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sent of the super.or.
Yet doubtless an arbitrator may now award a conveyance or a release of land; and it will be a breach of the arbitrationbond to refuse compliance (44). For, though originally the submission to arbitration used to be by word, or by deed, yet both of these being revocable in their nature, it is now become the practice to enter into mutual bonds, with condition to stand to the award or arbitration of the arbitrators or umpire therein named (a) (45). And expe- [*17] rience having shewn the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mer. cantile transactions, which are difficult and almost impossible to be adjusted on a trial at law; the legislature has now established :he use of them,
(a) Append. No. III. 6 6.
(44) And where a party's title to land is re- tion, the death of one of the parties, at any ferred, with his consent, the award is conclu. time before award made, is a revocation of the sive evidence, and binding on him and his arbitrator's authority, and the court will set heir and assigns, as to such title. 3 East, 15. aside an award made after his death; or, in See, however, 2 R. S. 541, 02.
other words, it should seem, if the cause of (45) If the parties intend to refer all dis. action is referred, the death abates the action, putes, the terms of the reference should be, but not so if other matters besides the cause * of all matters in difference between the par: of action are referred. 3 D. & R. 608. 2 B. ties;" when the reference is only intended to & A. 394. be of the matter in a particular cause, it If a feme-sole submit to arbitration, and should be, "of all matters in difference in the marry before the award is delivered, such cause." 3 T. R. 628. A time should, in all marriage is in effect a revocation, without nocases, be mentioned within which the award tice to the arbitrators, 2 Keb. 865. Jones, is to be made; but if no time be mentioned, 388. Roll. Arb. 331 ; but the husband and the award should be made in a reasonable wife may be sued on their bond for such ro. time. 2 Keb. 10. 20. 3M. & S. 145. It is voking. '3 East, 266. usual to vest in the arbitrators a power of en- Bankruptcy of one of the parties is no ro larging the time for making their award ; but vocation.' 2 Chit. Rep. 43. 4 B. & A. 250. it should be stipulated, that this enlargement The death of the arbitrators, or one of them be made a rule of court. It is best to provide, will defeat the reference, unless there be a that the arbitration is not to be defeated by clause in the submission to the contrary, see the death of either party. 7 Taunt. 571. 2 4 Moore, 3 ; so if the arbitrators do not make B. & A. 394. 3 D. & R. 184. 608. In some the award within the limited time, or they cases the court will amend an order of refer. disagree, or resuse to act or intermeddle anv ence. 5 Moore, 167.
further. | Roll. Ab. 261. 2 Saund. 129 A court of chancery will not decree a spe Tidd, 8 ed. 877. cific performance, 19 Ves. 431. 6 Ves. 815. The parties themselves, as we have just and no action lies for not apprinting an arbi. seen, may revoke the arbitrators' authority trator, 2 B. & P. 13; but if a party has agreed before the award is made: the revocation not to revoke, or has covenanted to perforın an must follow the nature of the submission; if award, and the award be made, he will be lia- the latter be by parol, so may the revocation. ble to an action for a breach of the agreement 2 Keb. 64. If the submission be by deed, so or covenant, if he revoke or refuse to perform must the revocation. 8 Co. 72. and see T. the award ; see 5 B. & A. 507. ID. & R. Jones, 134, Notice of the revocation hy the 106. 2 Chil. R. 316. . 5 East, 266 ; and see act of the parties must be given to the arbi. 4 B. & C. 103 ; and an attachment for a con. trators, in order to render it effectual. Roll. tempt of court sometimes lies, where the sub. Arb. 331. Vin. Ab. Authority, 13. and see 3 mission is a rule of court. Crompt. Prac. B. & A. 507. 262. 1 Stra. 593. 7 East, 607.
The law relating to the proceedings during With respect to the revocation of the arbi- the conduct of the arbitration, and the duties trator's authority, it is a rule of law, that of arbitrators and umpires, will be found in 3 every species of authority, being a delegated Chit. Com. Law, 650 to 656. and Caldw. on power, although by express words made irre. Arb. 42. 45, &c.; as to the power, &c. of rocable, is nevertheless in general revocable. awarding costs, see Tidd, 8 ed. 883 to 887; See 8 Co. 82. A submission to arbitration as to when a court of equity will compel an may be revoked by the act of God, by opera. arbitrator to proceed, see 1 Swanst. 40. A. sion of law, or by the act of the parties. to the general requisites of an award, and
The death of either or any of the parties be. how it will be construed, see 3 Chit. Com. fore the award is delivered, in general vacates Law, 656 to 660. Tidd, 8 ed. 882. For the the submission, unless it contain a stipulation remedy to compel the performance of an award, the contrary; see 1 Marsh. 366. 7 Taunt. see Tidd. Prac. 8 ed. 887 to 894. 3 Chit. Com. 51. i Moore, 287. S. C. 2 B. & A. 394; Lau, 660 to 665; and for the relief against but where all matters in difference in a cause an improper award, see 3 Chit. Com. Law ure referred by order of nisi prius to arbitra. 665 to 668. Tidd. Prac. 8 ed. 894 to E98.
† See Hov. n. (1) at the end of the Vol. B II
as well in controversies where causes are depending, as in those where ng action is brought: enacting, by statute 9 & io W. III. c. 15. that all mer, chants and others, who desire to end any controversy, suit, or quarrel, (for which there is no other remedy but by personal action or suit in equity), may agree, that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king's courts of record, and may insert such agree. ment in their submission, or promise, or condition of the arbitration-bond: which agreement being proved upon oath by one of the witnesses thereto, the court shall make a rule that such submission and award shall be con, clusive: and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of the court; unless such award shall be set aside, for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court, within one term after the award is made (46). And, in consequence of this statute, it is now become a considerable part of the business of the superior courts, to set aside such awards when partially or illegally made ; or to enforce their execution, when legal, by the same process of contempt, as is awarded for dis. obedience to those rules and orders, which are issued by the courts themselves.
OF REDRESS BY THE MERE OPERATION OF LAW.
The remedies for private wrongs, which are effected by the mere operation of the law, will fall within a very narrow compass ; there being only two instances of this sort that at present occur to my recollection: the one that of retainer, where a creditor is made executor or administrator to his debtor; the other, in the case of what the law calls a remitter.
I. If a person indebted to another makes his creditor or debtee his executor, or if such a creditor obtains letters of administration to his debtor ; in these cases the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree (0) (1). This is a remedy by the mere act of law, and grounded upon this reason ; that the execuior cannot, without an apparent absurdity, commence a suit against himself as a representalive of the deceased, to recover that which due to him in his own private capacity: but, having the whole personal estate in his hands, so much as is sufficient answer his own demand is, by operation of law, ap.
plied to that particular purpose. Else, by being made executor, (*19] *he would be put in a worse condition than all the rest of the
(a) 1 Rou. Abr, 922. Plowd. 543. See Book II. page. 511.
(46) 2 R. S. 541, &c.
law. Ante, 2 book, 512. Plond. 184. Salk. 299. (1) Toller, 4 ed. 295. 298. So if a credi- But now', in New York, executors or ad. tor be made a co-executor. 1 B. & P. 630. ministrators cannot retain in preference to The same law as to an administrator, 8 T. R. other debts of equal degree (2 R S. 88. $ 33, 407. or neir 2 Vern. 62. So if a debtor be nor does the appointment of a debe sr as er made executor of creditor, it is a release atecutor release the debt (Id. 84, 191,
(1) See Hov. n. (1) at the end of the Vol. B. III.
world besides. For, though a rateable payment of all the debts of the deceased, in equal degree, is clearly the most equitable method, yet as every scheme for a proportionable distribution of the assets among al. the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy; so that the creditor who firse commences his suit is entitled to a preference in payment; it follows that as the executor can commence no suit, he must be paid the last of any, and of course must lose his debt, in case the estate of his testator should prove insolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the necessary consequence of that other doctrine of the law, the priority of such creditor who first commences his action. But the executor shall not retain his own debt, in prejudice to those of a higher degree for the law only puts him in the same situation, as if he had sued himself as executor, and recovered his debt; which he never could be supposed to have done, while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree ; but both shall be discharged in proportion (6). Nor shall an executor of his own wrong, be in any case permitted to retain (c).
II. Remitter (2) is where he, who hath the true property or jus proprietatis in lands, but is out of possession thereof, and hath no right to enter with out recovering possession in an action, hath afterwards the freehold cast upon him by some subsequent, and of course defective, title; in this case he is remitted, or sent back by operation of law, to his ancient and more certain title (2) (3). The right of entry, which he hath gained by a bad title, shall be ipso facto annexed to his own inherent good one: and his defeasible estate shall be utterly defeated and annulled, by the instantaneous act of law, without his participation or consent (e). As if A disseizes B, that is, turns him out of possession, and dies, leaving a [ 20 ] son C; hereby the estate descends 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 disseizor, makes a lease for life to D, with remainder to B the disseize for life, and D dies; hereby the remainder accrues to B, the disseizee : who thus gaining a new freehoid by virtue of the remainder, which is a bad title, is by act of law remitted, or in of his former and surer estate (S). For he hath hereby gained a new right of possession, to which the law immediately annexes his ancient right of property.
If the subsequent estate, or right of possession, be gained by a man's own act or consent, as by immediate purchase being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waver of his prior right (g). Therefore it is to be observed, that to every remitter there are regularly these incidents; an ancient right, and a new defeasible estate of freehold, uniting in one and the same person ; which defeasible estate must be cast upon the tenant, not gained by his own act or folly. The reason given by Littleson (h), why this remedy,
which operates silently, and by the mere act of (6) Viner. Abr. t. executors, D, 2.
(f) Finch. L. 194. Litt 9 683.
(g) Co. Litt. 348. 350. (d) Litt. 659.
(h) 6661. le) Co. Litt. 358. Cro. Jac. 489.
law, was allowed, is somewhat similar to that given in the preceding article ; because otherwise he who hath right would be deprived of all remedy. For as he himself is the person in possession of the freehold, there is no other person against whom he can bring an action, to establish his prior right (4). And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes (i), the benignity of the law is such, as when, to preserve 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 destituitur, ipse [ 21 ] re valet, si culpa absit. But there shall be no *rèmitter to a right,
for which the party has no remedy by action (k): as if the issue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards cast upon him ; he shall not be remitted to his estate tail (1): for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As therefore the issue in tail could not by any action have recovered his ancient estate, 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 some cases even possible, to apply for redress in the usual and ordinary methods to the courts of public justice.
OF COURTS IN GENERAL (1).
The next, and principal, object of our inquiries is the redress of injuries by suit in courts : wherein the act of the parties and the act of law cooperate ; the act of the parties being necessary to set 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 several cases of redress by the act of the parties mentioned in a former chapter (a), the law allows an extrajudical remedy, yet that does not exclude the ordinary course of justice : but it is only an additional weapon put into the hands of certain persons in particular instances, where natural equity or the peculiar circumstances of their situation 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 assault 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 de(i) Elem. c 9.
(1) Moor. 115. 1 Ann. 186 (k) Co. Litt. 340.
ta) Ch. 1. (4) See post 190. for the advanlages of this courts, see Com. Dig. Courts ; Dirc. Ad aw or remitter.
Courts; Vin. Ab. Courts. (I! As w courts in general, and the several
(9) See Hov. n. (2) at the end of the Vol. B. IL
unue : I may either enter on the lands, on which I have a right of ontıy, or may demand possession by a real action : I may either abate a nuisance by my own authority, or call upon the law to do it for me: I may distrain for rent, or have an action of debt, at my own *option : if (*23; I do not distrain my neighbour's cattle damage-feasant, I may compel himn by action of trespass to make me a fair satisfaction ; if a heriot, or i deodand, be withheld from me by fraud or force, I may recover it though I never seized it. And with regard to accords and arbitrations, these, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress some other way; which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be ministered by suit or action, without running into the palpable absurdity of a man's bringing an action against himself
= the two cases wherein they happen being such wherein the only possible legal remedy would be directed against the very person himself who seeks relief.
In all other cases it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these reinedies by suit in courts, I shall pursue the following method first, I shall consider the nature and several species of courts of justice; and, secondly, I shall 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 justice. And herein we will consider, first, then nature and incidents in general; and then, the several species of them, erected and acknowledged by the laws of England.
A court is defined to be a place wherein justice is judicially adminis. tered (O). And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are the medium by which he admi- [*24 ] nisters the laws, are derived from the power of the crown (c)." For, whether created by act of parliament, or letters patent, or subsisting by prescription (the only methods by which any court of judicature (d) can exist), the king's consent in the two former is expressly, and in the latter impliedly, given. In all these courts the king is supposed in contemplation of law to be always present ; but as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative.
For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive jurisdiction; some constituted to inquire only, others to hear and determine ; some to determine in the first instance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places : and I shall therefore here only mention one distinction, that runs throughout them all ; viz. that some of them are courts of record, others hot of record. A court of record is that, where the acts and judicial proreedings are enrolled in parchment (2) for a perpetual memorial and testi
(6) Co. Litt. 58.
(d) Co. Litt. 260.
(c) See book I. ch. 27
(2) In New-York they may be in paper or parchment. 2 R. S. 275, 1 9 Vol. It