forma ONGS. nimal, helf, or othe 15 itted, it vitiated the whole, and ors ab initio $. But now by the it is provided, that, for any une fhall not be unlawful, or the but that the party grieved fhall habit real damage fuftained; and not Just offers nds is made before any action is ts, when due on the death of a 's of felf-remedy; not much unr goods in diftrefs. As for that called heriot-fervice, and is only thenay diftrein for this, as well as (which fir Edward Coke fays', ot in render) the lord may feife cannot diftrein any other chatand effectual remedy, of feifing, ny things that are faid to lie in eftrays, deodands, and the like; is Page 164 thereto may feife, without the 1560 ion. Not that they are debarred of this remedy by action; but have alfo the other, and more speedy one, for the better afferting their property; the thing to be claimed being frequently of fuch a nature, as might be out of the reach of the law before any action could be brought. THESE are the feveral fpecies of remedies, which may be had by the mere act of the party injured. I fhall, next, briefly mention fuch as arife from the joint act of all the parties together. And thefe are only two, accord, and arbitration. I. ACCORD is a fatisfaction 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 1 Ventr. 37. 1 Cop. §. 25. Cro. Eliz. 590. Cro. Car. 260. to No or more curver; and if they rate perion be called - vai ik judgment SM me arbitrator LAS VIVÃf dele cafes, geramy na rzekom is as fully de sera ir ized, as it could franks of the judgment a ta mägerry cannot site ir print of form og di hair's re from 234 81 permitted, the land 222* vinour the confent of ILEAL Teams at shirts may now sward a camerance # us at me è vil de a breach of de mhanane z week complanet. For, though origanain the jusmiñor u aberranar, used to be by word, or de deci, vz north of these being resacabie in their nature, it is now became the practice to enter inte mutual bonds, with Condition zo Ézne or the aware of arbitration of the arbitrators • Brown' 55. Freem. 410- Or or umpire therein named 2. And experience having fhewn the great use of these peaceable and domestic tribunals, cfpecially in fettling matters of account, and other mercantile tranfactions, which are difficult and almoft impoffible to be adjusted on a trial at law; the legislature has now established the use of them, as well in controverfies where caufes are depending, as in those where no action is brought : enacting, by ftatute 9 & 10 W. III. c. 15. that all merchants and others, who defire to end any controverfy, fuit, or quarrel, (for which there is no other remedy but by perfonal action or fuit in equity) may agree, that their fubmiflion of the fuit to arbitration or umpirage fhall be made a rule of any of the king's courts of record, and may infert fuch agreement in their fubmiffion, or promife, or condition of the arbitration-bond: which agreement being proved upon oath by one of the witneffes thereto, the court fhall make a rule that fuch fubmiffion and award fhall be conclufive: and, after fuch rule made, the parties difobeying the award shall be liable to be punished, as for a contempt of the court; unless fuch award fhall be fet afide, for corruption or other mifbehaviour in the arbitrators. or umpire, proved on oath to the court, within one term after the award is made. And, in confequence of this ftatute, it is now become a confiderable part of the business of the superior courts, to set aside fuch awards when partially or illegally made; or to enforce their execution, when legal, by the fame process of contempt, as is awarded for difobedience to thofe rules and orders which are iffued by the courts themselves. to build a houfe or deliver a horfe, and fail in it; this is an injury, for which the fufferer may have his remedy by action; but if the party injured accepts a fum of money, or other thing, as a fatisfaction, this is a redrefs of that injury, and entirely takes away the action ". By feveral late statutes, (particularly 11 Geo. II. c. 19. in case of irregularity in the method of diftreining; and 24 Geo. II. c. 24. in cafe of mistakes committed by juftices of the peace) even tender of fufficient 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, fubmit all matters in difpute, concerning any perfonal 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 perfon be called in as umpire, (imperator or impar*) to whofe fole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decifion, in any of these cafes, is called an award. And thereby the question is as fully determined, and the right transferred or fettled, as it could have been by the agreement of the parties or the judgment of a court of justice. But the right of real property cannot thus pafs by a mere award: which fubtilty in point of form (for it is now reduced to nothing else) had it's rife from feodal principles; for, if this had been permitted, the land might have been aliened collufively without the consent of the fuperior. Yet doubtlefs an arbitrator may now award a conveyance or a release of land; and it will be a breach of the arbitration-bond to refufe compliance. For, though originally the submission to arbitration ufed 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 w 9 Rep. 79. x Whart. Angl. facr. i. 772. Nicols. Scot. hift. libr. ch. 1. prope finem y Brownl. 55. I Freem. 410. z 1 Roll. Abr.242. 1 LordRaym. 115. or umpire therein named 2. And experience having fhewn the great use of these peaceable and domestic tribunals, efpecially in fettling matters of account, and other mercantile tranfactions, which are difficult and almost impoffible to be adjusted on a trial at law; the legislature has now established the ufe of them, as well in controverfies where caufes are depending, as in thofe where no action is brought : enacting, by ftatute 9 & 10 W. III. c. 15. that all merchants and others, who defire to end any controverfy, fuit, or quarrel, `(for which there is no other remedy but by personal action or suit in equity) may agree, that their fubmiflion of the fuit to arbitration or umpirage shall be made a rule of any of the king's courts of record, and may infert fuch agreement in their fubmiffion, or promife, or condition of the arbitration-bond: which agreement being proved upon oath by one of the witneffes thereto, the court fhall make a rule that fuch fubmiffion and award shall be conclufive: and, after fuch rule made, the parties difobeying the award shall be liable to be punished, as for a contempt of the court; unless fuch award fhall be fet afide, 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 confequence of this ftatute, it is now become a confiderable part of the business of the superior courts, to set aside fuch awards when partially or illegally made ; or to enforce their execution, when legal, by the same process of contempt, as is awarded for difobedience to those rules and orders which are iffued by the courts themselves. |