Randel v. President of Chesapeake & Delaware Canal

Chief Justice Clayton delivered the following opinion of the court. Clayton, Ch. J. To put the true construction on the contract between John Handel and the Chesapeake and Delaware Canal Company, it will be necessary to look through the whole instrument, to see its general nature and design, in order to discover what was the real *270 meaning and intention of the parties; and when we have gathered from it that intention, it must be the rule of our decision. No settled form of words is necessary to create a covenant. Any words in a sealed instrument by which a party manifests an intention to become bound to another to do or not to do an act, either by himself or a third person, if the act be possible, and not immoral or unlawful, will make a covenant, and the law will hold him to his undertaking, however inartificial the words may be which he has used, and covenant will lie. (Inspection clause.) The plaintiff on his part covenants to construct and make a certain portion of the Chesapeake and Delaware Canal, and the defendants on their part covenant to pay him the stipulated prices. This is a work of great magnitude, requiring great labor, the employment of vast numbers of men, and great capital. It is an undertaking which no contractor in this country, with our limited fortunes, could hope to accomplish, relying on his own funds. Hence the necessity of the stipulation in the contract for speedy and frequent payments during the progress of the work, and hence the necessity of fixing upon some mode by which the amount of these stipulated payments should be ascertained. The very existence of the plff. as a contractor depended on the fulfilment of this part of the contract. Delay was ruin: it would necessarily in its consequences work a forfeiture of the contract. It may not be needless to remark that the plaintiff did not hold himself out to the defendants as a man capable of accomplishing the task which he had undertaken upon his own capital. The contract shows that they were aware of his inability in this respect, and they were aware of the necessity of furnishing him with money as the work proceeded. It is readily seen from this, how" important it was to the plaintiff that the defendants should agree with him to select a person who should examine and inspect the work during its progress, and estimate the number of cubic yards of excavation and embankment, and certify such estimate, upon which only could the plff. demand his semi-monthly payments for work done. It is true that the two clauses connected with this subject, and which seem naturally to belong to and form a part of each other are disjoined, having interposed between them the proviso in relation to the ten per cent, and the clause relating to the revision of prices. Connect these two clauses relating to the same matter of contract, and they read thus: “And the party of the second part (the defts.) agrees to pay the party of the first part, his executors, admrs. and assigns, for completely performing this contract, the sums which are stated as the cost thereof in the said estimate of the party of the first part, under the conditions and provisions expressed in the annexed schedule, payments to be made every fortnight according to the said schedule for the work which the engineer of the company shall certify to have been actually done by the party of the first part.” “And the said works, during their progress, shall be carefully examined and inspected; and to prevent misunderstanding and disputes it is hereby agreed that Benjamin Wright, Esquire, or some other competent engineer, to be selected by the party of the second part, shall be the inspector of the said works, and shall estimate the number of cubic yards of excavation, and also of embanlt;V *271 ment, and his estimate thereof, when certified to the party of the second part, shall be final and conclusive between the parties.” It was said in the argument by the counsel for the defendants, that this latter clause was introduced into the contract for the peculiar benefit of the canal company; but we think that no sufficient reason was assigned for arriving at this result. The canal company, being a corporation, cannot act of itself, but must act through its agents. The plaintiff having undertaken to execute a work for them upon their own lands, any agent whom they might appoint for that purpose, had a right to go upon the lands to inspect the work, estimate the number of cubic yards of excavation and embankment, and certify such estimate to his employer. No agreement of the parties was necessary to legalize such acts or to give any such power. It existed independently of any contract. So far at least no contract was necessary; so far it was not beneficial to the company. It is true the assent of Randel was necessary to make the certificate obligatory and conclusive upon him. But if this had been an express covenant on the part of the defendants, drawn in as strong language as could have been used to make it their covenant only, by which they engaged to appoint an inspector who should examine and inspect the works, should estimate the number of cubic yards of excavation and embankment; should certify that estimate, and that the certificate should be conclusive on the parties, by sealing the instrument he would have given his assent as strongly as if he had in express terms agreed to it. We have shown how infinitely important it was to the plaintiff that his work should be inspected in its progress, and its amount estimated and certified. We have already seen by the first clause of the contract, just quoted, that the company, in express terms, covenant to pay every fortnight for work which the engineer of the company shall certify to have been actually done. We do not lay much stress on the words “which the engineer of the company shall certify;” but we do attach much importance to the positive and sole covenant of the company that they will pay every fortnight for work which their engineer shall certify to be done. If there was nothing else in this contract, an ordinary man in forming his opinion of this clause, and not choosing to exercise his subtlety and ingenuity, would not hesitate to say that as the company had engaged to pay every fortnight for work actually done, and as the delay of payment would not be honest, would be contrary to good faith, and might be ruinous in its consequences to the other party, they at the same time meant to engage that their own engineer should perform this service. For we deny that the engineer, or any other servant of the company, in the outset, and before he had taken upon himself this especial duty of inspecting, estimating and certifying, would be liable to the plff. for not performing this duty. At the same time we do not wish to be understood as denying the position, that where one gratuitously undertakes a trust, he is responsible for the faithful execution of it. Besides, it does not appear on this record that Wright, or any other person, ever assumed this trust; of course no one could be responsible. Here is a wrong without a remedy, unless the company is responsible. But Benjamin Wright, or some other competent engineer, to he selected by the company, is to *272 be the inspector. One may be a very competent engineer, and yet not be very competent to respond in damages to a party aggrieved. The next clause commences with a positive and express engagement that the works shall, during their progress, be carefully examined and inspected. It has been admitted in the argument that the 'company were bound to select an inspector. Who makes the undertaking here that the works, during their progress, shall be carefully examined and inspected? Not Randel, for the other side has the selection, and they may not choose to select. So far, these covenants are all on the part of the company. Then come the words “and to prevent misunderstanding and disputes, it is hereby agreed that Benjamin Wright, or some other competent engineer to be selected by the party of the second part, shall be the inspector of the said works, and shall estimate the number of cubic yards of excavation and of embankment, and his estimate thereof, when certified to the party of the second part, shall be final and conclusive between the parties.” It was admitted in the argument at the bar, that by virtue of this clause the company did covenant to select an inspector. It is obvious, however, that the words “and to prevent all misunderstanding and disputes it is agreed,” which it is contended in relation to other matters in the clause, constitute a mutual and reciprocal agreement between the parties in relation to the same thing, affording no right of action to either-against the other, under any circumstances, equally apply to the selection of an inspector as to the other matters in the clause; and if it can be fairly collected from the words used, that it was the intention of the company to covenant for the selection of an inspector, it may be as fairly collected that they intended to bind themselves for his performance of his duty. Suppose the words to be the words of both parties, still they may be taken distributively, and used as the words of each as far as the sense of the parties and the true meaning of the contract shows that pach meant to bind himself to the other, either to abide its terms or to perform its stipulations. For what purpose did the company bind themselves to appoint an inspector? They had the power to do so independently of the contract; why covenant to do it? Does this not show that it was intended for the benefit of Randel? Why else should he insist upon it as a matter of contract? It was all-important to him. His existence as a contractor depended on the inspector’s examining the works, estimating the number of cubic yards and certifying the amount; for without his certificate he could not demand a cent for work done, and upon frequent and punctual payments depended the execution of his work, and his continuance as a contractor. If the words in this clause are to be considered as the words of both parties, we think we have a right to distribute them to each as the nature of the undertaking, and the intention of the parties show that each meant to bind himself to the other. The intention of the parties fairly collected from this contract seems to us to be this: the canal company, on their part, agreed with Randel that they would appoint an inspector, that he should examine the works, that he should, at least once a fortnight, estimate the number of cubic yards of work, and that he should certify the amount; and Randel, on his part, agreed that the certificates of this agent of the company should *273 be conclusive evidence against him. To the canal company this was a most favorable agreement. They had the selection of the person; and the only restriction upon them, in this respect, was that he should be a competent engineer. He was the creature of their will, removable at pleasure, and dependent upon them for his compensation. Their undertaking was not much, the risk was nothing; they only engaged that this agent of their own creation should perform the duty assigned him by this agreement. To Randel this was of essential importance. It is true when this agent once undertook the trust confided to him, when he assumed and attempted to perform the duty of inspecting, estimating and certifying, he was responsible to the plaintiff for the faithful and honest execution of the task. The certificate when given, however false, dishonest or malicious, the plaintiff had agreed should be conclusive evidence against him, and, perhaps, his only remedy for this wrong would be a suit against the inspector. Still if the inspector would not or did not perform this duty in some way, the company were liable to the plaintiff on their covenant. (Prevention clause.) The next clause to be considered is in the following words: “And it is further agreed as aforesaid, that in case the party of the first part shall, from the default of the party of the second part, in any particular be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof, shall be certified by the engineer of the party of the second part for the time being, and on his certificate, which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part such reasonable 'compensation and allowance as by the said certificate may be ascertained and fixed.” It was remarked upon with much earnestness by the counsel for the defendants, that the words, “and it is further agreed as aforesaid,” refer to the next immediately preceding clause in the contract which commences “and it is further agreed betiueen the parties;” and they contend that this clause should be construed in the same manner as if the words, “between the parties,” were added to the word “aforesaid.” Granted; and what is gained by it? Every covenant is an agreement between the parties to the instrument, for there can be no covenant or agreement except between two or more persons; one undertaking-that a thing shall or shall not be done, and the other assenting that it shall or shall not be done. Most of the remarks which we made on the clauses already considered are equally applicable to the one now under consideration. The present is more strongly mai’ked. It is so clearly a covenant that we cannot see how any one can doubt it. The persons who framed this clause, who assented to it, and who affixed to it the seal of the corporation, must have meant something by it, and if they were reasonable men they must have intended that that something was a reasonable thing. What is it as their counsel now contend? It is that if John Randel, from the default of the canal company, shall be prevented from pursuing the due and best mode of executing his contract, or from entering upon or flooding lands for that purpose, *274 the pecuniary damage sustained by him in consequence thereof (assuming damage to be sustained by their default) they will make reasonable compensation and allowance for, if their engineer for the time being will certify. This is the construction given to this contract by the defts. Is it a reasonable construction? Can such have been the intention of the parties? Can such intention be collected from the language used? If from the default of the company the plff. receives injury, the pecuniary damage sustained by him will be paid by them, if their engineer will certify! Now what is the real language of the parties? That in case the plff. shall from the default of the defts. in any particular be prevented from pursuing the due and best mode of executing the contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof shall be.certified by their engineer for the time being, and on his certificate, which shall be final and conclusive between the parties, the defts. shall make to the plff. such reasonable compensation and allowance as by the said certificate may be ascertained and fixed. No language can be stronger or more clearly show the intention of the parties than this. The company undertook for the engineer, that he should ascertain and fix, and certify, the pecuniary damage sustained by the plaintiff in consequence of their default, and when thus ascertained they would pay it. Any other construction renders the clause nugatory. It assumes that pecuniary damage has been sustained by their default, but it is not to be paid unless upon the certificate of their engineer, and hence the necessity of engaging that the engineer should ascertain and certify the damage. Without this the plff. would confessedly be wronged without a remedy. This ought not to be allowed unless the clear and manifest intention of the parties, to be collected from the language of the contract, forces this construction. The language used does not; on the contrary, it forbids it. Common sense forbids it. Any other construction leaves the plff. aggrieved without remedy; for we must repeat that he had no redress against the engineer for refusing to take upon himself the oifice of ascertaining and certifying the damages. Besides, what persons, when entering into an instrument of writing, ever think of looking to any other than the parties to it for redress in case of its violation. It is scarcely necessary to show the high importance of this provision to the plff.; one without which he could not get along with his undertaking; one without which he was remediless, however great and serious his loss; one without which his entire operations may have been suspended; with five hundred or a thousand laborers, and as many cart's and horses in his employment, all thrown idle on his hands; and yet he is to knock in vain at the doors of this corporation for compensation, unless he comes with the certificate of their engineer in his pocket, when no one was under any obligation to him to make this certificate. We forbear making any further remarks on this clause, because we did decide at the last term that this was the covenant of the defts. and that they were answerable to the plff. for a violation of it, if such violation has occurred; and we think that the counsel ought not again to have brought it-in question. (Ante 153.) The next clause is that in which it is agreed that the time within *275 which it shall be incumbent on the plff. fully to perform and complete the said contract shall not be taken to be less than four years from and after the first day of May next ensuing the date of the articles of agreement. This clause was fully considered at the last term, and the court, in giving judgment upon it, assigned their reasons at some length for the determination to which they had come. It will not be necessary, therefore, now to repeat those reasons. We will merely state the conclusion to which we came: that this was a covenant on the part of the canal company to allow the plff. four years from the first of May fully to complete his contract; and that consequently any positive act of disturbance (we do not mean acts of non-feazance, but some effective application of power) by which the plff. might unlawfully or unjustly be driven off by the defts. or obstructed in carrying on the work for any length of time, would be taking the time to be less than four years. They covenant to allow him four years from the first of May to complete the work; and he, on his part, impliedly covenants to finish the work in that time. If a suit were brought against him on this implied covenant for not finishing the work within the stipulated time, it would be a good defence to the action if he could show that he was prevented from doing it by the acts of the company; and if they unlawfully interrupt him, so that he cannot and does not complete the work within the time, they do not allow him the time agreed on, but take it to be less than four years. The other clause, which provides against the plff’s. being prevented from pursuing the best mode of executing his contract by the default of the company, looks to rather a different state of things. It is more general and comprehensive in its terms, and seems to have intended to provide in a more especial manner against the acts of third persons, although, the words “if he shall be prevented in any particular” might seem to comprehend most of the cases that might arise. The acts of third persons to which we allude are such as these: where persons through whose lands the canal might pass, and from whom no title or license had been obtained by the company, might obstruct and resist the plff. from entering upon their lands to execute the work; this would be such a prevention through the default of the company as would make them liable on this covenant. So any positive act of obstruction of their own would be a breach of it, for it would be by their default. It has been said that these are not covenants upon which an action would lie, but mere submissions to arbitration. We think otherwise; for it has scarcely a feature of a submission to arbitration. Without noticing the strangeness of the notion that one party should agree to submit all his rights to the determination of a person to be selected at pleasure by the adverse party, it is sufficient to say that at the time this contract was entered into, no differences or disputes had or could have arisen; the most that could be contended for by the defts. is, that it is a prospective agreement to submit future differences as they might arise. And we understand the law to be settled, that a prospective agreement to refer all matters in dispute which may hereafter arise cannot be shown as a defence to an action for the recovery of such disputed matter; for the superior courts will not suffer themselves to be ousted of their jurisdiction by the private agreement of the parties. 1 Wils. 129; 8 T. Rep. 139; 2 Ves. Jr. *276 129; Mitchel vs. Harris; 2 Bos. & Pul. 131; 2 Atk. 569; 2 Bro. ch. cases 336; 1 Saund. Pl. & Ev. 177, 179. This is not the case of a reference actually depending, or of a reference made and determined. Even in the case of a clear submission of existing disputes either party has a right to revoke the submission. It is true he is answerable on his agreement to submit; but after the revocation this would be no defence in an action to recover the disputed matter. His only liability is on his agreement to abide by the reference; if he violates that agreement it is not a defence.to an action for the thing disputed. We agree so far that if the engineer or inspector had given his certificate, that that certificate, by the agreement of the parties, was conclusive evidence on both; and that in regard to work done, or for other matters within his competency to certify it was the only species of proof substituted by the agreement of the parties for all other; but if he neglected or refused to certify, then the company became responsible to the plaintiff for all the damage which he had sustained by this neglect or refusal, or for want of this certificate. (The waiver.) To the plaintiff’s replication to the defendants’ third plea they have put in a general demurrer; and the question submitted to the court is whether the facts stated in this replication are sufficient in law. It is not necessary now to state these facts, because they are sufficiently understood. The plea to which this is an answer alledges that Benjamin Wright, on the 30th of July, 1825, and before and since was the engineer in chief for the time being of the defendants, and that on that day he was of opinion that the plaintiff did unreasonably neglect to prosecute his contract, and that afterwards, on the same day, he did in and by his certificate certify his said opinion to the defendants, and that on the 30th of September following the defendants did, thereupon, on the said certificate, determine the said contract to be abandoned by the plaintiff, of which said certificate and determination the plaintiff had notice' on the first of October, by means whereof the defendants were entirely exonerated from every obligation imposed on them by the said articles of agreement, except to pay for work already done. The replication in answer to this confesses these facts, but attempts to avoid them by the matters which it discloses, and concludes by alledging a waiver of the certificate and a ratification of the contract. The question then is, did the company waive the certificate and ratify and confirm the contract? It was insisted at the bar, that as the power to declare the abandonment on the certificate of the engineer was founded on or derived from a deed, it could only be dispensed with or waived by matter of as high a nature as that which gave or secured the power, that is to say, by an instrument under seal, or by some act of the defts. legally inconsistent with the power secured. With regard to the first proposition, we think it untenable on principle. It is true that when a duty accrues by the deed, and is ascertained at the time of the making of the writing, as by covenant or bond to pay a sum of money, in that case the duty, which is certain, takes its essence and operation originally and solely by the writing, and therefore it must be avoided by matter of as high a nature. But where no certain duty accrues by the deed, but a ivrong or subsequent default, together with the *277 deed, gives an action to recover damages for such wrong or default, such wrong or default may be discharged by paroi, and accord with satisfaction would be a good plea. As if a tenant covenants to repair a house, and an action is brought against him for not repairing, the covenant does not give the plff. at the time of making it any cause of action; but the wrong or default in not repairing the house, together with the deed, gives an action to recover damages for want of reparation. The action is not merely founded on the deed, but on the deed and the subsequent wrong, which wrong is the cause of action, and for which damages shall be recovered; and in every action where compensation is demanded by way of damages, such right of action may be discharged by paroi. So here the power claimed is not founded on or derived solely from the deed. It arises from matter subsequent to the deed, the neglect of the plff. to prosecute the work, and the consequent certificate of the engineer. The deed originally and of itself does not give the power to declare the abandonment; but the certificate, coupled with the deed, does. This certificate then may be waived, or dispensed with by paroi, and there is no unbending rule of law to forbid it. The first proposition having been shown to be incorrect, we think the second is equally fallacious and unwarranted by authority. According to the counsel’s idea of legal inconsistency, what act of the company would be legally inconsistent with the power to declare the abandonment after certificate, short of lying by and witnessing the entire completion of the work? That surely would be a waiver of the certificate, because the power dei’ived from it never after that could be exercised. Whether waiver be the most appropriate term that can be used for the occasion is a matter of but little importance, so that we understand the notion intended to be conveyed by it. It matters not whether the thing in controversy be said to be yielded, abandoned, resigned, foregone, waived, or lost; we are equally understood when using either of the terms. The books use the word waiver when speaking of subjects like the present. The principle runs through the law, and is applicable to a variety of cases in addition to those mentioned at the bar. It may not be necessary to mention them here, because it would lead to much prolixity. It is manifest that whenever a discretionary power is given, as in this case, from the nature of the thing itself, it may be waived, or not exercised at all, for otherwise it would not be a discretionary power, to be exercised or not, as the party might think best, but an obligation which he could not dispense with. This certificate, then, or the power to take advantage of it, might be waived. What acts will amount to a waiver? Whenever one person has an election to do or not to do, an act in which the rights and interests of another are concerned, he is bound to make his election so as to be least prejudicial to the rights and interests of that other; and if by his unreasonable delay the rights of that other become implicated and he receives injury, who ought, in justice, in good faith, and in law, to bear the burthen or sustain the loss—the party injured, or he who has caused the injury by his own negligence? Common sense and the law, which is founded on the highest good sense, say the defaulter; that he who is innocent and in no fault shall not be prejudiced by the negligence of the other; that whenever the right of election is *278 attempted to be so negligently exercised that a manifest and irreparable injury must follow, the law interposes and says you have waived your right to elect; you cahnot now exercise it without manifest injustice; you are therefore concluded, and shall not exercise it at all. What is the state of the case here? The facts upon which we are called on to give our opinion on this demurer are to be found in the replication to fee defts. third plea. On the 30th of July the engineer certified his opinion to be, that the plff. had unreasonably neglected to prosecute his contract; that on the 30th of September following the defts. declared the contract to be abandoned, and that on the first of October they gave notice to the plff. of this declaration of abandonment. The other facts stated in the replication, material to be here considered, are these; that during all the time between the 30th of July and the 1st of October the plff. was diligently prosecuting his contract, and did with great expense and labor prosecute the said contract, under the inspection, by and with the permission, and by and under the direction of the said company; and that during that period the defts. paid for such work divers sums of money; that the work thus performed was less profitable and more disadvantageous than the work remaining to be done; and that the work remaining to be done after the 1st of October was that portion of the whole work to be performed which was most profitable and advantageous to him. These facts are admitted to be true by the demurer. This is the naked conduct of the defts. not explained or excused by their pleading. With the certificate of the engineer in their possession from the 30th of July to the 30th of September, not a word of it is whispered to the plff. while he is laboring on the canal during these two months at reduced prices, prosecuting his contract at great expense, and, as he alledges in his replication, under the immediate inspection of the •company, they never inform him of the certificate till the first of October, when notice is given him that they have declared his contract to be abandoned. What evidence the defts. may have it in their power to produce is not for us to inquire on this demurer. We can only look to the record and gather the facts from it. It may be observed also, that by the agreement of the parties, ten per cent, was reserved for contingencies, no part of which was to be paid to the plaintiff till the entire completion of the work; and in case of the forfeiture of the contract he was never to get any part of it; so that upon all the work performed during those two months ten per cent, is gained by the defts. and is consequently lost by the plff.; or at least his claim to it is forfeited. We have said that the defts. might waive the benefit of this certificate. What acts of theirs will amount to a waiver? If they had kept the certificate in their possession till within a short time of the entire completion of the work, no one would say that they had not waived it: the injustice in that case would be too glaring not to strike every one. We are not to measure the extent of the injury, nor to enquire whether it be great or small. And what is the injustice on the other side? If the plff. still continued unreasonably to neglect his work, and so often as he did neglect the work, the engineer was at hand to certify the fact. But it may be that on the 30th July the plff. did unreasonably neglect to prosecute his contract; and yet on *279 the 30th of September might have been prosecuting it with vigour; so that the engineer would not then have given his certificate. The defendants after getting the certificate were entitled to a reasonable time to determine whether they would take advantage of it or not. Yet we think that a delay of two months, when that delay is not explained or excused, was not a reasonable time. We are therefore of opinion that the certificate and the consequent power of declaring the abandonment, have been waived.” Harrington, J., applied the principles of this opinion to the pleadings in the case, and gave judgment for the plaintiff overruling the demurrers to the first, second, third, fourth, fifth and sixth breaches of the second count; and the fourth, eighth and fourteenth breaches of the third count: And judgment for the demurrants, the defendants, on the first, second, third, fifth, sixth, ninth, tenth, eleventh, twelfth and thirteenth breaches of the third count. Monday, December 9th, 1833. The demurrers having been disposed of, the cause proceeded before a jury; who were empánneled and sworn to try the issues joined, and to assess the damages on the seventh count, on which judgment was given at the last term, and an order made in the nature of a writ of inquiry for a jury attending at this court, to inquire and return the damages, costs, &c. The jury were John Clark, James Roberts, Baymon Deakyne, Thomas Morrison, George B. Meteer, Israel Garretson, Thomas Robinson, Jacob Whiteman, John W. Evans, Arthur J. Whiteley, James C. Mansfield and George Foote. The issues in fact, which were numerous, may be ascertained from the following synopsis; referring to the pleadings as stated more at length, ante, &c. First count. On the lock contract. Plea, non est factum; issue. Second count. General plea to the count, non est factum; issue. First breach. On the inspection covenant. Plea No. 4, (same as 3.) The abandonment. Rep. Waiver. Issue. Second breach. On the covenant for estimating the work done. Plea 4. The abandonment. Rep. Waiver. Issue. Third Breach. On the prevention covenant. Plea 4. The abandonment. Rep. Waiver. Issue. Fourth and fifth breaches. On the same covenant; varied. Same plea, replication and issue. Sixth breach. On the time covenant. Same issue. Third Count. General plea to the count, non est factum. Issue. Fourth breach. On the prevention covenant. Plea 4. The abandonment. Rep. Waiver. Issue. Fifth breach. Non-payment of work certified. Plea 7. Payment. Rep. and Issue. Seventh breach. Non-payment"of work certified.. *280 Plea 13. The revision of prices and payment according to the revised schedule. Rep. That the revision was obtained by fraud and covin. Rejoinder and Issue. Eighth breach. On the prevention covenant. Plea 4. The abandonment. Rep. The waiver. Issue. Fourteenth breach. On the time covenant. Same issue. Fourth count. Single breach on the inspection clause. Plea 16. The appointment of an inspector. General traverse and issue. Plea 20. Ditto with averment that he did inspect, &c. General traverse and issue. Plea 21. The abandonment. General traverse and issue. “ 22. The abandonment. Rep. The fraud and covin. Rejoinder and issue. Fifth count. Single breach, that no estimate of the work was made, &c. Plea 17 like plea No. 16 to fourth count and same issue. “ 20, 21, 22. Same as to the last count and same issues. Sixth Count. On the inspection clause. Plea 18. Non est factum. Issue. “■ 19. Same as No. 16 to fourth count and same issue. “ 20, 21, 22, same ut ante. To prove the execution of the contract, plff. gave in evidence the deposition of John Fritz, one of the subscribing witnesses. He also offered in evidence the deposition of Paul Beck, jr., who was not a subsci’ibing witness, but at the time of its execution, a member and director of the canal company. The evidence was objected to. Mr. Frame. The testimony of Paul Beck is irregular, for he is examined to the execution of the contract which ought to be proved by the subscribing witnesses, and also to the effect or contents of the contract which must be proved by the contract itself. The execution of the commission is irregular. No commissioner named on our part. The interrogatories are leading and have been excepted to for that reason. Third interrogatory. Did or did not the company say so and so? It suggests the answer; inquires not for facts but conversations. Did you not understand the director by such language to mean so and so? The inquiry should be for the words and the jury are to construe them. The interrogatories not only leading and inquire for conclusions, but they go into matters not relative to the cause, the private feelings of Wright towards Randel. This is purely a civil suit; an action of covenant; it is not a case for vindictive or exemplary damages; nor is it a case with which the ill-feelings or malice of the parties, and especially of-Benjamin Wright, has any thing to do. Question. Whether witness ever heard Benjamin Wright or the directors say the prices were revised for & particular purpose? Now, what purpose is this for but to insinuate a fraudulent motive, either in the company or in Wright, and to aggravate the damages by showing malice. It can possibly have no reference to any issue but that on the seventh breach, third count, which is whether the certificate of revision was obtained from Wright by any fraud practiced on Mm by the company. Nov/ this inquiry does *281 not tend to prove that issue, but that Wright was connected with the company in defrauding Randel; a particeps fraudis. J. M. Clayton. The commission issued in this case on the 28th of May, 18— to Charles J. Ingersoll, Thomas Janvier and Thomas J. Wharton. The record shows that on the 24th of May the defendants named Thomas J. Wharton as their general commissioner in Philadelphia. Beck’s evidence proves that he was a member and director of the company. He can prove the seal and the execution of the contract from his knowledge as a member of the board, and his testimony is the admission of a party. 1 Stark. Ev. 123. The interrogatories are not leading further than is necessary to direct the mind of the witness to the subject of inquiry, and this is proper. Then as to the relevancy of the testimony. The inquiry on the seventh count is what damage we have sustained by reason of their having taken the time, &c.; any act exhibiting a settled purpose on the part of the company to drive Randel off is important in ascertaining the damage. The revision of prices was the first great step tending to this object; and the object itself is essential to be disclosed. The issues on the fourth, fifth and sixth counts. Plea twenty-one alledges that Wright was of the opinion that Randel neglected, &c-, and did certify that opinion. The replication flatly traverses the whole of the plea. The opinion is an essential part of it; and any thing that proves it was not bona fide his opinion proves the issue. On the replication of waiver the jury are, under the direction of the court, to toy the question of unreasonable neglect. Is it not material in the proof of this issue to show that the company and their agents embarrassed the contractor in every way in their power, with the view of making him abandon the work? The revision according to the contract was to be made, if at all, for the purpose of conforming the prices to the labor; now, if this testimony shows that it was not made for this purpose, but to ruin Randel and drive him off, is it not relevant? But on general principles I contend that all the acts and declarations of this company arid its agents, in reference to the subject matter of this suit, are evidence against them. Ingersoll. This is an action of covenant broken; we are to prove the breach. If in doing so a malicious motive is developed, we can’t help it; we are not to be prevented from proving a breach of contract because malice is mixed with it, nor from proving their conduct and [acts because they are fraudulent. The opinion of Wright in giving I the certificate of neglect is in issue; the bona fide opinion: malice disproves that opinion. As to the 7th count, the jury sets as an inIquest of damages merely; the court act merely as moderators, as the ¡sheriff in England in executing a writ of inquiry. I doubt, then, in ¡relation to that part of the case, whether the defts. have the right to ¡object to this testimony. I Bayard, in reply. These interrogatories shew an intention to lead the witness; to put in his mouth the very words he is desired to dejóse to. They further call for the understanding of the witness, his inclusions and inferences. As to the certificate, it is admitted that Wright acted as an umpire or arbitrator in giving it; and the courts jf law cannot investigate the conduct of an arbitrator in reference to *282 an award of matters in pais. The opinion of the engineer is of no importance, for it is not traversable; the certifying the opinion bound the parties, whether it was so or not. The certificate of neglect is the proof of the fact agreed upon by the parties, and neither it nor the opinion is enquirable into. We do not contend that an act constituting a breach cannot be proved because it is malicious, but only that declarations, or even acts not amounting to a breach, cannot be given in evidence for the purpose of inferring a malicious intention to break the covenant. On examining the interrogatories, the court were of opinion that many of them were leading, and suppressed the deposition on this ground, without deciding, at present, the other questions raised in arguing the objections. Written exceptions had been filed to these interrogatories, and the plff. had full notice of the objection. The plff. now offered the contract in evidence, as sufficiently proved by Fritz’s deposition. It was objected to, not on this ground," but for a variance from the contract declared on. Frame. The contract declared on purports to be a contract between two parties: John Randel of the first part, and the Chesapeake and Delaware Canal Company of the second part, entered into by both, executed by both, that is to say, under the hand and seal of R. and under the corporate seal of the company and hand of its president. The contract offered in evidence is not signed or sealed by Randel; it is an unexecuted, incomplete contract. The conclusion of the paper itself shows that it is incomplete. “In witness whereof the parties have,” &c.—showing that the contract was designed to be executed by both parties. J. M. Clayton. We have not professed to set out the original contract ; that is in the defts. possession, and we could not get hold of it. But we had a copy, and more than a copy, a counterpart, executed by the canal company, under its corporate seal and the hand of its president. And we have not even assumed to set this out by its tenor, but only in substance. We have declared on certain articles of agreement concluded and agreed upon by and between John Randel, Jr. of the first part and the Chesapeake and Delaware Canal Company of the second part, “the counterpart of which said articles of agreement, sealed with the corporate seal of the said the Chesapeake and Delaware Canal Company, and signed by the president thereof, the said John Randel, Jr. now brings into court, tlie date whereof is the same day and year aforesaid.” The court overruled the objection and admitted the contract in evidence; whereupon an exception was prayed and granted. Plff.’s counsel offered in evidence an answer in chancery of the canal company to the bill of Clement, Blackstock & Co. They produced the bill to lay a foundation for the admission of the answer Objected to. Bayard. This answer is in another case and between other par ties. It is not on oath, and does not fall within the rule of evidenci which applies only to a statement of a party on oath. The answe of a corporation is like a bill—the mere statement of counsel 2 Stark 29; Roscoe 25; 1 Mad,, ch. 212. *283 Clayton. This is the first time I have heard that an answer of a corporation was not a statement of the truth, but the suggestion of counsel. It avails them as the answer of an individual on oath; is sufiicient to dissolve an injunction when it denies the equity of the bill. The answer of a peer is not on oath, but on honor; yet it is evidence against him as if on oath. Its admissibility as evidence does not depend on its being sworn to, but as the admission of the party. A bill is evidence when the party is connected with it by proof. It is treated as the suggestion of counsel, unless the complainant’s privity is shown, and then it is evidence against him as his admission. So an answer is evidence as the admission of the party, whether sworn to or not. 4 Wash. Rep. 601; 2 Bay. R. 10; Angel & Ames 396; 1 Gilb. 4; Peake 53; 1 Stark 285, 8; 1 Phil. Ev. 283; Cowp. 591; 2 Com. Dig. 307; 1 Vernon 117. “A bill filed against a corporation to discover writings. The defts. answer under their common seal, and so, not being sworn, will answer nothing in their own prejudice. Ordered that the clerk of the company and such principal members as the plff. shall think fit answer on oath, and that a master settle the oath.” This explains the meaning of Mad. 213. Bayard. Notwithstanding the authority of Gilbert, it is now the established doctrine that the bill is the mere allegation of counsel, and not evidence. The answer of a corporation stands on the same ground. The members or officers cannot be supposed to have individual knowledge of all the matters to which their answer may necessarily extend; it does not therefore imply the certainty of an. individual answer. It is this knowledge of the party, confirmed his oath, which makes such an answer evidence. At all events, an express privity of the company ought to be shown; that is, that they examined and adopted the answer. Jones objects to the evidence on general principles; it is res inter alias acta and irrelevant to this cause. It is remarkable that an instance of the admission of such an answer cannot be shown. The case in Cowper depends on the relation of mother and child. The Court. The objection that it is res inter alias, &c. is not available; the authorities on that subject are conclusive, for that applies to all the cases. An answer is evidence, not because it is on oath, though this may give it greater weight, but as an admission of the party. The answer of a peer is evidence against him, though not on oath. The honor of a peer and the seal of a corporation are substitutes for the oath. Their answer thus filed gives them all the benefits of an answer on oath, and should subject them to its liabilities. It is true that where the answer is under seal it may not be sufficient evidence in case of a bill for a discovery, for there is no obligation on them to make the discovery, and therefore a clerk or individual member is allowed to be sworn. This appears to be the meaning of Haddock; if it goes further we cannot give that authority our sanction. Whether a bill is evidence is still a mooted question. Gilbert and Starlcie are for it, and Peake and Phillips are against it. The opinion of Phillips is founded on a case in 7 Term Reports, 3 which is little more than a dictum of Lord Kenyon. The answer was admitted and read. *284 The plff.’s counsel called on defts. to produce certain papers which they had been notified to produce. The defts. counsel offered the papers as evidence, but not merely for the inspection of the plff. The court said that if the plff. inspected the papers called for it would make them evidence; but not if he merely called for them without using or inspecting them. 1 Stark. Ev. 360; Roscoe 6. Certificates for work done prior to 30th July, 1825, produced and read: No. 1, 28th May, 1824, for $17,727 80 signed by B. Wright. 2, 23d June, “ 16,582 99 ditto. 3, 3d July “ 6,365 73 ditto. 4, 17th July, “ 3,496 59 signed by Henry Wright. 5, 31st July, “ 6,303 22 B. Wright. 6, 16th Aug. “ 9,924 51 ditto. 7, 28th Aug. “ 10,782 81 ditto. 8, 13th Sept. “ 8,383 655 ditto. 9, 9th Oct. “ 7,175 15 H. Wright. 10, 23d Oct. “ 6,397 285 ditto. 11, 6th Nov. “ 3,127 81 ditto. 12, 20th Nov. “ 2,636 57 ditto. 13, 4th Dec. “ 2,543 80 ditto. 14, 18th Dec. “ 3,123 32 B. Wright. 15, 1st Jan. 1825, 3,226 165 H. Wright. 16, 15th Jan. “ 3,773 33 ditto. 17, 29th Jan. “ 3,882 365 ditto. 18, 12th Feb. “ 2,948 515 ditto. Force stated equivalent to 450 men. 19, 26th Feb. “ 3,318 915 ditto. 415 men, 91 teams: equal to 688 men. 20, 12th Mar. “ 4,065 55 H. Wright. 90 teams 21, lost, 5,643 73 22, 8th April, “ 4,781 755 B. Wright. 23, 23d April, “ 6,837 88 H. Wright. ’ Force, 581 men, 141 teams, &c. 24, 7th May, “ 5,697 045 II. Wright. 416 men, 139 teams, equal to 851 men. 25, 21st May, “ 7,821 385 ' II. Wright. 437 men, 174 teams. 26, 4th June, “ 8,598 025 H. Wright. 159 teams, equal to 900 men. 27, 18th June, “ 5,852 00 H. Wright. 28, 2d July, “ 5,518 04 D. Livermore. 342 men, 92 teams. 29, 16th July,kC 4,549 605 H. Wright. 355 men, 117 teams, equals 600 men. 30, 30th July, “ 959 525 H. Wright. 31, 13th Aug. “ 7,818 22 D. Livermore. 385 men, 110 teams. 32, 27th Aug. “ 7,923 70 D. Livermore. 403 men, 109 teams. ■ 33, 19th Sept. « 2,259 02 B. Wright. *285 No. 34, 24th Sept. 1825, 5,295 68 H. Wright. 338 men, 71 teams, equal to 551 men. Whole amount of work certified, $214,661 20$, to Sept. 24th, 1825-, To 30th July, 1825, $183,764 58 7 ^..v. m.n no ^..v. m.n no To 15th December, 224,291 51 f Dlfference> $40>526 93 and 51. The final certificate for work done was called for, produced read. Final certificate, dated 15th December, 1825, $224,291 B. Wright. The plff. offered in evidence the lock contract declared on in the first count of the narr. The contract was executed by R. Wharton and R. M. Lewis, a committee on behalf of the company; but not under the seal of the company. He also offered proof of the execution by the committee, of their authority, and of its acceptance and adoption by the company. He called on defts. to produce the authority of the committee under the notice to produce papers. The authority being produced, appeared to be a resolution of the board, but not under seal. The whole evidence was objected to and rejected; the instrument offered not being under seal. Deposition of William S. Randel offered and objected to. As a foundation for the objection, defts. offered in evidence the depositions of Absolem Townsend, S. Dewit Bloodgood, Stephen Fondre and Wm. M. Cushman, taken upon a commission which was issued for the purpose of impeaching the deposition ofWm. S. Randel. Defts. depositions read by consent, saving all just exceptions. The commission on which Randel’s deposition was taken was issued to Absolem Townsend and S. Dewit Bloodgood of the state of New York, or either of them, commissioners for plff. and Ebenezer Baldwin, commissioner on the part of defts. The answers to all the original and most of the cross interrogatories were authenticated by the signature of all three commissioners; the residue, and most of the documents referred to were signed only by Townsend and Blood-good, some by Townsend, Bloodgood, and Isaac Hamilton, who had been substituted for Baldwin by agreement. The commissioners employed a clerk. It appeared from the defts. depositions that the commissioners commenced taking Randel’s deposition by propounding the interrogatories to him, and their clerk wrote down his answers. He was sick of a pulmonary consumption, and it soon became apparent that he could not bear the exertion of speaking so much. Baldwin, the defts.’ commissioner, said that if this mode was continued Randel would sink under it, and proposed to permit him to write down his answers at his leisure as his strength would permit. Townsend and Bloodgood insisted on going on as they had commenced whatever might be the consequences; but Baldwin app rehending they would be fatal to the deponent, refused to go on. Plff.’s commissioners then assented to the plan proposed by Baldwin. After the answers were written they were read over to Randel, who was too weak to read them aloud, and he corrected them. In the course of the examination Baldwin became sick, was seized with mania a potu, and his friends carried him off. Hamilton was substituted in his place. Bayard. The commission is personal to the commissioners, and *286 does not authorize them to employ a clerk to write down the answers; it is a power that cannot be delegated. Much depends on the manner of putting down the witnesses reply; and we can’t guard this, at best, defective mode of taking evidence too strictly. Second. The witness was permitted to give depositions prepared and written by himself. This is entirely irregular and inadmissible especially in such a case as this. The witness here is the plaintiff’s own brother; had been his sub-engineer; may have, been at the time in the habit of constant intercourse with him. It is no answer to us that the commissioner named by us proposed this plan; he is not our agent but the agent of the court. Any irregularity in him is as fatal to the execution of the commission as the irregularities of the other commissioners. He is like an arbitrator named by the party, but appointed by the court. The commissioner cannot receive a deposition prepared by the witness. Depositions will be suppressed if prepared by plaintiff’s attorney, and not taken down by the commissioner from the witness. The execution of this commission obviously took many days, and yet it does not appear that there was any adjournment. If the commissioners separate without an adjournment' the commission is lost. This commission is a joint one to Townsend and Bloodgood, or either of them, for plaintiff, and Baldwin for defendants. Such a commission must be executed by all the commissioners or it will be suppressed. This was never returned by Baldwin; and only in part executed by him. Peters’ C. C. Rep. 88; 3 Wash. C. C. Rep. 109; Beame’s orders in ch’y. 187; 1 Newland’s Ch. Pr. 275; Ambler, 252; 15 Vesey 380; Gilbert’s Forum 127, 9; Newlin Ch. Prac. 265; 3 Wash. Rep. 31; 1 do. 43, 144; 4 do. 187. Clayton. William S. Randel’s deposition has been returned near three years; opened, published, and a copy actually taken by the defendants. During the life of the witness no objection was made to the execution of this commission, and no exceptions have been filed since. Now if we are to be bound here by the rules of chancery practice, let us have all of them. In that court no objection can be taken to depositions unless exceptions are filed to apprise the other side. And there is good reason for this rule. If, even after publication in this case, exceptions had been filed objecting to the execution of this commission, we might have taken out another and procured this important testimony. But here they lie by with copies of our depositions in their possession; make no objection to them until the principal witness is dead and the trial comes on, when they spring upon us the depositions of Cushman, a discarded clerk of Randel’s, and others in order to destroy this testimony. Let us look a little at the execution of their own commission. It has been read reserving objections. The chief man employed in its execution is Henry D. Gilpin, the solicitor of the company, their agent and in their pay. This is fatal to their own commission and the foundation of their objections fails. 2 Mad. 413. I don’t deny that a joint commission must be executed jointly. How is the case here? A commission to A and B for plaintiff, and to C for defendants. The three commissioners go on together and nearly complete the commission, when C gets drunk and goes off, and the defendants agree *287 to substitute another person, who finishes the taking the deposition. If plaintiffs’s commissioners attend they may proceed ex parte if the defendants’ commissioners wont come. 1 Har. Chy. 324. The mode of talcing the deposition was at the suggestion of the defendant’s commissioner, and it was justified by the circumstances of the case. There can be no rule of evidence that will entirely prevent the taking of testimony, or require the violation of every principle of humanity, as would have been done by compelling the witness here to deliver his testimony orally. The rule is that where the witness prepares his answer it will be suppressed unless he die, or it becomes otherwise impossible to get his testimony. In such case the rule is dispensed with, and it would be equally dispensed with if this was the only mode of procuring the testimony originally. In 15 Ves. the deposition was prepared by the agent of the party, and suppressed on this ground chiefly. That and Mad. also were before publication. As to the deposition being taken by a clerk. So are all depositions taken in New York where they practice on the English rules. Defendants’ commission impeaching this was executed by a clerk. To say that a clerk shall not be employed would be to prevent the execution of Such commissions as this; for professional men would not do the labor; or if they would, the expense would prevent their being employed. The commissioners have certified the oath of the clerk; they certify also their own qualification, including the oath of the substituted commissioner. Though strict in relation to depositions, the courts have gone far to sustain them in case of the death of a witness. Where a witness died after his examination in -chief, and before cross examination, the court refused to suppress his deposition. 2 Mad. 413; 2 Sch. & Lef. 158. Rogers. There was no rule in the Court of Common Pleas in relation to the manner of executing commissions to take depositions. This commission was issued out of that court from whence the cause has been transferred to this. If then, in the absence of any rule in that court, we are to' refer ourselves to the English rules in chancery, we should take them all. Is this matter of objection according to these rules, properly before this court? Should not the defendants have filed exceptions, or articles of impeachment? If they would impeach a witness they must file articles before publication. So if they object to the mode of executing the commission, they were bound to file exceptions to give us notice. Irregularity in the taking of depositions cannot be objected to at the trial. Even in the English courts the same strictness is not observed in relation to commissions executed out (¿/"England. The rules yield to the necessity of the case. There is no certain rule how far evidence may be taken from notes. 13 Ves. 511; 2 Atk. 190; 1 Eq. Ca. Ab. 102; 2 Coxe 205; Har. Ch’y.; Amb. 252. Ingersoll. The foundation of all their objections is the commission issued 21st July, 1831, to H. D. Gilpin and others. If this foundation fails the objections fail. It was executed by their attorney and agent, and is not admissible. It is not before the court. But what is the paper attacked? A deposition returned, published, copied three years ago. The deposition of a man in consumption who lived twelve months or more after it was taken, but is now dead. *288 During all his life no exceptions filed. A commission was taken out it is true, to inquire into the mode of taking this deposition, but we knew not whether it was executed. It was kept by defendants in their pockets until yesterday. The witness was dying; he had to be indulged with writing out his answer. The absolute necessity of the case is sworn to by the commissioners. And we know that in this terrible disease the patient may have a sound mind and considerable bodily energy, without being able to talk much. What did Chief Justice Marshall say in the case of a ship which went out of her way to save a man’s life and forfeited her insurance? That the law of humanity was above the law merchant or commercial law, and it should not work a forfeiture. To this law the rules of courts ought to yield. States a fact in relation to one of the cases cited by Mr. Bayard from Washington’s Reports. He was of counsel in that case and well recollected that the Dutch brokers, after the interrogatories were read to them, had leave to go to their books for the prices of teas, and to make calculations on these statements. Frame,, in reply. Are we too late? I defy the counsel on the other side to show a case in this State where exceptions have ever been filed in a court of law to depositions, or articles of impeachment exhibited. The practice of chancery in this respect does not and cannot apply to the courts of law. Were they surprised? No. A commission was issued in July, 1831, to investigate the manner of taking these depositions; our interrogatories then gave them notice of the matters we considered exceptionable; and they filed cross interrogatories. Jones, on the same side. Is our commission irregular? If H. D. Gilpin was our secretary and his appointment as a commissioner wrong, their own argument proves that it is too late to make the objection. Where are their exceptions? But I distinguish between personal and other objections to commissioners. After joining in a commission without objection it is too late to object to the commissioner on personal grounds. I deny, however, that the fact of the commissioner being our secretary is a good objection. Second. There is no authority given to the commissioners in this commission to appoint a clerk. The appointment was void and his acts void. Delegatus non potest delegare. The taking of depositions in England is under very restricted rules. There is a publication day after all the testimony is closed. Eight days are allowed for excepting; the exceptions are referred to a master and heard. These are all preliminary to the trial; and can’t apply to courts of law. They do not even apply to those courts of chancery with which I am acquainted. At law a deposition is a substitute for a witness at the bar; and entitled to no greater favour. All exceptions that can be taken to the one, may to the other. W. S. Randel was examined in October, 1829; he died in October, 1830. It was not until April, 1831, that his deposition was opened. How could we take exceptions to it before? Our commission which issued shortly after May term, 1831, was notice to the other side of our intention to attack this deposition. A witness is not allowed to speak from writ *289 ten statements made by himself or another; can the court extend to this defective substitute for an oral examination a privilege not allowed to a witness at the bar? Will it dispense with a rule in the one case that would be enforced in the other? And the worst of all memoranda is a former deposition given by the same witness, as was the case here, for this deposition is little other than that given by the same witness in the case of Handel vs. Wright. By the Court. The leaning of courts for years past has been in favor of the admissibility of evidence leaving its credibility and weight to the jury, unless there exists some flat and insuperable objection to its competency. If there be matters either extrinsic or intrinsic to throw suspicion over it or detract from its weight, it is better that the jury should consider the testimony with the objections than entirely to exclude the former. Our courts have no settled rules on the subject of executing commissions to take depositions; we have usually referred to the rules of chancery as a guide, so far as those rules could apply in common to both courts, and so far as they were applicable to the case in hand. But neither in this court nor in chancery are these rules of practice of such an unbending nature as not to yield to circumstances. The practice of taking depositions itself is a departure from the rules of the common law: it was introduced by necessity, and only adopted in cases where you cannot procure or compel the oral evidence of witnesses, either by reason of age, sickness, or being out of the jurisdiction of the courts. In such cases, ex necessitate, the next best kind of evidence has to be taken, or the whole lost. And if the whole system of evidence can be changed by necessity, and written evidence substituted for oral testimony, why may not the same necessity authorize the taking a deposition written out by the witness himself, when it is impossible for him to speak it, that the commissioners or their clerk may write it down? Take the case of a man deaf and dumb; such a man as Mr. Howell, of Kent, a gentleman of intelligence and great shrewdness, who is employed in the active concerns of life, and can read and write, but has never spoken; entirely deaf and dumb: suppose his testimony to be important in a cause, can there be any rule of evidence that would prevent a resort to the only means by which it can be procured? We think the good sense of the matter will dictate such an application of rules of evidence as shall effect and not defeat their object. Let testimony be guarded by proper rules; but when those rules would destroy that which they were designed to preserve and protect, bend or modify them so as to get the testimony. And if it comes subject to the objection of not having been taken with the usual checks, let it be considered with the objection, and let it detract from the weight or importance of the testimony. The general rule is that a witness shall not be permitted to bring his deposition ready prepared: like all general rules, it must have its exceptions. The subsequent death of a witness has even been considered a good reason for reading depositions thus irregularly taken. If ever there was a case in which a prepared deposition would be allowed, this is such a case. The witness was languishing in a dread *290 fui disease, which would certainly prove fatal, and whose violence would be greatly excited by conversation; indeed the depositions prove a case of absolute inability to speak to the extent required by the length of the answers; the attempt was made, and was only abandoned when it became apparent that the witness would sink under it, and then at the urgent request of the defts.’ commissioner. The deposition consists, moreover, of many and long mathematical calculations, which could not possibly be made orally, or thus communicated from the witness to the commissioners. We think, also, that the other objections urged against this deposition are not sufficient to authorize its suppression, and we direct generally that it be read, reserving the right to exclude hereafter such portions of it as may appear improper. That part of the deposition which related to the lock contract was objected to and struck out. So of all those parts relating to damage arising from deviations from the original line of the canal, and alterations in the form, slope and dimensions of the banks, towing paths, &c. The court doubted whether this was a covenant on the part of the company that the engineer should certify the damage arising from deviations. Unconnected with the other parts of the contract they would say it was not. The language is very different from that used in the inspection and prevention clauses. But there being no breach assigned on this deviation clause, the testimony relating to it was rejected without giving a positive construction to this part of the contract. The defts. objected to certain orders, verbal and written, given by Wright, the engineer, to Randel, in relation to the work, and proved by this deposition. The court said that any orders given by the agent of the company to, Randel in relation to the work were evidence, and also any declarations made by him at the time of giving such orders in relation thereto, or to the work; but that any other declarations of this agent, or his letters to the company, were not evidence, not being a part of the res gesta, or connected immediately with the'discharge of his duty as engineer. On this principle the deposition was purged of improper matter and a part admitted. , A great many of the answers were entirely rejected as containing improper testimony, either wholly or to such an extent that it could not be disconnected from that part which might have been admissible; some of the answers were corrected and partially admitted, and. others entirely admitted. In this way the deposition, consisting of .twelve hundred pages was argued, examined, and marked for admission or rejection. In admitting the answer to the 68th interrogatory, the court took a distinction between deviations and orders of the engineer to the contractor to make the banks of particular materials, or in a particular manner; such as scalping or mucking under the bank, ordering upland earth from a distance, &c. Randel covenanted to conform to such deviations from the line of the canal, and alterations in the form, slope, &c. of the banks, &c. The canal company covenanted not to prevent him from using the due and best mode of executing the work. He was therefore to be allowed to use the best inode of executing as well that part of the work, on which deviations should *291 be made as the other parts which remained as originally located. In either case, if he was prevented by the default of the company, they were liable under the prevention covenant. The contract specifies that the banks shall be made of the adjoining excavation, and we have not been able to discover any clause which authorized the engineer to order the earth for this purpose to be brought from the distant upland. The answer to the 113th interrogatory was objected to, because it did not appear that the directions mentioned in that answer by Henry Wright to Randel, to pay Woodbridge certain sums of money for building a sluice, were within the scope of Wright’s authority as first assistant engineer. The court admitted the evidence. We do not know certainly the extent of this engineer’s authority. It is general in its nature, and may be inferred from facts, and the connexion of his acts with the business in which he was employed. It is proved here that Wright undertook the making of a sluice at the mouth of Extine’s drain, and that he employed Woodbridge to work on it. It is further proved that the committee of works were present and inspected the work without objection. These are facts from which the jury may decide whether Wright’s orders on Randel to pay Wood-bridge for the work were within the scope of his authority. Adam Diehl, sworn. The St. George’s marshes were embanked in 1797—8. Section No. 3 of the canal line passes through Higgins’ and Newbold’s marsh. It was all mowable land, not obstructed by water; dry, except in time of freshets. It was all enclosed within the general embankment. The back water was discharged by means of four sluices, which were all but one near the mouth of St. George’s creek. The sluices were sufficient to discharge the water, except in time of freshets. After the canal was commenced this marsh was inundated. To get rid of the water they cut Extine’s drain and put in it a sluice, which, instead of answering the purpose designed, let the water in from the river. It was put in the wrong place, and blowed out. The whole of the cranberry marshes were inundated in the fall of 1824, by water let in through Extine’s drain. The canal could not have been cut through section 3 in the fall of 1824. It would have cost more to pump out the water than to cut the canal. Daniel Newbold, sworn. The marshes on section No. 3 were usually dry. The guard bank being thrown on the south side of the canal, cut off the usual vent through the sluices at the mouth of St. George’s creek. Extine’s drain was cut as a substitute but failed; it let in more water than it let out. An aqueduct under the canal was attempted, but this also failed. Randel could not have excavated No. 3 in the fall of ’24 at four times the cost under other circumstances, in consequence of its being inundated for want of a drain. The company did not get possession of the ground for sections one and two until late in 1825. Deposition of Jeremiah Brainard read, in part. The plff. offered in evidence certain depositions taken under a commission to Thomas Janvier and others. Objected to for want of notice of the taking out the commission. The plff. called Benjamin J anvier and proved that a copy of the interrogatories had been left at *292 the oEce of Mr. Bayard, but not handed to him- personally. The court held this suEcient. In consequence of the death of Mrs. Robinson, the mother of one the jurors, and of the approach of Christmas, the court adjourned over for one week. Thursday, December 26, 1833. The plff, gave in evidence an account rendered by the canal company to Randel for work done, dated 10th January, 1826; also certain contracts entered into between Randel and his sub-contractors, Timothy Grindley; Reybold and Clarke; Joseph Cragg; David Johnson; Jared Leavenworth; Clarks, &c.; Woodward; M‘Martin and others; Tripp; Blackstock Si Co.; Eaves & Co.;-Caulk & Co. ;• Clark St Co.; Daily Si Co.; Sexton Si Co.; Brooman; Sutton; Fisher & Co.; Sic., Sic. Paul BecJc, Jr., whose deposition was rejected at an earlier stage of the cause, now appeared and was sworn. Proves the seal of the company and the execution of the contract. Was formerly a director of the company; resigned. Question. Why did you resign? I resigned because from the acts of the board toward ■Rondel, it was manifest to me his ruin was inevitable; and I did not choose to be accessory to it. Question. What acts do you allude to? I specify the allowance on one occasion of $600 for work amounting to $3000: I speak, however, of the tendency of their whole conduct. I believed that the board was governed by Wright, and that' he had determined to ruin Randel. ■ Hugh Lee, sworn. Livermore, Dexter and myself.measured the work on which Wright’s final certificate was given; Wright measured no part of it. Our mode of measurement was not calculated to produce a correct result. I did not know how to do it scientifically, nor do I believe the others did. Our orders were to keep the company on the safe side. (Cross examined.) I carried the rod; not the level. The plff. having offered evidence to prove that Benjamin Wright, the engineer in chief, had caused false measurements to be made of the work done by plaintiff and had given false certificates of the amount of labour and materials, the objection was made to the admission of such evidence, that by the express terms of the agreement declared on, the measurements and estimates and certificates of the engineer were final and conclusive, and that the plff. was now estopped to aver the fact that they were false. Clayton for the plff. argued that the second count of the declaration contained breaches assigned on the covenant “carefully to examine and inspect the work,” which breaches of course averred that the work was “not carefully examined and inspected;” that the defts. had not traversed these breaches, but had pleaded only the general issue of non est factum and the plea of abandonment which was a special plea in bar, confessing and avoiding the matters alleged in these and all the other breaches in this count; and that the plff., of course, could not be estopped to show the very fact which the defts. by their own pleadings had admitted. Bayard for defts. said there was a plea traversing the breach that •the work was not carefully examined and inspected. *293 Clayton replied that the plea referred to was a plea to the fourth and sixth counts only, and that the defts. had, in pleading, entirely overlooked the second count in this particular. There being no plea traversing these breaches in the second count of the declaration, the evidence was admitted. The plff. further gave in evidence parts of the deposition of Elisha Putnam and Jeremiah Brainard; the other part having been ruled out. Also, the record of sundry proceedings in the nature of writs of ad quad damnum on the part of the company against sundry persons, the owners of land through which the canal passed, for the condemnation of those lands. And he here closed his case. Mr. Bayard opened for the defendants by a general statement of the character and tendency of the testimony which would be offered. He then gave in evidence Randel’s estimate of the cost of the canal and a statement of the actual cost, the former being $788,464 28, and the latter $1,100,303 35: also the report of the engineers Tot-ten, Bernard, White, Wright, Randel and Strickland, recommending this route. The canal was commenced on the 15th April, 1824. He produced sundry receipts for payments to Randel on account of work done, and compared them with the certificates, showing a balance due on the certificates, as admitted, of $794 05. Benjamin Wright’s certificate that Randel unreasonably neglected the work, dated 30th July, 1825. Minutes of the board of directors at a meeting held first August. Adjourned to the afternoon. Wright’s communication was referred to a special committee to consult counsel. On the 5th of August this committee made a report. On the 12th of September Randel, by letter, acknowledges that he received notice of the certificate of Wright on the 10th of September. And asks a copy of the specifications and reasons. On the 13th of September the board refused this request by a resolution communicated to Randel. The defts. here offered in evidence a report of a committee of the board, on which this resolution was founded, setting forth the facts and reasoning on which the board went. The court rejected the report, unless the facts stated in it were proved aliunde. The statement of the committee is no evidence of those facts, and the reasoning of the committee on such assumed facts is inadmissible. This opinion was excepted to. On the 19th of September the board again met. Randel appeared and asked for time to prepare his defence. On the 30th of September the resolution declaring the contract abandoned was adopted, and notice was given to Randel on the first of October. The defts. offered this resolution in evidence, together with a preamble setting forth the facts and reasons on which it was founded. The court admitted the resolution and. rejected the preamble, unless the facts were proved aliunde. Exception taken. Defts.’ counsel read an agreement between the canal company and Henry Wright as first assistant engineer, and Daniel Livermore as second assistant engineer; the former at $4 50, and the latter at $3 50 per day. *294 Judgment on bond of Randel and Sutton to the defts. for $15,000. Sundry credits endorsed. Proved proceedings in relation to Daniel Newbold’s land, sections No. 1 and 2. The habere facias on which the company obtained possession was issued 21st April, 1825. Caleb Newbold, jr. sworn. Was a director of the company from 1823. Was a member of the committee of works. Verbal orders were frequently given to Mr. Randel, in the summer of 1824, to proceed with the work, which he did not comply with. He promised, but did not comply to the extent promised. Has no recollection of Randel’s proposing.to put brush under the bank: the bank made of the light horse dung mud was good for nothing; burnt up. Randel made a bank to Wilson’s point, designed as a temporary embankment, for which he received a specific sum; it broke when the water was raised in it. No. 1 was not excavated to bottom when R. left it. The bottoms of sections 1, 2 and 3 had to go about four feet below low water. Don’t see what advantage section 2 could have been to Randel as a drain for section 3. He must have had a sluice in at the lock. The water was finally pumped out of section 3 and discharged by St. George’s creek. Thinks the excavation on section 5 could not have been done at 25 cents per yard. The revised prices were fairer than the original scale to both parties. (Cross-examined.) Is not an engineer. Can’t say as to what precise extent Randel failed to obey the orders of the committee of works. He promised to put on and keep on 120 men; did not keep that number on. The resolutions of November, 1824, ordering him to go to bottom, &c. were in consequence of these failures. The defts. ’ counsel now offered in evidence a contract of Messrs. Reybold & Clark with the canal company for the excavation of sections 2 and 3, a part of Randel’s contract, to show that the work finally cost more than Randel’s estimate, and more than he had contracted to do it for. Objected to. J. M. Clayton. The evidence is inadmissible, whether it be true or not that the canal cost more than Randel’s estimate. He was not to be paid by that estimate in the aggregate, but by the cubic yard. If the amount of excavation exceeded the estimate, the price necessarily exceeded it. The report of the board shows that the banks sunk on section 3 to the depth of 100 feet, filling up and raising the chamber of the canal by the lateral pressure of the sinking tow path, so that this part of the canal was in fact excavated several times. For this additional labour Randel must have been paid as well as Reybold & Clarke, and the final cost of the canal by no means proves or disproves the issue hero, the amount of Randel’s damages. Again the increased cost of the work arose from deviation; it was in fact another route, a different canal from that on which the estimate of Randel was founded. Reybold and Clark stipulated also to do the work from one to two years earlier than Randel was bound to perform it in. If the time he materially shortened, we know that the price must he materially increased. J. A. Bayard. I agree that Randel was to be paid by the cubic *295 yard, and that the cost of the work would be increased by increasing the amount of excavation; but our object now is to prove that he could not have done it at the contract rate per yard, whether the quantity be more or less. If the cost of the work was increased by a different mode of execution, it is a matter proper to be considered. The evidence tends to show that the cost per cubic yard of the work done by Reybold & Clark was more than Randel’s estimate and contract, and that he did not sustain any damage by the abandonment of his contract. Clayton. The defts. may show that practical men could not do the work at the rate Randel contracted to do it for; but they cannot show it by a contract with others for a canal differently located, more expensively constructed, and to be completed in half the time. You might as well inquire the cost of the great wall of China to prove that Randel could not have dug this canal at his contract rates. The Court. The contract of Reybold and Clark is offered in evidence with a view to show that Randel could not have made money if he had been permitted to go on to the completion of his contract. The contract offered is confessedly in some respects in relation to a deviated or different work, and its stipulations are essentially different from the plaintiff’s contract; how then can one prove, with any certainty, any thing in relation to the other? If the contract offered was for the same work it would not itself, in an action between other parties, be proper evidence to prove that such sum was or was not compensation for the work, nor how much could be lost or gained by it, but the parties themselves to such contract should be brought to testify as to the actual cost. Evidence rejected; and excepted to. On the same ground the court rejected contracts with Dexter, Hurloclc, Flannagan & Carr, and others. John K. Kane, sworn on the voire dire. Is a director of the canal company, but not a stockholder. Was a small stockholder until within a short time. Sold out his stock with a view to giving testimony in this cause. Objected to. Clayton. He is a party on the record. Bayard. He is not interested in the event of the suit; not even liable for costs, as he is not a member of the corporation. In truth he is not a party of record. The title of the suit and of the company is “The Chesapeake and Delaware Canal Company;” i. e. the members of the company, the corporators, and not the officers of the corporation. A secretary of a company, who is not a stockholder, may be examined on the ground of no interest; so may a director, if he stand in the same disinterested condition. The court admitted him. The general rule which incapacitates a witness regards his interest in the event of the suit, or his liability for costs, rather than his character or connexion with the parties. Thus a trustee, if a party on the record though not interested in the suit, is no witness because he is liable for costs. So of a next friend, &c. Here the witness has no interest; he is not even a party to the record, and if he were, he would not in this case be liable, for he is not a member of the corporation. It is a new question, started perhaps for the first time in this State, and it can seldom occur any *296 where, for the directors in these companies are almost always stockholders also. As at present advised we do not see that any rule of evidence prevents this director from giving testimony. Angel <§• Ames on corporations, 393. John K. Kane, sworn. Gives a history of the revision of prices, and of the certificate of negligence and resolution of abandonment. Was at the canal in the summer of 1825. It had been a subject of frequent complaint to Randel that he did the work irregularly and on parts most convenient and profitable. This was the cause of the order to go to bottom. After the company received Wright’s certificate of the 30th July it was referred to a committee with directions to consult counsel. They did so, and reported on the fifth of September. The board then directed Randel to be notified of the certificate. About the twelfth they received a letter from Randel asking a specification of charges. This letter was referred to a committee with directions to consult counsel. In pursuance of advice received from counsel the board notified Mr. Randel that they would proceed on the 19th September to determine what they would do in relation to the certificate, and that they would then inform him of the points to which he might direct his answer. On the nineteenth Randel attended. The chairman stated to him the objections of the board to his conduct as a contractor. He took notes; asked for time to prepare his reply; named thirty days,—four weeks; the board fixed ten days. Randel again met them on the twenty-ninth and presented his defence in' writing. They adjourned to the next day; and then adopted the resolution of abandonment. (Cross examined.) Mr. Smith came before the board on the nineteenth, and desired to read Randel’s defence. He represented Randel as being much indisposed and unable to attend; but we did not think his appearance indicated such a state of ill-health. He was languid. Mr. Gilpin read a part of his defence for him. Nathan Boulden, sworn. KnewWm. S. Randel. His habits were irregular. Saw him once lying in the office asleep or drunk with a quantity of bank notes in the crown of his hat. John Randel was sometimes dilatory in his payments; his credit not always good. Mr. Bayard read in evidence the original estimates of the cost of the canal; and also the award of Benjamin Wright on the revised schedule of prices. Daniel Livermore, sworn. Is an engineer; commenced in 1819; came to this canal in 1824. I measured a part; about one-half of section four, and all of section five that was embraced in Mr. Randel’s contract. The semi-monthly statements of work done were made by counting the number of men and teams while at work. The check rolls would probably show a larger number; and the count might be a little below the number actually employed, for if any were accidentally absent they would be omitted. The counts, though perhaps a few short, were sufficiently accurate for general purposes. Describes at length his mode of measuring.. Thinks it as accurate as any that could have been used. Had to be governed frequently by the eye, as it was impracticable to measure. *297 (Cross examined.) Boating would have been cheapest on section four, but it was not practicable to any extent. The slips would have prevented. Philip Reybold, sworn. We offered Carr eighteen cents per yard for doing section three, and calculate water as mud. We continued the work during winter. Costs something more, but men could be got. All the water on this section was thrown over the bank and not drained through sections one and two. Section two conld not have been excavated at fifteen cents; our contract was twenty cents, and I think we lost money at it. The springs were abundant and it had to be bottomed under water. Sections one and three could not have been done at twelve and a half cents. Section two was of no use as a drain for section three. I did not think that Randel’s workmen managed well; they were too much in mud and water. (Cross examined.) Reybold and Clark have still a small claim against the company for an aqueduct, some four or five thousand dollars. The material of the tow-path was brought three or four hundred yards, and not of the adjoining excavation. We were never-paid for our work by the yard; it was impossible to estimate it thus. Henry Wright was not a dormant partner with us. Joseph Carr, sworn. Section five could not have been done for twenty-five cents per yard. (Cross examined.) We cleared about 27,000 dollars on our contract. William J. Hurlock, sworn. Worked on section four. It could not have been done at fourteen cents. Got twenty cents from two points, and sixteen cents from another point. Can’t say whether I made 12,000 dollars by my contract; don’t think I made fifteen thousand. Henry Cazier, sworn. The first season Randel let out the work to contractors; he afterwards worked it himself. His contractors were good. On some parts his workmen were dilatory. The plan was not a good one. Mr. Bayard read a letter from Randel to the canal company, stating- his claim at 54,000 dollars, dated January 2, 1826. He stated, however, that this did not cover his whole demand. The defendants closed their testimony. Plaintiff, in reply, called Hugh Lee, sworn. Has calculated the original surface levels of the canal. Describes at length his mode of measuring and calculating. Livermore’s plan is not correct. Has frequently heard Livermore speak very disrespectfully of Randel whilst engaged in the measurement. Clayton for plff.„ offered in evidence two drafts for $1000 and $4000, respectively, drawn by John Randel in favour of Sutton, endorsed and discounted at the Philadelphia Bank; and protested on the ninth July. Objected to as irrelevant. J. M. Clayton. The evidence is in reply to Boulden and others who swore that Randel was dilatory in his payments, and neglected his work for want of means. We here show the reason. That he- *298 was crippled in his resources by the negligence of the company; by their not paying him promptly. The certificates already in evidence show that on the second of July there was due Randel $5518, which was not paid, as the receipts show, until the eleventh. In the mean time these drafts were protested and Randel’s credit injured. Doctor Sutton was called to prove the dishonour of these drafts. He admitted on the voire dire that he held certain obligations of Randel payable on the determination of this suit. The court, on, inspecting the papers, held him a competent witness, saying that he was not interested in the event of the suit, as the obligations were payable at all events, whether the suit resulted one way or the other. The admissibility of the drafts finally turned on the question whether they were inland or foreign bills. If foreign the protest is proved by the notarial seal. Mr. Ingersoll said it is now settled by the supreme court that bills from one state to another were foreign bills. After the matter was considerably debated, it was found that these drafts were dated in Philadelphia, and made payable there; the court therefore rejected them without actual proof of the protest. It appeared that after the endorsement these drafts had been in the hands of S. H. Hodson, cashier of the Bank of Smyrna; but the court said this did not change their character as inland bills. Dr. Sutton, sworn. Had a sub-contract from Randel on section 3 for 12j cents; about -three-fifths of that section. Could make money at it. I was prevented by Wright from doing the work properly. Robert Keddy, sworn. Livermore measured my work of eight rods. I was dissatisfied, and complained to Wright. We agreed that it should- be re-measured by J. Fairlamb. He made it 4040 yards more than Livermore. Dr. Gemmel, sworn. Question. Did you at any time hear Benjamin Wright give Henry Wright orders to make false certificates of Randel’s work? State .precisely what the orders were. Objected to and argued at length. The court permitted the question to be put. Here is a controversy" between Livermore and Lee, two engineers, as to the correctness of the measurement of RandePs work. He proposes to prove that it was intentionally wrong; wrong by the direction of the company, given by their chief engineer to his subordinates. The testimony is not admissible to show malice in the engineer; his malice or fraud is no ground of damage as against the company; but it is admitted to show the incorrectness of the measurements, the falsehood of the certificates, and'the consequent damage to the plff. Witness. I did hear Benjamin Wright give directions to Henry Wright to make short and false estimates and certificates of RandePs work. He said he would ruin RandePs credit and break him up. Question. Did Henry Wright or Benjamin Wright at the same time say that if Randel was treated as other contractors, or permitted to go on, he would make over $200,000 by his contract? Objected to and rejected by the court as a mere opinion of Wright, noton oath. Witness. I also saw a letter from a director of the company to H. Wright, approving of his conduct in relation to Randel, and request *299 ing him to persevere in it. Wright showed me the letter, and immediately burnt it. He said it was from Mr.-, and it was signed --, and with two initials, I think —. Have never seen him write, and don’t know positively that it was his hand writing. Question. State precisely the contents of that letter. Objected to, and rejected by the court. Afterwards, the director being present, the witness was, by consent, permitted to state the contents of the letter. Witness. He advised Henry Wright to continue the course he had been pursuing towards Randel, and he would eventually break him. up. The letter was short and sweet. I do not know Mr.-’s Christian name. The signature was individual, and not as secretary or director. I heard Philip Reybold and Henry Wright talking about taking away Randel’s contract and giving it to Reybold, four or five weeks before it was abandoned. The Director, sworn. I never wrote the letter spoken of by Dr. Gemmel, or any such letter. I never by word or writing authorized any one to believe that I wished any thing done towards Mr. Randel that was not strictly just and legal. I never wrote confidentially to H. Wright during Randel’s contract. I wrote him one or two letters afterwards of friendly caution in relation to his own habits and the estimates for Clement. I swear positively that I never wrote the letter; because, had I been capable of such an outrage of every principle of honesty and fairness, it must have made an' impression on my mind that time could not erase. I neither had motive nor feeling towards Mr. Randel which could have prompted such an act of injustice. John Kizier, sworn. Was acquainted with the cutting on No. 5, the deep cut. The sub-contractors made money at 35 cents. Describes the manner of boating the earth from section 5 to section 4. The excavation, boating and depositing on the tow path cost about 15 cents. Plff. gave in evidence a resolution of the board dated 33d September, 1835, appointing Messrs. Gillaspie and Jones to go to the canal and ascertain the state of the work. He then offered a paper in the handwriting of Dr. Gillaspie, and signed by him, purporting to be notes of their examination, or a rough draft of a report. Gillaspie is dead. Bayard. This is a private memorandum of Dr. Gillaspie, nob communicated to his colleague, nor to the board. Clayton. They are the notes of the committee; a journal of their joint proceedings. A report was not made to the board, because they abandoned the contract without waiting for a report. They appointed a committee to test the truth of Wright’s certificate of negligence, and decided without hearing the evidence. Ingersoll. Admitting that this is the individual act of Doctor Gillaspie, it is an act in the discharge of his duty as agent of the company, acting under a resolution of the board. The notes were made in the capacity of committee-man, a part of the res jesta, and are evidence. 1 Stark. Ev. 53. Bayard. The duty was assigned to two. The separate notes of *300 one are not in conformity with the authority; and if it appeared that they both concurred in them, as they were never communicated to the company they cannot affect it. The fact that no report was ever made is conclusive. The testimony was rejected. John Sutton, sworn. Counted Randel’s force on the 13th July, 1825. On section No. 3 there was an average force of 267 men, 50 horses; on No. 5, 301 men, 186 horses. Plff. produced a model of the monument erected by the company at Summit Bridge, and proved the inscriptions, which were as follows: South front.11—This tablet is erected by the proprietors of the Chesapeake and Delaware canal, to commemorate its completion, on the 17th of October, 1829, and to stand as a testimonial of their gratitude to James C. Fisher, president, and Thomas P. Cope, John K. Kane, Robert M. Lewis, Isaac C. Jones, Robert Wharton, Thomas Fassit, John Hemphill, Ambrose White, and William Platt, directors of the company. Secretary and treasurer, Henry D. Gilpin; engineer in chief, Benjamin Wright; engineer resident, Daniel Liver-more; superintendent, Caleb Newbold, jun.” East end. “The construction of this canal was begun on the 15th of April, 1824, by Silas E. Weir, the chairman of the first committee of works, whose zealous and efficient services to the company terminated, with his life, on the 14th day of May, 1828. He was succeeded by Robert M. Lewis, under whose active supervision the work was continued and finished. In its progress through the eastern level large sections of embankment sunk 100 feet below the adjoining surface, and the bottom of the excavation rose 40 feet above its natural position. On the deep cut more than 375,000 cubic yards of earth slipped from the regulated slopes of the sides, and passed into the chamber of the canal. These and many other difficulties having been overcome, the water was introduced on the 4th of July, 1829, and the final accomplishment of this great national work was celebrated on the 17th of October of the same year, at which time the navigation was opened.” West end.—^Length of canal, 131 miles. Width at water line, 66 feet. Width at bottom, 36 feet. Depth of water, 10 feet. Depth of excavation at summit, 76§ feet. Extreme width of section at surface, 366 feet. Excavation from deep cut, 3,500,000 cubic yards. Length of locks, 100 feet. Width of locks, 22 feet. Length of summit bridge, 247 feet. Height above bottom of canal, 90 feet. Total cost, 2,250,000 dollars, of which 450,000 was paid by the United States, $100,000 by the state of Pennsylvania, $50,000 by the state of Maryland, $25,000 by the state of Delaware, and the residue by citizens of Pennsylvania, Maryland and Delaware.” Plff. also produced models of the tide lock, with guard gates, &c. and of the hopper boats used in boating the earth. The depositions of Townsend and Dewit were offered to sustain the character of Wm. S. Randel, and admitted, and the deposition of Josiah F. Clement was rejected. George W. Smith, Esq. sworn. Gives a history of the proceed *301 ings of the board previous to the declaration of abandonment. I called as the friend of Mr. Randel, and requested to read his defence and comment on it. They refused. They also refused to permit me to read it without comment. I stated that Randel was ill, had been cupped on his head and neck; that he was then attacked with coma. He was unable to appear and make his defence. They still refused to let me appear for him. I remarked that they treated him with neither justice nor common decency. Mr.-came round and said in a violent manner, you will please remember that remark, Mr. Smith! I told him I should remember it, and that I held myself responsible to him for it. He said, no, sir, not to me, but the board. I replied, to him or any member of the board. I heard no more of it. Before it was known that Wright had given the certificate, I heard various rumors at the canal that the contract was about to be taken from Randel; there was quite a riot, and the work suffered much hindrance in consequence of these rumors. I called on some of the members of the board and represented this state of things, and from conversations with them I became satisfied the rumors were unfounded." This was after the certificate was given. I returned to the canal and endeavored to quiet the apprehensions of the workmen and others, and I unfortunately subjected Mr. Sutton to loss. I am confident that John Randel did not know of the certificate until it was officially communicated to him. Mr. Smith was asked if he did not think his mind was under some degree of bias from the influence of ardent feelings in favor of his friend the plaintiff. Answer. If a thorough abhorrence of the unjust and cruel conduct of this company towards John Randel, and a perfect conviction of his wrongs, be a bias, I have it. As his friend I have labored for years, and shall still labor, to bring this company to justice. I desire, and Randel need want, nothing more. I have devoted much of my life to the study of engineering, and in visiting the principal canals in this country and in Europe. I am not a practical engineer, but have studied the subject for my pleasure; it is my hobby. Describes the construction of the Caledonian canal, the use of hopper boats and dams, the banks in Holland to keep off the water of the Zuyder Zee. They are made of a light, spongy substance, slightly mixed with earth, similar to our horse dung mud, laid upon brush. Sand will not do. A mountain of sand would not keep out water. Has examined the horse dung mud of the St. George’s marshes; it will linake a bank, and a good bank; it is the proper material. The height of the guard banks as increased by Wright has been the subject of much ridicule among scientific men; it is perfectly absurd. It was destroyed by its own weight. The original height would have kept the water in the canal. The testimony on both sides closed January 3d, 1834. The case was argued at great length before the jury by Read,jr., Rogers, Ingersoll and Clayton, for the plff. and by Bayard and Jones, for the defts. In the course of the argument the court was requested to charge the jury on a great number of points, among which the most important were the following: *302 On the part of the plaintiff: First. That there are five covenants on which the plff. has sued; the covenant to pay for work as certified by the engineer of the company for the time being; that the works during their progress should be carefully examined and inspected; that the number of cubic yards of excavation and embankment should be faithfully estimated by a competent engineer; that if by the default of the company Randel should be prevented from pursuing the due and best mode of executing his contract in any particular, or should be prevented from entering upon or flooding lands, the engineer of the company should certify the damage: and, that the time allowed to Randel to do the-work should not be less than four years from the first May, 1824. Second. That the defts. by their demurrer to the seventh count have confessed that they did not allow Randel four years to do the work, and the jury are bound to assess the damages for the breach of that covenant whether he did or did not unreasonably neglect the work because the defts. have not pleaded the abandonment to that count. Third. That the true standard of damages to be recovered on that seventh count is not the mere profit that Randel would have made on the whole contract had he been allowed to finish it; but the loss he incurred by being illegally driven from it: that in order to ascertain the loss the jury must estimate the profit on the work remaining to be done after the first October, 1825, and add to it all the loss fairly arising from the illegal dismissal of Randel; and particularly his loss of time, the derangement of his affairs and business, the ten per cent, on the $224,000, earned by him before the first of October, 1825, and ten per cent, on the work remaining to be done, and the injury to his professional reputation if any necessarily occurred from the manner of his dismissal. Fourth. That it stands confessed of record by the defts. plea of abandonment to the five first breaches in the second count, and to the fourth and eighth breaches in the third count; first, that thef works during their progress xvere not carefully examined and inspected; second, that neither Benjamin Wright nor any other competent engineer selected by the company did estimate the number of cubic yards of excavation and embankment; and that the jury are bound to consider these confessions on the trial of the replication of waiver to the plea of abandonment. Third, that the defts. have confessed, by this plea, all the material allegations in the third, fourth and fifth breaches of the second count, and the fourth and eigth breaches of the third count, and especially the folloxving: that Randel “was from default of the company, on divers days and times betxveen the 26th of March, 1824, and the 20th of October, 1825, prevented from pursuing the due and best mode of executing his contract, and that the pecuniary damage sustained by him in consequence thereof, xvas the sum of $256,000; and that the said pecuniary damage was not certified by the engineer of the company for the time then being:” that from the default of the company the plaintiff was “on or about the third day of October, 1825, prevented from entering upon lands,” &e.; that the pecuniary damage was $256,000, and that said damage xvas not certified by the engineer although he - *303 well knew the premises: that Randel was prevented from, flooding lands, &c., and that the damage amounted to $256,000, which was not certified, &c.: that the said company on the 19th of October, 1825, did prevent Randel from entering upon lands which were necessary to be occupied by him for the use of the work, and so took the time to be less than four years, &c.: the pecuniary damage resulting from which default was the sum of $256,000, which was not certified, &c.: and that the company did, on the 19th October, 1825, dispose of the contract to Clement, Blackstock and Vanslyke, and thus obstructed Randel in the performance of the work and prevented him from pursuing the due and best mode of executing it; that the damage arising from this prevention was $256,000, which the engineer of the company did not certify, &c.; all of which confessions and admissions in the pleadings the jury are bound to consider in trying the issue arising on the replication of “waiver” to the plea of “abandonment.” Fifth. That under the covenant to pay for work done as certified by the engineer, for the time being, the plff. is entitled to recover all such sums of money as are contained in the semi-monthly certificates of Henry Wright and Daniel Livermore and Benjamin Wright while acting as engineers for the time being, although those sums should be excluded from the final estimate made by Benjamin Wright on the 15th December, 1825. Sixth. That the covenants carefully to examine and inspect the work, and to estimate the number of cubic yards of excavation and embankment, mean that the company bound itself to Randel that those works should be honestly and justly measured, and when so measured should be honestly and justly certified, and that therefore under these covenants the company is responsible in damages to Randel for the work he did, whether certified or not, and not only for the value of that work at the time it was done, but for all the injurious consequences necessarily resulting “to Randel from not justly-measuring, certifying and paying for the work at the time when it was done, according to the terms of the contract. Seventh. That the resolution of the fourth of November, 1824, directing that no certificates should be given for work done on section No. 3, if the contractor do not go to bottom, unless otherwise ordered by the engineer, renders the company responsible for exemplary damages arising from prevention on that section; because the said resolution is arbitrary, cruel and oppressive, and contrary to the terms of the contract it professes to delegate to the engineer the power to withhold certificates for work done, and thereby renders the company responsible for the acts of prevention of the said engineer in regard to that section, whether arising from malice or mistake. Eighth. What acts of the company would amount to a waiver of the certificate of Wright of 30th July, 1825. That it is not necessary for plff. to prove the want of notice of that certificate it being immaterial to the issue; but if proved, that it is per se a substantive ground of exemplary damage. Ninth. That the resolutions of the 19th and 24th of July, 1824, whereby Randel was notified that no part of the harbor should be *304 begun until a new contract for it should be defined and executed were unjustifiable and not warranted by the terms of the contract. Tenth. That all other orders directing Eandel to work on any part of the contract against his own judgment, and counteracting his own plans of operation, or preventing him from pursuing his own mode of executing his contract were not warranted by the terms of the contract; and that the jury are bound to assess all damages arising from such orders. Eleventh. That the revised schedule was not and could not be retrospective in its operation. Twelfth. That the contract provides that the banks of the canal should be constructed of the best earth the adjoining excavation would give, and that whether that excavation afforded a material unfit for said banks or not the plff. was entitled and was bound to use it. Thirteenth. That the plff. was to be paid by the cubic yard for his work; and that for all slips from the regulated slopes of the canal the plff. was to be paid as well as for other excavation by the cubic yard. So of all earth pressed up in the chamber of the canal by the sinking of a bank or other such cause. Fourteenth. That the covenant of Daniel Newbold, dated the 4th of August, 1823, did not entitle the canal company to the possession of section No. 2, nor did they get possession of these lands until put in possession by the writ of habere facias possessionem; and that the issuing of that writ is an admission by the defendants that they were not in possession at that time. On the part of the defendants the court was requested to charge .the jury on the following points: First. On the covenant to pay for work certified. That on the fifth breach, third count, the final certificate is conclusive as to the work and price certified; and the amount not paid is fixed by agreement at $2,863 05, with interest from October first, 1825. That on the seventh breach the replication of fraud being specially traversed and issue joined, the only fact for the jury to determine is whether the award of Benjamin Wright revising the prices is a genuine paper and not obtained from him by the fraud of the defts.; and that the payment for work certified is admitted by the pleadings as to this breach, and the verdict on it must be for defts. unless the jury find that the defts. obtained the award from Wright by fraud practised on him. Second. The covenants to inspect and examine the works and certify the amount of excavation and embankment. To the fourth, fifth and sixth counts the defts. have pleaded the appointment of Wright as inspector, and also the declaration. That the final and other estimates and certificates of Benjamin Wright having been given in evidence, the issues on these counts are proved and the verdict must be for the defts. That these pleas being a bar to those counts it is not necessary to consider the other pleas to the same counts. That as to the first and second breaches of second count. Defts. have pleaded the certificate of abandonment and plff. replied the waiver on which issue is joined, and that if that issue is found *305 for the defts. there must be a verdict for defts. on these breaches, and if against them, that though the verdict must be for the plff. the admission on the record of want of inspection or estimates, entitles the plff. only to nominal damages. That the actual damage, if any, must be proved by the plff. That the only legal damages recoverable under these breaches is for the excavation and embankment proved to have been done. That as the plff. has given in evidence the certificates of the engineer they are conclusive as to the amount of work done. That if not conclusive they are at least prima facie evidence of work done, and plff. must not merely falsify them, but prove that work was done more than was certified. That this being an action of covenant it lies on the plff. to prove the amount of damage, and that the mere proof of loss without proving the amount, or facts by which the jury can estimate the amount, will not authorize more than nominal damages on this or any other breach. That the damages in this action are neither exemplary nor vindictive, and that the jury cannot exercise an arbitrary discretion in assessing damages, but can allow only such damages as the plff has actually proved either positively or by proof of facts from which the quantum of damages may be estimated. Third. The prevention covenant. That on the breaches assigned on this covenant, the third, fourth and fifth of second count, and fourth and eighth of third count, the verdict must be for the defts. if their plea of abandonment is sustained; and, if not, that only nominal damages are admitted by the pleadings; and that plff. must prove actual damage sustained. That he must prove acts of prevention; and that orders of the engineer or defts. though illegal, assented to by the plff, are no ground of damage and cannot be considered by the jury for that purpose. That upon the breaches on this clause specifying no particular act of prevention the defts. have admitted no specific act, and that until the jury are satisfied by the proof of some act of prevention and of damage, and the amount thereof, they can only give nominal damages on these breaches. That the amount of damages is in no case confessed by the pleadings. That in determining the question of waiver the jury cannot take into consideration any matter previous to the certificate of July 30th, 1825, whether proved in the cause or admitted by the pleadings. Fourth. Covenant as to taking time. That the sixth and fourteenth breaches are traversed, and there is no admission as to them. That the seventh count containing a general allegation of taking the time without stating any specific act by which they so took the time, no act, and only nominal damages are admitted by the demurrer; and that if the declaration of abandonment was legal and the certificate not waived, no other act has been proved in the cause which the jury can consider in assessing damages on this breach, and they must therefore be nominal. That in assessing damages the intention of a party in breaking a covenant cannot be considered with a view to increase the amount. *306 That the only measure of damages which the jury can take in assessing the damages on alleged breaches of this covenant is the profit plff. would have made after the first of October, 1825; that if the jury believe that the plff., had he been permitted to proceed in his work, would not have bettered his pecuniary affairs more than when the contract was abandoned, they can give only nominal damages, even if the certificate of abandonment was waived. That in giving damages on any breach assigned in the declaration, the jury cannot consider either any alledged loss of reputation to plff. or other matters than such as directly flow from the breach as alleged and proved. That any deviation made by the defts. from the line of the canal or the construction of the works generally as reported by the plff. cannot be insisted upon as a ground of damage in this action, nor can the jury consider any such deviation for the purpose of allowing damages. That the provision contained in the contracts of plff with his subcontractors, directing them to obey the orders of the engineer-in-chief of the defts. did not impose on the engineer a duty to give orders to the sub-contractors to go to bottom on section 3 so as to constitute a default of defts. by reason of the omission of such orders, but that the order to go to bottom being given directly to the plff it was his duty to attend to its execution by his sub-contractors.- That the prices, when revised by the award of the engineer, June 5th, 1824, necessarily operated on work previously done; and that the claim of the plff. to the- sum alledged to be due at 16 7-10 cents for the first ten feet allowed at that price in the certificate of May 29th, 1824, and afterwards reduced to 14-4 cents per cubic yard in-the certificate of June 23d of the same year, is not good in law. The argument in chief before the jury, in the course of which- the foregoing points were made, commenced on Saturday, January 4th-, and closed on Tuesday, January 21st, 1834; when Mr. Justice Harrington charged the jury, in substance, as follows: Gentlemen of the jury: The period has at length arrived in the progress' of this cause when you are to become the chief actors in it. Hitherto your part has been one rather of patient attention; now it must be one of laborious investigation, of judicious and enlightened decision. Upon you, after all, devolves the responsible duty of administering justice as between these parties. The law has made you the exclusive judges of the facts in issue, of the credibility of witnesses, and of the weight of their testimony. It has wisely concluded that “twelve judicious and impartial persons, inhabitants of the bailiwick, lawful- men of fair characters and standing indifferent between the parties,” would be' more likely to arrive at the truth and dispense-with greater certainty and impartiality the principles of remunerative justice than any other tribunal which the wisdom of man has yet devised. Occupying this distinguished position, it can surely need no remarks from us to enforce the obligations you are under, not only in reference to the parties in this cause, but to the public, in sustaining the character of that *307 tribunal which they regard as the highest safeguard of their rights. Nor is it so much our purpose to comment on your duty as to discharge what is appropriately our own, by directing your particular attention to the leading points in the case before you, and applying to them the principles of law, so far as legal principles are connected with them, or will conduce to a more perfect understanding of the subject. We are trying, gentlemen, an action of covenant: an issue of breach of covenant: an inquiry into loss and damage arising from breach of covenant: and a claim of compensation in damages for breach of -covenant. This simple statement of the nature of the action describes your whole duty. It circumscribes the range of your inquiries; it points out the nature of the complaint, the issue to be tried, the result to be sought for, and the manner and the rule of ascertaining that result. It embraces an inquiry into legal rights growing out of contract; into alledged wrongs from the violation of those rights; damage and loss'resulting from such wrongs, and compensation therefor. The rights of the plff. are to be ascertained from the contract; the violation of them from the acts of the defts.; and the damages are to be proportioned to the injury and loss resulting from such acts. There is no malice here as a ground of damage; no inquiry into character, either private or professional, as a ground of damage; no vindictive or exemplary damages whatever. The question is of contract rights; of acts, not motives, violating those rights, and of actual damage arising from such acts. Let us not be misunderstood on this subject of malice. Malice in itself is not a ground of damage, because without an act it violates no covenant: it may prompt the act, and in that view may be considered in proof of the act; but then the act itself, and not the malice, is the ground of damage, for the consequences of that act are equally injurious to the plaintiff, and no more injurious, whether it was founded in malice or not. Could it be said that if the defts. had violated their contract with Mr. Handel and done him injury through ignorance or innocent mistake, or from motives the most friendly to him, they would not be liable in this suit to compensate him for that injury without reference to their motives? With what propriety, then, shall we look into motives with a view to increase the damages? We have said also that vindictive or exemplary damages are not to be given in this action. By exemplary or vindictive damages is meant something over and above the actual loss or damage accruing to the plff. by reason of the defts.’ conduct, and which in certain actions of tort the jury are permitted to give, to an unlimited amount, for the sake of public example and warning to others. But it is not so in actions on contract, or, at least, in this action of covenant, which is merely for compensatory or remunerative damages. The jury are to make the plff. whole: to weigh out to him, as it were, from the scales of justice, remuneration and compensation for his wrongs. We shall hereafter speak more particularly of the rule and measure of damages in this action, and refer, perhaps, to some specifications of alledged injury and loss. “There is one thing, and perhaps only one, about which both the parties agree in this cause: that for all the work which the plff. per *308 formed in pursuance of his contract, and for which he has not beeri actually paid by the defts. he is entitled to recover in this action. You will therefore consider and determine from the evidence which has been laid before you what that sum is, by ascertaining the value of the work done, and the payments which have been actually made towards it, and whatever may be the difference, that must necessarily be your verdict on this part of the case. Having ascertained thus much, your next inquiry will be, is the contract in relation to all other matters in litigation at an end? You must be fully aware by this time that there is a clause in this contract which declares that if the engineer-in-chief for the time being shall be of opinion that the plfif. has unreasonably neglected to prosecute his contract, he may certify the fact to the defts. and that they on his certificate may declare the contract to be abandoned, and thus discharge themselves from all its obligations, except to pay for work already done. This is a very important inquiry, and demands your serious attention. The defts. plead that on the 30th of July, 1835, Benjamin Wright, the engineer-in-chief of the company for the time being was of the opinion that the plfi". had unreasonably neglected to prosecute his contract, and that on that day he did, in and by his certificate, certify his opinion to the defts., and that on the 30th of September following the defts. did thereupon on the said certificate determine the said contract to be abandoned by the plfif., of which said certificate and determination the plfif had notice on the first of October, by means whereof the defts. were entirely exonerated from every obligation imposed on them by the articles of agreement, except to pay for work already done. The replication of the plfif. in answer to this confesses these facts, but avoids them by the matters which it discloses. These matters, so far as it is material here to state them, are: that during all the time between the 30th July and the first October the plfi". was diligently prosecuting his contract, and did with great expense and labor prosecute the said contract, under the inspection, by and with the permission, and by and under the direction of the company; and that during that period the defts. paid for such work divers sums of money; that the work thus performed was less profitable and more disadvantageous than the work remaining to be done, and that the work remaining to be done after the first of October was that portion of the whole work to be done which was most profitable and advantageous to him; and concludes by alledging a waiver of the certificate and a ratification of the contract. To this replication the defts. rejoin, and by that rejoinder put these matters in issue. The facts which have been given in evidence to you in support of this issue are these. On the 30th of July, 1835, Benjamin Wright, the engineer-in-chief for the time being as is alledged, certified his opinion to be that Randel had unreasonably neglected to prosecute his contract; the directors took this certificate into consideration, and resolved to take the advice of counsel: they did so, and obtained that advice. This certificate was not made known by the directors to Randel until the 10th of September following. He then asked for a specification of the charges of unreasonable neglect. This was refused him, and a day, perhaps the 19th of September, was given him *309 to be heard in his defence. On that day he appeared before the board, and was informed, orally, by the chairman, of the charges agaiqst him, and the 29th of the month was appointed for a hearing. In the mean time, on the 23d, the following preamble and resolution were adopted: “Whereas, a letter of this date was read by the chairman of the committee from a member of the board, stating, on the authority of George Washington Smith, who has just returned from the canal line, that the men in Mr. Randel’s employ are deserting in detachments, in consequence of a report that his contract has been declared abandoned, and that he is allowed only ten days from Monday last to prepare for his departure, which report being untrue and calculated to be injurious both to the interests of the contractor and this company; Therefore, resolved, that committee No. 3, now on duty, be requested to proceed as soon as practicable to the line of canal for the purpose of ascertaining the present state of the work and taking such measures as they may in their sound discretion deem necessary; which was unanimously adopted. Ordered, that a copy of the preamble and resolution be furnished to committee No. 3.” On the 29th, the day appointed for hearing Randel, he was ill, and his counsel requested that he might be heard in his defence, or that he might be permitted to read his defence. This was refused, and they required that he should personally attend them. He did so, although from ill health he was unable to complete the reading of his defence, and it was read by the secretary of the board. No determination took place on that day, but on the day following the contract was declared to be abandoned, and on the first of October notice of this determination was given to the plff. “It is clear, that wherever a discretionary power is given, as in this case, from the nature of the thing itself, it may be waived, or not exercised at all; for otherwise it would not be a discretionary power, to be exercised or not as the party might think best, but an obligation which he could not dispense with. Here, when the company had received the certificate of the engineer, certifying the fact that he was of the opinion that Randel was unreasonably neglecting his contract, that contract gave them the power on that certificate to declare the contract to be abandoned; but it did not compel them to do so, but left it optional with them to do so or not. This certificate, then, or the power to take advantage of it, might be waived. Whenever one person has an election to do or not to do an act in which the rights and interests of another are concerned, he is bound to make his election so as to be least prejudicial to the rights and interests of that other; and if by his unreasonable delay the rights of that other become implicated and he receives injury, who ought, in justice, in good faith, and in law, to bear the burthen or sustain the loss—the party injured, or he who has caused the injury? Common sense and the law, which is founded on good sense, say the defaulter: that he who is innocent and in no fault shall not be prejudiced by the negligence of the other; that whenever this right of election is attempted to be so negligently exercised that a manifest and irreparable injury must follow, the law interposes and says, you have waived your right *310 to elect; you cannot now exercise it without injustice; you are therefore concluded, and shall not exercise it at all. The facts are before you in evidence, on which an opinion must be made up on this matter of waiver. From the 30th of July to the 10th of September no notice was given by the defts. of the existence of this certificate of the engineer to the plff. During these six weeks he was laboring on his contract with a force equal to 7 or 800 men, and as he alledges, and of which you will judge, at low and reduced prices, under the revised schedule, and certainly under the inspection and the direction of the company, and receiving certificates and pay during that time. You will judge whether the work thus performed by the plff. was less profitable to him than that which was to follow; whether the defts. were getting an advantage by having the work thus performed at reduced prices. Consider, too, that by the agreement of the parties ten per cent, was reserved for contingencies, no part of which was to be paid to the plff. till the entire completion of the work, and in case of the forfeiture of the contract he never could demand any part of it; so that upon all the work performed during these six weeks or two months ten per cent, is gained by the company, and is consequently lost by the plff., or at least his claim to it is forfeited if the contract has been rightly declared to be abandoned. Has this delay of the defts. produced an injury to the plffs? If it has, its extent is immaterial, nor is it necessary to inquire whether it be great or small. If the company has gained an advantage by their own unreasonable delay, and Randel has sustained an injury by it, the company has waived the certificate and the power to declare the contract abandoned, and of course that contract is still in force. This is the opinion of the court. If the certificate and the power to declare the contract to be abandoned were at any time waived, no subsequent acquiescence of the plff. could create a new forfeiture of the contract. Nothing short of an additional certificate of the engineer that the plff. was unreasonably neglecting his contract could work a forfeiture of it. The right to take advantage of a forfeiture may be waived, hut it is a new principle to assert that a forfeiture may be created by asimple acquiescence. Such a doctrine would lead us to believe that Randel must have resisted his expulsion from the canal with force; and yet no one would say that because he quietly went off he therefore yielded his rights. The moment the company declared against him and would no longer treat him as a contractor nor pay him for his work, his perseverance would have been folly in the extreme. It is what neither the law nor common sense required of him.” Having explained to you the nature of this action and the importantpreliminary question of waiver, we will now take up the contract and examine its covenants, and, together with the pleadings, present to you the issues to be tried, and the breaches on which damages are claimed. There are five covenants upon which the plff. has sued: First, on the covenant of the company to pay the plff. for work done by him at the rates specified in the contract, semi-monthly, to the amount certified by the engineer of the company. *311 (5 B. 3d count.) There are two breaches assigned on this covenant, the 5th and 7th of the 3d count. The first alledges that Benjamin Wright, on the 15th of December, 1835, certified that the plff. had done work to the amount of $334,391 51 which he avers has not been paid. The defts. plead payment, and you are to try on this breach whether the defts. have paid this sum or not. This is a narrow question, and you will take up the certificates and receipts, and see what is due to the plff. on this part of the case. The defts. admit, as we understand, that the sum of $3,863 05, with interest from the first of October, 1835, is due and unpaid; but the plff. contends that a much larger sum is due for work done and certified; and his counsel have attempted to point out to you several instances in which work certified for in the semi-monthly certificates is omitted in the final certificate of the 15th December, thus establishing, as they contend, that the work certified for in the detail amounts to a much larger sum than is certified in the aggregate. Whether this be so or not, it is for you, gentlemen, on a careful investigation and examination of these certificates, to determine. You will first ascertain what sum is due on the final certificate, and if the previous semi-monthly certincates show a greater amount of work done by the plff. he is entitled to recover the value of that work, if not strictly under this breach, certainly under other breaches, which we shall presently advert to. These certificates are evidence of the matters contained in them, and whether made by Benjamin Wright, Henry Wright, or Daniel Livermore, as agents of the company, if they establish that the plff. has done more work than is included in the final certificate, it is a proper matter for your consideration in fixing the amount of your verdict. (1 B. 3 count.) The jury will observe that the price of the work as fixed by these certificates is graduated according to the revised schedule of prices; the other breach on this covenant to pay for work certified avers that the value of the work certified to be done wras $350,000, taking the prices fixed originally by the contract, and not the revised schedule. To this breach the defts. plead that Benjamin Wright revised the schedule of prices, as by the contract he was authorized to do; that by this revised scale the work amounted to only $334,391 51, which they have paid. The plff. replies to this plea, that the said revision was obtained from Wright by the fraud and covin of the company; to which they rejoin, that the revision was not obtained by any fraud or covin practised by them, on Wright. The issue therefore for you tó try on this breach is, whether you are satisfied by any evidence in this cause that the revision of prices was obtained from Benjamin Wright by any fraud practised upon him by the canal company. If the fraud be not proved, the verdict on this breach must be for the defts.; for here the pleadings admit the payment for work certified, and only put in issue that the defts. obtained a revision of the prices by fraud and covin. Should y.our verdict for the defts. on this breach establish the validity of tbe revised scale of prices, that scale will become the principle on which you are to ascertain the value of the whole work, with the single exception now to be noticed. The revision of prices was made between tbe first and seventh of June, previously to which *312 the engineer had certified for work done the sum of $2,3.95 43, according to the original scale of prices, over and above what the same work would have amounted to by the revised scale, and the engineer in subsequent certificates deducted this sum as an excess of payment; thus applying the revised schedule to previous certificates, and giving it a retrospective operation. We are asked to say to you whether this application of the revised prices was a legal and proper one according to the contract of the parties. That contract was, that the company should pay Randel for completing his work the sums stated as the cost thereof in his estimate, under the conditions and provisions of the annexed schedule, with a provision, that in order to secure the company against future delinquency, and at the same time to enable the contractor to make progress in his work, it should be competent to the parties, at any time between the first and seventh of June next, to revise and remodel the schedule, and change the rate of payment. If this power of revision had been continuous from the date of the contract to the seventh of June, we should have been inclined to think that a revision made during that time would run back on the whole work, for this would have made the contract scale merely provisional and constantly liable to revision; but under this contract, fixing a distant period when the contract shall as it were open and become liable to revision, it does appear to have been the intention of the parties that the scale fixed by the contract should be the actual price for all work done down to the first of June, when these prices were to become liable to revision and alteration as to future work. The provision was undoubtedly introduced to be exercised only as experience, derived from actual progress, should teach that the prices first fixed were either so high as to endanger the company for future delinquency of the contractor, or so low as that he could not make progress in the -work. In either case the parties had a right, not within a given period from the date of the contract, but at a fixed period after that date, to revise and change the contract rate of payment. Our view of this contract then is, that the parties intended to apply the contract scale to work done before the period of revision; and that the company could not give the revised scale a retrospective operation as they did by deducting the excess from subsequent certificates. The withholding of this sum of $2,395 43 from certificates made after the 7th of June was not in our opinion authorized by the contract; and the plif. is entitled to recover that sum, .with interest, from the time it was deducted from the amount of his certificates. Second and third. The next covenant on which the plff. has declared is the covenant that the works during their progress should be carefully examined and inspected, and that an estimate should be made of the number of cubic yards of excavation, and also of embankment, by Benjamin Wright, esquire, or some other competent engineer to be selected by the company. The pleadings separate this' covenant into two clauses, dividing the covenant for inspecting the works from the covenant to estimate the amount of work done; but for the purpose of presenting the issues to you on this occasion we shall consider them together. The obligation of the company, you understand, was to have the works carefully examined and inspected *313 during their progress, and an estimate made by a competent engineer of the number of cubic yards of excavation and embankment. The breaches assigned of this obligation (being five in all) are, that the works were not inspected during their progress by Benjamin Wright, or any other competent engineer appointed by the company, nor was the amount of the work estimated. Clst and 2d Bs. 2d count.) The single plea to the two first breaches on this covenant (being the first and second breaches of the second count) is the plea of “abandonment;” that is to say, that the company legally put an end to this contract, as by the terms of it they were authorized to do; and that the consequence of that abandonment was to absolve the company from all obligations under it, except to pay for work done. To this plea the plff. replies, that the company “waived” the power to abandon the contract, or, in other words, exercised it in such an illegal manner that it did not absolve them from any of their obligations assumed by the contract, among which is the one now under consideration. That branch of the case has already been explained to you, and you are first to determine, in the trial of this issue, whether under the charge given you of the legal doctrines embraced in this question of waiver, the proof in the cause satisfies you that the company have waived this power of abandonment. If you are of opinion on the law and evidence that the defts. have not waived this power, there is of course an end to this part of the case, and you can assess no damages on this covenant, nor indeed upon any of the covenants in the contract, except the covenant to pay for work done. If, however, you should be of opinion, that the company did so waive their power to declare the contract abandoned, you are then to inquire whether these covenants to inspect the work and estimate the amount have been broken; and, if they have, what damage resulted to the plff. from such violation of the covenant. And here we are required by the plff.’s counsel to charge you that the state of the pleadings implies certain admissions by the defts. that these covenants have been broken. You observe, gentlemen, that the plff. alledges in his breach that the works were not inspected by Wright, nor by any other competent engineer appointed by the company, and that neither Wright nor any other competent engineer appointed, &e. did estimate the number of cubic yards of excavation and embankment. The defts. instead of denying these allegations, rest their defence on the plea of “abandonment;” of course, if that plea fails them, as it will if the jury sustain the “waiver,” the pleadings on this part of the case do admit that the company have not caused the works to be inspected, nor the amount thereof to be estimated; and the only question that remains for you to consider is, whether this failure on the part of the company was injurious to Mr. Handel, and what amount of damage he sustained from such injury. For that damage you must refer yourselves to the proof which the plff. has laid before you, as it is incumbent on him to satisfy you on that subject by proof of the amount of his loss or of facts from which you may fairly estimate the amount. But you are not confined on this breach to the mere value of excavation and embankment proved to have been done, nor are the certificates of *314 Benjamin Wright," Henry Wright and Daniel Livermore conclusive of the amount of work done. To give these certificates such an operation would be to contradict the record admissions of the defts. and to set up certificates not pleaded as conclusive evidence of estimates which they admit were not made. By another part of the contract it was provided that payments should be made to Mr. Randel semimonthly for his work, according to these certificates and estimates; if therefore estimates were withheld, it was a wrong to Mr. Randel, and the company are liable to him for all the injurious consequences necessarily resulting from their not inspecting and estimating, the work according to the terms of the contract; and if one of those consequences was that Randel was not paid for all the work he did semimonthly, the defts. are liable for the amount of that work, and for the non-payment of the value at the time it was done, and when it ought to have been estimated, and certified, and paid. (4th, 5th and 6th counts.) There are three other counts assigning breaches on this covenant which it is not necessary for the court particularly to explain; as, if found for the plff., any damage resulting from them would fall also within the breaches already considered; and if found for the defts. they would not diminish the amount of that damage. The particular issues on these counts, as. distinct from the two breaches before mentioned, have not been presented in the argument as essentially varying the case; and a further examination of them might distract the attention of the jury, without leading to any beneficial result. Indeed the plff. ’s counsel who last addressed the jury distinctly abandoned these three counts, and presented no claim for damages as resulting from them. The jury may therefore find for the defts. on the 4th, 5th and 6th counts. Fourth. The next covenant declared on is what has been called the “prevention clause,” which is a contract of the company, that in case Randel, from their default in any particular, should be prevented from pursuing the due and best mode of executing his contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof should be certified by their engineer for the time being, and that on his certificate they would pay Randel such reasonable compensation and allowance as' should be fixed by the certificate. The plff. has assigned five breaches of this covenant in different forms, alledging, in substance, that he was prevented by the default of the company from pursuing the due and best mode of executing bis contract; that he was prevented from entering upon lands for the purpose of executing his contract; that he was prevented from flooding lands; that the company disposed of his contract to other persons, and thus prevented him from executing it in the due and best manner; that he sustained great pecuniary damage from these defaults of the company; and that their engineer has not certified the damage, although he well knew the premises and was aware of the extent of the damage. To all of these breaches the defts. have pleaded the “abandonment” simply, and the plff. replied the “waiver,” as has before been explained to you at large. The issue, therefore, on all the breaches of the prevention clause is, whether the defts. have waived the power to declare the contract abandoned on Wright’s *315 certificate of the 30th of July, 1835. If the jury are of opinion that the waiver has not been made out, there is an end, of course, to all claim for damages on this prevention covenant; but if you should think otherwise, you will then give the plff. such amount of damage as you are satisfied by the evidence he has sustained by reason of the acts stated in these breaches, and which the pleadings admit. We have been further requested by the plff.’s counsel to charge you that these pleadings admit the amount of damage stated in the breaches to have resulted from these defaults of the company, but we decline the expression of such an opinion. In our view the law is otherwise. The plea of abandonment, being a plea of confession and avoidance, necessarily admits all the material and traversable facts averred in the breach; it admits the prevention, the subsequent disposition of the contract, that damage to Randel was the consequence, and that the engineer did not certify the damage; but it admits no amount of damage, and the jury must resort to the evidence in the cause for the foundation of any other than nominal damages. For actual damages, therefore, and the amount thereof, we refer the jury to the proof, to decide according to their best judgment on all the facts that have been laid before them. There is, however, one matter of evidence connected with this subject that requires a passing remark. The plff. has offered some testimony to show that the possession of section No. 2, which he alledges would have been useful to him as a drain for section 3, was withheld from him by the default of the company. It appears that before the canal was commenced, the defts. had made a contract with Daniel Newbold, the owner of the land through which section 2 ran, for the purchase of that land. A dispute arose between them in relation to their contract, which was finally settled by arbitration; but, whatever may have been the merits of that controversy, it appears that the company did not get actual possession of the land until it was obtained under a writ of habere facias possessionem, issued out of the supreme court of this county, in April 1825. The jury must judge whether Mr. Randel suffered damage, or was obstructed in the prosecution of his work by the failure of the company to give him earlier possession of section 2, and remunerate him by such amount of compensation as the evidence enables them to ascertain. We refer to this matter only because we have been requested to charge that the covenant of Daniel Newbold of the 4th August, 1823, did not entitle the defts. to possession of this land, and we think it did not. It was a covenant to convey his land on condition that the company should execute and deliver to him an obligation under their corporate seal for the payment of'one dollar per acre for the land, and also on the condition that the canal should pass through it. At all events, the issuing of the writ of habere facias shows that they did not get actual possession before that time, which they were bound to do if such possession was necessary or useful to Mr. Randel. Fifth. The remaining clause of the contract for an alledged violation of which the plff. complains is a covenant on the part of the canal company to allow him four years from the date of his contract to complete the canal, with a qualification, which you understand, that under circumstances they might in a particular manner put an end to the contract at an earlier day for negligence on his part *316 The breaches assigned on this covenant are, that the company unlawfully put an end to the contract, and prevented Mr. Randel from proceeding, and thus deprived him of the time which by the contract he was to be allowed for executing the work. The plea to these breaches is the “abandonment,” and the replication, “waiver.” The issue therefore is the same as explained under the last head; and the question whether any damage is to be assessed on this issue or not depends, in the first instance, on the decision of the jury on the waiver. If the jury sustain the waiver, the breach is proved; that is, it establishes the fact'that the company illegally deprived Mr. Randel of his contract and stopt his work contrary to their covenant to allow him four j'ears to complete the canal. The question will then be, what damage has the plff. sustained by reason of this act of the company? The only guide that the court can give you on this subject is the legal rule, that whatever loss or damage naturally and immediately results from the wrong complained of, the wrong-doer is bound to compensate. What was the loss which Mr. Randel incurred in consequence of being illegally deprived of his contract? He lost the ten per cent, on the $224,291 51, the amount of work done by him before the first October, 1825, or such other amount of work as you may be satisfied he had done before that time; he lost any profit that the jury may be of opinion he could have made on the work remaining to be done after the first of October, 1825, which profit must be ascertained by estimating the cost of the work and deducting it from the sum to be allowed to Randel therefor by his contract with the company; that is, by the revised schedule of prices, together with the ten per cent, for contingencies. The jury should add this ten per cent, to the revised price, and compare it with what they believe would have been the actual cost of the work; and the result,' if in favor of the plff. will show the amount of profit be could have made on the work remaining to be done. If, on the other hand, the jury are of opinion, from such comparison of the cost and price, that the plff, had he been permitted to proceed in his work would not have realized from it any profit, the damages on account of the work remaining to be done will be merely nominal. These are specifications which the court feel at liberty to make; and we say to you, generally, that any loss fairly resulting to Mr. Randel from such illegal dismission should be considered in ascertaining the amount of damages. But such damage must be the immediate and natural result of the wrong, and not any remote or fancied injury that might be referred to that wrong as a probable cause. In estimating the work remaining to be done after the first of October, 1825, the jury will bear in mind that payment for this, as indeed for all the work, was to be made by the cubic yard; and if the amount of excavation was increased by slips from the regulated slopes of the canal, or by earth pressed up in the chamber of the canal by the sinking of the canal banks, the contractor must have been paid for the removal of this accumulated earth, as for all other excavation, by the cubic yard. The average price per cubic yard of the whole of section No. 5 is not to exceed 25 cents. One part of this section was let to Dexter, and the residue of it was let to Randel. Whatever may be ascertain *317 ed by you, on a proper calculation, to be the fair average of this part of the section, you ought to allow him. You have seen the map of this canal; you have seen how this part of section 5 is defined and protracted. You will compare its greater elevation, or rather, perhaps its greater depth, when contrasted with the residue of that section. It is declared by the contract, after making a graduation of prices in proportion to the depth of cutting, that it is understood that this graduation of prices is made expressly to conform to the difference in labor, and to be so estimated when done as that the whole excavation of this section shall not exceed 25 cents per cubic yard for the whole section; not for that part only included in the plff.’s contract, but expressly for th& whole section. Whatever, then, may be the fair average price of this part of section 5, you ought to allow the plff., although it may exceed 25 cents per cubic yard on that part of the section, being careful at the same time not to average the whole section higher than 25 cents per cubic yard. We think any other construction of the contract would be absurd. The parties graduate the prices expressly to conform to the difference in labor, and if Randel has to go much deeper upon his part of section 5 than is necessary on the part not let to him, justice and the spirit and terms of the contract require that he should receive a greater average in proportion tó the difference in labor. There remains, gentlemen, one other breach on this covenant, being the breach assigned in the seventh count of the declaration, and upon which the plff. has, as you have been informed, obtained a judgment and an order in the nature of a writ of inquiry for you to assess the damage. In relation to this part of the case, the matter of abandonment and waiver is not a subject of consideration. The effect of a judgment by default, or on demurrer, is to admit that the plff. has a cause of action; it establishes his right to recover: and where the contract declared on is for a sum certain, as in debt, and the declaration either ascertains the amount or sets out an instrument from which the amount can be certainly ascertained by calculation, the judgment, is also conclusive as to the amount. Where the matter sued for sounds in damages, or is in its nature uncertain, the judgment, though it establishes no amount of damages, fixes the right to recover. In either case no proof need be offered, or would be allowed, of the cause of action, nor will the deft, be permitted to set up any defence denying the cause of action. Thus in an action on a contract the deft, will not be allowed even in mitigation of. damages, to give evidence of fraud, or of any other matter which would render the contract void. (East India Company vs. Glover, Strange, 612. 1 Bos. & Pul. 363. 2 Saund. Pl. & Ev. 103. 2 Strange 1149. Bevis vs. Lindsell. Doug. 315, n. 2.) The judgment on the seventh count in this case admits that the canal company, contrary to their covenant, did take the time within which it should be incumbent on Mr. Randel to perform his contract to be less than four years from the date of that contract. Is it competent then for the defts. to set up, contrary to this admission, that they legally deprived him of his contract within the four years, and thus did not violate their contract, which is, in effect, the plea of abandonment? According to principles before stated and well esta *318 Wished, it is not competent for them to make such a defence. And the matter of abandonment and waiver being out of the way in relation to this count, whatever may be your opinion on that subject, it will be your duty to assess, on this writ of inquiry, such amount of damages as the proof satisfies you the plff. has sustained by reason of this breach of covenant, whether he did in fact unreasonably neglect the work or not. The measure of those damages, and the rule which is to govern you in assessing them, are the same as has been already stated to you in explaining the last breach on this covenant. The plff will also be entitled to damages, by way of increase, for the detention of any sums that the jury may be of opinion he ought to have received from the defts., either for work done or injury and loss sustained; and a suitable rule for increasing such damages would be the rate of interest from the time such sums were due and ought to have been paid. The jury will exercise a sound discretion on this subject. “In the course of the argument of this cause the rules and principles by which this contract is to be construed, have been stated so variously that it is difficult for us to know, as to some of the points, upon what grounds the defence is intended to rest. The counsel who opened this case, on the part of the defendants, took up the position that the plff was dismissed from the contract, not because he had not' a sufficient force on the work to complete it within the time limited by his contract, but because he would not put this force at such place as the company directed; thus contending that the company had a right to order the plff to work where and as they should direct. But in the argument to you upon the evidence it has been contended that under the contract Handel had the right to execute the work as he saw best; that any orders given him by the company to execute the work according to their directions were illegal, not binding on Handel, and if he obeyed such orders it was a thing assented to by himself; that if any damage or loss was sustained by him in consequence of those orders it was his own folly; and that in this action, which is founded on the contract, he could not recover any thing for the injury thus sustained. Another of the defendant’s counsel repudiates this construction; and contends that the cotcmporaneous exposition given by the parties to this contract, as far as it has been executed, is that which binds them; and whether it be the true or false construction, as it was communis error both are bound by it. In this diversity of construction it is difficult for us to present to you the precise view taken by both sides of this contract. All you and the court can do, however, is to look to the contract itself, and gather from that what its stipulations are, and when these are ascertained they must govern us. The plff. undertook to perform a great work for the defendants. He had the right to perform, generally, this work as might seem best to him, without any control to be exercised over him, either by the company or their engineers; he had the right to begin the work where he pleased and to prosecute the work as he pleased, (with the exception of the third section) so that he did not unreasonably neglect to prosecute it; and the company stipulated that if in any particular by their default he shonld be prevented from using the due and best mode of prosecuting his contract, their engineer shoul certify the damagae and they would pay it. *319 This precludes all idea of their right to interfere with him in the progress of the work. Not a word in the contract conveys such an idea; and he had a right to place his force on any part of the canal which he had contracted to make, and the company had no right to order him to do otherwise. They could not say to him put such a force here or there; and if they did he was not bound to obey. It is true that if the plff. voluntarily adopted and executed these orders he has no right to complain, nor do they afford any ground of damage. We have excepted the third section from these general remarks, and it becomes necessary that we should show you in what respects his right to work as he pleased on this section differed from his rights when working upon other parts of the canal. These are the provisions of the contract in respect to this section: “Price per cubic yard twelve and a half cents. For all earth excavated and placed in bank as required, to within two feet of bottom, eight cents, and when any half mile is completed the balance is to be paid. The contractor shall at all times excavate to the bottom, if in the opinion of the committee of works it can be done with good economy.” This expression, shall at all times go to bottom when in the opinion of the committee of works it can be done with good economy, does not mean that the committee of works shall have power to compel Randel to complete this section in a day or a week or any limited time short of the four years, which the contract gave him to complete it in; nor did it give them the power to direct what number of men he should employ upon it, nor with what machines or means he should execute the work, nor at what times or periods he should work upon it. These were all discretionary with the plff. But as we understand this clause it means this: that whenever Handel chose to work on this section of the canal, the committee of works, if they deemed that it could be done with good economy, might direct him to go to bottom. But no order of this description accompanied by a resolution that he should receive no pay till he did go to bottom was binding on him; for the contract expressly stipulates that when he shall have gone to within two feet of bottom he shall receive eight cents per cubic yard, and when a half mile shall be excavated to bottom the remaining four and a half cents is to be paid. Perhaps when the parties made this contract they had it in contemplation that when any half mile should be excavated to within two feet of bottom then the committee of works might direct him to finish that half mile, without proceeding further until that was accomplished. But they had no right to direct what force he should employ upon it. We have been required by both sides to give you our opinion on this clause of the contract. “Both banks (that is the towing path and the bank on the opposite side of the canal) shall be constructed of the best earth which the adjoining excavation will give, in a workman-like manner.” It is contended on the one side that Handel was not obliged by his contract to go beyond the adjoining exeavation for the material of which the banks were to be constructed; the adjoining excavation being the canal on the one side and the back drains upon the oher. On the other hand it is contended that this *320 comes within the scope and meaning of the clause in relation to alterations and deviations. That clause provides that during the progress of the work the plff. will at all times conform to such deviations from the present line of the canal, and to such alterations in the form, slope, and dimensions of the banks, towing paths, or any other of the said works as the company or their engineer shall direct. These other works were the harbor, back-drains, &c. In the form, slope or dimensions of any of these alterations might be directed, and the plff. was bound to conform; and damages for any such deviations or alterations cannot be recovered in this action. But it is no where stipulated that the material of which the banks or other works were to be constructed may be changed. The plff. had a right to use the mud from the adjoining excavation to construct the banks, and if he made them in a workmanlike manner, and as well as the material provided would allow, he did every thing that his contract required of him.” We have been further requested by the defts. counsel to say to you, as we do, that the stipulation entered into in the sub-contracts of the plff. with his sub-contractors by which he directed them to obey the orders of the engineer-in-chief of the defts. did not impose on the said engineer a duty to give orders to the sub-contractors to go to bottom on section three, so as to constitute a default of defts. by reason of the omission to give such orders; and we add, that, according to our construction of the contract, the omission to order either Randel or his sub-contractors to go to bottom on section three, was not a default of the company or of their engineer, nor can it be a ground of damage; for Randel had the right to go to bottom, and to order his sub-contractors to go to bottom, if he chose so to do, without any orders from the company. We have now, gentlemen of the jury, gone through those prominent and important points in this cause that particularly required from us a notice. The case is one of such magnitude, and embraces so many topics of consideration and remark, that it has been impossible for us to take any other than a very general view of it. Our only object has been to direct your attention to the proper points of inquiry; and to give you certain general and comprehensive rules as a guide in the investigation which you will have to make. The case now rests with you. Examine it, gentlemen. Investigate it with that patience which has hitherto, in the course of this tedious trial, so laudably distinguished you; and for which you are entitled to the thanks of the parties, the court and the public. Persevere in this laudable spirit; go to bottom; and let this cause, distinguished as it has been in many of its features, above all others heretofore tried in this State, be still more signally distinguished by thpropriety and justice of its determination. The jury retired on Tuesday evening, January 21st, and returned into court the following Saturday, at noon, with the following verdict: And now to wit, this ninth day of December, in the year of our Lord one thousand eight hundred and thirty-three, thirty jurors having been, by the sheriff of this county, duly summoned, returned *321 and impannelled, out of which number a jury, to wit: John Clark, James Roberts, Baymon Deakyne, Thomas Morrison, George B. Meteer, Israel Garretson, Thomas Robinson, Jacob Whiteman, John W. Evans, Arthur J. Whitely, James C. Mansfield and George Poote, being duly drawn, who, after all causes of challenge allowed did appear at the bar, and were duly sworn and affirmed, well and truly to inquire and true inquisition make and return of the damages and costs sustained by the plaintiff on occasion of the breach of covenant in the seventh count of the declaration in the said cause mentioned and set forth, and well and truly to try the issues joined in this cause wherein the said John Randel, junior, is plaintiff, and the Chesapeake and Delaware Canal Company are defendants, and to speak the truth of and upon the premises, and a true verdict render according to the evidence. And the said cause and the inquiry aforesaid, and the trial of the issues aforesaid progressing from day to day, afterwards, to wit: on the twenty-fifth day of January, in the year of our Lord one thousand eight hundred and thirty-four, the jurors aforesaid, upon their oaths and affirmations, respectively, do return an inquisition, under their hands and seals, in the words following, to wit: In the matter of the seventh count of the plaintiff’s declaration, as amended in the above cause, and the judgment for the said plaintiff thereon. Inquisition made, indented, taken and returned in open court of the Superior Court of the State of Delaware, held at Newcastle in and for the county of Newcastle, on the twenty-fifth day of January in the year of our Lord one thousand eight hundred and thirty-four. Prout the said declaration the proceedings and the judgment thereon. Whereas, in and by the said judgment, it appears that the demurrer of the said the Chesapeake and Delaware Canal Company to the seventh count of the said declaration, being the fourth additional count of the said declaration contained, confesses the said contract or articles of agreement so set out on oyer as aforesaid, and the fact that the said the Chesapeake and Delaware Canal Company did take the time within which it should be incumbent on the said John Randel, junior, fully to perform and complete his contract to be less than four years, from and after the first day of May next ensuing the date of the said articles of agreement, and the matters and things aforesaid being also in full proof before this inquest: And whereas, heretofore, to wit: on the twenty-first day of November, in the year of our Lord one thousand eight hundred and thirty-three, the justices who gave the interlocutory judgment on the said seventh count of the said declaration did (at the motion of the plaintiff in the action wherein the said judgment was given) make their order in the nature of a writ of inquiry to charge the jury attending at this court being the next court after the said judgment was given, to inquire of the damages and costs sustained by the plaintiff by reason of the breach of covenant in the said count mentioned: And whereas, at this court afterwards, to wit: on the ninth day of December, in the year last aforesaid, came a jury to the bar, to wit: John Clark, James Roberts, Baymon Deakyne, Thomas Morrison, George B. Meteer, Israel *322 Garretson, Thomas Robinson, Jacob Whiteman, John W. Evans, Arthur J. Whitely, James C. Mansfield and George Foote, discreet, judicious and lawful men, being a jury attending at the next court after said interlocutory judgment was given, who were duly sworn and affirmed as the law requires, well and truly to inquire and true inquisition make and return of the damages and costs sustained by the plaintiff on occasion of the breach of covenant in the said seventh count of the declaration in the said cause mentioned and set forth, and the said jury being charged to inquire of the said damages and costs, and the said inquiry being made and evidence given in open court, and the inquest having considered thereof until this day, they do now forthwith return this their inquisition under their hands and seals, and they the said jurors do find upon their oaths and'affirmations, respectively, that John Randel, junior, has sustained damages by reason of the premises and on occasion of the said breach of covenant in the sum of two hundred and four thousand seven hundred and sixteen dollars and thirty-six cents, lawful money of the United States of America, and they also find that the said plaintiff has sustained costs by reason and on occasion of the premises in the sum of five hundred dollars of like lawful money. J. M. Clayton, Rogers, Read,jr. and Ingersoll for plaintiff. J. ¿1. Bayard, Frame and Jones for defendants. In witness whereof, we have hereunto, respectively, set our hands and seals the day and year aforesaid. And the jurors aforesaid, on the day and year last aforesaid, upon their oaths and affirmations, respectively, do further say, that they find for the plaintiff and assess the damages sustained by him on occasion of the first and second breaches of covenant in the second count of the declaration mentioned and set forth, at the sum of thirteen thousand dollars, lawful money of the United States of America; on occasion of the third, fourth and fifth breaches in the second count, and the fourth and eighth breaches in the third count of the said declaration mentioned, at the sum of four thousand three hundred and fifty-eight dollars and seventy-nine cents, of like lawful money; and on occasion of the fifth breach in the third count of the declaration mentioned at the sum of four thousand three hundred and ten dollars and sixty-nine cents, of like lawful money, making in all, besides the damages assessed in the inquisition aforesaid, the sum of twenty-one thousand six hundred and sixty-nine dollars and forty-eight cents, with six cents costs besides the costs expended; and as to the other breaches of covenant in the said declaration mentioned, the jurors aforesaid find for the defendants. Judgment nisi at fifty-five minutes past one o’clock, P. M.