referred to as the remedy by which preventive relief is enforce 3369. Neither specific nor preventive relief can Not to be granted to enforce a penal law, except in a case of penalty, nuisance, nor to enforce a penalty or forfeiture in any case. NOTE.-Penal law not enforced specifically.---Brandreth vs. Lance, 8 Paige, p. 24; Mayor, etc., of Hudson vs. Thorne, 7 id., p. 261. Otherwise in nuisance.-See Mayor, etc., of Hudson vs. Thorne, 7 Paige, p. 261. But not to enforce penalty or forfeiture.-Linden vs. Hepburn, 3 Sandf., p. 668; Livingston vs. Tompkins, 4 Johns. Ch., p. 415. etc. CHAPTER II. SPECIFIC RELIEF. ARTICLE I. POSSESSION OF REAL PROPERTY. III. SPECIFIC PERFORMANCE OF OBLIGATIONS. IV. REVISION OF CONTRACTS. V. RESCISSION OF CONTRACTS. VI. CANCELLATION OF INSTRUMENTS. ARTICLE I. POSSESSION OF REAL PROPERTY. SECTION 3375. Judgment for possession or title. for or titlo. 3375. A person entitled to specific real property, Judgment by reason either of a perfected title, or of a claim to possession title which ought to be perfected, may recover the same in the manner prescribed by the CODE OF CIVIL PROCEDURE, either by a judgment for its possession, to be executed by the Sheriff, or by a judgment requir ing the other party to perfect the title, and to deliver possession of the property. NOTE.-Code of Civ. Pro. Cal., Secs. 738-748, in clusive. Judgment.-Treat vs. Laforge, 15 Cal., p. 41; Judgment for delivery. When holder may be compelled ARTICLE II. POSSESSION OF PERSONAL PROPERTY. SECTION 3379. Judgment for delivery. 3380. When holder may be compelled to deliver. 3379. A person entitled to the immediate possession of specific personal property may recover the same in the manner provided by the CODE OF CIVIL PROCEDURE. NOTE.-See Part II, Title VII, Chap. 2, Sec. 509, et seq., and note. 3380. Any person having the possession or con trol of a particular article of personal property, of to deliver. which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession in either of the following cases: 1. When the thing claimed is held subject to an express trust in favor of the claimant; 2. When pecuniary compensation would not afford adequate relief for the loss of the thing claimed; or, 3. When it would be extremely difficult to ascertain the actual damage caused by its loss. NOTE. This section is intended to provide for the relief granted by Courts of equity in the cases specified. The ordinary remedy in an action for chattels may be 1 evaded by any one who has sufficient means to pay their value, by the exercise of a little ingenuity. Accordingly, Courts of equity have long intervened to compel a wrongdoer himself to deliver up the things detained by him. Specific delivery. It will be observed that this remedy is not confined to cases of wrongful possession. It may often happen that one who holds a thing in trust may secretly design to make a wrongful disposition of it, and that the owner may have an intimation or suspicion of this design, but no legal evidence of it. A demand before suit might lead to a sudden disposition of the thing, and result in its total loss. The owner ought, therefore, to be allowed to sue without a prior demand, subject to the discretion of the Court as to costs, if it appears that he has made unnecessary litigation. (See Bruce vs. Tilson, 25 N. Y., p. 194.) But the section is so restricted as not to include the case of a thing agreed to be sold. Thing held by express trust, and inadequate pecuniary consideration. The inadequacy of compensation in damages is the true test of a plaintiff's right to this special relief.-North vs. Great Northern Railw. Co., 2 Giff., p. 69. Thus, freight cars for use upon a railway were decreed to be delivered up, on the ground that similar cars could not be bought ready made, and that compensation in damages would not cover the loss which would be caused by delay.-Id. It is not, therefore, deemed advisable to attempt any enumeration, in the text of the Code, of the articles which may be recovered by this process. There would be little danger of injustice being done if this remedy should be more widely applied. A summary of the principal cases in which a specific delivery has been enforced may, however, be useful. Also, articles of peculiar value to be returned. Courts of equity have compelled the delivery of old and rare paintings (Lowther vs. Lowther, 13 Ves., p. 95), of family paintings (Hunt vs. Moultrie, 1 Bosw., p. 531; aff'd in Court of Appeals), of an ancient altar piece in silver, with a Greek inscription (Somerset vs. Cookson, 3 P. Wms., p. 389), of a gold snuff box (Fells vs. Reed, 3 Ves., p. 70), of heir looms (Macclesfield vs. Davis, 3 Ves. & B., p. 18; Pusey vs. Pusey, 1 Vern., p. 273), of family plate (Geoffry vs. Davis, Cary, p. 34), of jewels (Saville vs. Tankred, 1 Ves. Sr., p. 101; Belt. Supp., p. 70; Young vs. Eurrel, Cary, p. 54), of farm stock (Nutbrown vs. Thornton, 10 Ves., p. 159), of Masonic regalia (Lloyd vs. Loaring, 6 Ves., p. 773), of mortgage deeds (Jackson vs. Butler, 2 Atk., p. 306; Knye vs. Moore, 1 Sim. & S., p. 61), of books of account (Evans vs. Van Hall, Clarke, p. 26; Lingan vs. Simpson, 1 Sim. & S., p. 600), and, in slave States, of particular slaves.-Hall vs. Clark, 12 Sme. & N., p. 189; Butler vs. Hicks, 11 id., p. 79; Murphy vs. Clark., 1 id., p. 221; Dudley vs. Mallory, 4 Geo., p. 52; Sims vs. Shelton, 2 Strobh. Eq., p. 221; Ellis vs. Commander, 1 id., p. 188; Sarter vs. Gordon, 2 Hill's Ch., p. 121; Lofton vs. Espy, 4 Yerg., p. 84; 10 id., p. 31; Williams vs. Howard, 3 Murph., p. 74; Young vs. Burton, 1 McMull. Eq., p. 256. In Dowling vs. Betjeman, 2 Johns. & Hem., p. 544, the Court asserted its right to order the specific delivery of a new painting, upon the application of the artist himself, but the plaintiff in that case having put a valuation on the painting, this was held to show that compensation in damages would be sufficient relief. See Sec. 3355, ante, and note. In what ARTICLE III. SPECIFIC PERFORMANCE OF OBLIGATIONS. SECTION 3384. In what cases compelled. 3385. Remedy mutual. 3386. No remedy unless mutual. 3387. Distinction between real and personal property. 3388. Contract signed by one party only, may be enforced by other. 3389. Liquidation of damages not a bar to specific perform ance. 3390. What cannot be specifically enforced. 3391. What parties cannot be compelled to perform. 3392. What parties cannot have specific performance in their favor. 3393. Specific performance not required when oppressive. 3394. Agreement to sell property by one who has no title. 3395. Relief against parties claiming under person bound to perform. 3384. Except as otherwise provided in this Article, compelled. the specific performance of an obligation may be eases compelled: 1. When the act to be done is in the performance, wholly or partly, of an express trust; 2. When the act to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; 3. When it would be extremely difficult to ascer- Same. tain the actual damage caused by the non-performance of the act to be done; or, 4. When it has been expressly agreed, in writing, between the parties to the contract, that specific performance thereof may be required by either party, or that damages shall not be considered adequate relief. It NOTE. "Obligation," why used. The word "obligation" is used, because some obligations created by operation of law may be enforced in this manner. includes an award, which may be specifically enforced. Bouck vs. Wilber, 4 Johns. Ch., p. 405. The obligation must be a sub-isting one.-Arnoux vs. Homans, 25 How. Pr., p. 427. Performance of express trust. Thus a trustee who has wrongfully disposed of stock may be compelled to restore the same amount of stock. Forrest vs. Elwes, 4 Ves., p. 497. So the specific delivery of a common article of merchandise will be enforced, when held under a trust.-Pooley vs. Budd, 14 Beav., p. 34; Mechanics' Bank vs. Seton, 1 Peters, p. 299; M'Gowin vs. Remington, 12 Penn. St., p. 56. When pecuniary compensation affords no adequate relief. Though in most cases the act which is sought to be specifically enforced is a transfer of property, the jurisdiction is not confined to that class of cases. The Courts have thus enforced an agreement to insure.Tayloe vs. Merchants' Fire Ins. Co., 9 How. U. S., p. 405; Carpenter vs. Mutual Ins. Co., 4 Sandf. Ch., p. 408; Neville vs. Merchants' Ins. Co., 19 Ohio, p. 452. To indorse a note.-See Watkins vs. Maule, 2 Jac. & W., p. 242. To form a partnership.-Buxton vs. Lister, 3 Atk., p. 385; England vs. Curling, 3 Beav., p. 129; Birchett vs. Bolling, 5 Munf., p. 442; Anon., 2 Ves. Sr., p. 620. To discharge a judgment.-Phillips vs. Berger, 8 Barb., p. 527; 2 id., p. 609. To release a mortgage.-Malins vs. Brown, 4 N. Y., p. 403. To improve land.-Stuyvesant vs. Mayor, etc., of New York, 11 Paige, p. 414. To build an archway.-Stover vs. Gt. Western Railw. Co., 2 You. & Coll. Ch., p. 48, etc. The nature of the property affected, whether real or personal, is not decisive of the right to specific performance, which depends entirely upon the inadequacy of damages to compensate the injured party.-Story Eq. Jun., Sec. 717; see Cathcart vs. Robinson, 5 Peters, 54-vol. ii. |