clearly impossible, as, for example, by reason of the company having no shares, all of them having been allotted and issued: Ferguson v. Wilson, 2 Ch. App. 87. Nor will the officials of a company be compelled to issue its stock or bonds after it has become extinct by reason of a charter forfeiture or dissolution of the company by any other means. Indeed an issuance of stock or bonds, after such an event, might render the corporate officers authorizing it liable to severe and ignominious. punishment: Danforth v. P. & C., M., &c., Railroad Co., 30 N. J. Eq. 12.

Nor, where shares have all been distributed by the directors, will they be compelled to deliver to a subscriber omitted in the distribution enough of the shares which they have allotted to themselves to make up the number which the subscriber agreed to take. In Ferguson v. Wilson, L. R., 2 Ch. App. 87, the prayer of the bill was in the alternative that, if the shares had all been allotted, the directors be decreed to make good to the plaintiff the shares to which he claimed to be entitled or that they might pay damages in respect of being unable to fulfil what the bill insisted was a contract on their part to allot in favor of plaintiff. As to this, Sir G. J. TURNER, L. J., said: "The bill then prays damages in, I may say, a double form. It prays, in the first place, that the directors of the company may, out of the shares which have been allotted them, transfer to the plaintiff those shares which, according to his contention, would have been proper to be allotted to him. What in truth is that but asking for payment of damages by the directors of the company in the shape of a sacrifice of the shares which have been allotted to them instead of the money? If a man has to make good a certain claim it is just the same thing whether he makes it good by paying a sum of money or by parting with other property to which he has become validly entitled. truth, therefore, that part of the prayer which seeks the transfer of the shares by the directors is no other than a prayer for damages. There may be cases in which, if there is a trust relation subsisting between A. and B., and B. has taken property under the trust which belongs to A., or ought to have been appropriated to A., the court will compel B., out of the property which he has taken, to make good that of which A. has been deprived. But this is not a case of trust; this is simply a case of contract, as I think between the plaintiff and the company. But if it goes further it is a case of contract between the plaintiff and the other directors. I am

In

not aware that there is any law of this court which in a case of contract, not raising any question of trust, would put upon a defendant in a suit the obligation of satisfying the claim in the mode in which the plaintiff contends that it ought to be satisfied."

Public policy. The contract must not be contrary to public policy. An interesting case involving this point is Foll's Appeal, 91 Penn St. 434. Foll, in writing, agreed to sell and Greer agreed to purchase fifteen shares of the stock of a national bank. Greer and his friends owned sufficient stock to give them, with these fifteen shares, the control of the bank, to obtain which was the avowed purpose of the purchase of these fifteen shares. Foll, refusing to deliver the stock, Greer sought to compel specific performance of the agreement.

Said Mr. Justice PAXSON: "This case presents some extraordinary features. We have nothing like it in this state since equity powers were conferred upon the courts. *** While the legal right of the complainant to buy up sufficient of the stock of this bank to control it in the interest of himself and friends may be conceded, it is by no means clear that a court of equity will lend its aid to help him. A national bank is a quasi public institution. While it is the property of its stockholders and its profits enure to their benefit, it was nevertheless, intended by the law creating it that it should be for the public accommodation. It furnishes a place supposed to be safe, in which the general public may deposit their moneys, and where they can obtain temporary loans upon giving the proper security. There are three classes of persons to be protected, the depositors, the noteholders and the stockholders. We have no intimation that the bank, as at present organized, is not. prudently and carefully managed. The stock, as now held, is scattered among a variety of people and held in greater or lesser amounts. It is difficult to see how the small stockholders, who have their modest earnings invested in it, the depositors who use it for the safe keeping of their moneys, or the business public who look to it for accommodation in the way of loans are to be benefited by the concentration of its stock in the hands of one man, or in such a way that one man and his friends shall control it. Especially is this so when an attempt is made to control it by the use of borrowed capital. The temptation to use it for personal ends in such case is very strong. It is a fact to which we cannot close

our eyes that the financial wrecks of such institutions with which the pathway of the last few years is so thickly strewn are the result, in a great measure, of personal management. This purchase has not even the merit of being an investment on the part of the plaintiff. Where a man buys and pays for stock with his own money it may be regarded as an investment. But when he buys it upon credit, or pays for it with borrowed money, it is a mere speculation. "Were we to affirm this decree I see no reason why we may not be called upon to use the extraordinary powers of a court of equity to assist in miscellaneous stock-jobbing operations. A party who is attempting to make a corner in stock or in any article of merchandise, who had made his contracts with that end in view, might with equal propriety call upon us to decree specific performance thereof. But the decree of a chancellor is the exercise of a sound discretion; it is of grace, not of right, and will never be made where the equity and justice of a case is not clear. We have no doubt of our duty in the premises. We are of opinion that the end sought to be attained by this bill is against public policy, and for that reason we refuse our aid: Foll's Appeal, 91 Penn. St." 434; see, however, Moffatt v. Farquhar, L. R., 7 Ch. Div. 591; Wilson v. Keating, 4 DeG. & J. 588.

Possession of stock. The promisor must have had the stock at the time he contracted to convey it. Because the defendant did not have the stock at the time the contract was made, was one of the reasons given for refusing specific enforcement in Cuddel v. Rutter, 5 Vin. Abr. 540.

Remedy at law. The remedy at law must be inadequate. It is a well established principle of equity that specific performance of contracts relating to personal property will not in general be decreed, for the reason that an adequate remedy in the shape of damages for the breach of such contracts may be obtained by action at law. Applying this principle, courts of equity refuse specifically to enforce contracts for the transfer of certain kinds of stock. Thus in, Cappur v. Harris, Bunbury 135, Baron GILBERT, in relation to contracts to transfer South Sea stock, says: "If it be only executory and a man comes to have it carried into execution, there a court of equity will not aid the plaintiff, but leave him to such remedy as he can have by law." In Cuddel v. Rutter, 5 Vin.

Abr. 540, 1 P. Wms. 570, specific performance of a contract to deliver South Sea stock was refused because the complainant might "buy of any other person, and be no more out of pocket than if the stock were delivered to him according to the agreement; this differs very much," said PARKER, Ch., "from the case of a contract for lands, some lands being more valuable than others—at least more convenient than others to the purchaser-but there is no difference in stock, one man's stock, being of equal benefit and convenience as another's."

Government and railway stocks.-The authorities, with one or two exceptions, agree that contracts relating to government bonds and stocks will not be specifically enforced, such securities being always readily purchaseable upon the monetary exchanges at well known prices. There is however a conflict of opinion as to railway stocks. Mr. Justice MILLER, of the United States Supreme Court, had the question presented to him at circuit in Ross v. U. P. Railroad Co., 1 Woolw. 26. Said he "The bonds of the United States are stocks within any definition which can be given to that term. They are public stocks-government stocks. The decisions are clear and uniform, that a covenant for their delivery will not be specifically enforced in a court of equity. As to shares in the (Union Pacific) railroad company, I think the rule should be the same; I see no sound reason for any distinction between them and government stocks. They belong to a class of securities which are generally called stocks; they are the subject of everyday sale in the market and the rate at which they are selling are quoted in the public commercial reports, so that their value is as readily and certainly ascertained as that of government stocks. No especial value attaches to one share over another, and the money which will pay for one will as readily purchase another. The damages, then, for failure to deliver any such shares may be awarded at law and be an adequate compensation for the injury sustained."

But some of the state courts have not taken this view. Thus, in Ashe v. Johnson, 2 Jones Eq. 149: "Again, it is said equity will not enforce the specific performance of an agreement to transfer or to accept stock. The reply is, that may be so in reference to government stock in England which, like corn or flour, may be

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bought for the money, in market, at any time; but the doctrine has no application to railroad stock."

The English authorities hold that contracts relating to railway stock are specifically enforceable. In Duncuft v. Albrecht, 12 Sim. 189, the Vice-chancellor said: "Now, I agree that it has been long since decided that you cannot have a bill for the specific performance of an agreement to transfer a certain quantity of stock. But, in my opinion, there is not any sort of analogy between a quantity of three per cents., or any stock of that description (which is always to be had by any person who chooses to apply for it in the market), and a certain number of railway shares of a particular description; which railway shares are limited in number, and which, as has been observed, are not always to be had in the market and, as no decision has been produced to the contrary, my opinion is that they are a subject with respect to which an agreement may be made which this court will enforce."

In one case an English court virtually decreed specific performance of a contract to transfer a public stock-Neopolitan rentes. A distinction was taken between the shares of stock and the evidences thereof, a delivery of the latter being decreed. "I am of opinion," said the Vice-chancellor, "that inasmuch as this bill prays a delivery of the certificates which would constitute the plaintiff the proprietor of a certain quantity of stock, the bill in equity will hold; because 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. I consider also that the plaintiff not being the original holder of the scrip but merely the bearer, may not be able to maintain any action at law upon the contract, and that, if he has any title it must be in equity." And in the earliest case upon the subject (Gardner v. Pullen, 2 Vern. 393), specific performance was decreed of a contract to convey a quasi public stock, that of the old East India Company. The case was this:

On March 22d 1696, Pullen lent Phillips three shares of stock in the old East India Company, Phillips giving a memorandum in writing to assign the shares on demand. He neglected to do so, and, on March 15th 1697, took up the written memorandum, giving Pullen, instead of it, a bond, with a penalty of 500l., in which Gardner became bound, to assign the three shares on or before a day named, together with 77. 28. 6d., since added by the company