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 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 the common law.o 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; 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, 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 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 vitiated the whole, • Bro. Abr. t. distress. 71. PS Rep. 41. 4 Bro. Ibid. 12 Mod. 330. VOL. III.-PART I. r 2 W. & M c. 5. 8 Anu. C 14. 4 Geo. II. c. 28. 11 Geo. II. c. 19. C and made the distreinors trespassors ab initio. 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 trespassors 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 distrein for this, as well as seize but for heriot-custom, which sir Edward Coke says, lies only in prender, and not in render, the lord may seize the identical thing itself, but cannot distrein any other chattel for it." 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 fre quently 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 other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action." By several late statutes, particularly 11 Geo. II. c. 19. in case $ 1 Ventr. 37. Cop. § 25. u Cro. Eliz. 590. Cro. Car. 260. W w 9 Rep. 79... 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, its 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,*) 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 agree ment of the parties or the judgment of a court of justice. But the right of real property cannot thus pass by a mere award: 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 or umpire therein named.. And experience 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, 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 x Whart. Angl. sacr. i. 772. Nicols. Scot. hist. libr. ch. 1. prope finem. y Brownl. 55. 1 Freem. 410. 1 Roll. Abr. 242. 1 Lord Raym. 115. a Append. No. III. §6. 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. CHAP. 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 This is a remedy by the mere a 1 Roll. Abr. 922. Plowd. 543. See vol. II. page 489. 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 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. Nor shall an executor of his own wrong be in any case permitted to retain. 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. The right of entry, which he hath gained by a bad title, shall be ipso facto annexed b Viner. Abr. t. executors. D. 2. c5 Rep. 30. |