than to retain them till satisfaction is made. But distresses for rent-arrere being found by the legislature to be the shortest and most effectual method of compelling the payment of such rent, many beneficial laws for this purpose have been made in the present century; which have much altered the common law, as laid down in our ancient writers. In pointing out, therefore, the methods of distraining, I shall in general suppose the distress to be made for rent; and remark, where necessary, the differences between such distress, and one taken for other causes. *In the first place then all distresses must be made by day unless in the case of damage-feasant; an exception being there allowed, lest [*11] the beasts should escape before they are taken. (a) And, when a person intends to make a distress, he must, by himself or his bailiff, enter on the demised premises; formerly during the continuance of the lease, but now, (b) if the tenant holds over, the landlord may distrain within six months after the determination of the lease; provided his own title or interest, as well as the tenant's possession, continue at the time of the distress. If the lessor does not find sufficient distress on the premises, formerly he could resort nowhere else; and, therefore, tenants who were knavish made a practice to convey away their goods and stock fraudulently from the house or lands demised, in order to cheat their landlords. But now (c) the landlord may distrain any goods of his tenant, carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bona fide sold for a valuable consideration: and all persons privy to, or assisting in, such fraudulent conveyance, forfeit double the value to the landlord. The landlord may also distrain the beasts of his tenant, feeding upon any commons or wastes, appendant or appurtenant to the demised premises. The landlord might not formerly break open a house, to make a distress, for that is a breach of the peace. But when he was in the house, it was held that he might break open an inner door; (d) and now (e) he may, by the assistance of the peace-officer of the parish, break open in the daytime any place whither the goods have been fraudulently removed and locked up to prevent a distress; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein. Where a man is entitled to distrain for an entire duty, he ought to distrain for the whole at once; and not for part at one time, and part at another. (f) But if he distrains for the whole, and there is not sufficient on the premises, or he happens to mistake in the value of the thing distrained, and so takes an insufficient distress, he may take a second distress to complete [*12] his remedy. (g) Distresses must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. III, c. 4, if any man takes a great or unreasonable distress, for rent-arrere, he shall be heavily amerced for the same. As if (h) the landlord distrains two oxen for twelve-pence rent; the taking of both is an unreasonable distress; but if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages it is said that no distress can be excessive. (i) For as these distresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge; for an action of trespass is not maintainable upon this account, it being no injury at the common law. (j) When the distress is thus taken, the next consideration is the disposal of it. For which purpose the things distrained must in the first place be carried to some pound, and there impounded by the taker. But, in their way thither, (n) Co. Litt. 142. (d) Co. Litt. 161. (g) Cro. Eliz. 13. (i) Bro. Abr. t. (b) Stat. 8 Ann. c. 14. Comberb. 17. (c) Stat. 8 Ann. c. 14. 11 Geo. II. c. 19, (h) 2 Inst. 107. they may be rescued by the owner, in case the distress was taken without cause, or contrary to law: as if no rent be due; if they were taken upon the highway, or the like; in these cases the tenant may lawfully make rescue. (k) But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law. () A pound (parcus, which signifies any inclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 and 2 P. and M., c. 12, no distress of cattle can be driven out of the hundred where it is taken, unless to a pound-overt within the same shire; and within [*13] three miles of the place where it was taken. This is for the benefit of the tenants, that they may know where to find and replevy the distress. And by statute 11 Geo. II, c. 19, which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises, upon which a distress is taken, into a pound, pro hac vice, for securing of such distress. If a live distress, of animals, be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distrainor must give notice to the owner: and in both these cases, the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they are put in a pound-covert, as in a stable or the like, the landlord or distrainor must feed and sustain them. (m) A distress of household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert, else the distrainor must answer for the consequences. When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it hath been held, (n) that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded, till the owner makes satisfaction; or contests the right of distraining, by replevying the chattels. To replevy (replegiare, that is to take back the pledge) is, when a person distrained upon applies to the sheriff or his officers, and has the distress returned into his own possession, upon giving good security to try the right of taking it in a suit at law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, of which more will be said hereafter. At present I shall only observe, that, as a distress is at com{*14] mon *law only in nature of a security for the rent or damages done, a replevin answers the same end to the distrainor as the distress itself; since the party replevying gives security to return the distress, if the right be determined against him. This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always salable at the common law. (2) And for an amercement imposed at a court-leet, the lord may also sell the distress: (p) partly because, being the king's court of record, its process partakes of the royal prerogative; (2) but principally because it is in the nature of an execution to levy a legal debt. And, so in the several statute-distresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And, in like manner, by several acts of parliament, (r) in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken, and notice of the cause thereof given him, replevy the same with sufficient security; the distrainor, with the sheriff or constable, (k) Co. Litt. 160, 161. (m) Ibid. shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges; rendering the overplus, if any, to the owner himself. And, by this means, a full and entire satisfaction may now be had for rent in arrere, by the mere act of the party himself, viz.: by distress, the remedy given at common law; and sale consequent thereon, which is added by act of parliament. Before I quit this article, I must observe, that the many particulars which attend the taking of a distress, used formerly to make it a hazardous kind of proceeding: for if any *one irregularity was committed, it vitiated the [*15] whole, and made the distrainors trespassers ab initio. (s) (6) But now by the statute 11 Geo. II, c. 19, it is provided, that, for any unlawful act done, the whole shall not be unlawful, or the parties trepassers ab initio: but that the party grieved shall only have an action for the real damage sustained, and not even that, if tender of amends is made before any action is brought. VI. The seizing of heriots, when due on the death of a tenant, is also another species of self-remedy; not much unlike that of taking cattle or goods in disAs for that division of heriots, which is called heriot-service, and is only a species of rent, the lord may distrain for this, as well as seize, but for heriot-custom (which Sir Edward Coke says (t) lies only in prender, and not in 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. (20) (7) By several late statutes (particularly 11 Geo. II, c. 19, in case of irregu (s) 1 Ventr. 37. (t) Cop. § 25. (u) Cro. Eliz. 590. Cro. Car. 260. (w) 9 Rep. 79. (6) Generally, a party pursuing a remedy ex parte, which may result in depriving another of his property, must pursue strictly the authority the law gives him. In Newsam v. Hart, 14 Mich., 233, it was held that, under a statute which authorized freeholders to take up estrays, a freeholder could not justify the taking up of an estray for him by a third person without his previous authorization, notwithstanding he had assumed to ratify the act. This was merely the application of a general rule which has been often declared under statutes to prevent the running at large of domestic animals. See Commonwealth v. Fourteen Hogs, 10 S. & R., 393; Hanyman v. Titus, 3 Mo., 302; Crook v. Peebly, 8 Mo., 344; Morse v. Reed, 28 Me., 481; Kinder v. Gillespie, 63 Ill., 88; Spect v. Arnold, 52 Cal., 455; Hearn v. Ervin, 3 Cold., 399; Thompson v. Corpstein, 52 Cal., 653. A statute authorizing the taking up of bulls will not justify the taking up of cows, heifers or steers. Oil v. Rowley, 69 Ill., 469. As to the strictness with which the same principle is applied in tax cases, see Blackwell on Tax Titles, 45; Cooley on Taxation, 323. (7) To be good, an accord and satisfaction must be advantageous to the creditor; and it is upon this ground that a receipt by a creditor of a part of his demand then due has been held no answer to an action for the remainder, notwithstanding his agreement to receive it in satisfaction. Watkinson v. Inglesby, 5 Johns., 386; Blanchard v. Noyes. 3 N. II, 518; Wheeler v. Wheeler, 11 Vt., 60; Hinckley v. Arey, 27 Me.. 362; Daniels v. Hatch, 1 N. J.. 91; Eve v. Moseley, 2 Strobh., 203; Warren v. Skinner, 20 Conn., 559. But it is otherwise if the claim is not liquidated, or is in dispute. Stockton v. Frey, 4 Gill, 406; 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 fre quently 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: (z) 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. i, 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 HI. 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 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 would be put in a worse condition than all the rest of the world [*19] 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. (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 proportion. |