MATTERS OF ACCOUNT. WORKS EXECUTED UNDER CONTRACTS. JURISDICTION OF COURT OF EQUITY.

A bill was filed by a contractor against a railway company, stating that the plaintiff had, under certain contracts, executed works of considerable magnitude for the defendants, which they had taken possession of; and praying for a settlement of the amounts between them. The cause was brought to a hearing. No action at law had been commenced in respect of the contracts. An objection was taken at the hearing by the defendants, that the matters in dispute ought to have been made the subject of an action at law, and that a court of equity had not jurisdiction as to them.-Held, that a court of equity had concurrent jurisdiction with a court of law, and that, in that stage of the proceedings, such jurisdiction ought to be exercised. [Macintosh vs. The Great Western Railway Company. Court of Chancery, (Eng.) Stuart V. C., April 25, 26, 27, 28, 30; May 1, 2, 3, 4, 5, 22, 23, 24, 30, 1855.]

THE circumstances of this case, and the question raised decided at the hearing, sufficiently appear in the judgment.

STUART, V. C.-The bill states several contracts under which the plaintiff has executed vast works for the defendants, the Great Western Railway Company. Under these contracts many payments have been made to him on certificates during the progress of the works. The whole of the works having been completed, and possession taken of them by the defendants, for whom they were executed, this bill has been filed to compel a settlement of the accounts and to recover the very large balance which the plaintiff alleges to be due to him. He complains of the vexatious conduct on the part of the company and their agents, and of injustice done to him as to exacting penalties; as to under-payments on certificates; as to the quality and value of the work executed by him, especially in masonry, and as to the quantity of the work; as to the refusal of payment for land purchased on behalf of the company; and as to not being paid for extra work, as promised on behalf of the company. There is also a claim of interest on the amount due to the plaintiff, on the ground that payment has been improperly withheld. The various accounts proved on behalf of the plaintiff contain detailed particulars of the work executed, and of the amount of the balance claimed by him, as due to him under the various contracts. Evidence on the part of the plaintiff, to an enormous extent, as to the details of those items, and in support of the elaborate and lengthened charges in the bill, has occasioned an expense of money to the litigants, a waste of labor to the counsel, and a consumption of time to the court almost unexampled, and, unfortunately, useless with reference to the only question that can be disposed of at the hearing of the cause. It is admitted that there has been no final settlement

of the accounts under the contracts. Mr. Brunel, himself a defendant and the principal engineer and agent of the company, says, in his affidavit, with reference to the accounts which contain the particulars of the plaintiff's demand, that they contain items incorrect, extravagant and improper, but he adds, that whether anything remains due to the plaintiff depends on a minute examination of the accounts. This admission reduces the question to one of jurisdiction. If the case is one in which this court can assume jurisdiction, the plaintiff's right to have the accounts examined and settled is beyond question. The defendants contend, that, not this court, but a court of law, is the proper tribunal for this examination. If the plaintiff had proceeded in a court of law, instead of filing his bill in this court, it is not disputed that the verdict of a jury would not have settled the question, for the court of law would have referred the whole matter of examination of the accounts and ascertaining the balance to be decided by an arbitrator.

view.

If a court of law would thus certainly delegate its jurisdiction, and if this court has, by its practice and course of proceeding, the means of acting by its own officer, who at every step would be under its own direction and control in the examination and settlement of the accounts, it could not, without some strong reason, be justified in repudiating the jurisdiction. It has been argued, that it is settled by authority that, unless in a case of fraud distinctly proved, or some other extraordinary circumstance, this court will not entertain jurisdiction in such a case. But a fair examination of the authorities does not justify that In one of the most recent cases, The Northeastern Railway Company, vs. Martin,* lord COTTENHAM distinctly states, that the jurisdiction of this court in such cases is discretionary, and that the practical difficulty experienced in proceeding at law forms an important consideration in the exercise of the discretion of this court. But he says, that the jurisdiction is concurrent with that of courts of law. Where an action had been actually commenced, and had been proceeding for a year, and the jurisdiction of this court was not resorted to until the action was ready for trial, lord GOTTENHAM, recognising the concurrent jurisdiction, held that it would be unreasonable to transfer the jurisdiction after so great a delay. The present case is the converse, for here the court has assumed the jurisdiction, and, after nearly eight years of litigation in this court, the defendants propose that the court should now, at the hearing of the cause, renounce the jurisdiction, and leave the plaintiff to begin

* 2 Phill. 762; S. C. nom. ས J. Rep., (N. S.) Chanc., 103.

The Southern Railway Company vs. Martin, 18 Law

an action at law in order to obtain an adjustment of these unsettled accounts. Upon the question of convenience there seems to be no doubt. In the house of lords, in the case of Nixon vs. The Taff Vale Railway Company,* both lord CAMPBEL and lord BROUGHAM, judges of great experience in courts of law, took pains to show the great difficulty of dealing with such cases at law, and the propriety of courts of equity assuming a jurisdiction upon them. The advantage of the common law jurisdiction in such cases is the singleness and finality of a verdict for a gross sum, which prevents that course of litigation which makes the investigation and settlement of the amount of each particular item a separate law suit. But there are the means now, under the improved course of procedure in this court, of securing a fair investigation of the particulars of demand and items of the accounts, so as to ascertain the true result of the whole, and the greater convenience of the equitable jurisdiction adverted to by lord COTTENHAM is now very greatly improved. If any doubt could be entertained as to the equitable jurisdiction to settle the accounts in such contracts, it must be removed by the decision of the house of lords, in a remarkable case. The duke of Marlborough was sued by bill in equity, by the contractors who built the house of Blenheim, for the arrears due for work and materials. The bill was filed in the equity court of exchequer, and the decree, after declaring that the duke was bound by the acts and contracts of lord Godolphin and Sir John Vanburgh, with the artificers and workmen, decreed that the duke should account with and satisfy the plaintiffs for what remained due for work done and materials furnished for the building, pursuant to the contract, and directed a reference to the remembrancer of the court to ascertain what was due. An appeal by the duke of Marlborough to the house of lords was dismissed in the year 1721, during the chancellorship of lord MACCLESFIELD. The case is reported in the first volume of Brown's Parliamentarg Cases, p. 175. Mr. Talbot, afterwards lord chancellor, was counsel for the appellant, and seems not to have questioned the equitable jurisdiction which was thus sanctioned by the house of lords. The plaintiff is, therefore, entitled to a decree for an inquiry, in order that the chief clerk may ascertain and certify whether anything and what remains due to the plaintiff in respect of the works executed and materials supplied, or otherwise, under the several contracts in the pleadings mentioned, having regard to the terms of the contracts, and to the circumstances under which the plaintiff carried on the works.

* 1 H. L. Cas., 111.

† The Duke of Marlborough vs. Strong, 1 Bro. P. C. 175.

Under the present course of practice, where there are the means in the progress of such accounts and inquiries to extend and modify their scope, and to give any supplementary directions by orders to be made in chambers, it is unnecessary to encumber the decree with any special directions as to penalties, or as to the various other details mentioned in the prayer of the bill.-English Law Journal Reporter.

PRINCIPAL AND AGENT. INJURY TO THIRD PERSONS.

If one employs another to do an act which may be done in a lawful manner; and the latter, in doing it, unnecessarily commits a public nuisance, whereby injury results to a third person, the employer is not responsible.

[Peachy vs. Rowland and Evans; 76 English Com. Law Reports, 181.]

Ir appeared that the defendants had built some houses, and that they contracted with two persons, named Scott and Redkin, to construct a drain in connection with the houses in the road ; that Scott and Redkin employed one Ansell to excavate and fill in as the brick work was done; that Ansell negligently performed the work by placing the earth over the drain so much above the level of the road, and leaving it unguarded, that the plaintiff, who was driving along the road, in the night-time, a horse and carriage, in company with his wife, ran against the earth, upsetting the carriage, whereby the horse was lamed, carriage broken, and also broke one of the plaintiff's toes.

On the trial, the defendant Evans, who was called as a witness, admitted that he was upon the spot four or five days before the accident occurred, and saw the improper manner in which Ansell was doing the work, but said that neither he nor his partner had any control over him.

The lord chief justice, before whom the case was tried, upon the authority of Knight vs. Fox, 5 Exch., 721, and Overton vs. Freeman, 11 C. B., 867, (E. C. L. R., vol. 73,) directed the jury to find for the defendants.

MAULE, J.-I am of the opinion that there ought to be no rule in this case, and that it would be extremely inconvenient if the case could be successfully distinguished from Overton vs. Freeman, which proceeded mainly upon the decision of the court of exchequer in Knight vs. Fox. The true result of the evidence here was, that the defendants had nothing whatever to do with the wrongful act complained of. They employed somebody to do something, which might be done either in a proper or

improper manner; and he did it in a negligent and improper manner, and injury resulted to the plaintiff. That is the substance of the evidence. The question is, whether the evidence fairly justified a verdict for the defendants. We have no right to look with extreme scrupulosity in cases of this sort, to see if there is not some grain of evidence the other way. If the whole evidence, taken together, is not such as to warrant a jury in finding for the plaintiff, practically speaking there is no evidence. I am of opinion, that if the jury had, upon this evidence, found that the defendants did the wrong complained of, their verdict would have been set aside as not, being warranted by the evidence. There was, in truth, no evidence for the practical purpose in hand. Knight vs. Fox, was decided subsequently to the case of Randleson vs. Murray, which was there cited, and which differs in many respects from this case. Randleson vs. Murray was not the case of a public wrong; but some one caused a board to fall upon the plaintiff; it did not appear that the place where the accident happened was a public way; and lord DENMAN said there was evidence to go to the jury, whether the persons who caused the mischief were the servants of defendant, employed by him to do the work in the particular way they did. No doubt, a man may maintain an action for an injury negligently occasioned to him in a place where he lawfully was at the time, and in some instances, and under some circumstances as in the much-contested case of the dog Spears and the spring gun*-in a place where he was trespassing. There is no pretence here for saying that the defendants employed Russell to do the work in question in the particular manner in which he did it. There is no identity of facts and no analogy between the case of Randleson vs. Murray and the present. The rule is very well stated by ROLFE, B., in Reedie vs. The London and Northwestern Railroad Company, 4 Exch., 244. There, a company empowered by act of parliament to construct a railway, contracted under seal with a certain person to make a portion of the line, and by the contract reserved to themselves the power of dismissing any of the contractor's workmen for incompetence; the workmen, in constructing a bridge over a highway, negligently caused the death of a person passing beneath, along the highway, by allowing a stone to fall upon him; and it was held, in an action against the company by the administratrix of the deceased, that they were not liable; and that in such case, the terms of the contract in question did not make any difference. And ROLFE, B., in giving judgment, says:

* Ilott vs. Wilks, 3 B. & Ald., 304, (E. C. L. R., vol. 5,) and Bird vs. Holbrook, 4 Bing., 628, (E. C. L. R., vols. 13, 15;) 1 M. & P., 607. And see Barnes vs. Ward, 9 C. B., 392, (E. C. L. R. vol. 67.)