which have been tortiously obtained, or are wrongfully detained: but the precise ground of the equitable relief in such cases is the same as that upon which the specific performance of agreements is enforced,

first point the defendant insists that the only remedy is at law. Though the action of replevin is with us a broader remedy than in England, lying in all cases where one man improperly detains the goods of another, it is in no instance effective to enforce a specific return of chattels, since a claim of property and bond given is always sufficient to defeat reclamation, no matter what may be the final issue of the contest. As, therefore, our common-law tribunals are as powerless for such a purpose as the similar English courts, the propriety of exerting the equitable jurisdiction now invoked, must depend with us upon the same reasons that are deemed sufficient to call it into action there. Here as there, the enquiry must be, whether the law affords adequate redress by a compensation in damages, when the complaint is of the detention of personal chattels. If not, the aid of a court of chancery will always be extended to remedy the injury, by decreeing a return of the thing itself. The precise ground of this jurisdiction is said to be the same as that upon which the specific performance of an agreement is enforced, namely, the fruition of the thing, the subject-matter of the agreement, is the object, the failure of which would be but ill supplied by an award of damages. Lowther v. Lowther, 13 Ves. 95. In the application of this rule some difficulty has been experienced. The examples afforded by the English books are usually those cases where, from the nature of the thing sought after, its antiquity, or because of some peculiarity connected with it, it cannot easily or at all be replaced." He here refers to several of the cases heretofore cited in the note, and proceeds: "Such articles as these are commonly esteemed not altogether, or perhaps at all, for their intrinsic value, but as being objects of attachment or curiosity, and therefore not to be measured in damages by a jury who cannot enter into the feelings of the owner; so, too, the impossibility, or even great difficulty of supplying their loss, may put damages out of the question as a medium of redress. But these are not the exclusive reasons why chancery interferes, for there may be cases where the thing sought to be recovered is susceptible of reproduction or substitution, and yet where damages could not be so estimated as to cover present loss or compensate its future consequent inconvenience. And I take it this is always so where, from the nature of the subject-matter or the immediate object of the parties, no convenient measure of damages can be ascertained; or, where nothing could answer the justice of the case but the performance of a contract in specie." The judge here quotes a series of English cases-which will be noticed in the text of a subsequent section-and describes the various contracts which were enforced therein, and adds: "By what standard would you measure the injury the plaintiff may sustain in future from being deprived, even for a brief period, of the use of papers essential to the prosecution of his business? Their intrinsic value might, perhaps, be ascertained by an estimate of the labor necessary to their reproduction, admitting the means to be at hand, and within the power of the plaintiff. But how could a tribunal ascertain the probable loss which in the meantime might be sustained? The present pecuniary injury might be little or nothing, and so possibly of the future; or it might be very great, depending upon the unascertainable events of coming time, as these may be influenced by the misconduct of the defendant. These considerations show, I think, the case is not one for damages. Besides, as many of the maps, plans, surveys, and calculations are copies of private papers, we are by no means satisfied they could

so that the decisions based upon both conditions of fact are authorities for the common doctrine.(1) Equity, however, will not interfere to specifically enforce a contract concerning even such a special and unique chattel, or to compel its delivery, when its pecuniary value has already been fixed by the parties or can be readily ascertained, so that an adequate compensation in the form of debt or damages can be recovered in a legal action.(2)

be replaced at all, certainly not without permission of the owner-a risk to which the plaintiff ought not unnecessarily to be exposed. If to these reflections we add the fact that some of the documents are the original work of the plaintiff, of value as being predicated upon data possibly no longer accessible, a wrong is perpetrated which a chancellor ought not to hesitate in relieving. It is enough for this purpose that a perfect relief at law is not apparent. The thing to be guarded against is not the invasion of the defendant's rights, for he stands here absolutely without any, except the common interest every citizen has in preserving the proper line of distinction that divides the jurisdiction and limits of the several courts. What is to be avoided is an unnecessary trespass upon the province of the common-law tribunals, and this is to be tested by the simple query whether they offer a full remedy for the wrong complained of. But there is another ground upon which this proceeding may be sustained. In Falls v. Reid the snuff box was deposited with the defendant, as a member of the society, upon certain terms, to be redelivered upon the happening of certain events. Lord ROSSLYN held that, under these facts, the defendant was a depositary, on an express trust which, upon a common ground of equity, gave the plaintiff title to sue in that court; and in this he was supported by Lord ELDON in the subsequent case of Nutbrown v. Thornton. According to the proof in our case, the papers and documents claimed were left with defendant under the express understanding that they were to be redelivered whenever the plaintiff should see fit to resume the business of his then profession in this city. It is then the case of direct confidence violated-a spell sufficiently potent to call into vigorous activity the authority involved." The court then held that it should decide the whole controversy in one suit, and include the furniture and instruments in the same decree with the maps, plans and surveys.

See, also, the following cases, based upon contracts concerning the sale or delivery of slaves, in which the doctrine as to the specific performance of agreements relating to personalty, was fully discussed: Farley v. Farley, 1 McCord. Ch. 506, 516; Sarter v. Gordon, 2 Hill Ch. 121; Horry v. Glover, 2 Hill Ch. 515, 525; Young v. Burton, 1 McMullan Eq. 256; Bobo v. Grimke, 1 McMullan Eq. 304, 310; Fraser v. McClenaghan, 2 Richardson Eq. 79, 84; Ellis v. Commander, 1 Strobh. Eq. 188, 190; Bryan v. Robert, 1 Strobh. 335, 341; Savery v. Spence, 13 Ala. 561, 564; Murphy v. Clark, 1 Sm. & Marsh. 221, 232; Butler v. Hicks, 11 Sm. & Mar. 79, 85; Dudley v. Mallery, 4 Geo. 52, 65; Williams v. Howard, 3 Murphy, 74; Pasley v. Martin, 5 Richardson Eq. 351; Reese v. Holmes, 5 Rich. Eq. 531; Leftin v. Erspy, 4 Yerg. 84, 92; Henderson v. Vauex, 10 Yerg. 30, 37; Summers v. Bean, 13 Gratt. 404; Caldwell v. Myers, Hardin, 551.

(1) See Lowther v. Ld. Lowther, 13 Ves. 95.

(2) Dowling v. Bitjemann, 2 J. & H. 544; 8 Jur. (N. S.) 538. In this case, which was a suit by an artist seeking to obtain possession of a picture, it was conceded that a court of equity has undoubted jurisdiction to order the delivery up

SEC. 13. Applying the same principle, courts of equity will, at the suit of the persons legally entitled to them, decree the delivery up of deeds and other instruments in writing, since damages are inadequate and the legal actions for the recovery of possession are imperfect in their operations. (1) This equity suit to compel the specific delivery of chattels, deeds and the like, possesses another great and incidental advantage over the legal remedy, since the plaintiff is not compelled, as in trover, to prove a conversion of the article, or a refusal to surrender possession of it when demanded. In equity the court looks at the case made by the defendant. It is not necessary to apply to a defendant before a suit is instituted; if the defendant says, "if you had applied to me I should not have contested your claim," and makes no resistance, then, undoubtedly, he gets the costs of it; but if it appears that an application would have been useless, and that the defendant resists at the hearing, the court looks at the case exactly in the same point of view as if that right had been insisted upon before the bill had been filed.(2)

SEC. 14. The jurisdiction which I am describing is greatly enlarged where a trust or fiduciary relation exists in relation to chattels. If an express trust has been created by the terms of the contract, or if a constructive trust has arisen from the acts or omissions of the parties, of a painting when it has a special value, and the legal remedy is therefore inadequate, but since his agreement and the averments of his pleadings showed that the plaintiff had himself put a fixed price upon the picture, it was held that damages would, under the circumstances, be an adequate remedy, and that there was no necessity for any interference by an equitable tribunal. The proposition of the text practically amounts to this, that a party may by his own acts put a certain value upon a unique chattel, which can be recovered at law, and which, being his own estimate, will be taken as a sufficient compensation.

(1) Brown v. Brown, 1 Dick. 62; Armitage v. Wadsworth, 1 Mass. 192; Reeves v. Reeves, 9 Mod. 128; Tanner v. Wise, 3 P. Wms. 296; Harrison v. Southcote, 1 Atk. 528; Jackson v. Butler, 2 Atk. 306; Ford v. Peering, 1 Ves. 72; Papillon v. Voice, 2 P. Wms. 478; Duncombe v. Mayer, 8 Ves. 320; Knye v. Moore, 1 S. & S. 61; Freeman v. Fairlie, 3 Mer. 30; Gray v. Cockeril, 2 Atk. 114; Dutchess of Newcastle v. Pelham, 3 Bro. P. C. 460 (Tom. ed.); Reece v. Trye, 1 D. G. & Sm. 273; Lady Beresford v. Driver, 14 Beav. 387; 16 Beav. 134; Tudor's Lead. Cas. on Real Prop. p. 75 (2d ed.) and cases cited. The delivery of a certificate of registry of a ship may be decreed against a person unlawfully detaining it. Gibson v. Ingo, 6 Ha. 112. Mortgage deeds having been wrongfully procured by an agent of the owner, Lord HARDWICKE decreed that they should be surrendered up by the pledgee, and said: “That the plaintiff might have had an action of trover, but then he could only have damages for the detaining but not the deeds themselves, and therefore he was right in bringing a suit in equity for the recovery of his deeds"; and see Cowles v. Whitman, 10 Conn. 121; Hill v. Rockingham Bank, 44 N. H. 567.

(2) Turner v. Letts, 20 Beav. 191, per

Lord ROMILLY, M. R.

equity will decree a specific performance of the contract and compel a specific delivery of the chattels, whatever be their nature, special or common; and the same equitable relief will be granted to enforce a fiduciary duty or confidence reposed, which is not in the strict sense of the term a trust, as in the case of an agency. The court will, if necessary, interfere by injunction to restrain any improper disposition of or dealing with the chattels by the person upon whom the trust or fiduciary obligation rests.(1)

(1) Wood v. Rowcliffe, 3 Ha. 304; 2 Phil. 382; Lingen v. Simpson, 1 S. & S. 600; Pooley v. Budd, 14 Beav. 34; Clark v. Flint, 22 Pick. 231; Cowles v. Whitman, 10 Conn. 121; Stanton v. Percival, 5 H. L. Cas. 257, 268; Ferguson v. Paschall, 11 Mo. 267; McGowin v. Remington, 12 Pa. St. (2 Jones) 56; Abbott's Ex'r v. Reeves, 13 Wright, 494; Mechanics' Bank v. Seton, 1 Peters, 309; Hill v. Rockingham Bank, 44 N. H. 567; Peer v. Kean, 14 Mich. 354. In Pooley v. Budd, 14 Beav. 34, 43, 44, Lord ROMILLY, M. R., said: "For instance, if a man about to contract marriage, and possessed of a large and valuable quantity of iron, lead, or copper ore, assigned that ore to the trustees of the settlement in trust to sell and invest the proceeds, and hold the proceeds when invested upon the trusts of the settlement, there can be no question but that this court would, before the sale, compel the possessor of the ore and the trustees of the settlement to fulfill every part of the trust which one had undertaken to constitute and the other had undertaken to execute." In Stanton v. Percival, 5 H. L. Cas. 257, 268, where a person had by contract made himself trustee of stock for another person, with whose money it had been purchased, a transfer of the stock to the beneficial owner was compelled. For a similar case, see Cowles v. Whitman, 10 Conn. 121., In Clark v. Flint, 22 Pick. 231, 239, the owner of a brig had contracted in writing for a valuable consideration, to hold her in trust for the plaintiff and subject to his order and disposition, and had then sold her to a third person who had notice of the former contract. The original contractor being insolvent, it was held that a specific performance should be decreed On this point WILDE, J. said: "It is objected that the court ought not to exercise jurisdiction in equity for a specific performance of agreements relating to personal property. And, generally, that rule has been observed in the English courts, but has been subject to numerous exceptions, and has been uniformly limited to cases where a compensation in damages furnishes a clear and adequate remedy. If the party complaining has no such remedy, it is quite immaterial whether the contract relates to real or personal estate. The exercise of equity jurisdiction does not proceed upon any distinction between real estate and personal estate, but because damages at law may not in the particular case afford a complete remedy. The reasons given for a distinction between real estate and personal estate are not very satisfactory. All, as it seems to me, that can fairly be inferred from the cases on this point is, that in contracts respecting personal estate a compensation in damages is much oftener a complete and satisfactory remedy, than it is in those which relate to real estate. But in all cases if a party has not such a remedy, a court of equity will entertain jurisdiction, and grant relief as justice may require." In the decision of the case some reliance was placed upon the contractor's insolvency as rendering damages inadequate. This fact, however, at the present day, and with courts accustomed to the exercise of full equity powers, would be regarded as wholly immaterial under similar circumstances of trust and confidence. For the opinion in McGowin v. Remington, 12 Pa. St. (2 Jones) 56, see ante, § 12, note (1).

SEC. 15. There are numerous other instances, which cannot easily be referred to any general class, in which contracts have been specifically enforced on the ground that damages would be inadequate. The following are examples. A contract for the sale and delivery of chattels which are essential in specie to the plaintiff, and which the defendant can supply, while no one else can, could be specifically enforced. This case falls directly within the reasons of the doctrine, for the plaintiff could not, with any amount of damages in his hand, go into the market and purchase other articles of the same kind and value.(1) It would not, however, be extended beyond those reasons, and applied when a sufficient supply of materials could be reasonably obtained elsewhere. Again, contracts for the delivery of goods will be specifically enforced, when by their terms the deliveries are to be made and the purchase price paid in installments running through a considerable number of years. Such contracts "differ from those that are immediately to be executed." Their profits depending upon future events, cannot be estimated in present damages, which must, of necessity, be almost wholly conjectural. To compel a party to accept damages under such circumstances is to compel him to sell his possible profits at a price depending upon a mere guess.(2)

(1) Buxton v. Lister, 3 Atk. 383, per Lord HARDWICKE, who puts the case of an owner of timber contracting to sell it to a ship builder, who was under a contract to complete a ship within a given time, for which the timber purchased was necessary, and from no other person could a supply be procured. See Ward v. Duke of Buckingham, cited in 3 Atk. 385; 10 Ves. 161. Agreement to pay off or discharge a mortgage. Barkley v. Barkley, 14 Rich. Eq. 12; Bennett v. Abrams, 41 Barb. 619;· Weir v. Mundell, 3 Brews. 594. See, also, Hovel v. Miller, 2 Dur. 103; Howe v. Nickerson, 14 Allen, 400; Watkins v. Maule, 2 J. & W. 242; Lyde v. Mynn, 4 Sim. 505; 1 Myl. & K. 683; Wellesley v. Wellesley, 4 My. & Cr. 554, 559; Stark v. Wilder, 36 Vt. 752, 559.

(2) Taylor v. Neville, cited in Buxton v. Lister, 3 Atk. 384; Ball v. Coggs, 1 Bro. P. C. 140 (Toml. ed.). In Taylor v. Neville, Lord HARDWICKE decreed specific performance of a contract for the sale of 800 tons of iron to be delivered and paid for by installments, in a certain number of years. In Ball v. Coggs, the contract was to pay the plaintiff a certain annual sum for his life and also a certain other sum for every hundred weight of brass wire manufactured by defendant during the life of the plaintiff. A specific performance was decreed by the II. of L. on the ground that damages would be conjectural and inadequate, and to compel plaintiff to take damages would be to compel him to sell the annual provision during his life secured by the contract, at a mere conjectural price. See the remarks of Sir W. PAGE WOOD, V. C., in Pollard v. Clayton, 1 K. & J. 462, 474, criticising Taylor v. Neville. It seems plain, however, that the decision by Lord HARDWICKE falls directly within the decision and the reasons therefor in Ball v. Coggs. The V. C.'s objections are too narrow. A contract to purchase the arch stone, span-drill stone, and Brameley Fall stone contained in the old Westminster Bridge, was specifically enforced by Lord ROMILLY, M. R., in Thorn