render) the lord may seize the identical thing itself, but cannot distrain any other chattel for it.(u) 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, deodands, 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; *16] 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.(w) By

(*) Cro. Eliz. 590. Cro. Car. 260.

27 See, in general, Com. Dig. Accord, Bac. Abr. Accord.

(*)9 Rep. 79.

The mere consent of a party to accept a satisfaction, without an actual satisfaction, is not sufficient to discharge the other. The accord and satisfaction must be perfect, complete, and executed; for, were it otherwise, it would be only substituting one cause of action for another, which might go on to any extent. 9 Rep. 79, b. 5 T. R. 141. Satisfaction must be made to the whole of the original demand; and a party will not be discharged upon performance of a satisfaction to part of such demand, the residue remaining unperformed. 1 Taunt. 526. 5 East, 230. The performance of one of two things stipulated for by an accord is nugatory, (lord Raym. 203;) and where it was agreed that the plaintiff and defendant should each deliver up his part of an indenture to be cancelled, and the defendant had delivered up his part, this was held no accord and satisfaction. 3 Lev. 189. The accord and satisfaction must be certain: an accord to pay a less sum on the same or at a subsequent day is not sufficient. 5 East, 230. So an accord that the defendant shall employ workmen in two or three days is bad, (4 Mod. 88;) and performance of an uncertain accord will not aid the defect. 3 Lev. 189. Yelv 124.

We have already seen (ante, 2 book) how far a contract may be varied, released, or discharged by another contract. A deed before breach cannot be discharged by accord and satisfaction without a deed,( 1 Taunt. 428. Com. Dig. Pleader, 2, v. 8;) but after breach accord and satisfaction without deed is a good plea, for there the satisfaction is of the breach, and not of the deed. Com. Dig. Accord, A. 1 & C. 7 East, 150. 1 J. B. Moore, 358, 460. Cro. Eliz. 46. 2 Wils. 86. 6 Rep. 43, b.

The satisfaction must be a reasonable one. Generally speaking, the mere acceptance of a less sum is not in law a satisfaction of a greater sum, (5 East, 230;) and this though an additional security be given. 1 Stra. 426. An agreement between a debtor and creditor that part of a larger sum due should be paid by the debtor, and accepted by the creditor as a satisfaction for the whole, might, under special circumstances, operate as a discharge of the whole; but then the legal effect of such an agreement might be considered to be the same as if the whole debt had been paid, and part had been returned as a gift to the party paying. Per Holroyd, J., 2 B. & C. 481. A debtor's assignment of all his effects to a trustee, to raise a fund for the payment of a composition to his creditors, is a sufficient satisfaction, (2 T. R. 24;) so if a third person guarantees the payment of the less sum. 11 East, 390. So if a creditor, by his undertaking to accept a composition, induce the debtor to part with his property to his creditors, or induce other cre ditors to discharge the debtor, to enter into a composition-deed, or deliver up securities to him, such creditor would be bound by such undertaking. 2 Stark. Rep. 407. 2 M. & 8. 120. 1 Esp. 236. And where several creditors, with the knowledge of each other, agree on the faith of each others' undertaking to give time to, or accept a composition from, a debtor, the agreement will be binding on every creditor who is party to it. 3 Camp. 175. 2 M. & S. 122. 16 Ves. 374; and see further, as to composition with creditors, 3 Chitty's Com. L. 687 to 698. It should be here also observed that when a bond of other security under seal has been given and accepted in satisfaction of a simple contract-debt, the latter is merged in such higher security, and no action can be supported for the non-performance of the simple contract, (Cro. Car. 415. Bac. Abr. Debt, G.,) unless indeed such new security be void; but the mere taking of an instrument of a

several late statutes, (particularly 11 Geo. II. c. 19, in case of irregularity in the method of distraining, and 24 Geo. II. c. 24, in case of mistakes committed by justices of the peace,) even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no.2 II. Arbitration is where the parties injuring and injured submit all matters in dispute, concerning any personal chattels or personal wrong, 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,)(x) 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 transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.(y) But the right of real property cannot thus pass by a mere award :(2) which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles; for if this had been permitted the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release

() Whart. Angl. Sacr. i. 772. Nicols. Scot. Hist. Libr. ch. 1, prope finem.

(✔) Brownl. 55. 1 Freem. 410.
() 1 Roll. Abr. 242. 1 Lord Raym. 115.

higher order as a collateral or additional security does not preclude the debtor from suing on the original contract, and this though judgment be obtained on such security. 2 Leon. 110. 6 T. R. 176, 177. Payment and acceptance of a part of a debt before the day it falls due, or at a place where the whole debt was not payable, in satisfaction of the whole, is a good satisfaction, (Co. Litt. 212, b. ;) and so if the debtor give a chose in possession for a chose in action, (2 T. R. 24,) as the gift of a horse, or other property in specie. Co. Litt. 212, b. The mere fulfilment of an act which a party is bound in law to do is no satisfaction. Per Grose, J., 5 East, 302. A release of an equity of redemption is no satisfaction. 2 Wils. 86. Conferring a benefit to a third person at the debtor's request is sufficient. See Skin. Rep. 391.

The satisfaction should proceed from the party who wishes to avail himself of it; for when it proceeds entirely from a stranger it will be a nullity. See 5 East, 294. 1 Smith, 515. Cro. Eliz. 541.

Accord and satisfaction by copartner is a bar to any action against the other partners. 9 Rep. 79, b. So the acceptance of satisfaction from a joint tort-feasor discharges the other wrong-doers, (Sembl. 3 Taunt. 117;) and accord and satisfaction to one of several co-plaintiffs will operate as a discharge from all. See 13 Edw. IV. 6. 5 Co. 117, b.CHITTY.

28

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,) a tender of amends to the party injured is a bar to the action, if the party thinks proper to accept such tender. If the party injured does not accept the amends tendered, and the jury, on the trial of the action, think the sum offered sufficient, their verdict must be for the defendant. By the Common Law Procedure Act, 1852, s. 70, the defendant in all actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauchery of the plaintiff's daughter or servant) may pay into court a sum of money by way of compensation or amends. And, by statute 6 & 7 Vict. c. 96, s. 2, in action for a libel contained in any newspaper or periodical publication, the defendant may plead that it was inserted without malice or gross negligence, and that an apology had been offered to be published. The defendant may with the plea pay money into court as amends. By s. 4, the offer of apology is admissible in evidence in mitigation of damages.-STEWART.

Where, by act of assembly, a penalty of fifty pounds was imposed upon any magistrate or minister marrying a minor without the consent of parents or guardians, and an act of assembly provided also for notice of any suit against a magistrate in order that he might have the opportunity to tender amends, it was held that no sum of money short of the penalty could be a sufficient amends. In demands founded on torts and sounding in damages, any sum of money may be treated as amends, because the standard of damage is uncertain, depending on a variety of circumstances, and a party is as likely to recover on trial less than the sum tendered as to recover more. But for a pecuniary debt, fixed and certain, a less sum of money cannot be an equivalent. Thus, payment of a less sum of money can never be admitted as an accord and satisfaction of a greater sum due. But payment of any sum accepted as satisfaction of damages for a personal injury is sufficien. Lowrie vs. Verner, 3 Watts, 317.-SHARSWOOD.

of land; and it will be a breach of the arbitration-bond to refuse compliance." For though originally the submission to arbitration used to be by word, or by deed, yet, both of these being revocable in their nature, it is now become the practice to enter into mutual bonds with condition to stand to the award or arbitration of the arbitrators *or umpire therein named. (a) And experience having *17] 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 legisla

(a) Append. No. III. § 6.

29 And where a party's title to land is referred with his consent, the award is conclusive evidence, and binding on him and his heirs and assigns as to such title. 3 East, 15.-CHITTY.

30 If the parties intend to refer all disputes, the terms of the reference should be, "of all matters in difference between the parties." When the reference is only intended to be of the matter in a particular cause, it should be, "of all matters in difference in the cause." 3 T. R. 628. A time should in all cases be mentioned within which the award is to be made; but, if no time be mentioned, the award should be made in a reasonable time. 2 Keb. 10, 20. 3 M. & S. 145. It is usual to vest in the arbitrators a power of enlarging the time for making their award; but it should be stipulated that this enlarge ment be made a rule of court. It is best to provide that the arbitration is not to be defeated by the death of either party. 7 Taunt. 571. 2 B. & A. 394. 3 D. & R. 184, 608. In some cases the court will amend an order of reference. 5 Moore, 167.

A court of chancery will not decree a specific performance, (19 Ves. 431. 6 Ves. 815,) and no action lies for not appointing an arbitrator, (2 B. & P. 13;) but if a party has agreed not to revoke, or has covenanted to perform an award, and the award be made, he will be liable to an action for a breach of the agreement or covenant if he revoke or refuse to perform the award, (see 5 B. & A. 507. I D. & R. 106. 2 Chit. R. 316. 5 East, 266; and see 4 B. & C. 103 ;) and an attachment for a contempt of court sometimes lies, where the submission is a rule of court. Crompt. Prac. 262. 1 Stra. 593. 7 East, 607. With respect to the revocation of the arbitrator's authority, it is a rule of law that every species of authority, being a delegated power, although by express words made irrevocable, is nevertheless in general revocable. See 8 Co. 82. A submission to arbitration may be revoked by the act of God, by operation of law, or by the act of the parties.

The death of either or any of the parties before the award is delivered in general vacates the submission, unless it contain a stipulation to the contrary, (see 1 Marsh. 366. 7 Taunt. 571. 1 Moore, 287, S. C. 2 B. & A. 394;) but where all matters in difference in a cause are referred by order of nisi prius to arbitration, the death of one of the parties at any time before award made is a revocation of the arbitrator's authority and the court will set aside an award made after his death; or, in other words, it should seem, if the cause of action is referred, the death abates the action, but not so if other matters besides the cause of action are referred. 3 D. & R. 608. 2 B. & A. 394.

If a feme-sole submit to arbitration, and marry before the award is delivered, such marriage is in effect a revocation, without notice to the arbitrators, (2 Keb. 865. Jones, 388. Roll. Abr. 331;) but the husband and wife may be sued on their bond for such revoking. 5 East, 266.

Bankruptcy of one of the parties is no revocation. 2 Chit. Rep. 43. 4 B. & A. 250.

The death of the arbitrators, or one of them, will defeat the reference, unless there be a clause in the submission to the contrary, (see 4 Moore, 3;) so if the arbitrators do not make the award within the limited time, or they disagree, or refuse to act or intermeddle any further. 1 Roll. Abr. 261. 2 Saund. 129. Tidd, & ed. 877.

The parties themselves, as we have just seen, may revoke the arbitrators' authority before the award is made: the revocation must follow the nature of the submission: if the latter be by parol, so may the revocation. 2 Keb. 64. If the submission be by deed, so must the revocation. 8 Co. 72; and see T. Jones, 134. Notice of the revocation by the act of the parties must be given to the arbitrators in order to render it effectual. Roll. Abr. 331. Vin. Abr. Authority, 13; and see 5 B. & A. 507.

The law relating to the proceedings during the conduct of the arbitration, and the duties of arbitrators and umpires, will be found in 3 Chit. Com. Law, 650 to 656, and Caldw. on Arb. 42, 45, &c. As to the power, &c. of awarding costs, see Tidd, 8 ed. 883 to 887. As to when a court of equity will compel an arbitrator to proceed, see 1 Swanst. 40. As to the general requisites of an award and how it will be construed, see 3 Chit. Com. Law, 656 to 660._ Tidd, 8 ed. 882. For the remedy to compel the performance of an award, see Tidd, Prac. 8 ed. 887 to 894. 3 Chit. Com. Law, 600 to 665; and for the relief against an improper award, see 3 Chit. Com. Law, 665 to 668. Tidd, Prac. 8 ed. 894 to 898.-CHITTY.

ture has now established the use of them as well in controversies where causes are depending as in those where no action is brought: enacting, by statute 9 & 10 W. III. c. 15, that 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,) may 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, and may insert such agreement in their submission or promise, or condition of the arbitration-bond: 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 ampire, proved on oath to the court within one term after the award is made. And, in consequence of this statute, it is now become 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."1

"The Common Law Procedure Act, 1854, it may be observed, contains several very important provisions with reference to arbitrations by consent of parties. Some more particular mention of these enactments may not be considered inopportune.

To prevent an arbitration coming to an end without an award being made, it is provided that if in any arbitration the document authorizing the reference provides that the reference shall be to a single arbitrator, and the parties do not concur in the appointment of an arbitrator; or if any arbitrator refuses to act, or becomes incapable of acting, or dies, and the parties do not concur in appointing a new one; or if, where the parties or two arbitrators are at liberty to appoint an umpire, such parties or arbitrators do not appoint an umpire; or if any umpire refuses to act, or becomes incapable of acting, or dies, and the parties or arbitrators do not appoint a new umpire,-in every such instance any party may serve the other party or the arbitrators, as the case may be, with notice to appoint an arbitrator or umpire; and if within seven days no arbitrator or umpire is appointed, any judge of any of the superior courts may appoint the arbitrator or umpire.

Nor can a reference be rendered nugatory by the failure of one party to appoint an arbitrator; for when a reference is to two arbitrators, one to be appointed by each party, and one party fails to appoint an arbitrator for seven days after the other party has done so and has served the party thus failing to appoint with a notice to appoint his arbitrator, the party who has appointed may appoint his own arbitrator to act as sole artstrator, and an award made by such sole arbitrator will then be binding on both parties. The court or a judge may, nevertheless, revoke the appointment on such terms as may seem just.

Formerly it was required that express authority to appoint an umpire should be given to arbitrators; otherwise such an appointment could not be made by them. Now, however, when a reference is to two arbitrators, and the document authorizing it does not show that it was intended that there should not be an umpire or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire. They may be called upon to make the appointment by notice from any of the parties to the reference; and the appointment must be made within seven days; otherwise an umpire may be appointed by a judge.

An arbitrator is also required to make his award within three months after he has been appointed and has entered on the reference, or been called upon by a notice in writing from a party to the reference to do so; but the parties, by consent in writing or the court, may enlarge the time for the arbitrator making his award.

That delay may be avoided, however, when arbitrators cannot agree, it is provided that any umpire, when appointed, may enter on the reference in lieu of the arbitrators, if the latter have allowed their time to expire without making an award, or have delivered to any party, or to the umpire himself, a notice stating that they cannot agree. Instead of deciding the dispute, an arbitrator may state his award in the form of a special case for the opinion of the court, the nature and object of which proceeding shall be explained afterwards

Soon after the statute 9 & 10 W. III. c. 15, it was decided that the right to real property could not pass by a mere award. 1 Roll. Abr. 242. 1 Ld. Raym. 115. This subtlety in point of form (for it was soon reduced to nothing else) had its rise from feudal principles; for, if this had been permitted, the land, it was said, might be aliened collusively VOL. II.-2

17

CHAPTER II.

OF REDRESS BY THE MERE OPERATION OF LAW.

THE remedies for private wrongs which are effected by the mere operation of the law will fall within a very narrow compass; there being only two instances of this sort that at present occur to my recollection: the one that of retainer, where a creditor is made executor or administrator to his debtor; the other in the case of what the law calls a remitter.

I. If a person indebted to another makes his creditor or debtee his executor, or if such a creditor obtains letters of administration 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. (a)1 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 himself, as a 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 *he *19] 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 mischiefs than it would remedy, so that the creditor who first commences his suit is entitled to a preference in payment; it follows that, as the executor can commence no suit, 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

(a) 1 Roll. Abr. 922. Plowd. 543. See book ii. page 511.

without the consent of the superior. If, therefore, an arbitrator awarded a conveyance or a release of land, and the party ordered to convey refused to do so, the court of chancery must have been resorted to in order to enforce a specific performance of the ward. This proceeding is no longer necessary, however; for an award directing the possession of land to be delivered may now be enforced summarily, like a judgment in ejectment. Com. Law Proc. Act, 1854.

An award, as we have seen, is only a final judgment on the matters submitted, when the decision of the arbitrator is properly made. An award may and will be set aside by the court, in the exercise of the summary jurisdiction conferred upon it by the statute before referred to, when the arbitrator has not pursued the submission, or has in any respect exceeded his authority; when the award itself is uncertain or ambiguous; when the proceedings in the arbitration have been irregular; when the arbitrator has misconducted himself; or when the award has been procured by undue means. But these constitute but a few of the instances in which an award will be set aside; for it would be quite out of place here to enter into any detail of the circumstances which will avoid an award.-KERR.

1 Toller, 4 ed. 295, 298. So if a creditor be made a co-executor. 1 same law as to an administrator (8 T. R. 407) or heir. 2 Vern. 62. made executor of creditor, it is a release at law. Ante, 2 book, 512. 299.-CHITTY.

B. & P. 630. The
So if a debtor be
Plowd. 184. Salk.

The principle of an equal and pro rata distribution of the property of an insolvent de cedent among his creditors has been adopted and successfully carried out in the United States. So far from being impracticable, or accompanied with inconveniences more than counterbalancing its justice,- -as the learned commentator plainly intimates,--no voice would be raised anywhere in favour of a return to a system which was a mere Bcramble as to who should get priority, and with a very unjust power in the executor or administrator not only to prefer himself but others. It follows that in this country there is no such thing as retainer as against other creditors in equal degree. The exe cutor or administrator must come in pari passu with all others, according to the general principles of order settled by the various statutes,-in which there is some diversity, but manifest tendency in the later legislation to place all debts, without regard to quality, upon one and the same level.-SHARSWOOD.