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to build a house or deliver a horse, and sail in it; this is art 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. By several late statutes* (particularly ri Geo. II. c. 19. in cafe of irregularity in the method ofdistreining; and 24 Geo. II. c. 24. in cafe of mistakes committed by justices of the peace) even Under o( 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, 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 itnparx) 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 r. But the fight of real property cannot thus pass by a mere award x; 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 collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release os land; and it will be a breach os 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 orarbitration of the arbitrators or umpire therein named'. And experience having (hewn 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 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 os 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 shr.ll make a rule that such submission and award sliall 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 umpirc^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 fame process of contempt, as is awarded for disobedience to those rules and orders which are issued by the courts themselves.
» 9 Rep. 79. t Brownl. 55. 1 Freem. 410.
* Wliart. ylngl.sacr. i. 773. Ni- » 1R0U.Abc.t4a.lL0rdRaym.n5. cols. Scot. hist, libr. ch. l.frcfefmm,
CHAPTER THE SECOND.
OF REDRESS BY. THE MERE OPERATION OF LAW.
TH E remedies for private wrongs, which arc effected by the mere operation of the law, will fall within a very narrow compass: there being only two instances of this fort 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 cafe of what the law calls a remitter.
I. If a person indebted to another makes his creditor or debtee his executor, or if such 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 '. 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 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,
< i Roll. Abr. 91Z. I'lowd. 543. Sec vol. II. page 511,
he 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, in equal degree, is clearly the most equitable method, yet as every scheme for a proportionable distribution of tbe 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 cafe 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 j for the law only puts him in the fame 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 cafe permitted to retainc.
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 cafe he is remitted, or sent back, by operation of law, to his antient and more certain title d. The right of entry, which he hath gained by a bad title, shall be ipfofaclo 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'. As if A disseises B, that
b Viner. Air. t. executtrt. D.I. A Lift. $. 659.
« 5 Rep. -,o. e Co. Litt. 55S. Cri. Jac. 4S.;.
B 3 is. is, turns him out of possession, and 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: now, if afterwards C the heir of the disseisor makes a lease for life to D, with remainder to B the disseisee for life, and D dies; hereby the remainder accrues to B, the disseisee: 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 antient 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 (hall be looked upon as a waiver of his prior right &. Therefore it is to be observed, that to every remitter there are regularly these incidents; an antient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be east upon the tenant, not gained by his own act or folly. The reason given by Littletonh, 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 establissi his prior right. And for this cause the law doth adjudge him in by remitter j that is, in such plight as if he had lawfully recovered the fame land by suit. For, as lord Bacon observes', 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 deflituitur, ipsa re valet, si culpa abftt. But there shall be no
t Finch. L. 194. Litt. §. 68j. h $. 661.
% Co. Liu. %i%. Jjo. 'Liem. c. 9.