mr. Saunders, their secretary, and Mr. Brunel, their principal engineer.

The bill stated that by an indenture, dated the 5th of November 1836, after reciting that H. Macintosh had contracted with the company to execute certain works to the satisfaction of the company and their principal engineer; and that the company had agreed to advance him money on account of the works done and executed, such execution to be certified by I. K. Brunel as the principal engineer of the company, it was witnessed that H. Macintosh agreed to perform the works to the satisfaction of the company and their engineer; and that the company agreed to pay the sums therein mentioned at certain specified times. The bill then stated, that the indenture contained a proviso "that the works contracted to be done should not be deemed or considered as executed unless the same should have been executed within the time specified for that purpose by the indenture, to the satisfaction of the principal engineer for the

time being, and should have been certified by him to have been so executed, and that, on notice being given by H. Macintosh for that purpose, the said principal engineer, or assistant resident engineer, for the time being, should, without delay, examine the works; and, if executed according to the contract, certify the same to the company; and thereupon H. Macintosh, his executors, administrators or assigns, should be entitled to recover from the company the amount certified to be due for the works."

The bill then alleged that the works had been properly completed; and that notice had been duly given thereof by H. Macintosh, and that the engineer had refused to give his certificate; and that he had so refused because he had been desired by the company not to give his certificate; and that, in such refusal, he had acted under the direction and authority of, and in collusion with, the company.

The bill prayed that it might be declared that the withholding the certificate was a fraud upon the plaintiffs; that an account might be taken of what was due to the plaintiffs in respect of the works, and that payment might be decreed.

To this bill the company put in a general demurrer, and Mr. Saunders and Mr. Brunel also separately demurred.

Mr. Bethell, Mr. Bacon, and Mr. Stevens, for the Great Western Railway Company, and Mr. Saunders, their secretary, contended that the plaintiffs had not shewn by their bill sufficient equity to support it. There were two alleged grounds of equity; one, that the accounts could only be properly taken in a court of equity, and the other that the treatment of Mr. Macintosh by the company and Mr. Brunel came properly within the cognizance of a court of equity. The cases of Ambrose v. the Dunmow Union (1), and Kirk v. the Bromley Union (2) disposed of the first ground. As to the second ground the plaintiffs could have relief by an action at law; and were not entitled to come to this court for itHotham v. East India Company (3), Morgan v. Birnie (4).

Mr. Rolt and Mr. G. L. Russell, for Mr.

Brunel. It is a well-established rule that a plaintiff will not be allowed to make any person defendant to the bill against whom no relief is prayed. To a bill for relief a mere witness cannot be made a defendantFenton v. Hughes (5), Le Texier v. Margravine of Anspach (6). To this rule there is an exception, that secretaries and bookkeepers of corporations may be made defendants, for the purpose of obtaining from them the discovery which cannot be obtained from the corporations-Wych v. Meal (7), Anon. (8), Steward v. East India Company (9), Moodalay v. Morton (10), Dummer v. the Corporation of Chippenham (11), Glascott v. Copper Miners' Company (12). Mr. Brunel is neither secretary nor book-keeper, and does not come within the exception. They also cited Earl of Glengall v. Frazer (13).

KNIGHT BRUCE, V.C.-The bill in this case may, as between the plaintiffs and the Great Western Railway Company, be accurately represented thus:-A tradesman and a customer contract together, by deed, that the former will execute for the latter works of considerable magnitude and extent, in consideration of being paid for them, by the customer, according to their just value; the value, however, or the amount to be decided by a third person specified in the deed; such third person, when satisfied of the due execution of the work, certifying that fact, and the amount of payment to be made. The tradesman is not, without that certificate, or otherwise than conformably to the certificate, to be entitled to receive anything. Under this contract the works are executed by the tradesman duly and properly to the knowledge and satisfaction of the customer and the third person. The tradesman, applying afterwards for payment, is refused for want of the certificate from the third person, who, being in the customer's employment, and interested moreover in decreasing the amount of the liability of the customer, with(5) 7 Ves. 287. (6) 15 Ibid. 159. (7) 3 P. Wms. 310.

(8) 1 Vern. 117.

(9) 2 Ibid. 380.

(10) 1 Bro. C.C. 469. (11) 14 Ves. 245.

(12) 11 Sim. 305; s. c. 10 Law J. Rep. (N.s.). Chanc. 30.

(13) 2 Hare, 99; s. c. 12 Law J. Rep. (N.s.) Chanc. 128.