BEARD VS. LINTHICUM. 349

be warranted; but the court does not now propose to decide
the point, as even if the amendment be authorized, or the bill
had originally taken the shape now proposed to be given to it,
still, I think the plaintiff cannot have a decree, because she has
not laid before the court that clear, definite and unequivocal
proof of the contract in all its terms, which the rule requires.

So far as the bill, in this case, charges an agreement by the
defendant to secure the payment of the purchase money of the
land by a mortgage of slaves, there is a total and absolute fail-
ure of evidence, not a witness having spoken upon the subject,
nor a single circumstance having been shown, from which such
an agreement can be fairly inferred. It is true, some one or
more of the witnesses do say something about the plaintiff's
intestate having complained of the sale by the defendant of a
slave; but the answer discloses a sufficient reason for this; and
independent of the answer, it would surely be a random con-
jecture from this isolated and inconclusive circumstance, to
come to the conclusion that the defendant had agreed to give a
mortgage upon the slaves in question, to secure the payment of
the purchase money of the land. It is surely a pertinent in-
quiry to ask, if such an agreement was made, why was not the
mortgage given? There was unquestionably abundant time,
and if the contract of sale had been definitively settled, and the
terms agreed upon, it is difficult to conceive a sufficient reason
for the non-execution of the mortgage.

I regard, therefore, this charge in the bill as wholly unsup-
ported by the proof, and the rule being, that the identical con-
tract in all its parts as set up in the bill, must be proved, it
would follow that a failure of evidence in this particular would
be fatal to the complainant's prayer for a specific performance.

But, conceding that this part of the contract is independent
and separate from the residue, or that the giving the mortgage
simply referred to the mode of payment; or that for any other
reason, the plaintiff may have a specific execution of the resi-
due of the agreement if proved, laying the stipulation about the
mortgage out of view, still, I think, the complainant has failed
to show herself entitled to the relief she asks for.
VOL. i—30