
    John P. Sarter and Wife, and others, vs. Jesse Gordon, Adm’r.
    Specific performance of an agreement for the sale of slaves decreed. [*121]
    If one undertake for minors his act will bind him, although it may not them, and the contract will be binding on the other party, although voidable at the option of the minors. [*125]
    Inadequacy of price, unaccompanied with circumstances of fraud, not sufficient to prevent enforcement of a contract. [*126]
    Time, when not of the essence of the contract, no excuse for nonperformance unless it amount to an abandonment. [*126]
    It is a general rule that specific performance will not be decreed of contracts for personal chattels. Exceptions where property is of a peculiar character: Domestic servants, or those brought up iu a family, come within the reason of the exceptions. [*126]
    General principles on which specific performance of contracts is decreed, and the cases on the subject considered. [*133]
    The general principle is, that any fair and reasonable contract will be enforced specifically, unless it appears that full justice may be done by a compensation in damages. In some eases of contracts for slaves, damages would not be sufficient compensation. [*135]
    
      According to the principle of all the cases, a bill may be maintained for slaves brought up in a family: and it may be laid down as a general rule that a bill will lie for the specific delivery of slaves, as for the specific performance of a contract for the sale of land. [*136]
    There may be exceptions to the ride — as if the purchaser contracted for the slaves as merchandise, intending to sell again; in such case, justice would be done by damages. But this is not generally so, or to be presumed. [*137]
    If it appear on the face of a bill, that it was prematurely filed, and advantage be taken by demurrer, it will be fatal; but if ther-e be no demurrer, and the case be not brought to a hearing till after the time fixed for the performance of the contract, the Court will not then dismiss the bill, but give leave to amend on terms. A bill may properly be filed to prevent the sale of slaves before the time fixed in the contract of sale for their delivery; and then it is proper, to prevent multiplicity of suits, that all matters in controversy be brought forward. [*137]
    Any one offering to perform a contract on behalf of infants is their agent, and Ms offer will be sufficient to compel performance by the other party. [*188]
    In a contract with the father for the benefit of his infant children, there is not such want of mutuality as will exonerate the other party from performance. [*139]
    Specific performance of contracts for leases has, in some cases, been refused on the ground of the insolvency of the tenant; different on a contract to purchase — for there the Court will not decree title to be made until the money is paid. [*140]
    The contract sought to be enforced being certain, it will not be affected by any uncertainty in another separate contract for a different matter, containéd in the same instrument. [*140]
    Union—
    This bill was filed 11th November, 1832, by John P. Sarter, and wife Patsey, late Patsey Sims, daughter of Reuben Sims, the said Reuben Sims' and his infant children, Ann, Mary, John, James, William and Reuben, by their next friend, Nathan Sims, against the defendant, as administrator with the will annexed of Edward Stevens. It states that the said Edward Stevens, in his lifetime, and Reuben Sims, entered into the following agreement, to wit: — ■
    State of South Carolina,]
    Union District. j
    Agreement made and entered into this 11th day of January, 1832, between Edward Stevens of the State and' district aforesaid, of the one part, and Reuben Sims, of the State and district aforesaid, of the other part, as follows : — The said Edward Stevens-doth hereby agree with said Reuben Sims, to sell to the children or their agent, of the said Reuben Sims, all that family of negroes *and their increase, known by the r^-. 99 name of Abram and his family, that I bought at sheriff’s sale at L ~‘~l Union Court House on sale-day, in September, in the year 1821, for the sum of eighteen hundred dollars and interest from the time that he bought them; and that he, the said Edward Stevens, in January next, on receiving from the children, or their agent, of said Reuben Sims, the said sum of money, then he is to execute a bill of sale of the said negroes to the said children, or their agent, of said Reuben Sims, free from all incumbrances, which bill of sale shall contain a general warranty, and the usual full covenant: and the said R. Sims agrees with the said Edward Stevens, that the children, or their agent, of the said Reuben Sims, shall and will, in January next, and on the execution of such bill of sale, pay unto the said Edward Stevens the sum of eighteen hundred dollars, and interest aforesaid. And it is further agreed between the parties aforesaid, that the said Edward Stevens do pay hire for the use of the aforesaid negroes from the first January, 1828, until January next, when, and upon the delivery and bill of sale, the possession is to be delivered to the children or their agent, of the said Reuben Sims : it is agreed between the parties that the children, or their agent, of the said Reuben Sims, do pay the said E. Stevens for his trouble and expense for attending to a law suit, what any two or three good disinterested men shall say it is worth : and it is understood that the stipulations aforesaid are to apply to, and to bind the heirs, executors and administrators of the respective parties ; and in case of failure, the parties bind themselves, each unto the other, in the sum of six thousand dollars, which they hereby consent to fix and liquidate as the amount of damages to be paid by the failing party, for his non-performance, whereof the parties have hereunto set their hands and seals, the day and year aforesaid.
    R. Sims, ■ [l. s.[
    Edward Steyens. [l. s.[
    That in pursuance of this agreement, Stevens received $100, and has had the use of the negroes, for which he was to pay hire, both which must be deducted from the price agreed to be paid for the negroes. That the time fixed for the performance of the agreement has not yet arrived ; and that the defendant as administrator, has recently advertised for sale all the personal property of Stevens not specifically bequeathed, including *1231 these negroes, and *is about to sell the same in December (then) J next. That the negroes are valuable, and' Stevens’ estate so- embarrassed, that after the payment of his debts there will not remain sufficient to discharge the $6000 which has been fixed in the agreement as liquidated damages for its non-performance; and if the defendant should be permitted to sell the negroes, they may be scattered abroad, or perhaps removed out of the jurisdiction of the Court, whereby a specific execution of the contract, which was the main object of the parties, would be prevented, to the irreparable injury of the plaintiffs : and under these circumstances they have no adequate remedy at law. The bill prays for an injunction to restrain the defendant from selling — that the defendant account for the hire, and give bond and security for the delivery of the negroes at the time specified in the agreement, — and that the said agreement may be specifically performed.
    On filing the bill, a motion was made before the Commissioner for an injunction, which was refused.
    On the 8th June, 1833, the defendant put in a general demurrer to the bill, which Chancellor Johnston overruled, and at the same time granted an injunction and leave to amend the bill. The amendment to the bill alleges, that in January 1833, the plaintiffs, by their friend and agent, Nathan Sims, offered to perform the agreement on their part, and tendered to the defendant the sum stipulated to be paid, which he refused to accept, and refused to perform the agreement on the part of said Stevens to be performed.
    On the 5th August, 1833, the defendant filed his answer, in which he requires proof of the execution of the agreement set out in the bill, and of the payment of four hundred dollars in part performance. He answers, that not believing that the plaintiffs seriously intended to prosecute their claim, he had advertised the negroes for sale, but has since declined selling until the matter is adjudicated; nor has he any intention of removing them from the State. He cannot say what the main object of the agreement was, but the estate of Stevens will be amply sufficient to pay any demand the plaintiffs could recover on account of the said agreement. That the time for the performance had not arrived at the filing of the bill, and submits to the Court, that if the plaintiffs had performed their part of the.agreement, they had a plain and adequate remedy at law. That if the plaintiffs could, at the time of filing their bill, have come into this Court for relief, it could only have been for an injunction until .-.¡., „ . the time of performance; and that part of the case has failed by L the rejection of the application'by the Commissioner: and as the case now stands, [before the amended bill,] it is a bill filed in November, 1832, to enforce an agreement, which, by its terms, is not to be performed until the January following, without alleging that the plaintiffs have performed or offered to perform the agreement on their part — in effect, asking the Court to enforce an agreement against the defendant before the time specified in it, and at the same time to absolve the plaintiffs from the performance on their part. And he pleads in bar the want of such an allegation in the bill, and to the jurisdiction of the Court.
    To the amended bill the defendant answered, that neither the said Reuben Sims, nor his children, did, at the time the agreement was to be performed, offer to perform their part. That he did not know there was any agent for the children, or who he was; neither does he believe that there was any such person legally authorized to act for them, and requires proof thereof.
    The cause was. heard before Chancellor De Saussure, June, 1834. On the trial the agreement set out in the bill was produced and the signature of Stevens proved. It was also proved that, in January 1833, Nathan Sims, the uncle of Reuben Sims’ children, and their next friend in this case, with bank bills in hand sufficient for this purpose, offered to pay Gordon the money due, according to the .agreement, and stated that if objections were made to the bills he would procure specie; to which Gordon replied that he made no objection to the bills, but that he did not know the amount which would be due according to the' agreement, and if he did, he would not accept the money. The estate of Stevens, it appeared, was much embarrassed, and from the statement of the administrator, (which was admitted by consent,) there will remain, after the payment of the debts, (exclusive of these negroes, or the sum of $1800 in the agreement,) about $3000 for distribution. Reuben Sims was insolvent in 1832, and is so now. It was further proved that the negroes in question came by Mrs. Sims in marriage, and some of them had been raised with her. They were purchased by Stevens, at sheriff’s sale, as the property of Reuben Sims, and after the sale he said that if the family of Sims, or their friends for them, would pay him what he gave, and some compensation for his trouble, they should have the negroes. The negroes were proved to be worth about $4000, and their hire from January, 1828, $215 per annum.
    
    ^Chancellor De Saussure. The principal questions which arise in this case, are: — First. Whether this is such an agreement L as is binding on the representative of the estate of Edward Stevens And whether this is a case in which the Court ought to give the relief prayed for, by decreeing specific performance of the agreement ? At the hearing of the case, it was urged, though not very strongly, that there was no jurisdiction in the Court; but in answer, it was insisted that Chancellor Johnston had already decided that question, which was not appealed from, and that would be sufficient. But in truth, the plaintiff would have substantially the benefit of that plea, if the Court should be of opinion that this is a case in which it ought not to decree a specific performance.
    On examining the first question above stated, it appears to me, after ascertaining the facts proved in the cause, that the agreement is binding on the representative of Edward Stevens. The objections made were, that there was no person with whom he could legally contract, and therefore the contract for the slaves was void; and'^lso, that the consideration was too low and inadequate. It is true that Reuben Sims, with whom Mr. Stevens contracted to sell and deliver the slaves in question, did not contract on his own behalf, but on behalf of the children, or in other words, was constituted a trustee on their behalf. Now, it is the doctrine of law as well as of common sense, that if a. stranger undertake to contract for minors, his act, though it may not bind them, will bind him; for, in the very instrument of agreement he binds himself to pay the stipulated sum of $1800, and interest for the slaves, with a heavy penalty if the terms are not complied with: besides, it is not true that all contracts should be so absolutely mutual that mutual remedies should flow from them. One exception is, that if an adult male make a pi’omise of marriage with a minor, and fail to perform it, he would be liable for damages, though she would not be liable. Others would be made under peculiar circumstances. When an adult deals with a minor, knowing his minority, and in contracts for property with a minor, the deeds are not void, but voidable only at the option of the minor and if they be for his benefit, will be sustained. I think, therefore, that Mr. Edward Stevens and his representatives were bound by this contract. As to the inadequacy of the consideration, it is true that the contract was for $1800, and the slaves were proved to be worth $4000. If this had been an ordinary case Persons mature age dealing *with each other at arm’s length, J this'disproportion of price to value would not have been of itself a sufficient ground to put aside the contract without some circumstance of fraud, imposition, or utter ignorance. But none of these things have occurred; there is areal and valuable consideration, and no allegation of fraud or imposition. Mr. Stevens knew he had obtained a great bargain at the sheriff’s sale, at the expense of a large family, and seems to have been induced by kind feelings to let the children of the family have the slaves at the same price he had given, and who were to pay him in this act of beneficence. The objection by his administrator seems to me to be unfounded. Another objection was made, that the terms were not complied with, and the money not paid at the stipulated time. In transactions of this kind it is not understood that time is of the essence of the contract. To bo sure, great and long-continued non-performance will in some instances, in which circumstances are greatly changed, be construed into an abandonment of the bargain. This, however, is rare, and takes place only when the conduct of the parties indicates the intention to abandon the contract, or the delays haye produced great injury to the one' seeking to get rid of tlie contract. In the case we are considering, there is no evidence of any design on the part of the minors, or their friend and trustee, Mr. Sims, to relinquish the contract — on the contrary, an effort was made to complete the payment to the administration of Mr. Stevens, which, if it did not absolutely amount to a formal tender of the purchase money according to strict rule, was so substantially; and utterly takes away all pretence of the contract being abandoned, or so grossly neglected for an immoderate length of time, as ought to preclude the enforcement of it now by the administrator. The offer to pay the money was refused.
    The principal question in the cause, and one involving real difficulty, is whether it is legal and proper to decree the specific performance of an agreement for the sale of slaves. It is not to be questioned that the general doctrine of the Court of Equity is, that specific performance will not generally be decreed of contracts of personal goods and chattels, though it will as to real estate. The reason is, that the former are of a perishable and transient nature, and not always capable of being decreed in specie as land may; and also, because compensation in damages may, and generally will be, an adequate and proper remedy. There are, however, exceptions to the rule, when the personal property is of a peculiar Character, and where a peculiar value is placed upon particular articles, such as pictures, vases, arms, amorial-bearings — from L feelings of affection, family attachment, or other, considerations of that kind. It has long been a question, how far the rule or the exception should be applicable to the cases of contracts for slaves. All the reasons which apply to the exception, apply to the case of slaves; not, perhaps, broadly and unqualifiedly, but to domestic servants brought up in a family, and who became, as in this case, the subjects of contract with the family who raised them. In many of the contracts for slaves, compensation in damages would not be a proper or adequate compensation. In most cases, slaves are purchased with a view to the settlement and cultivation of land; and if a disappointment in the purchase of the slaves takes place, the land may be uncultivated and a burden. The Courts have been approaching to this view of the subject, and I understand that the Court of Appeals has leaned favorably to it. It is time that the doctrine should be settled, and I shall therefore decree, according to my judgment, in favor of the specific execution of this contract, in order to have the question distinctly carried up to the Court of Appeals for its final judgment.
    Other questions were made at the hearing. By the contract for the negroes between Stevens and Sims, on behalf of the minor children, it was agreed by the said Stevens, to sell to the children, or their agent, all that family of negroes (now in question) for the sum of $1800, and interest from the time he bought them at sheriff’s sale, (September, 1821,) and that he, Edward Stevens, would in January next, after date of the agreement, (January 11, 1832,) on receiving from the children, or their agent, Reuben Sims, the said sum of money, ($1800,) would execute a bill of sale of the said slaves, to the said children, or their agent, of the said Reuben Sims, free from incumbrances, and with a clause of warranty, whereupon the said sum of $1800 was to be paid, with interest, to the said Edward Stevens. And it was further agreed, that the said Edward Stevens should pay hire for the use of the said slaves, from the first of January, 1828, until the first of January then next ensuing, (January, 1833,) when the possession of the slaves was to be delivered to the said children, or their agent. It was also agreed, that the children, or their agent, should pay to Edward Stevens, for his trouble and expense for attending to a law suit, what two or three good disinterested men shall say it is worth. The parties also *bound themselves, and their heirs, executors and administrators, respectively, in the sum of six thousand dollars, as the amount of damages for the faithful performance of the stipulations of the agreement. These stipulations are sufficiently distinct and precise. Yet it was argued for defendant, that if interest should be allowed on the sum of $1800, paid by Mr. Stevens, and hire allowed for the work of the slaves during the time they were held by him, that it would be greatly to the disadvantage of the estate of Stevens, as the usual rate of hire would greatly exceed the interest. If this should operate hardly on Mr. Stevens’ estate, it would be the effect of his own express agreement. Such are the terms of his own agreement. It might be inexplicable why he entered into such stipulations, unless we understand what I think all the circumstances warrant, and even require us to believe, which is, that Mr. Stevens, throughout the whole transaction, acted as the friend of the children, and though a bona fide purchaser of the slaves at sheriff’s sale at a low price, he never meant to make a profit on the purchase, but to let them have all the profits of the hire and labor, provided he was reimbursed his advance of $1800, with interest. This, I think, the true clue to the whole transaction, in which there was no impropriety towards any, and great kindness and good-will to these children.
    It is therefore ordered and decreed, that the plaintiffs do pay over to the defendant, the administrator of Edward Stevens, the sum of $1800, with interest, according to the agreement; and that the said administrator do convey the said slaves in question, and their increase, to the said children, mentioned in the pleadings, or to their agent, and account or their hire and labor according to the terms of the agreement. But under the circumstances, the rate of hire should be fixed at a very moderate rate. And that the Commissioner to whom the case is referred to examine and make up the account for hire, do also examine and report what compensation ought to be allowed to Mr. Stevens’ estate for his services in the law suit mentioned in the agreement, of which there is no proof before the Court. Costs, in such a case as this, to be paid out of the property in question.
    The defendant appealed on the following grounds :
    1. That the bill was prematurely filed: the injunction part having failed, there was no ground on which it could be restrained, and the demurrer should have been sustained.
    oq-i 2. The amendment to the bill ought not to have been allowed : •J it was too late, but if allowed, it should have been on terms.
    3. The agreement was not proved as required by the'answer, there being no proof that Reuben Sims executed it.
    4. There was no proof that Reuben Sims, his children, or their agent, offered to perform their part of the agreement at the time it was to have been performed, or at any time since: the agreement requires performance by the children or their agent, and there was no proof of any such agency — the unauthorized acts of Nathan Sims were not such an offer to perform as required performance on the part of the defendant.
    5. The positive answer of the defendant, that there was no offer to perform by the plaintiffs or their agent, is conclusive against them, the proof as to the acts of Nathan Sims being vague and indefinite.
    6. That there is a plain and adequate remedy at law, and this Court has therefore no jurisdiction.
    Y. That the consideration is grossly inadequate — the agreement is unequal, unreasonable, unfair, unjust and unconscionable.
    8. There is no party responsible to the estate of the testator — no reciprocity in the contract — no mutuality. — Sims being insolvent, and his children minors, they should not only be willing, but able to perform the contract.
    9. Reuben Sims is insolvent — the contract uncertain and executory, and no part performed, — no injury can therefore result to the plaintiffs.
    10. That the decree is in every respect contrary to equity and evidence.
    
      Herndon, for the defendant,
    argued that after the motion for injunction had failed, the bill being filed before the time fixed for the performance of the agreement, was stripped of all equity. After the time fixed for performance, and on the case being called for trial, leave to amend was granted, by inserting an important allegation; it was in effect a new bill, for relief could not have been had under the first bill at the time it was filed, and with the statement contained in it. Under such circumstances, to allow the amendment was improper; or if allowed, the costs of the case up to that time, should have been paid for the leave. The agreement was not proved, and the answer requires proof of it. Stevens’ ^signature was proved, but not Sims’, and such proof was necessary. New. on Gout. 161. On the fourth and fifth grounds, L he contended that there was not sufficient proof of an offer to perform on the part of the plaintiffs or their agent. There was no evidence that Nathan Sims was actiug for the children, and unless he came with authority from them, the defendant would not have been justified in delivering the negroes to him. But at most, conceding that he was authorized so to act, it was a mere loose conversation; to make it effectual as a tender, the money should have been deposited with the Commissioner. The defendant, however, denies that such an offer was made, and the answer must be evidence, unless contradicted by two witnesses, which it is not. It is incumbent on the plaintiffs to show that they had done all they could do. Mad. Chan. 831.
    But there is a plain remedy at law by action on this agreement, in which it seems the damages are liquidated, and adequate relief could thus be had. Can a bill be maintained for the specific performance of a contract for the sale of negroes ? The rule clearly is, that such a bill cannot be sustained for personal chattels in general; and if the case of an agreement for the sale of slaves is to constitute an exception, it will be now for the first time made. “ The general rule is, that the Court will not direct the specific delivery of a chattel, because the party has plain and adequate remedy at law.” Nott, J. in Lining v. Geddes, 1 M’C. Ch. 308 ; Farley v. Farley, 1 M’C. Ch. 506, decides the point that a bill will not lie to compel the delivery of slaves. There is nothing peculiar in the circumstances of this case, or alleged in the bill, to induce the Court to exercise its extraordinary powers in compelling specific performance — nothing to prevent plain and adequate relief at law. New. on Contr. 313.
    On the ground of inadequacy of price, he insisted that there was a distinction between executed and executory contracts — that while mere inadequacy of price would not be a ground to set aside the former, it might prevent the Court from interposing to enforce the latter ; and that to entitle a party to specific performance, the contract must be fair, just, and reasonable. Osgood v. Franklin, 2 John. Ch. Rep. 23 ; 1 Mad. Chan. 323, 407, 425 : 1 Bro. Ch. Ca. 326 ; 10 Yes. 292 ; Cas. Temp. Talb. 234; Mewl, on Contr. 69; Cabeen v. Gordon, 1 Hill, Ch. 54; Butler v. Haskell, 4Eq. Rep. 673.
    ^-.q-T-i * According to the evidence, these negroes were worth at the J time offthe contract $4000, and their yearly hire from 1828 to the time of performance $275, making for their value and hire $5375. The price agreed to be paid with interest, to the same time, is $2472, leaving $2903 — a clear gain to the plaintiffs, and actual loss to the defendant. Besides, the hire so far exceeds the interest, that if the negroes remain much longer in his possession, the plaintiffs will have nothing to pay. Will a Court of Equity enforce such a contract ?
    The want of mutuality should prevent its enforcement. Sims is insolvent and his children minors, and if they were not, he could not compel them to perform, or make any contract which would be obligatory on them. They are not legally bound by this agreement. Will the Court enforce the execution of a contract where but one of the parties is bound ? In any event, before performance was decreed, they should have been required to put down the money. 1 Mad. Oh. 423 ; 1 Mad. Rep. 11; 1 M’C. Ch. 38.
    Lastly, the uncertainty of the agreement is an objection — the amount to be paid to Stevens for his services is uncertain, and as yet entirely unknown. Mad. Ch. 426 ; New. on Cont. 157.
    
      J. J. Caldwell & A. W. Thomson, for the plaintiffs.
    They insisted that the agreement was sufficiently proved. There was proof of Stevens’ signature, the party against whom it was to be enforced, and Sims is a party plaintiff in the bill which he has sworn to; besides, no such objection was urged on the trial when the agreement was regarded as being in evidence, on full proof of its execution. The important question in the case is as to the jurisdiction. The bill was not filed prematurely. The negroes were about to be sold; and the bill was filed on the familiar principle that a Court of Equity will interpose to secure the forthcoming of property to a party not entitled to the present possession, but in remainder. This is a proper ground of equity jurisdiction, and the refusal of the Commissioner to grant the injunction, does not destroy the equity. The case then, being properly in Court for one purpose, may be retained for every purpose; the Court having possession of the ease, will do complete and ample justice, and not send the parties to another tribunal. Rathbone v. Warren, 10 John. 596; King v. Baldwin, 17 John. Rep. 3,84. The subsequent amendment to the bill was properly allowed. *Leave to amend is a matter in the discretion of the Court, and r-^oo that discretion has been properly exercised to subserve the ends ■ L' of justice.
    The general rule, that a bill will not lie to enforce the delivery of specific chattels, proceeds on the ground that adequate relief can be had at law by way of damages. But in this case; such relief cannot be had, for it is at least doubtful whether the estate would be sufficient for that purpose. Exceptions, however, have been allowed to the rule, on account of some peculiar value attached to some chattels, where compensation adequate to the loss could not be had in damages ; as in the case of the Pusey horn, and family paintings, &c. The same reason applies. These are family negroes, the most of them raised with the plaintiffs — their qualities wore known, and feelings of kindness and attachment had grown up between them. Will the Court exercise its sensibilities in favor of a painting or a,Pusey horn, and withhold them in the case of a human being? From the principles laid down in all the cases on this subject, it appears, that where damages would be no adequate compensation, or the injury would be irreparable without it, specific performance will be decreed. In Howard v. Hopkins, 2 Atk. 871, the specific performance of articles for the purchase of an estate was decreed, although a penalty was fixed for .non-performance. 'See also Goring v. Nash, 3 Atk. 186-7. Whatever may be the doctrine of the English Courts, in this State, bills have been sustained for the delivery of slaves. Wamburzee v. Kennedy, 4 Eq. Rep. 474; Brown v. Gilliland, 3 Eq. Rep. 541 ; Chick v. Smith, Harp. Eq. Rep. 298, And specific performance of contracts for the sale of slave's, has been decreed in Kentucky and North Carolina. 4 Bibb, 186; 2 Bibb, 410 ; 2 Murphy, 74. Farley v. Farley, is not directly opposed to such a bill being sustained. The bill in that case was dismissed because the proper parties were not before the Court. It ought, however, to be reviewed.
    The want of mutuality is no objection. There is the same want of it in every contract between an adult and a minor, where one is bound and the other not; and as to Sims’ insolvency, the defendant has the security in his own hands — the Court will take care that the money shall be paid.
    As to the inadequacy of price, it is not pretended that there was any fraud in the transaction. Stevens was certainly not overreached; but, actuated by benevolent motives, consented to forego a *specula- r*iqq tion on being reimbursed what he had paid. 'Nor is there any L thing in the objection, that there was no offer to perform on the part of the plaintiffs. Nathan Sims was their next friend in the bill; he was notoriously acting on their behalf — the answer in this part is not distinct, and the evidence is satisfactory.
   Harper, J.

I shall first consider that which perhaps constitutes the only difficult or material subject of investigation in the case — the question, whether the bill for the specific performance of this contract can be maintained in this Court, which constitutes the sixth ground of the appeal. The cases of Pusey v. Pusey, 1 Tem. 273; of Duke of Somerset v. Cookson, 3 Pr. Wms. 390; Buxton v. Lister, 3 Atk. 383; Fells v. Read, 3 Ves. 70; Loyd v. Loaring, 6 Ves. 778; Lowther v. Lowther, 13 Ves. 95; and Macclesfield v. Davis, 3 Ves. & B. 16, put it out of the question that a bill will lie in many cases for the specific delivery of a chattel.

It seems to have been a matter of some uncertainty in our own decisions, whether a bill may be maintained for the specific delivery of a slave, and in what cases ; and it is desirable that we should come to some specific conclusion on the subject. The general principle on which the decisions go is, that where damages will not-be an adequate compensation, the party is not entitled to relief in equitjr. But the principle might perhaps be more broadly stated. The method of relief on contracts in equity, is to carry them into specific execution, and it is laid down in the text of Fonblanque, B. 1, Ch. iii. sec. 1, that “where the contract is good at law, equity will carry it into execution. ” The commentator on Fonblanque, ib. n. c. observes, “ this proposition is too generally stated; for though equity will enforce the specific performance of fair and reasonable contracts, where the party wants the thing in specie and cannot have it in any other way; yet, if the breach of the contract can be, or was intended to be compensated in damages, Courts of Equity will not interpose.” In general, where the contract related to personalty, the party was not supposed to want a specific execution, and no doubt very much for the reason assigned in the same chapter, “that chattels were of little value at the common law, when personal property was but small.”

The principle may be illustrated by the cases in which specific performances of such contracts has been refused. In Cud v. Rutter, I Pr. Wms. *1341 510,' where the contract was for the transfer of stock, *the reason-J ing of the Chancellor was, “that a Court of Equity ought not to execute any of these agreements, but to leave them to law where the party is to recover damages, and with the money may, if he pleases, buy the quantity of stock agreed to be transferred to him ; for there can be no difference between one man’s stock and another’s. It is true, one parcel of land may vary from and be more commodious, pleasant or convenient than another parcel of land, but £1000 South Sea Stock, whether it be A, B, or C’s, is the same thing, and in no sort-variant.” Yet in Colt v. Netterville, 2 Pr. Wms. 304, where the bill was to have a transfer of stock which was rising rapidly in value, the Chancellor seemed to doubt whether justice did not require the transfer to be decreed. In Errington v. Aynesly, 2 Br. C. C. 343, the Master of the Rolls, refusing specific performance of an agreement to build a bridge, says, “ there is no case of a specific performance of an agreement to build a house, because, if A will not do it, B may. A specific performance is only decreed where the party wants the thing in specie, and cannot have it in any other way.”

In the cases of the Pusey horn, of the antique altar-piece which had been long in the family, of the ornamented silver tobacco-box, the property of a club, and some others, it was only the feelings and imagination of the owners, giving the articles a peculiar value to them, which a jury, fixing the market value, could not be supposed to estimate, that was held to entitle them to relief. In Fells v. Read, the Chancellor remarks in relation to'those cases : “It was not to be cast to the estimation of people who have not those feelings. In all cases where the object of the suit is not liable to a compensation by damages, it would be strange if the law of this country did not afford any remedy. It would be great injustice if an individual cannot have his property without being liable to the estimate of people who have not his feelings upon it.” In Buxton v. Lister, a different class of cases is considered. The case of Taylor v. Neville, is referred to:

“ That was for a performance of articles for sale of eight hundred tons of iron, to be paid by instalments, and a specific performance was decreed.

“ There are several circumstances which may concur.

“ A man may contract for the purchase of a great quantity of timber, as a ship carpenter, by reason of the vicinity of the timber.

“ On the part of the seller, suppose a man wants to clear his land, in order to turn it to a particular sort of husbandry, here nothing L' can answer the justice of the case, but the performance of the contract in specie.

“In the case of John, Duke of Buckinghamshire v. Ward, a bill was brought for the specific performance of a lease relating to Alum Works and the trade thereof, which would be greatly damaged if the covenant was not performed on the part of Ward.

“The covenants lay there in damages, and yet the Court considered, if they did not make such a decree, an action afterwards would not answer the justice of the case. ”

The general principle is, that the Court will execute any fair and reasonable agreement, unless it appears that full justice may be done by a compensation in damages. Now, if these numerous and uncontradicted decisions are evidence of the law, then it is certain that there may be some cases in which a bill will lie for the.specific delivery of a slave. Suppose the case, which I have known, of a slave accustomed to wait on a deaf and dumb person, and from long habit able to communicate ideas with him. This would add nothing to his market value, though rendering him inestimable to his owner. Many similar cases may be conceived. A slave may have been the nurse of her master’s children, or may have saved the life of one of his master’s family. In such cases, what mockery would it be to tell the master that he might have full compensation by damages for the loss of the slave ? And unless there be something very perverse in the disposition of the master or the slave, in every instance where a slave has been reared in a family, there exists' a mutual attachment between the members of it and himself. The tie of master and slave is one of the most intimate relations of society. In every age the distinction has been recognized between the slave brought up in his master’s household and one casually acquired. And it may be said, that such an one is actually of more value to the master than he would be to a stranger. The owner better understands his qualities, and what he is capable of performing, and the slave will be more likely to serve with cheerfulness and fidelity. These considerations are greatly strengthened by that of humanity to the slave himself. Are not such feelings worthy of more regard than the taste which would covet-an antique altar-piece or a picture of Titian ? We have the principle from the English decisions, but an infinitely stronger case in which to apply it.

In the case before us, it appears that the slaves in question were „„ brought up in the family of the plaintiffs, and according to the L view I have taken, this makes the case in which a bill may be maintained. But it is argued that this may lead to very extensive consequences. Though not strictly born and reared in the master’s family, yet there may be the same attachment and the same circumstances to give a peculiar value, from a shorter ownership. Slaves are moral and intellectual beings, having qualities infinitely diversified, and in every case where specific slaves are contracted for, it might be said that the contract was made with a view to those peculiar qualities. But I am not to shrink from enforcing a well-settled principle of law, because it may lead to unforeseen consequences. I believe these consequences will follow, and I am prepared to lay it down as a general rule, that a hill will lie for the specific delivery of slaves, as for the specific performance of a contract for the sale of land; and in saying this, I believe I am giving effect to the law, according to its true meaning.

We have seen that the principle is, that equity'will enforce contracts specifically, unless it appear that there may be full compensation in damages. But this cannot appear in the case of slaves, any more than in a contract for the sale of land.

In case of the purchase of land, it is presumed that the party was induced by some particular liking, or some convenience in the particular land. But there is as great, and perhaps greater reason for supposing that a purchaser of specific slaves has a view to their peculiar qualities.

The objection at common law, that chattels were of little value, does not apply to these. They are a property no less permanent and valuable than the land itself. It is said in Buxton v. Lister, “As to cases of contracts for purchase of lands, or things that relate to realities, those are of a permanent nature, and if a person agrees to purchase them, it is on a particular liking to the land, and is quite a different thing from matters in the way of trade.” Does not this apply equally to slaves ? Can you say, as in the cases which relate to stock, that one man’s slave is as good .as another man’s slave ? It may chance to be so ; as it might happen that a man might with the damages recovered for a breach of contract to sell land, buy other land equally convenient and agreeable; but this is not generally so, nor so to be presumed. The fair presumption is, that when a man contracts for particular slaves, he wants to have them in specie.

*1 *With us slaves are commonly employed on land. Suppose a J man at the same time to contract for land and the slaves employed upon it; it would be nugatory, and defeat his object altogether, to give him the land, if he could not have the slaves. The cases are so many and various in which justice could only be done by a specific delivery, that it is best to have a general and certain rule. It is on such views I suppose, that the same doctrine has been established in other States where slavery exists. Cases to this effect were quoted from Kentucky and North Carolina — 4 Bibb, 186; 2 Bibb, 410; 2 Murphy, 14.

There may be exceptions to the rule. If it appeared that the purchaser contracted for the slaves as merchandise to sell again, this, according to the expression in Buxton v. Lister, would be merely a matter in the way of trade, and in such case it is certain that complete justice might be done by a compensation in damages. But the general rule must be as I have stated.

This dispenses with the necessity of considering some of the other grounds on which the jurisdiction of the Court was attempted to be supported. The other grounds of appeal, as I have before observed, will require but slight notice.

The first and second may be considered together. They are founded upon a misconception of the practice of equity, arguing from analogy to proceedings at law. If a bill appear on the face of it to be prematurely filed, and advantage be taken of this by demurrer, the demurrer will be fatal. If there be no demurrer, and the case be brought to a hearing before the time fixed for the performance of the contract, there might be reason to contend that the bill should be dismissed. But if no advantage be taken by demurrer, and it be not brought to a hearing till the proper time of performance has elapsed, the Court would not do so nugatory a thing as to dismiss the bill in order to compel the party immediately to file another bill for the very same purpose. Equity can do full justice to the parties by preventing surprise and imposing costs on the parties by whose fault they were prematurely and unnecessarily incurred. But this bill was not prematurely filed with respect to the object which the parties then had in view — the preventing of the sale of the slaves. Coming for this purpose, as the time of performance was on the eve of arriving, it was proper that all the matters in controversy should be brought forward to prevent multiplicity of litigation. The leave to amend was matter of discretion, and we think it was properly exercised.

*There is nothing in the third ground as respects either the r*^gg law or the fact: the agreement was received in evidence, without *- any objection (so far as appears from the report of the Judge) to the proof of its execution. No doubt seems to have been seriously entertained of the fact of its execution by Reuben Sims, and if there were any such casual omission, .as is supposed, we should certainly send the cause back that the defect might be supplied.

The fourth and fifth grounds may be taken together. The objection seems to be, that it does not appear that Nathan Sims, who is alleged to have offered payment of the money, was the authorized agent of the plaintiffs. There was no need of any such proof. Any one who would offer to pay the money in their behalf was agent enough, and they might adopt his act.' Besides, most of the plaintiffs were infants, incapable of appointing an agent, and no other agent than such a voluntary one could have been contemplated by the agreement.

With respect to the fact of the money having been offered, it was matter of evidence'for the Chancellor. Even at law, if a debtor.has the money ready, and informs his creditor that he is ready to pay him, and the creditor declares beforehand that he will not receive it, there is no need to prove a formal tender. It is argued that the answer denies the offer, and that it is only proved (and that imperfectly) by the testimony of a single witness, Boyce. I think the answer is equivocal, and, so far from contradicting, supports the testimony of Boyce. The defendant denies “that the said Reuben Sims and Ms children, or either of them, did, at the time that the said contract was to be performed, offer to perform their part of the same, according to the promise thereof. This defendant not knowing that there was any agent of the said children, or who he was, neither does he believe that there was any such person legally to act for the said children, Sc.” He plainly appears to rest his denial that Reuben Sims, or his children, offered performance, on his own conclusion that there was no person legally authorized to offer performance on their behalf. Such a method of answering cannot be too strongly censured. It is generally an attempt to gain the benefit of falsehood, without being subject to the direct charge of it.

With respect to the seventh ground, the Chancellor’s reasoning is entirely satisfactory. The Court refuses to enforce the specific performance *7 301 aS'reements, on the grounds of inadequacy of consideration,* -I because it infers that there must be hardship, injustice or mistake. But if the testator, having purchased the property of plaintiffs’ father, at a low price, chooses out of humanity to give them the benefit of it, upon being reimbursed what he has paid with interest, the whole doctrine is inapplicable. As the hire stipulated to be paid after the 1st of January, 1828, exceeds the interest to be received by the estate of Stevens, in order to make out an enormous inadequacy, calculations were entered into for the purpose of showing that if the period of performance should be deferred for some time, the debt to Stevens’ estate will be extinguished by that excess; so that, in fact, the estate of Stevens will receive nothing. But this also is founded in misconception. If the estate pays hire, it receives the service of the slaves, and we must suppose the one to be equivalent to the other. Then, if this be so, though the debt should be entirely extinguished, all that we can say is, that it has been paid in the services of slaves, instead of money. If the services be in fact equivalent to the hire, the estate will be in' no worse condition than if the contract had been performed at the day. If the defendants be entitled to the performance of the contract, they have been deprived of the services of the slaves from that day.

Under the eighth ground, the want of mutuality in the contract is relied on ; that is to say, that defendant’s testator could not have enforced performance against the plaintiffs, who were no parties to the contract. There can be no doubt but that Reuben Sims and the testator were bound at law. In Lowther v. Carrill, 1 Vern. 521, it was held to be sufficient if the writing be signed by the party, who sought to be charged by the bill, and such is said to have been the case of Hatton v. Grey, 2 Ch. Ca. 164. This was denied, however, by Lord Redesdale, in Lawrenson v. Butler, 1 Sch. & Lef. 20, and in Shannon v. Bradstreet, lb. 58, in which he holds that both parties must be bound, or the Court will not enforce the performance. But he makes the exception expressly in the case of infants. “It is the peculiar privilege of infants for their protection, that though they are not bound, yet those who enter into contracts with them shall be bound, if it be prejudicial to the infant to rescind the contract.” See also Campbell v. Leach, Amb. 747, quoting Holt v. Ward, Fitz. 215. Most of the plaintiffs were infants at the time of the contract, and under the exception entitled to performance. But the contract is one and entire, and must be performed entirely or not at all.

*14.01 *The ninth ground is also misconceived. As between Reuben -* Sims and defendant’s testator the remedy was only at law, and at law there would be no question of solvency or insolvency, with reference to the validity of the contract. In equity, there have been some cases in which the Court has refused to enforce specific performance of a contract for a lease, on the ground of the tenant’s insolvency. Buckland v. Hall, 8 Ves. 92; O’Herlihy v. Hedges, 1 Sch. & Lef. 123. This was on the ground that the insolvency of the tenant might endanger the future payments of rent; and more especially where money was to be laid out by the tenant in repairs or improvements. But it is distinguished from the case of a contract to purchase, because, in such case, it is said, the bill tenders the purchase money, and the Court will not decree a title to be made until the purchase money is paid, or secured to be paid. The insolvency of the vendee is therefore immaterial. But in this case, by the terms of the contract, the slaves are not to be transferred till the money is paid, and if it were not so, the Court would take care that it should be paid or secured.-

With respect to the uncertainty which is supposed to render the contract void, it may be sufficient to observe that there is no uncertainty in the contract in which the plaintiffs are concerned. The terms on which the slaves are to be transferred to them, are perfectly certain ; but there is a distinct stipulation, entirely independent of this contract, by which Reuben Sims covenants “to pay the said E. Stevens for his trouble and expense for attending to a law suit, what any two or three good disinterested men shall say it is worth.” This is the personal undertaking of Reuben Sims, on which the remedy could only be at law. No doubt separate contracts may be contained in the same instrument, and this may be so regarded. Certainly it is no part of the contract'with the plaintiffs. The, Chancellor’s decree is affirmed.

Johnson and O’Neall, Js., concurred.  