Howell v. Howell. After it was returned, and a motion entered by appellee to have it made a rule of court, appellant entered a cross-motion to correct an alleged mistake, in the description of the land which he was required to convey. The award requires him to convey to appellee fifty acres off of the east side of the north-east quarter of section thirty, when, it is insisted, that it should have been taken from the east side of the north-west quarter of that section. After hearing the evidence, the court below overruled the motion, and entered a rule requiring the performance of the award as returned by the arbitrators. The overruling of that motion, and the entering of that rule, is relied upon principally for a reversal. The correction of mistakes in contracts, agreements, and every description of instruments, is alone cognizable in a court of equity. It forms one of the extensive and highly important heads of chancery jurisdiction. It, like the other branches of chancery jurisdiction, was originally assumed because courts of law had no power to afford relief. This branch of equity jurisdiction is exclusive, and not concurrent. And unless it be in those States which have no separate court of chancery, and where all rights, whether legal or equitable, are determined by the courts of law, it will be found that the latter courts have ever refused to afford such relief. And so long as the two courts remain distinct in their organization and jurisdiction, the distinctions as to their jurisdiction must be observed. If the court below had power to afford relief, it was not derived from the common law, but from statutory enactment. Then has the statute conferred this authority upon the court? The tenth section of the act entitled Arbitration and Awards (Scates' Comp. 209) provides, that if any legal defects appear in the award, or it shall be made to appear by oath that the award was obtained by fraud, corruption or other undue means, or that the arbitrators misbehaved, the court may set aside the award. It is not urged that it appears from this award, that there are any legal defects in its execution, or for want of authority in the arbitrators. The defect is not apparent, as the award on its face is regular, and conforms to the submission. And there is no oath that any of the other causes for setting it aside exist. The eleventh section provides, that if there be any evident miscalculation or misdescription, or if the arbitrators appear to have awarded upon matters not submitted to them, not affecting the merits of the decision upon the matters submitted, or where the award shall be imperfect in some matter of form not affecting the merits of the controversy, and where such errors and defects if in a verdict might be legally amended or Howell v. Howell. disregarded, any party aggrieved may have the correction made, on motion to the court. By this section, the miscalculation or misdescription must be evident, and doubtless from the award and proceedings themselves, and of such a character as not to affect the merits of the controversy on the matters submitted, or the imperfection must be in matter of mere form, or the error or defect in the award could be disregarded if it were a verdict, to authorize the court to make the correction. The alleged mistake in this case does affect the merits of the controversy, because it is in reference to the matter submitted, and proposes to substitute a different parcel of land for the one passed upon by the arbitrators, as they report in their award. And it will be observed, that the submission does not limit the action of the arbitrators to any particular lands, but is general. It will hardly be contended, that if such a mistake had occurred in the verdict of a jury, that it could be corrected, and judgment rendered upon it. No doubt where such a mistake was made to appear, a court would set such a verdict aside, but not correct it. This section has only conferred the power to correct, and not to set aside the award. The act has not only not conferred upon the court, but has excluded, the power to consider any matter affecting the merits of the controversy. It then remains to determine whether the mistake sought to be corrected, affects the merits of the controversy. When we examine the submission, there is no description of this or other property found, but it is general in its terms, embracing all controversies, as well the exchange or sale of lands as of personalty. As the submission has described no lands, for aught that appears, it may have been a question whether the parties were bound to exchange lands, or, if so, what lands. The very question in dispute before and passed upon by the arbitrators, may have been which of the two tracts should be conveyed, the one described in the award, or that sought to be substituted. That may have embraced the entire controversy between the parties. And if so, to hear the evidence adduced before the arbitrators, and to review their finding, seems to us to be a finding on the merits on appeal, and to be wholly unwarranted by the common law as well as by the statute. If there has been a mistake, the appellant must be left for his remedy, if he has any, to a court of equity. We perceive no error in this record, and the judgment of the court below must be affirmed. Judgment affirmed. Farrell, Garnishee, v. Pearson et al. 26 463 23a 22 JOSEPH FARRELL, Garnishee, Plaintiff in Error, v. GusTAVUS C. PEARSON, and JOHN H. F. GRACE, Defend- 26 ants in Error. ERROR TO THE SUPERIOR COURT OF CHICAGO. A person who acknowledges he is indebted at the time of the service of garnishee THE affidavit of Gustavus C. Pearson, the foundation of this proceeding, states that plaintiffs have recovered judgment against defendants for the sum of $795.90; that execution has been issued and returned unsatisfied. That defendants have no property, within the knowledge of the affiant, liable to execution, and that he has just reason to believe that Joseph Farrell is indebted to the said defendants, and has effects and estate of said defendants in his house, and prays garnishee process against Joseph Farrell. Farrell, by his answer, states that he had or has no property belonging to the said defendants, or either of them, nor was or is indebted to them or either of them, in any sum which is now in any manner subject to the claim of said plaintiffs, and to the best of his knowledge, information and belief, except about the sum of seventy dollars, which he has ready, to be paid as the court shall direct. Exceptions were filed to this answer, that said garnishee does not say he had no property belonging to said defendants, nor that he was not indebted to said defendants at the time of the service of the garnishee process, but says that he had or has no property belonging to said defendants or either of them, nor was or is indebted to them, or either of them, in any sum which is now in any manner subject to the claim of the said plaintiffs. In which particular the said plaintiffs except to the answer of the said garnishee as evasive and insufficient, and pray a full answer. Garnishee was ordered to answer further. In his further answer he states, that, at the time of the service of the garnishee process, he was in Chicago, two hundred and eighty miles from his place of residence; that, at that time, he supposes, but does not know personally, that there was in the possession of his clerk, at his residence, three horses and a 463 108a 1166 108a 2442 Farrell, Garnishee, v. Pearson et al. saddle and bridle, worth about one hundred and fifty-seven dollars, which he had purchased conditionally, giving his note, due in sixty days, which purchase was made on or about the 3rd of August last past; that it was agreed between respondent and said Clark & Study, that, in case they could get more for the horses within two weeks than that price, they were to have the right to redeem them, upon the return of said note and payment of expenses about same; that this agreement was known to his said clerk; that, on the day of service of said garnishee process, or before he had time to communicate to his said clerk, the said clerk had delivered up said horses, bridle and saddle, to said Clark & Study, and received back the said note, in pursuance of said agreement; that this was done without his knowledge or consent; that, as soon as he discovered the fact, he communicated the same to plaintiffs, and they commenced pursuit of said horses as the property of said Clark & Study; that plaintiffs obtained one of the horses, and advertised it for sale as the property of said Clark & Study, and also obtained a large portion of the proceeds of the other two horses. He admits indebtedness about the sum of $70, balance due upon the purchase of certain flour of Clark & Study, which is offset by $18, due for keeping said horses, which was to be applied in that way. Further states, upon information and belief, that the judgment upon which the garnishee process was founded has been fully paid and satisfied by the defendants, and that he should be discharged from the proceedings; that he had or has no property of the defendants, nor was he or is he indebted to them, or either of them, in any larger or greater sum than above admitted. The reply of plaintiffs to this answer states, that said answer is not true; that, at the time of serving garnishee process, they aver said Farrell had in his possession, and belonging to said defendants, property and effects to the amount of $257 over and above the $70 which he admits, and this they are ready to verify. And as to the matter of his clerk letting the property go out of his possession, they know nothing, but leave said Farrell to prove the same. Robert Hervey, a witness for plaintiff, testified: Am an attorney and counselor at law; reside in Chicago; know the plaintiff, and garnishee, Farrell; I first saw him in company with Pearson, one of the plaintiffs, about 12th day of August, 1859; Pearson called on me with Farrell, to see about claim against Clark & Study; said that Mr. Farrell owed them and had been or was to be garnisheed; Mr. Farrell stated, in my Farrell, Garnishee, v. Pearson et al. presence, that he owed Clark & Study $257, in two notes, for flour and horses purchased of them; did not say anything about its being a conditional bargain; said he owed them so much. Pearson & Co., and Farrell, then entered into the following contract, drawn by me, and signed by them, as follows: States that, whereas Farrell is indebted to Clark & Study in $257, and said Clark & Study are indebted to Pearson & Co., and said Farrell has been garnisheed by said Pearson & Co. as a debtor of Clark & Study, and whereas it has been agreed between said Pearson & Co. and said Farrell, that said Farrell shall endeavor to obtain all information he can about the whereabouts of said Clark & Study, and shall furnish same to said Pearson & Co., and shall, also, do what he can to enable the said Pearson & Co. to recover the said sum of $257 from him, said Farrell, as such garnishee. Now, if said Farrell shall perform the agreement herein, the said Pearson & Co. shall pay him, or allow him to deduct from said amount of $257, fifty seven dollars for his trouble and services, and a proportionate sum for any less amount that may be received from him than said $257. I did know afterwards of Pearson and a detective officer being about to start for Clark & Study; Mr. Pearson was in my office after he returned; I understood from him that he got nothing from Clark & Study; I understood, although I do not know that he said so, that he got from them one of the horses bought by Farrell; the language he used, as near as I can recollect, was, we have recovered one of the horses, or a horse; he did not say that it was one of those that Farrell bought from Clark & Study. A witness for Farrell stated: I know of Farrell's having three horses and harness in his possession, and wagon, belonging to Clark & Study; Study brought the horse to Farrell's house, and sold him the horse, wagon and harness, and forty-three barrels of flour; I do not exactly remember the number of barrels. The horses were sold conditionally; he had ten days to redeem them, at one hundred and fifty dollars for the three. Within the time he came and redeemed the horses of me, during Mr. Farrell's absence; Mr. Farrell gave me no instructions at all, after he left Tamaroa for Chicago, in regard to the redemption of the horses. He knew nothing about it until after I had given up the horses. These are all the horses that I know of his having any interest in. Mr. Study came and redeemed the horses and took them off; I do not know what he did with them. Instructions for plaintiffs: 1. If the jury believe, from the evidence, that at the time the garnishee, Farrell, was served with process, he was indebted to |