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No. 2481.

Book 4, tit. 2, chap. 2, sec. 1, § 1, 2.

No. 2484.

CHAPTER II.-OF REMEDIES WITHOUT LEGAL ASSISTANCE BY THE ACT OF BOTH PARTIES.

2481. There are two modes by which the parties can put an end to a dispute and settle it by their own. joint act, namely, 1, accord; and 2, arbitration.

SECTION 1.—OF ACCORD AND SATISFACTION. (a)

2482. Accord is the settlement of a dispute or the satisfaction of a claim by an executed agreement between the party injuring and the party injured.

§ 1. Of the parties to an accord.

2483. When there is but one party on each side, each must either by himself or his agent act and take a part in the agreement for an accord and satisfaction. When there are several joint obligors or joint trespassers, and the accord and satisfaction is made by one of them, it is good and available as to all. (b) If, on the contrary, there are several joint claimants, and one of them, in the name of the whole, agrees to the accord and receives satisfaction, it will bind the rest, though no authority appears from them. (c)

§ 2. Of the requisites to a good accord and satisfaction.

2484. The requisites of an accord are the following:

1. The accord must be legal. An agreement to drop a criminal prosecution, as a satisfaction for a larceny, the thief returning the goods and paying the owner damages, is void, and will be no bar to a future prosecution.

(a) See generally, Bac. Ab. h. t.; Com. Dig. h. t.; Com. Dig. Pleader, 2 V. 8; 3 Chit. Com. Law, 687 to 698; 2 Greenl. Ev. § 28.

(b) Strang v. Holmes, 7 Cowen, 224; Ruble v. Turner, 2 H. & M. 38; Dafresne v. Hutchinson, 3 Taunt. 117.

(c) Wallace v. Kelsall, 7 M. & W. 264.

No. 2484.

Book 4, tit. 2, chap. 2, sec. 1, § 2.

No. 2484.

2. It must be advantageous to the party claiming the performance of a contract or damages for an injury; hence, restoring to the plaintiff his chattels, or his land, of which the defendant has wrongfully dispossessed him, will not be a consideration to support a promise by the plaintiff not to sue him for those injuries. (a) In contracts for the payment of a sum of money, the mere payment of a less sum will not be a good accord and satisfaction; but if the money was paid before it became due, or at a different place appointed for the payment, or, in case of a simple contract for a larger sum, a negotiable security given for a less sum, may be a good satisfaction. The acceptance of a collateral thing of value, whenever and wherever delivered, is a good satisfaction; or a mutual agreement to discontinue two cross actions, acted on accordingly, will be a good accord. (b)

3. It must be certain; hence an agreement that the defendant shall relinquish the possession of a house in satisfaction of a claim is not valid, unless it be also agreed at what time it shall be relinquished. (c)

If

4. The defendant must be privy to the contract. therefore the consideration for the promise not to sue proceeds from another, the defendant is a stranger to the agreement, and the circumstance that the promise was made to him will render the agreement of no avail. But if the accord has been made by authority of the defendant, it will be good, although the subject matter did not proceed from him, as when the obligation or security of a third person, who is sui juris, is accepted in lieu of the claim, it is sufficient. (d)

5. The accord must be executed, for, till then, it is no satisfaction. Whether an accord, with a tender of

(a) Bac. Ab. Accord, A; Perk. § 749; Keeler v. Neal, 2 Watts, 424. (b) Foster v. Trull, 12 John. 456.

(c) Samford v. Cutliffe, Yelv. 125.

(d) Booth r. Smith, 3 Wend. 66; Kearslake v. Morgan, 5 T. R. 513; Gullen . McGillicuddy, 2 Dana, 90; Wentworth v. Wentworth, 5 N. Hamp. 410.

No. 2485.

Book 4, tit. 2, chap. 2, sec. 2, § 1.

No. 2487.

satisfaction, without acceptance, is sufficient, is a point upon which the authorities are not entirely agreed, as may be seen by a reference to the cases mentioned in the note.(a)

§ 3. Of the effect of an accord and satisfaction.

2485. An accord with a satisfaction lawfully made, is a complete bar to a future action; it is a kind of payment of the debt. It is a species of sale by the debtor to the creditor, but it differs from it in this, that it is not valid until the delivery of the article by the debtor to the creditor, and there is no warranty in the thing given, except perhaps the title, for, in regard to this, it cannot be doubted that if the debtor gave, on an accord and satisfaction, the goods of the creditor himself, through a mistake, or of another person, there would be no satisfaction.

SECTION 2.-OF ARBITRATION.

2486. The second mode of settling disputes by the acts of both parties without a suit is by arbitration, of which, however, there are several kinds, some of them being made under a rule of court, as will be more fully explained hereafter.

An arbitration is a submission and reference of a matter in dispute concerning property, or in relation to a personal wrong, to the decision of one or more persons, called arbitrators, who are to render a judgment thereupon, called an award.

§1.-Of the submission.

2487.-1. The submission is an agreement by which the parties name and appoint arbitrators to decide the

(a) Cumber v. Vane, 1 Str. 425; Heathcote v. Crookshanks, 2 T. R. 24; Lynn v. Bruce, 2 H. Bl. 317; Clark v. Dinsmore, 5 N. Hamp. 136; James v. David. 5 T. R. 141; Coit v. Houston, 3. John. Cas. 249; Russell v. Lytle, 6 Wend. 390; 1 Smith's Lead. Cas. 146.

No. 2488

Book 4, tit. 2, chap. 2, sec. 2, § 2.

No. 2491.

matter in dispute between them, and bind themselves reciprocally to perform the award, or what shall be arbitrated.

2488.-2. As to its form the submission may be by parol, with mutual promises to perform the award; it may be by deed, containing a similar agreement; or by a rule of court; or by any other mode pointed out by statute. It is usual in all cases to state within what time the arbitrators shall meet, and that their award shall be delivered before a particular day.

2489.-3. As to the matters referred, it is to be observed that the extent of the submission may be various, according to the pleasure of the parties; it may be of only one, or of all civil matters in dispute, but no criminal matter can be referred.

2490. A submission is somewhat similar to a compromise; by the former the parties select judges, who are to decide how the parties are to settle their disputes; by the latter, the parties themselves become their own judges, and arrange the mode of settlement. In both, the parties may bind themselves under a penalty, to fulfil the agreement.

§ 2. Of the parties to the submission.

2491.-1. When there is but one party to the submission on each side, they both must agree, but this need not be done in person; and sometimes they will be presumed to have given their consent, when there is no evidence of it; for example, an attorney may refer a matter to arbitration, without any special authority of his client, (a) so may selectmen of a town, who are its general agents, (b) or the agents of a town specially appointed to prosecute or defend a suit.(c)

(a) Somers v. Balabrega, 1 Dall. 164; Holker v. Parker, 7 Cranch, 436; Talbot v. McGee, 4 Monr. 377; Buckland v. Conway, 16 Mass. 396. But see Alton v. Gilmanton, 2 N. Hamp. 488; Haynes v. Wright, 4 Hayw. 65. (6) Boston v. Brazer, 11 Mass. 449. Sed vide 5 Conn. 367. (c) Schoff v. Bloomfield, 8 Verm. 472.

No. 2492.

Book 4, tit. 2, chap. 2, sec.

. 2, § 3.

No 2495.

2492.-2. One who is appointed by law to manage the affairs of another, may submit a matter in dispute between himself, in his character of guardian, or trustee, of another.(a)

2493.-3. In order to submit to an arbitration, the party must be sui juris; an infant cannot, therefore, make a valid submission to arbitration.(b)

2494.-4. When there are several persons, either as plaintiffs or defendants, for example, partners who are jointly entitled or jointly bound, the submission of one, for himself and his associates, is good. (c)

§ 3. Of the arbitrators and umpire.

2495. As arbitrators are judges between the parties, they must be sui juris; they ought to have no interest in the matter in dispute, and be perfectly indifferent between the parties.

An infant cannot, in general, be appointed an arbitrator, nor can a married woman fill that office; yet instances may be found where such a woman has been

an arbitratrix.(d)

The fact that the arbitrator is interested, or closely connected with the opposite party, will, in general, disqualify him to act as such; but if a person so situated should, either through inattention, or because of the high opinion entertained of his integrity and judgment, be appointed an arbitrator, the party will not be allowed afterward to impeach the award, on the ground of an improper appointment, unless such appointment was made under a mistake. For if the interest of the arbitrator in the subject of reference, or his relationship to the opposite party, being unknown at

(a) Weed v. Ellis, 3 Cuin. 253; Weston v. Stuart, 2 Fairf. 326; Hutchins v. Johnson, 12 Conn. 376.

(b) Baker v. Lovett, 6 Mass. 80; Britton v. Williams, 6 Munf. 458. (c) Wilcox v. Singleton, Wright, 420; Southard v. Steele, 3 Monr. 435. (d) Kyd on Awards, 71.

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