cmcseo, M. oz ST. P. BY. oo. v. STEWART. ··11
was refused as to the portion directed to be paid "in gold.·" 1 Laches may
lead a court of equity to refuse specific enforcement of an award. Thus a
bill for a reconveyance of an estate pursuant to an agreement and subsequent
award, the bill being brought as against purchasers after a considerable lapse
of time. and the original vendee being dead and insolvent.? An agreement
to sell at a price to be fixed by arbitration will not be enforced, where some
of the parties to it are married women, one of whom had not executed it.3
2. Corvrnaors ro ARBITRATE—GENERAL RULE. Contracts to arbitrate
are not specifically enforceable. The reasons upon which this rule 1·ests are
several, and seemingly good ones. At common law (however it may be by
statute) arbitrators cannot compel the attendance of witnesses or administer
an oath. They cannot compel the production of documents, books of account,
and papers, or insist upon a discovery of facts from the parties under oath.
One reason, therefore, of the refusal of equity to specidcally enforce contracts
to arbitrate is this: Equity will not compel a party to submit the decision of
his rights to atribunal which confessedly does not possess full, adequate, and
complete means within itself to investigate the merits of the case and to
administer justice. Another reason is that equity will not make a vain
decree, incapable of enforcement. Suppose it decrees specific enforcement.
How can it compel the parties to name the arbitrators? How can it compel
them to agree upon the arbitrators? The court has no authority to select
arbitrators for the parties. This subject is elaborately discussed by Mr. Jus-
tice Sr0RY in Tobey v. Bristol 0*0.,* who concludes that "the very impracti-
cability of compelling the parties to name arbitrators, or upon their default
for the court to appoint them, constitutes, and must forever constitute, a
complete bar to any attempt on the part of a court of equity to compel the
specific performance of any agreement to refer to arbitration. It is essen- i
tially, in its very nature and character, an agreement which must rest in the
good faitn and honor of the parties, and, like an agreement to paint a picture,
or to carve a statue, or to write a book, or to invent patterns for prints, must ~
be left to the conscience of the parties, or to such remedy in damages for the
breach thereof as the law has provided." Another reason why courts of · ·
equity refuse specifically to enforce an agreement to arbitrate is because so
to do would bring such courts in conflict with tnat policy of the common
law which permits parties in all cases to revoke a submission to arbitration!
Finally, perhaps the best reason for refusing specific enforcement in such
cases is that so to do ousts the courts of jurisdiction, and tends to refer the
decision of dinicult legal questions to inexperienced and incompetent persons.
Illustrations. Among the cases which illustrate the refusal of the courts
to compel an arbitration are the following: A statute authorized county
commissioners to submit certain claims of A. to arbitration. They ordered a
reference of part of the claims. Held, that A. could not present a schedule
of names of persons who would be acceptable as arbitrators, and compel, by
dec1·ee in equity, the selection of some of them bythe commissioners, and a
reference of all the claims to them.° A testator, in bis will, provided that
any disputes regarding it should be decided · by certain arbitrators, and that
any party who should refuse to submit to arbitration should forfeit his rights
under the will. Held, that such provision was in terrorem merely, and that
no such forfeiture could be incurred by contesting any disputable matter in
relation to it in a court of justice! A. agreed, in writing, with B. thatif B.
would buy certain shares in a corporation held by O., the company should em-
ploy him ata certain yearly salary, and that, if the company should fail or
lHowe v. Nickerson, 14 Allen, 400. ‘Greason v. Keteltas, 17 N. Y. 491.
’ McNeill v. Magee, 5 Mason, 244. °Tobey v. Bristol Co. 3 Story, 800.
' Em ery v. Wise, 5 Ves. Jr. 846. . 7Coutee v., Dawson, 2 Bland. (Md.) 264.
*3·Story, 826.