larity 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. (8)

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 feudal 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 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 shown the great [*17] use of these peaceable and domestic tribunals, especially in settling mat

ters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law; (9) the legislature has now established the use of them, as well in controversies where causes are depending, as

(x) Whart. Angl. sacr. 1, 772. Nicols, Scot. Hist. libr. ch. 1, prope finem.
(y) Brownl. 55. 1 Freem. 410.
(a) Append. No. III, § 6.

(z) 1 Roll. Abr. 242. 1 Lord Raym. 115.

Tuttle v. Tuttle, 12 Met., 551. Or if the debtor give a negotiable note for part of the debt. Sibree v. Tripp, 15 M. and W., 23. Or any chattel though of much less value than the amount of the debt. Jones v. Bullitt, 2 Lit., 49; Reed v. Bartlett; 19 Pick., 273. Or the note of a third person. Booth v. Smith, 3 Wend., 66. Or pay part before it is due. Brooks v. White, 2 Met., 283. And in any other case it is a good accord and satisfaction if the creditor receive some distinct benefit which he would not otherwise have been entitled to. See Douglass v. White, 3 Barb. Ch., 621. And it has been held that where a vendee who has ordered goods from a manufacturer, consents to receive them and waive strict compliance with the contract, he is bound by this waiver, notwithstanding there was no distinct consideration for it. Moore v. Detroit Locomotive Works, 14 Mich., 266; and see Monroe v. Perkins, 9 Pick., 305; Lattimore v. Harsen, 14 Johns., 330; Conyer v. Lynde, 10 Ind., 282. And of late the courts have inclined towards upholding agreements to accept part of a demand in satisfaction of the whole. See Pepper v. Aikens, 2 Bush, 251.

(8) In some of the United States statutes will be found adding to the number of cases in which tender of amends may be made, and in some a disposition has been manifested to permit the defendant in any suit brought for the recovery of debt or damages, to make an offer of such a sum as he is willing to allow judgment to pass for, and if the plaintiff declines to accept, to give costs against him unless the verdict in his favor is larger than the offer.

(9) It has been very common of late to introduce into certain species of contract a clause requiring the parties to submit to arbitration any disputes that may arise under them; but it has been generally supposed these stipulations could not be enforced, because they ousted the courts of jurisdiction. But recently an agreement not to bring suit until the damages were adjusted by a committee, or by arbitration, has been sustained. Avery v. Scott, 8 Exch., 487; S. C. in House of Lords, 5 H. L. Cas., 811; and see Russell v. Pellegrini, 6 El. and Bl., 1020.

The statement above that the marriage of a feme-sole revokes a submission to arbitration is probably not applicable in those states where the disabilities of coverture are removed and the woman is allowed to act on her own behalf the same after marriage as before.

Although it is perhaps true that the bankruptcy of one of the parties will not revoke a submission, yet the assignee would have the same power to revoke which the bankrupt possessed before the assignment. See Marsh v. Wood, 9 B. and C., 659.

in those where no action is brought: enacting by statute 9 and 10 Wm. 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 arbitrationbond: 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 umpire, 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. (10)

CHAPTER II.

OF REDRESS BY THE MERE OPERATION OF LAW.

THE remedies for private wrongs, which are effected by the mere operation of 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 mete 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 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, (a) 1 Roll. Abr. 922. Plowd. 543. See book II, page 511.

[*19]

(10) The common law procedure act, 1854, contains various provisions designed to give full effect to an agreement to arbitrate, where the parties fail to select a sole arbitrator or umpire, or where two are to be chosen and one party neglects or refuses to make choice. In the first case an arbitrator or umpire may be chosen by a judge of one of the superior courts, and in the other, the arbitrator who has been selected by one party may proceed as sole arbitrator. And if a reference is to two arbitrators, they may without special authority in the submission appoint an umpire, unless the terms of the submission forbid ; and if they fail to award, and fail to appoint an umpire, one may be appointed by a judge. The act also contains provisions for expediting the award, and it empowers the court to set it aside in proper cases. It also empowers the court, where the award directs possession of land to be delivered, to enforce the award by summary process, as it might a judgment in ejectment.

(1) This is not the law in the United States. Debts of equal degree are paid ratably, and the executor in his accounting is allowed for no payment to himself beyond his just pro portion.

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 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 coexecutor in equal degree; but both shall be discharged in proportion. (6) Nor shall an executor of his own wrong be in any case permitted to retain. (c) 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 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. (d) The right of entry, which he hath 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 or con[*20] sent. (e) As if A disseizes 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; now if afterwards C, the heir of the disseizor, makes a lease for life to D, with remainder to B, the disseizee, for life, and D dies; hereby the remainder accrues to B, the disseizee: who thus gaining a new freehold by virtue of the remainder, which is a bad title, is by act of law remitted, 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 ancient right of property.

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 be looked upon as a waiver of his prior right. (g) 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, 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 remedy, 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 observes, (i) 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, ipsa re valet, si culpa absit. But there shall be no *remitter to a right, for which the party has no remedy by action: (k) as if the issue in tail be (b) Viner. Abr. t. executors, D. 2. (d) Litt. § 659. (Finch, L. 191. Litt. § 683.

[*21]

(c) 5 Rep. 30.

(k) Co. Litt. 349.

(g) Co. Litt. 348, 350,

(e) Co. Litt., 358. Cro. Jac. 489.
(h) § 661.

(i) Elem. c. 9.

barred by the fine or warranty (2) of his ancestor, and the freehold is afterwards cast upon him; he shall not be remitted to his estate-tail: (1) 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 shall not recover it by remitter.

And thus much for these extra judicial 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.

CHAPTER III.

OF COURTS IN GENERAL.

THE next, and principal, object of our inquiries is the redress of injuries by suit in courts: wherein the act of the parties and the act of law co-operate; the act of the 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 does not exclude the ordinary course of justice; but it is only an additional weapon put into the hands of certain persons in particular instances, where natural equity or the peculiar circumstances of their situation require a more expeditious remedy, than the formal process of any court of judicature can furnish. Therefore, though I may defend myself, or relations, 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 of trover or detinue: I may either enter on the lands, on which I have a right of entry, or may demand possession by a real 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 do not distrain my neighbor's cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction: [*23] if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never seized it. And with regard to accords and arbitrations, these, in their nature, being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress some other way: which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be ministered by suit or action, without running into the palpable absurdity of a man's bringing an action against himself: the two cases wherein they happen being such wherein the only possible legal remedy would be directed against the very person himself who seeks relief.

(2) Estates tail are no longer barrable by these means. See statute 3 and 4 Wm. IV, c. 74, § 14.

There is no remitter where the right is barred by the statute of limitations. See Daniel ▼. Woodroffe, 10 M. and W., 608; 15 id., 769; 2 H. L. Ca., 811.

In all other cases it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these remedies by suit in courts, I shall pursue the following method: first, I shall consider the nature and several species of courts of justice; and, secondly, I shall point out in which of these courts, and in what manner, the proper remedy may be had for any private injury, or, in other words, what injuries are cognizable, and how redressed, in each respective species of courts.

First, then, of courts of justice. And herein we will consider, first, their nature and incidents in general; and then, the several species of them, erected and acknowledged by the laws of England.

A court is defined to be a place wherein justice is judicially administered. (b) And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice which are *the medium by which he administers the laws, are derived from the

[*24] power of the crown. (c) For, whether created by act of parliament, or letters patent, or subsisting by prescription (the only methods by which any courts of judicature (d) can exist), the king's consent in the two former is expressly, and in the latter impliedly given. In all these courts the king is supposed in contemplation of law, to be always present; but as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative.

For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive, jurisdiction; some constituted to inquire only, others to hear and determine; some to determine in the first instance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I shall therefore here only mention one distinction, that runs throughout them all, viz.: that some of them are courts of record, others not of record. A court of record is that, where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. (e) (1) And if the existence of a record be denied, it shall be tried by nothing but itself: that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes. But, if there appear any mistake of the clerk in making up such record, the court will direct him to amend it. All courts of record are the king's courts, in right of his crown and royal dignity, (ƒ) and therefore no other court hath authority to fine or imprison; so that the very erection [*25] *of a new jurisdiction with the power of fine or imprisonment makes it instantly a court of record. (g) A court not of record is the court of a private man; whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow subjects. Such are the courts-baron

(b) Co. Litt. 58.

(e) Co. Litt. 260.

(c) See Book I, ch. 27. (f) Finch, L. 231.

(d) Co. Litt. 260,

(g) Salk. 200. 12 Mod. 388.

(1) A judgment is void if the court which assumed to render it had no jurisdiction. But generally it is not competent to show a want of jurisdiction in opposition to the recitals in the record. Whether, where a judgment rendered in one state is brought into controversy in another, it is competent to show a want of jurisdiction in contradiction of the record, is in dispute upon the authorities. See Starbuck v. Murray, 5 Wend., 148; Hall v. Williams, 6 Pick. 232; Bradshaw v. Heath, 13 Wend., 407; Gleason v. Dodd, 4 Met., 333; Norwood v. Cobb, 24 Texas, 551; which allow such evidence, and Newcomb v. Peck, 17 Vt., 302; Wilcox v. Kassick, 2 Mich., 165: Bimelar v. Dawson, 5 Ill., 536; Roberts v. Caldwell, 5 Dana, 512, and Lincoln v. Tower 2 McLean, 473, which exclude it. The recent case of Knowles v. Gas Light Co., 19 Wall., 58, admits of such evidence.