notice of it at his peril; but if in any special pound-overt, so conftituted for this particular purpofe, the diftreinor must give notice to the owner: and in both thefe cafes, the owner, and not the diftreinor, is bound to provide the beafts with food and neceffaries. But if they are put in a pound-covert, as in a ftable or the like, the landlord or diftreinor muft feed and sustain them". 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 diftreinor must anfwer for the confequences.

WHEN impounded, the goods were formerly, as was be fore obferved, only in the nature of a pledge or fecurity to compel the performance of fatisfaction; and upon this account it hath been held ", that the diftreinor is not at liberty to work or ufe a diftreined beaft. And thus the law ftill continues with regard to beasts taken damage-feafânt, and diftreffes for fuit or fervices; which must remain impounded, till the owner makes fatisfaction; ot contests the right of diftreining, by replevying the chattels. To replevý (replegiare, that is to take back the pledge) is, when a perfon diftreined upon applies to the fheriff or his officers, and has the distress returned into his own poffeffion; upon giving good fecurity to try the right of taking it in a fuit at law, and, if that be determined against him, to return the cattle or goods once more into the hands of the diftreinor. This is called a replevin, of which more will be faid hereafter. At present I shall only observe, that, as a distress is at common [14] law only in nature of a fecurity for the rent or damages done, a replevin answers the fame end to the diftreinor as the diftrefs itself; fince the party replevying gives fecurity to return the distress, if the right be determined against him.

THIS kind of diftrefs, though it puts the owner to inconvenience, and is therefore a punishment to him, yet, if he continues obftinate and will make no fatisfaction or payment,

it is no remedy at all to the diftreinor. But for a debt due to the crown, unless paid within forty days, the distress was always faleable at the common law °. And for an amercement imposed at a court-leet, the lord may also fell the distrefs P: partly because, being the king's court of record, it's process partakes of the royal prerogative 9; but princi pally because it is in the nature of an execution to levy a legal debt. And, fo in the feveral ftatute-diftreffes, before mentioned, which are alfo in the nature of executions, the power of fale is likewife ufually given, to effectuate and complete the remedy. And, in like manner, by feveral acts of parliament', in all cafes of distress for rent, if the tenant or owner do not, within five days after the distress is taken, and notice of the caufe thereof given him, replevy the fame with fufficient fecurity; the diftreinor, with the sheriff or conftable, fhall caufe the fame to be appraised by two fworn appraisers, and fell the fame towards fatisfaction of the rent and charges; rendering the overplus, if any, to the owner himself (6). And, by this means, a full and entire fatisfaction may now be had for rent in arrere, by the mere act of the party himself, viz. by diftrefs, the remedy given at common law; and fale confequent thereon, which is added by act of parliament.

BEFORE I quit this article, I muft obferve, that the many particulars which attend the taking of a diftrefs, used formerly to make it a hazardous kind of proceeding: for, if any one irregularity was committed, it vitiated the whole, and [ 15 ] made the diftreinors trefpaflors ab initio. But now by the

Bro. Abr. t. diftrefs. 71.

p 8 Rep. 41.

Bro. Ibid.

12 Mod. 330.

r2 W. & M. c. 5. 8 Ann. c. 14. 4 Geo. II. c. 28. 11 Geo. II. c. 19. SI Ventr. 37.

(6) Of the days of taking and fale, one is inclufive, the other exclufive; as if the goods are diftrained on the first, they may be fold on the fixth. 1 H. Bl. 14.

ftatute

ftatute 11 Geo. II. c. 19. it is provided, that, for any unlawful act done, the whole fhall not be unlawful, or the parties trefpaffors ab initio: but that the party grieved shall only have an action for the real damage fuftained; and not even that, if tender of amends is made before any action is brought (7).

VI. THE feifing of heriots, when due on the death of a tenant, is also another fpecies of felf-remedy; not much unlike that of taking cattle or goods in distress. As for that divifion of heriots, which is called heriot-fervice, and is only a fpecies of rent, the lord may diftrein for this, as well as feife but for heriot-cuftom (which fir Edward Coke fays', lies only in prender, and not in render) the lord may seise the identical thing itself, but cannot diftrein any other chattel for it". The like fpeedy and effectual remedy, of feifing, is given with regard to many things that are faid to lie in franchise; as waifs, wrecks, eftrays, deodands, aad the like all which the perfon entitled thereto may feife, without the formal process of a fuit or action. Not that they are debarred of this remedy by action; but have also 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 these are only two, accord, and arbitration.

t Cop. § 25.

Cro. Eliz. 590. Cro. Car. 260.

(7) The ftatute directs that the action fhall be an action of trefpafs or upon the cafe, and therefore an action of trover cannot be brought to recover goods taken under an irregular diftrefs. 1 H. Bl. 13. To an action under this statute, the defendant may plead the general iffue.

I. ACCORD

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

to build a house or deliver a horse, and fail in it; this is an [ 16 ] 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 redress of that injury, and entirely takes away the action ". By feveral late ftatutes, (particularly 11 Geo. II. c. 19. in cafe of irregularity in the method of diftreining; and 24 Gco. II. c. 24. in cafe of miftakes 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 perfonal wrong, to the judgment of two or more arbitrators; who are to decide the controverfy: and if they do not agree, it is ufual to add, that another perfon 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 decifion, in any of these cases, is called an award. And thereby the question is as fully de termined, 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 elfe) had it's rife from feodal principles; for, if this had been permitted, the land might have been aliened collufively without the confent of the fuperior. Yet doubtlefs an arbitrator may now award a conveyance or a releafe of land; and it will be a breach of the arbitration-bond to refuse compliance. For, though originally the fubmiffion to arbitration used to be by word, or by deed, yet both of these being revocable in their nature, it y Brownl. 55. 1 Freem. 410.

w 9 Rep. 79.

is now become the practice to enter into mutual bonds, with condition to ftand to the award or arbitration of the arbitrators [ 17 ]or umpire therein named. And experience having shewn the great use of these peaceable and domeftic tribunals, efpecially 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 controversies 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 personal action or fuit in equity) may agree, that their fubmiffion 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 fhall be liable to be punished, as for a contempt of the court; unlefs 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 (8). And, in confequence of this statute, it a Append. No. III. § 6.

(8) A motion to fet afide an award under a fubmiflion by an obligation, must be made before the last day of the next term after the award is made. 9 10 W. III. c. 15. S. 2, 2 T. R. 781But this does not extend to an award made in pursuance of an order of nifi prius. Str. 301.

Submiffions to arbitration were entered into by a rule of the court at the common law when a caufe was depending, and the ftatute of king William was intended to give the fame efficacy to awards where no fuit or action was inftituted. 2 Burr. 701.

Where a caufe is referred by an order of nifi prius, and it is agreed that the costs shall abide the event of the award, this fignifies the legal event; and if the arbitrator awards fuch damages for a trefpafs