Gaffner, 73 Ill. 453; McCrea v. Marsh, 12 Gray, 211; Burton v. Scherpf, 1 Allen, 133; Wiseman v. Lucksinger, 84 N. Y. 31; Reg. v. South Weald, B. & S. 391; Caldon v. Pixell, L. R.. 2 C. P. D., 562; Catterall V. Sweetman, 9 Jur. 951; Parish v. Elwell, 46 Iowa, 162; Cason v. Cason, 31 Miss. 578; Com. v. Rosseter, 2 Binn. 360; approved in Overseers v. Overseers, 82 Penn. St. 279; Birmingham Ins. Co. v. Com. 92 id. 77; Ex parte Jacob, 5 Allen (N. B.), 153; Kinkaid v. McKee, 9 Bush, 535; State v. Vincennes University, 5 Ind, 77; Attorney-General v. Regents, 4 Mich. 98; 18 id. 469; 30 id. 473; Rex v. Totness, 5 D. & R. 481; Mc Endre v. Peters, 6 Lit. 101; Nichols v. Valentine, 36 Me. 322; Bennett v. American Art Union, 58 Sandf. 632; Orr v. Home Ins. Co., 12 La. Ann. 255; State v. Lusitanian Soc., 15 id. 73; People v. Masonic Assn., 98 Ill. 635; Hussey v. Gallagher, 61 Ga. 86; Kean v. Brownson, 6 Vr. 468; Parnell v. Coms., 34 Ala. 278; Cole v. Shannon, 1 J. J. Marsh. 218; Nicholson v. Stocket, Walk. (Miss.), 67; Bath v. Magoun, 8 Me. 292; Lawrence v. Schell, 5 Lans. 352; Simpkin v. Ashurst, 4 Tyrw. 781; Wood's Land & Ten., § 8; Decker v. Adams, 7 Hal. 100; People v. St. Francis Soc., 24 How. Pr. 216; People v. German Church, 53 N. Y. 103; Meister v. Anshei Congregation 37 Mich. 542; Shannon v. Frost, 3 B. Mon. 261; Ebaugh v. Hendel, 5 Watts, 48 Gibson, C. G.; Trustees v. Seaford, 1 Div. Eq. 459; Morgan v. Rose, 7 C. E. Gr. 583; Beasley, C. G.; Worrell v. First Church, 8 C. E. Gr. 96: Kulinski V. Dambrowski, 29 Wis. 109; Solomon v. B'nai Jeshuran, 49 How. Pr. 263; Newson v. Bawldry, 7 Mod. 70; Garner v. Shelley, 5 Bing. 477; Supreme Council v. Fairman, 62 How. Pr. 386; Bell v. Bergen, 2 Gr. 131; Brown v. Peterson, 9 Vr. 189; Griffith v. West, 5 Hal. 350; Beneficial Soc. v. White, 1 Vr. 313; Norris v. Tapsley, 5 Cal. 47; Rex v. London, 1 Wils. 11; Rex v. Cloyden, 5 T. R. 713; Union Church v. Sanders, 1 Houst. 100; Runkle v. Winemiller, 4 Har. & McH. 429; Howard v. Gage, 6 Mass. 462; Woobury v. Comrs., 40 Me. 304; Rex v. London, 2 T. R. 182; Rex v. Griffiths, 5 Barn. & Ald. 731; Rex v. Newcastle, 1 Burr. 530; Rex v. Axbridge, Cowp. 523; Ex parte Paine, 1 Hill (N. Y.), 665; Meister v. Anshei Cong., 37 Mich. 542; Newark Sav. Inst. v. Foreman, 6 Stew. Eq. 436, and note; Baldwin v. Flagg, 14 Vr. 502; First Baptist Church v. Witherell, 3 Paige, 296; Humphrey v. Burnside, 4 Bush, 223; Doremus v. Dutch Church, 2 Gr. Ch. 332; Bouldin v. Alexander, 15 Wall. 131: Fitzgerald v. Robinson, 112 Mass. 371; Laight Street Church v. Noe, 12 How. Pr. 497; People v. German Church, 3 Lans. 434; 6 id. 172; 53 N. Y. 103; Hennessey v. Walsh, 55 N. H. 529; Cushing, C. J.: Vestry v. Barksdale, 1 Strobh. Eq. 197; Church of St. Francis v. Martin, 4 Rob. (La.), 68; Rex v. Ashbridge Cowp. 523; People v. Fire Comrs., 23 Hun, 317; 86 N. Y. 149; German Cong. v. Pressler, 17 La. Ann. 129; Ex parte Albany, 23 Wend. 288; People v. Higgins, 15 11. 110, Smyth v. Darly, 2 H. L. Cas. 798; Rex v. Harris, 1 B. & Ad. 942; Presb. Church v. Andruss, 1 Zab. 329; Marshall v. White, Harp. 122; Ridout v. Harris, 17 U. C. C. P. 88; Perrin v. Granger, 33 Vt. 101; Shaw v. Beveridge, 3 Hill. 26; Jackson v. Rounseville, 5 Metc. 127; Howe v. Stevens, 47 Vt. 262; Gay v. Baker, 17 Mass. 435; Kellogg v. Dickinson, 18 Vt. 266.

DEPUE, J. The object of this writ is to obtain the vacation, by a judicial judgment of this court, of the following preamble and resolution, adopted on the 13th of April, 1882, by the trustees and vestrymen of Trinity Church in Trenton:

Whereas, It is known to this vestry that Alfred M.

Livingston, a member of Trinity parish, has for a long time in the past been and still is adverse and detrimental to the prosperity of the parish; and whereas, he has been very recently guilty of using false, malicious, and slanderous language to and of the rector; therefore be it resolved, and it is by the unanimous vote of the wardens and vestrymen of Trinity Episcopal Church, Trenton, N. J.,

Resolved, That the name of Alfred M. Livingston be removed from the diagram of this church, and that the said Alfred M. Livingston be notified that the vestry has removed his name from the diagram of sittings in the church, and has assigned the pew heretofore occupied by him to other persons, and decline to receive any further contributions from him for parish or other purposes; that this resolution be entered at large on the minutes and a duly attested copy be sent him by the secretary."

The pew occupied by the prosecutor is pew number 13.

In the decision of the legal questions presented by this writ we must exclude consideration of the matters contained in the preamble which precedes the resolution. A writ of certiorari will not lie to revise or correct erroneous opinions however hurtful they may be to individuals against whom they are expressed. The court under such a writ can only review some order, judgment, or determination affecting the rights of the prosecutor. State v. Medical Society, 9 Vroom, 377. If the words uttered or written be defamatory in a legal sense and actionable, redress in the civil courts must be sought in another form of proceeding.

The injury whereon the prosecutor founds his right to the use of this writ is, that he was. by the resolution unlawfully deprived of a right to the pew he had previously occupied in the church.

In England, before the Reformation, the body of the church was common to all parishioners. After the Reformation a practice arose to assign particular seats to individuals. The assignment of seats was made by the ordinary, by a faculty which was a mere license, and was personal to the licensee, and all disputes concerning it were determined in the spiritual courts.

1 Zab. 329; note to Presbyterian Church v. Andrews, 1 Burus Ecc. L. 358; Church VII, Bouvier Law Dic., tit. Faculty. Every parishioner has a right to a seat in the parish church but not to a pew. Matter of Cathedral Church, 8 L. T., N. S. 861.

The disposal of seats in the nave of the church appertaineth of common right to the bishop of the diocese so that he may place and displace whomsoever he pleaseth." 1 Burns Ecc. Law, 359; Com. Dig. Esglise G. 3; Boothley v. Bailey, Hob. 69; and the ordering thereof is a matter merely spiritual. Cowen's case, 12 Co. 105: Kook's Church Dict. "Pews."

The discretionary power of ordering the seats in the church which by the common law was vested in the ordinary, by custom was exercised by the church wardens who were the representatives of the ordinary in that respect, and whose assignment of seats was presumed to have been made with the approbation and consent of the ordinary. 1 Burns Ecc. L. 359; 2 Bac. Abr. 242; Church Warden, 2; Wood's Inst. 88-90. Consequently it has become the settled law of the English courts that church wardens have a discretionary power to appropriate the pews in the church, subject only to the control of the ordinary. Reynolds v. Monkton, 2 M. & Rob. 384; Matter of Cathedral Church, 8 L. T., N. S. 861.

Courts of law will interpose to control the proceedings of ecclesiastical bodies when a right to property is involved, but in no other instances. A court of law will inquire into the regularity of the election of trustees of a religious corporation to whom the property of the corporation is committed, and will de

termine the qualifications of the voters who are al lowed to vote at such an election. State v. Crowell, 4 Hal. 390. It will also, when the right to property is in issue, institute an inquiry into the doctrines and opinions of a religious society as facts upon which the ownership of property may depend. Hendrickson v. Decow, Saxt. 577.

But with respect to spiritual matters, and the administration of the ecclesiastical and temporal affairs of the church not affecting the civil rights of individuals or the property of the corporation, the ecclesiastical courts and governing bodies of the religious society have exclusive jurisdiction, and their decisions are final. Den v. Bolton, 7 Hal. 206; Den v. Pilling, 4 Zab. 653; Van Houten v. First Reformed Church, 2 C. E. G. 126-132.

A court of law will not interfere with the rules of a voluntary religious society, adopted for the regulation of its own affairs, unless to protect some civil right which is infringed by their operation. Forbes v. Eden, L. R., 1 Scotch & Div. App. 568; see also Chase v. Cheeney, and the notes contained in 10 Am. L. Reg.. N. S. 295; Petty v. Tooker, 21 N. Y. 267; People v. The G. U. Ev. Church, 53 id. 103.

An individual right to the occupation of a particular pew will not arise from an occupation of it for ever so long a time. Boothby v. Bailey, Hob. 69; Wood's Inst. 90; Stock v. Booth, 1 T. R. 428. The right can be acquired only by a faculty, which is personal to the grantee, and cannot of itself be given a transmissible or heritable quality. Stocks v. Booth; Clifford v. Wicks, 1 B. & Ald. 498, or by prescription which will not arise from a possession however long, unless it be annexed to a house, and it also be shown that the pew was repaired by the claimant, and those under whom he claims for the prescriptive period. Hook's Dic., Pews; Wood's Inst. 90, or by a grant, which creating an incorporeal interest in lands, must be in writing and under seal, or by a letting for a limited period by the proper authorities of the church. And it is only a legal right of possession acquired by some one of these methods that can be made the foundation of legal proceedings for its protection in a court of law; otherwise the disturbance of the possession is a matter of ecclesiastical cognizance only. 1 Chitty Gen. Prac. 209; Com. Dig. Eglise G. 3; 3 Inst. 202; Stocks v. Booth, supra; Mainwaring v. Giles, 5 B. & Ald. 356; 1 Chitty Burns Inst. 629-633; Church IV; Hook's Church Dic., Pews.

The English ecclesiastical law forms the basis of the law regulating the affairs of the Episcopal Church in this country, and is in force except so far as it has been modified and changed by statute and by the usages and canons of the church. Lynd v. Menzies, 4 Vroom, 162; Hoffman's Laws of the Church, 14, 30, 34, 64.

In an act passed February 29, 1828, as a supplement to the act for the Incorporation of Religious Societies of June 12, 1797 (Pal. 412), it was recited in the preamble, that according to the constitution, usages and customs of the Protestant Episcopal Church, the wardens and vestry of each church for the time being have the management of the temporalities of the said church, and that great inconvenience had been experienced by the temporalities being thereby (by the act of 1797), in trustees other than those who by the constitution, usages and customs of the said church should be invested with the said temporalities; and by the first section it was enacted that the wardens and vestry for the time being of every Protestant Episcopal Church not specially incorporated should be trustees of the same, and a body politic and corporate in law by such name as they should assume. Harr Com. 183. On the 17th of February, 1829, another act was passed which in the third section made the rector,

wardens, and vestrymen a body corporate and politic. Harr Com. 220. By section 4 of the act of 1829 it was enacted that the rector, wardens, and vestrymen, and their successors, or a majority of them, may make such rules, by-laws, and ordinances, and do every thing needful and requisite for the good government and support of the church, not inconsistent with the Constitution and laws of this State or of the United States. The three sections referred to were re-enacted in the Revision of 1875, as sections 27, 31, and 32, Rev. 962. By force of this legislation the wardens and vestrymen become trustees of the church, and to the rector, warden, and vestrymen is committed the entire control over the temporalities of the church, including the discretionary authority, which by the English ecclesiastical law was exercised by the ordinary, and by the church wardens as his representatives in the disposition of the seats and pews in the church.

Trinity Church in Trenton was by a certificate filed May 11, 1859, incorporated under the corporate name of "The Rector, Wardens, and Vestrymen of Trinity Church in Trenton."

In April, 1870, what is called the Free Church Plan was proposed. It was approved at a parish meeting held on the 18th of April, 1870, and was adopted by the vestry April 21, 1870. The principal feature in this plan is expressed as follows:

"That pews shall be appropriated to all regular attendants upon the services of the church, for the Sunday morning service, leaving them as at present free and open on all other occasions of public worship. The pews to be appropriated without reference to what is given for the support of the church, but no right of proprietorship to be conferred; the pews to be appropriated by the wardens to the pew holders as at present occupied, except where changes are desired, and then in such manner as not to interfere with the present occupant or occupants without his, her or their consent."

On the 4th of April, 1876, the following by-law was adopted by the vestry:

"The wardens shall have power to assign pews or sittings, in conformity with the free church plan as adopted by the congregation of this parish on Easter Monday, April 18, A. D. 1870, and shall keep a register of the pews and sittings assigned; they shall cause a proper diagram of the pews, with the name of the occupant to whom any pew, or portion thereof has been assigned to be at all times exhibited in the vestibule of the church." Art 6, § 1.

On the 2d of October, 1877 the vestry adopted the following resolution:

act.

"Resolved, That hereafter all arrangements and communications as to the occupation of church pews or sittings shall be made by and between the wardens and the applicants or occupants of such pews, except where the wardens directly request the aid of the vestrymen or other persons, and authorize them to J. D. HALL, Sec." The adoption by the vestry of the Free Church Plan in April, 1870, the by-law of January, 1876, and the resolution of October, 1877, were acts within the power of the vestry under the authority conferred by section 4 of the act of 1829; and they became rules for the government of the church in that respect. How far these official acts of the vestry affected its power to dispose of the pew in question by the resolution of April 13, 1882, was the principal subject of the discussion by counsel.

Alfred S. Livingston, the father of the prosecutor, died in February, 1875. He was one of the corporators in the organization of the church, and had contributed liberally for its support. He was a communicant and for many years a vestryman; aud he joined in the proposal and adoption of the Free Church Plan. He

occupied with his family pews 11 and 13 until his death. The method by which pews were originally assigned was by an auction sale, in which the choice of pews was given to the highest bidder. Mr. Livingston, the father, gave $25 each for the privilege of a choice, and selected these two pews and paid the annual rent for them. After his death pew No. 11 was given up, and the prosecutor and the widow of the deceased continued to occupy the pew in question. It is manifest that the prosecutor's father had no alienable or transmissible interest in the pew; for the right to a pew, which will be transmitted to an heir, is an interest in land within the Statute of Frauds, and is also subject to that inflexible rule of the common law that an interest in lands lying in grant can only be created by a deed under seal. First Church v. Bigelow, 16 Wend. 28; Bryant v. Whistler, 8 B. & C. 288; Prior v. Lyon, 14 Conn. 279. He never had at most more than a leasehold interest in the pew for the term for which pews were usually rented at the annual letting.

If there be any efficacy whatever in the contention of the prosecutor, it must be derived from the plan of 1870. In that plan it is directed that the pews be appropriated by the wardens to the pew-holders “as at present occupied, except when changes are desired, and that when changes are made they shall be made in such a manner as not to interfere with the present occupant or occupants without his or their consent."

The whole case rests upon the legal effect of these words in the plan of 1870, keeping in mind that by the English ecclesiastical law the power of the ordinary, and of the church wardens in the assignment of pews in a church was discretionary-absolutely and unqualifiedly, and that possession gave the occupant of a pew no legal right which he could interpose against the discretion of the officers of the church, we think it is clear that the language quoted will give no support to the contention of the prosecutor. The discretionary power of the ordinary and his representatives in this matter was a fundamental law of the English church, considered to be indispensable for the preservation of order, and the maintenance of discipline in the church. A renunciation of such an essential authority in the officers of the church will not be inferred from any scheme adopted for the government of a particular church unless the renunciation be expressed in words of unequivocal import. The language of the plan of 1870 will not bear that construction. In terms it applied only to the present occupants of pews as the pews were occupied when the plan was adopted. It was not designed to create pre-emption in favor of occupants of pews in the future in perpetuo, and thus in effect deprive the officers of the church, in a considerable degree, of their discretionary powers over the pews in the church. At the utmost, this part of the plan of 1870 was merely a license analogous to a faculty granted by the ordinary at common law, and if not revocable, was personal to the licensee.

We think the vestry had the power under the ecclesiastical law, and the usages and regulations of the church, to take the action which is expressed in the resolution under review, and there the jurisdiction of this court ends.

But it is contended that the vestry should have given the prosecutor a hearing before they adopted this resolution, and that in this respect that body violated the fundamental rule of law that an opportunity to be heard must be afforded before any decision is made respecting a party's rights. The principle is undoubtedly established that a special tribunal having judicial or quasi judicial functions annexed to its powers, whose power to act in a particular case depends upon its determination one way or the other of certain facts, must allow a hearing to persons whose

proprietary or personal rights may be affected by its decision. But this principle does not prevail where the act done is purely discretionary. Consequently it is the settled law that a writ of certiorari will no lie in a matter wholly discretionary. Stew. Dig. 118, Certiorari I.

Waiving the question whether this court can, by its writ of certiorari, review the regularity of the proceedings of an ecclesiastical body in a matter relating to the spiritual or temporal affairs of a church; Chase v. Cheeney, supra; People v. G. U. Ev. Church, 53 N. Y. 105; Bouldin v. Alexander, 15 Wall. 132. It is clear that the prosecutor cannot invoke the principle above mentioned in this case. As we have seen the control of church officials over the pews of a church is entirely discretionary. In the absence of a contract with the prosecutor for the occupation of this pew, the vestry was not legally bound to find or assign any reason for depriving him of the occupation of it. The power of the vestry to do with the pew whatever they saw fit by way of assignment of it was not dependent upon any state of facts beyond their own will, stet pro ratione voluntas. When the power of removing an officer is discretionary it may be exercised without notice or a hearing. 1 Dill. Mun. Corp., § 188; Rex v. Mayor, etc., 1 Lev. 291; Rex v. Coventry, 1 Ld. Raym. 391; Ex parte Hermon, 13 Pet. 230.

For instance a clegyman may by the canons of the church repel a church member from the communion, the vestry or the consistory, at the periodical letting of pews, make changes in the assignment of them, to suit what they deem to be the advantage of the church. If these acts can only be done for a reason, and after a hearing, and are subject to review by writ of certiorari, great confusion would be introduced into the affairs of ecclesiastical bodies. If the court by its writ of certiorari may require a hearing to be given and reasons to be adjudged, it may also be called upon to adjudge upon the sufficiency of the reasons assigned. In all religious societies there are ecclesiastical courts; and if injustice be done in these matters redress must be sought in those tribunals under the rules adapted by the church for its government, or that of its members. The furthest a court of law can go in matters of this kind is to the question of power-jurisdiction.

It is true that the vestry did in the preamble to the resolution assign a reason for the action in language calculated to give offense. But they had the power to do the act by a simple resolution, or by concerted action without a resolution, and without a reason; and we cannot set aside their action because the vestry assigned a reason for it expressed in a manner which we may disapprove, a judgment of reversal on that ground would be a nugatory act. It would neither restore the prosecutor to his seat in the pew, nor restrain the vestry from assigning it to another. The vestry could again do the act they sought to accomplish by this resolution, without observing any formality.

The prosecutor also objects to another part of this resolution-that wherein the vestry resolves to decline to receive any further contributions from him for parish or other purposes. He asks a reversal on this ground for the reason that by this resolution he may be deprived of his right of voting at parish elections. In fact neither the resolution nor the execution of it will produce such an effect. By the canons of the church in this Diocease, the right to vote at parish meetings is given to all male attendants of the church who may be either communicants not under repulsion, or the holders of seats in the parish church; or where the seats are not rented, who have contributed to the support of the church in the way appointed in that parish. Canons of the Diocese of New Jersey,

authorized a Connecticut railroad corporation to construct a railroad in the State of Rhode Island. The statute provided that it should not go into effect unless the company should "deposit in the office of the general treasurer their bond, with sureties satisfactory to the governor of this State, in the sum of one hundred thousand dollars, that they will complete their said road before the first day of January, 1872." The company thereafter deposited its bond for the amount required by statute. Held, that on a failure to fulfill the obligation of the bond the obligors were liable for the full amount of the bond and not merely for the actual damages. It was not intended by the parties that the obligation given and accepted should be for an indemnity against any loss or damage expected to be suffered by the State, in the event that the railroad company should fail to build the railroad as required. The security is not to be extended to any supposed damage to private interests legally affected by the process of constructing the work. All damage of this kind to private persons was carefully provided for in other parts of the act. As to the State itself, the real party to the arrangement and contract, it could gain nothing in its political and sovereign character by the construction of the road, it could lose nothing by the default. If it could be supposed as possible that the State had in view the public interests of commerce and trade in the construction of the proposed railroad, and meant to provide for loss and damage to them by reason of its failure, the obvious answer is that no computation and assessment of actual damages on that account would be practicable, leaving as the alternative that the State in fixing the penalty of the bond in the statute had established its own measure of the public loss. The question of damages and compensation was not, because it could not have been, in contemplation of the parties. There was no room for supposing that there could be any. To assume that the statute required this bond and security in this sense, in full view of the legal conclusion which it is said necessarily flows from its form, and that in the event contemplated, of the failure to build the road, all that remained to be done was that the State should hand back cancelled the obligation and security it had been at such pains to exact, is to put upon the transaction an interpretation altogether inadmissible. It would have been upon such an assumption, a vain and senseless thing, and however private persons may be sometimes supposed to act improvidently, such constructions are not to be put, when it is legally possible to avoid them, upon the deliberate and solemn acts and transactions of a sovereign power, acting through the forms of legislation. The conclusion cannot be resisted that the intention of the parties in the transaction in question was, that if the railroad shonld not be built within the time limited, the corporation should pay to the State, absolutely and for its own use, the sum named in the bond. The rule, that if in a particular case, parties have expressed their obligation in the form of a boud, their liability is thereby determined to be an obligation to perform the condition or pay the damages actually sustained from non-performance thereof, applies generally as to bonds with conditions, designed as an indemnity between private persons for non-performance of a collateral agreement, yet in respect to such cases it cannot be considered as universally true. "It is often a doubtful question," said the court in Hodges v. King, 7 Metc. 583-587, "whether the sum stipulated to be paid on the non-performance of a condition is in the nature of a penalty, or is the amount settled by the parties for the purpose of making that certain which would be otherwise uncertain. The bond has indeed a condition; but that is a matter of form and cannot turn that into a penalty, which but for the form, is an agreement to

So

pay a precise sum under certain circumstances." that it cannot correctly be said to be true, in all such cases, that the intention to treat the sum named in the bond as a penalty to secure the performance of the condition, and to be discharged on payment of damages arising from non-performance, can be inferred as a rule of law, or a conclusive presumption, from the mere form of the obligation. Originally at law in case of breach of the condition of a bond, the amount recoverable was that named in the obligation. So that if the condition is impossible either in itself or in law, the obligation remains absolute. As "if a man be bound in an obligation, etc., with condition that if the obligor do go from the church of St. Peter in Westminster to the church of St. Peter in Rome within three hours, then the obligation shall be void. The condition is void and impossible and the obligation standeth good." So again, if the condition is against a maxim or rule in law, as "if a man be bound with a condition to enfeoff his wife, the condition is void and against law, because it is against the maxim in law, and yet the bond is good." Co. Litt., 206 b. So where the condition is possible at the date of the instrument and becomes impossible subsequently, the obligation does not become thereby discharged, unless the impossibility of performance was the act of God, or of the law, or of the obligee. Accordingly, it was held by this court in Taylor r. Tainter, 16 Wall. 366, that when a person arrested in one State on a criminal charge, and released under his own and his bail's recognizance, that he will appear on a day fixed and abide the order and judgment of the court, on process from which he has been arrested, goes into another State, and while there, is on the requisition of the governor of a third State, for a crime committed in it, delivered up, and is convicted and imprisoned in such third State, the condition of the recognizance has not become impossible by act of law so as to discharge the bail: "The law which renders the performance impossible, and therefore excuses failure, must be a law operative in the State when the obligation was assumed and obligatory in its effects upon her authorities." The ground, nature and limits of the jurisdiction of the courts of equity to relieve against penalties in such instruments is well stated by Story, J., in this language: "In short the general principle now adopted is that wherever a penalty is inserted merely to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, and the penalty is deemed only as accessory, and therefore as intended only to secure the due performance thereof or the damage really incurred by the non-performance. In every such case the true test generally, if not universally, by which to ascertain whether relief can or cannot be had in equity, is to consider whether compensation can be made or not. If it cannot be made, then courts of equity will not interfere. If it can be made, then if the penalty is to secure the mere payment of money, courts of equity will relieve the party, upon paying the principal and interest. If it is to secure the performance of some collateral act or undertaking, then courts of equity will retain the bill, and will direct an issue of quantum damnificatus; and when the amount of damages is ascertained by a jury, upon the trial of such an issue, they will grant relief upon payment of such damages." Eq. Jur., $ 1,314. And Adams says on the same subject: "The equity for relief against enforcement of penalties originates in the rule which formerly prevailed at law, that on breach of a contract secured by penalty, the full penalty might be enforced without regard to the damage sustained. The court of chancery, in treating contracts as matters for specific performance, was naturally led to the conclusion that