Opinion:-question of jurisdiction.

tion, argued that a party must have the right to elect whether to object to the award at law or in equity, in order to preserve his right of review by an appeal to the High Court of Errors and Appeals. This argument assumes that a writ of error would not lie to the judgment at law on the award. That is a question not decided, arising under the Acts of 13 Geo. II, and the Act of 1811 (Dig. Del. Laws, 112), and under the Act of 1829 respecting bills of exception. It will depend on the meaning and import of the word "trial" in the latter Act. But suppose it true, that there can be no review of the judgment at law. This may be a defect in our constitution or laws, but it does not prove that the Court of Chancery has jurisdiction in such a case.†

The Chancellor, in the margin of his manuscript opinion, has a note that a writ of error will lie to a judgment at law on an award, and cites Gilpin vs. Gilpin decided in 1793. But from his memorandum of that case, among others collected on the general subject of the powers of the courts over awards, it appears to have been in the Supreme Court. Perhaps he intended, in the marginal note, to refer to Lewden vs. Sawyer, in 1799, which was in the Court of Appeals, on error to the court of Common Pleas, and was the case of an award. See ante, p. 382. Note.

award in an amicable action and judgment thereon, which was relied on as a bar to the right to an account.

The Court considered that the award was not conclusive. The objection to it was misbehavior.

The Court also expressed an opinion that the arbitrators had committed a gross mistake; but observed that the Court was not to be understood as deciding the general principle, that, in every case of awards; a mistake of law will make it obligatory on a court of equity to interfere and set aside the award. The Court considered the exercise of this power to be discretionary. The question of jurisdiction was not considered. The interlocutory decree was affirmed. CRAIN'S ADM'R. AND DOUGLASS vs. LOWBER'S ADM R.: and Appeals, 1813.

Rodney, for appellant; Hall, for respondent.

:

-Court of Errors

This was an appeal from a decree of the Court of Chancery setting aside an award which had been returned in an action referred in the Supreme Court. Exceptions to the award had been heard in the Supreme Court, the award confirmed and judgment entered upon it.

Opinion :-question of jurisdiction.

I am of opinion that this Court is without jurisdiction of the case before it, upon two grounds:

1st. On the principle decided by the Court of Appeals in the case of Crain's adm'r., and Douglass vs. Lowber's adm'r., decided in the Court of Appeals in 1813, that where two courts have concurrent jurisdiction, the one which first possesses the cause has the exclusive right of exercising jurisdiction. This is the latest decision, and I believe the only one where the point was expressly adjudged on argument; and it being a decision of the highest tribunal is considered by this Court a binding authority. I have understood that the late Chancellor, after this decision, dismissed some bills filed for setting aside awards, and required, before he would entertain such bills, some special See this case, ante, p. 384.

Note.

Rodney relied on the want of jurisdiction in the Court of Chancery, insisting on the principle that where two courts have concurrent jurisdiction, the Court first possessing the cause ousts or excludes the other. Hall answered, that the Court of Chancery had exercised the power.

The Court unanimously reversed the Chancellor's decree. Johns, C. J., and Hall, Cooper and Warner, Justices, were of opinion that the Chancellor had no jurisdiction. Booth, C. J., did not express an opinion on this point, but concurred in the reversal.

SPEAR US. JARRELL: - Court of Errors and Appeals, 1814.

This was an appeal from a decree of the Chancellor staying proceedings on a judgment at law entered upon a bill obligatory which had been given for the payment of a sum of money, according to such award as might be made under a parol submission. The decree in effect set aside the award. It was reversed on the appeal, because the Court considered the award conclusive, inasmuch as it had not been impeached on any of the usual grounds of misbehavior, corruption or of plain and gross mistake.

SAUNDERS' EXR's. vs. HAUGHEY: --Supreme Court, 1815.

An amicable action, referred to counsel and report returned. The Court set aside the award for a mistake of law. The point seems to have been submitted by consent of counsel.

CLAYTON US. WILLIAMS :--Supreme Court, 1815.

There was

a general judgment against an administrator on a

ground, such as accident, or other reason for the omission of the party to avail himself of his remedy at law.

2d. The other ground is that Thomas Beeson, Jr., had a sufficient remedy at law. By the 20th Sec. of an Act of Assembly, passed between 1726 and 1736, limiting the powers of the courts of equity within this State, the jurisdiction of the present case, (there being a sufficient remedy at law) is ousted. What is the meaning of the word "sufficient" in the above Act is a question which has occasioned some uncertainty as to the dividing line between the common law and equity jurisdictions. In Polk vs. The Farmers' and Mechanics' Bank, in the Court of Appeals, June T., 1822, this point was made and much argued. There was no direct decision by the Court, but its opinion

report, and this was an action of debt on the judgment. Parol testimony was offered to prove a want of assets, and was rejected by a Johns, C. J., contra.

majority of the Court.

HUDSON, ET AL., vs. MCDONOUGH (A GUARDIAN), ET AL. :---Supreme Court, 1816.

McLean and Read, for plaintiff; Van Dyke for defendants.

An amicable action to settle the lines of certain land, and report returned.

The award was objected to. 1st, for a mistake. 2nd, that a guardian could not bind his ward by such an action. An arbitrator (not objected to) was offered as a witness.

case.

The Chief Justice asked if the Court were to re-try the merits. The plaintiffs' counsel answered in the negative. The defendants' counsel said, the evidence was offered only to prove the nature of the Read objected to a general inquiry. This was an inquiry into the merits. The Court directed the counsel first to discuss the question, whether the minor would be bound by this reference on the part of his guardian. This question being argued, the Court decided it in the negative and set aside the award.

WILTBANK'S EXR's vs. T. & P. MAULL:--Supreme Court, 1826.

Robinson, for plaintiffs; Wells, for defendants.

Reference in an action pending, and award returned.

By consent, witnesses were examined as to the merits. Wells contended that the referees had not sufficient evidence, and that awards were only as available as verdicts. Robinson replied that a verdict

Opinion :-conclusion.

was that the Court of Chancery must be kept within the limits of its jurisdiction.

The present is a plain case, in which there can be no doubt as to the sufficiency of the remedy at law.

With such views of the questions arising in the case, the bill must be dismissed.

This decree was, on appeal, affirmed by the High Court of Errors and Appeals, at the June Term, 1831. See 1 Harrington's Rep. 394. n.

would not be set aside on such ground. The Court held that no plain mistake was proved and that the decision of the referees ought to bind the parties. Award confirmed.

SILVERS AND WIFE vs. Ford's ADмR'S :--Supreme Court, 1827.

Johns, for plaintiffs; Read, for defendants.

In an amicable action, on report returned, the Court decided that the principles on which the award was made could not be inquired into ; for this would be to re-try the merits.

SPRUANCE vs. Poovy:--Supreme Court, 1829.

Booth, for plaintiff; Black, for defendant.

Reference in an action pending, and award returned.

Booth offered a referee as a witness, and proposed to inquire into the merits. Black objected to the competency of the witness. Booth insisted that the witness was competent for some purposes. The Court decided that a referee was not a competent witness for the purpose of inquiring into the merits of the award or to impeach it for misbehavior or corruption. Award confirmed.

Statement of the case.

THOMAS ROBERTS, adm'r. of LAVINIA ROBERTS, dec'd, RACHEL B. LYON, WILLIAM LYON, GEORGE A. LYON, JOHN LYON and JACOB B. LYON, infant, by his next friend, WILLIAM LYON,

VS.

JAMES BROOM, JOHN LOWBER, assignee in trust, et al.

New Castle, July T. 1831.

An executor and trustee under a will, having in his hands funds bequeathed to legatees on certain trusts, purchased real estate. Subsequently to the purchase, sundry judgments were recovered against the trustee, which became liens upon the real estate so purchased. The trustee afterwards becoming insolvent, some of the legatees, whose legacies remained unpaid, filed a bill in equity, alleging that the real estate had been purchased with the trust funds, and claiming that a trust resulted to the unpaid legatees. Held, that the evidence was not sufficient to prove that the trust funds were applied to the purchase. But held also, that supposing the trust funds were so applied, and that a trust resulted therefrom, as between the legatees and the trustee and his assigns, yet that such trust could not avail against the legal rights of the judgment creditors.

BILL IN EQUITY TO ENFORCE A TRUST OF REAL ESTATE.Jacob Broom, deceased, being in his lifetime seised of real and personal estate, by his will dated April 10th, 1810, directed that the residue of his real estate should be sold, and the proceeds thereof, together with the unappropriated balance of his personal estate, be disposed of as follows, viz: $10,000 to be kept invested during the lifetime of his widow, for her benefit, and the residue of the fund to be distributed equally to and among the testator's children and two grandchildren, viz: one seventh each to James M. Broom, Ann Littler, Hetty W. Lyon, Sarah Roberts, Lavinia Broom and Jacob P. Broom, and one seventh to the two grand children, John and Rachel