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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; (q) 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, (21) and notice of the cause thereof given him, replevy the same with sufficient security; the distrainor, 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 vitiated the whole, and made the distrainors trespassers ab initio. (s) (22) But now [*15]
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 seizing of heriots, 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 heriot-service, and is only a species of rent, the lord may distrain for this, as well as seize, but for heriotcustom (which Sir Edward Coke says (f) 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 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.
(0) Bro. Abr. t. distress, 71.
(p) 8 Rep. 41.
4 Geo. II, c. 28. 11 590. Cro. Car. 260.
(q) Bro. Ibid. 12 Mod. 330. Geo. II, c. 19.
(8) I Ventr. 37.
(21) [The five days are reckoned inclusive of the day of sale; as 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. and A. 208; 1 B. and 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 March, 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.]
(22) Generally, a party pursuing a remedy ex parte, which may result in depriving another of his property, must pursue strictly the authority the law gives him. In Newsam v. Hart, 14 Mich. 233, it was held that, under a statute which authorized freeholders to take up estrays, a freeholder could not justify the taking up of an estray for him by a third person without his previous authorization, notwithstanding he had assumed to ratify the act. See Hearn v. Ewin, 3 Cold. 399.
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; [*16] 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) (23) By
(w) 9 Rep. 79.
(23) [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 satsfaction 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; 3 Lev. 189. The accord and satisfaction must be certain; and 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 workinen 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, ante book 2, 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. I and 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. and 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 a 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. and 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. and S. 122; 16 Ves. 374. 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 gives 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 wher it proceeds entirely from a stranger, it will be a nullity. See 5 East, 294; 1 Smith, 515; Cro.
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 the several co-plaintiffs, will operate as a discharge from all. See 13 Edw. IV, 6; 5 Co. 117, b.]
To be good, an accord and satisfaction must be advantageous to the creditor; and it is upon this ground that a receipt by a creditor of a part of his demand then due has been held no answer to an action for the remainder, notwithstanding his agreement to receive it in satisfaction: Watkinson v. Inglesby, 5 Johns. 386; Blanchard v. Noyes, 3 N. H. 518; Wheeler v. Wheeler, 11 Vt. 60; Hinckley v. Arey, 27 Me. 362; Daniels v. Hatch, 1 N. J. 91; Eve v. Moseley, 2 Strobh. 203; Warren v. Skinner, 20 Conn. 559. But it is otherwise if the claim is not liquidated, or is in dispute. Stockton v. Frey, 4 Gill, 406; Tuttle v. Tuttle, 12 Met. 551. Or if the debtor give a negotiable note for part of the debt. Sibree v. Tripp, 15 M. and W. 23. Or any chattel though of much less value than the amount of the debt. Jones v. Bullitt, 2 Lit. 49: Reed v. Bartlett, 19 Pick. 273. Or the note of a third person. Booth e. Smith, 3 Wend. 66. Or pay part before it is due. Brooks . White, 2 Met. 283. And in any other case it is a good ac
cord and satisfaction if the creditor receive some distinct benefit which he would not otherwise have been entitled to. See Douglass v. White, 3 Barb. Ch. 621. And it has been held that,
several late statutes (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. (24)
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; 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: (z) which subtilty in point of form (for it is now reduced to nothing else) had its rise from feudal 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 *or umpire therein named. (a) (25) And experience having shown the great use of these
(z) 1 Roll. Abr. 242. 1 Lord Raym. 115.
(x) Whart. Angl. sacr. i, 772. Nicols, Scot. Hist. libr. ch. 1, prope finem.
where a vendee who has ordered goods from a manufacturer consents to receive them and waive strict complicance with the contract, he is bound by this waiver, notwithstanding there was no distinct consideration for it. Moore v. Detroit Locomotive Works, 14 Mich. 266; and see Monroe v. Perkins, 9 Pick. 305; Lattimore v. Harsen, 14 Johns. 330; Conyer v. Lynde, 10 Ind. 282. And of late a disposition has been manifested to uphold agreements to accept part of a demand in satisfaction of the whole. See Pepper v. Aiken, 2 Bush, 251.
(24) [By several statutes (particularly 11 Geo. II, c. 19, in case of irregularity in the method of distraining, and 11 and 12 Vic. c. 44, in case of mistakes committed by justices of the peace), a tender of amends to the party injured is a bar to the action, if the party thinks proper to accept such tender. If the party injured does not accept the amends tendered, and the jury, on the trial of the action, think the sum offered sufficient, their verdict must be for the defendant. By the common law procedure act, 1852, section 70, the defendant in all actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation or debauchery of the plaintiff's daughter or servant), may pay into court a sum of money by way of compensation or amends. And by statute 6 and 7 Vic. c. 96, s. 2, in an action for a libel contained in any newspaper or periodical publication, the defendant may plead that it was inserted without malice or gross negligence, and that an apology had been offered to be published. The defendant may with the plea pay money into court as amends. By section 4, the offer of apology is admissible in evidence in mitigation of damages.]
In some of the United States statutes will be found adding to the number of cases in which tender of amends may be made, and in some a disposition has been manifested of late to permit the defendant in any suit brought for the recovery of debt or damages, to make an offer of such a sum as he is willing to allow judgment to pass for, and if the plaintiff declines to accept, to give costs against him unless the verdict in his favor is larger than the offer.
(25) [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. and S. 145.
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. and 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. and A. 507; 1 D. and R. 106; 2 Chit. R. 316; 5 East, 266; and see 4 B. and C. 103; and an attachment for a contempt of court sometimes lies, where the submission is a rule of court. Crompt. Prac. 252; 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
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, as well in controversies where causes are depending, as in those where no action is brought: enacting by statute 9 and 10 Wm. 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. 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. (26)
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. and 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 her 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. and R. 608; 2 B. and A. 394.
If a feme-sole submit to arbitration, and marry before the award is acivered, such marriage is in effect a revocation, without notice to the arbitrators: 2 Keb. 865; Jones, 388; Roll. Abr. 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. and 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, 8th ed. 877.
The parties themselves, as we have just seen. may revoke the arbitrator's 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. Abr. 331; Vin. Ab. Authority, 13; and see 5 B. and A. 507.]
It has been very common of late to introduce into certain species of contract a clause requiring the parties to submit to arbitration any disputes that may arise under them; but it has been generally supposed these stipulations could not be enforced, because they ousted the courts of jurisdiction. But recently an agreement not to bring suit until the damages were adjusted by a committee, or by arbitration, has been sustained. Avery v. Scott, 8 Exch. 487; S. C. in House of Lords, 5 H. L. Cas. 811; and see Russell v. Pellegrini, 6 El. and Bl. 1020.
The statement above that the marriage of a feme-sole revokes a submission to arbitration is probably not applicable in those states where the disabilities of coverture are removed and the woman is allowed to act on her own behalf the same after marriage as before.
Although it is perhaps true that the bankruptcy of one of the parties will not revoke a submission, yet the assignee would have the same power to revoke which the bankrupt possessed before the assignment. See Marsh v. Wood, 9 B. and C. 659.
(26) The common law procedure act, 1854, contains various provisions designed to give full effect to an agreement to arbitrate, where the parties fail to select a sole arbitrator or umpire, or where two are to be chosen and one party neglects or refuses to make choice. In the first case an arbitrator or umpire may be chosen by a judge of one of the superior courts, and in the other, the arbitrator who has been selected by one party may proceed as sole arbi trator. And if a reference is to two arbitrators, they may without special authority in the submission, appoint an umpire, unless the terms of the submission forbid; and if they fail to
OF REDRESS BY THE MERE OPERATION OF LAW.
THE remedies for private wrongs, which are effected by the mere operation of 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, *he would be put in a worse condition than all the rest of the world besides. For, though a ratable payment of all the debts of the deceased, [*19] 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 coexecutor 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 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) 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 [*20] dies, leaving a 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; (2) now
(a) 1 Roll. Abr. 922. Plowd. 543. See book II, page 511.
(b) Viner. Abr. t. executors, D. 2.
(e) Co. Litt. 358. Cro. Jac. 489.
award, and fail to appoint an umpire, one may be appointed by a judge. The act also also contains provisions for expediting the award, and it empowers the court to set it aside in proper cases. It also empowers the court, where the award directs possession of land to be delivered, to enforce the award by summary process, as it might a judgment in ejectment.
(1) This is not the law in the United States. Debts of equal degree are paid ratably, and th executor in his accounting is allowed for no payment to himself beyond his just proportion.
(2) [B would not now be barred from entering by the descent of the estate to C: 3 and 4 Wm. IV, c. 27, § 39; but the above passage may still serve as an illustration. The student