tutes (particularly 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 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 (43), submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators; 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 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 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 trus tee, 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 undertaking to accept a composition, induce the debtor to part with his property to his creditors, or induce 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 (y) Brownl. 55. 1 Freem. 410. (z) I Roll. Abr. 242. 1 Lord Raym. 115. 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 debtor from suing on the original contract, and this though judg ment 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 satisfactior 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. (43) 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. sent 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 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 mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law; the legislature has now established the use of them, (a) Append. No. III. § 6. (44) And where a party's title to land is referred, with his consent, the award is conclusive evidence, and binding on him and his heir and assigns, as to such title. 3 East, 15. See, however, 2 R. S. 541, ◊ 2. (45) 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. 609. 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 arbi trator, 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 arbitra tion, 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. 230. 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. I 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 an award, and how it will be construed, see 3 Chit. Com. Law, 656 to 660. Tidd, 8 erl. 882. For the remedy to compel the performance of an award, see Tidd. Prac. 8 ed. 887 to 894. 3 Chit. Com. Law, 660 to 665; and for the relief against an improper award, see 3 Chit. Com. Law, 665 to 668. Tidd. Prac. 8 ed. 894 to 898 as well in controversies where causes are depending, as in those where no action is brought: enacting, by statute 9 & 10 W. III. c. 15. that all merchants 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 agreement 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 disobedience to those rules and orders, which are issued by the courts themselves. CHAPTER II. 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 (a) (1). This is a remedy by the mere act of law, and grounded upon this reason; that the executor 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, applied 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) I Roll. Abr. 922. Plowd. 543. See Book II. page. 511. (46) 2 R. S. 541, &c. (1) Toller, 4 ed. 295. 298. So if a creditor be made a co-executor. 1 B. & P. 630. The same law as to an administrator, 8 T. R. 407. or heir. 2 Vern. 62. So if a debtor be made executor of creditor, it is a release at law. Ante, 2 book, 512. Plowd. 184. Salk. 299. But now, in New-York, executors or administrators cannot retain in preference to other debts of equal degree (2 R. S. 88, § 33), nor does the appointment of a debtor as executor release the debt. (Id. 84, § 13). 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 all the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy; so that the creditor who first 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 (b). 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 without 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 (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 remainder to B the disseize for life, and D dies; hereby the remainder accrues to B, the disseizee: 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 surer estate (f). 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 Littleton (h), why this remedy, which operates silently, and by the mere act of 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, ipsa [*21] re valet, si culpa absit. But there shall be no remitter 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. CHAPTER III. 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. (k) Co. Litt. 340. (4) See post 190. for the advantages of this law of remitter. (1) As to courts in general, and the several (7) Moor. 115. 1 Ann. 186. courts, see Com. Dig. Courts; Bac. Ab. Courts; Vin. Ab. Courts. |