ginia (that being the first settlement in any, tion was impressed with that construction part of the United States) was in 1607. And when it became a part of the law of the the doctrine appears to be settled that English statutes passed before the emigration of our ancestors to America, and which were applicable to our situation and not inconsistent with our institutions and government, constitute a part of the common law, and are in force (unless repealed) in all the states of the Union. [Doe ex dem. Patterson v. Winn] 5 Pet. 233 [8 L. Ed. 108]; [Sackett v. Sackett] 8 Pick. [Mass.] 309; [Bogardus v. Trinity Church] 4 Paige [N. Y.] 198; 1 Kent, 472, 473; [Moore's Heirs v. Moore's Devisees] 4 Dana [Ky.] 361 [29 Am. Dec. 417]." This latter case was cited and followed in the famous case of Horton v. Sledge, 29 Ala. 496, where it is said: "The English statute of uses was enacted 'before the emigration of our ancestors to America, is applicable to our situation, and not inconsistent with our institutions and government, and has been generally recognized and acted upon by the courts of this country and therefore constitutes a part of the common law' of Alabama, and is in force unless repealed. Carter and Wife v. Balfour's Adm'r, 19 Ala. 829." This last case was cited and followed as recently as the case of Louisville & Nashville Railroad Co. v. Cook, 168 Ala. 600, 53 South. 190, where it is said: "Not only the common law of England, in part, as above defined, but some parts of her statutory law as it existed before our ancestors emigrated therefrom, became in a sense incorporated in our unwritten or common law; but the English statutes, like the common law proper, only became a part of the law of each state, when not inconsistent with the institutions, government. and laws of such state. Horton v. Sledge, 29 Ala. 478." I am unable to find any decision of any court to the contrary, when the exact question was considered and decided. The English statute being in force in this state, except so far as changed by our statutes, no such right of action as stated in the majority opinion ever existed in this state. Surely states, and that the right of action never did exist in any of the states of that class. As to the other class of states, it was open for their courts to say whether or not the right of action should exist. The fullest and best considered case on the question, so far as the Eastern states are concerned, is that of Potts v. Imlay, 4 N. J. Law, 330 (377), 7 Am. Dec. 603. In that case it was said, the Chief Justice speaking: * "The cause has been twice argued at the bar upon this reason; the last time at the request of the court, and with much ability. The books have been searched for 400 years back, and upon that search it is conceded even by the counsel for the plaintiff below, himself, that no case can be found in which this action has been maintained, in circumstances similar to the present. Formerly the amercement, now the costs are the only penalty the law has given against a plaintiff for prosecuting a suit in a court of justice, in the regular and ordinary way, even though he fail in such prosecution. The courts of law are open to every citizen, and he may sue toties quoties upon the penalty of lawful costs only. These are considered as a sufficient compensation for the mere expenses of the defendant in his defense. They are given to him for this purpose, and he cannot rise up in a court of justice and say the Legislature have not given him enough. If we were legislators indeed perhaps we should be inclined to say that the costs in all cases where costs are given should completely indemnify the party for all his necessary expenses both of time and money; but those to whom this high trust is committed in this state have thought and we will presume have wisely thought otherwise." This learned Chief Justice quoted and approved the English court, after the passage of the statute of Marlbridge, as follows: "To bring a civil action therefore though there be no ground, is not actionable, because it is a claim of right in the king's courts to which every subject may resort, and he has found pledg es, is amercible for his false claim and liable to costs. It is not enough to declare that such acour statutes awarding full costs to the suc- tion was ex malitia et sine causa, per quod, he cessful party did not confer the right which was put to great charges; he must go further, did not theretofore exist. When this state prosecutor had no cause of action, or cause of he must shew special grievance, as that the was admitted into the Union it was well-set-action only to a small sum, and that he had sued tled law in all of the states of the Union that out a latitat for a large sum with intent to under the common law no such right of action existed in any of the states. Georgia, the state out of whose territory most all of Alabama was carved, after it was ceded to the United States, had held that no such right of action existed. It will be found that nearly if not quite all of the original 13 states had decided that no such right of action existed. The states, with a few exceptions, that have ever decided that the right of action exists at common law, were Western states, as to which the English statutes never became the common law. It is true the distinction I am making was not made in any of the decisions denying or allowing the right of action; but it seems to me that it is a valid distinction. In fact, it seems to me that the English statute having been con imprison him, or do him some special prejudice." The learned Chief Justice then summed up in a clear statement the law on this subject as follows: "I think it may be laid down as law that this action cannot be maintained, for prosecuting a civil suit in a court of common law having competent jurisdiction by the party himself in interest, unless the defendant has, upon such prosecution, been arrested without cause and deprived of his liberty, or made to suffer other special grievance different from and superadded to the ordinary expense of a defense." These are my sentiments, and, as I read our decisions, formulate the doctrine which has ever been adhered to by this court, without a shadow of turning, until this decision, which, in my opinion, overrules scores of our cases as to what is necessary to be alleged cause of action for malicious prosecution. a malicious prosecution; and if it should The Legislatures of this state and territory, for 100 years, have so understood the law to be. A form of action has been prepared and adopted by the Legislature, and in use under that sanction for more than half a century. That form prepared and adopted was in accord with what this court had theretofore repeatedly held to be necessary to state a cause of action as for malicious prosecution. It has ever since, except in this case, been held that the complaint must substantially conform to this Code form in order to state a cause of action. Complaints wanting in the same averments as the one under consideration have been held not to state a cause of action as for malicious prosecution. Let us compare the complaint in question with the Code form, and see if it substantially complies with the requisites fixed by the Legislature and the decisions of this court. In my judgment it is fatally defective, as a Code form, or a common-law form before the Code was adopted. The Code form is as follows: "The plaintiff claims of the defendant dollars, damages for maliciously, and without probable cause therefor, causing the plaintiff to be arrested under a warrant issued by E. F. a justice of the peace, on the day of -, on a charge of larceny (or as the case may be), which charge, before the commencement of this action has been judicially investigated, and said prosecution ended, and the plaintiff discharged." Code 1907, § 5382, Form 20. Before the Code form was adopted, it was held by this court that to constitute "a good count in case, it should have averred the issuance of process, that the process should have been properly described, and that it should have further averred that the plaintiff was arrested and imprisoned by virtue thereof. 2 Chitty's Pl. 601; 1 H. Bla. 49; 1 T. R. 238." Sheppard v. Furniss, 19 Ala. 764. This language and holding has ever since been followed. One of the most recent | cases in which it was followed was Davis v. Sanders, 133 Ala. 275, 32 South. 499, and Sanders v. Davis, 153 Ala. 375, 44 South. 979. It was twice considered in this court as to the sufficiency of a count to state a cause of action as for malicious prosecution, and on both appeals the rule as to sufficiency of averments above quoted was declared. On the last appeal in the above case, and referring to the former appeal, it was said: be amended so as to make it sufficient, of In This court has uniformly held these statutes as to costs to be penal. The judgment rendered is as for a penalty, measured by the amount it cost the defendant to defend. In some cases it is small, in others great; it often exceeds the amount sued for, or even what the defendant could recover if he were subsequently allowed to bring an action for malicious prosecution. This judgment is not always for a major amount, as the opinion says, by way of quotation from a Western court. It is certainly enough to deter a solvent plaintiff from bringing a causeless action. All this, however, is aside from the mark; whether this first judgment given the . defendant by the statute is all he ought to have, or more or less, is a question for the lawmaking power, and not for the courts. The judgment being in the nature of a penalty, the Legislature could, if it would, fix a given amount, or make it to depend upon the amount of costs, as it does, or double or "It is true that the case of Davis v. Sanders, supra, and others, hold that the absence of an allegation of the issuance of process is fatal to a count for malicious prosecution. Holly v. Carson, 39 Ala. 345. The reason which under- treble, and the courts would enforce it as lies these decisions is that, in order to constitute written, and not as the courts think it ought malicious prosecution, it is necessary to show The lawmaking that the party was arrested under regular valid to be in each particular case. judicial proceedings, by virtue of which he might have been legally convicted of the offense charged." Now, if these are necessary averments, and the statutes and the decisions of this court both say that they are, then the complaint in this case states no cause of action as for power could deny a defendant in such cases any right of action to recover either his costs or damages, or the right to a judgment in the first suit for either costs or damages; and when it has acted in the matter it is not for litigants or courts to say that the judgment is not for a sufficient amount, or is (201 Ala. 356) VAUGHAN. (3 Div. 327.) for too great an amount. It being a matter of legislative competency, and action having | SOUTHERN IRON & EQUIPMENT CO. v. been taken, the matter is settled, whether it pleases the litigants or courts. This is well and fully stated by the court of New Jersey, which has ever been followed by the Eastern courts, as to territory over which the English statute, as amending the ancient English law once prevailed. In that case it is said: "Originally when a false claim was made, and vexatious suit carried on, the plaintiff was subject to amercement, but he was not subject to damages in addition. That was considered sufficient and it was not the notion of those days to prevent men from applying to courts for a redress of their grievances. After the amercement fell into disuse, the Legislature interfered and gave costs; but for what purpose? To compensate the party, for his ordinary and regular expenses in his suit, but not for any injury, out of the usual and common course of proceeding, in courts of justice. For such, it did not pretend to apply a remedy. The Legislature no doubt supposed that it had given costs enough to effect the purposes which it had in view. It did not intend that the party should come in, say that the provision was not ample enough, that the costs did not satisfy his expenses, and therefore claim damages by suit, to correct the miscalculation of the Legislature. It was alleg ed, however in the argument at the bar, that in the court for the trial of small causes, no costs are really received by the defendant for his own benefit, and to pay his expenses; and therefore that he must be entitled to sue where he has been put to cost in that court. The reasoning is fallacious. In this as in every other court the Legislature have fixed what costs shall be given." So have this court construed our statute. In Northern v. Hanners, 121 Ala. 587, 25 South. 817, 77 Am. St. Rep. 74, there is a full discussion of the statutes, and among other things it is said: "Under the system of costs and fees as provided by our statutes, cost is not granted by the courts of this state as damages to the successful party, but rather in the nature of a penalty imposed upon the unsuccessful party. By express statute the law of costs must be held to be penal. Code, § 1353; City Council of Montgomery v. Foster, 54 Ala. 63; Dent v. State, 42 Ala. 514." A "Our statute authorizing a judgment for costs gives it to the party in whose favor judgment shall be given.' [Clay's Dig. 316, § 20.] judgment for costs then is an incident of the judgment in the cause, and must be in favor of and against a party to the cause. It is manifest the officers of court are not parties to the suit." Patterson et al. v. Officers, etc., 11 Ala. 740, 742. It is penal, imposed as punishment of a plaintiff for bringing and prosecuting a causeless suit, or of a defendant for making a false or useless defense. Both are wrong, and both are by the statute punished in the same manner. Why should not a defendant who causelessly or maliciously sets up a false defense be punished as well as a plaintiff who initiates such a suit? Our statute, in part, as to costs, has prevailed as to the territory forming the greater part of this state since 1807, twelve years before the formation of the state. See Westmoreland's Case, 11 Ala. 122. (Supreme Court of Alabama. Jan. 24, 1918. Rehearing Denied March 23, 1918.) 1. SPECIFIC PERFORMANCE 68-RIGHT TO REMEDY-SALE OF CHATTELS. Generally, contracts concerning sales of chattels will not be required to be specifically performed, because their money value as damages will enable purchase of others of like kind and quantity; but specific performance may be decreed where the chattels have a special value to the owner. 2. SPECIFIC PERFORMANCE 114(1)-SALE OF CHATTELS-BILL OF COMPLAINT. In suit for specific performance of contract to sell railway rails, where plaintiff alleged that he had sold the rails to a third person, his damages by the breach were easy of ascertainment, and the allegations that he would be irreparably damaged did not make a case of damage which could not be fixed by a jury at law. 3. SPECIFIC PERFORMANCE 68-RIGHT TO REMEDY-SALE OF CHATTELS. In suit for specific performance of contract to sell rails, where the defendant's insolvency was not alleged, plaintiff was not entitled to specific performance, since a decree for damages would compensate him for all damages from the breach, and he failed to show that, as required by Code 1907, § 3052, he had no plain and adequate remedy at law. 4. SPECIFIC PERFORMANCE 68-RIGHT TO REMEDY-SALE OF CHATTELS. Mere fact that economical conditions due to war rendered it impossible to get other rails than those which defendant agreed to sell plaintiff did not entitle plaintiff to specific performance of contract, where his damages were ascertainable in an action at law. Gardner, J., dissenting. Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge. Bill in equity by the Southern Iron & Equipment Company against W. H. Vaughan. Decree for defendant, and plaintiff appeals. Affirmed. Weil, Stakely & Vardaman, of Montgomery, for appellant. Hill, Hill, Whiting & Stern and W. A. Jordan, all of Montgomery, for appellee. THOMAS, J. The suit, which was by appellant as complainant below, was to restrain appellee (respondent) from making disposition to others than complainant of certain railroad material alleged to have been theretofore purchased by complainant from respondent; and it is prayed in the bill that, upon final hearing, a decree be entered directing specific performance of the contract on the part of respondent. The bill does not aver the insolvency of the respondent. The court is sought to be given jurisdiction of such matter by the averment: "That the nature of the contract now existing between it and the respondent is such that by a breach thereof by the respondent your orator will have no complete and adequate remedy at law, and if such a breach thereof is permitted, it will suffer great and irreparable injury thereby. Your orator avers that the kind and character of rails sold by the respondent to on this an insuperable difficulty arises in the way of the jurisdiction which this court exercises, to order the delivery of a specific chattel of peculiar value, as in the Pusey Horn Case (1 Vern. 273). In such a case as this it appears to me that it would be an innovation on the practice of the court to say that a jury could not adequately estimate by damages the nonpayment of a price fixed, as it is here, by the agreement of the parties." Dowling v. Betjemann, supra. your orator cannot be procured by your orator | view of the case which is made by the bill. Upin the open market, and, despite diligent efforts, your orator has not been able to procure them from any other source; that the market value of said rails cannot be ascertained; that if a breach of said contract is permitted, there will be no way to ascertain readily and completely and adequately the amount or extent to which your orator has been damaged; that your orator has sold the identical rails which it bought under its contracts aforesaid from the respondent to L. B. Foster Company of Pittsburgh, Pa., and said Foster Company are demanding of your orator a fulfillment of their contract with your orator, and the delivery of said rails; that if your orator does not secure the said rails from the respondent in order to make delivery of the same in accordance with its contract with said Foster Company, your orator will be unable to carry out its contract with the said Foster Company, and will be irreparably damaged." [1] The general rules obtaining, for specific performance, are that: [2] While complainant in the instant case does not aver the price at which it had resold the property in question to L. B. Foster Company of Pittsburgh, Pa., yet such sale is specifically averred, and the price thereof fixed by complainant is easy of ascertainment for submission to a jury for estimation of damages for a breach of the contract under the rules of law obtaining in such matters. The further averment that "said Foster Company are demanding" fulfillment of their contract with complainant for said rails, and that if complainant does not secure said rails from respondent to make delivery of the same in accordance with its contract with said Foster Company, complainant will "Equity will not, in general, decree the specific performance of contracts concerning chattels, because their money value recovered as damages will enable the party to purchase others in the market of like kind and quality. Where, however, particular chattels have some special value to the owner, over and above any pecuniary estimate-pretium affectionis-and where they are unique, rare, and incapable of being reproduced by money damages, equity will decree a specific delivery of them to their own-be unable to carry out its contract with that er, and the specific performance of contracts concerning them." For example, paintings, statuary, an ancient horn which has gone along with plaintiff's estate (Pusey v. Pusey, 1 Vern. 273), an old silver patera dug up on plaintiff's estate (Duke of Somerset v. Cookson, 3 P. Wms. 389), a peculiar tobacco box belonging to a club (Fells v. Read, 3 Ves. 70), the dress and regalia of a Lodge of Free Masons (Loyd v. Loaring, 6 Ves. ̧373), family pictures (Lady Arundel v. Phipps, 10 Ves. 139), title deeds and valuable paintings (Lowther v. Lord Lowther, 13 Ves. 95), a finely carved cherry stone (Pearne v. Lisle, Amb. 75, 77), two very valuable jars (Falcke v. Gray, 4 Drew. 651), and a newspaper business, printing plant, and material used in said business (Williams v. Carpenter, 14 Colo. 477, 24 Pac. 558; Brady v. Yost, 6 Idaho, 273, 55 Pac. 542). Mr. Pomeroy says that: "Where the party seeking to recover the property has himself fixed a value at which he has agreed to sell he cannot subsequently come into equity to obtain delivery of the chattel." And he cites as authority for the text Dowling v. Betjemann, 2 Johns. & Hemmings Rep. 544; 6 Pom. Eq. Jur. § 748. A reference to that case discloses the fact that the subject of controversy was a picture painted by the complainant, and alleged to have a special value; the holding was that where, by the terms of an agreement and the frame of the pleadings, the artist, seeking the restitution of his picture, had in effect put a fixed price upon it, damages would be an adequate remedy. The vice chancellor said: "It was, moreover, admitted at the bar that the payment of the £300 would dispose of the company, and will be "irreparably damaged," does not make a case of irreparable damage, that may not be fixed by a jury at law. In Black Diamond Co. v. Jones Coal Co., 76 Squth. 42, the rule declared in Montgomery Light & Power Co. v. Montgomery Traction Co. (C. C.) 191 Fed. 657, was not followed and the previous ruling of this court in Stewart v. White, 189 Ala. 192, 66 South. 623, was reaffirmed. The contract, specific performance of which was sought in Black Diamond Co. v. Coal Co., supra, was for the purchase and sale of coal, and required the defendant to sell to the plaintiff all of its output, to a stated daily average, for which the plaintiff was to pay monthly a stated amount per ton, etc., thus contemplating a continuous daily operation of the mine, requiring special skill, knowledge, and direction, over a period of months, and stipulating for a succession of acts that cannot be consummated by one transaction. The relief sought was denied. Under the averments of the bill the act of delivery of the railroad material was to embrace a series of installments extending over the period from October 2 to November 2, terial from its present location along a 1917, necessitating the removal of such maright of way of 14 or more miles in length, and delivery f. o. b. the cars at Perry's Mills, Ala. Thus the contract, by its terms, stipulated a succession of acts, to be continued through the reasonable period re If quired, to move to and deliver at point of destination the property in question. specific performance of such contract be required by the court, a more or less protracted sary to consummate such removal and delivery as per contract stipulations. And it may be that on this ground the decree of the court should be sustained, but this is not decided. [3] However, we prefer to justify the ruling of the court in dismissing plaintiff's bill, on the ground that the insolvency of Vaughan is not alleged, and that compensation for the breach of the contract will give full and complete redress, from the nature of the contract itself and the character of the subjectmatter thereof. That is, by a verdict at law the complainant will obtain all that it was the object, by resale of the property in question, to obtain. Savery v. Spence, 13 Ala. 561; Kirksey v. Fike, 27 Ala. 383, 62 Am. Dec. 768; Powell v. Central Plank Road Co., 24 Ala. 441; Morris v. Tuscaloosa Mfg. Co., 83 Ala. 565, 3 South. 689; Dilburn v. Youngblood, 85 Ala. 449, 5 South. 175. The result is unchanged by Lewman & Co. v. Ogden, 143 Ala. 351, 42 South. 102, 5 Ann. Cas. 265. There one of the parties had a contract with the United States for the erec tion of certain locks and dams on the Warrior and Tombigbee rivers, and sublet the contract to the other party under the written agreement to do the work by a designated time, and to furnish all necessary labor, teams, machinery, and appliances, etc.; and it was averred that said sublessee had ceased to work, and was attempting to remove such personal property necessary to the prosecution of the work, and to its completion "at the present season of the year, and at the present stage of the water." The bill, "in substance and in spirit" one for specific performance, was held to be without equity. The court said that specific performance might be decreed of a contract ior the delivery of chattels, which no one but the defendant can supply, and which are necessary to enable the plaintiff to fulfill an engagement with a third party, "but not where the delivery of the chattels by the defendant was a mere question of convenience." It may be that where goods of special value have been sold, and there are no other similar goods in the market, a contract for the delivery of them would be specifically performed. The foregoing announcement in Lewman & Co. v. Ogden, supra, was rested on the authority of Moses v. Scott, 84 Ala. 608, 4 South. 742. In the latter case the bill was between stockholders in a private corporation for specific performance of agree ment to hold and vote stock in trust. Judge Stone said: "The general rule is that chancery will not lend its aid for the enforcement of an executory agreement to purchase personal property. The reason is that the purchaser can obtain other property of like kind, and, in an action for the breach of the contract, a court of law will award hin ample compensation for the damage he has But when the reason on sustained. * which the rule rests does not exist, the rule does not apply. Where the article contracted to be purchased is one of mere taste, an heirloom, a family relic, or, from some other cause, is not measurable by a money standard, specific performance is generally decreed, as the only adequate remedy the case is susceptible of." [4] The bill does not show that the complainant is not provided with a plain and adequate remedy at law for the breach of the contract by respondent Vaughan (Code 1907, § 3052), but that a breach of such contract is fully measurable by a money standard. The present temporary economic condition, brought about by the pending war, does not bring the instant case within an exception to the general rules hereinabove adverted to. The decree of the Montgomery circuit court in equity is affirmed. Affirmed. All the Justices concur, except GARDNER, J. (dissenting). In Lewman v. Ogden, 143 Ala. 351, 42 South. 102, 5 Ann. Cas. 265, it was said: "Specific performance might be decreed of a contract for the delivery of chattels, which no one but the defendant can supply, and which are necessary to enable the plaintiff to fulfill an engagement with a third party." I forego a discussion of the question, but upon a reconsideration of the bill I have become convinced it states a case within this rule calling for equitable relief, and therefore respectfully dissent. (201 Ala. 358) HALE et al. v. McGRAW et al. (6 Div. 557.) (Supreme Court of Alabama. Nov. 29, 1917. Rehearing Denied March 23, 1918.) PUBLIC LANDS 135(2), 136-ENTRY-SALE BY ENTRYMAN. A warranty deed or mortgage by one who had not perfected his homestead rights, having no patent, certificate, or final receipt, and not having furnished sufficient proof to acquire_a certificate, was absolutely void, under Rev. St. U. S. §§ 2290, 2291 (U. S. Comp. St. 1916, §§ 4531, 4532), and the subsequent issue of a patent did not inure to the grantee. Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge. Ejectment by W. R. McGraw and others against W. M. Hale and others. Judgment for plaintiffs, and defendants appeal. firmed. Af |