The Express.
London, England, 1847-07-17 00:00:00

HOUSE OF LORDS.

Prefect : The Lord Chanorliori_Lord Brwgkam, and Lord Nelson.
RANOBR e. TR6 GREAT WILSTERI4 RAILWAY COMPANY,
ET E CONTRA.—CONTRACTS FOR RAILWAY WOR•B.—FOR-
PEITEURB AND PENALTIEN FOlt DILAT AND NON-COMPLE-
TION.—CONTRACTOR'S COMPLAINT or FRAUD AND OP.
razastox.—The arguments on these appeals, of both '
complaining of the Vice-Chancellor's decree, having takea up
nine dam are at last concluded. The main facts in the PAIR
were stated in our report on the second day of the arguing
(ip the beginning of last June). It may be remembered
at Mr. Ranger entered into three contracts with the Great
Western Railway Company in the year 1838, soon after that
company was incorporated by act of parliament. These con- '
tun were of different dates, and were described as " No. 1
B," " No. 2 B," both being at the Bristol end of the rail-
way. To the ant of these two contracts there was an addi-
tion made, subsequently described as " No. 1 B Extension."
The third contract, which was made after the works were in
progress in the former two, was for part of the line at
Reading, end was known as " No. 8 L," by which letter
was meant the London end of the line. For " No. 1 B,"
being 2f miles in length, from a point near Bristol, the con-
tutor(Ranger) was to get 83,0801. for the earth-works, tun-
nelling, and masonry (including a stone bridge over the
Avon), and the completion of all the works necessary for
that portion of the line, except laying the rails. The man-
ner and the time in which the works were to be completed,
were particularly specified in schedules to the contract. The
payments were to be made to the contractor periodically, as
the works were done, upon certificates thereof given under
the hand of Mr. Brunel, the chief engineer, or an engineer
employed under him, who was, by the contract, to have
power to direct the formation of the works, to put more or
fewer men on them for expedition ; and for non-compliance
with these orders, and for delays and non-completion of the
works at the times nrescribed, the contractor was to suffer
certain forfeitures, and pay penalties, and be denuded of all
his plant and property on the line. These events took
place in respect of each and all the lines, and it was
to obtain relief against these remits, and to compel the
y to come to a reopening of all accounts with the
ant that he filed his bill. The Vice-Chancellor decreed
em account of some of the transactions between the parties
abe taken by the master, and damned the bill as to all
aim parts of its prayer. The appellant complained of this
&WM IS not oaning an account of all the transaction., and
the langpway also complained thet the bill was not dismissed
allrappfare. By the second contract (No. 2 B), being for
arearhr bridges, masonry,
Noires,dra fences,
di miles in continuation of 1 B, from
Drinaßath, the contractor was to have 64,0001.,
and for like works to part of the line at Reading comprised
in the third contract he was to have 184,0001. The stipula-
tions in these two contracts as to the time and manner of
beginning, performing, and completing the works, were
similar to the 4.a.lations in the first contract, and the
arguments, the . principally applied to the first contract,
were equally app ble to all the three.
Sir F. Kelly and Mr. O. Turner were for the appellant,
and occupied the attention of the court during four days.
They argued : That there was a deception practised on
the appellant In reward to the strata in parts of the line com-
prsed No. 18, beeanes the trial pitssunk by the company
did not go to the level of the intended railway, and they did
not sink them deeperbecause they knew there was a stratum
of peculiarly hard stone below; whereas they repre-
sented to the contractor that all was earth and sandstone.
That this concealment was a fraud, and the appellant was
entitled to relief on that head. That he was entitled to relief
also in respect of Brunel's (the chief engineer) conduct, which
the appellant represented as fraudulent and oppressive ; for
that he, Brunel, being himself a eoeoealed owner of shares
in the ailway was all his acts interested to get all the
work he could. irom the contractor at as little out sa nossible,
and he therefore gave certificates of the works much under
their value, and in that respect the appellant claimed
relief ; and also that the accounts of the works may be taken
anew by the matter or other competent person. That the
delay or non-completion of the works, on all the contracts,
in the times limited by the contracts, being caused by the '
frequent alterations of plans of construction, deviations of
line, do., at the instance of the company and their engineers,
thp=lant ought to have relief against all forfeitures and
to which be was subjected on that account, and
=waly nand the oppressive seizure of the weeks, and
rty and
any by any de =tit them. That the company had •
sat netainecl lay of the appellant, ex-
empt what was caned themselves, and they were not,
thanore, entitled it equity, or even at law, to any penalty
wain the penal camas of the contracts ; the principles of
inn at equity bans to relieve against penalties, and not to
adage then and the practice of courts of law being to ton-
na
penal 11111111. RElly RS securities for damages actually
seetaien. That the deekmWen of the Vice-Chancellor, that
5. 1 II estensies " wee enhiltated for, comprised in, or put
et the watrest der No.. 1, B," was erroneous, and ought to
he reameed. That the aempany, by the notices given,
end the aseaweential Mama of the works constructed by
Ms apailmit.deirseedn end to the contracts, and therefore the
all right the entracte, and to penal-
11112= to r
theta And, in that case, the company ought to
Ini ink to pay the appellant the value of all his plant, &c.,
Niel IT rent and Bask enure of the works and plant
ene, maw the eineametenees, a fraud, and the appellant
was entitled e• Mist In respect of it. That, according to
tbs wee alleged end peeved the appellant was in equity en-
titled to have it aldelleg. that in the settlement of the ac-
anthi and mem landing between himself and the cm-
puny, the embed was M equity entitled to be allowed end
pall far all wash parte at the works performed by him on
the pardon ef the railway Nespelsed in the contracts " 1 B"
sad .2 8.," sad the lined " 1 B extension," as had been
done sal pahresed es wrought or dressed masonry, as
whir week, awarding to the rates re realm el prices wink,
by the sekedu se el rims asmemsd to the ~ruts respect-
ugly, WOMB aWheMed to, and slipeleesd to be paid for ashlar
work, and es nth pad, thamolas had hem Mt tooled ashlar
work, at and esesedieg to the mtee or stales of prices
which by the seem simpieles of pekoe respectively
were attributed le awl colleted to be paid for fur
keeled mhlar, er etheetrim, se to the whole of the
said dressed and bit Wahl messary or roller work, at such
rates or scales et Om se, bin* regard M the natures and
qualities of the weeks, end measure and valise prices, might
be deemed the hair who thenot ever and above the MIMI
which would have bees payable in rupeet el the same re-
spectively, in owe the seam had been dame la Gammon or
coursed nibble, as shown by the plan sod drawings in the
pleadings mentiond, or to some idler or other declaration
or declarations in regard thereto, aver and above the direr
tins in the dawn _ _

Mr. Stuart and Mr. Bothell were for the respondents,
the Weetarn Railway may, and certain individuals
of them, as rpoplatrentere=, on the security of
which lbe from the company.
The argniments km libsiese=mkants we to the effect,
That the es enema "1 B," " 2 B," and " 8 L,"
and the conagel est the minks of " I B extension," were
entered into by dm ..,,_ voluntarily and deliberately,
without frond, gebreyesseotollkm, or undue concealment on
the Dart of** ; it was opus to him, and was his
duty, to wand the ittlom of the trade line before he con-
trotted to realm ft. That the rethsedve rights sad liabilities
of the appalling eel of the , h rehreese to the
works, wan Ys Ssl esd deleemthel the several contracts,
and it was laths pews of either le depart from them. The
oompanywso rut mkt eathiethme by the acts of parlia-
ment. That, by the team of the one& contracts, the cer-
tificates, estimates, valuations, sad deelekma of Mr. Brunel,
or the principal engineer of the the time being,
in reference to the works, the dss execution, quan-
tity, nature and quality, value or s thereof, were final
and conclusive; se that there was se rower to take new
accounts, a, the bill prayed ; it woo karoseible to take such
accounts. That there hail bees no fraudulent or
other undue exercise of any of the powers vested br
several contracts in the company, or Mr. Brunel or any
other officer for the time being of the company. There was
no conceelment of Mr. Brunel being a ebareholder in the

line, and it was absurd to suppose he could by any such in-
terest, be induced to give false certificates. That if in fact
the non.completion of the works, according to the contracts,
had not been occasioned by the sets or default of the com-
pany, as they certainly bad not, proper compensation could
not be ascertained, and made to them in this cause, for
the monies expended by them in finishing the works after
the appellant failed, and for the logs tiny had snstalaed by
the delay in the opening of their railway, consequent upon
the failure of the appellant to perform his contracts. The
sot of parliament made it Imperative on them to complete and
open the line within a certain time. That such remedy, if
any, as the appellant could have in respect of any of the
mitten mentioned in his bill, was at law and not in equity.
The Loed Chancellor, at the termination of Sir F. Kelly's
reply at half-past 4 o'clock, left the home without saying
anything about the judgment, but from the length of the
cense, and an observation which fell frem his lordship on a
former day, we believe no judgment will be given this session.
EQUITY COURTS.
Bercwe the Slee-Chanceller of England.
PARKIN O. BLAOROVE.—COXPRESATION POR SLAVES—
WHZTNER RIAL OR PERSONAL EaTATI.—A question
was raised in this case whether a sum of money paid by the
government as compensation In respect of certain slaves
under the act for the abolition of slavery, 3 & 4 Will. IV.,
cap. 73, was to be considered as real or personal property.
The slaves had belonged to two estates called Orange-bay and
in Jamaica, of which a person named John W.
Blegrove had died seized, previous to the passing of the act ;
and the sum of 7,832/. 17s. had been awarded by the com-
missioners as compensation for the slaves upon the raid
estates—The Vice-Chancellor, after commenting upon seve-
ral of the clauses in the act of parliament, said it was his
opinion that the money paid as compensation for the slaves
was impressed with the character of personal estate.
LOPEZ V. SEIRL.—IRJENCTION.—PARTNERSRIP.—Mr.
W. H. Terrell moved for an injunction on behalf of the
plaintiff, who had carried on bunting as a tobacco and cigar
merchant with the defendant, to restrain the defendant,
Bernardo Shiel, from drawing or endorsing any bills of ex-
change in the name of the firm, and from interfering in any
manner in the partnership. By the affidavit of the plaintiff.
it appeared that several bills of exchange had been drawn
upon the firm by the defendant without the plaintiff's con-
sent, of which the plaintiff had been informed by letters
from the holden of the bills, who had threatened to take
proceedings against him, unless the money secured thereby
should be paid.—His Honour granted the injunction.—An
application was then made that service of the notice of in-
junction might be made at a place where the defeadant had
his letters addressed, instead of upon the defendant person-
ally, in consequence of its having been found impossible,
after a number of inquiries, to discover the place of abode
of the defendant.—The Vice-Chancellor acceded to this
request.

Before Vice-Chancellor Wirram.
MAJOR V. WARD.—SPECIFIC PERPORMANCB.—This was
a suit for specific performance of a contract for sale, entered
into by a mortgagee, under a power contained in the mort-
gage deed. The cause now came on upon exceptions to the
master's report, finding in favour of the plaintiff's title. It
appeared that by the mortgage deed in question, the mort-
gagee was empowered to sell the mortgaged premises after
three months' notice, to ke served upon the mortagor, or at
his last known place of residence. The plaintiff,-the mort-
gape, before entering into the contract for sale, attempted
to serve notice of his intention so to do upon the mortgagor ;
but failing to find him, effected service of such notice by
posting it upon the door of an unoccupied house,
which had been the last known place of residence
of the mortgagor. The plaintiff then entered into the contract
for sale before the expiration of three months from the ser-
vice of the notice. Mr. Lee and Mr. Heathfield for the pur-
chaser, objected that the mode which had been adopted of
serving the notice, was not authorised by the terms of the
power in the mortgage deed ; and secondly, that if the ser-
vice were roroper, the contract for sale had been entered into
too soon after such servioe.—Hie Honour overruled both ob-
jection' ; but referred the case back to the master upon
others of the exceptions, which were in all 17 in number.

Before Vloe-Chanoellor Knight Bruce.
CONDIMT D. SOANB.—Btu Jouo BOAKIeg TOMB.—This
was a petition for the payment of 401., to be applied in the
repairs of the late Sir John Soane's tomb. It appeared that
by his will, dated the 11th of May, 1833, Sir John Some de-
sired that his funeral might be plain, without ostentation or
parade, and that his body might be deposited in the burial
ground at St. Pancras, attached to St. Giles's pariah ; and he
directed that his vault and the superstructure, iron railing,
planting, and all other things appertaining thereto, should to
kept in thorough repair. The superstructure, &e. being now
out of repair, this petition was presented, the estimated
charge for the repairs being 401. The petition alao asked
that as annual ram of 10/. should be devoted to the purpose
of keeping up the tomb; but this part of the petition was
not premed.—Mr. Willoock appeared for the plaint:ff, and '
Mr. Messiter for the defendants.—The Vice-Chancellor made
the order as to the 401.

COURT OF BANKRUPTCY.
Before Kr. Oomaikelamer Foeblikaque.
IN Re LIMAN AND ANDREWS.--BTATUTABLI ALLOW-
ANce.—In this case, which was reported in our journal of
Thursday hat, it may be recollected that the question raised
was, u to whether the bankrupt Andrews, havimg taken no
capital int* the concern, was entitled to a statutable allow-
ance, the joint estate in which he was a partner having paid
I above ten shillings in the pound to the creditors. Ihe
Learned Commiessoner now said that he had looked into the
case of En parte Lomas, " 4 Dee. and Chitty," and was of
opinion that the bankrupt was entitled to the allowance
prayed for.
IN THE CASA OP CRANIIIIS AND CRAYBERS, who were
the lessees of the Italian Opera House, a private sitting
took place, but reporters were excluded.

MIDDLESEX SESSIONS.
Before Yr. **sat Adams.
Coirturr or COURT.—The grand jury found • true bill
against four persons for keeping a house of ill-fame, in the
pariah of St. George's, Hanover-square. The prosecutor
was a person deuribed as John Pheasant, of Bow-common,
labourer.—On the learned serjeand inqr,ring if anybody
appeared
appeared on the part of the prosecution., a pence a
Humphreys,profeasedly clerk to Mr. Damien, a solicitor, in
Lincoln's-mn-fields, answered, and avowed himself the con-
ductor of the prosecution.—The learned serjeant said it was
no uncommon prnetice for cases like the present to be got up
by persona who had no other object than that of
extortion, and who frequently succeeded in obtain-
ing sums of money to quash the indictment, or to
decline the prosecution. The present indictment was a sus-
picions one, and the court would not feel disposed to grant
' any process until Humphreys had sworn on affidavit that he
was a clerk to Mr. Dallimere. Upon this Humphreys pro-
ceeded to draw up • statement to which he said he would
depose on oath, but which, in fact, was a letter to Mr. Dal-
limere, requesting that gentleman to come to the court to
corroborate the stateue-it that Humphreys was his clerk.—
The learned terjeant '..sed to let this document be sent to
Mr. Dallimere, and th Humphreys with imprison-
ment if he did not satisf eerily explain his conduct. A mes-
senger was sent to Mr. Dallimere, and that gentleman in-
formed the court that he had no connexion whatever with
Humphreys.—Humphreys was then ordered into custody by
the court for contempt, he having practised as en attorney
without any authority so to do. Subsequently the court,
after cautioning him how he acted for the future, ordered
hint to be dkultarged.