The Revised Statutes of 1845 authorized attachments for only the first five of the nine causes for attachment specified in our present attachment act, viz.: (1) Where the debtor is not a resident of the state; (2) where he conceals himself, or stands in defiance of an officer, so that process cannot be served upon him; (3) where he has departed from the state with the intention of having his effects removed from the state; (4) where he is about to remove from the state with the intention of having his effects removed from the state; and (5) where he is about to remove his property from the state, to the injury of the creditor suing. Rev..St. 1881, p. 123. Here the writ was given only where the debtor was already a nonresident, and so beyond the reach of the ordinary processes of the law, or where there was an affirmative intention and design on his part to place his person and property, or his property alone, beyond the reach of those processes. The writ was given for the purpose of seizing the property so as to forestall its threatened removal, and to hold it as security for the judgment to be recovered.

It cannot be doubted, we think, that when the statute was so amended as to add the three causes for attachment set up in this case, the legislature was acting in furtherance of the same general intention expressed in the original act.

The writ was not given for the purpose of enabling the creditor to attack a transaction which is only constructively fraudulent, but to enable him to seize the property of his debtor in cases where fraud has been committed or contemplated of such character as to raise a reasonable apprehension that by further fraudulent acts the debtor will put his property and effects beyond the reach of legal process. But such apprehension does not arise from the commission of a mere legal or constructive fraud. There evil intention, moral turpitude, and actual dishonesty are wanting. Equity, it is true, will set such transactions aside, in a proper proceeding, at the instance of creditors; but no inference arises that the debtor will attempt, by any dishonest disposition of his property, to interfere with his creditors in the assertion of their just rights. We are of the opinion, then, that granting writs of attachment in cases where only legal or constructive fraud is shown is outside of the general scheme and purpose of the attachment law.

It is apparent that any other construction of the statute would often lead to consequences extremely oppressive. Thus a sale of goods where possession has not actually been delivered to the purchaser, though valid as between the parties, is constructively fraudulent as to the creditors of the seller, and the goods may be seized by them on execution as his goods, however honest he may have been in the transaction. In contemplation of law he has made, or attempted to make, a disposition of his property which is constructively fraudulent, and, if attachments may issue for constructive frauds, he has thereby subjected himself, however innocent he may have been, to all such attachment writs as his creditors may see fit to sue out against his property for the period of two years. So, if a debtor, in perfect good faith, executes a chattel mortgage to secure an honest debt, but fails to have it executed, acknowledged, and recorded in all respects as required by the statute, the transaction is constructively fraudulent and void, as against his creditors. But can it be said that he thereby subjects himself, for a period of two years, to attachments by any of

his creditors? Other similar illustrations without number will suggest themselves.

In view of these various considerations, it seems to us to be very clear that the legislature, in authorizing writs of attachment in cases where the debtor has fraudulently assigned his property so as to hinder or delay his creditors, could have had in mind only such conveyances or assignments as are fraudulent in fact, and that it was not their intention to grant this writ where the debtor acts honestly, and with no fraudulent purpose or design. It follows that the instruction to the jury to find the issues upon the attachment affidavit for the defendant was properly given. * * *

Judgment affirmed.

SECTION 7.-SPECIFIC PERFORMANCE

In the ordinary case, where the defendant has broken his contract the plaintiff is allowed to recover a judgment for money damages. This remedy may be described as one of substitutional redress. The law does not, in these cases, aid the plaintiff by compelling or by attempting to compel the defendant to do what he promised to do. Of course, where the defendant has promised to pay money to the plaintiff a judgment in plaintiff's favor does give him exactly what he bargained for. But where the defendant has promised to sell the plaintiff certain described property or to perform certain services for the plaintiff, an action by the latter will usually be for the purpose of obtaining a judgment for money. The court substitutes money for that which, under the contract, the plaintiff was entitled to receive.

There are some cases when a judgment for money damages is a poor substitute for that which defendant promised, or, as the law usually puts it, a judgment for money damages is not an adequate remedy. When such a situation is presented the court will order the defendant specifically to perform his promise; hence the remedy of specific redress, or, as it is usually called, specific performance. Of course, the above fact that a court orders a defendant to perform his contract, in itself carries no great assurance that the court's mandate will be obeyed. So the inquiry into the nature of the remedy of specific performance involves the further inquiry as to the judicial methods for compelling obedience. There are two such methods: (1) Where the act to be done is of such a nature that it may be performed by an officer of the court a direction to such officer to perform such act will be given. This is illustrated in the case where the defendant has promised to execute and deliver a deed to certain land to the plaintiff. The court, by having the deed executed and delivered by some officer, may then give the same legal effect to such execution and delivery as though the acts had been done by the defendant himself. (2) Where the promised acts are numerous, or difficult, and sometimes even where the duty is merely to pay money, the court may hold that the refusal of the defendant to comply with its decree shall result in imprisonment. The important question to decide, therefore, is: What are

the circumstances under which a court will decree specific performance?, The remedy is a severe one, and obviously, is not available, except upon a definite showing that the remedy of money damages is inadequate.

In the cases on this topic it appears that the remedy of specific performance, and also of injunction are "equitable remedies." There is a great deal of discussion as to the circumstances under which "equity will decree specific performance" or grant an “injunction." This is because, historically, the courts, in the early days, during the eleventh, twelfth, thirteenth, and fourteenth centuries, in England, did not grant such remedies. Not only at this time were there deficiencies in legal remedies, but the substantive law itself was not developing to meet the demands of the people. Accordingly a change took place as the result of special petitions to the king. The king's chancellor occupied a position which logically tended to make of him a special judicial officer. In time the chancellor became the head of an established court where the decisions were somewhat at variance with the rules of the courts of the older judicial system. Remedies were granted by the chancellor, or by the Court of Chancery, as it came to be called, which were not granted by the other courts, the courts of common law. The Court of Chancery sought to "do equity" between the parties. This development involved the assumption that the cases which came to the Court of Chancery would not have been decided equitably had they come before the courts of common law.

In a great many cases, no doubt, this was true. The natural tendency of a judicial system, in certain periods of its development, is to contract rather than to expand; that is, a change in legal doctrine, to meet new social, economic, and political conditions in society, is difficult of accomplishment. There is an attempt made, by the enforcement of settled principles of law, to force society to conduct its affairs in precisely the same way that similar affairs had been conducted by the same or other society in an earlier stage of its history. Often, of course, change is accomplished gradually through the medium of existing judicial machinery; but sometimes it is brought about by the introduction of some entirely new organization. This was the case in the development of that portion of existing law which is called "equity." Historically, these doctrines were formulated and applied by the English Court of Chancery.

Changes of somewhat analogous nature are of present-day occurrence. In recent years many states in this country have organized special tribunals, to which is assigned jurisdiction over certain special types of controversies. For example, most states have public service and industrial commissions. These commissions fix rates and standards of service and adjudicate the rights and liabilities of employers with respect to injuries to employees under workmen's compensation acts. Even the practice of persons convicted of crime in appealing to the governor for executive clem

ency is also illustrative of the broad truth that judicial doctrines do not, in all cases, function as many people think they should function, and that change in, or relief from, the strict application of the formulated rules of law is often accomplished by creating new machinery, judicial, administrative, or executive, which establishes new principles and new remedies and applies them by a procedure somewhat at variance with the doctrines and methods of procedure of existing judicial bodies.

The history of the development of equitable doctrines is a long one. For a long time separate tribunals applied these newer principles of equity. Generally, to-day, a court which possesses common-law jurisdiction will also possess jurisdiction in equity. But in many states, even to-day, procedure in a cause of equitable cognizance is somewhat different from the procedure in commonlaw causes, and everywhere account must be taken of the peculiar origin and development of the doctrines of equity.

PADDOCK v. DAVENPORT.

(Supreme Court of North Carolina, 1890. 107 N. C. 710, 12 S. E. 464.)

SHEPHERD, J. * * * The true principle upon which specific performance is decreed does not rest simply upon a mere arbitrary distinction as to different species of property, but it is founded upon the inadequacy of the legal remedy by way of pecuniary damages. This principle is acted upon (1) where there is a peculiar value attached to the subject of the contract which is not compensable in damages. __The law assumes land to be of this character "simply because," says Pearson, J., in Kitchen v. Herring, 42 N. C. 191, "it is land-a favorite and favored subject in England, and every country of Anglo-Saxon origin.” The law also attaches a peculiar value to ancient family pictures, title deeds, valuable paintings, articles of unusual beauty, rarity, and distinction, such as objects of vertu. A horn which, time out of mind, had gone along with an estate, and an old silver patera, bearing a Greek inscription and dedicated to Hercules, were held to be proper subjects of specific performance. These, said Lord Eldon, turned upon the pretium affectionis, which could not be estimated in damages. So, for a faithful family slave, endeared by a long course of service or early association, Chief Justice Taylor remarked that "no damages can compensate, for there is no standard by which the price of affection could be adjusted, and no scale to graduate the feelings of the heart." Williams v. Howard, 7 N. C. 80.

The principle is also applied (2) where the damages at law are so uncertain and unascertainable, owing to the nature of the property or the circumstances of the case, that a specific performance is indispensable to justice. Such was formerly held as to the shares in a railway company, which differ, says the court in Ashe v. Johnson's Adm'r, 55 N. C. 149, from the funded debt of the government, in not always being in the market and having a specific value; also a patent (Corbin v. Tracy, 34 Conn. 325), a contract to insure (Carpenter v. Insurance Co., 4 Sandf. Ch. [N. Y.] 408), and like cases. The general principle everywhere recognized, however, is that, except in cases falling within the foregoing principles, a court of equity will not de

cree the specific performance of contracts for personal property; "for,". remarks, Pearson, J., in Kitchen v. Herring, supra, "if, with money, an article of the same description can be bought, the remedy at law is adequate." *

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Applying these principles to the facts alleged in the complaint, it must follow, we think, that this is not a case which calls for the exercise of the equitable power of the court. The trees were purchased with a view to their severance from the soil, and thus being converted into personal property. It is not shown that they have any peculiar value to the plaintiff, nor does there appear any circumstances from which it may be inferred that the breach of the contract may not be readily compensated for in damages. Neither is it shown that other trees may not be purchased, but it is simply alleged that they are scarce at the contract price. The simple fact that they are near a water-course does not alter the case, for the convenience of transportation are elements which may be considered in the estimation of the damages. Neither is the circumstance that the plaintiff purchased "a few trees of like kind" in the vicinity sufficient to warrant the equitable intervention of the court. We can very easily conceive of cases in which contracts of this nature may be specifically enforced, but we can see nothing in this complaint which calls for such extraordinary relief. The ruling of the court as to this branch of the case is sustained. * *

FIRST NAT. BANK OF HASTINGS v. CORPORATION SECURITIES CO. (Supreme Court of Minnesota, 1915. 128 Minn. 341, 150 N. W. 1084.) PHILIP E. BROWN, J. Action to enforce specific performance of an agreement to buy shares of stock. The cause was tried, and findings made for plaintiff. Defendant appealed from an order denying a new trial.

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The

Defendant * * * insists it was error to grant specific performance, because plaintiff had an adequate remedy at law. * * * power of a court of equity, upon a proper showing, to grant relief in such cases is now universally conceded, and in 50 L. R. A. 501, note, the present state of the law in this regard is well stated, as follows: "The general rule in this country is that a contract for the sale of corporate stock will not be specifically enforced, where the stock can be purchased on the market, and its value can be readily ascertained, unless there is some special reason for the purchaser's obtaining the same, but where the shares are limited and not easily obtainable, or where their value cannot be readily ascertained, the contract will be enforced. The tendency seems to be towards a more liberal allowance of the remedy. In England it seems to be allowed almost as a matter of course, except in case of government stocks, in which case it has generally been refused."

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The inquiry, then, is whether the court's determination that the value of the stock was not readily ascertainable was unsupported by the evidence, and we cannot so hold. Crocker, S. D., where the bank issuing the stock was located, had about 150 inhabitants. Another bank, having twice as much business, was also located there. A large part of the surrounding country was suitable and used for grazing purposes only. Part of the tributary population consisted of a "drifting class," thus making bank loans and discounts extra hazardous.

The