Mr. Justice Clayton
delivered the following opinion.
This was a bill filed by Willian Clark, as administrator, de bonis non, of Edwin Perry and Bridges Williams, to recover three slaves from the defendant. The two decedents had been in partnership in carrying on a plantation in Hinds county; one Vernon Dorsey became the administrator of both of them, but he failed to return in either an inventory of appraisement, and without any order of the probate court, sold the slaves in controversy to one Thomas Cook, at -private sale, and took his note, with security, for the purchase money. Cook and his sureties, all proved insolvent; and Cook absconded from the country, leaving the negroes in the possession of the defendant, who appears to be only a bailee. The bill alledges that Clark, the administrator, was not familiar with the business of the decedents, and did not know whether the slaves belonged to Edwin Perry, alone, or formed a portion of the partnership effects; nor did he know whether the sale was intended to be valid and bona fide by the previous administrator, or a sham and pretended sale.
Under these circumstances the bill was filed, praying a disclosure from the defendant, as to the real nature of the sale; and, if it were a sham or void-sale, praying a decree for the slaves, but if a valid sale, then seeking to enforce the equitable statute mortgage for the payment of the purchase money. It also prayed for an attachment and injunction to prevent the removal of the slaves.
To this bill the defendant demurred, and assigned, as causes of demurrer, first, the want of equity upon the face of the bill, and, second, the want of jurisdiction in the court. The demurrer was overruled by the chancellor, and the defendant directed to answer; from which order he appealed to this court. ,
The two objections may be considered together, for they, in truth, resolve themselves into the single question of jurisdiction.
The great objection, urged to the exercise of jurisdiction by the chancery court, is, that there is ample and complete remedy at law, and that the bill does not disclose those circumstances which are necessary to authorize the interposition of equity, or in the technical phrase of the books, the pretiwm ajfectionis is [233]*233not set forth. It will be borne in mind that slavery, as it exists with us, was unknown to the English system of laws; it will be in vain, therefore, to look into the English reports for precedents. For this reason it is not surprising, when we look into the American cases, that some conflict of views should be found to exist, since principles, intended originally for a different subject matter, have to receive a new application. Some of the courts have accordingly holden, that peculiar circumstances must be shown to exist, to give a court of equity jurisdiction in regard to this species of property; others, that from the very nature of the property itself, chancery is authorized to interfere. Of the former class, are the decisions referred to in argument from the Virginia books; of the latter, are thoseto be found in the Tennessee reports.
In Loftin v. Espy, 4 Yerger, 84, the principle is distinctly asserted, that to give a court of equity jurisdiction in regard to slaves, it is not necessary that any other cause should be stated in the bill and proven, than a right of property.
In Henderson v. Vaulx and Wife, 10 Yerger, 37, Judge Reese, in the opinion of the court, holds the following language: “ It is but recently, in this State at least, that the peculiar nature and character of slave property, and of the relation between master and slave, have been regarded in our courts, in the spirit of a rational and humane philosophy. A few years ago, and any man who had a judgment debtor, might, by virtue of an execution against him, become the owner of a slave of a third party, if he chose in a suit at common law to pay the value, or more than the value. A court of chancery, if the owners had there sought to restrain the sale or recover the possession, closed its doors upon him with the information that he had a clear and unembarrassed remedy at law. Afterwards it was discovered, as wines, family pictures, plate and ornamental trees, &c., were protected to the owner in a court 'of chancery against trespass, so might a slave, if a family slave, and a peculiar favorite with his master. But recently, upon grounds far less technical and far higher and sounder, it has been determined that a court of chancery will protect the possession and enjoyment of this peculiar property—a property [234]*234in intellectual and moral and social qualities—in skill, fidelity and gratitude, as well as in their capacity for labor; and any owner may now say and show to a court of chancery, I am master, this is my slave, and he shall retain or recover the possession. ” The same course of reasoning and of decision prevails in South Carolina. Judge Harper, in delivering the opinion of the court in Horsy et al. v. Glover et al. says, “I am of opinion, in pursuance of the views in Sorter v. Green, 2 Hill, 136, that when a man states that his slaves have come into the possession of another, who refuses to deliver them, or that he has contracted for the purchase of specific slaves, and-the vendor refuses to perform his contract, he states a sufficient ground of equity jurisdiction. When there is a complicated question of title—when there is much conflicting testimony, or, more especially, when the credit due to testimony is to be weighed, a jury is the proper tribunal for the trial of those questions. In such case an issue should be directed.” 2 Hill’s Ch. Rep. 524. In North Carolina a similar decision has been made. 3 Murphy, 74. Kentucky seems to have followed the decisions in Virginia; but I think the other rule is supported by the weight of authority.
I have carefully examined the leading cases in the English chancery books on this question of the jurisdiction of equity to compel the delivery of a personal chattel in specie. In not one of them does it appear that the bill in terms contained an allegation of thepretium affectiords. In the celebrated Pusey horn case, 1 Vim. 272, the bill was demurred to, because, by his bill, the complainant did not pretend to be entitled to the horn, either as executor or devisee, nor had he charged it to be an heir loom. The demurrer was overruled, and the lord keeper added, that if the land was held by the tenure of a horn, or cornage, the heir would be well entitled to the horn at law. The Duke of Somerset v. Cooksen, 3 P. Wms. 390, was a bill filed for a silver altar, remarkable for a Greek inscription and a dedication to Hercules. The Duke became entitled to it as a treasure trove in his manor, and filed his bill to recover it undefaced. It does not appear that he had ever been in possession of it, and no pretiumi affectionis was alledged. There was a demurrer to the [235]*235bill, which was overruled. It is said, in that case, “ that nothing can be more reasonable than that the man, who, by wrong, detains my property, should be compelled to restore it to me again in specie; and the law being defective in this particular, such defect is properly supplied in equity.” The case of Fells v. Read, 3 Yesey, was for a silver tobacco box and its envelopes, which were adorned with several engravings of public transactions, and heads of distinguished persons. The bill was sustained, and is subject to the remarks just made in reference to the case last cited. So of Macclesfield v.
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Mr. Justice Clayton
delivered the following opinion.
This was a bill filed by Willian Clark, as administrator, de bonis non, of Edwin Perry and Bridges Williams, to recover three slaves from the defendant. The two decedents had been in partnership in carrying on a plantation in Hinds county; one Vernon Dorsey became the administrator of both of them, but he failed to return in either an inventory of appraisement, and without any order of the probate court, sold the slaves in controversy to one Thomas Cook, at -private sale, and took his note, with security, for the purchase money. Cook and his sureties, all proved insolvent; and Cook absconded from the country, leaving the negroes in the possession of the defendant, who appears to be only a bailee. The bill alledges that Clark, the administrator, was not familiar with the business of the decedents, and did not know whether the slaves belonged to Edwin Perry, alone, or formed a portion of the partnership effects; nor did he know whether the sale was intended to be valid and bona fide by the previous administrator, or a sham and pretended sale.
Under these circumstances the bill was filed, praying a disclosure from the defendant, as to the real nature of the sale; and, if it were a sham or void-sale, praying a decree for the slaves, but if a valid sale, then seeking to enforce the equitable statute mortgage for the payment of the purchase money. It also prayed for an attachment and injunction to prevent the removal of the slaves.
To this bill the defendant demurred, and assigned, as causes of demurrer, first, the want of equity upon the face of the bill, and, second, the want of jurisdiction in the court. The demurrer was overruled by the chancellor, and the defendant directed to answer; from which order he appealed to this court. ,
The two objections may be considered together, for they, in truth, resolve themselves into the single question of jurisdiction.
The great objection, urged to the exercise of jurisdiction by the chancery court, is, that there is ample and complete remedy at law, and that the bill does not disclose those circumstances which are necessary to authorize the interposition of equity, or in the technical phrase of the books, the pretiwm ajfectionis is [233]*233not set forth. It will be borne in mind that slavery, as it exists with us, was unknown to the English system of laws; it will be in vain, therefore, to look into the English reports for precedents. For this reason it is not surprising, when we look into the American cases, that some conflict of views should be found to exist, since principles, intended originally for a different subject matter, have to receive a new application. Some of the courts have accordingly holden, that peculiar circumstances must be shown to exist, to give a court of equity jurisdiction in regard to this species of property; others, that from the very nature of the property itself, chancery is authorized to interfere. Of the former class, are the decisions referred to in argument from the Virginia books; of the latter, are thoseto be found in the Tennessee reports.
In Loftin v. Espy, 4 Yerger, 84, the principle is distinctly asserted, that to give a court of equity jurisdiction in regard to slaves, it is not necessary that any other cause should be stated in the bill and proven, than a right of property.
In Henderson v. Vaulx and Wife, 10 Yerger, 37, Judge Reese, in the opinion of the court, holds the following language: “ It is but recently, in this State at least, that the peculiar nature and character of slave property, and of the relation between master and slave, have been regarded in our courts, in the spirit of a rational and humane philosophy. A few years ago, and any man who had a judgment debtor, might, by virtue of an execution against him, become the owner of a slave of a third party, if he chose in a suit at common law to pay the value, or more than the value. A court of chancery, if the owners had there sought to restrain the sale or recover the possession, closed its doors upon him with the information that he had a clear and unembarrassed remedy at law. Afterwards it was discovered, as wines, family pictures, plate and ornamental trees, &c., were protected to the owner in a court 'of chancery against trespass, so might a slave, if a family slave, and a peculiar favorite with his master. But recently, upon grounds far less technical and far higher and sounder, it has been determined that a court of chancery will protect the possession and enjoyment of this peculiar property—a property [234]*234in intellectual and moral and social qualities—in skill, fidelity and gratitude, as well as in their capacity for labor; and any owner may now say and show to a court of chancery, I am master, this is my slave, and he shall retain or recover the possession. ” The same course of reasoning and of decision prevails in South Carolina. Judge Harper, in delivering the opinion of the court in Horsy et al. v. Glover et al. says, “I am of opinion, in pursuance of the views in Sorter v. Green, 2 Hill, 136, that when a man states that his slaves have come into the possession of another, who refuses to deliver them, or that he has contracted for the purchase of specific slaves, and-the vendor refuses to perform his contract, he states a sufficient ground of equity jurisdiction. When there is a complicated question of title—when there is much conflicting testimony, or, more especially, when the credit due to testimony is to be weighed, a jury is the proper tribunal for the trial of those questions. In such case an issue should be directed.” 2 Hill’s Ch. Rep. 524. In North Carolina a similar decision has been made. 3 Murphy, 74. Kentucky seems to have followed the decisions in Virginia; but I think the other rule is supported by the weight of authority.
I have carefully examined the leading cases in the English chancery books on this question of the jurisdiction of equity to compel the delivery of a personal chattel in specie. In not one of them does it appear that the bill in terms contained an allegation of thepretium affectiords. In the celebrated Pusey horn case, 1 Vim. 272, the bill was demurred to, because, by his bill, the complainant did not pretend to be entitled to the horn, either as executor or devisee, nor had he charged it to be an heir loom. The demurrer was overruled, and the lord keeper added, that if the land was held by the tenure of a horn, or cornage, the heir would be well entitled to the horn at law. The Duke of Somerset v. Cooksen, 3 P. Wms. 390, was a bill filed for a silver altar, remarkable for a Greek inscription and a dedication to Hercules. The Duke became entitled to it as a treasure trove in his manor, and filed his bill to recover it undefaced. It does not appear that he had ever been in possession of it, and no pretiumi affectionis was alledged. There was a demurrer to the [235]*235bill, which was overruled. It is said, in that case, “ that nothing can be more reasonable than that the man, who, by wrong, detains my property, should be compelled to restore it to me again in specie; and the law being defective in this particular, such defect is properly supplied in equity.” The case of Fells v. Read, 3 Yesey, was for a silver tobacco box and its envelopes, which were adorned with several engravings of public transactions, and heads of distinguished persons. The bill was sustained, and is subject to the remarks just made in reference to the case last cited. So of Macclesfield v. Davis, 3 Ves. & Beame.
These cases, to my apprehension, establish the principle, that wherever the bill states circumstances, from which the court may fairly infer that the owner prefers the property in specie to damages, and that this preference is of a character which it is not unreasonable to indulge, and exists in reference to property for which damages at law might not be a full compensation, equity will entertain jurisdiction.
I recollect a case in my practice, in which a bill was filed to recover what is called a mad stone ; that is, a stone supposed to be a specific and talisman against the bite of all poisonous and rabid animals. There Avas a legend connected Avith it, as romantic as that attached to the “ Lee-penny” in Scott’s beautiful novel of the Talisman. A British soldier, who had served in the East Indies, was wounded during our revolutionary war, and fell into the hands of one of the planters in Carolina. He had this stone with him, which he had procured in the East Indies, and when he was about to die, in acknowledgment of the kind treatment he had received, he gave it to his host, with an account of its virtues. He represented it to be a certain cure for the bite of all rabid and venomous animals, and had borne it with him in all his Avanderings. The stone is still kept in this State, and used for the purposes for which it was recommended. It could not well be said that a man had a peculiar affection for this stone, and yet it will scarcely be doubted, that, whether its extraordinary properties be real or imaginary, the true owner Avould have, in equity, a right to recover it in specie.
Upon principle and authority, I am, therefore, of opinion, that, [236]*236from the peculiar character of slave property, a bill will, in all cases, lie to recover them in specie, unless, perhaps, in the case stated as an exception, in 2 Hill, 525, in which the owner has treated them as merchandise, and bought with a view to sell again.
There is another view of this case, which, to my mind, is conclusive. The administrator is but a trustee for the creditors and distributees of a decedent. He is obliged to administer the effects left by the intestate for their benefit, in the manner prescribed by law. Our statute has directed that the slaves of an intestate shall be sold in one way only, and that is by order of the probate court. If the administrator has to bring suit for slaves, and he institutes an action at law, he may not get the slaves, but only damages. When the defendant pays the damages, the property is changed, and the title is vested in him; even if the change of the title*does not take place by the verdict and judgment. Here, then, is a way of altering the title, certainly not within the contemplation of the statute. The administrator is afterwards not administering the estate of the decedent, for the slaves form, in this instance, the estate, but something taken in lieu thereof. Not taken, either, at a price agreed to by the administrator, nor yet at a price fixed by public sale—the fairest criterion of value—but at an estimate placed upon it by third persons—a jury. This is all arbitrary, and does not secure a just administration of the estate. But if he is permitted, in equity, to recover the property in kind, he can carry out the terms of the trust, in the precise manner prescribed by the statute. To secure this end, it is proper to sustain the jurisdiction in chancery.
This bill is filed with a double aspect, either to recover the property, or to enforce the statutory lien upon it, as to the court may seem right. The administrator could not know but there would be a controversy for the property, nor how that controversy would result. His object, therefore, was to prevent a multiplicity of suits, and to have the whole matter brought to a speedy adjustment.
The bare fact of an outstanding title, gives a right to go into [237]*237equity, to have it put out of the way, and the muniment by which it is evidenced, cancelled, upon a proper showing, and the cloud or obstruction, removed. It was proper, therefore, for the administrator to have the doubt created, even by a pretended or void sale, removed, so that no embarrassment might exist in the discharge of his duties.
I cannot doubt that, upon various grounds, the court of chancery had jurisdiction, and am of opinion that the decree should be affirmed.
Mr. Chief Justice Sharkey
delivered the following opinion:
I concur in sustaining the decree of the chancellor, overruling the demurrer, for the following reasons. The bill is in the alternative, and seeks relief on either one of two grounds; first, that the sale made by Dorsey, the first administrator to Cook, was void, and did not divest the right of property in the slaves; and that the complainant, as administrator, de bonis non, is entitled to them as a part of the administered assets of the estate. And, second, that in case the sale should turn out to be valid, then the bill seeks to enforce the equitable mortgage given by law, to secure the purchase money. The latter ground is clearly one for equity cognizance, although the first may not be so; and it is a rule, sanctioned by reason, that where the bill seeks relief on several equitable grounds, and the complainant is entitled to relief on one of them, although he may not be on the others, the defendant cannot demur; for, by doing so, he admits a ground of relief. If the complainant had relied exclusively on the illegality of the sale to Cook, I should have been inclined to doubt the propriety of the decree; but he does not; and although the bill charges that the sale was made without authority, yet this is not exclusively relied on; it prays a disclosure of the fact, whether the sale was illegal or not, and if legal, then it prays that the lien may be enforced. At the hearing it may turn out to be a valid sale, and then the chancellor can give such relief as the complainant may be entitled to, or refuse any relief if he is entitled to none. See Western Insurance Company v. The Eagle Fire Insurance Company, 1 Paige, 284.