Wheaton v. M. R. & M. R. R. Co., 36 Cal. 590 237 Wiedwald v. Trustees of San Pedro, 95 Cal. 450 290 Willamette Co. v. Los Angeles C. Co., 94 Cal. 229 313 Williamson v. Cummings, R. D. Co., 95 Cal. 652 258 Williams v. Dwinelle, 51 Cal. 442 318 Williams v. McCartney, 69 Cal. 556 275 Williams v. Savings & Loan Society, 97 Cal. 122 175 .27, 362 Wills v. Dearborn, 82 Cal. 52 234 CHAPTER I. OF THE REMEDIES FOR THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES. A private wrong is an infringement on, or a privation of, the private or civil rights belonging to an individual, considered as an individual.1 The redress and prevention of private wrongs may be by the mere acts of the parties when such redress and prevention are sanctioned by law; but the more effectually to accomplish such redress and prevention, courts of justice are instituted for the prevention and redress of such wrongs, by suits or actions in such courts.2 The following are cases under our law in which the prevention and redress of private wrongs may be by the acts of the parties : I. The defense of one's self, or the mutual and reciprocal defense of such as stand in the relation of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repell force by force, and the breach of the peace which happens is chargeable upon him only who began the affray; but care must be taken that the resistance does not exceed the bounds of mere defense and prevention, for if it does, the defender would himself become an aggressor.3 2. Recaption is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods, or chattels personal, or wrongfully detains one's wife, child or servant; in which case the owner of the goods, and the husband, parent or master, may law 1. 3 Bl. Com. 3. fully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. If, for instance, a man's horse be taken away, and he finds him in a common, a fair, or a public inn, he may lawfully seize him to his own use; but he cannot lawfully, for such purpose, break open a private stable, or enter on the grounds of another, unless the horse has been feloniously stolen, but must have recourse to an action at law.4 A person may, however, enter on the lands of a wrongdoer and take his chattels therefrom which have been placed there by such wrongdoer, if it can be done peaceably.5 It has been held that the owner of goods may lawfully enter on the lands of another to take his own property peaceably in all cases, when he is not himself in fault for their being there; but the weight of authority is that the mere fact that a person owns a chattel gives him no right to go upon the land of another person to obtain possession of it. 6 When, however, neither party has placed the goods on the land, nor is in fault for their being there; and especially when the act of God, in the form of a tempest or inundation has been the sole cause, the high authority of Judge Story in his work on Bailments 83 a, and that of Mr. Bigelow in his work on Torts, p. 196, is in favor of the owner's right to enter in such case and remove his property. 3. An owner of real estate, and who is entitled to its possession, may enter on and take possession thereof, if it can be done peaceably and without force, when another person without any right has taken possession thereof.7 There are but few cases in which this remedy can be used. 4. A fourth species of remedy by the mere act of the party is the abatement or removal of nuisances. Any person may abate a private nuisance, and may abate a public nuisance if specially injurious to him, by removing, or if necessary, destroying the thing, which constitutes the nuisance, if done without committing a breach of the peace, or doing unnecessary injury.8 5. The owner of land has the right to distrain another's cattle damage feasant, that is, doing damage, or trespassing on his land. This distraining of cattle, damage feasant, is regulated in this country by legislative enactments. Of the five cases in which the distraining of property was permissible at common law, distress damage feasant alone remains in common use in the United States. Accord is an agreement 6. ACCORD AND SATISFACTION. between parties as to the terms of compromise or settlement, and satisfaction is the performance thereof by payment or otherwise, and such satisfaction is a bar to all actions upon matters embraced within the terms of such compromise or settlement." 7. ARBITRATION AND AWARD. An arbitration is an agreement between parties submitting a matter or matters in dispute between them, concerning any personal chattels or personal wrong, to the judgment of one or more arbitrators who are to decide the controversy, and such decision of the arbitrators is called an award; and by such award the questions submitted are 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. Formerly it was usual to have in the submission that, if the arbitrators, if there were more than one, did not agree, another person was to be called in as umpire, to whose sole judgment it was then referred, and his decision was the award.10 The right to real property cannot pass by a mere award. The arbitrators, however, can award that one of the parties to the submission shall transfer to the other, the title to real estate, if such part of the award be within the terms of the submission.11 In California there may be submission by parties to arbitrators, and an award as to any controversy which might be the subject of a civil action between them, except a title to real prop |