from the situation of the parties, or by reason of the fraud of one of them, it is impossible to obtain justice in a cross action.'

There are some miscellaneous points connected with the equitable jurisdiction over set off, worthy of note.

1. The power of a Court of Chancery to off-set one judgment or decree against another, on motion, is the same as that of the common law Courts. But on a bill filed for an off-set, the jurisdiction of the Court of Chancery is more extensive than that of the common law Courts. A Court of common law allows a set-off of judgments, ex gratia, but in Equity it is matter of right. This power does not depend upon the statutes of set off, but upon the general jurisdiction of the Court over its suitors. And it is an Equitable jurisdiction. 1 Paige, 622; 14 J. R., 63.

2. An executor or administrator cannot, either at law or in Equity, get off a demand purchased by him after the death of the testator or intestate, against a debt due by the estate to the person against whom he holds the demand so purchased. For it is against the principles of sound policy to permit executors to purchase up claims against the creditors of the estate of the testator, for the purpose of obtaining a set off in Equity. 2nd Paige, 402.

3. An unliquidated account cannot be set off in Equity, but the Court will sometimes defer a deeree, to have an account liquidated. 11th Verm., 96.

CHAPTER XXXIX.

ESTABLISHING WILLS.

1. JURISDICTION OF EQUITY IN ESTABLISHING WILLS.

1. What is the extent of the jurisdiction exercised by Courts of Equity, in establishing last wills and testaments?

Courts of Equity have complete and original jurisdiction, to establish a will which has been destroyed, or to compel its production, when fraudulently suppressed, and they may proceed to try the cause without an issue, unless the conscience of the chancellor requires the aid of the verdict of a jury.1 But they have no direct authority to determine the validity of a will, on the allegation that it has been fraudulently procured; but, if the will is of personal estate, must refer the question to the decision of the Ecclesiastical tribunals, and if it is of real estate, either

2

1 In Kentucky, where the contents of a last will may be established in the ordinary Court of Probate, it has been held, that a Court of Equity should not entertain jurisdiction to establish a will merely in consequence of its loss. There must be proof of spoliation, suppression, or other fraud, or the necessity of a discovery, in all of which cases a Court of Equity may exercise more effectual power than a County Court. 3rd B. Munroe, 243.

2 There is a difference between devises of realty, and bequests of personalty. The former come within the cognisance of Chancery; but in the necessary investigation, the propriety of a trial by jury, is so evi

direct an issue of devisavit vel non to be tried, or an action of ejectment to be brought at law. Unless there is some impediment to proceeding at law, the heir or devisee of real estate cannot resort to Equity, but must bring ejectment, as the jurisdiction of that Court is only incidentally exercised, as when a trust is to be executed, assets marshalled, &c. When a Court of Equity has been fully satisfied of the validity of a will, by the verdict of a jury, on one or more trials, it will act on the maxim, interest reipublicæ ut sit finis litium, and grant a perpetual injunction to any future litigation; and to insure a full and fair investigation at law, they have established as a general rule, that all the witnesses to a will must be examined.

dent, that it is now the settled duty of the Court, and the right of the parties that such a trial should take place. But the decision of the Ecclesiastical Courts, is, in England conclusive upon the latter, and cannot be impeached in Chancery, either with or without a jury; a will of real and personal estate, may, therefore, be adjudged both valid and void by different tribunals. Fonblanque's Equity, by Laussert, Vol. 1, 32.

In the case of Tompkins vs. Tompkin's, 1 Story's C. C. R., 547, Judge Story thus draws the line of distinction: "The validity of the wills of real estate is solely cognisable by courts of common law, in the ordinary forms of suit; and the verdict of the jury in such suits, and the judgment thereon, are by the very theory of the law, conclusive only, as between the parties to the suit and their privies. But it is far otherwise in cases of personal estate. The sentence or decree of the proper Ecclesiastical Court, as to the personal estate, is not only evidence, but is conclusive as to the validity or invalidity of the will, so that the same question cannot be re-examined or litigated in any other tribunal. The reason is that being the sentence or decree of a court of competent jurisdiction upon the very subject matter in controversy, to which all persons who have any interest, are, or may make themselves parties, for the purpose of contesting the validity of the will; it necessarily follows that it is conclusive between those parties. For otherwise there might be conflicting adjudications upon the same subject matter between the same parties: and thus the subject matter be delivered over to interminable doubts; and the general rules of law, as to the effect of res judicata completely overthrown." Vide also 4th Cranch., 434; 9 Cranch., 126; 3rd Wheat., 246; 12th Wheat., 169; 1 Peters, 338; 2 Peters, 157; 2nd How., 619.

CHAPTER XL.

AWARDS.

1. EQUITABLE JURISDICTION OVER AWARDS.

1. What are the limits of the jurisdiction over awards, in Equity?

A Court of Equity will not decree the specific performance of an agreement, to refer a matter in controversy to arbitration,1

1 The Court of Chancery will not decree the performance of an award, unless on consideration of a subsequent agreement to perform it. 4 Harr. & McHen., 43. But in McNiel vs. Magee, 5 Mason, 244, it was held, that Courts of Equity have jurisdiction to enforce the specific performance of an award respecting real estate.

So in Smallwood vs. Mercer, 1 Wash., 290, it was held, that in cases of bonds to perform awards, there are two remedies; 1st. At law upon the bond, in which a plea that the arbitrators made no award, would if true, defeat the plaintiff's action. 2. If any act be awarded to be done, for which a complete remedy cannot be had at law, (such as to make a conveyance,) a bill in Equity for a specific performance of the award, is common and proper. But the Court cannot decree specific performance, where no award has been or can be made.

A bill in Equity to enforce the specific performance of an award, rests upon this clear ground-the award supposes an agreement between the parties, and contains no more than the terms of that agreement ascertained by a third person; it is therefore only the specific performance of an agreement, which such a bill calls for. 1 Swans., 54.

deeming it contrary to public policy, to compel parties to resort to a tribunal, which from its inability to examine them on oath, or to require the production of papers, possesses so limited a capacity to administer justice. Where an unimpeachable award has been rendered, it will constitute a bar to any farther litigation, as well in Equity, as at law; and in a proper case, Courts of Equity will lend their assistance to enforce it. Awards form no exception to the principles upon which the general jurisdiction of Equity is exercised, in cases of fraud, accident or mistake; and an award will be set aside, which is proved by satisfactory evidence to have been obtained by fraud, or in which the arbitrators have committed a mistake that ought to be remedied. An arbitrator, says Mr. Jeremy, is regarded as a judge chosen by the parties, from whom there is no appeal, and his authority is more absolute and discretionary, than that which can be exerted in courts of law or equity; for whilst they are restrained by former precedents, and influenced by the consideration that their decision is to form a new rule of action in similar cases, his attention is confined to the individual matter before him. He may, therefore, in some instances relieve against a harsh right, which in a court of justice upon the ground of public policy would prevail. And if acting properly himself, and not unduly influenced by either of the parties, he decides erroneously on a general reference to him, which involves both questions of law and fact, his judgment cannot be impeached; and this is even true on a question of law, if the parties have submitted the same purposely to him. If, however, he intended to decide according to law, and has made a mistake,' or if legal rights be referred to

1 This subject is examined by Mr. Justice Story, in the case of Klein vs. Catara, 2 Gallis, 70. He says, "where the referees specially state the principles on which they have acted in making an award, they are presumed to intend referring their decision to the Court to be reviewed, and if in such a case, they have acted under a mistake as to the law, the Court will set aside the award, for it is not that which the referees meant to make. If in the case before the Court, the referees had made a general award, without any specification of the reasons of their decision, it would have deserved very grave consideration, whether we could by collateral evidence, have examined into the existence of any errors of law. We are not prepared to say that such a course would be proper, unless the submission were restrained to that effect, or misbehaviour