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pro hac vice, for securing of such distress. If a live distress, of animals, be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distreinor must give notice to the owner; and, in both these cases, the owner, and not the distreinor is bound to provide the beasts with food and necessaries. But if they are put in a pound-covert, as in a stable or the like, the landlord or distreinor, must feed and sustain them.(m)33 A distress of household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a vert, else the distreinor must answer for the consequences.

When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satis faction; and upon this account it hath been held, (n) that the distreinor is not at liberty to work or use a distreined beast.34 And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded, till the owner makes satisfaction; or contests the right of distreining by replevying the chattels. To replevy (replegiare, that is, to take back the pledge) is, when a person distreined upon applies to the sheriff or his officers, and has the distress returned into his own possession; upon giving good security to try the right of taking it in a suit of law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distreinor. This is called a replevin, of which more will be said hereafter. At present I shall only observe, that, as a distress is at common law only in nature of a security for the rent or damages done, a replevin [14] answers the same end to the distreinor as the distress itself; since the party replevying gives security to return the distress, if the right be determined against him.


This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet, if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distreinor. But for a debt due to the crown, unless paid within forty days, the distress was always saleable at common law. (0) And for an amercement imposed at a court-leet, the lord may also sell the distress: (p) partly because, being the king's court of record, its process partakes of the royal prerogative; (g) but principally because it is in the nature of an execution to levy a legal debt. And so, in the several statute-distresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And, in like manner, by several acts of parliament, (r) in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken, and notice of



m Co. Litt. 47.
n Cro. Jac. 143.
p 8 Rep. 41.
q Bro. Ibid.
r 2 W. & M. c. 5. 8 Ann. c. 14. 4 Geo. II. c. 28.

o Bro. Abr. t. distress. 71.
12 Mod. 330.
11 Geo. II. c. 19.

(33) The distrainor cannot tie up cattle impounded; and if he tie a beast and it is strangled, he will be liable in damages. 1 Salk. 248. If the distress be lost by act of God, as by death, the distrainor may distrain again. 11 East, 51. Burr. 1738. Chitty

(34) This rule seems to prevail, even though the beast should require working or using. See cases on this subject, Bradby on Dist. 241.

(35) Post 170. 146. 8.

(36) This statute does not affect distresses damage-feasant, consequently they remain as they were at common law, mere pledges, and the sale of them will make the party distraining a trespasser ab initio. Per Lord Hardwicke, C. J. 1 Selw. N. P. 6 ed. 684.

(57) A reasonable time after the expiration of the five days is allowed to the landlord for ap


the cause thereof given him, replevy the same with sufficient security; the distreinor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers; and sell the same towards satisfaction of the rent and charges; " rendering the overplus, if any, to the owner himself. And, by this means, a full and entire satisfaction may now be had for rent in arrere, by the mere act of the party himself, viz. by distress, the remedy given at common law; and sale consequent thereon, which is added by act of parliament.


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 committed, it [15] vitiated the whole, and made the distreinors trespassers ab initio.(s)"

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, "and not even that, if tender of amends is made before any action is brought.

VI. The seising of heriots,43 when due on the death of a tenant, 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 distrein 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

⚫s 1 Ventr. 37.

t Cop. § 25.

praising and selling the goods. 4 B. & A. 208. sed vid. 1 H. Bla. 15. The five days are reckoned inclusive of the day of sale; and if the goods are distrained on the 1st, they must not be sold before the 6th. 1 H. Bla. 13. An action lies on the equity of this act for selling within the five days. Semb. id. If the distrainor continue in possession more than a reasonable time beyond the five days, an action of case or trespass lies on the equity of the statute. 11 East, 395. Stra. 717. 4 B. & A. 208. 1 B. & C. 145. Though the act authorizes a sale after the five days, it does not take away the right to replevy after the five days in case the distress is not sold, but it would be otherwise after a sale. 5 Taunt. 451. 1 Marsh. 135. By the consent of the tenant the landlord may continue in possession longer than the five days without incurring any liability; and his so continuing in possession will not of itself create any presumption of collusion between him and the tenant to defeat an execution. 7 Price, 690. Chitty.

(38) A parol notice will suffice. 12 Mod. Rep. 76. The notice need not specify when the rent became due, and a mis-statement in this respect would be immaterial, Dougl. 280.; and it seems immaterial whether the cause for taking the distress be stated accurately, since a man may distrain for one cause and justify for another. 7 T. R. 654. 3 T. R. 645. Notice to the tenant himself is good notice under the act, though it provides that it shall be left at the house. Lord Raym. 53.

(39) The distrainor cannot be one of the appraisers. See Best, C. J. Dictum; 2 Bingh. 337. and 1 Stark. Rep. 172.

(40) Upon the equity of this act the distrainor must sell for the best price that can be obtained for the goods, and an action lies if he do not. The price at which the goods were appraised will be presumed to be the best that could be obtained, till the contrary be proved. 4 Mod. 390. Com. Dig. Distress, D. 8. No order is required to be observed upon the sale. 6 Price, 5.

(41) In the case of a distress for damage-feasant, this is still the law.

(42) Trover will not lie where the distress has been merely irregularly conducted. 1 H. Bla. 13. Nor trespass, 1 Burr. 590. Fitz. 85. 2 Stra. 851. S. C. unless for some act which of itself might be the subject matter of that form of action; as if the distress were illegal in its inception, as in breaking an outer-door, &c. ante 11. n.; or if the distrainor continue too long in possession after the five days, ante 14. n. ; or sells corn before it is ripe, &c. 3 B. & A. 470.; or distrains after a tender of the rent, ante 9. n. trespass may be supported, but the tenant may in these cases waive the trespass and declare in case. 4 B. & A. 208. 3 B. & A. 70. 3 Stark. 171. 1 B. & C. 145. 2 D. & R. 250. If a party pay money to redeem his goods from a wrongful distress for rent, he may afterwards maintain trover against the person who distrained them, 6 T. R. 298.; and we have before seen that it is no bar to an action for an excessive distress, that between the distress and sale of the goods the parties came to an arrangement respecting the sale. 1 Bing. 401. 4 D. & R. 539. 2 B. & C. p. 21. S. C. Christian.

(43) As to seizures and distresses for heriots, see 2 Saund. 168. n. 1.

cannot distrein 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 waifs, 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.

I. Accord is a satisfaction agreed upon between the party injuring and the party injured; which when performed, is a bar of all actions upon this account. As if a man contract to build a house or 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 [ 16 ] other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action. (w) By several late statutes (particularly


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(44) See in general, Com. Dig. Accord, Bac. Ab. Accord.

The mere consent of a party to accept a satisfaction, without an actual satisfaction, is not sufficient to discharge the other; the accord and satisfaction must be perfect, complete, and executed, for were it otherwise, it would be only substituting one cause of action for another, which might go on to any extent. 9 Rep. 79. b. 5 T. R. 141. Satisfaction must be made to the whole of the original demand, and a party will not be discharged upon performance of a satisfaction to part of such demand, the residue remaining unperformed. 1 Taunt. 526. 5 East, 230. The performance of one of two things stipulated for by an accord is nugatory, Lord Raym. 203.; and where it was agreed that the plaintiff and defendant should each deliver up his part of an indenture to be cancelled, and the defendant had delivered up his part, this was held 'no accord and satisfaction. 8 Lev. 189. The accord and satisfaction must be certain; an accord to pay a less sum on the same, or at a subsequent day, is not sufficient. 5 East, 230. So an accord, that the defendant shall employ workmen in two or three days, is bad, 4 Mod. 88.; and performance of an uncertain accord, will not aid the defect. 3 Lev. 189. Yelv. 124.

We have already seen, how far a contract may be varied, released, or discharged by another contract. A deed before breach cannot be discharged by accord and satisfaction without a deed. 1 Taunt. 428. Com. Dig. Pleader, 2. v. 8. but after breach accord and satisfaction without deed is a good plea, for there the satisfaction is of the breach, and not of the deed. Com. Dig. Accord, A. 1. & C. 7 East, 150. 1 J. B. Moore, 358. 460. Cro. Eliz. 46. 2 Wils. 86. 6 Rep. 43. b.

The satisfaction must be a reasonable one. Generally speaking, the mere acceptance of a less sum is not in law a satisfaction of a greater sum, 5 East, 230. and this though an additional security be given. 1 Stra. 426. An agreement between a debtor and creditor, that part of a larger sum due should be paid by the debtor, and accepted by the creditor as a satisfaction for the whole, might, under special circumstances, operate as a discharge of the whole but then the legal effect of such an agreement might be considered to be the same as if the whole debt had been paid, and part had been returned as a gift to the party paying. Per Holroyd, J. 2. B. & C. 481. A debtor's assignment of all his effects to a trustee, to raise a fund for the payment of a composition to his creditors, is a sufficient satisfaction, 2 T. R. 24.; so if a third perSon guarantees the payment of the less sum. 11 East, 390. So if a creditor, by his undertak ing to accept a composition, induce the debtor to part with his property to his creditors, or in duce other creditors to discharge the debtor, to enter into a composition-deed, or deliver up securities to him, such creditor would be bound by such undertaking. 2 Stark. Rep. 407. 2 M. & S. 120. 1 Esp. 236. And where several creditors, with the knowledge of each other, agree on the faith of each other's undertaking to give time to, or accept a composition from, a debtor, the agreement will be binding on every creditor who is party to it. 3 Camp. 175. 2 M. & S. 122. 16 Ves. 374.; and see further as to composition with creditors, 3 Chitty's Com. L. 687 to 698. It should be here also observed, that when a bond, or other security under seal, has been given and accepted in satisfaction of a simple contract debt, the latter is merged in such higher security; and no action can be supported for the non-performance of the simple contract, Cro. Car. 415. Bac. Ab. Debt, G. unless indeed such new security be void: but the mere taking of an instrument of a higher order as a collateral or additional security, does not preclude the

11 Geo. II. c. 19. in case of irregularity in the method of distreining, and 24 Geo. II. c. 24. in case of mistakes committed by justices of the peace), even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no.


II. Arbitration is where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong," to the judgment of two or more arbitrators; 47 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), (x) to whose sole judgment it


x Whart. Angl. sacr. i. 772. Nicols. Scot. Hist. libr. ch. 1 prope finem.

debtor from suing on the original contract, and this though judgment be obtained on such security. 2 Leon. 110. 6 T. R. 176, 7. Payment and acceptance of a part of a debt before the day it falls due, or at a place where the whole debt was not payable, in satisfaction of the whole, is a good satisfaction, Co. Litt. 212. b. ; and so if the debtor give a chose in possession for a chose in action, 2 T. R. 24. as the gift of a horse, or other property in specie. Co. Litt. 212. b. The mere fulfilment of an act which a party is bound in law to do, is no satisfaction. Per Grose, J. 5 East, 302. A release of an equity of redemption is no satisfaction. 2 Wils. 86. Conferring a benefit to a third person, at the debtor's request, is sufficient. See Skin. Rep. 391.

The satisfaction should proceed from the party who wishes to avail himself of it, for when it proceeds entirely from a stranger, it will be a nullity. See 5 East, 294. 1 Smith, 515. Cro. Eliz. 541.

Accord and satisfaction by copartner, is a bar to any action against the other partners, 9 Rep. 79. b. so the acceptance of satisfaction from a joint tort-feasor discharges the other wrongdoers, Sembl. 3 Taunt. 117. and accord and satisfaction to one of several coplaintiffs will operate as a discharge from all. See 13 Ed. IV. 6. 5 Co. 117. b. Chitty. (45) For the law of arbitrations in general, see Com. Dig. Arbitrament; Tidd Prac. 8th ed. 873 to 885. Caldwell on Arbitration; Kyd on Arbitration; 3 Chit. Com. Law, 637 to 668. Every person capable of making a disposition of his property, or a release of his right, may refer the matter in dispute to arbitration, Com. Dig. Arbitrament, D. 2.; married women (unless by custom of London, or the husband be civilly dead), or infants cannot, so as to bind them, but the husband may refer for himself and his wife, Sti. $51. 5 Ves. 846. or a guardian for an infant, Camp. 318. Latch. 207. or an executor or administrator, 2 Stra. 1144. 1 T. R. 691. 5 T. R. 6. 3 Bing. 30. but this will be at the executor's or administrator's peril, if the arbitrators do not give him the same justice as he would be otherwise entitled to by law. 7 T. R. 453. 691. 5 T. R. 6. Trustees may refer to arbitration, 3 Esp. 101. 2 Chit. Rep. 40. and by the bankrupt act, 6 Geo. IV. c. 16. assignees may under certain restrictions. An authorized agent may bind his principal by a reference, 3 Taunt. 486. 378. but one of several partners cannot bind the others by a reference to arbitration, even of matters arising out of the business of the firm. 3 Bing. Rep. 101. Chitty. (46) As to what may be submitted to arbitration, see Com. Dig. Arbitrament, D. 3, 4. A debt on a specialty, though certain, may be submitted, Id. 7. Taunt. 422. 1 Moore, 120. S. C. 1 Lev. 292. Roll. Ab. Arb. B. 8.; so may all breaches of contract, and all unliquidated demands, 1 Keb. 848. 3 Rep. Chan. 42. A question of law may be referred, 9 Ves. 367. so may the construction of an instrument. 10 Mod. 59.

(47) Any person the parties choose may be the arbitrator; but if the party chosen be interested in the event of the arbitration, his appointment will be invalid, unless the fact of his being so interested was known, Roll. Arb. A. 2, 4 Mod. 226. 2 Vern. 251. Cald. 37, 8.; in general, an objection to the appointment of an arbitrator will be waived by attending him. 1 Jac. & W. Rep. 511. 8 East, 344. 1 R. & M. Rep. 17.

(48) The same rule, as to who may be made an arbitrator, will here apply as to who may be chosen an umpire. Arbitrators who have the power of choosing an umpire may, in the event of their disagreeing in their choice, decide by lot which is to have the choice, 16 East, 51. but then a party before rejected by one of the arbitrators, cannot be chosen an umpire, 2 B. & A. 213. ; and where a cause was referred to two arbitrators, specially named, together with a third to be chosen by them, and the award of any two was to be binding, and they agreed that each should name one person, and that the right of selecting one of those so named should be determined by lot, it was held, that this mode of appointing the third arbitrator was bad, and a sufficient ground for setting aside the award. 3 B. & Cres. 405. There should be a formal written appointment of the umpire; the most usual way is by indorsement, made by the arbitrators on the submission. 4 Camp. 17. The umpire may be chosen at any time within the time limited for his umpirage. 15 East, 556. 2 T. R. 644. 2 Mod. 169. If the submission-bond be, that if the arbitrators do not make their award by a day named, then to abide the award of an umpire chosen by the arbitrators, the time for the arbitrators to appoint an umpire commences when the time for making their award expires. 4 Taunt. 232. The parties cannot impeach the award by dissenting to an umpire properly appointed. 11 East, 367. An improper appointment of an umpire will be effectual if the parties waive it by attending the arbitration, &c. 1 Ry. Mood. Reports, 17. Christian & Chitty,

is then referred: or frequently there is only one arbitrator originally ap pointed. 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: (z) 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 consent of the superior. Yet doubtless an arbitrator may now award a conveyance

or a release of land; and it will be a breach of the arbitration-bond to refuse compliance." 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 [ 17 ] or umpire therein named. (a) 50 And experience having shewn the

y Brown). 55. 1 Freem. 410.

z 1 Roll. Abr. 242. 1 Lord Raym. 115.

a Append. No. III. § 6.

(49) And where a party's title to land is referred, with bis consent, the award is conclusive evidence, and binding on him and his heir and assigns, as to such title. 3 East, 15.

(50) If the parties intend to refer all disputes, the terms of the reference should be," of all matters in difference between the parties;" when the reference is only intended to be of the matter in a particular cause, it should be, "of all matters in difference in the cause." 3 T. R. 628. A time should, in all cases, be mentioned within which the award is to be made; but if no time be mentioned, the award should be made in a reasonable time. 2 Keb. 10. 20. 3 M. & S. 145. It is usual to vest in the arbitrators a power of enlarging the time for making their award; but it should be stipulated, that this enlargement be made a rule of court. It is best to provide, that the arbitration is not to be defeated by the death of either party. 7 Taunt. 571. 2 B. & A. 394. 3 D. & R. 184. 608. In some cases the court will amend an order of reference. 5 Moore. 167.

A court of chancery will not decree a specific performance, 19 Ves. 431. 6 Ves. 815. and no action lies for not appointing an arbitrator, 2 B. & P. 13. ; but if a party has agreed not to revoke, or has covenanted to perform an award, and the award be made, he will be liable to an action for a breach of the agreement or covenant, if he revoke or refuse to perform the award; see 5 B. & A. 507. 1 D. & R. 106. 2 Chit. R. 316. 5 East, 266. ; and see 4 B. & C. 103. ; and an attachment for a contempt of court sometimes lies, where the submission is a rule of court. Crompt. Prac. 262. 1 Stra. 593. 7 East, 607.

With respect to the revocation of the arbitrator's authority, it is a rule of law, that every species of authority, being a delegated power, although by express words made irrevocable, is nevertheless in general revocable. See 8 Co. 82. A submission to arbitration may be revoked by the act of God, by operation of law, or by the act of the parties.

The death of either or any of the parties before the award is delivered, in general vacates the submission, unless it contain a stipulation to the contrary; see 1 Marsh. 366. 7 Taunt. 571. 1 Moore, 287. S. C. 2 B. & A. 394.; but where all matters in difference in a cause are referred by order of nisi prius to arbitration, the death of one of the parties, at any time before award made, is a revocation of the arbitrator's authority, and the court will set aside an award made after his death; or, in other words, it should seem, if the cause of action is referred, the death abates the action, but not so if other matters besides the cause of action are referred. 3 D. & R 608. 2 B. & A. 394.

If a feme-sole submit to arbitration, and marry before the award is delivered, such marriage is in effect a revocation, without notice to the arbitrators, 2 Keb. 865. Jones, 388. Roll. Arb. 331.; but the husband and wife may be sued on their bond for such revoking. 5 East, 266.

Bankruptcy of one of the parties is no revocation. 2 Chit. Rep. 43. 4 B. & A. 250.

The death of the arbitrators, or one of them, will defeat the reference, unless there be a clause in the submission to the contrary, see 4 Moore, 3.; so if the arbitrators do not make the award within the limited time, or they disagree, or refuse to act or intermeddle any further. 1 Roll. Ab. 261. 2 Saund. 129. Tidd, 8 ed 877.

The parties themselves, as we have just seen, may revoke the arbitrators' authority before the award is made: the revocation must follow the nature of the submission; if the latter be by parol, so may the revocation. 2 Keb. 64. If the submission be by deed, so must the revocation. 8 Co. 72. and see T. Jones, 134. Notice of the revocation by the act of the parties must be given to the arbitrators, in order to render it effectual. Roll. Arb. 331. Vin. Ab. authority, 13. and see 5 B. & A. 507.

The law relating to the proceedings during the conduct of the arbitration, and the duties of arbitrators and umpires, will be found in 3 Chit. Com. Law, 650 to 656. and Caldw. on Arb. 42. 45, &c.; as to the power &c. of awarding costs, see Tidd, 8 ed. 883 to 887.; as to when a court of equity will compel an arbitrator to proceed, see 1 Swanst. 40. As to the general requisites of VOL. II. 3

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