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ACCORD. ARBITRATION.

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trained may be impounded in the public pound or on any part of the premises. By 5 & 6 Will. 4, c. 59, 8. 4, parties impounding cattle must provide them with food, and may recover the value before a magistrate (h).

The tenant, if he wish to dispute the distress, may replevy, which is where a tenant applies to the sheriff, and by giving security to try the right, his cattle or goods are returned; and if the suit should be lost, the distress must be put into the hands of the distrainor, or he may sue on the bond. If goods are not replevied in five days after distress levied, they may be sold, and the overplus, if any, returned to the party distrained upon (i).

Accord.-Arbitration.]—There are two instances in which redress may be obtained from the joint act of all the parties. I. This may arise by accord and satisfaction, as where a party injuring makes satisfaction to the party injured. 2. Arbitration, as where a matter of dispute is referred to two or more persons to decide upon its merits; and if they cannot agree, it is usual to call in a third, who is to be umpire. A submission to reference is now not revocable without leave of the court or a judge. The decision in these cases is called an award. An award may be made a rule of any of the courts of record by the mutual agreement of all parties, and this being proved upon oath, the court will make a rule that such submission and award shall be conclusive; and the parties disobeying such award shall be punishable for contempt of that court under which it is made cognizable. Courts of law and of equity have the power of setting aside an award. Arbitrators have authority to administer an oath; and witnesses may be compelled to attend them (j).

Retainer.-Remitter.]-Redress effected by the mere operation of law is:-1. Where a creditor is executor or administrator, and is thereupon allowed to retain his own debt; but no executor shall be allowed to retain his whole debt in preference to any other creditor of higher degree, or to the prejudice of a co-executor of equal degree (k). 2. Remitter is where he who hath the jus proprietatis or rather of entry in lands, but is unable to acquire possession without action of law, hath 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, unless he be estopped by the deed. There can be no remitter to a right for which the party has no remedy by action (1).

CHAP. XXXIV.

REMEDIES BY ACTION.

[See 3 Black. Com. chaps. 8-17; 3 Steph. Com. Bk. V., chaps. 7, 8.]

Having now noticed some instances of the remedy of civil injuries without action or suit, we proceed to consider the subject of remedies by action in the common law courts. The proper court in which to sue will be noticed in a subsequent part of this work.

Several kinds of actions.]—Actions are defined to be "the lawful demand of one's right," and they are distinguished into three kinds: actions personal, real, and mixed. Personal actions are, such whereby a man claims a debt, or personal chattel, or damages in lieu thereof: and likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs. Real actions, which concern real property only, are such whereby the plaintiff, called the demandant, claims the specific recovery of any lands or tenements, rents, commons, or other hereditaments; and by these actions, formerly, all disputes concerning real estates were decided: but they are now

almost totally laid aside; a more expeditious method of trying titles having been since introduced by means of ejectment. And now, with one or two exceptions, real actions are abolished by the 3 & 4 Will. 4, c. 27, s. 36 (a). Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained-an instance of which now remains in the common action of ejectment, though some have doubted the propriety of classing ejectment as a mixed action, and have treated it (as we shall presently see) as a species of the personal action of trespass. Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. But it is necessary to premise, that all civil injuries are of two kinds; the one without force, as slander and breach of contract; the other coupled with force and violence, as batteries or false imprisonment. Actions founded on contracts are either on simple contracts, as verbal agreements, notes, or contracts unsealed; or on special contracts, as deeds, instruments under seal, recognisances, or judgments; and these form the actions of assumpsit, debt, account, and covenant. Actions also are founded on torts, or wrongs; and these constitute what are termed actions of trespass. Trespass is either vi et armis, where the trespass is immediately injurious, and accompanied with some degree of force and violence; or on the case, where it is unaccompanied with force, and in its consequences only injurious. Both these species of actions of trespass may be divided into:-1, Trespass vi et armis, as trespass with respect to the person-namely, assault and battery, false imprisonment, and adultery; into trespass with respect to personal property, as replevin, and trespass de bonis asportatis; and into

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trespass with respect to real property, as ejectment. 2. Trespass on the case likewise is divisible into trespass with respect to the person, as slander, and malicious prosecution; or with respect to personal property, as trover; and with respect to real property as in trespass on the case for an injury to the reversion (b).

Actions founded upon contract are, assumpsit, debt, covenant, and account.

Assumpsit.]-Assumpsit is an action founded on simple contract, whereby damages are recovered for the breach of any promise, contract, or undertaking. A promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If, therefore, it be to do any explicit act, it is an express contract, as if a builder undertake for a sum of money to build a house within a time limited, and fail to do it, this action of assumpsit lies against him, on his express promise, for the injury sustained by his non-performance of it. The obligations of natural justice call upon every man to do that which he ought to do, and therefore the law raises a promise to perform it; as if I employ a person to transact any business for me, or perform my work, the law raises a promise on my part to pay him so much as his labour deserves; and on this implied contract this action will also lie. Indebitatus assumpsit in its nature is an action of debt; as if in the case of a debt, the debtor promises to pay it, and does not, this breach of promise entitles the creditor to this action, instead of being driven to an action of debt; for in indebitatus assumpsit, the plaintiff recovers not only damages for the special loss, if any, but to the amount of the whole debt: and therefore a recovery in this action would be a

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