he would be put in a worfe condition than all the rest of the world befides. For, though a ratable payment of all the debts of the deceafed, in equal degree, is clearly the most equitable method, yet as every scheme for a proportionable diftribution of the affets among all the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy; fo that the creditor who firft commences his fuit is entitled to a preference in payment; it follows, that as the executor can commence no fuit, he must be paid the laft of any, and of courfe muft lofe his debt, in case the estate of his teftator fhould prove infolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the neceffary confequence of that other doctrine of the law, the priority of fuch creditor who first commences his action. But the executor fhall not retain his own debt, in prejudice to thofe of a higher degree; for the law only puts him in the fame fituation, as if he had fued himself as executor, and recovered his debt; which he never could be supposed to have done, while debts of a higher nature fubfifted. Neither fhall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree; but both fhall be discharged in proportion". Nor fhall an executor of his own wrong be in any cafe permitted to retain c. II. REMITTER is where he, who hath the true property or jus proprietatis in lands, but is out of poffeffion thereof and hath no right to enter without recovering poffeffion in an action, hath afterwards the freehold caft upon him by fome fubfequent, and of course defective title: in this cafe he is remitted, or fent back, by operation of law, to his antient and more certain title. The right of entry, which he hath gained by a bad title, fhall be ipfo facto annexed to his own Inherent good one; and his defeasible estate shall be utterly defeated and annulled, by the inftantaneous act of law, without his participation or confent. As if A diffeifes B, that b Viner. Abr. t. executors. D. 2. eg Rep. 30. d Litt. §652: e Co. Litt. 358. Cro. Jac. 489. is, turns him out of poffeffion, and dies leaving a fon C; hereby the eftate defcends to C the son of A, and B is barred from entering thereon till he proves his right in an action: now, if afterwards C the heir of the diffeifor makes a lease for life to D, with remainder to B the diffeifee for life, and D dies; hereby the remainder accrues to B, the diffeifee: who thus gaining a new freehold by virtue of the remainder, which is a bad title, is by act of law remitted, or in of his former and furer eftate f. For he hath hereby gained a new right of poffeffion, to which the law immediately annexes his antient right of property. IF the fubfequent eftate, or right of poffeffion, be gained by a man's own act or confent, as by immediate purchase Being of full age, he fhall not be remitted. For the taking fuch fubfequent estate was his own folly, and fhall be looked upon as a waiver of his prior right . Therefore it is to be observed, that to every remitter there are regularly these incidents; an antient right, and a new defeasible estate of freehold, uniting in one and the fame perfon; which defeasible eftate must be caft upon the tenant, not gained by his own. act or folly. The reafon given by Littleton h, why this remedy, which operates filently and by the mere act of law, was allowed, is somewhat fimilar to that given in the preceding article; because otherwife he who hath right would. be deprived of all remedy. For as he himself is the person in poffeffion of the freehold, there is no other person against whom he can bring an action, to establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the fame land by fuit. For, as lord Bacon obferves, the benignity of the law is fuch, as when, to preferve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse. Nam quod remedio defti tuitur, ipfa re valet, fi culpa abfit. But there fhall be no f Finch. L. 194. Litt. § 683. C 4 b& 661. i Elem. c. 9. remitter remitter to a right, for which the party has no remedy by action: as if the iffue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards caft upon him; he shall not be remitted to his eftate tail: for the operation of the remitter is exactly the fame, after the union of the two rights, as that of a real action would have been before it. As therefore the iffue in tail could not by any action have recovered his antient eftate, he shall not recover it by remitter, AND thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished or permitted by the law, where the parties are so peculiarly circumstanced, as not to make it eligible, or in fome cafes even poffible, to apply for redress in the ufual and ordinary methods to the courts of public justice. * Co. Litt. 349. 1 Moor. 115. 1 Алд. 286. CHAPTER THE THIRD. OF COURTS IN GENERAL. THE HE next, and principal, object of our enquiries is the redrefs of injuries by fuit in courts: wherein the act of the parties and the act of law co-operate; the act of the parties being neceffary to fet the law in motion, and the process of the law being in general the only instrument, by which the parties are enabled to procure a certain and adequate redress. AND here it will not be improper to observe, that although, in the feveral cafes of redress by the act of the parties mentioned in a former chapter 2, the law allows an extrajudicial remedy, yet that does not exclude the ordinary course of juftice but it is only an additional weapon put into the hands of certain perfons in particular inftances, where natural equity or the peculiar circumftances of their fituation required a more expeditious remedy, than the formal process of any court of judicature can furnish. Therefore, though I may defend myself, or relations, from external violence, I yet am afterwards entitled to an action of affault and battery: though I may retake my goods, if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action of trover or detinue: I may either enter on the lands, on which I have a right of entry, or may demand poffeffion by a real action: I may either abate a nufance by my own authority, or call upon the law to do it for me: I may diftrein for rent, or have an action of debt, at my own BOOK III. option: If I do not diftrein my neighbour's cattle damagefeafant, I may compel him by action of trespass to make me a fair fatisfaction: if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never feifed it. And with regard to accords and arbitrations, thefe, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redrefs fome other way, which is given up by fuch agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be miniftred by fuit or action, without running into the palpable abfurdity of a man's bringing an action against himself: the two cafes wherein they happen being fuch, wherein the only possible legal remedy would be directed against the very perfon himfelf who feeks relief. IN all other cafes it is a general and indifputable rule, that where there is a legal right, there is also a legal remedy, by fuit or action at law, whenever that right is invaded. And, in treating of these remedies by fuit in courts, I fhall pursue the following method: first, I fhall confider the nature and feveral fpecies of courts of justice: and, fecondly, I fhall point out in which of these courts, and in what manner, the proper remedy may be had for any private injury; or, in other words, what injuries are cognizable, and how redressed, in each respective species of courts. FIRST then, of courts of juftice. And herein we will confider, firft, their nature and incidents in general; and, then, the feveral fpecies of them, erected and acknowleged by the laws of England... A COURT is defined to be a place wherein juftice is judicially administered". And, as by our excellent conftitution the fole executive power of the laws is vefted in the perfon of the king, it will follow that all courts of justice, which are b Co. Litt. 58. the |