insurance, or intend to benefit the insurer, this would not be so. On the other side of the line is the case of Randal v. Cockran (1 Ves. sen. 98). The vendors here have been paid the whole amount of the purchase money, and having also received the amount secured by the policy; on what principle can they keep it? The lien of the vendors on the property was worth something. As to the right to enforce specific performance of the contract I will not add anything to what has been said by Cotton, L.J., who understands that subject better than I do. But why should not the insurers insist on the vendors' lien, and say that the vendors shall not let the purchasers off their contract ? To hold otherwise would make the contract more than a contract of indemnity. Chitty, J. says (8 Q. B. Div., at p. 621): "The contract of sale was not a contract, either

directly or indirectly, for the preservation of the buildings insured. The contract of insurance was a collateral contract wholly distinct from and unaffected by the contract of sale." The answer is, what does it matter? for the beneficial interest depends on the contract being fulfilled; its fulfilment diminishes the loss. If we look at the definition given by Brett, L.J., in Darrell v. Tibbitts (5 Q. B. Div., at p. 563), I think the present case comes within it as it stands, but to the word "affected" I would perhaps add "or which affects." Chitty, J. goes on to say, "The attempt now made is to convert the insurance against loss by fire into an insurance of the solvency of the purchaser." I would answer that in the same way. The insurers do not guarantee the solvency of the purchaser, but it affects the loss against which they have to indemnify the vendor. Again, Chitty, J. says (8 Q. B. Div. 621): "Take the case of a landlord insuring, and the tenant under no obligation to repair, a case which I had before me the other day, where, under an informal agreement evidently drawn by the parties themselves, the large rent of 7001. was reserved, and the tenant, notwithstanding the fire, was bound to pay the rent. I stay here to say that a lease, as has been often held, is but a sale pro tanto. Now assume that the building in such a case was ruinous, and would last the length of the term only. Could the insurers recover a proportionate part of each payment of the rent as it was made, or could they wait until the end of the term, and then say in effect, Yon have been paid for the whole value of the building, and therefore we can recover against you? Or, to vary the case somewhat again, suppose the building at the end of the term was only half the value, could the insurers then recover half of the sum they had paid? I think not. I think all these questions must be answered in the negative, but if the plaintiffs are right in their contention, the insurers could recover in all those cases." The difficulty diminishes if we ask what it is that is insured? Is the learned judge supposing that the insured intend to insure all other interests besides their own? If so, there is no difficulty. If they do not it is an odd case, but to solve it we must try it by the broad principle that the contract is a indemnity, and there is the answer to the difficulty. I have nothing further to add, and I should not have given judgment at such length if it were not for the very great importance of taking the true view of the nature of the contract in such cases as Judgment reversed.

the present.

contract of

[CHAN. DIV.

Solicitors for plaintiff, Gregory, Rowcliffes, and Co., for Laces, Bird, Newton, and Richardson, Liverpool.

Solicitors for defendant, Torr and Co., for Anthony and Imlach, Liverpool.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.

June 7, 8, and 9.
(Before BACON, V.C.)

ENGLISH v. MURRAY. (a)

Vendor and purchaser-Articles of agreement— Condition that purchaser shall assume certain state of things-Failure of title-Specific performance-Compensation.

In an agreement for the sale of seventeen undivided shares of a coal mine there was an article stating two conveyances by which six undivided shares of the land beneath which the coal lay had been conveyed to the vendors' predecessor in title, but stating that there was no express mention in the conveyances of the minerals under the land, and requiring that the purchasers should assume that sia undivided shares of the minerals passed by the conveyances of the land, and thereby became absolutely vested in the vendors' predecessor in title.

In the abstract of the vendors' title sent to the purchasers mention was made of a certain indenture, but nothing further was said about it. The purchasers' solicitor inquired of the vendors' solicitor what this deed was, and was told that it could not be found, and no abstract of it or information about it could be furnished, but that it was believed not to affect the property sold. The vendors' solicitor also said, as he really believed to be the case, that though the title to the six undivided shares could not be strictly proved, yet the vendors had a good holding title to them. After these transactions the purchasers entered into the agreement, and paid the deposit money. Subsequently, the deed which was supposed to have been lost was found, when it was discovered that by virtue of it the six undivided shares of the mine belonged to some person quite different from the vendors, and that neither they, nor their predecessor in title, had ever had any title to those shares. The purchasers refused to proceed with the agreement, whereupon the vendors brought this action for specific performance of it. The purchasers contended that without these six shares the mine would be useless to them, and claimed to be entitled to be released from the agreement.

Held, that, as there had been no fraud in the matter, but the vendors had acted under a bonâ fide mistake, and the purchasers had had the fact that there was a doubt as to the title brought to their notice before entering into the agreement, and had thought fit to run the risk of taking the property without having the matter cleared up, specific performance of the agreement ought to be decreed, but that a deduction must be made from the purchase money as compensation to the purchasers for the loss of the six shares. THIS was an action for specitic performance of an agreement for the sale of certain evin fcoal.

(a) Reported by A. J. HALL, Esq., Barrister-at-Law.

By an agreement dated the 13th April 1876, and made between the plaintiffs English and McKenna, as trustees of the marriage settlement of Thomas Bateman, of the first part, Thomas Bateman and his wife of the second part, and the defendant Murray and Richard Purves, partner of Murray, and since deceased, of the third part, the plaintiffs, with the consent of Bateman and his wife, agreed to sell, and the defendants Murray and Purves agreed to buy, first, the entirety of so much and such part us then remained ungotten of a seam of coal, called the Kilburn coal, under lands situate at Marley, in the county of Derby; and secondly, seventeen undivided thirtieth shares of so much and such part as then remained ungotten of another seam of coal situate at the same place.

The purchase money for the entirety of the Kilburn seam was 3950l., and for the seventeenthirtieth shares 54407. The purchasers paid a deposit on these sums. The purchasers wished to acquire the whole of the secondly-mentioned seam, and work it as an entire colliery, and for that purpose had made arrangements with the owners of the remaining thirteen-thirtieth shares to buy those shares also.

By article 15 of the agreement it was provided that the title to the seventeen-thirtieth shares should commence with certain articles of agreement, dated the 6th Jan. 1785, in which were recitals as to the persons entitled to the land under which this seam lay. It then provided that those recitals should be accepted as conclusive evidence that Hugh Bateman was then absolutely entitled to eleven-thirtieth shares of the coal and minerals under the land, that John Newton was then absolutely entitled to three-thirtieth shares thereof, and that Isaac Liptrot and his wife were then absolutely entitled to another three-thirtieth shares. The article then referred to indentures of lease and release dated the 4th and 5th April 1790, whereby John Newton conveyed his share in the lands under which this seam lay, and all other his lands, tenements, and hereditaments, and shares of lands, tenements, and hereditaments, situate in Marley aforesaid, to Hugh Bateman, and continued, "the same indentures contain no express mention of the said three undivided thirtieth shares of the said J. Newton of and in the coal and minerals under the said lands nevertheless the purchasers shall assume that the same shares passed by the same indentures, and thereby became vested absolutely in the said Hugh Bateman." Indentures of lease and release, dated the 4th and 5th April 1795, whereby the three undivided thirtieth shares of I. Liptrot and his wife (who were then dead) were conveyed by their son to Hugh Bateman, were also referred to, and a similar provision as to coal and minerals was made as in the case of J. Newton.

Article 20 of the agreement provided that if any error or omission in the plan or the description of the property sold should be discovered before the conveyance thereof, it should not annul the sale, but compensation should be allowed in respect thereof, and if there should be any failure to make out the title to any part or parts, share or shares, of the same property, the purchasers should not be entitled to take the remaining part with compensation unless the vendors should consent. The compensation was to be settled by arbitration

[CHAN. DIV.

in the case of difference, but no compensation was to be allowed after conveyance.

Article 28 provided that Thomas Bateman, the tenant for life under the settlement, should enter into a covenant for quiet enjoyment by the purchasers against persons claiming under J. Newton and J. Liptrot, as also against the acts of Hugh Bateman and persons claiming under them.

Before the agreement was entered into an abstract of the plaintiffs' title to the seventeenthirtieth shares was sent to the purchasers. In such abstract mention was made of "a certain conveyance made by George Clifton, Esq., and Anne his wife, to Fletcher and

Fletcher, in or about the year of our Lord 1738." The purchasers' solicitor asked for the production of this deed. The plaintiffs' solicitor answered that it could not be found, and was believed to be lost, and that he could not furnish any abstract of or information about it, and alleged that it did not affect the plaintiffs' title to the seventeen-thirtieth shares. The parties and their professional advisers then had a meeting, and the purchasers, being satisfied apparently that the vendors' solicitor had searched for this deed to the best of his ability, determined to take the property, and entered into the agreement without having the matter cleared up.

In April 1881 the purchasers' solicitor received from the plaintiffs' solicitor a letter in which he stated that he had discovered that by deeds of the 7th and 8th March 1739, George Clifton and Anne his wife had conveyed to Robert Fletcher and John Fletcher one-fifth of all mines of coal under lands in Marley, and that the property conveyed by that deed now belonged to a Mr. Lowe; that probably this was the deed referred to in the abstract which was supposed to have been lost, and that, if so, the plaintiffs were only entitled to eleven of the seventeen-thirtieth shares of the mine.

This statement was subsequently proved to be true, and the purchasers refused to proceed with the contract, saying that it was not a proper case for compensation, which the plaintiffs had offered to give them.

The purchase had never been completed, and no purchase money, other than the deposits, had been paid, but the purchasers had paid interest on the unpaid balance down to the 13th Oct. 1880.

The purchasers still refusing to complete, the plaintiffs commenced this action in Dec. 1881, against Murray and the personal representatives and infant children of Purves, who had died on the 22nd Feb. 1880.

The defendants alleged that, though the plaintiffs had informed the purchasers, during the negotiations for the sale, that they could not prove strictly their title to six of the seventeenthirtieth shares, yet they had said that they had a good holding title to all the seventeen, which had never been called in question; that relying on these statements the purchasers entered into the agreement; that without the six-thirtieth shares the mine was useless to the defendants, as they could not work a bit of a mine; and that the plaintiffs' solicitor might with due diligence have discovered that the plaintiffs had no title to these six-thirtieth shares.

The property was in the same condition as when the agreement was entered into, and the defen

dants asked, by counter-claim, to have the agreement rescinded, and that the money they had paid for deposits, and interest, might be repaid with interest at 5 per cent.

Hemming, Q.C. and J. G. Wood for the plaintiffs. We have done all we could. We warned the purchasers that we could not make a perfect title to the property; they, however, chose to proceed with the matter, so we are entitled to specific performance. We cannot object to their having compensation for the deficiency in the

amount.

Bramwell Davis for Murray-We have a right to have this agreement set aside on the ground of mistake alone, as both parties entered into it believing that to be the case which was not:

Bingham v. Bingham, 1 Ves. sen. 126;

Cooper v. Phibbs, 16 L. T. Rep. N. S. 678; L. Rep. 2 E. & I. App. 149;

Cockrane v. Willis, 13 L. T. Rep. N. S. 339; L. Rep. 1 Ch. App. 58.

But, independently of that, we have such a right on account of the misrepresentation of the vendor, who held himself out as having a good title to all the shares. But supposing the agreement is good, and binding upon us, what does it do? It binds us to assume five things, namely, that (1) Bateman, (2) Newton, and (3) Liptrot had at a certain date certain shares of this mine, (4) that by a certain conveyance Newton's shares passed to Bateman, and (5) that by a certain other conveyance Liptrot's shares passed to Bateman. That may perhaps prevent us from asking for any information from the vendor, but not from obtaining it from any other source, or from matters brought to our notice by the vendor himself:

Jones v. Clifford, 35 L. T. Rep. N. S. 937; 3 Ch. Div.
779;

Smith v. Robinson, 41 L. T. Rep. N. S. 405; 13 Ch.
Div. 148;

Shepherd v. Keatley, 1 Cromp. Mee. & Rosc. 117;
Darlington v. Hamilton, Kay, 550, 558;

Waddell v. Wolfe, L. Rep. 9 Q. B. 515;

Harnett v. Baker, 32 L. T. Rep. N. S. 382; L. Rep. 29 Eq. 50.

The conditions of course could have precluded us from using information acquired from any source, but that has not been done here:

Hanks v. Palling, 6 Ell. & Bl. 659;
Hume v. Bentley, 5 De G. & Sm. 520;
1 Dart's V. & P., 5th edit. p. 150.

The two classes of restrictions are shown in Fry on Specific Performance, ss. 1288 and 1293. The defendants are entitled to an inquiry whether the vendors can show a good holding title:

Re Banister; Broad v. Munton, 40 L. T. Rep. N. S. 319, 828; 12 Ch. Div. 131.

This is not a case where the court will give specific performance with compensation. That would be done where there is an infinitesimal part of the property wanting, not where, as here, onethird is wanting:

Re Arnold; Arnold v. Arnold, 42 L. T. Rep. N. S. 705; 14 Ch. Div. 270.

This contract is entire and indivisible; we want to get the coals over the whole district, and if we cannot get that we ought not to be made to take any part of the seams of coal. The 20th condition, as to compensation, is not applicable to a case of this kind. There was a distinct representation in the agreement as to title which is untrue;

[CHAN. DIV.

we are, therefore, entitled to have the contract rescinded:

Hart v. Swaine, 37 L. T. Rep N. S. 376; 7 Ch. Div. 42.

Horton Smith, Q.C. and Northmore Lawrence for the representatives of Purves.-We adopt the argument on behalf of Murray. Further, the court will not compel a purchaser to take a title, even though he has done what amounts to a waiver of the right to investigate it, if it appear collaterally that the vendor has no title :

Warren v. Richardson, Young, 1.

The court will, no doubt, where the words of the condition are very strong, preclude the purchaser from making use of information acquired aliunde (Lawrie v. Lees, 42 L. T. Rep. N. 8. 485; 14 Ch. Div. 249), but the words must be very strong. Specific performance with compensation will not be decreed where the deficiency in the property is of a material amount:

Dobell v. Hutchinson, 3 Ad. & Ell. 355, 372.

Hemming, Q.C. in reply. In none of the cases cited were the words of the conditions the least like the words here. No doubt where the condition only precludes the purchaser from making requisitions as to certain things he can use information obtained aliunde, but that is quite different from such a case as this, where the conditions require the purchaser to assume a certain state of things. This practically binds the pur. chaser to take the title without questioning it:

Best v. Hamand, 40 L. T. Rep. N. S. 769; 12 Ch.
Div. 1;

Spratt v. Jeffery, 10 B. & C. 249.

The only thing is that the vendor must not ask the purchaser to assume anything which the vendor knows at the time to be false: (Re Banister; Broad v. Munton.) The vendors in this case believed that matters were as they were assumed to be. The court will grant specific performance with compensation, although the deficiency is considerable.

it

BACON, V.C.-This case has been ably argued on both sides, and I must express my satisfaction in having, in so important a case as this undoubtedly is, so much assistance from the gentlemen engaged. The case is one of specific performance of an agreement. The rules by which the court is governed in decreeing specific performance have been the subject of several cases, and I think may be taken to be settled that where there is a plain honest contract between two parties, the meaning of which is not in doubt, and the terms of which are distinctly expressed, the court will do its best, by decreeing specific performance, to carry into effect that which is proved to have been the intention of the parties. Now this case is by no means free from difficulty. It is different from most of the cases referred to, inasmuch as they were decided upon the terms in which the parties had contracted, and the court was obliged to puzzle out for itself what the parties meant, and put its own construction upon the words employed. This is a case of a totally different description. Here the parties, having negotiated for the intended purchase, set about its completion in the most deliberate and cautious manner possible. An abstract is delivered, requisitions upon that abstract are sent in, and are answered as well as they can be answered. The vendors, the present

plaintiffs, proposed to sell the seventeen undivided thirtieth shares in the minerals in question to which they were supposed to be entitled. It was found, however, in answering the requisitions, that they could not furnish plain absolute demonstrative evidence as to six of those shares. That appears upon the requisitions, upon the answers, and from the evidence of two of the witnesses who have been examined here, and the matter went on from the time of the first requisition in which the doubt was raised, up to the date when the agreement was made. That was plainly understood and known by both parties. The vendors believed that seventeen shares belonged to them, but they knew also that they did not possess the means of proving conclusively that of those seventeen shares six might not belong to somebody else. I need not refer to the requisitions and answers further than to mention what took place when the requisitions were brought to the attention of Mr. Bateman, the plaintiffs' solicitor. The answer he gave as to the missing deed was, "We have no such deed, or any such which will answer the purpose that is in view." He then I went to Bath to see the solicitor who had the custody of all the Bateman title deeds, amongst which he made diligent search for the missing deed, and not being able to find it he again said, "The deed cannot be found as to the six shares, and the matter is in doubt." Then both parties wishing to carry into effect the contract for which they had been negotiating, a deliberate meeting took place in London, at which the professional advisers of both sides were present, and there the matter was fully discussed, and it was agreed that no further light could be thrown upon that questionable subject, and that it must remain as it was.

Under those circumstances, all that the plaintiffs could furnish, as is not disputed, and all that the defendants could require, and all that could be relied upon with respect to this matter, was perfectly understood, and then and there, and thereafter, with that full knowledge, the contract was entered into, which contract provides, amongst other things, that if any compensation by reason of any defect shall become payable out of the purchase money, it shall be settled by arbitration, and the mode of proceeding is described in the agreement. What possible connection is there between the case I have been describing I hope accurately-and the cases which have been referred to from the authorities in the books? No doubt the parties were well aware that there was a doubtful fact relating to the title, but it was agreed nevertheless that the contract should proceed, and that the purchasers should run the risk of it, being protected, as I think they are protected, by the article about compensation, and by the offer made by the plaintiffs upon the subject of compensation, and the contract was then completed. That was years ago. Is that a case which resembles in the slightest degree the case where a vendor may have inserted a misleading condition in the contract; or may have suppressed facts which he knew; or a case in which the purchaser, imputing no blame or dishonesty to the vendor, finds out aliunde that the vendor was mistaken when he said he had a title, which he honestly believed he had till questioned by some title paramount to his, and that that title which he ought to make to a purchaser cannot be made? That is the case

[CHAN. DIV.

I have to deal with. The terms of the agreement are clear and distinct. The devolution of title through the several instruments mentioned in the 15th article shows that a clear title from Bateman, as to parts of the property, is made out. The clear title to the other parts is also indicated by the existence of some deeds which have been mentioned there, and a deed which is not forthcoming. The summary of it is, that the title is made out to the eleven-thirtieths forming part of the Bateman estate, and as to that there is no question, because the owners of the Bateman estate have entered into this contract. Now is it necessary to carry this matter any further? According to all the principles of the court the specific performance is a duty and a necessity. There is no suggestion of fraud; that is out of the question. There is no suggestion that the plaintiffs knew more than they disclosed. There is an imputation that if they had searched further they might have found more, but that is answered by the evidence of the witnesses in court that they did search by all the means in their power, but found nothing. Can any cases be found in the books-certainly none have been cited, because those which have been cited all go upon a totally different principle-in which there was a perfectly honest intention of disclosing to each other all that they knew and believed, and in which they have come to a contract such as this, and the court has said that the contract is not proper to be performed? The answer is there is no such case, and there never was, and in my opinion there never will be. I do not think it necessary to deal with the several authorities which have been referred to, as they are all covered by this general observation that there the questions were as to the construction of the contract between the parties, while this contract, as I read it, differs from those, and there is, I think, here no case for doubt. It has been argued for the defendants that the parties were not at one, and that there was a mutual mistake. If that were established it would, no doubt, be a reason for refusing specific performance. But in this case, as appears both from the written evidence and the evidence in court, there has been no mistake, and no misunderstanding whatsoever. Then it was urged also that there had been misrepresentations, and Mr. Davis referred to the terms of the contract in which the vendors assert their title, and they say they are entitled to seventeen-thirtieths. But it would be a very improper mode of construing such an instrument as this if I held that upon a literal construction of the words. I must read the contract through. I must read the 15th article. I must read the description of the devolution of title under the instruments, and I see that it refers to the estate as becoming part of the Bateman estate. Therefore that objection has no foundation whatever. Then it is said that it would be inequitable to enforce the performance of this contract. It is said that Mr. Murray and his partner, who were land agents, desired to buy all the minerals, and Mr. Murray said that they intended to work the mines as a whole, or to sell them. No doubt, if it had been represented to them that they would get a good and absolute title to the whole thirty shares, they would be disappointed. But I cannot adopt the suggestion that there was any such representation, as I find

Q.B. Div.]

[Q.B. DIV.

them engaged in separate negotiations for the purchase of other shares of the mines, totally unconnected with the estate of the present plaintiff, and that too some time after the completion of the contract with the plaintiffs. Whether their object in buying was to resell, or whether they intended to work the mines by a company, I do not know. But there is nothing that I know of, and no fact has been mentioned, which can induce me to believe that these purchasers can be supposed to have intended, when they entered into the contract, not to faithfully and fully perform it, or that it will not now be faithfully and fully performed. This, I think, disposes of the question of the supposed inequitable ground upon which specific performance is resisted. It remains only to consider the question about compensation. That question seems to me now to be plain. It is very plainly expressed in the correspondence between the parties, in which the plaintiffs' solicitor, with perfect candour and propriety, communicates to the purchasers the discovery he had made as to the missing deed, and admits on the part of his clients that, the number of shares being less than those mentioned in the contract, some compensation may be due. I quite agree with that. It is a case in which the purchaser has a less quantity of acres than he has paid for. How that compensation is to be ascertained I have at present no means of knowing. In my opinion I ought now to decree the specific performance of the contract, and order an inquiry whether any and what abatement ought to be made from the amount of the purchase money, or from the sum that is due. The plaintiffs must have their costs, and the counter-claim will be dismissed with costs.

Solicitor for the plaintiffs, C. E. Withall. Solicitors for Murray, A. R. and N. Steele, agents for G. O. Eddowes, Derby.

Solicitors for the representatives of Purves, Aldridge, Thorn, and Morris, agents for Leech, Smith, and Co., Derby.

Contract, breach of-Force majeure-Algerian law -French Civil Code, ss. 1147, 1148-Lex loci contractus.

The plaintiffs, esparto merchants, carrying on business in London, had made a contract in London with the defendants, a banking company, also carrying on business in London, whereby the defendants agreed to supply certain quantities of Algerian esparto from time to time to the plaintiffs in England, the esparto to be prepared in Algeria for transportation to England. Owing to military operations and other causes in Algeria, the defendants were prevented from performing their contract, and, as a defence to an action for breach, pleaded force majeure under the French Civil Code, the law prevailing in Algeria. Held, on demurrer, that, the parties being located in England and the contract having been made in England, as it did not appear that at the time (a) Reported by J. SMITH, Esq., Barrister-at-Law.

of making the contract the parties contemplated the application of the Algerian law to the performance of any part of the contract, such a defence was bad according to English law and could not be sustained.

THESE were two demurrers on the part of the plaintiffs in an action for damages for breach of contract, the first being to paragraphs 2 to 7 inclusive of the statement of defence, and the second to the rejoinder of the defendants.

The statement of claim was, so far as is material, as follows:

1. The plaintiffs are esparto merchants, carrying on banking company, also carrying on business in the city business in the city of London. The defendants are a

of London.

2. By a contract made in London on the 6th Oct. 1880, the defendants agreed to sell to the plaintiffs, and the plaintiffs agreed to buy of the defendants, 20,000 tons of Algerian esparto upon the terms contained in a letter or contract signed by the defendants' agents in the words and figures following:

"B. 15,-London, 6th Oct. 1880.-To Messrs Jacobs, Marcus, and Co., London.-We have this day sold to you by order and for account of the Credit Lyonnais London Agency, twenty thousand (20,000) tons Algerian esparto in hydraulically-pressed iron-hooped bales, with a fair proportion of loose, if necessary, for stowage, to be shipped by the Compagnie Franco-Algerienne or their agents from Arzew and (or) any other port with safe anchorage, and where steamers can load afloat by sailing ships and (or) steamers during the year beginning 1st Jan. 1881 and ending 31st Dec. 1881, as much as possible in about equal proportions each month.

"(1.) The price to be five pounds four shillings (5l. 4s.) if equal to fair average,' five pounds fourteen shillings (51. 14s.) if equal to 'good average,' and four pounds fourteen shillings (4l. 14s.) if equal to 'inferior,' such price being per ton of 1015 (one thousand and fifteen) kilograms Arzew shipping weight less a draft of two per mille allowed in the invoice taken free on board Algeria without discount.

(3.) The quality of esparto tendered against this contract to be finally approved of by you or your represen tatives at the works of the Compagnie Franco-Algerienne at Ain-el-Hadjar before being baled, and no claim respecting quality will be allowed after delivery of the bales at Arzew. You undertake in your name and in the names of your representatives that, with the exception of approving the quality tendered as above, no interference of any kind as regards the company's business will be allowed.

"(15.) Should any ship (or ships) or steamer (or steamers) with a cargo of esparto, forming part of this contract, be totally lost, this contract to be void for such part.

(16.) Should any dispute arise respecting this contract the same is not to be vitiated thereby, but such dispute is to be settled by arbitration by two neutral persons familiar with the esparto trade and its customs, respectively chosen, with power to call in an umpire, whose decision is to be final, and this stipulation to be made equal to a rule,of any of the divisions of the High Court of Judicature (London) on the application of either contracting party."

The 3rd paragraph of the statement of claim set out a letter or memorandum modifying to some extent (immaterial to the questions of law raised by the demurrers) the contract.

4. England is the only country to which esparto of the qualities mentioned in the said contract so modified as aforesaid is shipped from Arzew and other ports in Algeria.

5. The defendants made the first monthly delivery of the quantity provided by the said contract so modified as aforesaid in the month of March 1881 in accordance with the terms thereof, but the defendants failed either wholly or in part to give notice of the subsequent monthly deliveries, or to make delivery of the several quantities as provided by the said contract so modified as aforesaid.