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: Before I quit this article, I must observe, that the many particulars which attend the taking of a distress, used formerly to make it a hazardous kind of proceeding : for, if any *one irregularity was [ *15) committed, it vitiated the whole, and made the distrainors trespassers ab initio (s) (40). But now by the statute 11 Geo. II. c. 19. it is provided, that, for any unlawful act done, the whole shall not be unlawful, or the parties trespassers ab initio : but that the party grieved shall only have an action for the real damage sustained (41), and not even that, if tender of amends is made before any action is brought.
VI. The seizing of heriots, when due on the death of a tenart, is also another species of self-remedy; not much unlike that of taking cattle or goods in distress. As for that division of heriots, which is called heriotservice, and is only a species of rent, the lord may distrain for this, as well as seize, but for heriot-custom (which sir Edward Coke says (t) lies only in prender, and not in render) the lord may seize the identical thing itself, but cannot distrain any other chattel for it (u). The like speedy and effectual remedy, of seizing, is given with regard to many things that are said to lie in franchise; as wails, wrecks, estrays, deodands, and the like ; all which the person entitled thereto may seize, without the formal process of a suit or action. Not that they are debarred of this remedy by action, but have also the other and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature, as might be out of the reach of the law before any action could be brought.
These are the several species of remedies which may be had by the mere act of the party injured. I shall next briefly mention such as arise from the joint act of all the parties together. And these are only two, accord and arbitration.
1. Accord is a satisfaction agreed upon between the party injuring and :he party injured, which, when performed, is a bar of all actions upon this account. As if a man contract *to build a house or [*16 ) deliver a horse, and fail in it; this is an injury for which the sufferer may have his remedy by action ; but if the party injured accepts a sum of money, or other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action (w) (42). By several late sta
(s) 1 Ventr. 37 (c) Cop. 25.
(6) 4 Rep. 79
(u) Cro. Eliz. 590. Cro. Car. 260.
(40) In the case of a distress for damage tiff and defendant should each delirer op his feasant, this is still the law.
part of an indenture to be cancelled, and the (41) See 2 R. S. 504, 928.
defendant had delivered up his part, this was (42) See in general, 'Com. Dig. Accoru, held no accord and satisfaction. 3 Lev. 189. Bac. Ab. Accord.
The accord and satisfaction must be certain ; The mere consent of a party to accept a an accord to pay a less sum on the same, or satisfaction, without an actual satisfaction, is at a suhsequent day, is not sufficient. 5 East, not sufficient to discharge the other; the ac- 230. Su an accord, that the defendant shall cord and satisfaction must be perfect, com- employ workmen in two or three days, is bad, plete, and executed, for were it otherwise, it 4 Mod. 88: and performance of an uncertain would be only substituting one cause of ac- accord will not aid she defect. 3 Lev. 189. tion for another, which might go on to any ex- Yelv. 124. lent, 9 Rep. 79. b. 5. T. R. 141. Satisfac- We have already seen, ante 2 book, how far tion must be made to the whole of the origi. a contract may be varied, released, or disnal demand, and a party will not be discharg. charged by another contract. A deed before ed upon performance of a satisfaction to part breach cannot he discharged by accord and of sich demand, the residue remaining un. satisfaction without a deed. i Taunt. 428. performed. I Taunt. 526. 5 East, 230. The Com. Dig. Pleader, 2. v. 8. but after breach performance of one of two things stipulated accord and satisfaction without derec. is a good for by an accord is nugatory, Lord 'Raym. plea, for there the satisfaction is of the breach 203: and where it was agreed that the plain. and not of the deed. Com Dig. Accord. A
tules (particu.arly 11 Geo. II. c. 19. in case of irregularity in the method of distraining, and 24 Geo II. c. 24. in case of mistakes committed by justices of the peace), even tender of suflicient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends Qr no.
II. Arbitration is where the parties, injuring and injured (43), submi. all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitralors; who are to decide the controversy: and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator or impar) (r), to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties, or the judgment of a court of justice (y). But the right of real property cannot thus pass by a mere award (2): which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles ; for, if this had been permitted, the land might have been aliened collusively without the con(8) Whart. Angl. sacr. 1. 772. Nicols. Scot. Hist.
(2) I Roll. Abr. 242. I Lord Raym. 115.
(y) Brownl. 55. 1 Freem. 410.
libr. ch. 1. prope finem.
I & C. 7 East, 150. 1 J. B. Moore, 358, higher security ; and no action can be sup460.' Cro. Eliz. 46.2 Wils. 86. 6 Rep. ported for the non-performance of the simple 43. b.
contract, Cro. Car. 415. Bac. Ab. Debt, G. The satisfaction must be a reasonable one. unless indeed such new security be void : but Generaily speaking, the mere acceptance of a the mere taking of an instrument of a higaer less surn is not in law a satisfaction of a order as a collateral or additional security, greater sum, 5 East, 230. and this though an does not preclude the debtor from suing on additional security be given. 1 Stra. 426. the original contract, and this though judgAn agreement between a debtor and creditor, ment be obtained on such security. 2 Leon. thal part of a larger sum due should be paid 110.6 T. R. 176, 7. Payment and accepi. by the debtor, and accepted by the creditor as ance of a part of a debt before the day it falls a satisfaction for the whole, might, under spe. due, or at a place where the whole debe was cial circumstances, operate as a discharge of not payable, in satisfaction of the whole, is a the whole ; but then the legal effect of such good satisfaction, Co. Litt. 212. b.; and so if an agreement might be considered to be the the debtor give a chose in possession for å same as if the whole debt had been paid, and chose in action, 2 T. R. 24. as the gift of a part had been returned as a gift to the party horse, or other property in specie. Co. Litt. paying. Per Holroyd, J. 2 B. & C. 481 Á 212. b. The mere fulfilment of an act which debtor's assignment of all his effects to a trus- a party is bound in law to do, is no satisfaction. lee, to raise a fund for the payment of a com. Per Grose, J. 5 East, 302. A release of an position to his creditors, is a sufficient satis. equity of redemption is no satisfaction. 2 faction, 2 T. R. 24 ; so if a third person gua. Wils. 86. Conferring a benefit to a third perrantees the payment of the less sum. 11 East, son, at the debtor's request, is sufficient. See 390. So if a creditor, by his undertaking to Skin. Rep. 391. accept a composition, induce the debtor to The satisfaction should proceed from the part with his property to his creditors, or in party who wishes to avail 'himself of it, for duce other creditors to discharge the debtor, when it proceeds entirely from a stranger, it to enter into a composition-deed, or deliver will be a nullity. Soe 5 East, 294. 1 Smith, ap securities to him, such creditor would be 515. Cro. Eliz. 54). bound by such undertaking._2 Slark. Rep. Accord and satisfactior hy copartner, is a 407. 2 M. & S. 120. 1 Esp. 236. And bar to any action against the other partners, where several creditors, with the knowledge 9 Rep. 79. b. , so the acceptance of satisfac. of each other, agree on the faith of each tion from a joint tort-feasor discharges the other's undertaking to give time to, or accept other wrongdoers, Sembl. 3 Taunt. 117. and a composition from a debtor, the agreement accord and satisfaction to one of several cowill be binding on every creditor who is party plaintiffs, will operate as a discharge from all. to it. 3 Cainp. 175. 2 M. & S. 122. 16 See 13 Ed. IV. 6. 5 Co. 11?. b. Ves. 374; and see further as to composition (43) For the law of arbitrations in general, with creditors, 3 Chitty's Com. L. 681 to 698. see Com. Dig. Arbitrament Tidd. Prac. Sta It should be here also observed, that when a ed. 873 to 885. Caldwell on A bitration : nond, or other security under seal, has been Kyd on Arbitration ; 3 Chi Com. Law, 637 given and accepted in satisfaction of a simple to 66A. contract debt, the latter is merged in such
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 mere 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 conclusive: 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 debree his executor, or if such a creditor obtains letters of adıninistration 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 (6) (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 representative of the deceased, to recover that which is due to him in his own private capacity: but, having the whole personal estate in his hands, so much as is sufficient to 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
(@) 1 Rob. Abr. 922. Plowd. 343. Seo Book II. page. 511.
(46) 2 R. S. 541, &c.
law. Ante, 2 book, 512. Plowd. 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. $ 73, 407. or neir 2 Vern. 62. So if a debtor be nor does the appointment of a delu sr as er made executor of creditor, it is a release at ecutor release the debt (Id. 84, 1?),
(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 hinisell 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 pere mitted to retain (c).
II. Remitter (2) is where he, who hath the true property or jus proprieta. tis 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, litle ; in this case he is remitted, or sent back by operation of law, to his ancient and more certain title (d) (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 re
a mainder 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 inci. dents; 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 (1), why this remedy, which operates silently, and by the mere act of (5) Viner. Abr. t. executors, D. 2.
(5) Finch. L. 191. (c) 5 Rep. 36.
(g) Co. Litt. 348. 350.
(d) Litt. 659.
(2) For law of remitter in general, see 18 Vin. Ab. tit. “ Remitter." Co. Litt. 347, n.
(3) And this if part of the estate came to him by such a defeasible title. Litt. 662, 662