There is a distinction taken in equity, in regard to specific performance, which may now be considered as well established, * and perhaps capable of sufficient explanation and defence; but which is, nevertheless, open to some objection. This is the distinction made between contracts which relate to land, and those which relate only to personal chattels; the general rule being, that equity will give this relief in contracts of the first kind, but not in those of the latter kind. (t)

(s) Sir Edward Sugden, C, Moore v. Crofton, 3 Jones & La. T. 442, 443, and note his remarks upon Ellis v. Nimmo, Lloyd & G. temp. Sugd. 333; Dillon v. Coppen, 4 Mylne & C. 647; Jefferys v. Jefferys, Craig & Ph. 138; Pennington v. Gittings, 2 Gill & J. 217; Shepherd v. Bevin, 9 Gill, 39, 40; Haves v. Kershaw, 1 Sandf. Ch. 258; Kennedy v. Ware, 1 Barr,450. But see Argenbnght v. Campbell, 3 Hen. & M. 144, Bonn v. Winthrop, 1 Johns. Ch. 337.

(t) Brough v. Oddy, I Russ. & M. 55. A contract to sell land creates per se the relation of trustee and cestui que trust; for, being enforceable in equity, the parties, on the principle that what they are bound to do they may be considered as having done, occupy towards each other in equity the same position which they would occupy at law were the contract in fact performed; the vendor is trustee of the estate for the vendee; the vendee, trustee of the purchase-money for the vendor. With respect to a personal chattel, equity will enforce a trust concerning it, but not (except under special circumstances) a contract. Hence, in inquiring in any case whether there is a trust of a chattel, it is to be remembered, that the mere contract of sale and delivery cannot (as it would in the case of land) create a trust; the contract must here be completed by the parties themselves before the trust can arise which equity will exercise jurisdiction over. This course of reasoning is very clearly presented in the opinion of Sir John Romtlly, in Pooley v. Budd, 14 Beav. 44, 7 Eng. L. & Eq. 229: " It is therefore important," continued the Master of the Rolls (14 Beav. 45), '< to bear in mind in this case, that as equity would not enforce the specific performance of the contract for the sale and delivery of the iron, the relation of trustee and cestui que trust cannot spring merely from the contract; and that if it exist at all, it must be shown to exist from something beyond the mere contract entered into between the company and Scale for the sale and delivery of iron. At the same time, if the contract were complete so far as the company were concerned, that is to say, if they had been paid every penny they were entitled to, and if they had no claim upon or interest in the iron arising from the contract, and the contract only remained unperformed to this extent, that the iron had not been delivered to the purchaser, I should entertain no doubt but that the company would then and thereby become mere"trustees of the iron sold, for the benefit of the real purchaser, or the person entitled to claim it under him."

But a contract to convey real estate, and also to transfer stocks in corporations, has been enforced as to personal as well as real estate, (tt)

The general reason assigned for this is, that equity interferes only where the law gives no adequate remedy; and in nearly all contracts for chattels, the question is only one of price or pecuniary value; and payment of money or damages will dispose fairly of the whole question. And it may be stated, as one of the rules on this subject, that equity will not decree specific performance, unless something more is to be done by it than mere payment of money, or anything which ends in the mere payment, because the law is adequate to this, (u)1

* But where the plaintiff has purchased land and seeks the aid of the court to obtain it, it may be supposed that he bought it for some reason besides its mere pecuniary value. He wanted it as a home; and whether for residence or cultivation, it is worth more to him than the mere price it would bring in the market} and therefore he had paid this price. But the pecuniary value would be the measure of damages in law, and therefore he would suffer if equity did not interfere.

(tt) Leach v. Fobes, 11 Gray, 506. And see Treasurer v. Commercial, etc. Co. 28 CaL 390

(u) Sir William Grant, M. R., Flint v. Brandon, 8 Ves. 163; Mc Court, V. G, Phyfe v. Wardell, 2 Edw. Ch. 51. But, if the circumstances of the case are such, that peculiar difficulties exist in the way of the recovery of the price of personal chattels which have been sold and delivered, the vendor may have a specific performance of the contract in equity. See Fellowes v. Lord Gwydyr, 1 Russ. & M. 83, I Sim. 63. And if the purchaser of a chattel would be entitled to claim a specific performance of the agreement, the vendor, on his part, may also obtain a specific performance, for the court will extend the same remedy to both parties. Withy v Cottle. 1 Simons & S. 174; Phillips v. Berger, 8 Barb. 527.

1 Specific performance will not be decreed of an agreement to submit a matter to arbitration. Noyes v. Marsh, 123 Mass. 286; Pear] v. Harris, 121 Mass. 390; Vickers v. Vickers, L. R. 4 Eq. 529. See Richmond v. Dubuque, etc. R. Co. 33 la. 422. But it will be decreed of an award, if the nature of it is such that equity would enforce it specifically if it were a contract. Blackett v. Bates, L. R. 1 Ch. 117; Memphis, Ac A. R. Co. v. Scruggs, 50 Miss. 284. See post, p. *377, n. (z.)

One answer to this would be, that a jury might include most of these grounds of value in their verdict. Another, and a better one, perhaps, is, that land has now become so much a subject of purchase and sale, like merchandise, that the reason for this distinction has lost much of its weight. Still another might be, that one ground of the inadequacy of legal remedy is equally common to all contracts, for the breach of which damages are recoverable; and this is the entire dependence on the personal responsibility of the defendant for the value of the judgment. This last view seldom, however, seems to enter into the consideration of courts of equity, as they take it for granted that what a party is bound by law to do, he can do, and will do. But where one surety has claims for contribution against many co-sureties, some of whom are insolvent, equity will omit them in determining how much each of the solvent co-sureties shall pay, thus casting upon the surety, who is plaintiff, only his share of the loss arising from their insolvency; while the law, in most of our States, would give a plaintiff, in such a case, only the aliquot share from each, which each would pay if all were able to pay. (v) Nor is this consideration always disregarded in proceedings in equity, on a bill for specific performance. Thus, in a suit for the transfer of stock, according to a contract of sale, Sir John Leach, Vice-chancellor, decreed performance, giving as his final reason, that "a court of law could not give the property, but could only give a remedy in damages, the beneficial effect of which must depend upon the personal responsibility of the party. *(w)