Bach v. Burke

Opinion, Me. Justice Mitchell: On the facts presented in the petition there was an agreement between the parties, upon a good consideration, to discontinue this suit, and the agreement was known to and so far acquiesced in by the counsel as to bring it within the summary jurisdiction of the court to enforce by rule. This is entirely clear, upon the authority of Wilkins v. Burr, 6 Binn. 389, an almost exactly analogous case which Chief Justice Tilg-hman held to fall “within the reason of that principle by which [652] courts compel the specific execution of agreements concerning suits depending before them.” But that case, though commenced by capias in the Common Pleas, was immediately transferred, as I have ascertained by examination of the original record, to this court by habeas corpus, and all ■ the proceedings subsequent to the writ were here as in a court of original jurisdiction. The decision is authority, therefore, for the court below to make absolute the rule to discontinue, but its refusal to do so is not a matter that we can review. There is no judgment to which a common-law writ of error would lie, and the case is not within any of the special appeals allowed by statute. We are not informed of the grounds on which the court below discharged the rule. If it was from doubt of its authority, as the case is very much out of the usual course of proceeding, the decision in Wilkins v. Burr solves that doubt in favor of the jurisdiction. If for other reasons, we may say that on the facts, as they seem to be conceded, the petitioner appears to us to be entitled to the relief asked; but the consideration of the case on the merits is for the court below, not for us. If that court does not think the facts sufficiently established to be safe ground of summary decision on a rule, we perceive no reason why it may not permit them to be pleaded in abatement, or given in evidence as an equitable release, under the hotchpot pleading of the procedure act. But at present there is nothing before us for review. Writ quashed.