is now become a confiderable part of the bufinefs of the fuperior courts, to fet afide fuch awards when partially or illegally a trefpafs or an affault as would not, if given in a verdict, carry cofts to the plaintiff, he cannot recover them under this reference, the award in fuch inftances being not equivalent to the certificate of a judge. 3 T. R. 138. But arbitrators may award costs at their difcretion, unless there is an exprefs provifion in the rule, that the costs fhall abide the event of the award. 2 T. R. 644. If it is awarded that one of the parties fhall pay the cofts of the action, the costs of the award are not included. H. Bl. Rep. 223. When arbitrators have the power of electing an umpire, they may chufe him and call in his affiftance as foon as they begin to take the fubject into confideration. And this is the more convenient practice, as it fecures a decifion upon a single investigation of the controverfy. 2 T. R.644. The agreement to a reference must be expreffed with great caution and accuracy, for if it is agreed. to refer all matters in difference between the parties in the cause; the arbitrators are not confined to the subject of the cause alone, as they are when it is agreed to refer all matters in difference in the cause between the parties. 2 T. R. 645. Yet after an award under a reference in the first cafe, either party may maintain an action for a right or demand fubfifting at the time of the reference, but not difputed or referred to the arbitrators. 4 T. R. 146. Courts of equity exercise a jurisdiction in setting aside awards, particularly if a discovery or an account is prayed; but an arbitrator cannot be made a party, if it is agreed by the fubmiffion bond that no bill in equity fhall be filed against him. 2 Atk. 395. Where it was one of the articles of co-partnership that all differences fhould be referred to arbitration, it was decided, that a court of equity could entertain no jurifdiction of the fubject until the parties had referred their disputes to the confideration of arbitrators. 2 Bro. 336. The authority of this decifion has been queftioned, but it is certainly agreeable to strict equity that the parties should be bound by this reasonable agreement until the arbitrators refuse, or fome circumftances occur which render them incompetent to do complete juftice between the parties. Arbitrations being unattended by the inevitable delay and expence of public litigation, are of fuch infinite importance to the community, that it is rher furprizing that the legislature has not yet. C 2 given made; or to enforce their execution, when legal, by the fame procefs of contempt, as is awarded for difobedience to thofe rules and orders which are issued by the courts themselves. given to arbitrators a power of compelling the attendance of witneffes, or of adminiftering an oath to them. For until they poffefs this authority, like courts of juftice, however wife and righte ous their awards may be, it cannot be expected that they can give the fame fatisfaction to those who are interested in the event of the controversy. By the 29 Geo. III. c. 58. every award in writing must be upon a five fhillings ftamp. CHAPTER THE SECOND. OF REDRESS BY THE MERE OPERATION OF LAW. HE remedies for private wrongs, which are effected by the mere operation of the law, will fall within a very narrow compafs: there being only two inftances of this fort that at prefent 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. will I. IF a perfon indebted to another makes his creditor or debtee his executor, or if such creditor obtains letters of administration to his debtor; in these cafes the law gives him. a remedy for his debt, by allowing him to retain fo much as pay himself, before any other creditors whofe debts are of equal degree. This is a remedy by the mere act of law, and grounded upon this reafon; that the executor cannot, without an apparent abfurdity, commence a fuit against himfelf as reprefentative of the deceased, to recover that which. is due to him in his own private capacity: but, having the whole perfonal eftate in his hands, fo much as is fufficient to answer his own demand is, by operation of law, applied to that particular purpose. Elfe, by being made executor, a 1 Roll, Abr. 922. Plowd. 543. See vol. II. page 511. he would be put in a worfe condition than all the rest of the world befides. 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 diftribution of the affets among all the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy; fo that the creditor who first commences his fuit is entitled to a preference in payments it follows, that as the executor can commence no fuit, he must be paid the laft of any, and of course must lofe his debt, in cafe the estate of his teftator should prove infolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the neceffary confequence of that other doctrine of the law, the priority of fuch creditor who first commences his action. But the executor fhall not retain his own debt, in prejudice to thofe of a higher degree; for the law only puts him in the fame fituation, as if he had fued himself as executor, and recovered his debt; which he never could be supposed to have done, while debts of a higher nature subfifted. Neither fhall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree; but both fhall be discharged in proportion. Nor fhall an executor of his own wrong be in any cafe permitted to retain f. II. REMITTER is where he, who hath the true property or jus proprietatis in lands, but is out of poffeffion thereof and hath no right to enter without recovering poffeffion in an action, hath afterwards the freehold caft upon him by fome fubfequent, and of courfe defective title: in this case he is remitted, or fent back, by operation of law, to his antient and more certain title. The right of entry, which he hath gained by a bad title, fhall be ipfo facto 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 confent. As if A diffeifes B, that b Viner. Abr. t. executors. D. 2. • 5 Rep. 30, d Litt. § 659. • Co. Litt. 358. Cro. Jac. 489. is, turns him out of poffeffion, and dies leaving a fon C; hereby the eftate defcends to C the fon 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 diffeifor makes a lease for life to D, with remainder to B the diffeifee for life, and D dies; hereby the remainder accrues to B, the diffeifee: 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 furer eftate f. For he hath hereby gained a new right of poffeffion, to which the law immediately annexes his antient right of property. Ir the fubfequent estate, or right of poffeffion, be gained by a man's own act or confent, as by immediate purchase being of full age, he fhall not be remitted. For the taking fuch fubfequent estate was his own folly, and shall be looked upon as a waiver of his prior right . Therefore it is to be obferved, that to every remitter there are regularly these incidents; an antient right, and a new defeasible estate of freehold, uniting in one and the fame person; which defeasible eftate must be caft upon the tenant, not gained by his own act or folly. The reafon given by Littleton h, why this remedy, which operates filently and by the mere act of law, was allowed, is fomewhat fimilar to that given in the preceding article; because otherwife he who hath right would be deprived of all remedy. For as he himself is the perfon in poffeffion of the freehold, there is no other perfon against whom he can bring an action, to establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in fuch plight as if he had lawfully recovered the fame land by fuit. For, as lord Bacon obferves, the benignity of the law is fuch, 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. tuitur, ipfa re valet, fi culpa abfit. Nam quod remedio defti- b661. i Elem. c. 9. remitter |