An act of parliament was passed, on the 20th of August 1853, to enable the South Wales Railway Company to make, first, a railway commencing from and out of the authorized Pembroke Dock line of the South Wales Railway, in the parish of Nash, in the county of Pembroke, and terminating at or near and on the west side of the entrance to the pill or estuary known as Pennar Mouth, or Pennar Pill, in the parish of Pwllcroghan, in the same county; and, secondly, a railway commencing from and out of the South Wales Railway as then authorized, in the parish of Begelly, in the county of Pembroke, and terminatNEW SERIES, XXIV.-CHANG.

ing by a junction with the South Wales Railway in the said parish of Nash.

Before the passing of the act, and whilst several of the directors had doubts whether it would not be expedient to withdraw the bill, negotiations were opened with the defendants, who were contractors in a large way of business, through Mr. John Parson, a solicitor, in the course of which the defendants addressed the following letter to Mr. Brunel, the plaintiffs' engineer :

"Reigate, June 30, 1853. "Dear Sir,-We have examined the plan and sections relating to the proposed Pembroke branch railway, being a distance of twenty-two miles, or thereabouts, and we now offer to execute the whole of the works of every kind (except stations, maintenance and providing the requisite land, which are not included in our estimate), and to supply the whole of the permanent way materials, including Barlow's patent rails, at 90 lb. per lineal yard, necessary for the full and entire completion of the above branch railway, as a single line of railway, to your satisfaction, for the sum of 275,000l., the character of the works to be similar to the works of the South Wales Railway; and to complete the line in two years after receiving possession of

B

the requisite land; and we are willing to give the company five years' credit on being secured the above amount, with interest at 47.10s. per cent. in the interim, in some reasonable manner.

"Thomas Tredwell,

"George Wythes."

After this letter and some further negotiation, the following agreement, dated the 1st of August 1853, was entered into, and signed by Mr. Parson, as the agent of the defendants, and afterwards by the defendants themselves, and it was executed also by the company :

"South Wales Railway, Pembroke Branch.-Memorandum between the South Wales Railway Company and Mr. Parson, acting for Mr. Wythes and Mr. Tredwell. The company to find the land within a reasonable time, and build the stations. The contractors to give a bond to the amount of 50,000l. to secure the performance of their contract, and to undertake to execute the works for a double line of railway, and the ballasting and permanent way for a single line, according to the terms of the specification to be prepared by the engineer for the time being of the company, for the sum of 290,000l., to be complete ready for opening by the 1st of December 1855, to be paid in a new stock to be created, bearing 51. per cent. interest from the day of the line being so ready for opening, such interest being derived from the receipts upon the branch line, 60l. per cent. of such gross receipts being devoted to such purpose, and an additional 107. per cent. of such receipts, making 70l. per cent, on all traffic over the said branch, which shall pass to and from or beyond Carmarthen, or any other more distant place on the main line, the residue of the gross receipts upon the said branch being retained by the company for working the branch; any arrear of the interest of 51. per cent. in one year to be made good out of any surplus in any following year or years, until the stock is redeemed. The South Wales Railway Company to have the option of redeeming such stock, or any portion thereof, at any time after the opening of the branch, upon one year's notice, at par, paying any arrear of interest, if any be due, as above, on the stock so redeemed. And it is further agreed that

the company shall positively redeem such stock at par, either by payment in cash, or, at the company's option, by exchanging or converting such stock into ordinary shares of the company, but without paying any arrears of interest, whenever the South Wales Railway Company's ordinary shares. are above par, and shall have remained so for a continuous period of not less than six calendar months, or during such period shall have averaged half per cent. above par, provided that at the same time a sum of 100,000l. at the least shall have been paid up, and bona fide expended upon the works of the Milford Haven Docks, to be duly certified by the engineer-in-chief for the time being of the said dock company. The company to work the branch in a reasonable and proper manner as compared to the remainder of the South Wales Railway; in case of difference as to working the same, to be settled by arbitration. Any of the details of this arrangement in case of difference to be determined by a referee, to be appointed by the Solicitor General for the time being, on the application of either party, such referee to draw out and settle on behalf of both parties the documents necessary to carry it out. The arbitrators, under working clause, to have the power of considering whether the mode of working the Pembroke branch is reasonable, having reference to the company's mode of working the branch to Heyland, and if the arbitrators make any award, both parties to abide by it."

Mr. Brunel, the company's engineer, having prepared the specification, some correspondence took place between the solicitors of the respective parties, which resulted in a formal contract, with the specification annexed by way of schedule, being forwarded to the solicitors of the defendants, and instant attention to the matter urged upon them.

No answer, however, could be obtained to this application, and the draft contract was not returned, and after several ineffectual attempts to obtain the execution of the contract, the plaintiffs filed the present bill stating these facts, and alleging that if the agreement of the 1st of August 1853 had not been entered into, the bill before parliament would have been withdrawn, but that the company had proceeded with

it, and procured the act to be passed on the faith of the agreement.

The bill also alleged that the defendants well knew that Mr. Brunel was the engineer of the company, and were well acquainted with his specifications, and that it was a very usual thing for contractors to contract according to the terms of a specification to be afterwards prepared.

The bill further alleged that the defendants had, at the date of the agreement, purchased a valuable estate in the county of Pembroke, to which the branch railway would form a direct means of access, and which would be much enhanced in value thereby ; and the defendants, by their agreement, induced the plaintiffs to come under the obligation to make the line, and having attained that object, sought to repudiate the agreement; and it prayed that the agreement might be specifically performed according to the terms of the specification prepared by Mr. Brunel, and that it might be declared to be binding on the plaintiffs and defendants, and that the defendants might be decreed to give a bond in the amount of 50,000l. to secure the performance of the contract; that the contract containing a copy of Mr. Brunel's specification might be executed, being first, if necessary, settled by the Court; and that the defendants might be decreed to execute the works according to the specification.

To this bill the defendants severally demurred for want of equity.

Mr. Daniel and Mr. Babington, for the defendant Wythes, in support of the demurrer. The agreement is bad by the Statute of Frauds-Boydell v. Drummond (1), Clinan v. Cooke (2), and Ridgway v. Wharton (3). The plaintiffs are seeking to remodel the very contract of which they also ask for specific performance. The case of Storer v. the Great Western Railway (4) was a case which did not admit of adequate compensation in damages-Flint v. Brandon (5). The contract is illegal too: the works are to be paid for in a new stock

(5) 8 Ves. 159.

which the company had no power to create. Supposing the defendants not to execute the works, still the company are in possession of the powers and can make the railway themselves; it is a mere question of pecuniary compensation. Then, as to the bond for 50,000l., that is merely an accessory the principal is the entire contract, and the Court must be satisfied that the bond is for a purpose which is to be effected before it will decree execution of it; and if the Court is not satisfied as to the legality of the contract it will not direct the bond to be executed-Avery v. Langford (6).

Lucas v. Comerford, 3 Bro. C.C. 166.
Mosely v. Virgin, 3 Ves. 184.
Ranger v. the Great Western Railway
Company, 1 Rail. Cas. 1.

Harnett v. Yielding, 2 Sch. & Lef. 549.
Lord James Stuart v. the London and
North-Western Railway Company, 1
De Gex, M. & G. 721; s. c. 21 Law
J. Rep. (N.s.) Chanc. 450.

Mr. James and Mr. Rogers appeared for the defendant Tredwell.

Mr. Rolt and Mr. G. M. Giffard, in support of the bill.-This is a most unconscientious defence. The defendants had an interest in procuring us to put ourselves under an obligation to complete the railway, and having got that, they now refuse to perform their part of the contract. We come here with a case of part performance; we cannot be put in the position in which we were before the signing of this agreement. The agreement is not unreasonable -Kirk v. the Bromley Union (7). In Price v. the Corporation of Penzance (8) the Court decreed specific performance of a contract to build a market-place. At all events, we are entitled to the bond in order that we may be placed in the position of specialty creditors in case we succeed at law.

Graham v. Oliver, 3 Beav. 124.
Lumley v. Wagner, 1 De Gex, M. & G.

604; s. c. 21 Law J. Rep. (N.S.)
Chanc. 898.

Marker v. Marker, 9 Hare, 1; s. c. 20
Law J. Rep. (N.s.) Chanc. 246.

(6) 1 Kay, 663; s. c. 23 Law J. Rep. (N.s.) Chanc. 837.

(7) 2 Phill. 640; s. c. 17 Law J. Rep. (N.S.) Chanc. 127.

(8) 4 Hare, 506.

Nun TC. thont hearing a 17I hing the tension of "nese demurrera, though a great anmner of sweatione hacie Teen maser, arried and anewered legend on the wide poneru energiea which have seen applied to a.. con of hus character from a very eat pooch, and that my furaer enaideration I con d give to the case wond act aber my opinion in that maneet, Aunming in favour of the plaintiffs that this is an agreement inaffected by the ratute of Frauda, with everything pain. expressed as if the contract a team fa..y drawn out, and that this a a contract in the common form so exemte certain works, on payment of thla mim in money's worth, instead of being in this mode 17 shares: I cannot conceive in that state of things that, with the exception of the allegation of the deception praetised on the plaintiffs, there is anything to danglah this from Ranger v. the Great Western Pauway Campany, in which case Lord Cottenham made the observation, cited by Mr. Danies, that the contract of itself was clearly of a nature, as far as that case went, which this Court would not exente; and I apprehend that there is no instance to be found in the books anywhere approximating to each a case as I have before me, in which the Court has been asked to exercise its jurisdiction of specife performance for carrying into effect a contract for the execution of works of a very complicated and difficult character, and for the non-completion of which contract a remedy may be had, and, as it seems to me, not only an adequate, but a better remedy, in damages. The cases referred to, going through that class of cases, from Lucas *. Comerford down to the cases of Flint ▼. Brandon and Storer v. the Great Western Railway Company, before the Vice Chancellor Knight Bruce, were decided in perfect accordance with these principles, and in all those cases the Court thought that contracts for building and contracts for executing works generally were matters which in the first place the Court could not very easily superintend, and that, when broken, there was an adequate remedy in the Courts of common law by way of damages: and in that case of Storer v. the Great Western Railway Company the Court anxiously guarded itself by saying, the com

ganyang shrained possession of the punts and upon the faith of their conerick, and it wopearing that damages for She ann-erformance of men a contract, egema.. 7 sansidering the proximity of the paint.fi mansion-house and the dememes cacher to it would be anything but an alegiate compensation, the plaintiff had a right to come to the Court for the perfe thing contracted for: and the Court Beld, that that was an exception to the generai class of cases to which I have been referring, mei a the case of the Penzance Meriz. Somtenody under or by virtue of a contract with another obtains possession of his land, and having obtained possession of 13 land, does not choose to perform specialy the very thing for which he wid it. It may be an inconvenience to have to build a market-place, or whatever it may be, bus an inconvenience not to be put in emparison at all with the enormous inconvenience which would attend the operations of this Court if it were to take upon itself as between contractors and railway companies, the making, as it would have probably to make, half the railways in the kingdom; bat besides that, as I said before, the same observations do not apply as in the case before Knight Bruce, V.C., namely, that the person having parted with his land had no opportunity of testing, by way of damages, the inconvenience arising from the non-performance of the contract. Now, assuming the contract to be in every other respect favourable to the plaintiffs, and that it ought to be carried into effect, namely, that it is a legal contract for which he has a right to have a remedy in damages, they have got the land, they have an act of parliament, and they have the power of making the railway. It is true great difficulties may occur; but they may make the railway themselves; and having so made it and found out the expense the defendants have put them to, they may recover damages for the nonperformance of the contract; or they may, without doing that, simply bring an action at once in respect of the damages, supposing them to be such as I have described; or they may bring an action in respect of damages which may have been incurred in consequence of the increased prices and every other circumstance which will be fit

and proper to be laid before a jury as having been occasioned by the non-performance of the contract, and they would thus get complete relief: whereas this Court could hardly bring a suit of this description to a termination; the motions would have to be incessant for committals, or otherwise, for the non-performance of the different orders with regard to the making of a particular bridge or cutting, or any other work pointed out; not to mention that there will be no small difficulty on the ground of reciprocity in settling that part of the agreement in which the plaintiffs are to hand over the land; and I should be continually asked on the one hand to enforce the defendants to carry on the works, and on the other hand I should have to be continually operating on the plaintiffs to make them complete the purchases and to make them put these parties in possession of the land.

The only questions remaining are, first of all, whether really in the alleged fraud practised on the plaintiffs, as it is called, there is anything to distinguish this case from the class of cases I have referred to. The highest it can be put at is this: that these gentlemen entered into this arrangement and signed this memorandum knowing the plaintiffs had a bill pending, and allowed the plaintiffs to go on with the pending bill on the supposition that this was an effective instrument. There is no allegation of any intimation on the part of the plaintiffs, "If you enter into this agreement we proceed; if not, we stop." The circumstances alleged are, that they signed this paper and allowed them to obtain the bill. If there be such an inconvenience as is suggested, the bill being obtained, that again is very proper to be submitted to a jury with reference to the breach of contract. If even it can be said that the defendants obtained pecuniary advantages, I am not aware that this topic would be excluded from the consideration of the jury. At all events, the parties would have that compensation which they are entitled to in damages in respect of the breach of the contract.

There remains the question, whether this portion of the agreement, which says that the contractors are to give a bond to the amount of 50,000l. to secure the performance of the contract makes any difference

in the view I ought to take of this case. It is said, "at all events, if the Court cannot overcome all these difficulties in the way of executing the contract let us, at least, have the bond." That would seem to be a piecemeal execution of the contract, which I should not be justified in directing. I should give to the plaintiffs the benefit of the bond, not having it in my power to superintend the execution of the whole body of the works. I have considerable doubts whether if the thing stood alone, upon an advance of money with an agreement to execute a bond, such a bare agreement as that would be executed in this court at all, but I am satisfied that its being joined with the rest of the contract does not make the case any better, but rather the reverse; it is a portion of the whole agreement which I am asked to execute, finding it impossible for the Court to carry the whole agreement into effect. The case I have been referred to, of Avery v. Langford, was a different case. That was an agreement by which suits were compromised and land agreed to be bought, and the parties were to execute a bond in respect of it. That was a clear agreement to be executed by this Court, an agreement to purchase land which contained, amongst other things, a certain agreement as part of the terms of it to give a bond. It shewed that the whole agreement was to be executed, and because the whole agreement could be executed the bond was given. It seems to me I cannot rest any part of the plaintiffs' case on the fact of there being a stipulation that a bond should be given; and therefore, upon these wider principles, I prefer allowing these demurrers to entering into the detail of the legality or illegality of the instrument, being the proper course of trying that to have it tried at law; and I see no necessity for my pronouncing an opinion on that question; because, assuming it to be perfectly legal, I do not see my way to giving any relief to the plaintiffs. I can only allow the costs of one demurrer, as the defendants are co-contractors.

Demurrers allowed; costs as on one demurrer.