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is now become a considerable part of the business of the superior courts, to set aside such awards when partially or illegally
a trespass or an assault as would not, if given in a verdia, carry costs to the plaintiff, he cannot recover them under this reference, the award in such instances being not equivalent to the certificate of a judge. 3 T. R. 138. But arbitrators may award costs at their discretion, anless there is an express provision in the rule, that the costs shall abide the event of the award. 2 T. R. 644. If it is awarded that one of the parties Mall pay the costs of the action, the costs of the award are not included. H. BI. Rep. 223.
When arbitrators have the power of electing an umpire, they may chuse him and call in his affilance as soon as they begin to take the subject into consideration. And this is the more convenient practice, as it secures a decision upon a single investigation of the controversy. 2T. R.644. The agreement to a reference must be expressed 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 case, either party may maintain an action for a right or demand fubfisting at the time of the reference, but not disputed of referred to the arbitrators. 47. R. 146.
Courts of equity exercise a jurisdiction in setting aside awards, particularly if a discovery or an account is prayed; but an arbi. trator cannot be made a party, if it is agreed by the submission bond that no bill in equity shall be filed against him. 2 Atk. 395. Where it was one of the articles of co-partnership that all differences should be referred to arbitration, it was decided, that a court of equity could entertain no jurisdiction of the subject until the parties had referred their disputes to the consideration of arbi. trators. 2 Bro. 336. The authority of this decision has been questioned, but it is certainly agreeable to striet equity that the parties should be bound by this reasonable agreement until the arbitrators refuse, or some circumstances occur which render them incompetent to do complete justice between the parties.
Arbitrations being unattended by the inevitable delay and expence of public litigation, are of such infinite importance to the community, that it is rather surprizing that the legislature has not yet
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.
given to arbitrators a power of compelling the attendance of wit. nesses, or of adminiftering an oath to them. For until they pos. sess this authority, like courts of justice, however wife and righte: ous their awards may be, it cannot be expected that they can give the same satisfaction 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 Millings stamp.
CHAPTER THE SECOND.
OF REDRESS BY THE MERE OPERATION
THE remedies for private wrongs, which are effected
I by the mere operation of the law, will fall within a very narrow compass: there being only two instances of this lort that at present occur to my recollection ; the one that of retainer, where a creditor is made executor or adminia Itrator to his debtor; the other, in the case of what the law calls a remitter.
1. If a person indebted to another makes his creditor or debtee his executor, or if such creditor obtains letters of ad- :: miniftration 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 him.. telf 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, * 1 Roll. Abs. 922. Plowd. 543. See vol. II. page 511. C 3
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 the assets among all the creditors hath been hitherto found to be impracticable, and productive of more mischiess than it would remedy; so that the creditor who first commences his suit is entitled to a preference in payments it follows, that as the executor can commence no fuit, he must be paid the last of any, and of course must lose his debt, in case 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 ; for the law only puts him in the same 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 subGifted. Neither shall 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 6. Nor shall an executor of his own wrong be in any case permitted to retain
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 fome subsequent, and of course defective title : in this case he is remitted, or sent back, by operation of law, to his antient and more certain titled "The right of entry, which he hath gained by a bad title, shall 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 consente. As if A diffeises B, that
b Viner. Abr. 8. executors. D. 2. d Litt. $ 659. es Rep. 30.
• Co. Litt. 358. Cro. Jac. 489.
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 diffeisor 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 diffeisee: 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 poffeßion, 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 shall be looked upon as a waiver of his prior rights. 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 cast upon the tenant, not gained by his own act or folly. The reason given by Littleton h, why this remędy, 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 establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. - For, as lord Bacon obferves;, 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 de. gree and condition than in a worfe. Nam quod remedio deftin tuitur, ipfa re valet, fi culpa absit. But there shall be no
Finch. L. 194. Lite. $ 683. 09 661.. i Co. Liit, 348. 350.
i Elem. c. 9. Co