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The remedies for private wrongs, which are effected by the mere operation of law, will fall within a very narrow compass: the principal are these, known as, I. Retainer, (where a creditor is made executor or administrator to his debtor). II. Set-off. III. Remitter, to which may be added, IV., the effect of the marriage of parties in certain cases.

I. If a person indebted to another makes his creditor or debtee his executor (a), or if such creditor obtains letters of administration (6) to his debtor; in

these cases the law gives him a remedy for his debt, by allowing I. Retainer.

him to retain so much as will pay himself, before any other creditors whose debts are of equal degree. (436) 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 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 would be put in a worse condition than all the rest of the world besides. For, though a rateable 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 by an executor [*12 ]

or administrator, of the assets among all the creditors has 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 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 subsisted.

Neither shall one executor be allowed to retain his own debt, in prejudice to that of his co-execu

(a) 1 Roll. Abr. 922 ; Woodward v. Darcy, v. Green, 1 Brownl, 75. See Williams on Plowd. 184.

Executors, 6th ed. pp. 971 et seq. (6) Warner v. Wainford, Hob. 127; Bond

(436) This remedy of retainer has no existence in this country; and a creditor, who is also an executor, has not, by virtue of his office, any right to the payment of his debt in prefer ence to other debts of the same class due to other creditors. All the individual interest which an executor, as a creaitor of the estate of his testator, can have in the funds of the estate, is a right to the payment of his debt, or a ratable proportion thereof, out of the assets, upon a se ent of the estate.

v. Schmidt, 17 N. J. (2 Green) 257; Rogers v. Hosack's E.cecutors, 18 Wend. 319 : Chaffin v. Chaffin, 2 Dev. & Bat. Ch. 255; Lenoir v. Winn, 4 Desa uss. 65.

tor in equal degree; but both shall be discharged in proportion (c). Nor shall an executor of his own wrong be permitted to retain (d), except in the case where he becomes so (e) through accepting a gift of the intestate's effects from an administrator who has obtained the grant fraudulently. Whether an executor might retain for a debt barred by the statute was formerly in some doubt; recent decisions, which may be accepted as settling the question, have established the right in this case also (ƒ).

* II. Set-off is a right somewhat analogous to retainer; it exists where [*13]

there are cross demands between two persons. If a man has a claim for

II. Set-off.

a sum of money against another and is also indebted to him, he may consider his claim to be a discharge or extinguishment of his debt, if they be equal in amount, or pro tanto if unequal. This rule, founded upon reason and justice, inasmuch as it prevents unnecessary multiplication of suits and much inconvenience of other kinds, seems to have been adopted originally from the Roman Law (g). "Ideo necessaria est compensatio, quia interest nostra potius non solvere quam solutum repetere" is the statement in the Digest (h) of its foundation.

The doctrine was not, however, voluntarily accepted by our courts of common law, and in early times its benefit could only be obtained in courts of equity where it seems to have been always recognised (i). The obviously disastrous consequences of not admitting it in the event of the bankruptcy of one of the parties led to its recognition by the legislature in that case (k). And not long afterwards the same supreme authority interfered to permit a set-off to be pleaded at law in general cases (7). *There are various rules and con[*14] ditions which regulate the application of the doctrine, into which we cannot appropriately enter here at any length. They depend upon the nature of the relation existing between the parties and the character of the conflicting claims. Thus where the claims are in different rights (m), or where one is for

(c) Chapman v. Turner, 11 Vin. Abr. 72, tit. Exors. D. 2; S. C. 9 Mod. 268.

(d) Coulter's Case, 5 Rep. 30; S. C. Cro. Eliz. 630.

(e) By 43 Eliz. c. 8, the statute expressly reserves the right of retainer.

(f) Stahlschmidt v. Lett, 1 Sm. & G. 415; Hill v. Walker, 4 K. & J. 166; Sharman v. Rudd, 27 L. J., Ch. 844. In the analogous case of remitter, however, the rule seems to be that there is no remitter to an estate a right to which would be barred by the statute, see post, p. 14 n. (p), and p. 16. Upon the general law of Retainer, see Williams on Executors, ubi sup., and Stammers v. Elliot, L. R. 3 Ch. 195.


(g) This was the opinion of Sir Thomas Clarke. See Whitaker v. Rush, Amb. 407. (h) Lib. xvi. tit. 2. De Compensationibus. In a comment on necessaria," it is said," Id est cum lis possit uno judicio definiri, scilicet per actionem et exceptionem, pluralitas seu multitudo judiciorum non debet admitti, ut que incommoda sumptusque adferat; quinetiam compensationem æquitas poscere videtur, nam dolo facit qui petit quod restiturus est." Corp. Jur. Civ. Dion. Gothofredi, 1615.

(i) Downam v. Matthew, Prec. Chan. 580; 1 Ch. 499; Anon., 1 Mod. 215; Curzon v. Afri

can Co., 1 Vern. 121; Chapman v. Derby, 2 Vern. 117; Peters v. Soame, 2 Vern. 428; Jeff's v. Wood, 2 P. W. 128; Green v. Farmer, 4 Burr. 2220.

(k) The first statute is 4 & 5 Anne, c. 17. Subsequent Acts allowing set-off in bankruptcy are, 5 Geo. 1, c. 11; 5 Geo. 2, c. 30, s. 28; 46 Geo. 3, c. 125, s. 3; 12 & 13 Vict. c. 106, s. 172, which last regulates the law as now in force. The law will, after the close of this year (1869) be regulated by 32 & 33 Vict. c. 71, s. 36.

(1) 2 Geo. 2, c. 22, s. 12, made perpetual by 8 Geo. 2, c. 24, s. 4, and see s. 5. See also Isberg v. Bowder, 8 Exch. 852. A form of plea is given in Sch. B. No. 41, of the Common Law Procedure Act, 1852, and see, besides, 23 & 24 Vict. c. 126, s. 21.

(m) West v. Pryce, 2 Bing. 555; Wood v. Smith, 4 M. & W. 525. Groom v. Mealey, 2 Bing. N. C. 138; Bishop v. Church, 3 Atk. 691; Whitaker v. Rush, Amb. 407; Chapman v. Derby, 2 Vern. 117; Mardall v. Thellusson, 6 E. & B. 976; Rees v. Watts, 11 Exch. 410. Unless the circumstances are very special, Freeman v. Lomas, 9 Hare. 109; Bousfield v. Lawford, 1 De G. J. & S. 459. See also Stammers v. Elliott, L. R. 4 Eq. 675; and on appeal, 3 Ch. 195.


unliquidated damages or for tort, the other being a common debt of fixed amount (n), or where the debt in respect of which set-off is claimed accrued after the commencement of the action (o), no set-off will be allowed, and it would seem that set-off may not be asserted in respect of a debt barred by the Statutes of Limitations (p).

Courts of equity, having a wider cognisance of rights and claims than courts [ * 15]

of law, are still (9) sometimes * resorted to for the protection afforded

by the right of set-off: they, however, to a great extent observe conditions similar to those established as rules at law (r).

III. Remitter is where he who has 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 III. Remitter.

cast upon him by some subsequent, and of course defective, title; in this case he is remitted, or sent back by operation of law, to his ancient and more certain title (s). The right of entry, which he has gained by a bad title, shall be ipso 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 (t). As if A. disseises B., that 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 (t): now, if afterwards C., the heir of the disseisor, 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 disseisee: 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 (u). For he hath hereby gained a new right of possession, to which the law immediately annexes his ancient right of prop[*16] erty. And it may be remarked that * this takes place whatever may

* be his will or intention. He is remitted nolens volens (x). If the subsequent estate, or right of possession, 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

(n) Bell v. Corey, 8 C. B. 887; Crompton v. 249. It is to be observed that the statutes, Walker, 3 E. & E. 321 ; Thompson v. Redman, 21 Jac. 1, c. 16, and 3 & 4 Will. 4, c. 42, only 11 M. & W. 487.

take away the remedy and not the right; the () Richards v. James, 2 Ex. 471 ; and see other Act, 3 & 4 Will. 4, c. 27, takes away for further illustrations the cases Pratt v. the right also. Keith, 33 L. J. Ch. 528; In re Bank of Hinda (9) Jones v. Moore, 4 Y. & C. 351; Baillie v. stan, Smith's Case, L. R. 3 Ch. 125; Ander. Edvards, 3 H. L. Ca. 74 ; Macmahon v. Burson's Case, L. R. 3 Eq. 337.

chell, 3 Hare, 97; Jones v. M0880p, 3 Hare, 568. (P) Chapple v. Durston, 1 Cr. & J. 1; Frir. (r) See the principles regulating set-off in thorne v. Donald, 13 M. & W. 424. This equity stated in Clarke v. Cort, Cr. & Ph. 154; appears however a somewhat harsh rule: in Ranson v. Samuel, ib. 161; Freeman v. analogous cases, such as lien, the statutes are Lomas, 9 Hare, 109, and illustrated in Caven. disregarded, Spears v. Hartley, 3 Esp. 81; dish v. Geaves, 24 Beav. 163; Courtenay v. Higgins v. Scott, 2 B. & Ad. 413; and see Mills Williams, 3 Hare, 539; Jones v. Mossop, 3 v. Forokes, 5 Bing. N. C. 455. Again, V.-C. Hare, 568; Alvanley v. Lewis, 1 L. J. (N. S.) Kindersley held, in Edwards v. Waugh (L, R. Ch. 55 ; In re Commercial Bank, L. R. 2 Ch. 1 Eq. 418, overruling the M. R. in Mason v. 538 ; In re Overend, Gurney and Co. (Grissell's Broadbent, 33 Beav. 296), that a mortgagee Case), ib. 528. may retain out of moneys produced by sale (8) Litt. s. 659. This and the following of the mortgaged properties more than six thirty-seven sections of Littleton's treatise years' interest, notwithstanding 3 & 4 Will. contain a large variety of cases of remitter. 4, c. 27, s. 42. And in the case of a legacy to (t) Co. Litt. 348; Cro. Jac. 489. a debtor whose debt is barred, it is now quite (u) Finch. L. 194; Litt. 8. 683. established that the executor may set off the (x) Litt. s. 690; Com. Dig. Remitter, B. 3; legacy against the debt, Courtenay v. Wil Doe d. Daniell, v. Woodroffe, 2 H. L. 811. liams, 3 Hare, 539; Coates v. Coates, 33 Beav.

be looked upon as a waiver of his prior right (y). Therefore it is to be observed, that to every remitter there are regularly these incidents; an ancient right, and a new defeasible estate of freehold in possession, uniting in one and the same person; which defeasible estate must be cast upon the rightful owner not gained by his own act: except, indeed, in the case of an infant or married woman, against whom the law will not adjudge folly (z).

The reason given by Littleton (a), why this remedy, which operates silently, and involuntarily, by the mere act of law, was allowed, is somewhat similar to that given for retainer; 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 observes (6), 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 degree and condition than in a worse. Nam quod remedio destituitur, ipsá re valet si culpa absit. But there shall be no remitter to a right which is extinguished, or for which the party has no remedy by action (c): as if it be barred by the Statute of Limitations (d): or if * under the law as it stood prior to the act abol

[ *17] ishing fines, the issue in tail had been barred by the fine of his ancestor and the freehold was afterwards cast upon him; he was not remitted to his estate tail (e): for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As therefore the issue in tail could not by any action have recovered his ancient estate, he could not recover it by romitter. Of course under the present law there can be no remitter to an estate tail barred by a disentailing assurance duly executed by the ancestor. Inasmuch as the possession of one coparcener, joint tenant, or tenant in common is not the possession of any other (f), therefore if one be remitted to any of these estates no advantage accrues to any other (9).

IV. Besides the remedies of retainer, remitter, and set-off, we may here mention another mode whereby a right may be extinguished by operation of law,

and so in a manner a wrong may be considered as redressed. If IV. Marriage of

a woman marry her creditor or debtor, in either case the debt is

absolutely extinguished (h). (437) The debt, however, must be (y) Co. Litt. 348, 350.

(e) Anon. Moor. 115; Minter v. Collins, 1 (2) Co. Litt. 349, 351, 352.

Andr. 286; Doe d. Daniell v. Woodroffe, ubi (a) S. 661.

вир. (6) Elem. r. 9.

(f) Culley v. Taylerson, 11 A. & E. 1008; (c) Co. Litt. 349.

Burroughs v. M Creight, 1 J. & L. 290 ; 3 & 4 (d) See Doe d. Daniel v. Woodroffe, 10 M. Will. 4, c. 27. s. 12. & W. 608; 15 M. & W. 768; 2 H. L. Ca. 811; (g) Doe d. Daniell v. Woodroffe, ubi sup. in which case the law concerning remitter (h) Co. Litt. 264, b. was much discussed.

debtor and creditor.

(437) In many of the United States the relations of husband and wife have been materially changed by legislative enactment, and the common-law rules as to the rights of property during coverture have been essentially modified and in some cases abrogated. Thus, since the act for the protection of the rights of married women in the State of New York, the marriage of a female mortgagee with the mortgagor does not extinguish her right of action upon the mortgage. Pover v. Lester, 23 N. Y. (9 Smith) 527 ; see ante, Vol. 1, p. 361, note 151 ; id., 364, note 152.

one which, if existing, would be payable during the coverture, otherwise it is not extinguished; for instance, if a bond be given to a woman in contemplation of her marriage with the obligor, conditioned to pay a sum of money to her or her representatives after the obligor's death, this bond would be valid, notwithstanding the marriage (i). [ *18]

* And thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished or permitted by the law, where

the parties are so peculiarly circumstanced, as not to make it

eligible, or in some cases even possible, to apply for redress in the usual and ordinary methods to the courts of public justice.





in court.

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The next, and principal, object of our inquiries is redress by suit in court: wherein the act of the parties and the act of law co-operate; the act of the Redress by suit parties being necessary to set the law in motion, and the process

of the law being in general the only instrument by which the parties are enabled to procure a certain and adequate redress.

And here it will not be improper to observe, that although in the several cases of redress by the act of the parties mentioned in a former chapter (a), the law allows an extrajudicial remedy, yet that remedy is not compulsory, and does not exclude the ordinary course of justice; it is only an additional weapon put into the hands of persons in particular instances, where natural equity or the peculiar circumstances of their situation require a more expeditious remedy, than the formal process of a court of judicature can furnish. Therefore, though I may defend myself from external violence, I yet am afterwards entitled to an action of assault and battery: though I may retake my goods, if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action: I may either enter on the lands, on which I have a right of entry, or may demand possession by action: I may either abate a nuisance by my own authority, or call upon the law to do it for me: I may

distrain for rent, or have an action of debt, at my own option: if I [ * 20 ]

do not distrain my neighbour's cattle damage-feasant, I may compel him by action to make me a fair satisfaction for the damage done; if a heriot be withheld from me by fraud or force, I may recover it though I never seized it. And with regard to accords and arbitrations, either of these, being in its nature merely an agreement or compromise, indisputably supposes a previous right of obtaining redress some other way; which is given up by such agreement. And as to remedies by operation of law, those are indeed given, because no remedy can be administered by suit or action, without running into the palpable absurdity of a man's bringing an action against himself: the two


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