C. P.] ever. GRILL V. THE GENERAL IRON SCREW COLLIER COMPANY (LIMITED). This objection, therefore, has no solid foundation, and only amounts to this, that the questions were put by word of mouth instead of being read from a written paper, and that being so, I think my Lord was right in allowing the depositions to be received in evidence. If it be any satisfaction to the defts., I should desire to say that, having read the examination by this gentleman, I cannot agree that he showed any want of either mercantile or legal acuteness. Now we have to discuss the really important questions in the case. The first of them which was reserved is, whether the loss which took place under the circumstances of this case was a loss in respect of which the defts., as shipowners, would but for the exemption in the bill of lading have been answerable to the plt. as a shipper, yet that it falls within the exceptions in the bill of lading, either as being a loss caused by a barratry, or by perils of the sea. And first with reference to whether it was a loss by barratry. For the purpose of deciding that question, of course it is necessary for the court to be satisfied whether a barratrous act appeared on the evidence, and that the reasonable conclusion from the evidence was that the act by which the loss took place was something barratrous on the part of those on board the Black Prince. The Araxes appears to have been steering on her right course; there is no proof of any negligence whatever on her part. She appears first of all to have seen the Black Prince some five miles off on her starboard bow. Her helm was ported so as to bring the Black Prince on her port bow, and in that position they remain till shortly before the collision; the collision being that the Araxes ran into the Black Prince on her starboard side about midships, whereupon the Black Prince sank, and the goods on board of her belonging to the plt. were entirely lost. It must be admitted that the proper view of the conduct of the parties was, that while the Araxes was right in porting her helm, the Black Prince must at some period have starboarded her helm. There being no circumstances shown to justify a departure from the rule which requires both vessels to port their helms, necessarily, the Black Prince, or those on board of her, were in fault. It did not follow what was the extent of that fault. Any amount of negligence might be set down such as would make the owners liable, at any rate, for an amount of negligence up to an act of misfeasance, or even an act of malfeasance, so as in the latter case to surpass negligence altogether. The evidence appears to have come from the people on board the Araxes, and no evidence was given by people on board the Black Prince. There was no evidence either way of whether what was done was done wilfully or only by default. Under these circumstances, apart from the statute, it would hardly be contended, I suppose, on the part of the defts. that this was a proof of barratry, barratry consisting of something done in fraud of the owners. It is not like the case referred to in the argument, in which it has been held that the master, by using the vessel in smuggling, or for some other unlawful purpose, without leave of the owner, although he intended that the owner. should have the benefit of the adventure, was guilty of barratry. Those cases do not at all prove the propriety of the definition contended for, for this simple reason, because nobody has a right to risk the property of another in wilfully doing an unlawful act without his leave, whether his intention be to benefit him or not. It is that sort of intention one sometimes hears of in a case of forgery. A person puts another's name to a bill, and on the part of the prisoner it is urged that he had large expectations of money from some one, and was sure to have the money in his pocket so as to take up the bill, and intended to do so. The answer to which is, that he had no right to [C. P. incur the risk of his being in funds, and had no right to put his good intentions against the peril to which he exposed the person who took the forged instrument, or the annoyance to which he put the person whose name he thought proper to use. His good intentions are utterly immaterial. That, I take it, is the explanation of why the master, in doing an act which is obviously unlawful, though he chooses to take the risk of being punished and intends the owner to get the benefit of it, if he has not his leave to incur the risk, does a barratrous act. It must be an unlawful act wilfully done which occasions the injury. Here there is no evidence that the act done was of such a character that it was barratrous. But it is said that the effect of the statute is to make it by a fiction of law a barratrous act; because the statute says that if damage shall accrue from the non-observance of any of the regulations set down, it is to be deemed to have been occasioned by the wilful default of the person in charge of the ship; and it is said that by reason of that provision it must be taken for all purposes, among others for the purpose of this case, that the helm was wilfully starboarded by the persons on board the Black Prince, and that the collision was therefore caused by an act that was barratrous because an act contrary to law and an act which redounded to the disadvantage of the owners. Upon consideration I am unable to arrive at that conclusion. The statute in question was certainly not passed with a view to determine cases of the description of that now before us; questions arising upon a contract between the shipper and the shipowner. That statute was passed with a different intention, namely, for the regulation of ships and for determining the rights of shipowners inter It appears from the case cited from Swabey's Reports, that it was thought by Dr. Adams, thas the expression “wilful default" might be construed to mean malfeasance; but it was held in that case by the learned judge of the Admiralty Court, that the statute had no such intention as that, and that the words "wilful default," which I think it must be admitted are rather unhappily chosen, were chosen for the purpose of expressing that the ship on board of which the blunder has been made of not porting the helm, under the circumstances in which the rule applies, was to be considered the ship which was in fault; and that, unless the person on board could explain why he did not port the helm, he must be answerable for the like consequence, as if he had wilfully abstained from doing so. That appears to me to be strongly confirmed by the subsequent Act. For the purposes of this case we are dealing with the 17 & 18 Vict. ; but the court is at liberty to see how the Legislature dealt with the subject in the subsequent Act, and, looking at the 25 & 26 Vict. c. 63, I find that wilful default is still referred to, and that in sects. 27, 28, and 29, provision is made with reference to what is to be the presumption the court should act on in case of collision; and by sect. 29, "If in any case of collision it appears to the court before which the case is tried that such collision was occasioned by the non-observance of any regulation made by, or in pursuance of, this Act, the ship by which such regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the court that the circumstances of the case made a departure from the regulation necessary." Therefore, when it was seen what difficulties presented themselves in the case in Swabey, and the Legislature came again to deal with the subject, it excluded any doubt by showing that "wilful default" was not used in any case which would exclude the conclusion that the act was a negligent one for which the owner of the vessel was liable. I consider, therefore, that the statute was passed not for the purpose of altering C. P.] GRILL V. THE GENERAL IRON SCREW COLLIER COMPANY (LIMITED). [C. P. the rights of parties who were contracting with one the case of Lloydv. The General Iron Screw Collier Comanother, but, as far as the learned and very able pany, which, so far as I have been able to turn the arguments which we have heard has enabled me to matter over in my mind, is supported by the case of judge, I think I may say that "wilful default" is Phillips v. Clark in this court. It will not require not an expression of art, and for the reasons I have very much diligence to find, on the authorities stated I think it is loosely used simply for the purpose referred to, and on what has been called the general of showing first, that the vessel is in fault, and mercantile law, abundance to show that this is no secondly, that the person who is on deck is to be new doctrine, and I would make no further remark called on in any proceeding against him to explain on this part of the case beyond saying that the same his conduct in not complying with the Act, and question arose at the trial of the issue as is raised that he is to be considered as in "wilful default," on the replication on which the Court of Ex. proand punishable as a person who has wilfully neg-nounced judgment, with one exception, and that lected his duty, unless he can explain how it was he depends on the use of the word "gross" in the did not comply with the statutory regulations. replication, whereas the learned judge at the trial That is the whole scope of the enactment, and it laid down that with reference to the circumstances appears to me not to affect the question between the of this case gross and ordinary negligence were in parties under the circumstances now brought before effect the same, and although in a portion of the the court. Then comes the question, the importance summing up the word "gross "was used, yet it was of which one could not exaggerate if it was not that accompanied by a statement, in which I entirely the shipowners have the remedy in their own hands concur, that there was no distinction at all for the to exclude, by more precise language, the conse- purposes of this case between gross and ordinary quences which it may be said they have entered negligence. Here we may endeavour to obtain inforinto. That is the question whether, upon the true mation upon the meaning of the word "gross," which construction of the bill of lading in this case, the it was said was improperly rejected or made away loss has happened by perils of the sea within the ex- with in the summing up. So far as the argument pression "perils of the sea" in that document. I do has gone, I have been unable to ascertain what is not propose to say much on this point, because the injury that is complained of by the defts. in not I conceive that it has been already decided in the using the word "gross." What does it mean? No Court of Ex. (Lloyd v. The General Iron Screw one appears to be able to give an answer. I appreCollier Company) in a similar action to the present hend the answer has been given long ago in former brought in respect of the very same collision, and cases, and I own I entirely agree with the dictum of arising upon the construction of the same language. Lord Cranworth that "gross negligence" is ordiBut as reference has been made to the case of insur-nary negligence with a vituperative epithet. That ance as if it was one not sufficiently considered in was the law laid down in Wyld v. Pickford, that case, and not well to be distinguished from the and upheld and recognised in the Ex. Ch. in the case of an action on a bill of lading, I will say a judgment of Crompton, J. in Beale v. The South word upon that. With respect to a policy of insur- Devon Railway Company. The confusion seems to ance it must be remembered that it is a positive con- have arisen in using the word “negligence as if it tract to insure against the perils described, and not was an affirmative word, whereas, in truth, it is a an exception from liability, and therefore it is only negative word; it is the absence of such care, skill, necessary to see whether the perils, in respect of and diligence as it was the duty of the deft. to bring which the assured seeks to recover, come within the to the performance of the work which he is said not description in the insurance in point of fact. More- to have performed. Then if you begin with that, over, I should observe that the general words at the what is the amount of care, skill, and diligence end of the specified perils in the policy of insurance, which a man ought to bring? In the case of a "all other perils that may come to the ship during gratuitous bailment it is said, if you employ a man the voyage," clearly show that, although the perils of no skill to ride your horse, he is bound to use to which the ship has been exposed may have been such skill as he possesses, and that you can require brought about by circumstances not strictly coming no more, and that he is liable for gross negligence within the description of "perils," yet, if a loss hap-in that sense. But, if you employ a man to ride pens by the perils specified, the previous circumstances are to be rejected as immaterial. Therefore you have a question whether the loss happened by a peril of the sea plus the negligence of A. B.; perils of the sea to which the vessel might have been exposed but for the misconduct of C. D. or what not. With respect to the action on a bill of lading, that stands, as it appears to me, on a very different footing. The contract is a contract to carry with reasonable care and safety unless prevented by certain excepted perils; and therefore, when you prove that the damage is caused by one of the excepted perils, but also prove that there has not been a carrying with reasonable care, by reason of which the goods were exposed to the peril, you have conflicting portions of the contract which you must choose between. On the one hand the owner of the vessel promises reasonable care, skill, and diligence from his master and mariners; on the other hand he says, "I am not to be answerable if the accident happens by perils of the sea." How are you to reconcile those? It has been said they may be reconciled by saying that if the accident happens by perils of the sea, but is brought about by want of due care and skill on the part of the master and mariners, you have a breach of the contract before you come to the exception. Whether that is an answer or not it is unnecessary to consider now; we are bound by your horse who professes to be a groom, he would be answerable unless he had competent skill in horse-riding. Therefore the word "gross" is a word which, as pointed out by Sir Patrick Colquhoun in his summary of the Roman civil law, is used as a description, not as a definition. If we have to separate law from fact, and to leave the question of fact to the jury, we could not get nearer to a practical definition of "gross negligence" than such negligence as is actionable; the want of such care, skill, and diligence as it was reasonable to expect under the circumstances. When you are dealing with a bailee for hire as to any act of omission of his in the course of his employment, the want of due care, skill, and diligence, if there be any, is therefore necessarily gross negligence. It is only introducing confusion and tends to mislead the jury, in my opinion, to use the word "gross” instead of using, as my Lord appears carefully to have done over and over again on this occasion, want of due care and skill in navigating the vessel. I apprehend that was clearly a correct summing up, and that the introduction of the word "gross" might even have led to complaint on the part of the plts. that the jury might have been misled by the use of an epithet to which they might have attributed more weight than it really deserved. There is only one point remaining, and I think I now clearly understand what is intended to be repre GRILL V. THE GENERAL IRON SCREW COLLIER COMPANY (LIMITED). C. P.] [C. P. sented to the court, which is this, that this not being | it is hardly to be contended that there was barratry an action by the Araxes against the Black Prince, but so as to bring the case within the exception in the by the owner of goods on board the Black Prince, bill of lading. I entirely agree with Willes, J. who undertakes to show that the damage happened that the words in the statute have not that effect. to his goods not by perils of the sea, but by the It is clear to my mind that it was not the object of negligence of the crew; he does not sustain that the Legislature to alter the effect of contracts made issue, which rests upon him, by showing merely that between the shipowner and merchant; and, looking the collision between the two vessels happened by the at the whole scope of the Act, it certainly does not negligence of the crew on board the Black Prince, seem to have been the intention to release the owner but he must go further and show that the collision of the offending ship from the consequences of such and other circumstances up to the point of the an act. The next part of the rule relates to the sinking, by which the goods were lost, were caused motion for a new trial; and the first ground is, that by the negligence of the people on board the Black | the judge ought to have told the jury that the lo Prince, and not with any contributory negligence on was caused by a peril of the sea within the exception the part of the Araxes. And the argument went of the bill of lading. That raises very much the further; it was said that if the Araxes could have same question as arises on the replication; but it is stopped so as not to impinge with such violence upon said that my Lord ought to have told the jury the Black Prince, though she was not bound to that the foundering of the ship was immediately do so, yet, if she had done so, peradventure the caused by the perils of the sea and that the negligence collision would not have been accompanied by a loss of the crew, being the causa causans of that effect, of the goods. I have taken great pains to under- had no effect on the perils. It seems to me stand this point, because of one's difficulty in appre- that would have been directly in opposition to the ciating it, but I think it comes to this; given that judgment of the Court of Ex., and it is sufficient to there was negligence on the part of the people on say that I think my Lord was bound by that decision board the defts.' vessel, and that if there had not at Nisi Prius, and that we are bound by it here. been the negligence the goods of the plt. would not The next ground is, that my Lord ought to have left have been lost, still the deft. seeks to divide the to the jury the question whether there was gross operation of collision, and so qualify his own wrong- negligence. I conceive my Lord put the case with ful act, and to say that though what took place perfect propriety in the direction that he gave to would not have taken place if there had not been the jury, and it has not been suggested at the bar negligence, yet there were other circumstances in what way he could have put it differently, unless which might have intervened and did not, and he had used the word " gross " which is found in which, if they had, would have prevented the loss the replication. I think it is a word which is inaccruing. That either means that the Araxes was definite in itself, and which, without explaining negligent, or it does not. If it means that the what he meant, would not have tended to enlighten Araxes was negligent, I should like to have pointed their minds as to the question they had to deter out where she was negligent. The fact is, there is mine. There is no doubt that the expression “gross no evidence of wrong on the part of the Araxes. If negligence" is to be found in some of the decisions, she had backed, and slowed, and fumbled about the but it is only one mode of expressing, perhaps, that Black Prince, she might have done more damage. If in a particular case there is a less degree of care it was not wrong for the Araxes not to back, the required than there might be in other cases; and fact of her not having done something which she when you have to define between "negligence" and was not wrong in not doing, and which it was not gross negligence" it certainly seems to be inore part of her duty to do cannot qualify the damage scientific and more intelligible to define what are which the defts. are to pay for their wrongful act. the degrees of care than to attempt to say what are That brings me to the point which is perfectly clear, the degrees of negligence. As I read the replica and which is scarcely matter of authority, but for tion, it would have stood equally well without the which there is an authority in Davis v. Garratt, 6 word "gross;" the question is, whether there was a Bing., that if a man does a wrongful act, and a con- want of that due care, skill, and diligence which a sequence follows as the ordinary consequence of captain and crew ought to bring to the service of such act, he cannot get rid of that consequence the ship. The other point of misdirection is, that without showing that it must have happened if he my Lord ought to have asked the jury whether, had not done the wrong. All the points in this although the collision was caused by the negligence case appear to me, as I have already stated, to be of the Black Prince, the foundering of the ship points of great importance; the court is exceedingly and the loss of the cargo was not caused by the thankful to counsel for the assistance which they negligence of those in charge of the Arares. It have rendered it in the course of the argument, and seems to me that the argument on that point might upon the whole it appears to me that on none of the prevail if there were facts to justify it; but I think points ought the rule to be made absolute. there is an utter absence of facts which would have justified my Lord in putting such a question to the jury. As far as the evidence goes, there was no want of care on board the Araxes, and it is matter of pure speculation by the counsel for the defts. to suggest that something might have been done on board the Araxes which might have prevented the collision, or might have rendered it less injurious than it was. There is no other point except that which arises on the replication, which, as I have said, is very much the same question as arises on the first ground for a new trial. There is certainly one other point which in this important case one would hardly have expected, that is, that the depositions were improperly received by my Lord. Now, my Lord could not have refused to have accepted those depositions, unless they had been taken without authority, and the counsel for the defts. have scarcely contended for so wide a proposition as that. It seems to me that they were taken with authority, M. SMITH, J.-I also think that the rule should be discharged. [His Lordship stated the facts.] It is contended that starboarding the helm was in contravention of the positive rule of the Merchant Shipping Act, and, being so in contravention of law, that it was barratry on the part of the master. Sect. 299 of the Act and the evidence fail to establish any such case. It was perfectly consistent with the facts proved that those on board the Black Prince were asleep, or that those who ought to have been on deck were asleep below; and it would be strange to say that, though the act of going to sleep may be wilful, yet, if the master or men in charge of the deck are asleep, and an accident is occasioned thereby, that would be barratry within any definition which has hitherto been given. Take the case of the master getting drunk, which is a more wilful act. If an accident was caused by his want of care, 66 CHAN.] RUMMENS v. ROBINS. and that, if there had been any irregularity in the mode of taking them, the proper method of taking advantage of that would have been to apply to the court to have them suppressed, certainly not to wait until the trial and then take objection to their admissibility. Upon all these grounds, therefore, I am of opinion that the rule should be discharged. ERLE, C. J.-I have nothing to add to the observations of my learned brothers, except that I am authorised by my brother Keating to say that he concurs in the judgment which my brothers Willes and Smith have delivered. Rule discharged. The word "gross" was struck out of the replication, and the defts. had leave to appeal, on the ground of barratry, and that the loss was caused by perils of the sea. Attorneys for the plt., Pritchard and Son. Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART ROCHE, Esqrs., Barristers-at-Law. July 10 and 11, 1865. (Before the LORDS JUSTICES.) Specific performance-Contract-Uncertainty-Delay in acceptance-Right to revoke. The plt. entered into an oral agreement with the defts. for the purchase of a piece of land, and it was agreed that the latter's solicitors should send him a letter for the purpose of reducing the terms into writing. They accordingly wrote, specifying price and other terms, and added: "There will be the usual clauses in a contract, and some limitations as to the length of title to be shown, and other minor details: Held, that there was such great uncertainty introduced into the contract by this passage as to render it in effect no agreement at all, and a demurrer to a bill by the purchaser for specific performance was allowed, and leave to amend refused. Subsequently to this letter the defts.' solicitors sent to the plt.'s agent a draft contract, which was not accepted nor in any manner acknowledged by the plt. for about ten weeks, when, in answer to the defts.' intimation that they treated the contract as entirely off, the plt. replied that he insisted on the purchase being completed: Held, that in view of this delay the defts. were fully entitled to revoke the contract. This was an appeal by the defts. in the suit from an order of Stuart, V. C., overruling a demurrer which they had filed on the ground that the bill did not show the existence of any written memorandum of the contract sought to be enforced, and for want of equity, under the following circumstances: The material statements of the bill, which was for the specific performance of a contract for sale of a piece of land in the Dartmouth-road, Hammersmith, were, That in May 1864 Mr. Marsh, auctioneer and estate agent, was employed by the plt. to negotiate for the purchase of the land in question, the property of the defts. That in the course of the negotiations letters [CHAN. passed between Mr. Marsh and Messrs. Warry, Robins, and Co., the agents of the defts., in which the latter informed the former that the price required as ground-rent for the land was 2001. per annum, to which Mr. Marsh replied that on behalf of his principal he should like to know the selling price for the fee; and later, on being supplied with a tracing of the land, he wrote to offer 22501. for 2a. 1r. 6p. as freehold, including the ditch on the south side. That this offer was declined, and on the 28th June 1864 an interview took place between Mr. Davies, a clerk in Mr. Marsh's service, and one of the defts., when a verbal contract was entered into for the purchase by the plt. of the piece of land on the terms stated in the next letter; and it was then mutually agreed that such letter should be written by Messrs. Warry, Robins, and Burges, on behalf of the defts., for the express purpose of reducing into writing the terms already verbally agreed upon at the said interview. The letter was accordingly written to Mr. Marsh on the 29th June 1864, and was in these terms: Dear Sir,-Hammersmith land. In reference to our last interview with Mr. Davies, we now write to say that we shall be ready to enter into a contract to sell the piece of land containing about 2a. 1r. 6p. on the following terms:-Price 2600Z, 1000l. to be paid on 29th Sept. next, and the balance to remain charged on the land for three years at 5 per cent. The vendors will convey all such rights to the ditch on the south side as they possess, and it is believed their title to it is good. The vendors will require to be satisfled that the land is not depreciated during the three years the money remains, and the buildings to be erected on it must not tend to lessen the value of the opposite property belonging to the vendors. The purchaser will have to bear a share of making up the road a sewer in the Dartmouth-road, and we believe the owner of the cottages in the rear is ready to enter into an arrangement to permit access to the south side of the piece of land by means of the road in front of his cottages. There will be the usual clauses in a contract, and some limitations as to the send you draft contract? Yours truly, length of title to be shown, and other minor details. Shall we WARRY, ROBINS, and BURGES. That this letter contained the terms previously agreed upon, and that Mr. Davies, on the 30th June, wrote requesting that the draft contract might be sent, leaving the name for the present in blank, and on the 14th July the draft contract was accordingly sent. It was to the effect that the defts. agreed to sell, and that agreed to buy, at the price of 2600l. the customary inheritance in fee-simple of the said piece of ground, and the first three clauses provided for the mode and time of payments of the purchase-money, for the delivery of the abstract of title, and the making of objections, thereto, &c., and that the title should commence with a conveyance dated the 7th Jan. 1843. Then the fourth term of the contract was as follows: No evidence shall be required of the identity of the premises described in the said deed of the 7th Jan. 1843, on which there is a plan, other than may be afforded on such purchasedeed. The eighth term was thus: The vendors will enfranchise the said piece of ground and other lands at their own expense. The purchaser shall not be entitled to call for the production of, or to investigate or make any objection, in respect of the title of the lord, or require any evidence of his right or power to make such enfranchisement. The ninth term: The purchaser is, when called on, to pay a moiety of the expenses of making, completing, and keeping in repair, and constructing a sewer therein of that portion of the Dartmouthroad marked -to on the said plan.. The tenth paragraph was: The purchaser is to make no requisition in respect of the title shown to, or the possession of, the ditch on the south side of the said piece of ground. The eleventh was: The vendors being the owners of other building land opposite to the said piece of ground, which land is in no way to be depreciated by the buildings to be erected on the said piece of ground, the purchaser is to submit any plans and elevations for building on the said ground for the approval of the vendor's surveyor, and to obtain his approval of the same in writing before commencing any buildings thereon. That Mr. Davies immediately sent the draft contract to the plt.'s solicitor for the purpose of completing the sale, but that by reason of the intervention of the long vacation, and the absence from London of the plt. and his solicitor, some delay arose in the final settlement, and on the 21st Sept., before the plt. or his solicitor had returned to town, Mr. Marsh received from Messrs. Warry, Robins, and Burges a letter of that date stating that they should treat the matter as entirely off. To this Mr. Davies replied that he had communicated with his principal, who was then in Wales, and who, as far as he was aware, had not the slightest idea of giving up the purchase. That several interviews took place subsequently to this letter, in which the defts." solicitors adhered to their determination, and on the 12th Dec. the plt.'s solicitor wrote to them that he was willing to return the contract approved on behalf of the plt. if they would express the willingness of their client to complete, but that if no answer were returned within a week he was instructed to file a bill for its specific performance. That no answer was returned, and the bill was filed, praying that the defts. might be decreed specifically to perform the contract upon the terms contained in the letter dated the 29th June 1864. The defts., as already stated, demurred to this bill; the learned V. C. overruled the demurrer, and they then appealed against his decision. Southgate, Q. C. and Bush, for the appeal, contended that there was no positive agreement whatever, and that the letter of the 29th June 1864, if it were to be taken as anything more than a proposal for an agreement, was so uncertain that the court could not decree specific performance of it. But if these arguments failed, the defts. had the right, after the great delay on the plt.'s part, to treat the agreement as revoked. Bacon, Q.C., Greene, Q. C., and W. Wyllys Mackeson supported the bill, and argued that there was an oral contract reduced into writing by the letter dated the 29th June. There was no uncertainty but such as the court would remove in chambers; and though the letter referred to a draft contract which was then to be prepared, that did not deprive the letter of its character as a contract. The following authorities were cited: Thomas v. Blackman, 1 Coll. 301; [CHAN. the terms contained in the letter of the 29th June differ almost incessantly; they differ according to Wood v. Midgley, 2 Sm. & Giff. 115; and on appeal, form any notion. "Other minor details" I pass 5 De G. M. & G. 41; Foule v. Freeman, 9 Ves. 351; Morgan v. Holford, 1 Sm. & Giff. 101; Owen v. Thomas, 3 Myl. & K. 353; Morris v. Wilson, 5 Jur. N. S. 168; Southgate having replied, Lord Justice KNIGHT BRUCE said:-This is an appeal from an order made by one of the learned V. C.'s overruling the demurrer. The defts. are here contending that the demurrer ought to be allowed. The prayer of the bill is merely this: "That the defts. may be decreed specifically to perform the contract for sale of the said lands upon over without laying any stress on them. There are sufficient terms in this paper to show it is a contract incapable of being specifically performed, incapable of having its performance enforced. Now the prayer of the bill is confined to this letter, which, as I have said, appears to me to be impossible of performance. But there are other statements in the bill which it is fair to the plt. to have regard to, and it is possible that those subsequent statements may set the case of the plt. up. But thus much appears to me to be plain, that down to the statement of the signature of Wary, Robins, and Burges to this letter of the 29th June there was no performable contract at all, and if there is now any contract it must arise from something subsequent. We must, I repeat, look upon the vendors as thus far |