276 CONTEE v. DAWSON.

troversy to arbitration will oust the proper courts of justice of their
jurisdiction in the case. (j)

A covenant never to sue for an existing demand, like a release
of to avoid circuity of action, is construed to be an entire
the demand itself; since the being divested of all power
to a right in a court of justice, where alone rights can be
enforced, is, in effect, the being stripped of all right whatever, (k)
An agreement to forbear to sue, under a certain penalty, until an
arbitration has been had may give the party injured a right to
recover the penalty. But as a court of equity cannot decree a
specific performance of a contract for the reference of a dispute to
arbitration, the parties must be allowed to bring their case before
the proper tribunals of the country; and this will appear to be
the more necessary when the imbecile and improvident nature of
the domestic forum is considered. (l)

Arbitrators, according to the English law, have no power to en-
force the attendance of witnesses, or to administer an oath to those
who do attend; they can only decide upon the admissions of the par-
ties, or on such testimony as may be voluntarily offered to them, (m)
But under our act of assembly, (n) 'and the approved custom of the
court,' as it is called, the courts of law in their rule, referring a
case then depending, have given power to the referees to examine
evidences on oath by the consent of both parties. (0) And here,
as in England, this court has always been in the habit of entering
decrees upon and enforcing awards by virtue of its own orders in
cases then depending, (p) There are, however, cases in which a

(j) Tattersall v. Groote, 2 Bos. & Pal. 132; Allegre v. Insurance Company, 6 H.

& J. 413; Platt on Covenants, 146.—(k) Co. Litt. 165.—(J) Street v. Rigby, 6 Ves.

818.—(m) Street v. Rigby, 6 Ves. 821.—(n) 1778, ch. 21, s. 8.—(o) 2 Hair. Entries.

156, 229.—(p) Ormond v. Kynnersley, 1 Cond. Chan. Rep. 325; Haggett v. Walsh,

2 Cond, Chan. Rep. 68; Phillips v. Shipley, 1 Bland, 516.
GARDNER v. DICK.—This bill was filed on the 25th day of October, 1750, by

Jeremiah Gardner and Daniel Legg, assignees of Daniel Dodson, who was assignee

of John Peele, a bankrupt, now deceased, against James Dick, James Mowat, and

James Nicholson, executors of William Peale, deceased, and William Cummings
and Richard Snowden. The bill alleges, that Samuel Peele and William Peele were

largely indebted to John Peele, and being so indebted, William Peele conveyed the
greater part of his personal estate, consisting chiefly of negroes, to the defendants,
Cummings and Snowden, with intent to defraud his creditors. Whereupon it was
prayed, that the defendants, executors of William Peele, might be made to account
for the assets which had come to their hands; that the conveyance to Cummings and
Snowden might be set aside; that they also might be compelled to account, and that
the assets might be applied to the satisfaction of the debt due to the plaintiffs.