the facts, to compromise both fact and law, there is no reason to set aside the transaction."

3. The third class of cases, where the facts are known but the law is mistaken, have been to some extent the subject of conflicting authorities. The rule at law is clear, that "money paid by a man with full knowledge of all the circumstances, or with the means of such knowledge in his hands, cannot be recovered back again on account of such payment having been made in ignorance of the law." The principle ought to be the same in equity. The authorities which appear most opposed to it are those of Bingham v. Bingham, 1 Ves. Sr. 126, and Lansdown v. Lansdown, Mosley, 364; 2 Jac. & W. 205. In general, however, the rule may be stated to be that in equity, as well as at law, a mere mistake of law, where there is no fraud or trust, and no mistake of fact, is immaterial. [191]

The remedy which the court affords on a void transaction is the replacement of the parties in statu quo. If, for example, a bill be filed by the obligor of a usurious bond to be relieved against it, the court, in a proper case, will cancel the bond, but only on his refunding the money advanced. The equity is to have the entire transaction rescinded, and if the obligor will have equity, he must also do equity.9

There is, also, a jurisdiction to set aside awards on the ground of miscarriage in the arbitrators, where the fact of such miscarriage does not appear on the award, and cannot, therefore, be made a ground for impeaching it at law.

A dispute may be referred to arbitration in three ways.1 1. The reference may be by mere agreement of the parties, unaided by the direction of any court; 2. It may be by a rule of court, made by consent in an action actually depending; and 3. It may be by agreement to refer existing disputes, which might be the subject of a personal action or suit in equity, but with respect to which no proceedings

6. Eaton's Equity, 264.

7. Id., 265.

8. Id., 258, 266.

9. Id., 65.

1. In most of the states the subject of arbitration is regulated by statute. Therefore, consult the local statutes.

are actually depending. [192] In those cases where the submission is by mere agreement, it is revocable by either party until the award is made at the peril of an action for breach of contract; but where the agreement has been made a rule of court, under the provisions of 9 & 10 Wm. III. c. 15, it is now by statute declared irrevocable, unless by leave of the court or one of its judges.

After the award has been made, the power of revocation is at an end; and the award may be enforced by either party, either by action on the award or on the contract to refer, or in a proper case by suit in equity for specific performance, or, if it has been made a rule of court, by an attachment for contempt.

3

In order to resist the enforcement of the award, it is necessary that its validity be impeached. It is not sufficient for this purpose to contend, or even to prove, that it is unreasonable or unjust. But if any fraud or partiality be shown, it will palpably vitiate the award. And even in the absence of actual misconduct, the same result may follow, if the arbitrators have failed in performance of their duty; e. g., if they have not declared their decision with certainty; if their award be not final on all points referred; if it exceed the authority given; if they have acted on a mistake of law, when the law itself is not referred, but the reference was to decide on facts according to law; or if they have acted on a mistake as to a material fact, admitted by themselves to have been made and to have influenced their judgment.

If any of these objections appear on the face of the award, they invalidate it, and preclude its enforcement at law; and if there be actual fraud, it may be pleaded in avoidance at law. [193] If there be mere miscarriage, not apparent on the face of the award, it cannot be pleaded in avoidance at law, but must be made available by an independent application to set aside the award. And where

2. See Tobey v. Bristol County, 3 Story, 800.

3. Jones v. Boston Mill, 4 Pick.

4. Herrick v. Blair, 1 John. Ch. 101.

the submission rests on mere agreement, and is not a rule of any court, the jurisdiction for this purpose is exclusive in equity. If the submission is by rule at nisi prius, the jurisdiction is concurrent in law and equity. For the court of law which directed the reference retains a superintending power, and the Court of Chancery has its ancient jurisdiction over the parties to the action, of which the reference is merely a modified continuance. In the third class, where a submission by agreement, not made in any cause, has been made a rule of court under the statute, the jurisdiction is exclusive in the court of which the submission has been made a rule.

CHAPTER VI. [194]

OF INJUNCTION AGAINST PROCEEDINGS AT LAW.- BILLS OF PEACE. INTERPLEADER.- INJUNCTION AGAINST TORT.

The equity for rescission is effectuated, not only by cancellation of an instrument or by reconveyance of property, but by injunction against suing at law on a vitiated contract, or against taking other steps to complete an incipient wrong. The right to injunctive relief is not confined to the equity for rescission, but extends to all cases where civil proceedings have been commenced before the ordinary tribunals in respect of a dispute which involves an equitable element, or where an act is commenced or threatened, by which an equity would be infringed. The restraint may be imposed either by a final decree, forbidding the act in perpetuum on establishment of the adverse right, or by interlocutory writ, forbidding it pro tempore 2 whilst the right is in litigation.

The injunction against proceedings in another court is an auxiliary decree or writ, made or issued to restrain parties from litigation before the ordinary tribunals where equitable elements are involved in the dispute. The existence of such an equitable element, or the pendency of a suit respecting it, is not recognized by the ordinary tribunals as a bar to their own procedure; but the bar must be made effectual by an injunction out of Chancery, which does not operate as a prohibition to the ordinary court, but restrains the plaintiff personally from further steps.1 [195]

As soon as the defendant has put in a full answer, he may move to dissolve the injunction. [196] And it is then a question for the discretion of the court, whether on the facts disclosed by the answer, or, as it is technically termed,

1. Forever.

2. For the time being.

3. See the subject of staying actions and suits by injunction fully considered in Joyce on Injunctions

(1909), ch. 19, where the cases are fully collected.

4. The parties, not the court, are restrained. Joyce on Injunctions, §

545.

on the equity confessed, the injunction shall be at once dissolved, or whether it shall be continued to the hearing. The general principle of decision is, that if the answer shows the existence of an equitable question, such question shall be preserved intact until the hearing. But the particular mode of doing this is matter of discretion.5

If the plaintiff is willing to admit the demand at law, and to give judgment in the action, but is unwilling to pay money to the defendant, which, if once paid, it might be difficult to recover, he may have the injunction continued on payment of the money into court. If he is desirous to try his liability at law, the injunction will be dissolved with liberty to apply again after a verdict; but unless the defendant's right at law be admitted, he will not be restrained from trying it, except where it is obvious from his own answer that the relief sought must ultimately be decreed. Where the question has been already tried at law, and judgment obtained by the plaintiff there, he will be restrained from issuing execution, if it appear that there is an equitable question to be decided before the matter can be safely disposed of. If at the hearing the decision is with the plaintiff in equity, the injunction is made perpetual.

The exercise of the jurisdiction after judgment is not frequent. The rule on this subject appears to be as follows: First, that if, after judgment, additional circumstances are discovered not cognizable at law, but converting the controversy into matter of equitable jurisdiction, the Court of Chancery will interpose. [197] Secondly, that even though the circumstances so discovered would have been cognizable at law, if known in time, yet if their nondiscovery has been caused by fraudulent concealment, the fraud will warrant an injunction. But, thirdly, that if the

5. It is the almost universal (but not inflexible) practice to dissolve the injunction, where the answer fully denies the equity of the bill; and also to deny the writ when ap plied for after such an answer has

been filed. Hoffman v. Livingstone, 1 John. Ch. 211; Livingston v. Liv. ingston, 4 Paige Ch. 111; Hollister v. Barkley, 9 N. H. 230; Roberts v. Anderson, 2 John. Ch. 204.