part of the premises, upon which a distress is taken, into a pound, pro hac vice, for securing of such distress. Formerly if a live distress of animals was impounded in a common pound-overt, the owner must have taken notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distrainor must have given notice to the owner: and in both these cases the owner, and not the distrainor, was bound to provide the beasts with food and necessaries; whereas if they were put in a poundcovert, as in a stable or the like, the landlord or distrainor must have fed and sustained them. But this distinction no longer exists, and now any person impounding cattle must provide them with sufficient food, the value of which may be summarily recovered from the owner. Or he may at the expiration of seven days sell the cattle, and apply the proceeds in discharge of the price of the food and expenses of the sale, rendering the overplus, if any, to the owner; and in order that cattle which have been impounded more than twenty-four hours may not perish from want of food, any person may enter the pound, and supply them. with food, without being liable to an action of trespass or other proceedings.' A distress of household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert, else the distrainor must answer for the consequences."

When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it has been held, that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded, till the owner makes satisfaction; or contests the right of distraining by replevying the chattels. To replevy, replegiare, that is, to take back the pledge, is, when a person distrained upon has the distress returned into his own possession upon giving good security to try the right of taking it in a suit of law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, of which more will be said hereafter. At present I shall only observe, that as a distress is at

y 5 & 6 Will. IV. c. 59, s. 4.

* See Wilder v. Speer, 8 A. & E. 517.

a Milch kine may be milked, however; Cro. Jac. 148.

common law only in nature of a security for the rent or damages done, a replevin answers the same end to the distrainor 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, is no remedy at all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always saleable at common law. And for an amercement imposed at a court-leet, the lord may also sell the distress; partly because, being a 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 statutedistresses before referred to, 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 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 arrear 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. 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 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. The enfranchisement of copyholds will in course of time render this often oppressive proceeding unknown; but in the meanwhile it may be added that' for that division of heriots which is called heriot-service, and is only a species of rent, the lord may distrain, 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 distrain any other chattels 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, 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.

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. 'And if the party injured afterwards resorts to a suit, the defendant may plead the accord and satisfaction in bar." Accordingly, where in an action by the indorsee against the acceptor of a bill of exchange, the latter pleaded that a promissory note had been given by the drawer of the bill to the plaintiff in satisfaction of his demand, the plaintiff's reply, that the note itself had not been paid, was held unavailable.'

c

By several statutes, particularly 11 Geo. II. c. 19, in case of irregularity in the method of distraining, and '11 & 12 Vict. c. 44,' in case of mistakes committed by justices of the peace, even e Sard v. Rhodes, 1 M. &. W. 153.

b Bailey v. Homan, 3 Bing. N. C. 920.

tender of sufficient amends to the party injured is a bar to the action, whether he thinks proper to accept such amends or no. 'For the sum thus offered being afterwards paid into court in the course of the action, the jury have only to decide on its sufficiency, and must, if they think the amount tendered enough, find their verdict for the defendant.'

II. Arbitration is where the parties, injuring and injured, submit all matters in dispute 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 claimed transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.

Experience having shown 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 established the use of them, by statute 9 & 10 Will. III. c. 15, which enables 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, to 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; 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. In consequence of this statute, it soon became 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.

'The consent of either party to the reference might, however, have been withdrawn at any time, and the submission thus rendered nugatory, until the statute 3 & 4 Will. IV. c. 42, enacted that an agreement to refer matters in dispute, should be no longer revocable. This statute also enabled the parties to compel the attendance of witnesses and the production of documents before arbitrators, and authorised arbitrators to administer an oath; but it left unremedied a defect in the statute of William III., whereby it was still necessary for the parties to express their consent that the submission should be made a rule of court, in their agreement to the reference; so that any submission not containing such a statement could not be proceeded with under that act. This has, however, been dispensed with by more recent legislation; and every agreement or submission to arbitration, which is in writing, may now be made a rule of the High Court, unless it contains. express words to the contrary effect.'

'A mere submission or agreement to refer does not, however, constitute a good defence to an action brought to enforce the very claim, which has been thereby referred; for the courts cannot by any act of the parties be ousted of their jurisdiction. But, on the other hand, when parties have once agreed that their differences shall be thus settled, and one of them, nevertheless, commences an action against the other, the courts will in general stay all proceedings in the action, if satisfied that no sufficient reason exists why the matters in dispute cannot or ought not to be determined in the mode which the parties have themselves selected.'

'Arbitration has thus become a very favourite method of settling disputes which are too intricate or too complicated to be dealt with satisfactorily by the courts or by a jury; and the legislature has wisely provided against the various contingencies likely to arise in the course of the proceeding. Thus, if the parties, having agreed to a reference, do not concur in the appointment of an arbitrator; or if an arbitrator refuses to act, becomes incapable of doing so, or dies;-or, where the parties or arbitrators are at liberty to appoint an umpire, such parties or arbitrators fail so to do;—or an umpire refuses to act, a judge of the High Court may at once appoint an arbitrator or umpire. So when a reference is to two arbitrators, and one party fails to appoint an arbitrator to act on his behalf, the other party is enabled to direct his own nominee to act as sole arbitrator; and an award made by him will