estate of equal market value, but then there may be numerous features and incidents connected with the former tract which induced him to purchase, which made it to him peculiarly desirable, but which were not taken into account in the estimate of his damages, and which cannot be found in any other land which he may buy with the money. It is evident that in this and similar cases there would be a failure of justice unless some other jurisdiction supplemented that of the common law, by compelling the defaulting party to do that which in conscience he is bound to do, namely, actually and specifically to perform his agreement.(1)

SEC. 10. The ancillary and supplementary nature of the remedy is well illustrated by the rules which have been established in relation to the specific enforcement of contracts concerning real and personal property, especially those which provide for the sale, assignment, or transfer of property. It is well settled, as appears by citations already made, (2) that the different modes of treating the two kinds of contracts does not result from any different qualities inherent in the very nature of land and chattels, which make it possible to enforce the one and not the other, but from matters which are entirely incidental and collateral to the subject-matter. When, therefore, these incidental circumstances are found in connection with a contract relating to chattels, it would be specifically enforced by equity, as though it related to land. Where land, or any estate therein, is the subjectmatter of the agreement, the equitable jurisdiction is firmly established. Whenever a contract concerning real property is in its nature and incidents entirely unobjectionable-that is, when it possesses none of those features which, as we shall see, appeal to the discretion of the court-it is as much a matter of course for a court of equity to decree a specific performance of it, as it is for a court of law to give damages for the breach of it.(3) The reasons which have led the

(1) The foundation of the jurisdiction to decree the specific performance of contracts, is simply this, that an award of damages at law will not give a party the compensation to which he is entitled; that is, will not put him in a situation as beneficial to him as if the agreement were specifically performed. Harnett v. Yeilding, 2 Sch. & Lef. 553; Phillips v. Berger, 2 Barb. 608; 8 id. 527; Phyfe v. Wardell, 2 Edw. Ch. 47; Stuyvesant v. Mayor, etc., 11 Paige, 414; Nevitt v. Gillespie, 1 How. Miss. 108; Barnes v. Barnes, 65 N. C. 261; Willard v. Tayloe, 8 Wall. 557; Richmond v. Dubuque, etc. R. R., 33 Iowa, 422; Somerby v. Buntin, 118 Mass. 279; Bogan v. Daughdrill, 51 Ala. 312; Blanchard v. Detroit, etc. R. R.. 31 Mich. 44; Duff v. Fisher, 15 Cal. 375; McGarvey v. Hall, 23 Cal. 141; Schroeppel v. Hopper, 40 Barb. 425.

(2) See Adderley v. Dixon, 1 S. & S. 610, per Sir JOHN LEACH, V. C.

(3) Hall v. Warren, 9 Ves. 608; Old Colony R. R. v. Evans, 6 Gray, 36; Story's Eq. Jur. § 751. What agreement creates a charge upon one's land in favor of

courts to hold that damages are an inadequate compensation for the breach of contracts concerning land have already been stated. Undoubtedly there are cases where the reasons have no actual application and force. Land is often, especially in this country, bought and held simply as merchandise, for mere purposes of pecuniary profit, possessing no interest in the eyes of the purchaser and owner other than its market value. The jurisdiction, however, extends to these cases. The rule having been once established, is now universal. The actual motives and design of the purchaser are never enquired into, for it is assumed in every instance that damages are an inadequate relief for the breach of a land contract.

SEC. 11. Contracts concerning chattels. The doctrine is equally well settled that, in general, a court of equitable jurisdiction will not decree the specific performance of contracts relating to chattels, because there is not any specific quality in the individual articles which gives them a special value to the contracting party, and their money value recovered as damages will enable him to purchase others in the market of like kind and quality. To this may be added the fact that the law itself gives a remedy by which the possession of a specific

another, which will be enforced by a specific performance, see Johnson v. Johnson, 40 Md. 189. A county may enforce a dedication of land made to it, by a suit and decree of specific performance. Reese v. Lee Co., 49 Miss. 639. The following are instances of various agreements concerning land which have been specifically enforced. Bleakley's Appeal, 66 Pa. St. 187; Seichrist's Appeal, ib. 237; Wynn v. Smith, 40 Geo. 457; Porter v. Allen, 54 Geo. 623; Yoakum v. Yoakum, 77 Ill. 85; Page Co. v. American, etc. Co., 41 Iowa, 115; Riddle v. Cameron, 50 Ala. 263 ; Rawlins . Shropshire, 45 Geo. 182; Brown v. Crane, 47 Geo. 483; Chicago, etc. R. R. v. Nichols, 57 Ill. 464; Snyder v. Spaulding, ib. 480; Law v. Henry, 39 Ind. 414; Warren v. Ewing, 34 Iowa, 168; McNamee v. Withers, 37 Md. 171; Hayes v. Harmony Grove Cemetery, 108 Mass. 400; Chartier v. Marshall, 51 N. H. 400; Green v. Richards, 23 N. J. Eq. 32, 536; McDavit v. Pierrepoint, ib. 42; Frey v. Boylan, ib. 90; Pinner v. Sharp, ib. 274; Colgate v. Colgate, ib. 372; Millard v. Merwin, ib. 419; McClaskey v. Mayor, etc., 64 Barb. 310; Grier v. Rhyne, 69 N. C. 347; Rogers v. Williams, 8 Phila. 123; Wright v. Pucket, 22 Gratt. 370; Ambrouse v. Keller, 22 Gratt. 769; Estes v. Furlong, 59 Ill. 298; Hamilton v. Rook, 62 Ill. 139; Au Gres Boom Co. v. Whitney, 26 Mich. 42; Warren v. Daniels, 72 Ill. 272; Kuhn v. Freeman, 15 Kans. 423; Reynolds v. O'Neil, 26 N. J. Eq. 223; Williams v. McGuire, 60 Mo. 254. An agreement to give a lease will be enforced in behalf of the intended lessee. See Clark v. Clark, 49 Cal. 586. And in Texas an agreemet to convey a "locative interest" will be enforced in favor of the heirs of the locator." Bell v. Warren, 39 Tex. 106. For instances of the specific enforcement of family settlements, see Wistar's Appeal, 80 Pa. St. 484; Henry v. Henry, 27 Ohio St. 121; and of trusts, see Chapman v. Wilbur, 4 Oreg. 362; Dodge . v. Wellman, 1 Abb. App. Dec. 512; Estate of Webb, 49 Cal. 542. A bond to convey land will be specifically enforced against the obligor. See Ewins v. Gordon, 49 N. H. 444.

chattel may, under ordinary circumstances, be recovered by the proprietor.(1) It should be borne in mind, however, that no distinction

(1) Cud v. Rutter, 1 P. Wms. 570; 2 Eq. Cas. Abr. 18 pl. 8; Nutbrown v. Thornton, 10 Ves. 161, per Lord ELDON; Adderley v. Dixon, 1 S. & S. 610, per Sir JOHN LEACH; Buxton v. Lister, 3 Atk. 384, per Lord HARDWICKE; Cappur v. Harris, Bumb. 135, per GILBERT, B.; Caldwell v. Myers, Hardin, 551; Madison . Chinn, 3 J. J. Marsh. 230; Dalzell v. Crawford, 2 Pa. L. J. 17, 19; Ins. Co. of N. A. v. Union Canal Co., 2 Pa. L. J. 65, 67 ; Savery v. Spence, 13 Ala. 561; Bubier v. Bubier, 24 Me. 42; The Justices v. Croft, 18 Geo. 473; Roundtree v. McLain, 1 Hemp. 245; Waters v. Howard, 1 Md. Ch. 112; Hoy v. Hansborough, 1 Freem. Ch. 533, 543; Cowles v. Whitman, 10 Conn. 121, 124; Brown v. Gilliland, 3 Dessau. 539, 541; Gram v. Stebbins, 6 Paige, 124; Austin v. Gillaspie, 1 Jones Eq. 261; Ashe v. Johnson, 2 Jones Eq. 149; Ferguson v. Paschall, 11 Mo. 267; Phillips v. Berger, 2 Barb. 609; 8 id. 527; Scott v. Billgerry, 40 Miss. 119; McLaughlin v. Piatti, 27 Cal. 451; but, see Yulee v. Canova, 11 Flor. 9. In Phillips v. Berger, 2 Barb. 609, the doctrine, as stated in the text, was admitted but was sharply criticised as founded upon reasons which had ceased to be of any real force, per EDMUNDS, J. The jurisdiction of this court in compelling a specific performance of contracts relating to lands, is pretty well settled; but not so in regard to personal contracts-that is, contracts for personal acts, or for the sale and delivery of personal property. The reason for the distinction between the two classes of contracts has long since passed away. Yet the distinction still in a great measure remains. Judge STORY, with great propriety, in his Commentaries on Equity Jurisprudence, remarks, that there is no reasonable objection to allowing the party who is injured by the breach to have an election either to take damages at law, or to have a specific performance in equity. The courts have not yet gone that length; but when they do they will relieve the subject of specific performance of many of its embarrassments, and remove from this branch of equity jurisprudence many of the artificial distinctions to which the courts have been compelled to have recourse, in order to justify their advance towards such a sound, general rule. The rule in regard to personal contracts yet falls short of that, and is extended only to cases where the party wants the thing in specie and he cannot otherwise be compensated; that is, where an award of damages would not put him in a situation as beneficial as if the agreement was specifically performed; or when the compensation in damages would fall short of the redress which his situation might require. The general rule is, not to entertain jurisdiction to decree a specific performance respecting goods, chattels, stocks, choses in action, and other things of a mere personal nature; but the rule is qualified, and is limited to cases where a compensation in damages would furnish a complete and satisfactory remedy. In Cowles v. Whitman, 10 Conn. 121, 124, DAGGETT, C. J., said: "It is contended that a bill will not lie for the specific execution of a contract relating to personal chattels merely, because there is an adequate remedy at law, and for this position several cases are cited and many more might be cited. As a general rule it is true. As contracts for the delivery of corn, flour, stock in banks, or in the funds, and the like, may be compensated in damages, courts of equity will leave the parties to their remedy at law. There can be no difference between these few shares of bank stock and any other like number." In Hoy v. Hansborough, 1 Freem. Ch. 533, 543, it was said: "It is a general rule that a court of equity will not decree a specific performance of a mere personal covenant sounding in damages, nor of a contract relating to personalty, where compensation may be had at law."

inheres in the different nature of land and chattels.

The fundamental principles which guide the court are the same whether the contract relates to reality or to personalty. In applying these principles, taking into account the discretionary nature of the jurisdiction, an agreement for the conveyance of land is prima facie, presumed to come within their operation, so as to be subject to a specific performance, but a contrary presumption exists in regard to agreements concerning chattels.(1) I shall now describe, in brief terms, for the purpose of further illustrating the ancillary nature of the remedy, the general classes of cases in which the equitable principle is applied to chattels in the same manner as to lands, and in which, therefore, the contracts relating to personal property will be specifically enforced.

SEC. 12. It is well settled that where chattels have some special peculiar value to their owner over and above any market value which could be placed upon them in accordance with strict legal rules, an interest which has happily been termed pretium affectionis, such as an heir-loom; and where the chattels are not individually of a common class, but are unique of their kind, and cannot be readily reproduced, so that others of a similar nature and equal value could not be procured by means of damages assessed according to legal rules, such as a painting, or other works of art; and where chattels are articles of unusual beauty, rarity and distinction, contracts concerning them will be specifically enforced in equity, and a delivery of them will be decreed, although they might be recovered in the common-law actions of detinue or replevin. The reasons of this rule are the utter inadequacy of any mere pecuniary compensation, and the incompleteness of the relief afforded by the legal actions in which the defendant might easily evade an actual delivery of the chattel itself. (2) It will

(1) See Dalzell v. Crawford, 1 Pars. Eq. 37, 42; Mechanics' Bank v. Seton, 1 Peters, 299; Kirksey v. Fike, 27 Ala. 383; Summers v. Bean, 13 Gratt. 404, 411. (2) Pusey v. Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. Wms. 389; 2 Eq. Cas. Abr. 164, pl. 28; Fells v. Read, 3 Ves. 70; Loyd v. Loaring, 6 Ves. 773; Nutbrown v. Thornton, 10 Ves. 163, per Ld. ELDON; Savill v. Tancred, 1 Ves. Sen. 101; 3 Sw. 141, n.; Walwyn v. Lee, 9 Ves. 33; Wood v. Rowcliffe, 3 Hare, 304; 2 Ph. 382; Lingen v. Simpson, 1 S. & S. 600; Lady Arundel ». Phipps, 10 Ves. 139; Lowther v. Lord Lowther, 13 Ves. 95; Pearne v. Lisle, Amb. 77; Falke v. Gray, 4 Drew. 651; Earl of Macclesfield v. Davis, 3 V. & B. 16; Clark v. Flint, 22 Pick. 231; Chamberlain v. Blue, 6 Blackf. 491; McGowan v. Remington, 12 Pa. St. (2 Jones) 56. It may be instructive to follow the action of the courts through this line of cases and to notice the facts and grounds of their decisions. In Pusey v. Pusey, 1 Vern. 273, which is the leading case, the bill was that a horn, which time out of mind had gone along with the plaintiff's estate, and was delivered to his ancestors in ancient time to hold the land by, might be delivered to him. A demurrer to the bill was overruled by Lord Keeper GUILFORD. It

be seen from many of the cases cited in the foot note, that the equitable jurisdiction has not been confined to contracts; it is freely exercised to enforce the surrender and delivery of chattels in specie

will be noticed that in this and in several of the succeeding cases there was no contract, but the possession of the defendant seems to have been tortious. In Duke of Somerset v. Cookson, 3 P. Wms. 389, the plaintiff was entitled to an old silver patera bearing a Greek inscription and dedication to Hercules, which had been dug upon his estate. It had come into defendant's possession, and the duke brought a bill in equity to compel its delivery in specie undefaced. The defendant demurred on the ground that the remedy was at law, but the demurrer was overruled by Ld. Ch. TALBOT. Fells v. Reed, 3 Ves. 70, 71, was brought to recover a tobacco box of a remarkable kind, which had belonged to a club. In this case Ld. Ch. LOUGHBOROUGH stated the reason of the equitable remedy as follows: "The Pusey horn, the patera of the Duke of Somerset, were things of that sort of value that a jury might not give two-pence beyond the weight. It was not to be cast to the estimation of people who had not those feelings. In all cases where the object of the suit is not liable to a compensation by damages, it would be strange if the law of this country did not afford any remedy. It would be great injustice if an individual cannot have his property without being liable to the estimate of people who have not his feelings upon it." Lord ELDON in Nutbrown v. Thornton, 10 Ves. 163, speaking of the Pusey horn case said: "It turned upon the pretium affectionis, independent of the circumstance as to tenure, which could not be estimated in damages." In Pearne v. Lisle, Amb. 77, a finely carved cherry stone was recovered; and in Lloyd v. Loaring, 6 Ves. 773, certain masonic dresses and regalia. In Savill v. Tancred, 1 Ves. Sen. 101, the subject ordered to be delivered up was a strong box containing jewels; in Lady Arundell v. Phipps, 10 Ves. 139, ancient family pictures; in Lowther v. Lord Lowther, 13 Ves. 95, title deeds and valuable paintings; and in Earl of Macclesfield v. Davis, 3 V. & B. 16, an iron chest containing heir-looms. KINDERSLEY, V. C., in Falcke v. Gray, 4 Drew. 651, decided that a contract for the purchase of articles of unusual beauty, rarity and distinction, such as objects of vertu, will be enforced, since damages could not be an adequate compensation for non-performance. The opinion of BELL, J., in McGowan v. Remington, 12 Pa. St. (2 Jones) 56, is so able, clear, and full a discussion of the doctrine and of its reasons, that I shall quote from it at some length. The suit was in equity to compel the restitution of maps, plans and surveys prepared and used by the complainant in his business as a surveyor, together with his instruments, and office furniture, all of which had been left in the possession and custody of the defendant, his clerk, while he was absent on business, under an arrangement for their surrender when the complainant should return and resume his business. The defendant refused to deliver them under an unfounded claim that they had been sold or given to him. It should be noticed that these facts present a point which will be described in a subsequent section, viz.: the effect of a trust or fiduciary relation imposed upon the defendant concerning the chattels. A portion of the opinion is devoted to the consideration of that topic, but all its material passages will be quoted now to prevent a repetition. After disposing of the defendant's claim that they had been a gift or sale, the judge proceeds: "The contest is reduced to two questions: First. Whether the bill presents sufficient grounds to warrant the interference of a court of equity? Secondly. Whether that portion of the decree which covers the surveying instruments and furniture can be sustained? As to the