The 36th of the Orders of August, 1842, is not applicable to the case where there is something of a specific and particular nature in the bill which the demurrer has not covered.

THE bill alleged that the plaintiff and the defendant Hale had obtained a patent for making gun cases; that disputes having arisen between the parties they were desirous of dissolving their connection, and that after various previous conversations and discussions on the subject, a negotiation took place between the plaintiff and the defendant on the terms of such proposed dissolution. That in reference to this matter the defendant, on the 2d May, 1842, wrote and sent to the plaintiff a letter in the words and figures following, &c., and that in reply to such letter, the plaintiff on the same day wrote and sent to the defendant a letter which was as follows, &c. That the plaintiff having by the last-mentioned letter accepted the proposal contained in the defendant's letter for an assignment of his interest to the plaintiff and a dissolution of the partnership, the said two letters constituted a complete and valid contract and agreement binding upon both parties. The bill after charging that the patent was a good, valid, and subsisting patent, and that an assignment ought to be *made to the plaintiff of the defendant's share, pray- [*2] ed a declaration that the letters constituted in equity a complete, valid, and binding agreement between the parties, and VOL. II.

1

1842-Dell v. Hale.

that it ought to be decreed to be specifically performed; and for an assignment to the plaintiff of the defendant's interest, &c.

The defendant demurred to so much of the bill as required him to answer and set forth whether a negotiation did not take place between the plaintiff and the defendant, &c., [following the statements in the bill as before mentioned,] and for cause of demurrer showed that "the said alleged agreement in the said bill set forth is not a good and valid and complete agreement, and that the terms of such agreement are not sufficiently certain or capable of being sufficiently ascertained, and that the said letters in the said bill mentioned do not constitute a complete, valid and -binding contract as between the plaintiff and this defendant;" and therefore, and for divers other causes of demurrer in the said bill contained, as to so much of the bill as was demurred to the defendant demanded the judgment of the court, &c. The defendant then answered the residue of the bill at great length, and in the course of his answer admitted having written the letter of the 2d May, 1842, but insisted that part of it was open to explanation, and that he had sought to give the explanation in a subsequent letter.

Mr. Simpkinson and Mr. Wright now appeared in support of the demurrer and answer. The defendant being too late to file a demurrer alone has filed a demurrer and answer. The subjectmatter of the demurrer might, it is true, have been applied to the whole bill, but that circumstance, though formerly an objection, (a)

is no longer so. By the 36th order of August, 1841, no de[*3] murrer shall be held bad and *overruled upon argument,

only because it shall not cover so much of the bill as it might by law have extended to. Here the defendant has demurred to part only of the relief, where he might have demurred to the whole; but as he has given a full and detailed answer to the residue of the bill, that is sufficient. Hodgkin v. Longden.(b) [The Vice-Chancellor.-He has not demurred to any part of the relief.]

(a) See Dawson v. Sadler, 1 Sim. & Stu. 537; and see Story, Eq. Pl. 302, n. (b) 8 Ves. 2.

1842.-Dell v Hale.

Mr. Kenyon Parker, in support of the bill, referred to Todd v. Gee,(a) Dan. Ch. Pr. Vol. 2, p. 25.

The following cases were also referred to in the course of the argument: Morgan v. Harris,(b) Tomkin v. Lethbridge,(c) Wetherhead v. Blackhorn.(d)

THE VICE-CHANCELLOR.-It appears to me that the contention of the demurring defendant is not warranted either by the letter or the spirit of the 36th Order. The object of that Order was, I believe, to introduce this practice, that where there are several questions or matters in a bill, to all of which the demurrer might have extended, and the demurrer, through mistake or otherwise, does not extend to all of them, it is not to be overruled merely on that account. The Order does not say that in no case shall a demurrer be overrued, but that it shall not be overruled only because it does not cover so much of the bill as it might by law have extended to. In overruling this demurrer I shall do so, not merely because there is something which it has not but might have covered, but because there is something of a specific and particular nature which it has not covered. Previously to the new rules, though a defendant generally might demur to the relief, and give *discovery, yet if he [*4] did not question any part of the relief sought, a mere demurrer to discovery would be overruled, because it was considered a contradiction to admit the claim of the plaintiff to relief, and yet to exclude him from the means which the law allowed him of proving those facts which were essential to his case. Here the bill prays relief founded on certain letters. part of the relief is demurred to. The demurrer is confined to the discovery of these letters without proof of which the plaintiff might have no case at the hearing. As the defendant could not before the new Orders so he cannor now file such a demurrer; and as it was put in at a time when it was not competent to him to demur to the whole bill, I think I ought not to give the defendant leave to amend.

(a) 17 Ves. 273.

Demurrer overruled.

No

(b) 2 Bro. C. C. 124. (c) 9 Ves. 178. (d) 2 Ves. & B. 121.