The opinion of the Court was drawn up by
This Court has power, under the Rev. Stat. (c. 96, <§> 10) to hear and determine, as a court of equity, “ all suits to compel the specific performance of contracts in writing,” “when the parties have not a plain and adequate remedy at law.” In cases presented to us under this provision we must see, that the contract is in writing, and in force as such. If merged in a judgment it would no longer be a contract in writing, within the purview of the statute. It should appear, also, that the plaintiff had not a plain and adequate remedy at law. If he has a judgment in his favor, upon the contract in a court of law, he must be regarded as having a plain and adequate remedy upon it. And if the contract be in reference to the personalty, and not to the realty, it is with a few exceptions of a peculiar character, considered that a party has his appropriate remedy at law; and will not be entitled to the aid of a court of equity to enforce the performance of it.
The case here presented has a complication of difficulties. The contract relied upon has reference to both real and personal estate. It originated under, and in connection with, proceedings in a court of law; in a writ of entry upon a title by mortgage; and an agreement to refer that action, by rule of Court, and sundry other matters in controversy between the parties, to arbitrators, who made their award or report to the
Some doubt has been entertained, whether a court of equity could be resorted to for the purpose of having an award of arbitrators carried into effect; but latterly this doubt seems to have been overcome, so far as it respects awards for the conveyance of real estate. Jones v. Boston Mill Corporation, 4 Pick. 507. It is believed that no decision has gone further than this. The award in the case before us goes further and embraces various other matters, all connected with the conveyance of real estate, so that we could not decree that it should be conveyed, without, at the same time, decreeing the performance of other extraneous matters. Under such circumstances, if there were no other difficulties in the way, we might well be expected to hesitate to proceed in the case.
But the plaintiff has sought his remedy at law; and has there proceeded till he had become apparently entitled to judgment in his favor. The report of the referees, under the rule of Court, having been accepted at his instigation, has placed him in this predicament. If he has been unfortunate in this particular it was of his own seeking. A court of equity cannot be required to step in and relieve him. In Bateman v. Willoe, 1 Schoales & Lefroy, 201, it was remarked by the chancellor, that “ the inattention of parties, in a court of law, can scarcely be made a subject for a court of equity.” And it has often been decided, that courts of equity cannot revise the doings of a court of law, unless they were procured by fraudulent practices. If new matter before unknown to a party has arisen, essentially varying the case as it stood at the
If the agreement and award under a'rule of Court have gone into judgment, as we should presume had been, or would be the case in this instance, there having been an acceptance of the report, there would be no longer an agreement in writing to be enforced; for both the agreement and award would be merged iu the judgment. No action thereafter at law would lie, either upon the agreement or the award. The judgment would have become the security to be relied upon, and our equity powers, as we have seen, would not authorize us to carry it into effect.
Other difficulties, in the way of the right of the plaintiff to recover, still remain to be considered. If we were authorized to consider the case as exhibiting a simple arbitration and award, and could become satisfied of our power to enforce it, we could not proceed to do so until we had ascertained, that the award was at all points exactly in pursuance of the agreement. The first and principal item in the agreement to refer was the action then pending. Nothing is said about that in the award. Whether it was considered that the plaintiff had or had not a right to recover in that action, does not appear. Again; on looking into the agreement between the parties, it appears that they entered into certain obligations expressly to be performed in a certain event. The referees were to ascer
Bill dismissed.