tificate, which has not been produced. The second breach is, that the surveyor has wrongfully and improperly withheld his certificate. No fraud, however, or collusion, is charged. It is not even alleged that the conduct of the surveyor was fraudulent: the allegation that he wrongfully and improperly neglected and refused to grant his certificate, would be satisfied by showing that he had been guilty of a mere error in judgment. Scott v. The Corporation of Liverpool, 1 Giffard 216, is precisely in point. That was a bill for an account of certain works constructed by Scott for *the Corporation of Liverpool,[*281 the contract providing, that, "if the contractors should fail in performing their contract, or, in the opinion of the engineer, not make due progress, it should be lawful for the corporation to seize the plant, and, in case any dispute should arise, the decision of the engineers should be final at law and in equity." The case was heard before Vice-Chancellor Stuart, assisted by Erle, J., and the bill was dismissed with costs, no case of fraud, misconduct, incapacity, or refusal to act being established against the engineer. In delivering his opinion there, Erle, J., says: "By the contract it appears to me that the engineer is interposed between the corporation and the contractors, and made the absolute judge of the performance of the works, and that there is no right in the contractors to demand payment, and no liability on the Company to pay, throughout the contract, unless the condition of obtaining a valuation by the engineer, and his certificate, has been fulfilled." "The law can only enforce rights under a contract according to that contract. It is not necessary to cite authorities on such a subject. I refer only to some of those cited in the argument. In Grafton v. The Eastern Counties Railway Company, 8 Exch. 699, the contract was, to deliver to the satisfaction of the agent of the defendants. It was held that the promise was on condition that the agent was satisfied, and that no action lay for the price of coke, unless the condition was fulfilled. So, in Milner v. Field, 5 Exch. 829,† the same point prevailed. In Ranger v. The Great Western Railway Company, 5 House of Lords Cases 72, the stipulation that the engineer should be the absolute judge during the progress of the works of the mode in which the contractor was discharging his duties, was recognised as both valid and reasonable, though the engi neer was a shareholder in the Company: and in *pp. 106, 107, of the report, the notion that accounts of the work done under [*282 a similar contract to this might be taken by the Master in Chancery, instead of the engineer, on the ground that the contract has been abandoned, was repudiated as erroneous. The stipulation is of great importance, for, if the contractors can open this contract on account of alterations and additions with mutual disputes, and can insist that an account should now be taken before a stranger of the entire works, which can ill be examined after complete, they may inflict litigation, complicated, expensive, and doubtful in the extreme, an evil which the stipulation is framed to avert. The question remains, whether the conduct of the parties affords any evidence of a right of action, either on the ground of waiving the conditions, or departing from the original contract, and substituting another, either expressed or implied, or on the ground of a wrong. My answer is in the negative. I am not aware that the defendants are shown to have committed any wrong, H or any breach of their contract, or any departure from it." "I cannot *283] tions." Batterbury v. Vyse, 2 Hurlst. *& Colt. 42, is in *284] reality an authority for the plaintiff, though the declaration alleged that the surveyor, in neglecting to certify, acted in collusion with the defendant and by his procurement. The point marked for argument on the part of the plaintiff there was, "that the defendant who employs the architect does contract with the plaintiff that he will do his duty and act fairly." James was not called upon to reply. ERLE, C. J.-I am of opinion that the judgment in this case ought to be for the defendants. The contract which they entered into was, to pay to the contractors, the plaintiffs, certain sums on production by them to the defendants, or one of them, of the certificate of William Lambert or other the surveyor for the time of the defendants. Many (a) The points marked for argument on the part of the plaintiffs were as follows:-"1. That the surveyor is the agent of the defendants; and they are bound to employ him to certify according to the said agreement: "2. That the surveyor is responsible to the defendants for improperly certifying or omitting to certify; and they are responsible to the plaintiffs: "3. That the wrongful refusal of the defendants' agent to certify, is a dispensation of the condition precedent, and equivalent to the defendants' preventing the certificate being granted." contracts are so made. Every man is the master of the contract he may choose to make: and it is of the highest importance that every contract should be construed according to the intention of the contracting parties. And it is important in a case of this description that the person for whom the work has been done, should not be called upon to pay for it until some competent person shall have certified that the work has been properly done according to the contract and specification. Here, the contract is, that the money shall become payable on production by the plaintiffs to the defendants of the certificate of their (the defendants') surveyor, that the contractors have duly and efficiently performed and completed the work to his satisfaction. No such certificate has been produced. But it is said that the plaintiffs have done all things necessary to entitle them to have the certificate of the surveyor that the works had been duly performed and completed to his satisfaction, and that the said surveyor had [*285 wrongfully and improperly" neglected and refused so to do. That in my opinion is not sufficient. If it had been alleged that the defendants wrongfully colluded with the surveyor to cause the certifi cate to be withheld, they could not have sheltered themselves by their own wrongful act. But the word "wrongfully," as used here, does not intimate anything of that sort. If the plaintiff's had intended to rely on the withholding of the certificate as a wrongful act on the part of the defendants, they should have stated how it was wrongful. This is in effect an attempt on the part of the plaintiff to take from the defendants the protection of their surveyor, and to substitute for it the opinion of a jury. That is not the contract which the defendants have entered into. The allegations on the part of the plaintiffs are not in my judgment such as to entitle them to succeed. WILLIAMS, J.-I am of the same opinion. Notwithstanding the surveyor may have been wrong in withholding his certificate, the money is not due. WILLES, J.-I am of the same opinion. Consistently with the allegations in this declaration, the only wrong the surveyor has been guilty of may be an error in judgment; or he may have refused to exercise any judgment; in which case, the proper course would have been to call upon the defendants to appoint some other surveyor who will do his duty. KEATING, J., concurred. Judgment for the defendants. *FESSARD v. MUGNIER. Jan. 23. [*286 1. The plaintiff declared upon a bill drawn by him in Paris upon and accepted by the defendant. The defendant pleaded a deed of composition under the Bankruptcy Act, 1861, whereby, in consideration of 5s. in the pound to be paid to them by him on the 8th of May, 1863, they released him from their several claims, saving their rights upon securities held by them, The plea contained an averment "that the defendant had always been and still was ready and willing to pay to the plaintiff the said composition or sum of 58, in the pound on the amount of the said sum herein pleaded to, according to the provisions of the said deed of composition," and also an averment, "that, all conditions having been performed, and all things having happened necessary in that behalf, the plaintiff became and was and is bound by the said deed of composition, as if he had been a party thereto, and had duly executed the same." Replication, that the defendant made default in payment of the composition on the said 8th of May, 1863, and the said composition remained unpaid to the plaintiff for more than fourteen days after that day, and still remained unpaid, and never had been paid or tendered to the plaintiff. Rejoinder, that the plaintiff was not on and during the said 8th of May, and for the space of fourteen days next after that day, within the realm of England. Surrejoinder, that the plaintiff was a native of France, and had always resided and carried on his business there, that the contract declared on was made in France, that the plaintiff was not in England at the time of the making of the deed, and that he had not notice of the making thereof at the time of the making or on the said Sth of May, or within fourteen days after that day Held, on demurrer to the plea and surrejoinder respectively, that the absence of an averment of payment or tender of the composition at the time named in the deed, was not cured by the averment of readiness and willingness, notwithstanding the plaintiff's absence from England; and that the general averment of performance at the end of the plea did not help. 2. Absence of the creditor from England affords an excuse for the want of an averment of tender or payment by the debtor only where the former has gone abroad after the making of the contract. THE first count in the declaration stated that the plaintiff, on the 1st of August, 1862, by his foreign bill of exchange, made at Paris, in the empire of France, now overdue, directed to the defendant, required the defendant to pay to the plaintiff 277. 10s. three months after date; and the defendant accepted the said bill, but did not pay the same. There was also a count for money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendant, and for interest upon and for the forbearance at interest by the plaintiff to the defendant, at the defendant's request, of moneys owing from the defendant to the plaintiff, and for money found to be due from the defendant to the plaintiff on accounts stated between them. Claim, 351. Second plea,-that, after the accrual of the. plaintiff's claim in the declaration mentioned, and before *this action, the defendant *287] became and was adjudicated to be bankrupt within the meaning of the statute in force concerning bankrupts; and that, at the first meeting of creditors duly held after such adjudication, three-fourths in number and value of such creditors present and represented at such meeting duly resolved that a proposal of the defendant then and there made to pay a composition of 5s. in the pound on the 8th day of May, 1863, in discharge of his creditor's claims, should be accepted, and that the estate of the said defendant ought to be wound up under a deed of composition in the terms of the said proposal, and that an application should be made by the defendant to the Court to stay the proceedings in the said bankruptcy until the said 8th day of the said last-mentioned month of May at 11 o'clock in the forenoon precisely; that the registrar of the said Court of Bankruptcy did duly report such resolution to the said Court, and such Court did afterwards, on the 11th of April, in the year last aforesaid, after finding that the said resolution had been duly carried, and that its terms were reasonable and calculated to benefit the general body of the creditors under the said estate, confirm the said resolution, and make order accordingly, and also that all further proceedings in the defendant's said bankruptcy should be and the same were thereby stayed and suspended for one month from the said last-mentioned day; that he the defendant, afterwards duly produced to the said Court for its consideration a deed of composition signed by and on behalf of three-fourths in number and value of all his said creditors, and which said deed, with a schedule thereto, was in the words and figures following, that is to say," This indenture, made the 2d day of April, 1863, Between James Julius Mugnier, of 10, Westbourne Grove, Bayswater, in the county of Middlesex, watch and clock-maker, a bankrupt, of the *one part, and the several persons whose names and seals are hereunto subscribed and set, and all other persons who at the [288 date hereof are respectively creditors of the said James Julius Mugnier, a bankrupt, of the other part: Whereas the said James Julius Mugnier was on the 19th of March last duly adjudged a bankrupt: and whereas the estate of the said James Julius Mugnier is not sufficient to pay the debts and liabilities in full: and whereas the said James Julius Mugnier has proposed to pay his creditors a composition of 5s. in the pound on the amount of their respective debts, to be paid on the 8th day of May next, and three-fourths in number and value of the creditors of the said James Julius Mugnier have agreed to accept the said proposal and to execute the release hereinafter contained, and have agreed to sign a resolution to be passed at a meeting of creditors of the said James Julius Mugnier that the estate of the said James Julius Mugnier ought to be wound up under a deed of composition, and to consent to an application to the Court of Bankruptcy to stay all further proceedings under the said adjudication: Now this indenture witnesseth, that, in consideration of the release hereinafter contained, he the said James Julius Mugnier doth hereby, for himself, his heirs, executors, and administrators, covenant with the parties hereto of the second part, and each and every of them, their and each and every of their heirs, executors, and administrators, that he the said James Julius Mugnier will on or before the 8th day of May next pay unto each and every of them the said parties hereto of the second part a composition of 5s. in the pound on the amount and in full discharge of their respective debts and claims: And this indenture also witnesseth, that in consideration of the said covenant, they the said several creditors parties hereto of the second part, do, and each and every of them doth by these [*289 presents, acquit, release, and for ever discharge the said James Julius Mugnier, his executors and administrators, and his estate and effects, of and from all actions, suits, claims, and demands whatsoever, which the said parties hereto of the second part, or either of them, now have against the said James Julius Mugnier: Provided always, and it is hereby agreed and declared, that these presents shall not extend to invalidate, prejudice, or in any manner affect any mortgages, charges, or other securities or liens which any of the said parties hereto of the second part may have upon any of the real or personal estate of the said James Julius Mugnier, or any bonds, bills, notes, or other securities given or payable by any other person by way of security for any debt due and owing by the said James Julius Mugnier to either of the said parties hereto of the second part; but that all such several mortgages, charges, securities, liens, and also all such bonds, bills, notes, and other securities from third parties, shall be and continue available in the hands of the several creditors parties hereto holding the same, in the same manner to all intents and purposes as if these presents had not been made: Provided always, that, if the said James |