Blacks Law Dict. 1st ed

1114 SPECIFIC PERFORMANCE

SPECIAL TRUST

and the trustee is not a mere passive depos itary of the estate, but is called upon to ex ert himself actively in the execution of the settlor's intention; as, where a conveyance is to trustees upon trust to sell for payment of debts. Special trusts have been divided into (1) ministerial (or instrumental) and (2) dis cretionary. The former, such as demand no further exercise of reason or understand ing than every intelligent agent must neces sarily employ; the latter, such as cannot be duly administered without the application of a certain degree of prudence and judgment. 2 Bouv. Inst. no. 1896. SPECIAL VERDICT. In practice. A special finding of the facts of a case by a jury, leaving to the court the application of the law to the facts thus found. 1 Archb. Pr. K. B. 213; 3 Bl. Comm. 377. SPECIAL WARRANTY. A clause of warranty inserted in a deed of lands, by which the grantor covenants, for himself and his heirs, to "warrant and forever defend" the title to the same, to the grantee and his heirs, etc., against all persons claiming "by, through, or under" the grantor or his heirs. If the warranty is against the claims of all persons whatsoever, it is called a "general" warranty, (q. v.) Specialia generalibus derogant. Spe cial words derogate from general words. A special provision as to a particular subject matter is to be preferred to general language, which might have governed in the absence of such special provision. L. R. 1 C. P. 546. SPECIALTY. A writing sealed and de livered, containing some agreement. A writing sealed and delivered, which is given as a security for the payment of a debt, in which such debt is particularly specified. Bac. Abr. "Obligation," A. A specialty is a contract under seal, and is considered by law as entered into with more solemnity, and, consequently, of higher dig nity than ordinary simple contracts. Code

2. When spoken of a contract, the expres sion "performance in specie 1 ' means strictly, or according to the exact terms. As applied to things, it signifies individuality or identity. Thus, on a bequest of a specific picture, tho legatee would be said to be entitled to the de livery of the picture in specie; i. e., of the very thing. Whether a thing is due in genere or in specie depends, in each case, on the will of the transacting parties. Blown. SPECIES. Lat. In the civil law. Form; figure; fashion or shape. A form or shape given to materials. A particular thing; as distinguished from "genus." SPECIES PACTI. Lat. In Scotch law. The particular criminal act charged against a person. SPECIFIC. Having a certain form or des ignation; observing a certain form; particu lar; precise. SPECIFIC DEVISES are devises of lands particularly specified in the terms of the devise, as opposed to general and residu ary devises of land, in which the local or oth er particular descriptions are not expiessed. For example, "I devise my Hendon Hall es tate" is a specific devise; but "I devise all my lands," or, "all other my lands," is a general devise or a residuary devise. But all devises are (in effect) specific, even residuary de vises being so. L. R. 3 Ch. 420; Id. 136. SPECIFIC LEGACY. A legacy or gift by will of a particular specified thing, as of a horse, a piece of furniture, a term of years, and the like. In a stiict sense, a legacy of a particular chattel, which is specified and distinguished from all other chattels of the testator of the same kind; as of a horse of a certain color. A legacy of a quantity of chattels described collectively; as a gift of all the testator's pict ures. Ward, Leg. 16-18. A legacy is general, where its amount or value is a charge upon the general assets in the hands of the executors, and where, if these are sufficient to meet all the provisions in the will, it must be sat isfied; it is specific, when it is limited to a particu lar thing, subject, or chose in action, so identified as to render the bequest inapplicable to any other; as the bequest of a horse, a picture, or jewel, or • debt due from a person named, and, in special cases, even of a sum of money. 8 Duer, 477, 543. SPECIFIC PERFORMANCE. Per formance of a contract in the specific form in which it was made, or according to the pre cise terms agreed upon. This is frequently

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