C. B. 906 (E. C. L. R. vol. 62), 14 C. B. 428 (E. C. L. R. vol. 78), 15 C. B. 464 (E. C. L. R. vol. 80), 18 C. B. 561 (E. C. L. R. vol. 86), Harrison v. The Great Northern Railway Company, 11 C. B. 542, 815 (E. C. L. R. vol. 73), 12 C. B. 576 (E. C. L. R. vol. 74), Aulton v. Atkyns, 18 C. B. 249 (E. C. L. R. vol. 86). The stipulation for a more formal instrument affords an additional reason for giving a liberal construction to this agreement. [COCKBURN, C. J.-You are, in effect, asking us to import into this agreement a notion that the commissioners referred to can only deal with the corporation. How can we assume that the plaintiff might not have obtained the necessary assent and approbation?] The assent and approbation of the respective commissioners must of necessity be given to the corporation, who alone could act upon them. (a) The replication to the fifth *plea in substance sets out the whole of the specification upon which the agreement [*663 is founded. It appears, that, after the plaintiff's tender for the works therein described, the specification was altered by striking out a portion, and the agreement was made referring to the specification so altered. The reservation by the defendants of the power of proceeding with only a portion of the works, or the whole, as might be determined on, is repugnant and inconsistent with the sense in which the agreement is to be read, taken all together. The court will reject a provision the use of which is obviously gone. [COCKBURN, C. J.-There is no provision in the *contract that the corporation shall have [*664 power to withdraw from the second portion of the works: and it may be a question how far the agreement is to be controlled by the specification, which is referred to, but not incorporated into it.]

Lush (with whom was J. Brown), contrà.(b)—There is no contract. on the part of the defendants to procure the assent and approbation (a) The 36th section of the 14 & 15 Vict. c. xlii., enacts, "that nothing in this act contained shall extend or be construed to extend to enable the said corporation to sell, demise, mortgage, or alienate, for the purposes of this act, without the approbation of the lords commissioners of Her Majesty's treasury, or any three of them, any messuages, lands, tenements, or hereditaments which they could not have sold, demised, mortgaged, or alienated without such approbation before the passing of this act, anything in this act to the contrary notwithstanding."

And s. 39 enacts "that nothing contained in the recited acts or in this act shall extend to authorize the company to purchase, take, or use any land or soil, or any rights in respect thereof, belonging to Her Majesty in right of Her crown, without the consent in writing of the commissioners for the time being of Her Majesty's woods, forests, land revenues, works, and buildings, or any two of them, first had and obtained for that purpose, and which such commissioners, or any two of them, are hereby authorized and empowered to give, or to prejudice, diminish, alter, or take away any of the rights, privileges, powers, or authorities vested in or enjoyed by Her Majesty, her heirs and successors."

(b) The points marked for argument, on the part of the defendants, were,

"1. That the deed contains no covenant, express or implied, on the part of the defendants, to procure the consents of the authorities mentioned in the contract:

"2. That, by the contract between the parties, the defendants had an option to do or to abandon the second portion of the works."

The 59 G. 3, c. exviii., for paving, &c., the town of Harwich, "The Lands Clauses Consolidation Act, 1845" (8 & 9 Vict. c. 18), and "The Harbour, Dock, and Pier Clauses Consolidation Act, 1847" (10 & 11 Vict. c. 27).

referred to in the agreement: all they contract for is, that, if the works are to be done, the plaintiff shall do them, and they will pay for them. The defendants could not use crown lands without the consent in writing of the commissioners of woods and forests, or pledge the corporate property, or the rates and tolls of the borough, without the approbation of the lords of the treasury. The plaintiff, therefore, might well contract to see that that assent and approbation were obtained; and such a matter might very properly be placed as a qualification of his covenant to do the work. Assume that it is a condition inserted for the benefit of both, the court cannot, it is submitted, imply therefrom a covenant on the part of the defendants to obtain the assent and approbation of the respective commissioners. Would they be bound to accept such assent upon whatever terms the crown might choose to impose? Rashleigh v. The Eastern Counties Railway Company, 10 C. B. 612 (E. C. L. R. vol. 70), was a much stronger case than this. There, Maule, J., in delivering the judgment of the court, lays down *the true *665] principle by which the decision of this case will be governed. "It was rightly conceded on the argument," he says, "and is undoubted law, that no particular word, or form of words, is necessary to create a covenant; but that any words are sufficient for that purpose, which show an intention to be bound by the deed to do or omit that which is the subject of the covenant: any such words are sufficient, and some such words are necessary, to make a covenant. It was argued, in the present case, that the several covenants by which the defendants bound themselves to do certain things (as, to build a bridge over the new cut, and fill up the old course of the stream, after it had been diverted, and to reconvey the slip forming the new course of the river,) which are incidental to, or to be done after, the new cut is made, and the stream diverted, being in their terms absolute, and not conditional on the making of the new cut and diversion of the stream, show a clear intention that the defendants meant to bind themselves to do that principal act of making the cut and diverting the stream, to which the things which they in express terms absolutely covenanted to do were identical. But we think that such an intention cannot properly be inferred: the true inference, as it appears to us, is, that the parties to the deed both of them expected that the new cut would be made, and the stream diverted, and entered into the contract in question under that expectation, treating it as a thing that was certain to take place, and providing for that event only: but it by no means follows from this state of things that the parties intended that the defendants should bind themselves by the deed to make the cut, and divert the stream, any more than a covenant to lay down the permanent rails, or to complete the railway, is to be inferred from the covenants to do certain things after those events. No reason has been suggested, why, if the defend

[*666

ants *were really intended to be bound as the plaintiffs contend, in a deed of which the sole object is to express the covenants by which the defendants were to be bound to the plaintiffs, the principal thing to be done by the defendants should be left to implication, and the incidental matters minutely provided for." Every argument used in that judgment is applicable to the present case. If such an important stipulation as this had been intended, it never would have been left to inference and implication. [COCKBURN, C. J.-It must have been contemplated that somebody would obtain the required assent.] It may have been expected: but is it covenanted? Aspdin v. Austin, 5 Q. B. 671 (E. C. L. R. vol. 48), 1 D. & M. 515, and James v. Cochrane, 7 Exch. 170,†(a) are also authorities to show that the court cannot infer a covenant unless the words used evidence a clear and unmistakeable intention in the parties to make a covenant. The cases cited on the other side are all in the defendants' favour, as far as they go. Porcher v. Gardner was disposed of by the remarks that fell from the court. In Wood v. The Copper-Miners Coompany, there was an express agreement upon which the action was founded. In Harrison v. The Great Northern Railway Company, the language used was such that the court could not do otherwise than infer that the company intended to contract for the required number of sleepers. And in Aulton v. Atkins, they declined to draw such an inference from language far stronger than that which is found here. [The court here called on

C. Pollock to reply.-Rashleigh v. The South Eastern Railway Company and Aspdin v. Austin proceeded upon the rule Expressum facit cessare tacitum." In *both those cases the deeds were carefully [*667 drawn; whereas, it is impossible to conceive anything more loose than the agreement now in question. The last-mentioned case is commented upon by Erle, J., in the House of Lords, in Emmens v. Elderton, 13 C. B. 495 (E. C. L. R. vol. 76),(a) where it is put upon its true ground, viz. that it never could have been contemplated that the defendant should enter into an engagement to continue to carry on his business merely for the purpose of employing a workman. Here, the parties contemplate and provide for the execution of a more formal instrument and it would hardly be asking the court too much to call upon them as a court of equity to carry out the intention of the parties in that respect.

COCKBURN, C. J.-It appears to me that there must be judgment for the defendants upon the demurrer to the second breach of the declaration in this case. It is true, that, according to the authorities which have been cited, where it is ambiguous on the face of a deed, by which of the parties a certain thing is to be done which the deed provides

(a) Affirmed in error, 8 Exch. 556.†

(b) And see Elderton v. Emmens, 4 C. B. 479, 498 (E. C. L. R. vol. 56), 6 C. B. 160 (E. C. L. R. vol. 60).

shall be done, the court will endeavour to ascertain from the general scope and tenor of the instrument upon whom is cast the duty of performing it. So, where a covenant may be implied from the general provisions of the deed, though there be no express provision on the subject, the court will give effect to the implied covenant. But the difficulty here is, that, there being no express covenant by the defendants to do that the omission of which is complained of, none arises by implication so clear that we can give effect to it. The corporation of Harwich by the memorandum of agreement in question agree to let to *668] the plaintiff the making, constructing, and *completing of certain works which were authorized to be made under The Harwich Improvement Quays and Pier Act, 1851, according to certain plans and specifications; and they agree to pay to the plaintiff, his executors, &c., all and every sum and sums of money which might thereafter become due and payable to him by virtue of those presents, and in manner set forth in said specification, and to carry out and perform all and every the provisions and stipulations provided in the specification to be carried out and performed. The plaintiff, the contractor, also thereby agrees with the corporation to take the work and to complete the same in manner set forth in the specification, and for the sums and subject to the provisions thereinafter mentioned, viz. certain works. described as "the first portion" of the said works, for the sum of 73187. The agreement then goes on to provide that the plaintiff shall well and faithfully construct and execute "the second portion" of the said works, as described and laid down in the specification and plans, for 49877., subject to the following provisions, that is to say, amongst others, that the assent of the commissioners of woods and forests shall be given to the corporation to carry out the said last-mentioned works so far as the same might affect the property or rights of the crown, and that the approbation of the lords of the treasury shall be given to the corporation to raise the money to pay for the same. It has been insisted, on the part of the plaintiff, that these provisions relate to matters which are to be accomplished by the corporation, the defendants. Now, the first observation which arises upon that, is, that the proviso for the assent of the commissioners of the woods and forests attaches itself to the covenant on the part of the plaintiff for the performance of the works, and by ordinary intendment would operate a qualification of his covenant. But, assuming *that the proviso applies not merely *669] to the plaintiff's covenant, but also to the covenants on the part of the corporation,—which I consider to be at best extremely doubtful, then, there being a total absence of any express covenant on the part of either to obtain, in the one case the assent of the commissioners of woods and forests, and in the other the approbation of the lords of the treasury, it would seem that the parties have entered into the contract upon the mere assumption that these contingencies would come to

pass, and this assent and approbation be given. If that be so, the case comes very much within the principle of Rashleigh v. The South Eastern Railway Company, 10 C. B. 612 (E. C. L. R. vol. 70), where Maule, J., refers the form of the contract to an expectation of the parties that certain things which were contemplated would actually be done, and providing for what was to happen upon that assumption. But the court there held that no implied contract arose on the part of the defendants to do the thing in question. That seems to me to be very applicable to the present case. The parties have entered into a contract to do certain things, upon the assumption that certain necessary assents would first be obtained: but there is no provision, express or implied, to show that either of them took upon themselves the accomplishment of that preliminary step. That being so, it is not competent to the court to make a contract for the parties which they have not thought fit to make for themselves, or to import a covenant which does not arise by fair and necessary implication from the language they have used.

CRESSWELL, J.-I am of the same opinion. The parties have not introduced into their contract words which are sufficient to lead the court to infer that the defendants meant to covenant to obtain the assent and approbation required. The parties may possibly have *con[*670 templated that they would be given; but I find nothing in the agreement to show that the defendants intended to bind themselves to obtain them.

WILLIAMS, J.-I entirely concur in the opinions expressed by my Lord and my Brother Cresswell, and in the reasons assigned by them for holding the defendants entitled to judgment.

WILLES, J.-I must confess I had entertained some doubt in the course of the argument. But, upon looking closely into the agreement, I am unable to find therein any such covenant as the plaintiff's counsel contended for. I therefore agree that the defendants are entitled to judgment on the demurrer to the second breach in the declaration. Judgment for the defendants.

C. Pollock. The plaintiff will have judgment on the demurrer to the second plea.

Lush. The defendants must have judgment on the demurrer to the replication to the fifth plea.

COCKBURN, C. J.-Probably, if the plaintiff consents to go no further upon the judgment, the fifth plea and the replication and demurrer thereon, may be struck out.